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The Cyber Defense Review

 
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Countermeasures as Lightning, not a Lightning Bug: Illuminating the Legal Doctrine

By LTC Mark A. Visger and Prof. Zhanna L. Malekos Smith | April 07, 2023

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Mark Twain famously observed that the difference between the “right word and the almost right word is the difference between lightning and a lightning bug.” Similarly, here, the term ‘countermeasures’ has a particular textual meaning under international law. It is not an unfettered privilege that can be conjured at any whim—especially in the cyber domain. Definitionally, countermeasures are a limited set of responses available to an injured State responding to an aggressor State’s behavior; further, these responses would otherwise be unlawful but for the aggressor State’s “un­friendly” and illegal actions.

      In a previous Cyber Defense Review article, Dr. Nori Katagiri outlined challenges to implementing countermeasures in cyberspace from a perspective of active defense. For purposes of his article, he defined countermeasures as “a set of responses toward verified attackers within a reasonably short period of time.” He also discussed the challenges of implementing an active defense approach from a strategic and political perspective. Yet “countermeasures,” as described by Dr. Katagari (i.e., an active defense cyber strategy, which we will refer to as “active defense perspective” for this paper), are quite different from “countermeasures” as traditionally defined under international law. As a legal matter, countermeasures are responses to unfriendly state actions that would otherwise be un­lawful but for the responsible State’s misconduct. As articulated in Tallinn Manual 2.0, an “injured State” engages in countermeasures to induce the “responsible State” to cease its wrongful behavior.

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