Individual Criminal Responsibility for Cyber Aggression
Journal of Conflict & Security Law (2016), Vol. 21 No. 3, 495–504
Posted: 23 Apr 2018
Date Written: 2016
A computer network attack (CNA) will hardly amount to a crime of aggression since Article 8bis ICC Statute requires that it is carried out by a State and, more importantly, establishes a two fold threshold, which is difficult to pass. Assuming, arguendo, that a State-led CNA amounts to a crime of aggression, the question arises who may be held individually responsible for such an attack. Here the complex leadership clause contained in Article 8bis (1) comes into play. Accordingly, criminal responsibility only arises with regard to ‘a person in a position effectively to exercise control over or to direct the political or military action of a State’. The article examines this clause in detail and applies it to the persons involved in a CNA, located at different levels of the military hierarchy. It concludes that there is no difference between a kinetic and a cyber-attack as far as the ensuing individual criminal responsibility is concerned.
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