This article argues that the international legal scholarship grappling with cyber operations can be understood as a form of interventionism. Such literature reads as an attempt by international lawyers to intervene in the problems of the world by stretching existing legal frameworks like the United Nations Charter (UN Charter) to address what they see as dangerous legal gaps. This article sheds light on the four key argumentative patterns around which such scholarly interventionism is commonly articulated: problem-finding, administrativist camouflage, consequentialist bending and evidentiary pragmatism. In doing so, attention is paid to the limitations of interventionism, especially at the evidentiary stage. Mention is also made of the alternative argumentative patterns into which international lawyers are pushed because of the evidentiary challenges they face in relation to the management of cyber operations through the UN Charter. This article ultimately argues that many of the legal problems faced by those interventionist international lawyers who want to address problems of cyber operations through existing international legal frameworks are self-inflicted.
For a great deal of the 20th century, most international lawyers thought that it behoves them to follow the path traced by international lawmakers1 and to concentrate their efforts on the administration of those regimes designed by international lawmakers. At the time, should a new international treaty come into existence, international lawyers would then scramble to interpret its provisions in abstracto (that is in the absence of any concrete dispute), anticipate their potential legal effects and extrapolate on the kind of disputes that could arise under such a treaty. These moments where international lawyers would see themselves as the technical administrators of those regimes designed by international lawmakers constitute a bygone era.2 Indeed, the creation of new regimes and the correlative transfers of technical and administrative responsibilities to international lawyers, whilst being common in the 20th century,3 have become scarce in the 21st century. Nowadays, international law is rarely propelled into new areas by international lawmakers and, thus, international lawyers rarely receive new express administrative and technical duties from international lawmakers. When this is the case, it is at the price of normative convolutions that make the new applicable international framework either barely legal4 or hardly operable.5 Short of conferral of any new express responsibilities, international lawyers have nowadays found themselves ostracised, their fate being reduced to either being the bored experts of overly discussed fields or the distant observers of phenomena deemed better addressed through non-legal regulatory tools. And yet, international lawyers in the 21st century cannot come to terms with such a miserable fate. In fact, they are not ready to sit idle. After all, when they look at the world, international lawyers find injustice and disorder raging outside, seemingly calling for them to intervene.
It is against this backdrop that one should read the extremely abundant and bourgeoning scholarship on cyber operations.6 Indeed, subject to a few exceptions, there has barely been any serious legislative initiative or express conferral of new technical and administrative responsibilities upon international lawyers in relation to cyber operations.7 As a result, international lawyers, notwithstanding other possible forms of (self-)regulation, have considered that cyber operations have been left dangerously unregulated—which, in their view, means unregulated by international law. In their eyes, such a situation is conducive to injustice and disorder. This is why, without awaiting any impulse or indication by international lawmakers, international lawyers have brashly seised themselves of the ‘cyber problem’ with a view to subjecting cyber operations to those regulatory instruments of which they are already the technical administrators. In other words, international lawyers, in the absence of any new international legal regime specifically addressing cyber operations, have come to feel a deontological duty to address such a legal vacuum with their own tools and ensure that cyber operations are subjected to international legal rules of which they are the experts.8 It is in this sense that it can be contended that the international legal scholarship on cyber operations is primarily interventionist in that it constitutes an endeavour to intervene in the problems of the world with a view to managing them.9
It must be acknowledged that interventionism in the international legal scholarship pertaining to cyber operations may not always be tangible and is occasionally buried in technical and doctrinal argumentation about how to interpret the law applicable to cyber activities. The assumption that international law regulates cyber operations is nowadays so much entrenched in the ethos of international lawyers that most of scholarly debates revolve around how—rather than whether—such activities are regulated by international law.10 Current discussions on how international law applies to cyber operations continue to be predicated on an interventionist posture whereby it is posited that such phenomenon falls within the scope of application of existing rules of international law.
