4.In
certain
circumstances
actions
in
cyberspace
may
constitute
a violation
of
the
prohibition of the use of force
The prohibition on the threat or use of force is laid down in Article 2(4) of the Charter
of the United Nations’? and customary international law. According to the Advisory Opinion of
the International Court of Justice on the legality of the threat or use of nuclear weapons?3, an
action may be considered the use of force irrespective of the means used. What matters are
the effects of the actions taken. As a result, it cannot be ruled out that in some circumstances
a cyberattack will reach such a threshold that it will be deemed the use of force. Perceiving
a cyberattack as the use of force is supported by the possibility of it causing similar effects to
those caused by a classic armed attack executed with the use of conventional weapons. When
assessing whether
or not acyber operation
reaches the threshold
of the use of force, the
situation must be analysed individually, taking into consideration the circumstances of actions
taken in accordance with the requirements of international law. An action in cyberspace that
leads to: a permanent and significant damage of a power plant, a missile defence system
deactivation or taking control over an aircraft or a passenger ship and causing an accident with
significant effects may be considered the use of force.
This list is not exhaustive — the legal
qualification will always depend on the circumstances of a specific attack.
A cyberattack that does not reach the threshold of the prohibited use of force may be
deemed a prohibited intervention or an action that violates the principle of sovereignty.
5. Acyberattack may be qualified as an armed attack. The right to self-defence applies to
cyberspace
Pursuant to Article 51 of the Charter of the United Nations and customary international
law, a state has the right of self-defence in the event of an armed
attack. In the context of
cyberspace, a cyberattack that results in death or injury of people or damage or destruction of
property of significant value may be considered an armed attack. In such circumstances,
according to international law, a state enjoys the right of self-defence, however, this right
should be exercised in line with the principles arising from
namely the principle of necessity and proportionality.*4
customary international
law,
Self-defence does not need to involve the same means through which the armed attack
was inflicted. In response to a cyberattack that reaches the threshold of an armed attack, it is
possible to respond both in cyberspace exclusively or with the use of traditional armed forces.
Deprivation of the right to respond to such a cyberattack with kinetic means could render the
self-defence right illusory when the perpetrator of an armed attack is little dependent on its
functioning in cyberspace.
12 Article 2(4) of the Charter of the United Nations: “All Members shall refrain in their international relations from
the threat or use of force against the territorial integrity or political independence of any state, or in any other
manner inconsistent with the Purposes of the United Nations.”
13 Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons,
ICJ Rep. 1996, § 39.
14 Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons,
ICJ Rep. 1996, § 41.