congressional research service (crs) report in july 2020

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Congressional research service reports on nuclear weapons, wmd proliferation and related topics.

• Nuclear-Armed Sea-Launched Cruise Missile (SLCM-N) , CRS In Focus, updated May 31, 2024
• Russia's Nuclear Weapons , CRS In Focus, May 21, 2024
• Energy and Water Development Appropriations for Nuclear Weapons Activities: In Brief , updated May 2, 2024
• Energy and Water Development Appropriations for Defense Nuclear Nonproliferation: In Brief , updated April 18, 2024
• Nuclear Cooperation with Other Countries: A Primer , updated March 1, 2024
• AUKUS Nuclear Cooperation , CRS In Focus, updated November 15, 2023
• State Authority to Regulate Nuclear Power: Federal Preemption Under the Atomic Energy Act (AEA) , updated November 1, 2023
• Arms Control and Nonproliferation: A Catalog of Treaties and Agreements , updated July 11, 2023
• 2022 Nuclear Posture Review: Selected Programmatic Issues , CRS In Focus, March 23, 2023
• Advanced Nuclear Reactors: Technology Overview and Current Issues , updated February 17, 2023
• 2022 Nuclear Posture Review , CRS In Focus, December 6, 2022
• National Counterproliferation and Biosecurity Center , CRS In Focus, September 30, 2022
• U.S.-Proposed Missile Technology Control Regime Changes , CRS In Focus, updated May 10, 2022
• Russia's Nuclear Weapons: Doctrine, Forces, and Modernization , updated April 21, 2022
• U.S. Nuclear Weapons Policy: Considering "No First Use" , CRS Insight, updated March 29, 2022
• Illicit Fentanyl and Weapons of Mass Destruction: International Controls and Policy Options , CRS Insight, March 28, 2022
• Energy and Water Development Appropriations: Nuclear Weapons Activities , updated March 14, 2022
• Biological Security Engagement in Ukraine: U.S. Cooperation and Threat Reduction Programs , CRS Insight, March 11, 2022
• Resurgence of Chemical Weapons Use: Issues for Congress , CRS Insight, updated March 11, 2022
• Nonstrategic Nuclear Weapons , updated March 7, 2022
• Nuclear Arms Control After the Biden-Putin Summit , CRS Insight, updated February 28, 2022
• The New START Treaty: Central Limits and Key Provisions , updated February 2, 2022
• U.S. Strategic Nuclear Forces: Background, Developments, and Issues , updated December 14, 2021
• Organization for the Prohibition of Chemical Weapons (OPCW): Budget and U.S. Contributions , CRS In Focus, August 25, 2021
• Conventional Prompt Global Strike and Long-Range Ballistic Missiles: Background and Issues , updated July 16, 2021
• The Open Skies Treaty: Background and Issues , CRS Insight, updated June 7, 2021
• IAEA Budget and U.S. Contributions: In Brief , updated April 5, 2021
• The U.S. Nuclear Weapons Complex: Overview of Department of Energy Sites , updated March 31, 2021
• Long-Term Federal Management of Uranium Mill Tailings: Background and Issues for Congress , updated February 22, 2021
• Status of U.S.-Russian Nuclear Arms Control Talks , CRS Insight, updated February 3, 2021
• The Nuclear Ban Treaty: An Overview , CRS Insight, updated January 25, 2021
• A Low-Yield, Submarine-Launched Nuclear Warhead: Overview of the Expert Debate , CRS In Focus, updated January 5, 2021
• Nuclear Command, Control, and Communications (NC3) Modernization , CRS In Focus, December 8, 2020
• U.S. Nuclear Weapons Tests , CRS In Focus, updated December 4, 2020
• The Nuclear Ban Treaty: An Overview , CRS Insight, updated October 29, 2020
• Uranium Reserve Program Proposal: Policy Implications , CRS In Focus, April 16, 2020
• Nuclear Waste Storage Sites in the United States , CRS In Focus, updated April 13, 2020
• U.S. Withdrawal from the INF Treaty: What's Next? , CRS In Focus, updated January 2, 2020
• Uranium Enrichment Decontamination and Decommissioning Fund: Status and Funding Issues , CRS In Focus, November 27, 2019
