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Cyber Warfare

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Public International Law of Cyberspace

Part of the book series: Law, Governance and Technology Series ((LGTS,volume 32))

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Abstract

Cyber weapons can be used by States as well as non-State actors to carry out cyberattacks. Cyberattacks may meet the threshold of use of force proscribed by Article 2(4) of the UN Charter if they cause catastrophic physical damage, and not merely severe economic losses. When a cyberattack meets the higher threshold of an “armed attack”, which is a most grave form of the use of force in terms of its scale and effect, this gives rise to the right of self-defence under Article 51 of the UN Charter and customary international law. Because of the exceptional speed of cyberattack, the right of self-defence against it must be effective or else this right would be an illusory one. Self-defence can, arguably, be resorted to against non-State actors operating from the territory of a State which is either unable or unwilling to prevent these actors from perpetrating an armed attack from its territory against the putative victim State. International law also recognizes that the putative victim State may respond to cyberattack below the threshold of an armed attack by means of countermeasures, reprisals, or retorsion, or on the basis of necessity. In order to prevent a cyber conflict from escalating, neutral States are not to take side with any of the belligerent States and the belligerent States themselves must respect the neutrality of neutral States. Cyber disarmament through codes of conduct together with domestic criminal law enforcement against proliferation of cyber weapons can help alleviate the threat of a cyber conflict.

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Notes

  1. 1.

    Cited in Oona A. Hathaway et al., “The Law of Cyber-Attack,” Calif. L. Rev. 100 (2012): 817, 824. However, Hathaway et al. would prefer a narrow definition of a cyberattack, which is “any action taken to undermine the functions of a computer network for a political or national security purpose” (ibid., 826). Cf. the US National Research Council’s definition in 2009 which defines cyberattacks as: “deliberate actions to alter, disrupt, deceive, degrade or destroy computer systems or networks or the information and/or programs resident in or transiting these systems or networks” (Singer and Friedman, Cybersecurity and Cyberwarfare, 68).

  2. 2.

    Singer and Friedman (loc. cit., 70) call these types of cyberattacks “availability attacks”, “confidentiality attacks”, and “integrity attacks”, respectively. An offensive cyberattack may be said to comprise access to the targeted IT to take advantage of its vulnerability (cf. Herbert Lin, “Cyber conflict and international humanitarian law,” International Rev. Red Cross 94 (2012): 515, 517–519; Andress, Winterfeld and Ablon, Cyber Warfare, chap. 1: What is Cyber Warfare?; Brandon Valeriano and Ryan Maness, “Persistent Enemy and Cyberwar: Rivalry Relations in an Age of Information Warfare,” in Cyber Challanges, ed. Reveron, 140–142 and the case examinations at 147–153.). See also, Newton Lee, Counterterrorism and Cybersecurity: Total Information Awareness, 2nd ed. (New York: Springer, 2015), chap. 9 (Cyber Warfare: Weapon of Mass Disruption), and chap. 10 (Cyber Attacks, Prevention, and Countermeasures).

  3. 3.

    “What Cyberthreats To Fear the Most,” Wall St. J., 20 Jun. 2016, R8, which reports an interview with Lt. Gen. James K. “Kevin” McLaughlin.

  4. 4.

    See, Georg Kerschischnig, Cyberthreats and International Law (The Hague: Eleven Publishing, 2012), chap. 5 (Myth or Reality?: Case Studies on Reported Cyber Incidents); “Snowden leaks: GCHQ ‘attacked Anonymous’ hackers,” BBC, 5 Feb. 2014; Singer and Friedman, Cybersecurity and Cyberwarfare, 125.

  5. 5.

    Tallinn Manual, 15.

  6. 6.

    Paul Ducheine, “The Notion of Cyber Operations,” in Research Handbook, eds. Tsagourias and Buchan, 211–232.

  7. 7.

    Cf. US Dept. of Defence Law of War Manual (2015) which does not elaborate comprehensive criteria or a detailed test to distinguish a cyberattack from an ordinary cyber operation, observing only that the latter resulting merely in reversible or temporary effects may not amount to an attack. This is criticized by Sean Watts, “Cyber Law Development and the United States Law of War Manual,” in International Cyber Norms, eds. Osula and Rõigas, 49 at 57.

  8. 8.

    Dave Lee, “Huge hack ‘ugly sign of future’ for internet threats,” BBC, 11 Feb. 2014. Another notable cyberattack incident was the Heartbleed bug attacks (“Digital heart attack,” Economist, 12 Apr. 2014, 61).

  9. 9.

    “Hack attack causes ‘massive damage’ at steel works,” BBC, 22 Dec. 2014.

  10. 10.

    Richard Westcott, “Rail signal upgrade ‘could be hacked to cause crashes’,” BBC, 24 Apr. 2015, quoting the interview with Prof. David Stupples of City University in London, UK.

  11. 11.

    Camille M. François, “Cyber risks in securing nuclear weapons from unauthorized or inadvertent use” (paper presented at the Vienna Conference on the Humanitarian Impact of Nuclear Weapons, 8–9 Dec. 2014).

  12. 12.

    Christopher Bronk and Eneken Tikk-Ringas, “The Cyber Attack on Saudi Aramco,” Survival: Global Politics and Strategy 55 (Apr.-May 2013): 81; Byron Acohido, “Why the Shamoon virus looms as destructive threat,” USA Today, 16 May 2013; Kim Zetter, “Qatari gas company hit with virus in wake of attacks on energy companies,” Security, 30 Aug. 2012.

  13. 13.

    Cf. the hacking of the computer system of the Roosevelt Dam, Arizona, USA, in the 1990s and the disputed facts whether the hacker could control the dam’s floodgates and the 489 billion gallons of water in the dam in Dinniss, Cyber Warfare, 282–283. In any event, destructive force by infrastructure such as dams can be seen from the incident in Siberia, Russia, in August 2009 when an employee at the Sayano-Shushenskaya hydroelectric power station accidentally switched on an unused turbine, releasing a massive flood from the dam which destroyed the power station, killed seventy-five persons, caused widespread power failure in the local area, and forced major hydroelectric power users to opt for diesel generators (Singer and Friedman, Cybersecurity and Cyberwar, 131; Victor S. Seleznev, Alexey V. Liseikin, Alexey A. Bryskin, and Pavel V. Gromyko, “What Caused the Accident at the Sayano-Shushenskaya Hydroelectric Power Plant (SSHPP): A Seismologist’s Point of View,” Seismological Research Letters, vol. 85 (4), Jul./Aug. 2014, 817).

