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

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=== Use of force ===
{{#lst:Use of force|Definition}}
Article 2(4) of the UN Charter prescribes States to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations”.<ref name="ftn1"> UN Charter, Art 2(4).</ref> This prohibition is reflective of customary international law<ref name="ftn2"> ICJ, ''Military and Paramilitary Activities in and against Nicaragua'' ''(Nicaragua v US)''<nowiki> (Merits) [1986] ICJ Rep 14,</nowiki> paras 187–90; ''Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory''<nowiki> (Advisory Opinion) [2004] ICJ Rep 136</nowiki>, para 87.</ref> and it is frequently described as a peremptory norm of international law.<ref name="ftn3"> See, eg, [http://legal.un.org/ilc/publications/yearbooks/english/ilc_1966_v2.pdf ILC ][http://legal.un.org/ilc/publications/yearbooks/english/ilc_1966_v2.pdf Yearbook of the ILC, 1966, vol II], 247 (“the law of the Charter concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule in international law having the character of ''jus cogens''”); Gray __; Corten __; O Dörr and A Randelzhofer, ‘Article 2(4)’ in B Simma et al (eds), ''The Charter of the United Nations: A Commentary'' (3rd edn, OUP 2012) vol I, 231, para 67 (“the prohibition of the use of force laid down in Art. 2 (4) is usually acknowledged in State practice and legal doctrine to have a peremptory character, and thus to be part of the international ''ius cogens''”).</ref> However, the notion of “force” in this context is limited to armed force<ref name="ftn4"> O Dörr and A Randelzhofer, ‘Article 2(4)’ in B Simma et al (eds), ''The Charter of the United Nations: A Commentary''<nowiki> (3rd edn, OUP 2012) vol I, 208, para 16 (“The term [‘force’] does not cover any possible kind of force, but is, according to the correct and prevailing view, limited to armed force.”).</nowiki></ref>, and to operations whose scale and effects are comparable to the use of armed force.<ref name="ftn5"> Cf. Tallinn Manual 2.0, rule 69 (“A cyber operation constitutes a use of force when its scale and effects are comparable to non-cyber operations rising to the level of a use of force.”).</ref>
 
At present, the law is unsettled on the issue whether cyber operations with no physical effects may amount to a prohibited use of force. It has been argued that disruptive cyber operations of this kind fall under the scope of Article 2(4) if the resulting disruption is “significant enough to affect state security”.<ref name="ftn6"> M Roscini, ''Cyber Operations and the Use of Force in International Law'' (OUP 2014) 55.</ref> Undoubtedly, one of the purposes of the prohibition of force under international law is to safeguard the national security of the potentially affected States.<ref name="ftn7"> <nowiki>[ADD REF]</nowiki>.</ref> However, many forms of outside interference including various forms of political and economic coercion may affect the national security of the victim State. And yet, the drafters of the UN Charter had expressly rejected the proposal to extend the prohibition of force beyond the strict confines of military (or armed) force.<ref name="ftn8"> Documents of the United Nations Conference on International Organization (1945), vol VI, 334.</ref>
 
Admittedly, the notion of “force”, like other generic terms in treaties of unlimited duration, should be presumed to have an evolving meaning.<ref name="ftn9"> Cf. ICJ, ''Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua)''<nowiki> Judgment [2009] ICJ Rep 213, para 66 (“[W]here the parties have used generic terms in a treaty, the parties necessarily having been aware that the meaning of the terms was likely to evolve over time, and where the treaty has been entered into for a very long period or is ‘of continuing duration’, the parties must be presumed, as a general rule, to have intended those terms to have an evolving meaning”).</nowiki></ref> However, there is little State practice supporting the claim that its meaning has by now evolved to include non-destructive cyber operations against critical national infrastructure.<ref name="ftn10"> However, such claims are occasionally made in the scholarship: see, eg, M Roscini, ''Cyber Operations and the Use of Force in International Law'' (OUP 2014) 59; <nowiki>[ADD FURTHER REF]</nowiki>.</ref> In fact, to date no victim State of an operation of this kind has suggested that the operation would have amounted to a use of force.<ref name="ftn11"> <nowiki>[ADD REF]</nowiki>.</ref>
 