• Russian Compliance with the Intermediate Range Nuclear Forces (INF) Treaty: Background and Issues for Congress , updated August 2, 2019
• The Front End of the Nuclear Fuel Cycle: Current Issues , updated July 29, 2019
• Nuclear Cooperation: Part 810 Authorizations , CRS In Focus, April 18, 2019
• U.S. Withdrawal from the INF Treaty , CRS Insight, updated February 1, 2019
• Proliferation Security Initiative (PSI) , August 9, 2018
• New Nuclear Warheads: Legislative Provisions , CRS Insight, February 5, 2018
• Mixed-Oxide Fuel Fabrication Plant and Plutonium Disposition: Management and Policy Issues , December 14, 2017
• Can Congress Limit the President's Power to Launch Nuclear Weapons? , CRS Legal Sidebar, November 9, 2017
• Legislation Limiting the President's Power to Use Nuclear Weapons: Separation of Powers Implications , CRS Memo, November 3, 2017
• States' Obligations Under Additional Protocols to IAEA Comprehensive Safeguards Agreements , CRS memorandum, October 23, 2017
• Redeploying U.S. Nuclear Weapons to South Korea: Background and Implications in Brief , September 14, 2017
• Recent Developments in U.S.-Russian Nonproliferation Cooperation , CRS Insight, October 13, 2016
• Comprehensive Nuclear-Test-Ban Treaty: Background and Current Developments , September 1, 2016
• U.S. Nuclear Weapons in Turkey , CRS Insight, August 2, 2016
• Pakistan's Nuclear Weapons , August 1, 2016
• The March 2016 Nuclear Security Summit , CRS Insight, March 14, 2016
• Iran-North Korea-Syria Ballistic Missile and Nuclear Cooperation , February 26, 2016
• The Evolution of Cooperative Threat Reduction: Issues for Congress , updated November 23, 2015
• Renegotiating Arms Control Agreements: A Brief Review , CRS Insights, September 2, 2015
• Arms Control Ratification: Opportunities for Modifying Agreements , CRS Insights, September 2, 2015
• U.S.-Republic of Korea Nuclear Cooperation Agreement , CRS Insights, June 30, 2015
• Energy and Water Development: FY2016 Appropriations for Nuclear Weapons Stockpile Stewardship , June 5, 2015
• In Brief: Options to Help Meet a Congressional Requirement for Nuclear Weapon "Pit" Production , May 22, 2015
• Nuclear Weapon "Pit" Production: Options to Help Meet a Congressional Requirement , May 14, 2015
• Ballistic Missile Defense in the Asia-Pacific Region: Cooperation and Opposition , April 3, 2015
• Nuclear Energy Cooperation with Foreign Countries: Issues for Congress , December 8, 2014
• Syria's Chemical Weapons: Progress and Continuing Challenges , CRS Insights, October 1, 2014
• Russia's Compliance with the INF Treaty , CRS Insights, September 18, 2014
• U.S.-Vietnam Nuclear Cooperation Agreement: Issues for Congress , September 15, 2014
• Manufacturing Nuclear Weapon "Pits": A Decisionmaking Approach for Congress , August 15, 2014
• Bond v. United States: Validity and Construction of the Federal Chemical Weapons Statute , June 20, 2014
• In Brief: U.S. Nuclear Weapon "Pit" Production: Background and Options , March 20, 2014
• U.S. Nuclear Weapon "Pit" Production Options for Congress , February 21, 2014
• Next Steps in Nuclear Arms Control with Russia: Issues for Congress , January 6, 2014
• Syria's Chemical Weapons: Issues for Congress , September 30, 2013
• Chemical Weapons: A Summary Report of Characteristics and Effects , September 13, 2013
• Nuclear Weapons R&D Organizations in Nine Nations , May 1, 2013
• Nuclear Regulatory Commission 10 C.F.R. 37, A New Rule to Protect Radioactive Material: Background, Summary, Views from the Field , December 14, 2012
• Proliferation Control Regimes: Background and Status , October 25, 2012
• Managing the Nuclear Fuel Cycle: Policy Implications of Expanding Global Access to Nuclear Power , October 19, 2012
• U.S. Nuclear Cooperation With India: Issues for Congress , June 26, 2012
