Evidentiary Issues in International Disputes Related to State Responsibility for Cyber Operations
42 Pages Posted: 29 May 2015 Last revised: 12 Jan 2016
Date Written: June 30, 2014
In spite of the crucial importance of evidentiary issues, works on inter-state cyber operations, both above and below the level of the use of force, have so far focused on whether such operations are consistent with primary norms of international law and on the remedies available to the victim state under the jus ad bellum and the law of state responsibility, and have almost entirely neglected a discussion of the evidence the victim state needs to produce to demonstrate, either before a judicial body or elsewhere, that an unlawful cyber operation has been conducted against it and that it is attributable to another state. The present article fills this gap. It starts with a brief account of the international law of evidence and then discusses who has the burden of proof in relation to claims seeking remedies (including reparation) for damage caused by cyber operations. It then analyzes the standard of proof required in the cyber context. Finally, the possible methods of proof are examined, distinguishing between those which are admissible and those which are inadmissible.
Keywords: cyber, evidence, international law, cyber attacks, cyber operations, international courts, International Court of Justice
JEL Classification: K33
Suggested Citation: Suggested Citation