Even if an operation does not meet the threshold of the use of force, it may still be considered a violation of other rules of international law.<ref name="ftn12"> Cf. [https://www.justsecurity.org/wp-content/uploads/2016/11/Brian-J.-Egan-International-Law-and-Stability-in-Cyberspace-Berkeley-Nov-2016.pdf US, State Department Legal Advisor Brian Egan, ][https://www.justsecurity.org/wp-content/uploads/2016/11/Brian-J.-Egan-International-Law-and-Stability-in-Cyberspace-Berkeley-Nov-2016.pdf International Law and Stability in Cyberspace, Speech at Berkeley Law School (10 November 2016)], 13 (“In certain circumstances, one State’s non-consensual cyber operation in another State’s territory ''could'' violate international law, even if it falls below the threshold of a use of force.”) (emphasis original); [https://www.gov.uk/government/speeches/cyber-and-international-law-in-the-21st-century UK, Attorney General Jeremy Wright QC MP, Cyber and International Law in the 21st Century, Speech (23 May 2018)] (“In certain circumstances, cyber operations which do not meet the threshold of the use of force but are undertaken by one state against the territory of another state without that state’s consent will be considered a breach of international law.”).</ref> In this regard, the prohibition of non-intervention, the obligation to respect the sovereignty of other States, and the obligation to refrain from attacking other States’ critical infrastructure are all of potential relevance.
 
The scenario notes that the cyber operation against company X had caused significant inconvenience to many households in State A. The blackout must also have resulted in economic damage to company X and other actors on State A’s territory, likely including the State itself. However, there is no indication of actual physical damage having occurred or of any injury to individuals as a result of the operation. Therefore, the principal legal question is whether such forms of interference may be categorized as a use of force inconsistent with Article 2(4) of the UN Charter. As noted, the law is unsettled in this regard and a clear conclusion cannot be made at present.
 
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 name="ftn13"> UN Charter, Art 51.</ref> and even then, the permitted response is further limited by the conditions of necessity and proportionality.<ref name="ftn14"> See, eg, ICJ, ''Military and Paramilitary Activities in and against Nicaragua'' ''(Nicaragua v US)''<nowiki> (Merits) [1986] ICJ Rep 14</nowiki>, para 194; ICJ, ''Legality of the Threat or Use of Nuclear Weapons Case''<nowiki> (Advisory Opinion) [1996] ICJ Rep 226</nowiki>, para 41; ICJ, ''Oil Platforms (Iran v US)''<nowiki> [2003] ICJ Rep 161</nowiki>, 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 name="ftn15"> ICJ, ''Military and Paramilitary Activities in and against Nicaragua'' ''(Nicaragua v US)''<nowiki> (Merits) [1986] ICJ Rep 14</nowiki>, 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 name="ftn16"> 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 name="ftn17"> See 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.
 
=== Prohibition of intervention ===
{{#lst:Prohibition of intervention|Definition}}
It is unclear whether State B’s act had a bearing on State A’s ''domaine réservé'' <nowiki>in the present case (the first prong of the test). State A would have to establish that “the act in question [was] designed to undermine [its] authority over the </nowiki>''domaine réservé''”.<ref name="ftn22"> Tallinn Manual 2.0, commentary to rule 66, para 11.</ref> If, for instance, it transpired that State B designed the operation with the specific aim to bring to an end the ethnic discrimination by organs of State A, then this would bring it within the protected sphere of matters, fulfilling the first prong of the test.
 
As for the element of coercion, it depends, as above, on the purpose of the operation. If it was designed to compel State A to modify its policing practice, then (whether or not this outcome was in fact achieved) the second prong of the test would have been fulfilled, too.<ref name="ftn23"> Tallinn Manual 2.0, commentary to rule 66, para. 29 (“<nowiki>the“the fact that a coercive cyber operation fails to produce the desired outcome has no bearing on whether [the prohibition of intervention] has been breached</nowiki>”breached”).</ref>
The principle of non-intervention prohibits States from intervening in the internal or external affairs of other States. Prohibited intervention was authoritatively defined by the International Court of Justice in the judgment on the merits in the 1986 case Nicaragua v United States:
 
A prohibited intervention must … be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones.<ref name="ftn18"> ICJ, ''Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US)''<nowiki> (Merits) [1986] ICJ Rep 14, para 205</nowiki>.</ref>
 
Two elements follow from this understanding. The first is that in order for an act (a term that is wide enough to include a cyber operation) to qualify as prohibited intervention, it must bear on those matters in which States are allowed to decide freely (the so-called ''domaine réservé'' of States).<ref name="ftn19"> See, eg, KS Ziegler, “[http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1398 Domaine Réservé]”, in R Wolfrum (ed), ''Max Planck Encyclopedia of Public International Law'' (OUP 2008) (updated April 2013) (defining the ''domaine réservé'' as those “areas where States are free from international obligations and regulation”).</ref> As the ICJ ruling explains, the spectrum of such issues is particularly broad and it includes choices of political, economic, social, and cultural nature.<ref name="ftn20"> ICJ, ''Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US)''<nowiki> (Merits) [1986] ICJ Rep 14, para 205.</nowiki></ref>
 
