MEMORANDUM TO THE MINISTER OF FOREIGN AFFAIRS

(Communique on communicating to the Public a response on the Cyber-attack incident)

The cyber-attack incident launched in a region of our State B is an International issue

governed by the International Humanitarian Law. There is no universal definition for the term
‘cyber warfare’ but the Tallinn Manual 2.0 provides the difference between means and
methods. Rid and McBurney1 define cyber weapons as a “computer code that is used, or
designed to be used, with the aim of threatening or causing physical, functional, or mental
harm to structures, systems, or living things”. Further, the International Humanitarian Law
warrants the usage of an indiscriminate cyber weapon. Indiscriminate cyber weapons are
defined as being: a) directed at a specific military objective, or b) limited in the effects as
required by law of armed conflict. The attack on our state has been an attack on the military,
the civilian and the civilian property which proves beyond controversy that it is
indiscriminate and falls under the International Humanitarian Law.
The unexpected attack on the electric grid and the subsequent deletion and extraction
of military and civilian data is undeniably a “Cyber Warfare” and a “Cyber Espionage”. In
this regard, we have substantiated below the applicable law, relevant legal issues and the
potential violations by State A and we propose that the Hon’ble Minister would further
communicate to the public the anti-humanitarian act of State A and that State B will be
approaching the ICJ over the incident with the reasons stated below demanding justice under
the IHL.

Applicable Laws:
There is no doubt that cyber warfare is covered by IHL for instance if not, it would
not be necessary to review their lawfulness2. ICJ also recalled that the established principles
and rules of IHL applicable in armed conflict apply ‘to all forms of warfare and to all kinds of
weapons’, including ‘those of the future’.3

Legal Issues:
1. Whether Cyber warfare amounts to interference in the State’s sovereignty
protected by UN charter?

1
Ridd, Cyber Weapons p. 7
2
Article 36 of the 1977 First Additional Protocol
3
Legality of the threat or the use of nuclear weapons, International Court of Justice, Advisory Opinion, 8 July
1996, para. 86
 2. Whether Cyber warfare comes under the meaning of Use of force, Armed attack
and act of Aggression?
3. Does Cyber warfare violate law of neutrality, rules on the conduct of hostilities,
the principle of distinction, the principle of proportionality?

Potential Violations by State A:

