The Use of Force and Cyber Countermeasures

9 Pages Posted: 19 Jun 2018 Last revised: 2 Dec 2018

See all articles by Gary Corn

Gary Corn

US Cyber Command

Eric Talbot Jensen

Brigham Young University School of Law

Date Written: June 4, 2018

Abstract

In a global environment where most unfriendly acts between nations fall below the threshold of a use of force, the doctrine of countermeasures can be an important tool for states. However, in the realm of cyber operations, the rules governing the application of countermeasures result in unrealistic constraints on states. Particularly when compared with the much lesser constraints on the exercise of self-defense, limitations such as the prohibitions on anticipatory and collective countermeasures, the requirement to provide prior notice, and the unavailability of countermeasures to confront non-state actors highlight this imbalance. Cyber countermeasures are uniquely situated to become an effective means of countering cyber threats and remedying violations of international law, but the limitations disincentivize states from employing them and encourage resort to more aggressive responses by redefining opposing state and non-state actions as more serious to avoid such limitations and provide greater freedom of action. Relaxing the limitations on cyber countermeasures is one way to allow states to take more proportional and less forceful actions to prevent otherwise illegal acts, and bring violators back into compliance.

Keywords: countermeasures, use of force, jus ad bellum,self defense, cyber, non-state actors, international law

Suggested Citation

Corn, Gary and Jensen, Eric Talbot, The Use of Force and Cyber Countermeasures (June 4, 2018). 32 Temple International & Comparative Law Journal 127 (2018), BYU Law Research Paper No. 18-18, Available at SSRN: https://ssrn.com/abstract=3190253

Gary Corn

US Cyber Command ( email )

9800 Savage Road
Fort Meade, MD 90755
United States

Eric Talbot Jensen (Contact Author)

Brigham Young University School of Law ( email )

504 JRCB
Provo, UT 84602
United States

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