Constructing Self-Defense

Abstract

Abstract Chapter 6 begins with the question of whether and how cyberattacks would invoke the remedial jus ad bellum, and specifically, the lawful rights of self-defense under the UN Charter. If they are available to defending states, the combination of presumptive illegality and lawful repellent force would provide a powerful disincentive for a would-be attacker. If instead a would-be attacker is bound to suffer little beyond reproach by the legal community—knowing the victim had no substantial and lawful means to repel—cyberattacks may be even more attractive than other means of coercion. After considering a range of relevant criteria under existing law, it evaluates whether they are adequate, both from the standpoint of law and states’ ability to activate that regime. It finds that as with deterrence, major gaps remain, and argues that states are seizing upon these gaps and racing to fill them through a process called structural remediation—a kind of operational preparation of the environment (OPE) for the legal battlefield—that aims to create the customary conditions for their preferred outcome of law. The balance of the chapter documents this structural remediation dynamic, where in the absence of certainty about the law’s operation, states are at once testing whether the international legal environment will sustain more robust acts of self-defense against legally dubious uses of force or armed attacks, as well as creating a customary record of reaction that would habituate other states to a sizable response.