The second element of prohibited intervention is that the act in question must be coercive in nature. There is no generally accepted definition of “coercion” in international law. However, as per the analysis in Tallinn Manual 2.0, the “key is that the coercive act must have the potential for compelling the target State to engage in an action that it would otherwise not take (or refrain from taking an action it would otherwise take)”.<ref name="ftn21"> Tallinn Manual 2.0, commentary to rule 66, para 21.</ref>
 
It is unclear whether State B’s act had a bearing on State A’s ''domaine réservé'' <nowiki>in the present case (the first prong of the test). State A would have to establish that “the act in question [was] designed to undermine [its] authority over the </nowiki>''domaine réservé''”.<ref name="ftn22"> Tallinn Manual 2.0, commentary to rule 66, para 11.</ref> If, for instance, it transpired that State B designed the operation with the specific aim to bring to an end the ethnic discrimination by organs of State A, then this would bring it within the protected sphere of matters, fulfilling the first prong of the test.
 
As for the element of coercion, it depends, as above, on the purpose of the operation. If it was designed to compel State A to modify its policing practice, then (whether or not this outcome was in fact achieved) the second prong of the test would have been fulfilled, too.<ref name="ftn23"> Tallinn Manual 2.0, commentary to rule 66, para. 29 (“<nowiki>the fact that a coercive cyber operation fails to produce the desired outcome has no bearing on whether [the prohibition of intervention] has been breached</nowiki>”).</ref>
 
=== Obligation to respect the sovereignty of other States ===
{{#lst:Sovereignty|Definition}}
Whether sovereignty has been violated in the present case is controversial. On the one hand, the outcome of the operation was limited to physically non-destructive effects and its impact on the electrical distribution grid was fully reversible. On the other hand, the operation caused significant inconvenience for the population and necessitated a degree of government response in the form of provision of supplies and aid. On balance, the better view is that operations of this kind qualify as infringing on the sovereignty of the affected State given that the need to respond deprives that State of a part of its ability to conduct its affairs freely.
 
Whether sovereignty has been violated in the present case is controversial. On the one hand, the outcome of the operation was limited to physically non-destructive effects and its impact on the electrical distribution grid was fully reversible. On the other hand, the operation caused significant inconvenience for the population and necessitated a degree of government response in the form of provision of supplies and aid. On balance, the better view is that operations of this kind qualify as infringing on the sovereignty of the affected State given that the need to respond deprives that State of a part of its ability to conduct its affairs freely.
=== Possible obligation not to conduct cyber operations against other states’ critical infrastructure ===
<nowiki>In its 2015 report, the UN group of governmental experts agreed on a formulation that “[a] State should not conduct or knowingly support ICT activity contrary to its obligations under international law that intentionally damages critical infrastructure or otherwise impairs the use and operation of critical infrastructure to provide services to the public“.</nowiki><ref name="ftn24"> UN GGE 2015 report, para. 13(f).</ref> This raises the question whether a cyber operation such as the one described in this scenario infringes an obligation not to attack critical national infrastructure of other States.
 
However, it is uncertain whether such an obligation can be said to exist in the present state of international law. Three points should be made in this regard. First of all, cyber operations against critical infrastructure have recently become a very frequent occurrence in the international practice.<ref name="ftn25"> See, eg, US, Director of National Intelligence James Clapper, [https://www.dni.gov/files/documents/Unclassified_2015_ATA_SFR_-_SASC_FINAL.pdf Worldwide Threat Assessment of the US Intelligence Community] (26 February 2015) (“foreign actors are reconnoitering and developing access to U.S. critical infrastructure systems, which might be quickly exploited for disruption if an adversary’s intent became hostile.”); FO Hampson and M Sulmeyer (eds), ''Getting Beyond Norms'' (CIGI 2017) 6 (“Disrupting or damaging critical infrastructures that provide services to the public has become customary practice — the new normal. In the past two years and since the GGE agreement, there have been an alarming number of harmful incidents targeting critical infrastructures around the world, ranging from power systems to telecommunications systems to transportation systems to financial systems.”).</ref><nowiki> Of course, the frequency of particular type of conduct, even if it “amount[s] to a settled </nowiki>practice”, does not by itself suffice to establish a new permissive rule of customary law.<ref name="ftn26"> ICJ, ''Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US)''<nowiki> (Merits) [1986] ICJ Rep 14, para</nowiki> 207, citing ICJ, ''North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands)''<nowiki> [1969] ICJ Rep</nowiki> 3, para 77.</ref> However, the fact that most of these instances have not been accompanied by specific condemnations by those States in a position to react to them, suggests that equally, no corresponding prohibitive rule has emerged thus far.<ref name="ftn27"> Cf. also ECCC, Case No 002/19-09-2007-EEEC/ OICJ (PTC38), Decision on the Appeals Against the Co-Investigative Judges Order on Joint Criminal Enterprise (JCE) (20 May 2010), para 53 (“A wealth of State practice does not usually carry with it a presumption that ''opinio juris'' exists”).</ref>
<nowiki>In its 2015 report, the UN group of governmental experts agreed on a formulation that “[a] State should not conduct or knowingly support ICT activity contrary to its obligations under international law that intentionally damages critical infrastructure or otherwise impairs the use and operation of critical infrastructure to provide services to the public“.</nowiki><ref name="ftn24"> UN GGE 2015 report, para. 13(f).</ref> This raises the question whether a cyber operation such as the one described in this scenario infringes an obligation not to attack critical national infrastructure of other States.
 
