Srebrenica.190 Yet given the secretive nature of CNAs, the Tadic standard of attribution should apply in cyber attacks. It should not be necessary to prove complete governmental control of a CNA, just operational control. It is far too easy for governments to hide their IW operations under the Nicaragua standard. If the Tadic standard were used instead, it is possible that even the well-document Russian incitement to the cyber attack on Estonia would be sufficient to satisfy state attribution. In a future comprehensive legal regime, that would be sufficient to grant Estonia reparations for the attacks. If Nicaragua remains the dominant paradigm for determining state responsibility for cyber attacks, even a victim state of a worst case scenario cyber attack may not achieve justice.
Proposal: Incitement to Genocide through Cyber Attack
Once attribution is satisfied for victims of the most horrific cyber attacks it may be possible to use the incitement to genocide rubric to bring those responsible to justice in the International Criminal Court or another appropriate forum. There is already recognition that cyber attacks should be considered as under the IHL framework, and that those who break these laws in a cyber attack should be guilty of war crimes.191 It is only one inferential step further to argue that it is also possible for cyber attackers to be guilty of genocide in the most horrific cases, which has at its focus the destruction of national groups. The Genocide Convention defines ‘genocide’ as the inchoate commission of “any…acts committed with intent to destroy, in whole or in part, a national, ethnical,
190 The Srebrenica Massacre was the July 1995 killing during the Bosnian War of an estimated 8,000 Bosniak males, ranging in age from young teens to the elderly, in the region of Srebrenica in Bosnia and Herzegovina by units of the Army of Republika Srpska under the command of General Ratko Mladić.
191 Jefferson D. Reynolds, Collateral Damage on the 21st Century Battlefield: Enemy Exploitation of the Law of Armed Conflict, and the Struggle for a Moral High Ground, 56 A.F. L. Rev. 1 (2005) (noting that the misuse of cyber attacks could subject U.S. authorities to war crimes charges).