• Proliferation of Precision Strike: Issues for Congress , May 14, 2012
• Securing Nuclear Materials: The 2012 Summit and Issues for Congress , March 7, 2012
• Nonproliferation and Threat Reduction Assistance: U.S. Programs in the Former Soviet Union , March 6, 2012
• Fukushima Nuclear Crisis , January 18, 2012
• Monitoring and Verification in Arms Control , December 23, 2011
• "Dirty Bombs": Technical Background, Attack Prevention and Response, Issues for Congress , June 24, 2011
• "Dirty Bombs": Background in Brief , June 24, 2011
• Nuclear Arms Control: The Strategic Offensive Reductions Treaty , February 7, 2011
• U.S.-Russian Civilian Nuclear Cooperation Agreement: Issues for Congress , January 11, 2011
• The United Arab Emirates Nuclear Program and Proposed U.S. Nuclear Cooperation , December 20, 2010
• U.S.-Australia Civilian Nuclear Cooperation: Issues for Congress , December 1, 2010
• Nuclear, Biological, Chemical, and Missile Proliferation Sanctions: Selected Current Law , November 30, 2010
• Detection of Nuclear Weapons and Materials: Science, Technologies, Observations , June 4, 2010
• Ballistic Missile Defense and Offensive Arms Reductions: A Review of the Historical Record , May 25, 2010
• 2010 Non-Proliferation Treaty (NPT) Review Conference: Key Issues and Implications , May 3, 2010
• Strategic Arms Control After START: Issues and Options , March 4, 2010
• The Reliable Replacement Warhead Program: Background and Current Developments , July 27, 2009
• Comprehensive Nuclear Test Ban Treaty: Updated "Safeguards" and Net Assessments , June 3, 2009
• The Global Nuclear Detection Architecture: Issues for Congress , updated March 25, 2009
• Japan's Nuclear Future: Policy Debate, Prospects, and U.S. Interests , February 19, 2009
• Nuclear Waste Disposal: Alternatives to Yucca Mountain , February 6, 2009
• Conventional Warheads For Long-Range Ballistic Missiles: Background and Issues for Congress , updated January 26, 2009
• Nuclear Weapons in U.S. National Security Policy: Past, Present, and Prospects , updated December 30, 2008
• Nuclear Cooperation Agreement with Russia: Statutory Procedures for Congressional Consideration , updated November 26, 2008
• Extending NASA's Exemption from the Iran, North Korea, and Syria Nonproliferation Act , updated October 1, 2008
• Advanced Nuclear Power and Fuel Cycle Technologies: Outlook and Policy Options , July 11, 2008
• U.S.-Russian Civilian Nuclear Cooperation Agreement: Issues for Congress , updated June 26, 2008
• Nuclear Fuel Reprocessing: U.S. Policy Development , updated March 27, 2008
• Comprehensive Nuclear-Test-Ban Treaty: Issues and Arguments , updated March 12, 2008
• Nuclear, Biological, and Chemical Weapons and Missiles: Status and Trends , updated February 20, 2008
• U.S. Nuclear Weapons: Changes in Policy and Force Structure , updated January 23, 2008
• Nuclear Warheads: The Reliable Replacement Warhead Program and the Life Extension Program , updated December 3, 2007
• Radioactive Tank Waste from the Past Production of Nuclear Weapons: Background and Issues for Congress , updated January 3, 2007
• India's Nuclear Separation Plan: Issues and Views , updated December 22, 2006
• Nuclear Testing and Comprehensive Test Ban: Chronology Starting September 1992 , updated December 18, 2006
• U.S.-India Nuclear Cooperation: A Side-By-Side Comparison of Current Legislation , updated November 22, 2006
• Globalizing Cooperative Threat Reduction: A Survey of Options , updated October 5, 2006
• Proliferation Security Initiative (PSI) , updated September 14, 2006
• Banning Fissile Material Production for Nuclear Weapons: Prospects for a Treaty (FMCT) , July 14, 2006
• Nuclear Command and Control: Current Programs and Issues , May 3, 2006
• "Bunker Busters": Robust Nuclear Earth Penetrator Issues, FY2005-FY 2007 , updated February 21, 2006
