La responsabilidad internacional del estado como consecuencia de los ciberataques utilizados como método de combate a la luz del derecho internacional humanitario

Abstract

The PhD work that it is introduced, has the title “The international responsibility of the State, as a consequence of the use of cyberattacks as a method of combat, in the light of International Humanitarian Law”. Through the studied carried out, we try to investigate the incidence, in the classic issues of international responsibility, that cyberattacks have when used as method of combat in an armed conflict. The study is structured in two different parts. The first one corresponds to the classic issues of the international responsibility mechanism and the second one, to the circumstances precluding wrongfulness. This study has been developed in a theoretical-practical basis. The main cyberattacks studied by the internationalists scholars have been investigated, as well as the Responsibility of States for Internationally Wrongful Acts Draft, and the Commentaries to it, made by the International Law Commission. The work of the International Law Commission about ius cogens and the fragmentation of International Law have been taken also into account, without forgetting the international judgment criteria, that is crucial in the analysis. In the first Chapter a conceptual analysis is made, in order to establish in which cases a cyberattack is able to be legally qualified as an armed cyberattack. The legal regime applicable to them, is studied as well. The Second Chapter deals with the legal regime that must be applicable to all the rest of cyberattacks that cannot be considered as an armed cyberattack, considering as well the context of the latest, and the origin, International obligation in force and the content of it. The Third Chapter explores the issues related to the attribution to the State of the act which is a breach of an international obligation, both, when carried out by the state organs and individuals, focussing on the participation of cybervolunteers in international and no international armed conflicts. The Second Part of the PhD work starts with the study made in Chapter Fourth, related to the possibility to consider International Humanitarian Law obligations as ius cogens obligations. In the light of International Law Commission works, the cases when a breach of International Humanitarian Law obligation are a breach of ius cogens law are studied. Lastly, Chapter Fifth, deals with the way that circumstances precluding wrongfulness will be applied by the States. Studying the whole group of them, a special emphasis is made regarding self-defence, due to the fact that cyberattacks are going to be present in a conflict context, and probably, it will be the most invoked circumstance.