This being said, it is obvious that unilateral interventions by international lawyers in the problems of the world, short of any express conferral of responsibility by international lawmakers, are not unprecedented. The belief in international law’s primacy as method of practical intervention to solve the problems of the world cannot be reduced to a 21st century attitude.11 Even the idealism that prevailed in international legal thought prior to the 20th-century technical resignation came with an interventionist dimension.12 Later, when they primarily thought of themselves as the technical administrators of those international regimes designed by international lawmakers, international lawyers also envisaged the possibility of international law being a programme for practical action or a method of resolving problems.13 Likewise, interventionism has long been common in judicial practice.14 And yet, international lawyers have never been so determined to intervene in the problems of the world beyond any explicit conferral of responsibilities as in the 21st century. The international legal scholarship on cyber operations is interventionism at its best.15
As this article will demonstrate, the interventionist attitude, as a descriptive category, remains a rather generic and overarching image for what is actually a complex and multi-layered methodological posture. Indeed, 21st century interventionism encapsulates various argumentative tweaks meant to ensure that contemporary phenomena, such as cyber operations, are subjected to existing international legal frameworks. Drawing on the literature on cyber operations, it is argued here that construing and using international law as a method of intervention in the social problems of the world entails four specific argumentative patterns. It is the aim of this article to describe and formulate a few observations about each of these argumentative moves by virtue of which international law is made a tool to manage the social problems of the 21st century. The four argumentative steps witnessed in interventionism in relation to the international legal scholarship on cyber operations examined in the subsequent sections are the following: problem-finding, administrativist camouflage, consequentialist bending and evidentiary pragmatism. The review of these various argumentative moves will show in particular that, in the case of cyber operations where authorships and causality are often unfathomable, the evidentiary component of interventionism gravely enfeebles interventionist legal argumentation. This is why, in the last section, it will be argued that if interventionist international lawyers want to avoid that their intervention in the cyber problems of the world founder at the evidentiary stage, they ought revisit the design of the argumentative moves on which their intervention is built.
Before depicting each of these argumentative steps in interventionism in relation to cyber operations, three preliminary remarks are warranted at this stage. First, claiming that international legal scholarship on cyber operations has a dominant interventionist flavour and that international lawyers grappling with questions of cyber operations are engaged in an interventionist enterprise will not come as a surprise for the international lawyers concerned. Although most of them will usually construe scholarly debates as a question of how (rather than whether) international law applies to cyber operations, there is a reasonable degree of self-awareness and many of such experts are prone to acknowledge their interventionist inclination.16 Yet, what they commonly fall short of acknowledging are the specific argumentative postures discussed in the following sections. Secondly, the following discussion is not meant to be fault-finding or judgmental. The point is certainly not that 21st century interventionism—and the argumentative moves it entails—ought to be repudiated. The point is more simply that interventionist international legal scholarship, as is illustrated by scholarly debates on cyber operations, usually follows the same four argumentative patterns. The merits—and limitations—thereof are not the primary object of this short study, subject to the evidentiary predicaments discussed in the last section. Thirdly, it must be highlighted that 21st century interventionism in relation to cyber operations is itself a multi-dimensional enterprise, and is witnessed in a variety of fields, including international humanitarian law,17 international criminal law,18 international human rights law,19 the law on the use of force,20 etc. The following discussion zeroes in only on the interventionism that informs the literature pertaining to the law on the use of force and which is geared towards the subjection of cyber operations to the regime of the United Nations Charter (hereafter UN Charter).
2. Problem-Finding: a New World with New Problems and New Demands on International Law
Interventionism always begins with problem-finding. It is only as long as a set of social problems are perceived in the current order that interventionism can take root in the consciousness of international lawyers. For 21st-century interventionist international lawyers, the necessity of intervention arises more specifically by virtue of their finding of cataclysmic changes in the world.21 Such a finding is usually accompanied by the finding that such changes have created a dangerous regulatory vacuum because they have not been matched by any international legal framework.
