In recent years, States have begun to discuss and assess whether and when they may cooperate in the taking of countermeasures. The question has arisen most prominently in debates about the application of international law to cyber operations in light of the fact that cyber-capabilities vary significantly among States, making some more vulnerable to malicious cyber-operations, as well as less capable of responding to them. The idea has been championed by Estonia, perhaps understandably given its own experience as the victim of a severe cyber-attack. It has been supported by other States too. For instance, Canada’s recent statement on the application of international law to cyberspace proposes that ‘assistance can be provided on request of an injured State, for example where the injured State does not possess all the technical or legal expertise to respond to internationally wrongful cyber acts’.
Collaboration among States on cyber security is common (see e.g. here and here), and its forms vary. In May of this year, Jeff Kosseff discussed an example of some of these forms of collaboration: the US’s ‘Hunt Forward’ operations. These operations, which have taken place in several States, including Estonia and Albania, are aimed at protecting US allies and the US itself by ‘blunting the harm of malicious attacks on shared networks’ and providing the US ‘with valuable intelligence about adversaries’ methods’. Such cooperation, so long as it takes place within the limits of the consent given by the territorial State, are permissible. But can this – or any other form of – cooperation include aiding the territorial State in taking a countermeasure against another State which had, say, committed a cyber-operation in violation of its territorial sovereignty? Could the US assist Estonia, for example, in taking a countermeasure against Russia in response to a (below-the-threshold) cyber-operation against Estonia that violated the latter’s territorial sovereignty, which both the US and Estonia are bound to respect?
Whether a State can assist another State in the taking of a countermeasure may appear, at first sight, a rather simple question. If countermeasures are lawful, then it must be the case that assistance to them is also lawful. However, in our recent article on cooperation in the taking of countermeasures we argue that the issue is not so simple. For one, it is hard to find public practice to confirm this conclusion. Moreover, whether this conclusion is compatible with the ILC work on countermeasures is open to doubt: Koskenniemi has remarked that the ILC’s default assumption was that ‘[t]here was no general right to assist the injured State’ in taking countermeasures (at p. 345). Reflecting this uncertainty, the Tallinn Manual 2.0 notes that the members of the expert group were ‘split over whether a State may assist another State in conducting the latter’s countermeasures’ (p. 132). This is the question that we tackle in this post: can a State assist an injured State in taking a countermeasure against the responsible or wrongdoing State?
At the outset, we can set aside situations in which the assisting State is entitled in its own right to take countermeasures against the responsible State. As we explain in our article, States have discretion in choosing which countermeasures to take (within the limits set out in the ARS) and they may choose to disregard obligations of non-assistance owed to the wrongdoing State. The complexity arises in situations where the assisting State is not entitled to take countermeasures against the wrongdoing State: where this entitlement belongs, exclusively, to the injured State – as in the example of the US, Estonia and Russia mentioned above. We focus on the question of assistance, and leave aside the idea that a State may take a countermeasure at the request and on behalf of another State. This idea of ‘proxy countermeasures’ is one we discussed in a previous post.
We answer this question of assistance to another State’s countermeasure in two parts. First, we consider the possibility that the assisting State is bound by an obligation to the wrongdoing State that prohibits the very conduct that constitutes its acts of assistance. We argue that such assistance in this case would not be lawful. Second, we consider the application of the general prohibition on interstate aid or assistance reflected in Article 16 of the Articles on State Responsibility. This is the more complex scenario. We show that there are plausible arguments of principle and policy in either direction, which will need to be weighed by the relevant international actors as they consider legal development in this area.
Specific Prohibitions of Assistance
The first possibility is that a primary rule prohibits the very conduct that constitutes the assisting State’s facilitation of the assisted State’s countermeasure. It could be, for instance, that the assisting State and the wrongdoing State – the target of the countermeasure – are party to a bilateral treaty pursuant to which they share intelligence and cooperate on technical matters of defence, and under which disclosure of information to third parties is prohibited. Imagine if the assisting State shared with the assisted (injured) State information about the wrongdoing State’s cyber vulnerabilities obtained through that cooperation, thus facilitating the assisted State’s countermeasure. In our view, this would straightforwardly constitute a breach of its treaty obligation by the assisting State. Even if the assisted State has a justification for its own conduct – its lawful countermeasure – the assisting State has no such justification available to it and thus acts wrongfully.
The General Rule Reflected in Article 16 ASR
The more important – and difficult – question is whether a State’s assistance to another State’s countermeasure breaches the rule reflected in Article 16 ASR. Article 16, a general complicity rule found to be custom in the Bosnian Genocide case, provides:
A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:
- that State does so with knowledge of the circumstances of the internationally wrongful act; and
- the act would be internationally wrongful if committed by that State.
