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LL.M IHRL/ICL 2020/21
Module Code
LAW 7123
Module Title
International Criminal Law
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1
Marking criteria – please study these carefully
0 – 39%
40 – 49%
50 – 59%
60 – 69%
70 – 79%
80 – 100%
Fail
Fail
Pass
Strong pass
Very strong pass
(merit)
(distinction)
Exceptionally
strong pass
(distinction)
1. Identify and distinguish at the level of detail the key concepts, principles, and institutions of international criminal law,
including their origins, limits and potential.
Very little evidence of
the ability to identify
the key concepts,
principles, and
institutions of
international criminal
law
Evidence of some
ability to identify the
key concepts,
principles, and
institutions of
international criminal
law
Evidence of
satisfactory ability to
identify the key
concepts, principles,
and institutions of
international criminal
law
Evidence of
reasonably good
ability to identify the
key concepts,
principles, and
institutions of
international criminal
law
Little to no ability to
distinguish at the level
of detail between
different issues
pertaining to
international criminal
law
Limited ability to
distinguish at the level
of detail between
different issues
pertaining to
international criminal
law
Satisfactory ability to
distinguish at the level
of detail between
different issues
pertaining to
international criminal
law
Good ability to
distinguish at the level
of detail between
different issues
pertaining to
international criminal
law
Evidence of very good
ability to identify the
key concepts,
principles, and
institutions of
international criminal
law
Very good ability to
distinguish at the level
of detail between
different issues
pertaining to
international criminal
law
Many substantial
Mistakes and/or
Few substantial
Absence of any
mistakes and/or
omissions are present, mistakes or omissions Very few substantial
substantial mistakes
omissions are present some of which are
mistakes or omissions or omissions
substantial
Evidence of
exceptionally good
ability to identify the
key concepts,
principles, and
institutions of
international criminal
law
Exceptionally good
ability to distinguish
at the level of detail
between different
issues pertaining to
international criminal
law
Absence of any
mistakes or
omissions
2. Critically analyse issues pertaining to international criminal law, and to develop and sustain a convincing argument.
Very little attention to
the question asked
Unsatisfactory
attention to the
question asked
Little to no evidence of
skills of critical
Evidence of limited
analysis, synthesis
skills of critical
and evaluation
analysis, synthesis
and evaluation
No evidence of ability
to develop a
convincing argument
including a critique of
a rival position
No attempt at
originality in
approaching the topic,
and no personal
contribution to debate
on the topic
Satisfactory attention
to the question asked
Good attention to the
question asked
Very good attention to Exceptional attention
the question asked
to the question asked
Evidence of
reasonable skills of
critical analysis,
synthesis and
evaluation
Evidence of good
skills of critical
analysis, synthesis
and evaluation
Evidence of very good
skills of critical
analysis, synthesis
and evaluation
Evidence of good
ability to develop a
convincing argument
including a critique of
a rival position
Little to no evidence of
ability to develop a
convincing argument
including a critique of
a rival position
Evidence of limited
ability to develop a
convincing argument
including a critique of
a rival position
Evidence of
reasonably good
ability to develop a
convincing argument
including a critique of
a rival position
Little to no attempt at
originality in
approaching the topic,
and no personal
contribution to debate
on the topic
Limited attempt at
originality in
approaching the topic,
and personal
contribution to debate
on the topic
Reasonable attempt at
originality in
approaching the topic,
and personal
contribution to debate
on the topic
Good attempt at
originality in
approaching the topic,
and personal
contribution to debate
on the topic
Evidence of
exceptionally good
skills of critical
analysis, synthesis
and evaluation
Evidence of very
good ability to
develop a convincing
argument including a
critique of a rival
position
Very good attempt at
originality in
approaching the
topic, and personal
contribution to debate
on the topic
3. Conduct an independent and advanced legal and academic research in international criminal law, drawing from a wide
array of sources including case law, other primary materials, and scholarly critique.