Such a descriptive preliminary move in contemporary interventionism is certainly not a neutral inclination. It constitutes the manifestation of a presupposition that disorder and injustice need to be addressed by international legal rules and that the absence of such rules brings about a risk of great harm.22 By the same token, this specific description of the world as undergoing cataclysmic changes is also the result of the projection of a series of pre-conceived ideas,23 such as the association of cyberspace with a physical space where cyber operations can be construed as some kind of hostilities24 or, alternatively, as weaponry of some sort.25 Whatever these presuppositions or preconceived ideas may be, the point is that, at a preliminary stage, scholarly interventionism presupposes the discovery of new changes, new problems and new demands for international law. The international legal scholarship on cyber operations is no different in this respect as it denotes both the same problem-finding attitude and a similar lamenting of the absence of specific international legal rules applicable to this new social problem of the world.26
3. Administrativist Camouflage: Law-Stretching Instead of Law-Making
According to the narrative around which interventionism is articulated, if the world has changed, created new problems and generated new demands on international law, somebody somewhere must meet these demands. Interestingly, very few international lawyers come to terms with the non-applicability or the inappropriateness of existing frameworks and limit themselves to requesting international lawmakers to take action.27 In their great majority, international lawyers with interventionist ambitions seek to substitute themselves for international lawmakers. This necessitates not only bemoaning the lack of any serious universal legislative initiative—whether in the form of a universal convention or a Security Council resolution—to design a new legal framework to address the new problems of the world, but also a finding that the immobility or stalemate in international law-making processes cannot be overcome. This move allows interventionist international lawyers to make a new twist in their narrative: unaddressed by international lawmakers, and unlikely to be addressed any time soon, the new problems of the world leave interventionist lawyers with no other choice than stepping in the fray and seising themselves of those social problems left unregulated by international lawmakers. The international legal scholarship on cyber operations is no different in this respect.28
Such moves are not without consequence. Once interventionist international lawyers have convinced themselves—and others—that the new problems of the world require that they substitute themselves for those lethargic lawmakers, they are confronted with two main argumentative choices. These two argumentative choices correspond to two different tactics to address the new problems of the world. On the one hand, they can decide to take on the role of lawmaker and design new rules with the hope that they will be embraced by global actors. On the other hand, they can choose to take the—supposedly more modest—role of proactive administrators of regimes already in place and intervene on the basis of the existing legal tools they have at their disposal.
It will not come as a surprise that these interventionist international lawyers usually prove rather wary of the first option and have come to favour the second interventionist tactic. Such wariness towards the explicit legislative option can be easily explained. First, interventionist international lawyers may feel that elevating themselves to international lawmakers makes them look like brazen or naïve militants. Secondly, they may fear that the paucity of their legitimacy to do so may seriously undermine the legitimacy—and hence the authority—of their intervention. Thirdly, such legislative strategy may contradict their own orthodox understanding of international law-making processes, according to which they are not supposed to hold any prominent law-making role.29 It is only if they venture to completely repudiate the recognised formal modes of law-making that interventionist international lawyers find the audacity to turn themselves into legislators of sort.30 Leaving this marginal tactic aside, interventionist international lawyers generally look at the legislative posture with suspicion and prefer to act as pro-active and creative administrators of those regimes already in place and for which their expertise is recognised and deemed legitimate. Importantly, the choice for an administrative posture, rather than a legislative one, bears upon what they can do with existing legal frameworks. Indeed, elevating themselves into the managers of contemporary problems, whilst keeping any explicit legislative role at bay, means that their actions will be limited to stretching existing legal frameworks and will fall short—at least on the surface—of making new formal legal rules.
