PerspectiveU.S. Offensive Cyber Operations against Economic Cyber Intrusions: An International Law Analysis

Part I of this article demonstrated that the United States is likely to struggle to make a convincing argument that economic cyber intrusions carried out against it breach international law. Consequently, in most cases the United States would not be able to resort to countermeasures in response. It must therefore show that its offensive cyber operations do not themselves breach international law.

Edwin Djabatey write in Just Security that, accordingly, this Part will consider whether U.S. offensive cyber operations, as described in press reporting, are likely to breach international law by violating sovereignty and/or the principle of non-intervention. It will also consider whether, and in what circumstances, these operations could nevertheless be justified as countermeasures. 

As defined in Part I, U.S. offensive cyber operations are operations “intended to project power by the application of force in or through cyberspace.” It is not known exactly what shape these operations will take when deployed in response to economic cyber intrusions. Despite the use of the term “application of force,” I will assume the United States is not contemplating cyber operations that would rise to the level of a use of force under international law (see Part I for an explanation of the prohibition on the use of force and when it is transgressed by cyber operations). Instead, it seems more likely that operations of a similar nature to those that jammed the servers of a Russian troll farm seeking to interfere in the 2018 midterm elections (i.e. Operation Synthetic Theology), and that implanted “potentially crippling malware” in the Russian power grid may be deployed in response to economic cyber intrusions by an adversary State like China.