  14. 14.

    Evan Perez, “U.S. investigators find proof of cyberattack on Ukraine power grid,” CNN, 4 Feb. 2016.

  15. 15.

    “China blamed as Australia’s weather bureau hacked: report”, AFP, 2 Dec. 2015.

  16. 16.

    Danny Yadron, “Iranian Hackers Infiltrated New York Dam in 2013,” Wall St. J., 20 Dec. 2015; Shimon Prokupecz and Tal Kopan, “Former Official: Iranians hacked into New York dam,” CNN, 21 Dec. 2015; Joseph Berger, “A Dam, Small and Unsung, Is Caught Up In an Iranian Hacking Case”, New York Times, 25 Mar. 2016.

  17. 17.

    Ellen Nakashima and Matt Zapotosky, “U.S. charges Iran-linked hackers with targeting banks, N.Y. dam,” Washington Post, 24 Mar. 2016.

  18. 18.

    Jose Pagliery, “Hackers attacked the U.S. energy grid 79 times this year,” CNN, 18 Nov. 2014. Cf. Ted Koppel, Lights Out: A Cyberattack, A Nation Unprepared, Surviving the Aftermath (New York: Crown Publishing Group, 2015), where the author argues that the US is unprepared and vulnerable to a cyberattack on the power grid and suggests steps to protect the nation and US citizens.

  19. 19.

    Jose Pagliery, “U.S. weather system hacked, affecting satellites,” CNN, 12 Nov. 2014.

  20. 20.

    Martha Mejía-Kaiser, “Space Law and Unauthorized Cyber Activities,” in Peacetime Regime, ed. Ziolkowski, 349 at 350–351, 356, 359, 362–363; David Livingtone and Patricia Lewis, Space, the Final Frontier for Cybersecurity? (London: Chatham House, 2016), 2, 7, 9–10, 13, 16–23. See also, Sam Jones, “Satellite Wars,” Financial Times Weekend, 21–22 Nov. 2015, Life & Arts section, 1, 19.

  21. 21.

    Mejía-Kaiser, “Space Law”, 360.

  22. 22.

    “Security of seismic sensors probed,” BBC, 7 Aug. 2016.

  23. 23.

    “US launches cyber security plan,” BBC, 29 May 2009.

  24. 24.

    Jacob Kellenberger, President, ICRC, “International Humanitarian law and New Weapon Technologies,” keynote address, 34th Roundtable on Current Issues of International Humanitarian Law, San Remo, 8–10 Sept. 2011.

  25. 25.

    ICRC, International humanitarian law and the challenges, 39; Cordula Droege (ICRC Legal Adviser), “No legal vacuum in cyber space,” Interview on 16 Aug. 2011, ICRC Resource Centre (https://www.icrc.org/eng/resources/documents/interview/2011/cyber-warfare-interview-2011-08-16.htm).

    Cf. Scott J. Schackelford, Managing cyber attacks in international law, business, and relations: In search of cyber peace (Cambridge: Cambridge University Press, 2014), 153, defining cyber warfare as an attack by one nation against the computers or networks of another to cause disruption or damage. These definitions are to be preferred to the too broad definition suggested by Bernik (Cybercrimes and Cyberwarfare, 69) who defines cyberwarfare as “an offensive and defensive operation of (private and public) institutions or groups to obtain and/or use the information with the assistance of ICT in order to achieve superiority in the battle with the competition”. Bernik’s proposed definition covers psychological operations and disinformation or deception (ibid., 72–73, 85, 90–95, 107–123) which more appropriately fall under the scope of the law of armed conflict to be dealt with in the next Chap. of this book.

  26. 26.

    Andress, Winterfeld and Ablon, Cyber Warfare, 41–45.

  27. 27.

    Chris C. Demchak, “Economic and Political Coercion and a Rising Cyber Westphalia” in Peacetime Regime, ed. Ziolkowski, 595 at 598–602.

  28. 28.

    Ivana Kottasova, “Ukraine recruits Internet army to fight Russian trolls,” CNN, 25 Feb. 2015; Olga Bugorkova, “Ukraine conflict: Inside Russia’s ‘Kremlin troll army’,” BBC, 19 Mar. 2015.

  29. 29.

    Sydney J. Freedberg Jr., “Wireless Hacking In Flight: Air Force Demos Cyber EC-130,” Breaking Defense, 15 Sept. 2015; Heather Harrison Dinniss, Cyber Warfare and the Laws of War (Cambridge: Cambridge University Press, 2012), 7, 285; Singer and Friedman, Cybersecurity and Cyberwarfare, 126–127.

  30. 30.

    “‘Cyber attack war games’ to be staged by UK and US,” BBC, 16 Jan. 2015.

  31. 31.

    Sydney J. Freedberg Jr., “Navy Forges New EW Strategy: Electromagnetic Maneuver Warfare,” Breaking Defense, 10 Oct. 2014.

  32. 32.

    See, Joint Chiefs of Staff, US Dept. of Defense, Joint Pub. 3–13, Information Operations (13 Feb. 2006) at ix, cited in Hathaway et al., “The Law of Cyber-Attack”, 15; Bernik, Cybercrime and Cyberwarfare, 86–87. The Australian Dept. of Defence has the Cyber and Electronic Warfare Division which “undertakes research and development focused on identifying, analyzing and countering threats to Australia’s defence and national security through electronic means”.

  33. 33.

    per Admiral Mark Ferguson, Commander of the Allied Joint Force Command and, concurrently, Commander of the US Naval Forces Europe and US Naval Forces Africa (David E. Sanger and Eric Schmitt, “Russian Ships Near Data Cables Are Too Close for U.S. Comfort,” New York Times, 25 Oct. 2015).

  34. 34.

    David E. Sanger and Eric Schmitt, “Russian Ships Near Data Cables Are Too Close for U.S. Comfort,” New York Times, 25 Oct. 2015; Barbara Starr, “U.S. sensors detect Russian submarines near underwater cables,” CNN, 29 Oct. 2015.

  35. 35.

    “9 Questions with former Nightline anchor Ted Koppel,” Time, 2 Nov. 2015, 52.

  36. 36.

    Para. 2 of the Commentary to Rule 41 – Definitions of means and methods of warfare. “Cyber operation” is defined in this context as “a particular cyber activity” (para. 1 of the Commentary to Rule 41).

  37. 37.