1. State’s Sovereignty: “[B]etween independent States, respect for territorial
sovereignty is an essential foundation of international relations.”4 In the present case of
cyber-attack, states have an obligation to prevent their cyber infrastructure from being used
by others to harm another state.5 State has the right of control over its territory and that no
state has the right to intervene, directly or indirectly…consequently, armed intervention and
all other forms of interference...are condemned6.
2. Use of Force: Cyber capabilities that qualify as weapons, in this case, the virus on
the electric grid are by nature indiscriminate and are prohibited.7 Depending upon the “scale
and effect” of a cyber operation, it constitutes an “intervention,” a “use of force,” or an
“armed attack.” Although the funding of guerrilla forces was not a use of force, arming and
training them was considered as a use of force.8
3. Armed attack: The Tallinn Manual recognizes that cyber operations alone may
constitute armed conflicts depending on the circumstances – notably on the destructive
effects.9 In the ICRC’s view, during an armed conflict an operation designed to disable a
computer or a computer network constitutes an attack under IHL, irrespective of whether the
object is disabled through kinetic or cyber means.10 Effective cyber-attacks11 are strong on
immediacy and invasiveness which is very much true in this case thus on the above claims
this cyber-attack amounts to armed attack.12
4
Nicaragua v. USA ICJ Reports, 1986, p 14, 109-10; 76 ILR
5
Catherine Lotrionte; State Sovereignty and Self-Defense in Cyberspace: A Normative Framework for
Balancing Legal Rights, Emory International Law Review,
https://law.emory.edu/eilr/content/volume-26/issue-2/symposium%20/state-sovereignty-self-defense-in-cyberspa
ce.html#:~:text=However%2C%20a%20state's%20right%20of,Internet%20from%20within%20the%20state.
6
1965 Declaration on the Inadmissibility of Intervention in the domestic affairs of state.
7
ICRC Customary IHL Study, Rule 71
8
Nicaragua v. USA ICJ Reports, 1986, p 14, 109-10; 76 ILR
9
Tallinn Manual on the International Law Applicable to Cyber Warfare – prepared by the International Group of
Experts at the invitation of the NATO Cooperative Cyber Defence Centre of Excellence, Cambridge University
Press, 2013
10
ICRC, International humanitarian law and the challenges of contemporary armed conflicts, 2011, p. 37;
11
Michael, Wingfield, & Wijesekera, 2003 proposed criteria for assessing whether one is under “armed attack”
in cyberspace by implementing the approach of (Schmitt, 1998) the average weightage of these 7 factors
severity, immediacy, directness, invasiveness, measurability, presumptive legitimacy, and responsibility.
12
Neil C. Rowe U.S. Naval Postgraduate School, Ethics of cyberwar attacks,
https://faculty.nps.edu/ncrowe/attackethics.html
 4. Act of Aggression: It is "the use of armed force by a State against the sovereignty,
territorial integrity or political independence of another State, or in any other manner
inconsistent with the Charter of the United Nations13." A war of aggression is a crime against
International peace and gives rise to International State responsibility14. States following
International law must ensure that new innovations do not run afoul of International
obligations.
5. The Principle of Proportionality: The expected incidental civilian losses and
damage must not be excessive in relation to the concrete and direct military advantage
anticipated by the cyber-attack.15This has been contravened. Article 15 and 18 of GC 1949
which say about protection of civilian persons and civilian hospitals has not been complied.
6. Principle of Distinction: Constant care shall be taken to spare the civilian
population, civilians and civilian objects.16 Direct attacks against civilians and civilian
objects17, indiscriminate attacks, namely those of a nature to strike military objectives and
civilians or civilian objects without distinction, are prohibited, including when using cyber
means or methods of warfare.18 Medical services must be protected and respected, including
when carrying out cyber operations during armed conflicts.19
7. The rules on the conduct of hostilities20: has been not complied by the state A
during this armed conflict.

Question No. 2:
The multiplication of armed groups, their diverse nature, and the different motivation
for violence seems increasingly blurred between political, religious, and criminal interests21.

13
UNGA Res: 3314 of 14 Dec 1974
14
1970 Declaration on Principles of International Law
15
Susan W.Brenner & Leo L.Clarke, Civilians in cyberwarfare: Casualties, 31/12/2020,
https://www.law.upenn.edu/institutes/cerl/conferences/cyberwar/papers/reading/BrennerClarke.pdf; Arts
51(5)(b) and 57 AP I; Rule 14 ICRC Customary IHL Study.
16
Additional Protocol I of Geneva Convention,Art. 57
17
Additional Protocol I of Geneva Convention,Arts 48, 51 and 52; ICRC Customary IHL Study, Rule 1 & 7
18
Additional Protocol I of Geneva Convention,Art. 51(4); ICRC Customary IHL Study, Rules 11 and 12;.
19
See, for instance, Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field (GCI), Art. 19; Convention (II) for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea (GCII) Art.12; Convention (IV) relative to the Protection of
Civilian Persons in Time of War (GCIV) Art.18;
20
Additional Protocol I of Geneva Convention, Art.48;ICRC Customary IHL Study, Rule 1 & 7;
21
International Humanitarian Law and the challenges of contemporary armed conflicts: Recommitting to
protection in armed conflict on the 70th anniversary of the Geneva Convention.
NSAGs are “dissident armed forces or other organized armed groups”, who fight regular
armed forces or against each other on the territory of one or several States22.
Challenges as to the applicability of IHL to NSAG:
Two criteria are widely acknowledged to classify a situation of violence as a
non-international armed conflict: confrontations must take place between at least two
organized parties and the level of violence must have reached a certain level of intensity23.
In fact, multiple groups pool marshal their military means in order to defeat the State,
the nature of the military support provided by the additional group will be key to determining
whether that group qualifies as a party to the armed conflict. But the main issue is identifying
them and distinguishing them from one another.
Different capacity and Different Responsibility:
Under IHL, States and non-state armed groups do not have the same capacities and
thus do not have the same degree of responsibilities. Non-state actors are thus increasingly
being approached by many governments globally, who seek to benefit from their experience
and leverage their cyber know-how to attain this sought-after capability24.
The criteria set out by Additional Protocol II provide that a non-state armed group
must respect a certain level of organization and control of such groups and their territorial
control capacities. But does it really bind NSAG?25 It is ICRC that pursues different
approaches: to integrate IHL and humanitarian principles into their operations and doctrine
(including codes of conduct).26
Attribution problem: Cyber attribution refers to allocating the responsibility of an
attack to an attacker or group of attackers, and subsequently, unveiling their real-world

