'Below the Threshold' Cyber Operations: The Countermeasures Response Option and International Law

36 Pages Posted: 14 Nov 2013 Last revised: 7 Apr 2015

Michael N. Schmitt

Naval War College - Stockton Center for the Study of International Law; University of Exeter Law School; Lieber Institute, USMA at West Point; Harvard Law School (PILAC)

Date Written: November 13, 2013

Abstract

The article examines the international law governing State responses to cyber operations that do not rise to the level of an armed attack under the law of self-defense. Once the operations reach that level, forceful responses are, in certain circumstances, permitted. However, it is generally accepted that force, whether kinetic or cyber in nature, may not be employed in response to operations of lesser severity. Instead, the State is limited to acts in retorsion (unfriendly but lawful) or countermeasures. Countermeasures, which comprise acts that would be unlawful but for the unlawful actions of the other State, are subject to significant conditions and limitations. The article examines them in the cyber context.

Keywords: cyber, State responsibility, countermeasures

Suggested Citation

Schmitt, Michael N., 'Below the Threshold' Cyber Operations: The Countermeasures Response Option and International Law (November 13, 2013). Virginia Journal of International Law, Vol. 54, 2014. Available at SSRN: https://ssrn.com/abstract=2353898

Michael N. Schmitt (Contact Author)

Naval War College - Stockton Center for the Study of International Law ( email )

686 Cushing Road
Newport, RI 02841
United States

HOME PAGE: http://www.usnwc.edu/Academics/Faculty/Michael-Schmitt.aspx

University of Exeter Law School ( email )

Exeter, EX4 4QJ
United Kingdom

HOME PAGE: http://socialsciences.exeter.ac.uk/law/staff/mschmitt/

Lieber Institute, USMA at West Point ( email )

600 Thayer Rd
West Point, NY 10996
United States

Harvard Law School (PILAC) ( email )

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