The international legal scholarship on cyber operations usefully illustrates this preference for an administrative role, and thus for law-stretching. Subject to a few international lawyers toying with the easy customary law-making trick,31 most international lawyers grappling with cyber operations usually devote their energy and creativity to the stretching of existing rules to make them applicable to cyber violence. In particular, they seek to carve sophisticated reasoning, allowing them to build the claim that the UN Charter, and the existing rules on the use of force can be stretched in a way that makes them applicable to cyber operations.32
4. Bending Existing Frameworks: Consequentialist Reasoning and Effects-Based Analogies
Unsurprisingly, stretching existing legal frameworks necessitates that one takes some liberty with the orthodox interpretation thereof. Radical interpretive orthodoxy would obviously not allow interventionist international lawyers to extend the application of existing regimes to phenomena for which they were not originally designed. This is why interventionism usually requires taking some liberty with the traditional formal constraints of legal argumentation, for instance, in terms of interpretation.33 This is well illustrated by the international legal scholarship on cyber operations. Although witnessed in relation to other rules pertaining to the use of force and collective security,34 argumentative twists are essentially deployed in relation to the UN Charter. As far as this latter regime is concerned, it is self-evident that the men of Dumbarton Oaks and San Francisco could not anticipate the emergence of such a phenomenon.35 Hence, as these international lawyers would acknowledge, an ‘interpretive reorientation’36 is needed with a view to making those cyber activities they deem inadmissible fall within the remit of the Charter.37
It goes without saying that there exist a great variety of argumentative convolutions that allow the stretching of existing legal frameworks.38 They are too abundant to be reviewed here. What matters for the sake of the discussion carried out in this article is to stress the dominant consequentialist argumentation that informs the stretching of the UN Charter in international legal scholarship on cyber operations.39 Indeed, most authors40 build their claim that cyber operations fall under the UN Charter by virtue of their effects being analogous to those of the traditional forms of violence recognised by the UN Charter.41 In particular, cyber operations are said to fall in the remit of Articles 2.442 and 5143 of the UN Charter by virtue of the similarity of their effects with that of traditional ‘uses of force’ and ‘armed attacks’.44 Thanks to such a consequentialist reasoning, the actual factual effects of a cyber operations are thus made analogous to the effects of the types of violence traditionally falling within in the scope of the UN Charter, thereby stretching the latter in a way that makes it applicable to certain types of cyber operations.45
Any observer well versed in the law and practice of the UN will notice that the dominant consequentialist reasoning found in international legal scholarship on cyber operations blatantly contradicts other argumentative postures constructed in relation with the UN Charter over the last decades.46 In particular, it is conspicuous that the above mentioned effect-based bending of some of the key notions of the UN Charter is at loggerheads with the longstanding rejection of the claim that some severe forms of economic coercion can constitute a use of force for the sake of Article 2(4) of the UN Charter.47 Indeed, despite claims—mostly by least developed nations—that economic coercion can bear the same effects as a traditional use of force as envisaged by Article 2(4), this provision has always been interpreted as being alien to any economic form of violence.48 Such contradiction—which is sometimes acknowledged49—does not seem to have embarrassed interventionist international lawyers, despite them generally holding consistency as a supreme criterion of the validity of international legal arguments.50 This is probably not surprising as such consequentialist reasoning, albeit in contradiction with other argumentative moves made in relation to the UN Charter, is what allows these international lawyers to bend the Charter so as to allow cyber operations to fall within its remit and be subjected to its rules.
5. Pragmatic Evidentiary Standards: Facilitating the Deployment of the Newly Applicable Legal Frameworks
Interventionism would be left incomplete if, ultimately, the deployment of international lawyers’ newly applicable legal frameworks were frustrated by overly demanding and unwieldy evidentiary paradigms. This is why, interventionist international lawyers, once they have bended existing legal frameworks to make them applicable to the new problems of the world, must ensure that they can apply their newly applicable tools in an efficacious way. It must be highlighted that, from the perspective of interventionism, the importance of efficacious evidentiary paradigms is not limited to judiciary processes.51 Indeed, 21st-century interventionist enterprises do not primarily seek to subject global actors to the scrutiny of courts. Interventionism goes far beyond judicial management of contemporary problems. It is about providing a legal framework to limit and evaluate global actors’ behaviour, irrespective of the existence of a judicial evaluative process. In that sense, it is the credibility of interventionism as a whole that is dependent on the efficacy of evidentiary paradigms, and not only the occasional judicial consequences thereof.
As far as cyber operations are concerned, this ultimate step in interventionist reasoning calls for the design of criteria regarding the burden of proof and the standard of proof by virtue of which the cyber operations subject to the UN Charter can be evidenced in a plausible way. Indeed, should those cyber operations subject to the UN Charter fail to be proven, the intervention of international lawyers, despite having been carefully thought-through, would remain born dead.52
It will not come as a surprise that this ultimate step proves particularly sensitive and problematic in the case of the management of cyber operations, even more so when the authors or the victims of such cyber violence are non-state entities. The exact configuration of such operations, as well as the causal relationship between them and their actual effects usually remain difficult to establish. Likewise, the factual and legal status of the actors involved further obfuscates their disentanglement and frustrates their attribution to a legal subject.53 What is more, the little information available is usually concealed or distorted by the actors concerned, thereby further exacerbating the difficulty in evidencing the facts that are necessary for such cyber operations to fall under the newly applicable UN Charter.