    Emily Crawford, Identifying the Enemy: Civilian Participation in Armed Conflict (Oxford: Oxford University Press, 2015), 140–144; Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, 3rd ed. (Cambridge: Cambridge University Press, 2016), 177.

  38. 38.

    Cheryl Pellerin, “DARPA Plan X Uses New Technologies to ‘See’ Cyber Effects” (American Forces Press Service, US Dept. of Defence, 11 Jun. 2014).

  39. 39.

    “EC-130H Compass Call,” U.S. Air Force, 4 May 2015.

  40. 40.

    Spencer Ackerman, “Pentagon admits it is ‘looking to accelerate’ cyber-attacks against ISIS,” Guardian, 29 Feb. 2016.

  41. 41.

    David E. Sanger and Mark Mazzetti, “U.S. Had Cyber Attack Plan if Iran Nuclear Dispute Led to Conflict,” New York Time, 16 Feb. 2016.

  42. 42.

    ICJ Rep. 1986, p. 14 at para. 34.

  43. 43.

    E.g., Yoram Dinstein, War, Aggression and Self-Defence, 5th ed. (Cambridge: Cambridge University Press, 2011), 86–88.

  44. 44.

    Dinniss, Cyber Warfare, 40–46.

  45. 45.

    Ibid., 47–48.

  46. 46.

    Tom Ruys, “The Meaning of ‘Force’ and the Boundaries of the Jus Ad Bellum: Are ‘Minimal’ Uses of Force Excluded from UN Charter Article 2(4)?,” American JIL 108 (2014): 159, 164, citing the drafting history of this proviso in Documents of the United Nations Conference on International Organization (1945), vol. 6 at 334–335. Ruys concludes from his analysis of State practice regarding Art. 2(4) that the practice does not support a general de minimis threshold of use of force under this provision; otherwise such threshold “may well open Pandora’s box by making it far easier for States to justify targeted killings, counter-terrorism operations and the like by reference, for example, to necessity, countermeasures, or distress.... [thereby] threaten[ing] the legal constraints on the use of force” (ibid., 209–210).

  47. 47.

    ICJ Rep. 1996, p. 226 at para. 39.

  48. 48.

    Melzer, Cyberwarfare and International Law, 9. One author contends that cyberattacks cannot be “armed attacks” because they do not involve the use of kinetic forces (Susan W. Brenner, Cyberthreats and the Decline of the Nation-State (London/New York: Routledge, 2014), 4.

  49. 49.

    “International Law in Cyberspace,” remarks by Harold Hongju Koh, Legal Advisor, US Department of State, U.S. CYBERCOM Inter-Agency Legal Conference, Ft. Meade, MD, 18 Sept. 2012. See also, Schackelford, Managing cyber attacks, 285–306.

  50. 50.

    See, Matthew C. Waxman, “Cyber-Attacks and the Use of Force: Back to the Future of Article 2(4),” Yale JIL 36 (2011): 421, 452–453.

  51. 51.

    See also, Antonio Segura Serrano, “Cybersecurity: towards a global standard in the protection of critical information infrastructures,” Euro. J. Law & Techno. 6 (2015), on the lack of a global standard in the protection of critical infrastructures against cyberattack due to the different approaches adopted in different continents on how to protect these infrastructures.

  52. 52.

    42 U.S.C. §5195c(e).

  53. 53.

    One author argues that a cyberattack that altered software used on Wall Street or infected a power station’s computers with a virus could be a use of force at the level of an armed attack, which will be discussed in Sect. 4.5 below (Brenner, Cyberthreats, 73).

  54. 54.

    Kaljurand, “United Nations Group of Government Experts”, 117.

  55. 55.

    Ibid., 119.

  56. 56.

    One author, while concurring with this conclusion, would also propose that Art. 2(4) of the UN Charter be evolutively interpreted to cover also cyberattacks which render ineffective or unusable computer systems that sustain critical infrastructures and thereby causing significant disruption to the delivery of essential services, even when they do not materially damage those infrastructures (Marco Roscini, “Cyber Operations as a Use of Force,” in Research Handbook, eds. Tsagourias and Buchan, 233–254).

  57. 57.

    NATO Press Release (2008) 049 of 3 Apr. 2008.

  58. 58.

    Commentary to Rule 11 of the Tallinn Manual; Michael N. Schmitt, “Cyber operations and the jus ad bellum revisited,” Villanova L. Rev. 56 (2011): 569, 575–577; id., “International Law in Cyberspace: The Koh Speech and Tallinn Manual Juxtaposed,” Harvard Int’l LJ. 54 (2012): 13, 19–20; and cf. also, Melzer, Cyberwarfare and International Law, 13–16.

  59. 59.

    Melzer, loc. Cit., 16.

  60. 60.

    Paras. 4–5 of the Commentary to Rule 12 of the Tallinn Manual.

  61. 61.

    Case Concerning Military and Paramilitary in and against Nicaragua (Nicaragua v. USA), ICJ Rep. 1986, p. 14, paras. 34, 48, 187–201.

  62. 62.

    Oil Platforms (Iran v. USA), ICJ Rep. 2003, 161, para. 51, citing Nicaragua v. USA, ICJ Rep. 1986, p. 14, paras. 191, 195.

    Cf. Svetlana Zasova, “La légitime défense des Etats et la guerre cybernétique,” in Société Française pour le Droit International, Colloque de Rouen: Internet et le droit international (Paris: Editions A. Pedone, 2014), 265–275.

  63. 63.

    Tallinn Manual, 17. For prerequisites for countermeasures, see Gabčíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Rep. 1997, p. 7 at paras. 83–87.

  64. 64.

    Dinniss, Cyber Warfare, 57; Brenner, Cyberthreats, 81. Some authors consider it as a use of force under Art. 2(4) of the UN Charter, but without determining whether it gives rise to the right of self-defence under Art. 51 of the Charter (e.g., Pål Wrange, “Intervention in National and Private Cyberspace and International Law”, 312). The International Group of Experts writing the Tallinn Manual was divided as to whether the damage caused by Stuxnet met the requisite threshold of an “armed” attack (Tallinn Manual, 83–84).

  65. 65.

    This omission was alluded to by the ICJ in Nicaragua v. USA, ICJ Rep. 1986, p. 14 at para. 176.

  66. 66.

    Ibid., para. 195, emphasis added.

  67. 67.

    Mark Clayton, “Stuxnet: Ahmadinejad admits cyber weapon hit Iran nuclear program”, Christian Science Monitor, 30 Nov. 2010.

  68. 68.