No evidence of
reading and research
beyond basic texts
No evidence of
reading and research
beyond basic texts
Reading and research Evidence of
is largely confined to reasonably wide
basic texts
reading and research
Majority of the key
sources are omitted
Unsatisfactory
competence in the
selection and use of
sources
Satisfactory
competence in the
selection and use of
sources
Little to no evidence of
ability to evaluate and
engage with current
Evidence of limited
Evidence of
legal research and
ability to evaluate and reasonable ability to
engage with current
evaluate and engage
2
Evidence of wide
reading and research
Evidence of
particularly wide
reading and research
Good competence in
the selection and use
of sources
Very good
competence in the
selection and use of
sources
Evidence of good
ability to evaluate and
engage with current
legal research and
Evidence of very good
ability to evaluate and Evidence of
engage with current
exceptional ability to
legal research and
evaluate and engage
Exceptionally good
competence in the
selection and use of
sources
theoretical arguments legal research and
on the subject
theoretical arguments
on the subject
with current legal
theoretical arguments theoretical arguments
research and
on the subject
on the subject
theoretical arguments
on the subject
with current legal
research and
theoretical arguments
on the subject
4. Communicate complex ideas clearly and effectively in writing, maintaining coherent structure and a balanced organisation
of information and argument, and paying close attention to professional legal and academic standards of style and
presentation.
Discussion is very
unclear, with
repetitions and
sentences that make
little sense
Very confusing
structure and
organisation of
information
Clarity of discussion is Satisfactory clarity of
inconsistent, confusion discussion
or repetitions may be
present
Acceptable structure
and organisation of
Largely confusing
information
structure and
organisation of
Satisfactory
information
grammatical accuracy
Good clarity of
discussion
Very good clarity of
discussion
Excellent clarity of
discussion
Reasonably clear and
appropriate structure
and organisation of
information
Very clear and
appropriate structure
and logical
organisation of
information
Particularly clear and
appropriate structure
and logical
organisation of
information
Good grammatical
accuracy
Unsatisfactory
Reasonable attention
Grammatical accuracy grammatical accuracy
to providing clear and
is particularly poor
consistent referencing
and appropriate
Limited attention to
Little to no attention to providing clear and
bibliography
providing clear and
consistent referencing
consistent referencing and appropriate
and appropriate
bibliography
bibliography
Good attention to
providing clear and
consistent referencing
and appropriate
bibliography
3
Very good
Excellent
grammatical accuracy grammatical accuracy
Very good attention to
providing clear and
consistent referencing
and appropriate
bibliography
Acute attention to
providing clear and
consistent
referencing and
appropriate
bibliography
RESEARCH MEMORANDUM
To:
Office of the Prosecutor, International Criminal Court
From:
Date:
02nd of October 2021
RE:
Does the Rome Statute have a sufficient framework to address about the ‘Cyber Warfare’
that amount to serious crimes recognized by the International Criminal Court’s
Jurisdiction?
Table of Content
1. Introduction …………………………………………………………………….
05
2. Identification and the scope of the selected legal issue………………………… 06
3. Facts and Discussion …………………………………………………………… 07
3.1 The current international legal framework governing cyber warfare 07
3.2 Armed conflict and Cyber Warfare………………………………………………… 08
3.3 Cyber Warfare as an ‘Attack’……………………………………………………….
09
3.4. Legal principles that are applicable to Cyber Warfare ……………. 09
3.5 International Convention on Cybercrime……………………………… 10
4. Analysis of the Rome Statute and its Jurisdiction on Cyber Warfare
11
.
5. Why does the Rome Statute need to be amended?..................................................12
6. Recommendations …………………………………………………………………………………………….14
7. Conclusion ………………………………………………………………………………………………………. 15
4
1. Introduction
When technology is developing rapidly, the activities in cyber space also need to be modified with a
new legal regime. ‘As information warfare capabilities have grown in recent years, the possibilities of
war crimes with cyber-attacks have increased.’1 At the moment, both states and non-state actors use
developed technology, means, and methods in warfare. Therefore, these online threats can emerge from
state or non -state organizations.2 Cyber-attacks can occur as an armed conflict or can happen in an
ongoing armed conflict. ‘Cyber space, the novel 5th space of warfare after land, sea, air, and space, is
all of the computer networks in the world and everything they connect and control via cable, fibreoptics or wireless.3 Today, parties who engage in war now use cyber technology as a novel weapon of
attack. 4
International Law governs conventional warfare, and presently, the use of digital weapons is
increasing. Because of the novelty of cyber-attacks, the existing International Criminal Law has to
provide a more specific legal framework to face this global challenge.
