Three Tales of Attribution in Cyberspace: Criminal Law, International Law and Policy Debates

The Hague Program for Cyber Norms Policy Brief, 2020

24 Pages Posted: 4 Jun 2020

See all articles by Dennis Broeders

Dennis Broeders

Institute for Security and Global Affairs, Leiden University

Els De Busser

Leiden University - Institute of Security and Global Affairs

Patryk Pawlak

affiliation not provided to SSRN

Date Written: April 1, 2020

Abstract

Attribution strengthens the ability of an actor to identify those responsible for malicious activities in cyberspace and potentially hold them accountable. The capacity of a state to attribute is a key element in curtailing impunity in cyberspace and ensuring justice for the victims. But attribution is not a silver bullet and should not be an aim in itself. A decision to attribute a cyber operation to another actor should be strictly linked to a broader policy objective(s) that a state or a group of states wishes to achieve. Depending on the overall goal, the process of attribution embodies several concrete choices and dilemmas concerning the level of certainty for arriving at such decision, the quality of the evidentiary standards, or the concrete instruments available to a state in response to such malicious activities, ranging from issuing a statement to criminal prosecution or imposing restrictive measures. Looking at the issue of attribution from the perspective of criminal law, international law and international policy, this paper concludes with five dilemmas that states need to address in order to advance the discussion about accountability in cyberspace.

Suggested Citation

Broeders, Dennis and De Busser, Els and Pawlak, Patryk, Three Tales of Attribution in Cyberspace: Criminal Law, International Law and Policy Debates (April 1, 2020). The Hague Program for Cyber Norms Policy Brief, 2020, Available at SSRN: https://ssrn.com/abstract=3589139

Dennis Broeders (Contact Author)

Institute for Security and Global Affairs, Leiden University ( email )

Turfmarkt 99
The Hague, Zuid Holland 2511 DP
Netherlands

Els De Busser

Leiden University - Institute of Security and Global Affairs ( email )

Turfmarkt 99
The Hague, 2511DP
Netherlands

Patryk Pawlak

affiliation not provided to SSRN

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