• Nuclear Terrorism: A Brief Review of Threats and Responses , updated February 10, 2006
• Nuclear Weapons Complex Reconfiguration: Analysis of an Energy Department Task Force Report , updated February 1, 2006
• Nuclear Nonproliferation Issues , updated January 20, 2006
• Arms Control and Nonproliferation Activities: A Catalog of Recent Events , updated January 19, 2006
• Nuclear Arms Control: The U.S.-Russian Agenda , updated January 3, 2006
• Loss-of-Use Damages From U.S. Nuclear Testing in the Marshall Islands: Technical Analysis of the Nuclear Claims Tribunal's Methodology and Alternative Estimates , August 12, 2005
• Vieques and Culebra Islands: An Analysis of Cleanup Status and Costs , updated July 7, 2005
• Pakistan's Nuclear Proliferation Activities and the Recommendations of the 9/11 Commission: U.S. Policy Constraints and Options , updated May 24, 2005
• NPT Compliance: Issues and Views , April 26, 2005
• The Nuclear Nonproliferation Treaty Review Conference: Issues for Congress , May 16, 2005
• Nuclear Threat Reduction Measures for India and Pakistan , updated February 17, 2005
• "Bunker Busters": Sources of Confusion in the Robust Nuclear Earth Penetrator Debate , updated January 10, 2005
• Radiological Dispersal Devices: Select Issues in Consequence Management , updated December 7, 2004
• Terrorist "Dirty Bombs": A Brief Primer , updated April 1, 2004
• Nuclear Warhead "Pit" Production: Background and Issues for Congress , updated March 29, 2004
• Nuclear Weapon Initiatives: Low-Yield R&D, Advanced Concepts, Earth Penetrators, Test Readiness (PDF), updated March 8, 2004
• Missile Proliferation and the Strategic Balance in South Asia (PDF), October 17, 2003
• Weapons of Mass Destruction Counterproliferation: Legal Issues for Ships and Aircraft (PDF), October 1, 2003
• Nuclear Weapons and U.S. National Security: A Need for New Weapons Programs? , September 15, 2003
• Nuclear Earth Penetrator Weapons (PDF), updated January 27, 2003
• Cruise Missile Proliferation , July 3, 2002
• Chinese Nuclear and Missile Proliferation , CRS In Focus, updated October 24, 2023
• New U.S. Policy Regarding Nuclear Exports to China , CRS In Focus, December 17, 2018
• U.S.-China Nuclear Cooperation Agreement , August 18, 2015
• China and Proliferation of Weapons of Mass Destruction and Missiles: Policy Issues , January 5, 2015
• China: Suspected Acquisition of U.S. Nuclear Weapon Secrets , updated February 1, 2006
• Iran's Nuclear Program: Tehran's Compliance with International Obligations , updated April 2, 2024
• Iran and Nuclear Weapons Production , CRS In Focus, updated March 20, 2024
• Iran's Nuclear Program and U.N. Sanctions Reimposition , CRS In Focus, updated September 23, 2022
• Possible U.S. Return to Iran Nuclear Agreement: Frequently Asked Questions , January 29, 2021
• Iran's Ballistic Missile and Space Launch Programs , CRS In Focus, updated January 9, 2020
• Iran's Nuclear Program: Status , updated December 20, 2019
• Iran: Efforts to Preserve Economic Benefits of the Nuclear Deal , CRS In Focus, updated February 26, 2019
• Iran Nuclear Agreement and U.S. Exit , July 20, 2018
• Withdrawal from the Iran Nuclear Deal: Legal Authorities and Implications , CRS Legal Sidebar, May 17, 2018
• U.S. Decision to Cease Implementing the Iran Nuclear Agreement , May 9, 2018
• Procedures for Congressional Action in Relation to a Nuclear Agreement with Iran: In Brief , September 11, 2015
• Iran Nuclear Agreement: Selected Issues for Congress , August 6, 2015
• Iran's Ballistic Missile and Space Launch Programs , December 6, 2012
• Iran's Ballistic Missile Programs: An Overview , updated February 4, 2009
• Iranian Nuclear Sites , updated August 9, 2007
• Iran's Nuclear Program: Recent Developments , updated September 6, 2006
• Iran: U.S. Concerns and Policy Responses , updated July 31, 2006