    Nicaragua v. USA, paras. 242, 292(3).

  69. 69.

    Ibid., para. 195. See also, Dapo Akande, ‘The Contribution of the International Court of Justice and the Law of the Use of Force’, EJIL: Talk!, 18 Nov. 2011.

  70. 70.

    Koh, “International Law in Cyberspace”.

  71. 71.

    ICJ Rep. 2003, paras. 51, 64, 72.

  72. 72.

    Ibid., para. 51, quoting paras. 191 and 195 of Nicaragua v. USA, ICJ Rep. 1986.

  73. 73.

    See the test enunciated by the ICJ in Nicaragua v. USA, ICJ Rep. 1986, at para. 195: “if such an operation, because of its scale and effects, would have been classified as an armed attack”.

  74. 74.

    Schmitt, “Cyber Operations”, 587.

  75. 75.

    Cf. Tom Ruys (‘Armed Attack’ and Article 51 of the UN Charter: Evolutions in Customary Law and Practice (Cambridge: Cambridge University Press, 2010), 520), who argues that the ICJ has never ruled out the fact that small-scale border incursions could singly or collectively amount to an armed attack, citing para. 231 of Nicaragua v. USA in which the ICJ could not decide the question owing to lack of information on the circumstances and motivations of the attacks, and para. 146 of DR Congo v. Uganda (ICJ Rep. 2005) where the issue was circumvented for many reasons. The author points out that the ICJ in Oil Platform (para. 72) “[did] not exclude the possibility that the mining of a single military vessel might be sufficient to bring into play the ‘inherent right of self-defence’”.

  76. 76.

    Both the USSR and the US demanded that to be an act of aggression, the use of force in question must reach a high level of intensity. See, Ruys, “The Meaning of ‘Force’”, 164.

  77. 77.

    Paras. 12–13 of his Sep. Opinion, ICJ Rep 2005.

  78. 78.

    Nicaragua v. USA; ICJ Adv. Op. on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004); and Armed Activities on the Territory of the Congo (DR Congo v. Uganda) (2005), paras. 146, and see also para. 147 of the Judgment and the Sep. Op. of Judge Kooijmans, that of Judge Elaraby, and that of Judge Simma, respectively.

  79. 79.

    ICJ Rep. 2003, p. 161, para. 78.

  80. 80.

    Elizabeth Wilmshurst, ed., Principles of International Law on the Use of Force by States in Self-Defence (London: Royal Institute of International Affairs, 2005), 6. The participants in the discussion that resulted in this paper were Sir Franklin Berman, Daniel Bethlehem, James Gow, Christopher Greenwood, Vaughan Lowe, Sir Adam Roberts, Philippe Sands, Malcolm Shaw, Gerry Simpson, Colin Warbrick, Nicholas Wheeler, Elizabeth Wilmshurst, and Sir Michael Wood.

  81. 81.

    See a similar conclusion in Dinniss, Cyber Warfare, 74, 76–81.

  82. 82.

    Schmitt, “International Law in Cyberspace”, 22–23, citing Rule 13 of the Tallinn Manual. The ICJ in Nicaragua v. USA seems to leave open the possibility that armed incursions may be treated for legal purposes as amounting, singly or collectively, to an “armed attack” against the putative victim State (ICJ Rep. 1986, para. 231). The ICJ takes a similiar stance in Oil Platforms, stating an attack, either in itself or in combination with the rest of the “series of.. attacks”, can be categorized as an “armed attack” on the putative victim State justifying self-defence (ICJ Rep. 2003, para. 64).

  83. 83.

    Vidan Hadzi-Vidanovic, “Kenya invades Somalia Invoking the Right of Self-Defence,” EJIL Talk!, 18 Oct. 2011; Christian Purefoy, Greg Botelho, Jethro Mullen, and Eliot C. McLaughlin, “Kenya strikes on Al-Shahaab targets unrelated to Garissa attacks: source says,” CNN, 6 Apr. 2015.

  84. 84.

    See, e.g., Evan A. Laksamana, “Reinterpreting the Total Defence System,” Jakarta Post, 19 May 2010.

  85. 85.

    Dinniss, Cyber Warfare, 39, 54.

  86. 86.

    Max Fisher, “Syrian hackers claim AP hack that tipped stock market by $136 billion. Is it terrorism?,” Washington Post, 23 Apr. 2013. For more information about the Syrian Electronic Army, see “Syria’s Electronic Armies,” Al Jazeera, 18 Jun. 2015, and the accompanying 25-minute documentary.

  87. 87.

    Ove Bring, “The Use of Force under the UN Charter: Modification and Reform through Practice of Consensus,” in International Law and Changing Perceptions of Security: Liber Amicorum Said Mahmoudi, eds. J. Ebbesson et al., 1 at 12.

  88. 88.

    Mary Ellen O’Connell, “The prohibition of the use of force” in Research Handbook on International Conflict and Security Law: Jus ad Bellum, Jus in Bello, and Jus post Bellum, eds. Nigel D. White and Christian Henderson (Cheltenham: Edward Elgar: 2013), chap. 4, 111–112, 115–116; Tom Ruys, ‘Armed Attack’ and Article 51 of the UN Charter, 514–517.

    Dinniss contends that the right of anticipatory self-defence may be controversial since “a right of self-defence against an imminent attack is established in customary international law” and applicable in the context of imminent cyberattacks (Cyber Warfare, 82–93, esp. 88).

  89. 89.

    Letter from Daniel Webster to Lord Ashburton dated 6 Aug. 1842, reprinted in 2 Int’l L. Digest 412 (ed. John Bassett Moore, 1906); K.E. Shewmaker, ed., The Papers of Daniel Webster: Diplomatic Papers, vol. 1: 1841–1843 (Armidale: University of New England Press, 1983), 62.

  90. 90.

    Derek Bowett, Self-Defence in International Law (Manchester: Manchester University Press, 1958), 3–25, 269. Hugo Grotius also seemed to have accepted the right to anticipatory self-defence when he said that “[t]he danger … must be immediate and imminent in point of time. …” (Hugo Grotius, De Jure Belli Ac Pacis Libris Tres (Indianapolis: Bobbs-Merrill, Francis W. Kelsey trans., 1925), 173).

  91. 91.

    Ian Brownlie, International Law and the Use of Force by States (Oxford: Clarendon Press, 1963), 428–436; Dinstein, War, Aggression and Self-Defence, 188–189.

  92. 92.

