Determining if a cyberspace operation by a State actor is an act of war (i.e., use of force under the U.N. Charter) has led to a misguided approach. In 2012, twenty legal experts that published the Tallinn Manual got it wrong. By utilizing the “effects-based approach” they attempted to equate the effects a cyber operation causes to that of a missile to determine if a use of force has occurred. While their underlying premise, that existing international law should be applied to cyber operations, was sound, the analytical approach is flawed.
This paper explores how the analytical model used by the Tallinn Manual ignored relevant international law and failed to appreciate the role of State practice. First, the U.N. Charter better addresses this issue. Specifically, Article 41 of the UN Charter states the complete or partial interruption of postal, telegraphic, radio, and other means of communication is not us of armed force. This indicates cyber operations that cause interference, like distributed denial of service, are not a use of force. Second, there is considerable State practice in the area of electromagnetic jamming that States do not consider it a use of force. By ignoring the U.N. Charter and eighty years of State practice for all forms of electromagnetic interference, these experts fail to analyze cyber operations through the normal Law of Armed Conflict framework.
Vincent L. DeFabo, Rethinking Cyberspace Operations: Widespread Electromagnetic Jamming by States Indicates Cyber Interference Is Not a Use of Force,
J. Air L. & Com.