North Korea

• North Korea's Nuclear and Ballistic Missile Programs , CRS In Focus, updated December 19, 2023
• Nuclear Negotiations with North Korea , updated December 11, 2023
• North Korea: U.S. Relations, Nuclear Diplomacy, and Internal Situation , July 27, 2018
• The North Korean Nuclear Challenge: Military Options and Issues for Congress , November 6, 2017
• Possible U.S. Policy Approaches to North Korea , CRS In Focus, September 4, 2017
• North Korea: A Comparison of S. 1747, S. 2144, and H.R. 757 , January 15, 2016
• North Korea's January 6, 2016, Nuclear Test , CRS Insight, January 7, 2016
• North Korea's Nuclear Weapons: Technical Issues , April 3, 2013
• North Korea's 2009 Nuclear Test: Containment, Monitoring, Implications , November 24, 2010
• North Korea's Second Nuclear Test: Implications of U.N. Security Council Resolution 1874 , April 15, 2010
• North Korea's Nuclear Weapons Development and Diplomacy , January 5, 2010
• North Korean Ballistic Missile Threat to the United States , updated February 24, 2009
• Weapons of Mass Destruction: Trade Between North Korea and Pakistan , updated November 28, 2006
• North Korea's Nuclear Test: Motivations, Implications, and U.S. Options , October 24, 2006
• North Korea's Nuclear Weapons: Latest Developments , updated October 18, 2006
• Arms Control and Strategic Nuclear Weapons: Unilateral vs. Bilateral Reductions , May 16, 2002
• Anti-Ballistic Missile Treaty Demarcation and Succession Agreements: Background and Issues , April 27, 2000

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Answered By: Katie Hutchison Last Updated: Mar 27, 2020     Views: 36479

Author, A. A. (Year).  Title of report in sentence case and italics  (CRS Report No. xxxxxxx). Retrieved from Congressional Research Service website: URL

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Erwin, M. C. (2011).  Intelligence issues for Congress  (CRS Report No. RL33539). Retrieved from Congressional Research Service website: http://www.fas.org/sgp/crs/intel/RL33539.pdf

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Was the Congressional Research Service’s “Use of Force in Cyberspace” report a ‘miss’?

by Charlie Dunlap, J.D. · 30 December 2021

The normally very highly-reliable Congressional Research Service (CRS) seems to have missed the mark a bit with its recent (Dec 10) report on the “ Use of Force in Cyberspace .”

There are certainly aspects of it that are useful, but some of the information was incomplete in important ways, and too often conveyed in a manner that was unnecessarily confusing.  Here’s some thoughts you may find helpful as you read it.

International law applies

The bulk of the CRS report might suggest to some readers that it is unsettled as to whether international law, to include the law of armed conflict, applies to cyber operations.  It does apply. 

Inexplicably, CRS doesn’t get around to mentioning this fact until the very last lines of the report – virtually as an afterthought following a lot of confounding rhetoric like that about the alleged absence of “international, legally binding instruments…to explicitly regulate inter-state relations in cyberspace.”

Simply because an international agreement (e.g., the UN Charter) may not use the word “cyberspace,” and isn’t exclusive to the domain, hardly means “cyberspace” isn’t obviously subject to its application. 

Moreover, though there may be some outlier governments, the report of the UN’s 2021 “ Group of Governmental Experts on Advancing responsible State behaviour in cyberspace in the context of international security ” makes it clear that the global community in general accepts that international law applies to cyber activities and, specifically, that international humanitarian law (the law of war) applies during armed conflict.

What seems to distract the CRS is how the law may apply to particular facts and circumstances, but this is different than suggesting an absence of relevant and even controlling law. 

That misguided belief has caused some, for example, to call for a “ digital Geneva Convention .”  Actually, an applicable set of Geneva Conventions (and other forms of international law) already exists.  (See here as to why companies should not sign the “Cybersecurity Tech Accord.”)

