A/76/136
operational context. This entails that the development of means or the adoption of the
method will often coincide with the planning of a concrete operation. Thus, the
obligation to take precautions in attack and the requirement of a legal review remain
separate requirements, but may overlap in substance.
IV.
States’ response options
a) Attribution
Attributing a cyber incident is of critical importance as a part of holding States
responsible for wrongful behaviour and for documenting norm violations in
cyberspace. It is also a prerequisite for certain types of responsive action. As regards
the attribution of certain acts to States under international law, Germany applies the
relevant customary law rules on State responsibility also to acts in cyberspace,
subject to any lex specialis provisions. Inter alia, cyber operations conducted by State
organs are attributable to the State in question. 97 The same applies with regard to
persons or entities which are empowered by the law of a State to exercise
elements of the governmental authority and act in that capacity in the particular
instance. 98 Attribution is not excluded because such organ, person or entity acting in
an official capacity exceeds its authority or contravenes instructions – cyber
operations conducted ultra vires are likewise attributable to the State in question. 99
This applies a maiore ad minus when only parts of an operation are ultra vires.
Generally, the mere (remote) use of cyber infrastructure located in the territory
of a State (forum State) by another State (acting State) for the implementation of
malicious cyber operations by the latter does not lead to an attribution of the acting
State’s conduct to the forum State. However, the forum State may under certain
circumstances incur responsibility on separate grounds, for example if its conduct
with regard to another State’s use of its cyber infrastructure for malicious purposes
qualifies as aid or assistance. 100 This inter alia applies if the forum State actively
and knowingly provides the acting State with access to its cyber infrastructure and
thereby facilitates malicious cyber operations by the other State. 101
Moreover, cyber operations conducted by non-State actors which act on the
instructions of, or under the direction or control of, a State are attributable to that
State. 102 The same principles apply as in the physical world: if a State recurs to private
actors in order to commit an unlawful deed, the actions by the private actor will
regularly be attributable to the State. States should recognize that they are accountable
for the actions of proxies acting under their control. 103 The State must have control
over a specific cyber operation or set of cyber operations conducted by the non-State
actor. While a sufficient degree or intensity of such control is necessary, the State is
not required to have detailed insight into or influence over all particulars,
__________________
97
98
99
100
101
102
103
21-09670
Cf. International Law Commission (ILC), Draft Articles on Responsibility of States for
Internationally Wrongful Acts, 2001, in: Report of the International Law Commission on the
work of its fifty-third session, 23 April–1 June and 2 July–10 August 2001, Official Records of
the General Assembly, Fifty-sixth Session, Supplement No. 10, UN Doc. A/56/10, 26 et seq.,
art. 4; Tallinn Manual 2.0 (note 55), rule 15.
Cf. Draft Articles on State Responsibility (note 97), art. 5; Tallinn Manual 2.0 (note 55), rule 15.
Cf. Draft Articles on State Responsibility (note 97), art. 7; Tallinn Manual 2.0 (note 55), rules
15, commentary, paras. 6, 12.
Cf. Draft Articles on State Responsibility (note 97), art. 16; Tallinn Manual 2.0 (note 55), rule 18 (a).
Cf. Draft Articles on State Responsibility (note 97), art. 16, commentary, para. 1; Tallinn Manual
2.0 (note 55), rule 18, commentary, para. 3.
Cf. Draft Articles on State Responsibility (note 97), art. 8; Tallinn Manual 2.0 (note 55), rule 17
(a).
Cf. UN Group of Governmental Experts, reports of 2013 and 2015 (note 52), paras. 23 and 28 (e)
respectively.
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