Placing Cyber Warfare within the Rome Statute Framework

Abstract

Cyber Warfare is no more ‘a mere possibility.’ With the advancement of technology, the traditional understanding of war has changed dramatically, and thus the modern warfare is happening on the cyberspace. Traditionally the Geneva Conventions have regulated conducts during warfares. However, can this 70-year-old protection mechanism available during war times apply to cyber warfare? The question has been answered in affirmative by many. However, many complex parts of the puzzle still needs answering. The notion of a cyber ‘attack’, classification of this virtual warfare as an ‘armed conflict’ etcetera are some of such probing questions. This paper will thus try to determine the contours of ‘armed conflict’ and ‘attack.’ After this determination, the paper will try to assess as to what extent a prosecution for such violation might lie before the International Criminal Court. Violations of International Humanitarian Law norms are prosecuted at the International Criminal Court under Article 8 of the Rome Statute under the broad category of War Crimes. However, despite having an elaborate list of War Crimes, Article 8 doesn’t address Cyber Warfare. Because Cyber Warfare evolved almost a decade after the adoption of the Rome Statute, this shouldn’t be considered as a lacuna in the Statute. However, since Cyber Warfare falls under International Humanitarian Law, the paper will assess if it fits the elements of a War Crime under the Rome Statute. It will then propose how the International Criminal Court can prosecute cases of cyber warfare.

Keywords: Armed Conflict, Attack, Criminal Prosecution, Cyber Warfare, War Crimes