In applying Article 16 to this situation of assistance to a countermeasure, we suggest there are two plausible approaches.
First, it is plausible simply to deny that the assisting State does anything wrongful at all. Article 16 captures situations where a State ‘aids or assists another State in the commission of an internationally wrongful act’. That is, Article 16 is a complicity rule, one which turns on the existence of a wrong committed by the principal actor. Thus, of course, if the assisted State’s countermeasure does not fulfil the relevant conditions for the lawfulness of countermeasures, then the assisting State may be responsible, assuming the other elements of Article 16 are fulfilled. Crucially, though, if the assisted State’s countermeasure is permissible on the basis of its justification – its countermeasure – it would seem to follow that there is no wrong for the assisting State to be complicit in. Following this reasoning, no responsibility would arise under the rule in Article 16.
In theoretical terms, this conclusion can be supported by the view that if a principal’s conduct is justified, rather than excused, then accessories may assist them and benefit from their defence. This is a commonly asserted position in the literature on the implications of the distinction between justification and excuse in criminal law theory. Here, the fact that justifications centre on features or characteristics of the act (rather than on features and characteristics of the actor), and render that conduct lawful, produce a ‘universalizing’ effect such that they can also be relied on by accomplices. Husak illustrates this approach the following example: ‘Suppose that [a principal] acts in self-defense in repelling an unlawful aggressor. Surely [an accessory] has a defense if he assists [the principal] in his efforts.’
We see the intuitive appeal of this position in relation to countermeasures, given they are generally understood as entailing a justification. And indeed, it is a position that has been supported – at least as a starting point – in the international legal literature.
However, we also want to flag a second approach, as there are two further considerations which put pressure on the above analysis and point in the opposite direction. The first concerns the possibility that countermeasures are properly understood as what philosophers call an ‘agent-relative’ as opposed to an ‘agent-neutral’ justification, and that it is not the case that agent-relative justifications can be relied on by third parties to justify acts of assistance. We do not draw out this argument here, but discuss it in more detail in our article. The second concerns the distinction between permissible and commendable conduct, how countermeasures fit with this distinction, and what this might mean for assistance. This we focus on in the rest of this section.
In this respect, some scholars argue that the category of justification is better understood as entailing permissible rather than necessarily commendable conduct, and that permissible conduct can include both commendable or praiseworthy behavior as well as acts that are merely tolerated by the legal system. If this is right, then it does not necessarily follow that the legal order ought to allow third parties to assist a principal in undertaking justified conduct. Yes, if that conduct is commendable, then as a general position the law ought to allow others to assist. But that does not necessarily follow if the conduct is merely tolerable. Indeed, as Husak notes, [t]he law need not encourage, and might actively discourage, assistance [to] conduct that it is willing to [tolerate].’
The question, then, is what this means for assistance to a countermeasure. Throughout the ILC’s work, we see a consistent ambivalence on the part of States about the entire institution of countermeasures – an ambivalence which persists today. Several States resisted their inclusion in the ASR, warning against the dangers inherent in the unilateral and – possibly – unchecked character of countermeasures (eg Morocco and Cuba). Among others, Brazil thought them ‘distasteful’ (para 2), Mexico that they tended to exacerbate instead of solve disputes (para 26), South Africa that they should be ‘marginalised’ (para 24), and Argentina – otherwise favorable to countermeasures – that they ‘could only be tolerated under international law as an extreme remedy to be taken only in exceptional cases’ (para 93). Hakimi captures this ambivalence well when she describes countermeasures as an institution of ‘unfriendly unilateralism’ that is ‘tolerated’ by international law ‘despite its unsavoury attributes, because the legal order’s formal enforcement processes are commonly weak or absent’.
What is more, countermeasures are often described as ‘intrinsically wrongful acts’: that the measure is inconsistent with an obligation owed to the responsible State is what distinguishes countermeasures from acts of retorsion. The latter are unfriendly acts, but they do not involve an act incompatible with an obligation owed to its target. To be sure, countermeasures are permissible – but they are so only in an all-things-considered sense, for while justified the conduct remains at odd with an obligation binding on the State. (The continued existence of that obligation is not affected by the countermeasure, but is indeed required to provide a benchmark against which to judge the measure in question.)