    See, e.g., Nicaragua v. USA, ICJ Rep. 1986, p. 103, para. 194 and DRC v. Uganda, ICJ Rep. 2005, p. 168, para. 143.

  93. 93.

    UN Doc. A/59/2005, para. 122.

  94. 94.

    Ibid., para. 124.

  95. 95.

    Ibid., para. 125.

  96. 96.

    Wilmshurst, ed., Principles of International Law, 5.

  97. 97.

    Sean D. Murphy, “The Doctrine of Preemptive Self-Defense,” Villanova L. Rev. 50 (2005): 699, 703–704. See, The National Security Strategy of the United States (Washington, DC: Office of the White House, 2002), 15. Cf. James Mulcahy and Charles O. Mahony, “Anticipatory Self-Defence: A Discussion of the International Law,” Hanse Law Rev. 2 (2006): 231, 236–238.

  98. 98.

    Christopher Greenwood, “International Law and the Pre-Emptive Use of Force: Afghanistan, Al-Qaida, and Iraq,” San Diego Int’l L. J. 4 (2003): 7, 16.

  99. 99.

    See, Christine Gray, International Law and the Use of Force, 3rd ed. (Oxford: Oxford University Press, 2008), 213, 252, citing the positions of States during the debate on In Larger Freedom, UN Doc. GA/10377, 10388, and 10399 dated 6–8 Apr. 2005, and the position of the 118-member Non-Aligned Movement (NAM) in the 2006 Havana Declaration, UN Doc. S/2006/780, 29 Sept. 2006, paras. 20 and 22.5.

    The UK has declined to rely on the doctrine to justify its involvement in the Iraq war of 2002, and has maintained its opposition to the doctrine since (D. Akande, “UK Government Rejects Pre-emptive Self Defence With Respect to Iran,” EJIL: Talk!, 26 Oct. 2012, available at: http://www.ejiltalk.org/uk-government-rejects-pre-emptive-self-defence-with-respect-to-iran/, citing the Attorney-General’s advice to the British Prime Minister on 30 Jul. 2002). See also, Dino Kritsiotis, “A study of the concept and operation of the rights of individual and collective self-defence under international law,” in Research Handbook on International Conflict and Security Law, eds. White and Henderson, chap. 6, 192–196; Mulcahy and Mahony, “Anticipatory Self-Defence”, 240–241; Ruys, ‘Armed Attack’ and Article 51 of the UN Charter, 525–528.

  100. 100.

    Para. 7 of the Commentary to Rule 15 – Imminence and immediacy of the Tallinn Manual. See also, Schmitt, “International Law in Cyberspace”, 24. Earlier, Schmitt seemed to support the right to preventive self-defence (id., “Cyber Operations”, 592–593).

  101. 101.

    Libicki, Crisis, 127–128.

  102. 102.

    The ICJ applies the “‘effective control” test for the purpose of attribution of an act by a non-State actor to a State in Nicaragua v. USA, para. 115, and Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), ICJ Rep. 2007, p. 43, paras. 399–400. Under the test, the non-State actor must be under the effective control of the State for the State to be held responsible under international law for the act by the non-State actor. See Sect. 2.2.1 above.

  103. 103.

    Legal Consequences of the Construction of a Wall in the Occupied Palestine Territory, ICJ Rep. 2004, p. 136 at para. 139 (contra: Sep. Op. of Judge Kooijimans and Declaration of Judge Buergenthal).

  104. 104.

    DRC v. Uganda, ICJ Rep. 2005, p. 168 at paras. 146–147. The ICJ adds: “... Accordingly, the Court has no need to respond to the contentions of the Parties as to whether and under what conditions contemporary international law provides for a right of self-defence against large-scale attacks by irregular forces....” (ibid., para. 147).

  105. 105.

    Gray, International Law and the Use of Force, 202. The ICJ in DRC v. Uganda concludes in para. 147: “…, the Court finds that the legal and factual circumstances for the exercise of a right of self-defence by Uganda against the DRC were not present. Accordingly, the Court has no need to respond to the contentions of the Parties as to whether and under what conditions contemporary international law provides for a right of self-defence against large-scale attacks by irregular forces. …” See also, Schmitt, “Cyber Operations”, 601.

  106. 106.

    Sir Michael Wood in Wilmshurst, ed., Principles of International Law, 30.

  107. 107.

    See, e.g., Bring, “The Use of Force under the UN Charter”, 4–6. Cf. Dinniss, Cyber Warfare, 102–104.

  108. 108.

    Wilmshurst (ed.), Principles of International Law, 11.

  109. 109.

    See, e.g., Bring, “The Use of Force under the UN Charter”, 4.

  110. 110.

    Gray, International Law ad the Use of Force, 200.

  111. 111.

    Cf. Lindsay Moir, Reappraising the Resort to Force: International Law, Jud ad Bellum and the War on Terror (Oxford: Hart Publishing, 2010), 71: “The use of military force against both Al-Qaeda and (although slightly more problematically) Afghanistan in response to the terrorist attacks of 11 September 2001 must, accordingly, be considered to have been a valid and lawful exercise of the right of self-defence”.

  112. 112.

    See, e.g., the position of the Organization of American States (OAS) condemning the September 11 terrorist attacks and calling upon “all Member States and the entire international community to take effective measures to deny terrorist groups the ability to operate within their territories, noting that those responsible for aiding, supporting, or harboring the perpetrators, organizers, and sponsors of these acts are equally complicit in these acts” (para. 3 of the Resolution on Strengthening Hemispheric Cooperation to Prevent, Combat, and Eliminate Terrorism, adopted at the 23rd meeting of Consultation OEA of Ministers of Foreign Affairs, 21 Sept. 2001).

    Also, Dire Tladi, “The Nonconsenting Innocent State: The Problem with Bethlehem’s Principle 12,” Amer. JIL 107 (2013): 570, quoting (at 575) US President Bush’s Address After Terrorist Attacks (11 Sept. 2001) and Speech to Joint Session of Congress: War on Terror (20 Sept. 2001).

  113. 113.

    Tim Lister, Ray Sanchez, Mark Bixler, Sean O’Key, Michael Hogenmiller, and Mohammed Tawfeeq, “ISIS goes global: 143 attacks in 29 countries have killed 2043,” CNN, 25 Jul. 2016.

  114. 114.

    Ruys, ‘Armed Attack’ and Article 51 of the UN Charter, 517 (emphasis original).

  115. 115.