In this regard it must be recalled that a wide array of options are available to those interventionist international lawyers when drawing the evidentiary part of their intervention. Indeed, there is no such a thing as a ready-made international law of evidence, which applies across the board and which international lawyers are expected to apply.54 The practice of international courts—both collectively and individually—is simply too heterogeneous to extract anything like a homogenous and common body of rules on evidence. All courts constantly adjust their approach to evidence to their liking and their needs.55 It is true that international lawyers have been prompt in seeking to extract some systemic tendencies from an otherwise very ad hoc and pragmatic practice on evidence.56 Yet, in both practice and scholarship, no consistent paradigm constraining such choices has coalesced,57 thereby leaving interventionist international lawyers with significant room for manoeuvre when carving the evidentiary part of their legal reasoning.
It is another truism to say that these ultimate evidentiary choices must primarily be made at the level of the burden of proof and standard of proof.58 At the level of the burden of proof, the question is whether or not to uphold the traditional position of onus incumbit actori vindicated by the International Court of Justice.59 The authors of the Tallinn Manual, for instance, have sided with this mainstream approach,60 whilst some authors have advocated a reversal of the burden of proofs in case of cyber operations at the expense of the actor exercising territorial control.61 This later position has been criticised for postponing evidentiary problems.62 At the level of the standard of proof, the choices for interventionist international lawyers are more numerous. As far as the practice is concerned, there is indeed a gigantic diversity of standards of proof to choose from: ‘indubitable proof’,63 ‘convincing evidence’,64 ‘clear evidence’,65 ‘weighty and convincing’,66 ‘fully conclusive’,67 ‘beyond any doubt’,68 ‘beyond reasonable doubt’,69 ‘preponderance of the evidence’,70 ‘prima facie evidence’,71 ‘clear and convincing evidence’72 and ‘objective assessment’.73 In the scholarship, other standards have been advocated, like the need for ‘sufficiently convincing’ evidence.74
Confronted with such a wide choice, interventionist international lawyers dealing with cyber operations may be tempted to maximise the efficacy of evidencing, for instance, by lowering the standard of proof,75 at least when the State having territorial control of the situation—whatever this means—fails to offer sufficient collaboration.76 They could also be tempted to evade evidentiary problems by outsourcing part or all evidentiary issues to experts of sorts—an option which, in disputes involving scientific controversies, has offered only short-lived relief to evidentiary questions.77 This article is not the place to indicate which evidentiary paradigms should be adopted in terms of burden of proof and standard of proof in the case of an intervention to manage problems of cyber operations. The point is simply that evidencing those facts that allow the application of the UN Charter to cyber operations constitutes the last—but most challenging—move in this type of interventionism. The failure to adopt an efficacious approach to evidence and, more basically, the failure to evidence the facts that are necessary to apply the UN Charter to those cyber operations deemed unacceptable, would simply jeopardise international lawyers’ intervention in the cyber problems of the world.
6. Interventionism at a Breaking Point
Drawing on the international legal scholarship on the UN Charter and cyber operations, the previous sections have sought to unearth four of the recurring argumentative patterns on which 21st-century interventionist scholarship is built: problem-finding, administrativist camouflage, consequentialist bending and evidentiary pragmatism. Such sophisticated argumentative moves are meant to support the claim that some types of cyber operations fall within the remit of the regime put in place by the UN Charter. Whether global actors will endorse this claim and go along with the subjection of cyber operations to the UN Charter is another question that does not need to be discussed here.78 At this concluding stage, it matters more to say a few words about some of the limitations of the scholarly interventionism in relation to cyber operations.
