A/76/136 Settlement of Disputes), 5 which could include referring the dispute to the International Court of Justice (ICJ) where the necessary preconditions had been met (including admissibility and jurisdiction). Fourth, if State B’s conduct violated international law, it would entitle State A to take countermeasures – acts which would ordinarily be unlawful – in response to State B’s wrongdoing. Countermeasures could be cyber in nature or taken through alternative means – such as temporarily not performing certain bilateral treaty obligations owed to State B. However, State A would need to ensure that such countermeasures: • were directed against State B • did not constitute a threat or use of force, violate fundamental human rights, humanitarian obligations prohibiting reprisals, or peremptory international legal norms • were reversible (as far as possible) • were proportionate to the injury suffered by State A, and • were intended to induce State B to comply with its international legal obligations. International law would not preclude State A from taking acts of retorsion, which are unfriendly acts that are not inconsistent with the international obligations of State A, including, for example, declaring diplomats from State B in State A persona non grata. Scenario 2 – State A’s territory/infrastructure used by State B to conduct malicious cyber activities against State C State B’s Department of Defence conducts malicious cyber activities against State C that are routed through servers located on State A’s territory, without its knowledge. The malicious cyber activities conducted by State B are contrary to the rights of State C (although they do not constitute an unlawful use of force). State A’s relationship with State C could be damaged. International law may assist State A in the following ways: First, it provides rules of legal attribution, under which the unlawful acts of State B could not be attributed to State A. The rules of attribution (as outlined in Scenario 1) provide a clear legal framework for connecting the conduct of an individual or an entity to a state; this connection would not be established in the present case between State B’s Department of Defence and State A. Rather, the acts of the Department of Defence would be attributable to State B as an organ of that state exercising executive functions. Attribution would also be made out against State B if it used a proxy acting on its instructions, or under its direction or control, to carry out the relevant acts. Additionally, State A would not be considered responsible for aiding and assisting State B because its lack of knowledge of the wrongful acts and its lack of intent to aid or assist the wrongful acts would mean that it could not have __________________ 5 10/142 For example: Article 33(1) of the UN Charter provides that “The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.” In Security Our Common Future: An Agenda for Disarmament (Office for Disarmament Affairs, 2018) the UN Secretary-General commits to “make available his good offices to contribute to the prevention and peaceful settlement of conflict stemming from malicious activity in cyberspace”. 21-09670