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Cyberattacks


be applied to the types of cyber-operations rou- tinely conducted today.


IV. CONCLUSION


In general, the definitions and elements of the crime of aggression, in and of themselves, can be interpreted to encompass the newer forms of aggression, including cyberattacks. Clearly, ad- aptation of international norms to new forms of aggression - manifested through different attack methods and implemented with new organiza- tional structures - must occur, because the form and function of aggressive conduct is inexorably changing. State practice and understanding will shape international expectations and customary international law.


However, restraints on ICC jurisdiction and politi- cal concerns will ensure that the individual crime of aggression will be difficult to punish. For that reason, interpretations targeted at the laws of war - like the Tallinn Manual - may have a larg- er impact on curbing cyber-aggression than the ICC crime of aggression. Ultimately, a widening chasm may form between the requirements for individual accountability versus state account- ability for aggression. If those standards do not match, the world will continue to have largely po- liticized state culpability for acts of aggression but very little individual accountability.


State-sponsored computer viruses have numer- ous - and serious - detrimental consequences. They include escalation, a high opportunity cost to society, erosion of the nation’s moral position, unexpected technical consequences, a civilian population forced to live in the shadow of inces- sant harassment by warring computer systems, and the militarization of cyberspace - a suppos- edly peaceful civilian zone. All of these outcomes are worth avoiding independently of one’s defini- tion of “cyberwar”. For that reason, diplomacy, moral example, de-escalation of rhetoric, treaties, and a policy emphasis on defensive technical approaches over pre-emptive or deterrence ap-


Endnotes for Cyberattacks, the Laws of War, and the Crime of Aggression


1 TALLINN MANUAL ON THE INTERNATIONAL LAW AP-


PLICABLE TO CYBER WARFARE (Michael N. Schmitt ed., 2013).


2 Id. at 42. 3 Id. at 48.


Harold Hongju Koh, International Law in Cyberspace, U.S. DEPT. OF STATE WEBSITE (Sept. 18, 2012), http://www. state.gov/s/l/releases/remarks/197924.htm.


4 5 Anticipatory self-defense is the use of force by a state to


repel an attacker based on a perceived future threat, before any actual attack has taken place.


6


JUDGMENT OF THE INTERNATIONAL MILITARY TRIBU- NAL FOR THE TRIAL OF GERMAN MAJOR WAR CRIMI- NALS 421 (1946).


7


Article 8 bis states, in relevant part: “The ‘crime of ag- gression’ means the planning, preparation, initiation or ex- ecution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, grav- ity and scale, constitutes a manifest violation of the Charter of the United Nations.”


8 A denial-of-service attack attempts to make a network


resource unavailable to its intended users by flooding the target resource with unimportant or useless requests. A distributed denial-of-service attack makes the attack more powerful by using thousands or millions of machines to flood the target.


9


Bryan Bender, World More Dangerous, Top General Says, BOSTON GLOBE (Apr. 12, 2012), http://www.bostonglobe. com/news/nation/2012/04/12/world-more-dangerous- top-general-tells-harvard-world-more-dangerous-top- general-tells-harvard/XrSM8cTzyZ0YstKv36JhJN/story. html?camp=pm.


10 Mark Mazzetti & David E. Sanger, Security Leader Says


U.S. Would Retaliate Against Cyberattacks, N.Y. TIMES (Mar. 12, 2013), http://www.nytimes.com/2013/03/13/us/in- telligence-official-warns-congress-that-cyberattacks-pose- threat-to-us.html?_r=0.


11 Sean Gallagher, “Live-fire” Cyberwar-in-a-box Tests Mettle


of Military, IT Pros, ARSTECHNICA (Oct. 20, 2012), http:// arstechnica.com/information-technology/2012/10/live-fire- cyberwar-in-a-box-tests-mettle-of-military-it-pros/.


. ILSA Quarterly » volume 22 » issue 1 » October 2013


proaches must continue to be pursued by diplo- mats and policy-makers.


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