‘However, offensive operations in cyberspace are usually neglected from an International
Criminal Law point of view. Therefore, the debate regarding the qualification of cyber-attacks
N. C. Rowe “War Crimes from Cyber-Weapons.” Journal of Information Warfare 6, no. 3 (2007) PP 15–25.
https://www.jstor.org/stable/26503486 (accessed on 27th September 2021)
1
Rafaela Macedo De Figueiredo, Carvalho Miranda, ‘Cyber Warfare in The Context of International Criminal
Law’, (2016) https://repositorio.ucp.pt/bitstream/10400.14/22001/1/Rafaela%20Miranda.pdf (accessed on 27th
September 2021)
2
3
Fred Schreier, On Cyberwarfare, DCAF Horizon, Working Paper No 07 (2015)
https://www.dcaf.ch/sites/default/files/publications/documents/OnCyberwarfare-Schreier.pdf (accessed on 27th
September 2021)
.
4
‘John A. Serbian, Jr., Information Operations Issue Manager at the CIA, reports that: we are detecting, with
increasing frequency, the appearance of doctrine and dedicated offensive cyber warfare programs in other
countries. we have identified several, based on all-source intelligence information, that are pursuing
government-sponsored offensive cyber programs…they are developing strategies and tools to conduct
information attacks.’
John A. Serabian, “Cyber Threats and The U.S. Economy,” Central Intelligence Agency,
Https://Www.Cia.Gov/News-Information/Speeches-Testimony/2000/Cyberthreats_022300.Html (accessed on
27th September 2021)
5
as fundamental crimes have been less intense.’5 In this case, the research memorandum mainly aims
to discuss how we could enforce the law of cyberwarfare within the parameters of International
Criminal Law.
The following questions may arise when investigating the existing Conventional and Customary
International Laws that govern Cyber Operations, specifically Cyber Warfare. Firstly, it should be
noted that the existing International Criminal Law is insufficient to address Cyber Warfare. Is the
regulatory framework appropriate to govern the issues that may arise between state actors or between
non-state actors? Then it should consider that if existing law is insufficient, how should International
Criminal Law be amended better to regulate such cyber-attacks in an armed conflict, which may
account for serious crimes? Therefore, the purpose of this memorandum is to discuss how the existing
laws relating to Cyber Warfare can be placed within the framework of the Rome Statute6.
2. Identification and the scope of the selected legal issue
While examining the current International Criminal Law which stands on Cyber Warfare, the research
findings show that there is no comprehensive and clear existing legal framework for regulating the
violations of fundamental crimes in Cyber Warfare under the Rome Statute, and the existing
International Criminal Law is insufficient. Therefore, this Research Memorandum attempts to explore
whether the Rome Statute has a sufficient framework to address ‘Cyber Warfare’ that amounts to
serious crimes recognized by the International Criminal Court’s jurisdiction.
Although Cyber Warfare has an extensive scope; and multiple issues connected with it, this Research
Memorandum aims to limit the scope of how to penalize such conduct when it comes under the criminal
jurisdiction of the International Criminal Court. Furthermore, it will discuss how to enforce the criminal
liability through the provisions that are provided by the International Criminal Court on Cyber Warfare.