Seen in this light, it may not be quite so straightforward to assume that because countermeasures entail justified conduct, it follows that other States ought to be allowed to provide assistance. It is plausible that the legal system may tolerate the injured State’s conduct – precluding its wrongfulness – without allowing other States to assist. This is, indeed, how some domestic legal systems approach this question. A principal’s justification does not automatically or necessarily extend to those who assist, simply because the principal’s act is permissible.
Conclusion
Whether, absent their own independent entitlement to take countermeasures, States can assist their allies in the taking of countermeasures is thus a more complicated question that appears at first sight. Where the specific act of assistance is prohibited under a primary rule, then it will be unlawful. But where it is not, there are two factors which pull in different directions. In one direction, there is the intuitive view that because countermeasures are justified—because the principal State’s act is all-things-considered permissible—this should extend to cover an act of assistance by another State. Pulling in the opposite direction, however, is the fact that the international legal order takes a cautious approach to countermeasures, one that suggests such measures are tolerable, rather than commendable, and that they arise from the particular relation between the injured state, the injury, and the breach. This point puts pressure on the intuitive response: for it provides reasons to restrict those behaviours, including by limiting the participation of third parties.
In policy terms, there is an evident attraction in allowing assistance in these situations, as it promises to permit more materially or technologically developed States to assist States with less technical capacity in the enforcement of their legal rights. In addition, if, as we argued in our article there is no basis for a State to take a countermeasure ‘at the request and on behalf of’ another State, allowing assistance may be seen as a defensible intermediate measure to deal with the difficulties faced by weaker States. However, it is also worth stressing that the central concern of the inequality of power amongst States is not quite so easily resolved. As with more permissive approaches to the taking of countermeasures generally, allowing for assistance may be more skeptically understood as permitting powerful States to facilitate the disregarding by others of their obligations. Relatedly, there is a risk of a too-idealistic picture of the reasons for which, and situations in which, powerful States would be willing to collaborate with another State in taking a countermeasure.
Given the complexity of the legal question, States may need to clarify the law in this area. Although we have raised considerations of principle and policy concerns that would militate against the appropriateness of assistance to another State’s countermeasure, it may be that on balance the need for more robust enforcement mechanisms may in certain circumstances outweigh them. Sectoral or regime-specific legal development is also possible, such that States might agree that assistance may be particularly needed in the cyber-sphere in light of the peculiarities of this kind of activity and the considerable disparity in States’ technological capabilities.
Assistance to a Countermeasure in International Law
Written by Miles Jackson and Federica PaddeuIn recent years, States have begun to discuss and assess whether and when they may cooperate in the taking of countermeasures. The question has arisen most prominently in debates about the application of international law to cyber operations in light of the fact that cyber-capabilities vary significantly among States, making some more vulnerable to malicious cyber-operations, as well as less capable of responding to them. The idea has been championed by Estonia, perhaps understandably given its own experience as the victim of a severe cyber-attack. It has been supported by other States too. For instance, Canada’s recent statement on the application of international law to cyberspace proposes that ‘assistance can be provided on request of an injured State, for example where the injured State does not possess all the technical or legal expertise to respond to internationally wrongful cyber acts’.
Collaboration among States on cyber security is common (see e.g. here and here), and its forms vary. In May of this year, Jeff Kosseff discussed an example of some of these forms of collaboration: the US’s ‘Hunt Forward’ operations. These operations, which have taken place in several States, including Estonia and Albania, are aimed at protecting US allies and the US itself by ‘blunting the harm of malicious attacks on shared networks’ and providing the US ‘with valuable intelligence about adversaries’ methods’. Such cooperation, so long as it takes place within the limits of the consent given by the territorial State, are permissible. But can this – or any other form of – cooperation include aiding the territorial State in taking a countermeasure against another State which had, say, committed a cyber-operation in violation of its territorial sovereignty? Could the US assist Estonia, for example, in taking a countermeasure against Russia in response to a (below-the-threshold) cyber-operation against Estonia that violated the latter’s territorial sovereignty, which both the US and Estonia are bound to respect?
Whether a State can assist another State in the taking of a countermeasure may appear, at first sight, a rather simple question. If countermeasures are lawful, then it must be the case that assistance to them is also lawful. However, in our recent article on cooperation in the taking of countermeasures we argue that the issue is not so simple. For one, it is hard to find public practice to confirm this conclusion. Moreover, whether this conclusion is compatible with the ILC work on countermeasures is open to doubt: Koskenniemi has remarked that the ILC’s default assumption was that ‘[t]here was no general right to assist the injured State’ in taking countermeasures (at p. 345). Reflecting this uncertainty, the Tallinn Manual 2.0 notes that the members of the expert group were ‘split over whether a State may assist another State in conducting the latter’s countermeasures’ (p. 132). This is the question that we tackle in this post: can a State assist an injured State in taking a countermeasure against the responsible or wrongdoing State?
