توسل به دفاع مشروع در قبال حملات سایبری عوامل غیردولتی در حقوق بین الملل (مقاله علمی وزارت علوم)
درجه علمی: نشریه علمی (وزارت علوم)
آرشیو
چکیده
در بحث توسل به دفاع مشروع در قبال حملات سایبری عوامل غیردولتی، نخست باید مشخص شود که در قبال چه نوع حمله سایبری حق دفاع مشروع ایجاد می شود. مناسب ترین و مرتبط ترین تعریف دررابطه با موضوع موردبحث، تعریف ارائهشده در ماده ۳۰ راهنمای تالین است؛ زیرا حمله سایبری را حمله ای می داند که باعث ایجاد جراحت یا مرگ برای اشخاص و خسارت و تخریب به اشیا می شود. سؤال اصلی پژوهش حاضر این است که باتوجه به قواعد حقوق بین الملل حاضر آیا امکان توسل به دفاع مشروع در قبال حملات سایبری عوامل غیردولتی وجود دارد؟ با استفاده از روش توصیفی - تحلیلی به این سؤال پاسخ داده شده است که اگرچه به طور سنتی رویه بر پذیرفتنی بودن دفاع مشروع علیه دولت ها بوده، اما پس از حملات تروریستی ۱۱ سپتامبر، دفاع مشروع علیه عوامل غیردولتی نیز به رسمیت شناخته شد؛ بنابراین در برابر حملات سایبری عوامل غیردولتی درصورت رعایت مقررات حقوق بین الملل می توان به دفاع مشروع چه با ابزار سایبری و چه غیرسایبری متوسل شد.Resort to Self-Defense Against Cyber Attacks by Non-State Actors in International Law
In the discussion of resorting to Self defenseSelf-defense against cyber attackscyber-attacks by non-State actors, at first it must be determined that for what type of cyber attackcyber-attack the right to Self defenseSelf-defense is allowed. The most appropriate and relevant definition in relation to the subject under discussion is the definition provided in Article 30 of the Tallinn Manual, because it considers a cyber attackcyber-attack as an attack that causes injury or death to persons and damage and destruction to objects. The main question of the current research is that according to the rules of international law, is it possible to resort to Self defenseSelf-defense against cyber attackscyber-attacks by non-state actors? This question has been answered by using the descriptive-analytical method, that although traditionally the procedure was based on the acceptability of Self defenseSelf-defense against States, but after the September 11 terrorist attacks, Self defenseSelf-defense against non-state actors was also recognized. Therefore, against cyber attackscyber-attacks by non-Statenon-state actors, if international law regulations are followed, Self defenseSelf-defense can be resorted to, either with cyber or non-cyber tools. Keywords: Cyber Attacks, Tallin Manual, Self Defence, Non- State Actors 1. Introduction The rise of innovative payment methods represents a transformative shift in the retail payments landscape, In international law, the term non-state actors encompass a wide range of actors at the international level, from non-governmental organizations to multinational corporations. However, in recent decades, new actors have emerged in the international community in the form of non-state actors who have pursued terrorist goals. With attacks taking place every day in cyberspace, it seems that the era of cyber warfare has arrived. Now, given the use of this new technology by states and non-state actors and attacks on states and individuals, the question arises as to whether existing international law applies in this area. It is a clear fact that the new style of warfare is not similar to the type of warfare we have had before and that the laws that currently exist belong to the type of warfare and the means of warfare of the twentieth century. When the authors of the Charter were drafting and writing it, what they had in mind when they considered the prohibition of the use of force was more in relation to the military force that had been used in World War II. For example, tanks, aircraft, and weapons such as nuclear weapons, which was the impetus for drafting and writing the. Article 51 of the Charter is an exception to the principle of non-use of force. Article 51 of the Charter of the United Nations states: Nothing in the present Charter shall impair the inherent right of individual or collective self-defense of Members if an armed attack occurs against a Member of the United Nations until the Security Council has taken measures necessary to maintain international peace and security. Members shall immediately report to the Security Council any measures taken in the exercise of this right of self-defense. Such measures shall in no way impair the powers and responsibilities of the Security Council under the present Charter for the maintenance and restoration of international peace and security, and the Council may take such measures as it may deem necessary. Even in this article, the word force is not specified. The ability of cyber technologies to carry out attacks makes them unlike any other weapon in history. Cyber-attacks depend on information networks around the world, networks that states depend on for everything from entertainment to banking to space travel. As the world’s dependence on information systems increases, so too does the impact and capability of cyber-attacks. Currently, due to the increase in cyber-attacks and the risk of these attacks, states are improving their information infrastructures. The ease of conducting cyber-attacks and their stealthy nature make them more attractive for certain types of warfare. In cyberspace, attacks are also carried out by non-state actors, sometimes not affiliated with any state. This research analyzes whether states can resort to self-defense against cyberattacks by non-state actors.. 