22
Additional Protocol II of 1949 Geneva Conventions defines non-state armed groups in its Article 1.1
23
ICRC, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of
the Wounded and Sick in Armed Forces in the Field, 2nd ed., Geneva, 2016, paras 421–437 (subsequent
references are to ‘ICRC Commentary on GC I’).
24
Manual on Humanitarian Negotiations with Armed Groups (2006), the UN Office for the Coordination of
Humanitarian Affairs (OCHA); While well-developed countries might primarily see the need of a defensive
capability, protecting vulnerable digital resources, such as command and control systems, developing countries
may instead recognize cyberspace operations as an attractive method, relatively inexpensive and politically
risk-free, to wage war against an enemy with kinetic battlefield superiority.
25
If the level of organization of the non-state armed group is challenged, the obligation is on the State party
under the Common Article 3 and Additional Protocol II in its own military activities.Yet then, Even if an
indisputable link is established between a non-state proxy and a nation-state, no laws of war apply to these cyber
militias. This is because the status of such non-state actors cannot legally be considered to be that of combatants.
Also, in some cyberattacks, no physical damage may be caused by these cyberattacks; hence laws of armed
conflict do not apply to them. Therefore, such non-state actors in cyberspace may get away from being tried for
war crimes despite the attacks having the same devastating impact as physical attacks.
26
ICRC, Strategy 2019–2022, p. 8; available at https://www.icrc.org/en/publication/4354‑icrc‑strategy‑2019 -
2022
identity27.To exercise the right of self-defense28, the victim state must identify who is behind
the attack, unfortunately identity is mostly unclaimed or denied. Cyber-attacks conducted by
non-state actors that are not attributable to states are not a use of force for the purposes of the
UN Charter regime.29
Due diligence means an obligation for states to take measures to ensure that their
territories are not used by any actor to harm other states. Yet, in the cyber domain this
concept is less clear compared to, for example, terrorists operating from a certain territory. In
cyberspace, there are no borders at all; hackers in a certain country may well use servers and
other digital infrastructure in other countries for their operations.30
Further clarifications and development needed:
U.N. Charter and the Geneva Conventions must be amended to include conflicts
involving non-state actors as they both shall apply when the conflict arise between two or
more High contracting parties (nation-states)31. If the non-state actors were not included, the
purpose of the UN Charter and Geneva Convention jus ad bellum and jus in Bello
respectively would be ill-served.

27
Saalbach, Klaus-Peter. ‘Attribution of Cyber Attacks’. In Information Technology for Peace and Security: IT
Applications and Infrastructures in Conflicts, Crises, War, and Peace, edited by Christian Reuter, 279–303.
Wiesbaden: Springer Fachmedien, 2019. https://doi.org/10.1007/978-3-658-25652-4_13.
28
UN Charter 1945, Art. 51.
29
TALLINN MANUAL, supra note 5, at 174–76. The legal framework surrounding possible state responses to
cyberattacks conducted by nonstate actors is beyond the scope of this essay, but is an issue of considerable
importance.
30
Van der Meer, Sico. How States Could Respond to Non-State Cyber-Attackers. Clingendael Institute, 2020,
www.jstor.org/stable/resrep25677. Accessed 7 Jan. 2021.
31
How is the Term ‘Armed Conflict Defined in International Humanitarian Law? INT’L COMMITTEE OF
THE RED CROSS, 1 (Mar. 2008),
http://www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdf [hereinafter ICRC Opinion Paper]