What Is an Armed Attack under Article 51

Italy considers that illicit cyber operations carried out by State or non-State actors may constitute an armed attack if their scale and impact are comparable to those of conventional armed attacks resulting in significant material damage, human injury and death or disruption in the functioning of critical infrastructure. In Singapore`s view, it is also possible that malicious cyber activity may constitute an armed attack in certain limited circumstances, although, given the scale and impact of the cyber activity, it does not necessarily result in death, injury, bodily harm or destruction. An example could be a targeted cyber operation resulting in a prolonged and long-term outage of Singapore`s critical infrastructure. “A State may act in premonitory self-defence against an armed attack if the aggressor is clearly determined to launch an armed attack, if the victim loses his last opportunity to defend himself effectively if he does not act. This standard reflects the nature of today`s threats as well as the means of attack that hostile parties could use. Take, for example, a threat of armed attack in the form of an offensive cyber operation. This could result in significant loss of life and damage to critical infrastructure. Such an attack could be launched in a split second. Is it serious to claim that a state does not have the right to act before that split second? [5] According to Germany, Article 51 of the UN Charter requires that the attack against which a state may resort to self-defense “be imminent.” The same goes for self-defense against malicious cyber operations. Beating a potential aggressor who has not yet launched an attack is not considered self-defence. Currently, there is no international consensus to classify a cyberattack as an armed attack if it does not cause death, physical damage or destruction, but still has very serious non-material consequences. The government supports the position of the International Court of Justice, which has ruled that an armed attack must be cross-border in nature.

It should be noted that not all border incidents constitute armed attacks within the meaning of Article 51 of the Charter of the United Nations. It depends on the scale and impact of the incident. What happens if the Security Council does not prevent a State from threatening world peace, breaking world peace or committing an act of aggression? The answer is to be found in the final provision of Chapter VII: Article 51. States must not respond to any threat to or breach of the peace, or to any act of aggression against violence. States can use force only in response to one form of aggression: armed attack. Article 51 does not abruptly change the purpose of Chapter VII from acts of aggression committed by States to armed attacks by non-State actors. Instead, article 51 defines the type of acts of aggression to which States may respond unilaterally until the Security Council responds collectively. An armed attack is not the same as the use of force within the meaning of Article 2, paragraph 4, of the Charter of the United Nations (see above). In the case of Nicaragua, the International Court of Justice has defined armed aggression as the most serious form of violence.

This implies that not all use of force constitutes an armed attack. The purpose of the Charter of the United Nations must guide the interpretation of the prohibition of the use of force and the right of self-defence in the face of armed aggression. The purpose of the Charter is to maintain and, if necessary, restore international peace and security. Therefore, even if an armed attack occurs, a State can only take the necessary and proportionate countermeasures to repel the attack. The right of self-defence applies only if the UN Security Council has not taken the necessary measures to maintain international peace and security (Article 51 of the UN Charter). If self-defence measures go beyond this framework, the State itself violates the prohibition of violence. [27] Although the Rio Treaty considers “aggression that is not an armed attack,” it does not even allude to the possibility of an armed attack that is not aggression. Similarly, the Rio Treaty lists “an armed attack provoked by a State against . another State” as one of the two acts that “will” be considered aggression in any case.

But there is no indication that an armed attack by a non-state actor – although it cannot be considered aggression – triggers the right to collective self-defence under the UN Charter, but not under the Rio Treaty. Brazil has the right to self-defence as soon as there is an actual or imminent armed attack. In international law, there is no right to “preventive self-defence” — a concept that has no legal basis either in Article 51 of the Charter or in customary international law. Finally, as with responses to armed activities with conventional weapons, self-defence against armed attacks by digital means must be necessary and proportionate. [6] The second part of this series shows that Article 51 is an exception to the Security Council`s power to take collective measures involving the use of force to suppress acts of aggression and maintain international peace and security. Article 2(4) contains an exception for such collective action. Within the limits of Article 51, self-defence falls within the same exception because it supports such collective action rather than undermines it. Finally, any reaction in self-defence remains provisional and subordinate. It must be immediately notified to the UN Security Council and suspended as soon as the Security Council takes up the matter, replacing unilateral action with collective action or, failing that, once it has achieved its objective of repelling or ending the armed attack.

Other measures, such as countermeasures or referral to the UN Security Council, may be preferred if they deem it more appropriate. [16] While Singapore views the above principles as fundamental principles underpinning the international legal order, Singapore considers it worth noting that, ultimately, none of them interferes with a state`s inherent right of self-defence, as provided for in the Charter of the United Nations. This right to self-defence also applies to cyber. In other words, a state has the inherent right to self-defence when malicious cyber activities amounting to an armed attack or an imminent threat of such an attack occur against that state. The response to malicious cyber operations that constitute an armed attack is not limited to cyber counter-operations. Once the right to self-defence is triggered, the attacked State may use all necessary and proportionate means to stop the attack. Self-defense does not require the use of the same means as the attack that provided the trigger for its exercise. “The France recalls that a cyberattack may constitute an armed attack within the meaning of Article 51 of the Charter of the United Nations if it is of a scale and gravity comparable to the use of physical force. In light of these criteria, whether a cyberattack constitutes an armed attack will be assessed on a case-by-case basis, taking into account the particular circumstances. A cyberattack could qualify as an armed attack if it causes significant loss of life or significant physical or economic damage. This would be the case of an operation in cyberspace, which causes a failure of critical infrastructure with significant consequences or consequences that could paralyze entire sectors of the country`s activities, trigger technological or environmental disasters and cause many victims. In such a case, the impact of the operation would be similar to that resulting from the use of conventional weapons.