An International Attribution Mechanism for Hostile Cyber Operations?

96 International Law Studies __ (2020)

Hebrew University of Jerusalem Legal Research Paper No. 20-16

18 Pages Posted: 17 Jun 2020 Last revised: 18 Jun 2020

See all articles by Michael N. Schmitt

Michael N. Schmitt

University of Reading School of Law; Lieber Institute, USMA at West Point; Naval War College - Stockton Center for the Study of International Law

Yuval Shany

Hebrew University of Jerusalem - Faculty of Law and Institute of Criminology; Israel Democracy Institute

Date Written: June 16, 2020

Abstract

This article is the result of an international research project to consider the feasibility of establishing an international attribution mechanism for hostile cyber operations, as well as the usefulness of such a body. The project’s workshops brought together academics and policymakers, including experts with relevant legal, political and technological professional backgrounds. Based on the ensuing discussions, we conclude that for the time being those states wielding significant cyber capability have little interest in creating an international attribution mechanism. Such states appear to be of the view that they can generate sufficient accountability and deterrence based on their independent technological capacity, access to expertise and to offensive (active defense) cyber tools, political clout, security alliances, and other policy tools, such as sanctions.

At the same time, countries with limited technological capacity and less ability to mobilize international support for collective attribution are more amenable to the prospect, especially as a tool for “naming and shaming” states. Furthermore, we are of the view that international organizations that have the ability to facilitate collective sanctions in relation to unlawful cyber operations directed against member states or their partners might appreciate an official finding of legal responsibility for a number of political and legal reasons in certain situations.

This article presents and examines several possible justifications for establishing an international attribution mechanism and its principal constituencies. Part II sets forth the general case for international fact-finding mechanisms in international law. Shortcomings of the existing processes for attributing responsibility for cyber-attacks are examined in Part III. Part IV reviews several proposals to establish an international attribution mechanism, while Part V examines the constituency for a new mechanism. Our overall conclusions appear in Part VI.

Keywords: cyber, attribution, ICT, state responsibility

Suggested Citation

Schmitt, Michael N. and Shany, Yuval, An International Attribution Mechanism for Hostile Cyber Operations? (June 16, 2020). 96 International Law Studies __ (2020), Hebrew University of Jerusalem Legal Research Paper No. 20-16, Available at SSRN: https://ssrn.com/abstract=3628435

Michael N. Schmitt

University of Reading School of Law ( email )

Whiteknights
Reading, Berkshire RG6 6AH
United Kingdom

HOME PAGE: http://https://www.reading.ac.uk/law/Staff/m-schmitt.aspx

Lieber Institute, USMA at West Point ( email )

600 Thayer Rd
West Point, NY Rhode Island 10996
United States
4016190192 (Phone)
02871-5150 (Fax)

HOME PAGE: http://https://www.reading.ac.uk/law/Staff/m-schmitt.aspx

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

686 Cushing Road
Newport, RI 02841
United States

Yuval Shany (Contact Author)

Hebrew University of Jerusalem - Faculty of Law and Institute of Criminology ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel
972 2 5882541 (Phone)
972 2 5823042 (Fax)

Israel Democracy Institute ( email )

4 Pinsker St.
Jerusalem
Israel

HOME PAGE: http://www.idi.org.il

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