As the world continues to explore the implications of various hostile cyber operations it is hardly the time to abandoned an existing legal architecture that can tell us much, and frequently provides ready analogies.  There may be areas worth of adjustment or even addition, but international law applies now .  

This is particularly so with respect to the law of armed conflict.  As Mike Schmitt noted , the International Committee of the Red Cross has said :

[T]]here is no question that IHL applies to, and therefore limits, cyber operations during armed conflict – just as it regulates the use of any other weapon, means and methods of warfare in an armed conflict, whether new or old. This holds true whether cyberspace is considered as a new domain of warfare similar to air, land, sea and outer space; a different type of domain because it is man-made while the former are natural; or not a domain as such.

Prohibition on the use of “force”  

There is much in the CRS report about the use of force, but let’s try to do some clarifying by returning to a few basics.  The fundamental international law constraint is found in Article 2(4) UN Charter which prohibits the threat or use of “force.” 

However, there are exceptions, and of particular relevance to this discussion is Article 51 of the Charter . I t permits individual and collective forceful acts of self-defense when a state has been a victim of an “armed attack” – so long as the actions are necessary and proportional to the threat.  Additionally, it is well accepted that Article 51 also permits nations to act in “anticipatory self-defense” in the cyber context when faced with an imminent cyber-attack.   

The determination of “imminence” in the cyber context can be complex because of the velocity of cyber technology (see here and here ) but, as the Tallinn Manual – the world’s most-respected treatise related to cyber operations – explains that the majority of the International Group of Experts (IGE) who helped write it agree that “imminence” it isn’t strictly temporal calculation.   The Manual’s commentary says they concluded that :

[A nation] may act anticipatorily only during the last window of opportunity to defend itself against an armed attack that is forthcoming.  T his window may present itself immediately before the attack in question, or, in some cases, long before it occurs.  For these Experts, the critical question is not the temporal proximity of the anticipatory defensive action to the prospective armed attack, but whether a failure to act at that moment would reasonably be expected to result in the State being unable to defend itself effectively when that attack actually starts. (Emphasis added.)

But what is “force” in the cyber domain?  

The Tallinn Manual ( Rule 69 ) tells us that a “cyber operation constitutes a use of force when its scale and effects are comparable to non-cyber operations rise to the level of the use of force.”  The “ Schmitt Analysis ” that CRS usefully includes in its report lists factors that decision-makers may want to consider in determining if a cyber-incident amounts to a use of “force” as that term in understood in Article 2(4) of the UN Charter .

What is an “armed attack”?

  The IGE, along with the majority of nations, find ( Rule 71 f. ) that “the term ‘armed attack’ is not to be equated with the term ‘use of force’.”  Citing the International Court of Justice opinion in the Nicaragua case, they conclude that not every use of force rises to the level of an “armed attack.” 

Put another way, most international lawyers would say that every armed attack is a use of force, but not every use of force qualifies as an armed attack.  It is much a matter of “scale and effects” of a specific cyber event.  Indeed, there are many who would say that a nation who has suffered a cyber “use of force” of some kind would nevertheless not necessarily be able to act in forcible self-defense because the harm endured did not qualify as being equivalent to an “armed attack.”

So what would qualify?  Historically, an armed attack would be one that manifests itself in substantial physical injury, damage, or loss of functionality as would be typical in a kinetic attack.  However, these days a cyber-operation – a ransomware incident, for instance – can cause serious harm without necessarily directly causing the type of physical damage one might traditionally expect to see in an “armed attack” situation. 

Yet few – if any – cyber incidents have been formally designated as “armed attacks” by governments, despite the costly effects, and even deaths .  In fact, a cyber-attack could be a bigger killer than even a pandemic .

Is there movement in the international community as to the characterization of hostile cyber events?

Thus, it is true that it is unsettled as to exactly what events would constitute a cyber “use of force,” and which one of those would be serious enough to characterize as an “armed attack.”  Interestingly, Mike Schmitt told Lawfire ® that this issue was one the IGE drafting the next edition of the Tallinn Manual would address.  He explained:

States are hesitant to set forth the threshold at which they would characterize a hostile cyber operation an armed attack opening the door to a forcible response. Typically, they only indicate that there is a right to self-defense if the consequences of a hostile cyber operation (or cyber campaign) are comparable to those of a non-cyber operation that would qualify as an armed attack.  