However, it is uncertain whether such an obligation can be said to exist in the present state of international law. Three points should be made in this regard. First of all, cyber operations against critical infrastructure have recently become a very frequent occurrence in the international practice.<ref name="ftn25"> See, eg, US, Director of National Intelligence James Clapper, [https://www.dni.gov/files/documents/Unclassified_2015_ATA_SFR_-_SASC_FINAL.pdf Worldwide Threat Assessment of the US Intelligence Community] (26 February 2015) (“foreign actors are reconnoitering and developing access to U.S. critical infrastructure systems, which might be quickly exploited for disruption if an adversary’s intent became hostile.”); FO Hampson and M Sulmeyer (eds), ''Getting Beyond Norms'' (CIGI 2017) 6 (“Disrupting or damaging critical infrastructures that provide services to the public has become customary practice — the new normal. In the past two years and since the GGE agreement, there have been an alarming number of harmful incidents targeting critical infrastructures around the world, ranging from power systems to telecommunications systems to transportation systems to financial systems.”).</ref><nowiki> Of course, the frequency of particular type of conduct, even if it “amount[s] to a settled </nowiki>practice”, does not by itself suffice to establish a new permissive rule of customary law.<ref name="ftn26"> ICJ, ''Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US)''<nowiki> (Merits) [1986] ICJ Rep 14, para</nowiki> 207, citing ICJ, ''North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands)''<nowiki> [1969] ICJ Rep</nowiki> 3, para 77.</ref> However, the fact that most of these instances have not been accompanied by specific condemnations by those States in a position to react to them, suggests that equally, no corresponding prohibitive rule has emerged thus far.<ref name="ftn27"> Cf. also ECCC, Case No 002/19-09-2007-EEEC/ OICJ (PTC38), Decision on the Appeals Against the Co-Investigative Judges Order on Joint Criminal Enterprise (JCE) (20 May 2010), para 53 (“A wealth of State practice does not usually carry with it a presumption that ''opinio juris'' exists”).</ref>
 
Secondly, although UN GGE reports are based on the consensus of governmental experts selected on the basis of equitable geographical representation,<ref name="ftn28"> UNGA Res 68/243 (27 December 2013), preambular para 16.</ref><nowiki> their views cannot be said to automatically reflect customary international law. The mandate of the UN GGE is decidedly not focussed on the identification of customary legal rules; rather, it includes the proposing and promoting of “[v]oluntary, </nowiki>''non-binding'' ''norms'' of responsible State behaviour”.<ref name="ftn29"> UN GGE 2015 report, para 10. On the distinction between cyber rules and cyber norms, see K&nbsp; Mačák, ‘From Cyber Norms to Cyber Rules: Re-engaging States as Law-makers’ (2017) 30 LJIL 877, 877–99.</ref> As such, the legal valence of any normative statements found in one of the reports must be understood as minimal to none.
 
Finally, even if the GGE did have the mandate and ability to identify relevant rules of custom, it most certainly did not do so with regard to operations against critical national infrastructure. It is manifest from the formulation cited above that the governmental experts did not consider any intentional cyber operation against critical national infrastructure to be internationally unlawful. Rather, they included the phrase “contrary to its obligations under international law”, confirming that on their view, such an operation would only violate international law if there is an ''additional'' obligation that would be breached by the operation in question.<ref name="ftn30"> Cf. UN GGE 2015 report, para. 13(f).</ref>
 
In sum, the preferred view is that a standalone rule prohibiting cyber operations against critical national infrastructure has not emerged in international law thus far. As such, the incident in the scenario cannot be described as infringing this supposed obligation.