At the outset, we can set aside situations in which the assisting State is entitled in its own right to take countermeasures against the responsible State. As we explain in our article, States have discretion in choosing which countermeasures to take (within the limits set out in the ARS) and they may choose to disregard obligations of non-assistance owed to the wrongdoing State. The complexity arises in situations where the assisting State is not entitled to take countermeasures against the wrongdoing State: where this entitlement belongs, exclusively, to the injured State – as in the example of the US, Estonia and Russia mentioned above. We focus on the question of assistance, and leave aside the idea that a State may take a countermeasure at the request and on behalf of another State. This idea of ‘proxy countermeasures’ is one we discussed in a previous post.
We answer this question of assistance to another State’s countermeasure in two parts. First, we consider the possibility that the assisting State is bound by an obligation to the wrongdoing State that prohibits the very conduct that constitutes its acts of assistance. We argue that such assistance in this case would not be lawful. Second, we consider the application of the general prohibition on interstate aid or assistance reflected in Article 16 of the Articles on State Responsibility. This is the more complex scenario. We show that there are plausible arguments of principle and policy in either direction, which will need to be weighed by the relevant international actors as they consider legal development in this area.
Specific Prohibitions of Assistance
The first possibility is that a primary rule prohibits the very conduct that constitutes the assisting State’s facilitation of the assisted State’s countermeasure. It could be, for instance, that the assisting State and the wrongdoing State – the target of the countermeasure – are party to a bilateral treaty pursuant to which they share intelligence and cooperate on technical matters of defence, and under which disclosure of information to third parties is prohibited. Imagine if the assisting State shared with the assisted (injured) State information about the wrongdoing State’s cyber vulnerabilities obtained through that cooperation, thus facilitating the assisted State’s countermeasure. In our view, this would straightforwardly constitute a breach of its treaty obligation by the assisting State. Even if the assisted State has a justification for its own conduct – its lawful countermeasure – the assisting State has no such justification available to it and thus acts wrongfully.
The General Rule Reflected in Article 16 ASR
The more important – and difficult – question is whether a State’s assistance to another State’s countermeasure breaches the rule reflected in Article 16 ASR. Article 16, a general complicity rule found to be custom in the Bosnian Genocide case, provides:
A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:
In applying Article 16 to this situation of assistance to a countermeasure, we suggest there are two plausible approaches.
First, it is plausible simply to deny that the assisting State does anything wrongful at all. Article 16 captures situations where a State ‘aids or assists another State in the commission of an internationally wrongful act’. That is, Article 16 is a complicity rule, one which turns on the existence of a wrong committed by the principal actor. Thus, of course, if the assisted State’s countermeasure does not fulfil the relevant conditions for the lawfulness of countermeasures, then the assisting State may be responsible, assuming the other elements of Article 16 are fulfilled. Crucially, though, if the assisted State’s countermeasure is permissible on the basis of its justification – its countermeasure – it would seem to follow that there is no wrong for the assisting State to be complicit in. Following this reasoning, no responsibility would arise under the rule in Article 16.
In theoretical terms, this conclusion can be supported by the view that if a principal’s conduct is justified, rather than excused, then accessories may assist them and benefit from their defence. This is a commonly asserted position in the literature on the implications of the distinction between justification and excuse in criminal law theory. Here, the fact that justifications centre on features or characteristics of the act (rather than on features and characteristics of the actor), and render that conduct lawful, produce a ‘universalizing’ effect such that they can also be relied on by accomplices. Husak illustrates this approach the following example: ‘Suppose that [a principal] acts in self-defense in repelling an unlawful aggressor. Surely [an accessory] has a defense if he assists [the principal] in his efforts.’
We see the intuitive appeal of this position in relation to countermeasures, given they are generally understood as entailing a justification. And indeed, it is a position that has been supported – at least as a starting point – in the international legal literature.
However, we also want to flag a second approach, as there are two further considerations which put pressure on the above analysis and point in the opposite direction. The first concerns the possibility that countermeasures are properly understood as what philosophers call an ‘agent-relative’ as opposed to an ‘agent-neutral’ justification, and that it is not the case that agent-relative justifications can be relied on by third parties to justify acts of assistance. We do not draw out this argument here, but discuss it in more detail in our article. The second concerns the distinction between permissible and commendable conduct, how countermeasures fit with this distinction, and what this might mean for assistance. This we focus on in the rest of this section.