    Bring, “The Use of Force under the UN Charter”, 6. For news of such action by Turkey in 2015, which ended a two-year ceasefire with the PKK, see, e.g., “Turkey expands bombing raids to PKK targets in Iraq,” Al Jazeera, 25 Jul. 2015.

  116. 116.

    Turkey requested an emergency meeting of NATO pursuant to Art. 4 of the NATO Treaty which allows its Member States to seek consultations when their “territorial integrity, political independence or security” is under threat. The NATO Secretary-General was reported to have expressed his solidarity with Turkey at the meeting on 28 July 2015 and considered it timely “to address instability on Turkey’s doorstep and on NATO’s border” (“NATO calls emergency meeting after Turkey’s request,” Al Jazeera, 27 Jul. 2015; “Erdogan says Kurdish peace talks impossible to continue,” loc. cit., 28 Jul. 2015).

  117. 117.

    Turkish Ministry of Foreign Affairs Press Release No. 224 (5 Aug. 2015) regarding the statement on 4 Aug. 2015 of Nabil Elaraby, Secretary General of the League of Arab States, about Turkey.

  118. 118.

    “Qatar backs Turkey’s ‘right to defend borders’,” Al Jazeera, 4 Aug. 2015.

  119. 119.

    “Baghdad calls on Ankara to end attacks on PKK in Iraq,” Press TV, 3 Oct. 2012.

  120. 120.

    Art. 1(c) (p) and (w) of the Pact.

  121. 121.

    See the distinction between the use of force at the invitation of a victim State and that in the exercise of individual or collective self-defence in Gray, International Law and the Use of Force, 168.

  122. 122.

    Brian Egan, “International Law, Legal Diplomacy, and the Counter-ISIL Campaign” (paper presented at the Annual Meeting of the American Soc. IL, 30 Mar.-2 Apr. 2016). For a criticism of the ambiguity of international law on self-defence against non-State actors, see, Monica Hakimi and Jacob Katz Cogan, “The Two Codes on the Use of Force”, Euro. J. Int’l L. 27 (2016): 257, 278–283.

  123. 123.

    Nicaragua v. USA, paras. 196–199; Oil Platforms, para. 51; and cf. DRC v. Uganda, paras. 126–127. See also, Dinstein, War, Aggression and Self-Defence, 294–296.

  124. 124.

    UN Doc. S/2015/718 and UN Doc. S/727. The latter document also reads:

    The United States, Britain, France, Canada and Australia have sought to justify their intervention in Syria by citing the fight against ISIL. They have invoked Article 51 of the Charter of the United Nations, but have not consulted with the Syrian Government. That course of action distorts the provisions of the Charter and manipulates international law. Such an assault on Syrian sovereignty will merely give terrorism a freer hand. The only productive way to combat terrorism remains the establishment of an effective international coalition within the framework of international law and with the participation of concerned States, particularly Syria, which is the main party confronting terrorism in the region (Identical letters dated 21 Sept. 2015 from the Permanent Representative of the Syrian Arab Republic to the United Nations addressed to the Secretary-General and the President of the Security Council, A/70/385–S/2015/727).

    For a view that there were tacit approvals by certain senior Ministers in the Syrian Cabinet, including the Foreign Minister, to the US-led air strikes against ISIL in Syria, see, Ryan Goodman, “Taking the Weight off International Law: Has Syria Consented to US Airstrikes?,” Just Security, 23 Dec. 2014.

  125. 125.

    See also, Raphael van Steenberghe, “From Passive Consent to Self-Defence after the Syrian Protest against the US-led Coalition,” EJIL Talk!, 23 Oct. 2015.

  126. 126.

    Statement by the President of the UN Security Council (Doc. S/PRST/2014/20).

  127. 127.

    Press Release of the Ministry of Foreign Affairs of Ecuador dated 25 Sept. 2014; “Iran warns of risks to Israel’s security should US seek overthrow of Assad,” Guardian, 11 Oct. 2014; Alex Leff, “Brazil and Ecuador come out against airstrikes in Syria,” GlobalPost, 25 Sept. 2014; “Russia warns US about strikes against Islamic State in Syria,” BBC, 11 Sept. 2014.

  128. 128.

    Euan McKirdy et al., “Turkey sends tanks into Syria against ISIS; rebels reportedly capture town”, CNN, 24 Aug. 2016; Ahmed Deeb, “Operation ‘Euphrates Shield’ ends ISIL rule in Jarablus”, Al Jazeera, 25 Aug. 2016.

  129. 129.

    “US fighter jets target ISIL in Libya for first time,” Al Jazeera, 2 Aug. 2016.

  130. 130.

    “France launches Syria anti-IS strikes,” BBC, 27 Sept. 2015.

  131. 131.

    S/RES/1816 (2008), 2 Jun. 2008.

  132. 132.

    Letter dated 10 Dec. 2015 from the Chargé d’affaires a.i. of the Permanent Mission of Germany to the United Nations addressed to the President of the Security Council (Doc. S/2015/946 of 10 Dec. 2015).

  133. 133.

    Letter dated 7 June 2016 from the Permanent Representative of Belgium to the United Nations addressed to the President of the Security Council (Doc. S/2016/523 dated 9 Jun. 2016).

  134. 134.

    Nicaragua v. USA, paras. 196–198.

  135. 135.

    Three Syrian men were arrested on 2 June 2016 in Germany on the suspicion that they were planning a terrorist attack on Dusseldorf on behalf of ISIL (Tim Hume, “German police arrest 3 Syrians over alleged ISIS terror plot,” CNN, 2 Jun. 2016). Apart from this, there were sporadic concrete threats of terrorist attacks by ISIL inside Germany, such as the one against two railways stations in Munich on 31 Dec. 2015, and the axe attack by an ISIL sympathizer on a train in Würzburg, northern Bavaria, on 18 July 2016, after the use of force by Germany against ISIL in Syria. These are hardly sufficient to fulfill the requirements for the exercise of the right of self defence under Art. 51 of the UN Charter and customary international law.

  136. 136.

    It stipulates:

    The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

    Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.

  137. 137.

    See, e.g., Report of the Secretary-General on Somalia, UN Doc. S/2016/27 (8 Jan. 2016).

  138. 138.

    US Dept. of Defence, Press Release No. NR-076-16 (7 Mar. 2016). However, al-Shabaab denied the figure of its casualties (Hamza Mohamed, “Somalia’s al-Shabab: Tolls of US airstrikes exaggerated,” Al Jazeera, 8 Mar. 2016).

