A/66/152
(b) The use of force in self-defence must be limited to what is necessary to
address an imminent or actual armed attack and must be proportionate to the threat
that is faced;
(c) States are required to take all necessary measures to ensure that their
territories are not used by other States or non-State actors for purposes of armed
activities, including planning, threatening, perpetrating or providing material
support for armed attacks against other States and their interests.
Jus in bello. The law of armed conflict set forth the rules, known as jus in
bello, that apply to the conduct of armed conflict, including the use of information
technology tools in the context of an armed conflict. In particular, the following key
principles of the law of armed conflict would play an important role in judging the
legality of cyberattacks during an armed conflict:
(a) The principle of distinction requires attacks to be limited to legitimate
military objectives and that civilian objects shall not be the object of attack;
(b) The prohibition on indiscriminate attacks includes a prohibition on
attacks that employ a means or method of warfare that cannot be reasonably directed
at a specific military objective;
(c) The principle of proportionality prohibits attacks that may be expected to
cause incidental loss to civilian life, injury to civilians, or damage to civilian
objects, which would be excessive in relation to the concrete and direct military
advantage anticipated.
These principles prohibit attacks on purely civilian infrastructure, the
disruption or destruction of which would produce no meaningful military advantage.
In addition, the potential for collateral damage would have to be assessed before
attacking a military target. In other words, targeting analysis would have to be
conducted for information technology attacks just as it traditionally has been
conducted for attacks using kinetic (conventional and strategic) weapons.
While the principles above are well-established and apply in the context of
cyberspace, it is also true that interpreting these bodies of law in the context of
activities in cyberspace can present new and unique challenges that will require
consultation and cooperation among nations. This is not unusual. When new
technologies are developed, they often present challenges for the application of
existing bodies of law.
C.
The use of proxies
The use of proxies to conduct disruptive operations is an example of an area
where the unique attributes of information and communications technologies present
new challenges for States. Acting through proxies significantly increases States’
ability to engage in attacks with plausible deniability. While existing international
law has provisions governing the use of mercenaries, the use of proxies in
cyberspace raises new and significant issues with wide-ranging implications. States
will need to work together to develop effective solutions to this problem.
D.
Responsibility to allow free flow of information
The rights to freedom of expression and the free flow of information are
embodied in the Universal Declaration of Human Rights and the International
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