Non-State Actors as Cyber Operation Participants: Extending the Law of State Responsibility to Non-State Actors Engaged in Cyber Operations and Attacks

Abstract

The role of Non-State Actors in both International Law and International Humanitarian law, has presented an issue for legal scholars for some time, and as yet it is without a definitive answer. In the context of cyber operations, both at apparent times of peace and in times of international armed conflict, this adds a further layer of complexity to the attribution of State Responsibility for such attacks. Thus, within this study these issues are examined through looking at the international law of State Responsibility and attribution, with a focus on the changing customary norms and soft law instruments that could be adapted to assist States in accepting the positive obligation of customary International Law to take action to prevent and disrupt such attacks, as the “carrot” approach, and the assignment of responsibility to states for the actions of non-state actors (NSAs) through the doctrines of effective and overall control as the opposing “stick”. Furthermore, it looks at how a States lack of action can be considered “complicity” in order to frame up how the “soft law” instruments of the Draft Articles of State Responsibility and the Tallinn Manual on the International Law of Cyber Operations can combine to create a persuasive political and diplomatic international obligation upon States, which would serve to prevent, mitigate and disrupt State use of Non-State Cyber Actors as proxies in their covert cyber operations.