  139. 139.

    https://www.un.org/sc/suborg/en/sanctions/751/materials/summaries/entity/al-shabaab.

  140. 140.

    E.g., UN Security Council Press Statement on Al-Shabaab Attack in Somalia (SC/12205-AFR/3304 of 15 Jan. 2016); UN Security Council Press Statement on Somalia (SC/12216-AFR/3311 of 22 Jan. 2016).

  141. 141.

    See, e.g., Henry Austin, “SEAL Somali target named as ‘Ikrima’ as questions remain about aborted mission,” NBC News, 7 Oct. 2013; Abdalle Ahmed and Spencer Ackerman, “How the US raid on al-Shabaab in Somalia went wrong,” Guardian, 9 Oct. 2013.

  142. 142.

    Jordan J. Paust, “Operationalizing Use of Drones Against Non-State Terrorists Under the International Law of Self-defense,” Albany Govt. L. Rev. 8 (2015): 166, 172–178 and the writings cited in accompanying footnotes 16–25. Melzer (Cyberwarfare and International Law, 21) seems to treat this kind of situation as one in which non-State belligerents abuse “neutral” territory to conduct armed attacks against another State.

  143. 143.

    Sir Daniel Bethlehem, QC, “Principles relevant to the Scope of a State’s Right of Self-Defence against an Imminent or Actual Armed Attack by Non-State Actors,” Amer. JIL.106 (2012): 776, 782. The author adds:

    The seeking of consent must provide an opportunity for the reluctant host to agree to a reasonable and effective plan of action, and to take such action, to address the armed activities of the non-State actor operating in its territory or within its jurisdiction. The failure or refusal to agree to a reasonable and effective plan of action, and to take such action, may support a conclusion that the state in question is to be regarded as a colluding or a harboring State.

    For a similar view, see, Dinniss, Cyber Warfare, 95–99. Cf. Ruys, ‘Armed Attack’ and Article 51 of the UN Charter, 531–532. Ruys proposes that a putative victim State may exercise the right of self-defence under Art. 51 of the Charter against a non-State armed group whose conduct is not attributable to any State if and to the extent that the following conditions are cumulatively fulfilled:

    1. (a)

      There is compelling evidence that further attacks are imminent.

    2. (b)

      The State from whose territory the non-State actor operates is manifestly and persistently unwilling or unable to prevent the cross-border non-State attacks. This will in particular be the case when the State itself provides active support to the non-State actor, or when it has completely lost control over that part of its territory from which the group operates.

    3. (c)

      Peaceful means have fully been exhausted.

    4. (d)

      The non-State actor threat cannot appropriately be dealt with by other means, such as action within the victim State’s territory.

    5. (e)

      The defensive action is strictly targeted against and proportionate to the non-State threat. Only if the territorial State actively opposes action that is compatible with the aforementioned conditions, is the defending State permitted to take selective action against it insofar as needed to protect its military personnel and installations (ibid., 544).

  144. 144.

    Case concerning Kasikili/Sedudu Island (Botswana/Namibia), ICJ Rep. 1999, p. 1405, para. 18, and the cases cited therein.

  145. 145.

    Tladi, “The Nonconsenting Innocent State”.

  146. 146.

    Mahmoud Hmoud, “Are New Principles Really Needed? The Potential of the Established Distinction between Responsibility for Attacks by Non-State Actors and the Law of Self-Defence,” Amer. JIL 107 (2013): 576, 577–578.

  147. 147.

    ICJ Rep. 1949, p. 4 at p. 22.

  148. 148.

    Olivier Corten, “A Plea against Abusive Invocation of Self-defence as a Response to Terrorism,” EJIL Talk!, 14 Jul. 2016. See also, Nicholas Tsagourias, “Self-Defence against Non-state Actors: The Interaction between Self-Defence as a Primary Rule and Self-Defence as a Secondary Rule,” Leiden JIL 29 (2016): 801.

  149. 149.

    Art. 10(3) of the Protocol.

  150. 150.

    Ibid., Art. 5(4).

  151. 151.

    Ibid., Art. 6(3).

  152. 152.

    Ibid., Art. 8(7).

  153. 153.

    Ibid., Art. 8(10).

  154. 154.

    Paras. 16–17 of the Commentary to Rule 13 – Self-defence against armed attack of The Tallinn Manual; Schmitt, “International Law in Cyberspace”, 24–25.

  155. 155.

    Daniel Bethlehem, “Principles of Self-Defence – A Brief Response,” Amer. JIL 107 (2013): 579, 584.

  156. 156.

    This would explain why “a majority of States” accepted Israel’s use of force in self-defence against Hezbollah armed groups that had ambushed an Israel border patrol mentioned in Ruys, ‘Armed Attack’ and Article 51 of the UN Charter, 521. But Ruys concedes (at 530) that “the international response to concrete incidents has been far from coherent”.

    For further criticisms of Bethlehem’s contention, see, Elizabeth Wilmhurst and Michael Wood, Amer. JIL 107 (2014), 393–394.

  157. 157.

    Nicaragua v. USA, ICJ Rep. 1986, paras. 194, 237; Oil Platforms, ICJ Rep. 2003, paras. 51, 73–77.

  158. 158.

    “How to back up a country,” Economist Technology Quarterly, 7 Mar. 2015, 3.

  159. 159.

    Robin Geiß and Henning Lahmann, “Freedom and Security in Cyberspace: Shifting the Focus away from Military Responses towards Non-Forcible Countermeasures and Collective Threat-Prevention” in Peacetime Regime, ed. Ziolkowski, 621 at 628.

  160. 160.

    ICJ Rep. 1997, p. 7, paras. 52, 82–85. One author has come up with a “proportionate counter CNA [Computer Network Attack] rule”‘ which allows a victim State to respond to a CNA with a proportionate counter CNA under 3 conditions: (1) the CNA is attributable to the perpetrator State; (2) the victim State has called on the perpetrator State to ceases its use of CNAs against the victim State; and the counter CNA is necessary to induce the perpetrator State to cease its use of CNAs against the victim State. (Manny Halberstram, “Hacking Back: Reevaluating the Legality of Retaliatory Cyberattacks,” Geo. Wash. Int’l L. Rev. 46 [2013]: 199, 225–237). However, this rule would be impractical to apply by victim States that do not possess CNA capability.

  161. 161.