As the above discussion has shown, the argumentative moves supporting interventionism in relation to cyber operations, albeit sophisticated and supported by a majority of international lawyers as well as some States, come with important loopholes. It is especially the evidentiary component of scholarly interventionism in relation to cyber operations discussed in Section 5 above that reveals the most lethal cracks to this whole argumentative construction. It does not seem that the choice of the most efficacious evidentiary paradigms—whether in terms of burden of proof or standard of proof—will clinch all evidentiary controversies that may arise in the subjection of cyber activities to the UN Charter. This can be explained as follows. First, as was indicated above, the configuration, authorship and causality in the case of cyber operations will always remain very difficult to fathom. Secondly, the evidentiary choices made by interventionist international lawyers, contrary to the plasticity and determinacy that are given to them in the literature,79 will inextricably remain indeterminate and fluid,80 as well as the object of fluctuating interpretation.81 In that sense, evidencing those factual parameters that allow cyber operations to be apprehended by the UN Charter will most likely debilitate the sophisticated argumentative scheme discussed in the previous sections.
Emphasising the evidentiary limitations of interventionism in the case of cyber operations does not mean that interventionism is necessarily bound to disintegrate. A claim of subjection of cyber operations to the UN Charter made and heard by professionals and actors in the field already constitutes an intervention that can bear possible managerial effects. Rather, the point made here is that the evidentiary problems of the above interventionist reasoning are somewhat self-inflicted. Indeed, such ultimate stumbling blocks are themselves the result of the other argumentative choices—discussed in Sections 2–4—made by interventionist international lawyers. Evidentiary obstacles are the creation of international lawyers’ problem-finding, administrativist choice for stretching existing frameworks, and consequentialist bending of the UN Charter. Said differently, it is because they have chosen to intervene in the problems of cyber operations and address them through the categories of the UN Charter, such as ‘use of force’ or ‘armed attack’, that they find themselves struggling with the determination of such activities’ authors, configuration, causal dynamics, and ultimately questions of attribution.82 Had international lawyers made different argumentative choices to serve their interventionist ambitions, especially regarding the frameworks to which they seek to subject cyber operations, such evidentiary problems would not be as insurmountable as they currently are.
It is worth mentioning here some of the alternative argumentative choices that could be made to play down the evidentiary challenges with which interventionist international lawyers are currently confronted in relation to those cyber activities they want to subject to the UN Charter. Should interventionist international lawyers be ready to revisit the sophisticated argumentative construction that has been discussed above, they could, for instance, change the substantive (primary) rules on the use of force in a way that makes it irrelevant to attribute the impugned conduct to certain actors.83 Alternatively, they could alter the rules on attribution inherited from the law on state responsibility and design specific attribution mechanisms for cyber operations.84 Of these two possible changes in the argumentative patterns of contemporary interventionism in relation to cyber operations, only the alteration of the substantive rules of force seems realistic. First, it is not the first time that such primary rules on the use of force are re-interpreted in a highly creative way.85 Secondly, and most importantly, rules on attribution have continued to be deemed holy and untouchable by most international lawyers, thereby making a change thereof an unlikely choice by interventionist international lawyers.86
And yet, even the changes of the substantive rules on the use of force to accommodate the evidentiary challenges of cyber operations would not constitute an easy option for interventionist international lawyers. Venturing into a blatant change of the rules of the UN Charter would indeed push the interventionism witnessed in relation to cyber operations to a breaking point. In particular, it would compromise one of the fundamental pillars of contemporary interventionism, namely the abovementioned administrativist self-representation for stretching existing legal frameworks. It is submitted here that, of all the argumentative moves described in the previous sections, it is the administrativist posture and the accompanying choice for the stretching of existing frameworks that are the most defining features of contemporary interventionism in international legal thought. Although such an administrativist approach may only be a convenient smokescreen for what remains a norm-setting enterprise, doing away with this specific argumentative move would imperil interventionism as a whole. In other words, any argumentative change introduced to salvage contemporary interventionism in relation to cyber operations from a likely evidentiary debacle needs to preserve, at a minimum, the administrativist attitude of interventionism and continue to smother any law-making narrative. Should interventionism be no longer about creatively administering existing frameworks but about making new rules, it would risk being reduced to nothing more than crude militantism. And obviously, legal arguments that are perceived as militant have little chance to support any practical intervention in the social problems of the world, let alone those associated with cyber operations.
The author wishes to thank Duncan Hollis for his comments on an earlier draft and Anna Ledvinka for her assistance. The usual caveats apply.