However, we are seeing a degree of movement. For instance, in 2019, France suggested that “A cyberattack could be categorized as an armed attack if it caused substantial loss of life or considerable physical or economic damage.” The economic harm comment cuts new ground. Yet, while other states have not gone as far as France, there seems to be a growing sense among government officials around the world that in some cases a hostile cyber operation could cause non-physical consequences severe enough to trigger the right of self-defense.  

As with the use of force issue, they are zeroing in on the “scale and effects” of the cyber operation’s consequences. This will inevitably lead them away from a strict interpretation by which only significant injury or physical damage qualifies as an armed attack.  (Emphasis added.)

I agree with Mike, and I believe we’ll see a growing number of governments cautiously exploring the degree to which cyber incidents with serious national impacts might constitute “attacks” despite not directly causing the physical injury or destruction normally associated with a kinetic strike. 

Exactly how nations might choose to respond (or not) to “attacks” is another issue, as controlling cyber “escalation” is, as one analysts says , “unexplored territory” marked by “high risk.”

T he U.S. threshold of self-defense  

A very important discussion missing from the CRS report is the rather unique view the U.S. takes as to the “use of force” and “armed attack” characterization.  As I explained last June in “ Cyber disruption,” ransomware, and critical infrastructure:  A new US understanding of “attack”? , the U.S. has long had a lower threshold than most nations as to the sorts of incidents that would permit acts in self-defense under the UN Charter.  Specifically,

[M]ost nations consider the kind of “force” referenced in Article 2(4) as not necessarily being the same as that constituting an “armed attack” as used in Article 51.  In other words, an activity amounting to “force” which violates Article 2(4) might not be of sufficient violence, intensity, and scope to constitute an “armed attack” to legitimately trigger self-defense authority within the meaning of Article 51.

The U.S. has never accepted this bifurcated interpretation.  In 2012 the then legal adviser to the U.S. State Department Harold Koh said :  

[T]he United States has for a long time taken the position that the inherent right of self-defense potentially applies against any illegal use of force.  In our view, there is no threshold for a use of deadly force to qualify as an “armed attack” that may warrant a forcible response.   

But that is not to say that any illegal use of force triggers the right to use any and all force in response – such responses must still be necessary and of course proportionate. 

We recognize, on the other hand, that some other countries and commentators have drawn a distinction between the “use of force” and an “armed attack,” and view “armed attack” – triggering the right to self-defense – as a subset of uses of force, which passes a higher threshold of gravity. (Emphasis added. )

Although Koh references “deadly” force, that adjective was dropped when his basic position was incorporated into the U.S. Department of Defense’s Law of War Manual (see ¶ 16.3.3.1) in this way:

“The United States has long taken the position that the inherent right of self-defense potentially applies against any illegal use of force.  Thus, any cyber operation that constitutes an illegal use of force against a State potentially gives rise to a right to take necessary and proportionate action in self-defense.”

Concluding thoughts

To its credit, the CRS took on a very difficult topic, and one which is evolving almost daily.  It is certainly a complicated area for legal practitioners – not to mention their clients.  Nevertheless, it is one we need to understand.  As I’ve said before :

Cyber deterrence is difficult enough, but it’s hard to see how it could ever work absent making clear the behavior you want to deter, as well as the range options that behavior would then permit.  Even if not every episode is officially measured against the U.S.’s view of the applicable international law, doing so in the more egregious incidents would be progress.

If America wants to set norms in cyberspace (as the U.S. should want to do), it needs to make forthright assertions – one way or another – regarding its view as to whether or not a cyber “use of force” has taken place, at least when major incidents occur.  This does not oblige any particular response, but it would help develop the clarity friend and foe alike need.

Remember what we like to say on  Lawfire ® : gather the facts, examine the law, evaluate the arguments – and then decide for yourself !

Tags: armed attack Congressional Research Service Cyber-attack use of force in cyberspace

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