Difference between revisions of "Scenario 03: Cyber operation against the power grid"

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(editing references)
(editing references)
In any event, the characterization of an incident of this nature as amounting to a use of force would be of limited consequence in the present scenario. This is because even if a particular act by a State qualifies as prohibited force, the victim State and its allies may only respond in self-defence if the said act is additionally of sufficient gravity to amount to an “armed attack”,<ref> Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS 16 (UN Charter) Art 51.</ref> and even then, the permitted response is further limited by the conditions of necessity and proportionality.<ref> See, eg, ''Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US)'' (Merits) [1986] ICJ Rep 14, para 194; ''Legality of the Threat or Use of Nuclear Weapons Case'' (Advisory Opinion) [1996] ICJ Rep 226, para 41; ''Oil Platforms (Iran v US)'' [2003] ICJ Rep 161, para 43.</ref> However, the lack of destructive effects in State A strongly militates against the qualification of the cyber operation by State B as an “armed attack” under international law.<ref> ''Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US)'' (Merits) [1986] ICJ Rep 14, para 195 (holding that an operation must be characterized by sufficient “scale and effects” in order to qualify as an “armed attack”); but see Tallinn Manual, commentary to rule 71, para 12 (noting that some experts held “the view that a cyber operation directed against a State’s critical infrastructure that causes severe, albeit not destructive, effects would qualify as an armed attack“).</ref>
 
Moreover, the fact that the source of the disruption was only identified ''after'' the disruptive effects had been addressed means that at that point, it could no longer be said that a use of force in self-defence by State A or by alliance O was necessary to repel an ongoing attack by State B.<ref> Cf G Nolte and A Randelzhofer, ‘Article 51’ in B Simma et al (eds), ''The Charter of the United Nations: A Commentary'' (3rd edn, OUP 2012) vol II, 1426–27, para 60 (noting that the use of force in self-defence is limited to ending the attack so that the specific impulse from which the attack emerged is no longer present).</ref> Of course, State A would still be entitled to call upon the UN Security Council to qualify the cyber operation as having amounted to a “breach of the peace” and to decide on measures under Chapter VII of the UN Charter.<ref>See UN Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS 16 (UN Charter) Art 39.</ref>
 
However, the spectrum of unilateral responses available to State A under international law is otherwise identical to those available in response to violations of international law other than the prohibition of force. It is thus arguably unnecessary to conclusively determine if the cyber operation against State A did in fact cross the threshold of Article 2(4) of the UN Charter, as long as the relevant conduct breached other applicable international legal rules. This is what the remainder of the analysis turns to.