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Shared Responsibility for Cyber Operations

  • Berenice Boutin (a1)

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When the responsibility of more than one state is engaged in relation to a wrongful cyber operation, the relevant states share responsibility for it. Shared responsibility can arise, for instance, when multiple states jointly conduct a cyber operation or when one state is involved in the cyber operation of another state (e.g., by providing assistance or exercising control). In view of the persistent difficulties associated with attribution of cyber conduct, shared responsibility can be a useful analytical framework to broaden the net of possible responsible states in relation to a cyber operation.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

Footnotes

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The views expressed in this essay are those of the author and do not necessarily reflect the views of the SHARES Project as such.

Footnotes

References

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1 Constantine Antonopoulos, State Responsibility in Cyberspace, in Research Handbook on International Law and Cyberspace, (Nicholas Tsagourias & Russell Buchan eds., 2015); William Banks, State Responsibility and Attribution of Cyber Intrusions after Tallinn 2.0, 95 Tex. L. Rev. 1487 (2017); Peter Margulies, Sovereignty and Cyber Attacks: Technology's Challenge to the Law of State Responsibility, 14 Melb. J. Int'l L. 496 (2013); Michael N. Schmitt & Liis Vihul, Proxy Wars in Cyberspace: The Evolving International Law of Attribution, 1 Flet. Sec. Rev. 55 (2014).

2 UN Int'l Law Comm'n, Draft Articles on the Responsibility of States for Internationally Wrongful Acts (2001), Report of the ILC on the Work of its Fifty-Third Session, UN GAOR 56th Session Suppl. No. 10, A/56/10, at. 26–30 [hereinafter ARSIWA]; UN Int'l Law Comm'n, Draft Articles on the Responsibility of States for Internationally Wrongful Acts, with commentaries (2001), Report of the ILC on the Work of its Fifty-Third Session, UN GAOR 56th Session Suppl. No. 10, A/56/10, at 30–143 [hereinafter ARSIWA Commentaries].

3 El-Masri v. the Former Yugoslav Republic of Maced., App. No. 39630/09, Eur. Ct. H.R. (2012) [hereinafter El-Masri]; Abu Zubaydah v. Lith., App. No. 46454/11, Eur. Ct. H.R. (2018).

4 HR 06 september 2013, Zaaknummer 12/03324 (Neth./Nuhanović) (Neth.); HR 13 april 2012, Zaaknummer 10/04437 (Stichting Mothers of Srebrenica/Neth.) (Neth.).

5 Principles of Shared Responsibility in International Law: An Appraisal of the State of the Art (André Nollkaemper & Ilias Plakokefalos eds., 2014); Distribution of Responsibilities in International Law (André Nollkaemper & Dov Jacobs eds., 2015); The Practice of Shared Responsibility in International Law (André Nollkaemper & Ilias Plakokefalos eds., 2017); See also SHARES Project.

6 ARSIWA, supra note 2, art. 2.

7 Marco Roscini, Cyber Operations as a Use of Force, in Research Handbook on International Law and Cyberspace (Nicholas Tsagourias & Russell Buchan eds., 2015).

8 Sean Watts, Low-Intensity Cyber Operations and the Principle of Non-Intervention, in Cyber War: Law and Ethics for Virtual Conflicts (Jens David Ohlin et al. eds., 2015).

9 Schmitt & Vihul, supra note 1, at 61.

10 ARSIWA Commentaries, supra note 2, at 33–34 (commentary to art. 1(6)).

11 Id. at 44 (commentary to art. 6(3)); Certain Phosphate Lands in Nauru, (Nauru v. Austl.), Preliminary Objections, 1992 ICJ Reports 240, paras. 45–47 (June 26).

12 ARSIWA Commentaries, supra note 2, at 124 (commentary to art. 47(2)).

13 Id.; UN Int'l Law Comm'n, Report on the Work of Its Thirtieth Session (1978), UN GAOR 33rd Session, Suppl. no. 10, at 99.

14 David E. Sanger, Obama Order Sped Up Wave of Cyberattacks Against Iran, N.Y. Times (June 1, 2012). See also Nate Anderson, Confirmed: US and Israel Created Stuxnet, Lost Control of It, Ars Technica (June 1, 2012).

15 Sanger, supra note 14.

16 ARSIWA Commentaries, supra note 2, at 124 (commentary to art. 47(1)).

17 James Crawford (Special Rapporteur on State Responsibility), Third Report, Addendum (2000) A/CN.4/507/Add.2, para. 277 (2000).

18 ARSIWA, supra note 2, at pt. I, ch. IV.

19 ARSIWA Commentaries, supra note 2, at 65–67 (commentary to art. 16).

20 Helmut Philipp Aust, Complicity and the Law of State Responsibility 377 (2011); Bernhard Graefrath, Complicity in the Law of International Responsibility, 2 Revue Belge Droit Int'l 371, 375 (1996); Vladyslav Lanovoy, Complicity in an Internationally Wrongful Act, in Principles of Shared Responsibility in International Law, supra note 5, at 152–61.

21 El-Masri, supra note 3, at para. 198.

22 Commentary on the First Geneva Convention para. 161 (Int'l Comm. of the Red Cross ed., 2d ed. 2016).

23 ARSIWA Commentaries, supra note 2, at 66 (commentary to art.16(1)).

24 Id. at 67 (commentary to art. 16(10)).

25 Id. at 93 (commentary to art. 31(12)).

26 Ian Brownlie, I System of the Law of Nations: State Responsibility 191 (1983); Graefrath, supra note 20, at 379; John Quigley, Complicity in International Law: A New Direction in the Law of State Responsibility, 57(1) Brit. Y.B. Int'l L. 77, 127 (1987).

27 ARSIWA Commentaries, supra note 2, at 67 (commentary to art. 16(10)).

28 Corfu Channel Case, (UK v. Alb.), 1949 ICJ Rep. 4, 22 (Apr. 9) [hereinafter Corfu Channel Case]. See also Tallinn Manual on the International Law Applicable to Cyber Warfare (Michael N. Schmitt ed., 2013), rule 5 [hereinafter Tallinn Manual].

29 Tallinn Manual, supra note 27, at Rule 7.

30 Corfu Channel Case, supra note 27, at 19.

31 For a different view, see Luke Chircop, A Due Diligence Standard of Attribution in Cyberspace, 67 Int'l & Comp. L.Q. 643 (2018).

The views expressed in this essay are those of the author and do not necessarily reflect the views of the SHARES Project as such.

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