The Crime of Aggression by WEISBORD NOAH.;

Author:WEISBORD, NOAH.;
Language: eng
Format: epub
Publisher: Princeton University Press
Published: 2019-04-09T16:00:00+00:00

QUALIFYING FUTURE FORCE: CHARACTER, GRAVITY, AND SCALE

Ulasen sounded the Stuxnet alarm in June 2010, when diplomats gathered in Kampala, but it was too late to modify the definition of the crime of aggression. Besides, the prevailing view at the ICC Review Conference was that the Princeton group’s definition, built from precedents that had survived almost a century of technological innovation in warfare, was perfectly capable of regulating cyberattacks. Not everyone was so sure. For an attack to amount to aggression under the definition, it had to be a “manifest violation” of the UN Charter. For Olympic Games to qualify as aggression, judges had to deem its character, gravity, and scale a manifest violation.26 Character referred to the quality of the attack. Was the cyberattack more like a nonprosecutable economic attack or was it more like a prosecutable missile attack?27

Gravity referred to the seriousness of an act of aggression. International law contained a hierarchy of unlawful uses of force with particular legal consequences.28 A time-limited border incursion with no physical or human damage, for example, might amount to the illegal “use of force,” attracting state responsibility and requiring monetary restitution, but was not as grave as an “armed attack.”29 An “armed attack” was more serious, triggering the right of forcible self-defense.30 Most serious was an “act of aggression,” such as a full-scale invasion (e.g., Saddam’s 1990 invasion of Kuwait), grave enough to warrant prosecution and criminal responsibility.31

The “scale,” or magnitude, of the attack was an issue in Natanz. Olympic Games was a pinprick operation: nobody was killed; no US or Israeli troops violated the territorial integrity of Iran. Physical damage was limited to 984 centrifuges.32 Nonetheless, the attack was a major violation of Iran’s sovereignty and political independence. This would be factored into any de minimis assessment, likely under the “gravity” criteria.

The United States promoted additional language in the Kampala “Understandings” to be used as a guide to judicial interpretation. This language described aggression as “the most serious and dangerous form of the illegal use of force.”33 This addition was meant to further raise the de mini-mis threshold so that fewer uses of force could be prosecuted. The United States also attempted to limit the possibilities of prosecution through additional wording stipulating that more than one of the de minimis components—character, gravity, or scale—was necessary for prosecution.34 In the definition itself, judges were free to consider all three components of the de minimis threshold in their deliberations.

Without case law on cyberattacks, almost every international law scholar writing about cyberwar was consulting the 2013 Tallinn Manual, an independent study of the international law applicable to cyberwar produced by NATO’s cybersecurity think tank in Estonia.35 According to the Tallinn Manual, “A cyber operation constitutes a use of force when its scale and effects are comparable to non-cyber operations rising to the level of a use of force.”36 The experts on the Tallinn project were unanimous that Olympic Games was an act of force, but they couldn’t agree on the position of the cyberattack

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