Forcible Responses to Cyber Operations: Self-Defence, Necessity, Countermeasures

Another implication of the Court’s famous formula in the Nicaragua judgment is that in order for an act to rise to the level of an armed attack, it must already involve all the elements necessary for qualifications as a use of force. Thus, though not every use of force amounts to an armed attack, every armed attack is a use of force. It must be noted that whereas non-State actors cannot breach Article 2(4) or its customary counterpart as the respective prohibition applies to (direct and indirect) State acts only, it is controversial whether, as a matter of law, non-State conducts involving a trans-border element may constitute an armed attack triggering the right of self-defence (see section 3.2 of the present chapter). In the absence of a trans-border element, non-State conducts are not governed