This article aims to examine the international responsibility of States for internationally wrongful cyber attacks in times of peace in light of the 2001 Draft Articles of the International Law Commission on State Responsibility for Wrongful Acts and of Chapter 4 of the Tallinn Manual 2.0 with particular regard to the constitutive elements of State responsibility, the circumstances precluding wrongfulness, the consequences of an internationally wrongful cyber attack and the measures of self-help which may be used by the target State. In order to establish the circumstances in which a cyber attack may lead to the breach of the primary norms of international law, the article analyses the difficult and debated issue of when a State-sponsored cyber attack reaches the threshold of an infringement of sovereignty, of the principle of non-intervention and of the prohibited «use of force» under art. 2(4) of the un Charter. This contribution has shown that most State-sponsored cyber attacks may violate the sovereignty of the targeted State as well as the principle of non-intervention but may fall below the threshold of the «use of force», the sole exception being the 2010 Stuxnet cyber attack allegedly perpetrated by the United States and Israel against the centrifuges of an Iranian nuclear facility. Further issues arise with regard to the threshold of an «armed attack» in order for the targeted State to use kinetic or cyber force in self-defence pursuant to art. 51 of the un Charter. Since the adaptation of said existing rules of international law to the cyber context may be problematic, the author advocates for the elaboration by the International Law Commission of a Draft Articles on State Responsibility for Internationally Wrongful Cyber Attacks and the subsequent adoption of an international convention which may also include a specific Chapter concerning the breach by State-sponsored cyber attacks of specific norms of international law, including in particular jus contra bellum.
La responsabilità internazionale degli Stati per attacchi informatici internazionalmente illeciti sferrati in tempo di pace
Rebekka Monico
2024-01-01
Abstract
This article aims to examine the international responsibility of States for internationally wrongful cyber attacks in times of peace in light of the 2001 Draft Articles of the International Law Commission on State Responsibility for Wrongful Acts and of Chapter 4 of the Tallinn Manual 2.0 with particular regard to the constitutive elements of State responsibility, the circumstances precluding wrongfulness, the consequences of an internationally wrongful cyber attack and the measures of self-help which may be used by the target State. In order to establish the circumstances in which a cyber attack may lead to the breach of the primary norms of international law, the article analyses the difficult and debated issue of when a State-sponsored cyber attack reaches the threshold of an infringement of sovereignty, of the principle of non-intervention and of the prohibited «use of force» under art. 2(4) of the un Charter. This contribution has shown that most State-sponsored cyber attacks may violate the sovereignty of the targeted State as well as the principle of non-intervention but may fall below the threshold of the «use of force», the sole exception being the 2010 Stuxnet cyber attack allegedly perpetrated by the United States and Israel against the centrifuges of an Iranian nuclear facility. Further issues arise with regard to the threshold of an «armed attack» in order for the targeted State to use kinetic or cyber force in self-defence pursuant to art. 51 of the un Charter. Since the adaptation of said existing rules of international law to the cyber context may be problematic, the author advocates for the elaboration by the International Law Commission of a Draft Articles on State Responsibility for Internationally Wrongful Cyber Attacks and the subsequent adoption of an international convention which may also include a specific Chapter concerning the breach by State-sponsored cyber attacks of specific norms of international law, including in particular jus contra bellum.
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