2. Methodology To regularly assess and update regulatory frameworks to address emerging challenges. The interplay between In this research, we tried to collect and gather information from the primary sources (including laws, regulations, directives, bylaws, judicial decisions, etc.) and secondary sources (such as books and articles, theses, research reports, etc.) in scientific research data centers, official and reputable websites, libraries, and similar resources. According to the title of the article, which refers to Self-defense against cyber-attacks by non-state actors in international law, the concepts of cyber-attacks, armed attacks, and the inherent right of Self-defense have been discussed, and then the attribution of cyber-attacks has been discussed. In the following, the conditions of Self-defense are discussed, and the principles of necessity, proportionality, and Immediacy are discussed and analyzed. Then the nature of Self-defense against cyber-attacks is discussed in detail, and finally, Self-defense against cyber-attacks by non-State actors is analyzed . 3. Results and Discussion In the discussion of Self-defense against cyber-attacks, it should be said that cyber-attacks are an emerging phenomenon that treaties or international customs has not yet been formed for them; Therefore, the matter should be analyzed within the framework of the existing rules of international law. So, those types of cyber-attacks, which reach the threshold of an armed attack, i.e., cause damage and destruction to objects and kill and injure people, the right of Self-defense rises for states. A related international obligation, which is breached by a cyber-attack and amounts to an armed attack, is the prohibition of the use of force and thus constitutes a violation of the UN Charter. In this research, the issue of Self-defense against cyber-attacks by non-State actors has been discussed in detail, and it has been concluded that it is possible to resort to Self-defense against cyber-attacks by non-State actors, if Self-defense is based on the rules of international law and the principles of Self-defense such as proportionality, necessity, and immediacy are observed. 4. Conclusions and Future Research The complexity and variety of cyber-attacks make it difficult to put them in the current legal framework. Cyber-attacks have destructive results such as killing and injuring people, destroying assets and property. Both states and non-state actors can launch cyber-attacks, targeting anything and anyone, including people, objects, and even entire societies. Currently, the best definition of cyber-attack, which is related to the topic of discussion of this article, i.e., self-defense against cyber-attacks by non-state actors, lies in Article 30 of the Tallinn Manual. This definition includes all cyber operations that cause injury and death to persons and damage and destruction to objects. A related international obligation that is violated by a cyber-attack and amounts to an armed attack is the prohibition of the use of force; Therefore, it is a violation of the United Nations Charter. In the discussion of self-defense against non-state actors, there are two narrow and broad views, and even the International Court of Justice has dealt with this issue with ambiguity, and the court's procedure has only been on identifying self-defense against states. However, for the first time after the terrorist attacks of Al-Qaeda in the United States on September 11, 2001 and the approval of resolutions 1373 and 1368, the right of self-defense against non-state actors was established, and the group of international experts of the Tallinn Manual also accepted the right of self-defense against non-state actors; Therefore, it can be concluded that currently, according to the issues raised, it is possible to resort to self-defense against cyber-attacks by non-state actors, if self-defense is based on the rules of international law and the principles of self-defense such as proportionality, necessity and immediacy must be observed.
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