    Tallinn Manual, para. 5 of the Commentary to Rule 9 – Countermeasures. However, while the majority of the International Group of Experts who wrote the Tallinn Manual agreed that cyber countermeasures may not involve the threat or use of force, a minority of the Experts contended that proportionate countermeasures could involve a limited degree of military force in response to circumstances short of an “armed attack” (ibid.). Cf. also Geiß and Lahmann, “Freedom and Security in Cyberspace”, 628–644.

  162. 162.

    Michael N. Schmitt, “Cyber Activities and the Law of Countermeasures” in Peacetime Regime, ed. Ziolkowski, 659 at 674.

  163. 163.

    Para. 5 of the ILC Commentary to Art. 49 of Draft Articles on Responsibility of States for Internationally Wrongful Acts (Report of the International Law Commission on the Work of Its Fifty-Third Session, p. 130). For a detailed analysis on this aspect, see, Michael N. Schmitt and M. Christopher Pitts, “Cyber Countermeasures and Effects on Third Parties: The International Legal Regime,” Baltic YBIL 14 (2014): 1.

  164. 164.

    Statement by the President on Actions in Response to Russian Malicious Cyber Activity and Harassment, White House Press Release, 29 Dec. 2016; “US expels Russian diplomats over cyber attack allegations”, BBC, 29 Dec. 2016; “US expels Russian diplomats over cyber attacks”, Al Jazeera, 29 Dec. 2016; Evan Perez and Daniella Diaz, “White House announces retaliation against Russia: Sanctions, ejecting diplomats”, CNN, 30 Dec. 2016; Mick Krever, “US administration ‘100% certain’ about Russian hacking”, CNN, 3 Jan. 2017.

  165. 165.

    See its application by the ICJ in Gabčíkovo-Magymaros Project, paras. 48 et seq. which used the ILC’s draft article as the basis for its deliberation on this point. See also, Geiß and Lahmann, “Freedom and Security in Cyberspace”, 644–652.

  166. 166.

    Ruys, ‘Armed Attack’ and Article 51 of the UN Charter, 513.

  167. 167.

    2 Rep. Int’l Arb. Awards 1011 (1949).

  168. 168.

    Yoram Dinstein, “Computer Network Attacks and Self-Defense,” in Computer Network Attack and International Law, eds. Michael N. Schmitt and Brian T. O’Donnell (New Port, Rhode Island: US Naval War College, 2002), 99, 107–108.

  169. 169.

    According to Michael N. Schmitt (“Cyber Responses ‘By The Numbers’ in International Law,” EJIL: Talk!, 4 Aug. 2015), retorsion may be resorted to by a State even when the cyber operation against that State does not qualify as an international wrongful act.

  170. 170.

    US Dept. of Treasury, “Treasury Imposes Sanctions Against the Government of The Democratic People’s Republic Of Korea,” Press Statement of 2 Jan. 2015; “Sony cyber-attack: North Korea faces new US sanctions,” BBC, 2 Jan. 2015.

  171. 171.

    Halberstam, “Hacking Back”, 218–237.

  172. 172.

    Libicki, Crisis, 35–36.

  173. 173.

    Tallinn Manual 2.0, chap. 4 Law of international responsibility.

  174. 174.

    Ibid.

  175. 175.

    Melzer, Cyberwarfare and International Law, 20.

  176. 176.

    ICJ Rep. 1996, p. 226, at para. 89.

  177. 177.

    Melzer, Cyberwarfare and International Law, 20. Cf. Roscini, Cyber Operations, chapter 5 (Cyber Operations and the Law of Neutrality), esp. 277; Tallinn Manual, chap. 7 (Neutrality).

  178. 178.

    Rule 94 of the Tallinn Manual. For an overview of the practical difficulties in observing the law of neutrality in the cyberspace, esp. in relation to third parties, see, David Turns, “Cyber War and the Law of Neutrality,” in Research Handbook, eds. Tsagourias and Buchan, 380–400.

  179. 179.

    UN General Assembly Doc. A/66/359. See further, Katharina Ziolkowski, “Confidence Building Measures for Cyberspace” in Peacetime Regime, ed. Ziolkowski, 533 at 535–539.

  180. 180.

    Singer and Friedman, Cybersecurity and Cyberwar, 156.

  181. 181.

    “Cyber Security Norms Proposed by Microsoft”, in International Cyber Norms, ed. Osula and Rõigas, Appendix 1, 243 at 247. Cf. Privacy International, The Global Surveillance Industry, Jul. 2016, available at: https://privacyinternational.org/sites/default/files/global_surveillance.pdf; Dave Lee, “Who are the hackers who cracked the iPhone?”, BBC, 26 Aug. 2016.

  182. 182.

    Libicki, Crisis, xvii-xviii, 131–135, 144–145. For a similar conclusion, see, Eric Myjer, “Some Thoughts on Cyber Deterrence and Public International Law” in Research Handbook, eds. Tsagourias and Buchan, 284–304.

  183. 183.

    See also, Part III of Andrew D. Mitchell and Glyn Ayres, “General and Security Exceptions Under the GATT and the GATS,” in International Trade Law and WTO, eds. Indira Carr, Jahid Bhuiyan, and Shawkat Alam (Annandale, NSW, Australia: Federation Press, 2012).

  184. 184.

    Argentina, Australia, Austria, Belgium, Bulgaria, Canada, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Japan, Latvia, Lithuania, Luxembourg, Malta, Mexico, Netherlands, New Zealand, Norway, Poland, Portugal, Republic of Korea, Romania, Russian Federation, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Turkey, Ukraine, United Kingdom, and United States.

  185. 185.

    For an assessment the effectiveness of this Arrangement, see, Philippe Achilleas, “Vers un contrôle des transferts internationaux des biens et des technologies de cybersécurité” in Société Française pour le Droit International, Colloque de Rouen: Internet et le droit international (Paris: Editions A. Pedone, 2014), 373–388. Cf. Jennifer Granick, “Changes to export control arrangement apply to computer exploits and more” (Stanford, CA: Center for Internet and Society, Stanford Law School, 15 Jan. 2014).

  186. 186.

    Doug Gross, “Creator of spying app arrested,” CNN, 30 Sept. 2014.

  187. 187.

    80 FR 18077.

  188. 188.

    “Treasury Sanctions Two Individuals for Malicious Cyber-Enabled Activities”, US Dept. of the Treasury Press Release, 29 Dec. 2016.

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Kittichaisaree, K. (2017). Cyber Warfare. In: Public International Law of Cyberspace. Law, Governance and Technology Series, vol 32. Springer, Cham. https://doi.org/10.1007/978-3-319-54657-5_4

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