In this respect, some scholars argue that the category of justification is better understood as entailing permissible rather than necessarily commendable conduct, and that permissible conduct can include both commendable or praiseworthy behavior as well as acts that are merely tolerated by the legal system. If this is right, then it does not necessarily follow that the legal order ought to allow third parties to assist a principal in undertaking justified conduct. Yes, if that conduct is commendable, then as a general position the law ought to allow others to assist. But that does not necessarily follow if the conduct is merely tolerable. Indeed, as Husak notes, [t]he law need not encourage, and might actively discourage, assistance [to] conduct that it is willing to [tolerate].’
The question, then, is what this means for assistance to a countermeasure. Throughout the ILC’s work, we see a consistent ambivalence on the part of States about the entire institution of countermeasures – an ambivalence which persists today. Several States resisted their inclusion in the ASR, warning against the dangers inherent in the unilateral and – possibly – unchecked character of countermeasures (eg Morocco and Cuba). Among others, Brazil thought them ‘distasteful’ (para 2), Mexico that they tended to exacerbate instead of solve disputes (para 26), South Africa that they should be ‘marginalised’ (para 24), and Argentina – otherwise favorable to countermeasures – that they ‘could only be tolerated under international law as an extreme remedy to be taken only in exceptional cases’ (para 93). Hakimi captures this ambivalence well when she describes countermeasures as an institution of ‘unfriendly unilateralism’ that is ‘tolerated’ by international law ‘despite its unsavoury attributes, because the legal order’s formal enforcement processes are commonly weak or absent’.
What is more, countermeasures are often described as ‘intrinsically wrongful acts’: that the measure is inconsistent with an obligation owed to the responsible State is what distinguishes countermeasures from acts of retorsion. The latter are unfriendly acts, but they do not involve an act incompatible with an obligation owed to its target. To be sure, countermeasures are permissible – but they are so only in an all-things-considered sense, for while justified the conduct remains at odd with an obligation binding on the State. (The continued existence of that obligation is not affected by the countermeasure, but is indeed required to provide a benchmark against which to judge the measure in question.)
Seen in this light, it may not be quite so straightforward to assume that because countermeasures entail justified conduct, it follows that other States ought to be allowed to provide assistance. It is plausible that the legal system may tolerate the injured State’s conduct – precluding its wrongfulness – without allowing other States to assist. This is, indeed, how some domestic legal systems approach this question. A principal’s justification does not automatically or necessarily extend to those who assist, simply because the principal’s act is permissible.
Conclusion
Whether, absent their own independent entitlement to take countermeasures, States can assist their allies in the taking of countermeasures is thus a more complicated question that appears at first sight. Where the specific act of assistance is prohibited under a primary rule, then it will be unlawful. But where it is not, there are two factors which pull in different directions. In one direction, there is the intuitive view that because countermeasures are justified—because the principal State’s act is all-things-considered permissible—this should extend to cover an act of assistance by another State. Pulling in the opposite direction, however, is the fact that the international legal order takes a cautious approach to countermeasures, one that suggests such measures are tolerable, rather than commendable, and that they arise from the particular relation between the injured state, the injury, and the breach. This point puts pressure on the intuitive response: for it provides reasons to restrict those behaviours, including by limiting the participation of third parties.
In policy terms, there is an evident attraction in allowing assistance in these situations, as it promises to permit more materially or technologically developed States to assist States with less technical capacity in the enforcement of their legal rights. In addition, if, as we argued in our article there is no basis for a State to take a countermeasure ‘at the request and on behalf of’ another State, allowing assistance may be seen as a defensible intermediate measure to deal with the difficulties faced by weaker States. However, it is also worth stressing that the central concern of the inequality of power amongst States is not quite so easily resolved. As with more permissive approaches to the taking of countermeasures generally, allowing for assistance may be more skeptically understood as permitting powerful States to facilitate the disregarding by others of their obligations. Relatedly, there is a risk of a too-idealistic picture of the reasons for which, and situations in which, powerful States would be willing to collaborate with another State in taking a countermeasure.
Given the complexity of the legal question, States may need to clarify the law in this area. Although we have raised considerations of principle and policy concerns that would militate against the appropriateness of assistance to another State’s countermeasure, it may be that on balance the need for more robust enforcement mechanisms may in certain circumstances outweigh them. Sectoral or regime-specific legal development is also possible, such that States might agree that assistance may be particularly needed in the cyber-sphere in light of the peculiarities of this kind of activity and the considerable disparity in States’ technological capabilities.
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