International Criminal Responsibility in Cyberspace
N. Tsagourias and R. Buchan (eds.), Research Handbook on Cyberspace and International Law, Cheltenham: Elgar, 2015, 118-143.
14 Pages Posted: 23 Mar 2014 Last revised: 20 Aug 2015
Date Written: 2015
The primary objective of this paper is to give a reliable overview of the state of the art. This is not an easy task given the great uncertainty, complexity and dynamics of cyber warfare or cybercrime. While ‘cyberspace’ may be broadly defined as a domain characterized by ‘the use of electronics...and the electromagnetic spectrum to store, modify, and exchange data via networked systems and associated physical infrastructures’ and thus ‘cybercrime’ encompasses a wide variety of criminal activity by means of or in the world wide web (from criminal economic activity to copyright violations and child pornography), this paper will only focus on computer network attacks (CNAs), also sometimes called more shortly cyber-attacks. While definitional detail are still controversial, it is fair to say that a CAN constitutes the strongest form of what is regarded to be cyber warfare, i.e., the use of technical means to wage war against an adversary in cyberspace. The focus on CNAs in this paper is explained by the fact that only these forms of crimes in cyberspace are normally serious enough to qualify as international crimes and thus be covered by an international criminal jurisdiction like the ICC (for more detail see infra A.).
On the other hand, ‘international criminal responsibility’ presupposes the existence of international crimes and the participation in these crimes. The current debate in the cyber context is mostly concerned with the application of the law of armed conflict or international humanitarian law (IHL) to CNAs (infra B.). This is not surprising since states are, pursuant to Article 36 of the First Additional Protocol to the Geneva Conventions (AP I), under an obligation to determine the applicable IHL rules for new weapons and means or method of warfare. Less intense is the debate regarding a possible criminal responsibility for a crime of aggression (infra C.). This is equally unsurprising since this crime has only recently been codified and it is much less likely that it will be applied in any time soon to traditional armed attacks, let alone cyber-attacks. Finally, there is virtually no debate regarding the commission of crimes against humanity by way of CNAs but it is worthwhile to take a brief look at this possibility following up on the discussion of war crimes (infra D.). There are, of course, other issues regarding international criminal responsibility in cyberspace but they must be left to further inquiries.
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