remains unclear. As does differentiating these two scenarios – as has been stated, it is not as if the cyber attacker will be wearing the military uniform of the sponsoring hostile government (a situation discussed in sub-part (c) below).
One option to resolve the convoluted problem of self-defense in cyber attacks is through a graduated scheme that would shift the emphasis during a cyber attack away from customary law enforcement and counter-intelligence to “national defense mode,” as termed by the Department of Defense. 213 Such a regime would need to include: (a) a statement of general criteria to be applied; (b) identification of officials or agencies that will be involved in making the decision; and (c) procedures to be followed.214 What is required is a test of reasonableness of self-defense that is both subjective and objective. Still it is far from clear to what extent the world community will regard computer network attacks as “armed attacks” or “uses of force,” and hence it is difficult to foresee how doctrines of self-defense and countermeasures could be used to apply to such situations. Interpretations ultimately turn more on the consequences of such an attack. If the Estonia cyber attack is any judge, then the international community would not have condoned an, however infeasible, Estonian armed attack against Russia. What is unclear is how the collective perspective would have changed if the cyber attack
213 A useful conceptual chart of this normative framework is offered by Michael Schmitt: “(1) Is the technique employed in the CNA a use of armed force? It is if the attack is intended to directly cause physical damage to tangible objects or injury to human beings; (2) If it is not armed force, is the CNA nevertheless a use of force as contemplated in the U.N. Charter? It is if the nature of its consequences track those consequence commonalities which characterize armed force; (3) If the CNA is a use of force (armed or otherwise), is that force applied consistent with Chapter VII, the principle of self-defense, or operational code norms permitting its use in the attendant circumstances?; (a) If so, the operation is likely to be judged legitimate; (b) If not and the operation constitutes a use of armed force, the CNA will violate Article 2(4), as well as the customary international law prohibition on the use of force; (c) If not and the operation constitutes a use of force, but not armed force, the CNA will violate Article 2(4); (4) If the CNA does not rise to the level of the use of force, is there another prohibition in international law that would preclude its use? The most likely candidate, albeit not the only one, would be the prohibition on intervening in the affairs of other States.” Schmitt, supra note 165.
214 DOD, supra note 33.