Gian Piero Greco, ‘Cyber-Attacks as Aggression Crimes in Cyberspace in The Context of International
Criminal Law’, European Law Journal of Political Studies, Volume 4, Issue 1 , (2020)
https://www.researchgate.net/publication/351614276_cyberattacks_as_aggression_crimes_in_cyberspace_in_the_context_of_international_criminal_law (accessed on 27th
September 2021)
6
Rome Statute of The International Criminal Court, 17 July 1998 https://www.icc-cpi.int/ ,
https://treaties.un.org/ (accessed on 27th September 2021)
5
6
3. Facts and Discussion
3 .1 The current international legal framework governing cyber warfare
In international law generally, the conventions have been responses to particular problems at regional
and global levels to regulate, harmonize or extend the claims of criminal jurisdiction.7
Since there is no specific legal instrument which identifies cyber space operations and regulates
violations of cyber space, it is critical to understand the definitions which define key cyberspace terms
such as cyber-attacks, cybercrimes, and Cyber Warfare.
Cyber-attacks can be defined as “actions taken through the use of computer networks to disrupt, deny,
degrade, or destroy information resident in computers and computer networks, or the computers and
networks themselves.”8 Cyber Crime is any activity that uses computers or networks as tools for
criminal activities. 9
Cyber Warfare is defined as warfare carried out in cyberspace using cyber means and methods, or as
a "massively coordinated digital assault on a government by another, or by large groups of citizens." It
is the action by a nation-state to penetrate another nation’s computers and networks for the purposes
David Freestone, “International Cooperation Against Terrorism and The Development of International Law
Principles of Jurisdiction,” 1.ed. Rosalyn Higgins, Maurice Flory, Terrorism and International Law (New
York: Routledge, 1997) PP 43
7
Cyberspace And Information Operations Study Center, “Computer Network Operations & Network Warfare
Operations,” Air University, Http://Www.Au.Af.Mil/Info-Ops/Netops.Htm(accessed on 27th September 2021)
8
Cyber Attacks includes Illegal access, Illegal interception, Data interception, System interference, Malicious
software (Malware), DDoS attacks, Attack against E-government websites, Attack against DNS server, Attack
against bank websites, Phishing Site, Port scanning, spamming attacks, web defacement, web server hacking,
and Email account hacking etc.
9
M. Gercke, Understanding Cybercrime: Phenomena, Challenges and Legal Response, International
Telecommunication Union, (Sept. 2012) https://www.itu.int/en/ITD/Cybersecurity/Pages/legislation.aspx ,
(accessed on 27th September 2021)
Maskun, Achmad, Naswar, Hasbi Assidiq, Armelia Syafira, Marthen Napang, Marcel Hendrapati, Qualifying
Cyber Crime as A Crime of Aggression in International Law, (2020)13 No.2, P 397-418
7
of causing damage or disruption.”10“As all military operations must be in compliance with the laws of
armed conflict; cyber operations can also be included.”11
3.2 Armed Conflicts and Cyber Warfare
International armed conflict, refers to an armed conflict between two or more states, requires the resort
to armed force between states.12 ‘It may also involve the use of armed force by a non-state organized
armed group against a state, so long as the group is acting under the overall control of another state.’13
‘Obviously, not all cyber operations would constitute a resort to armed force.’ 14 ‘To be an “armed”
force, hostilities involving the “collective application of means and methods of warfare” have to take
place.’15
10
Fred Schreier, On Cyberwarfare, (2015 - DCAF Horizon) Working Paper
https://www.dcaf.ch/sites/default/files/publications/documents/OnCyberwarfare-Schreier.pdf (accessed on
27th September 2021)
Keith Alexander, “Advance Questions for Lieutenant General Keith Alexander, USA, Nominee for
Commander, United States Cyber Command,”
Http://Www.Washingtonpost.Com/Wpsrv/Politics/Documents/Questions.Pdf. (accessed on 27th September
2021)
Colleen E. Garcia, Regulating Nation-State Cyber Attacks in Counterterrorism Operations (June -2010)
https://apps.dtic.mil/sti/citations/ADA524566 (accessed on 27th September 2021)
11
‘Per Dod Guidance, all military operations must be in compliance with the laws of armed conflict—this
includes cyber operations as well. The law of war principles such as military necessity, proportionality and
distinction will apply when conducting cyber operation.’
12
Prosecutor V. Tadic, Case No. It-94-1-I, Decision on The Defence Motion for Interlocutory Appeal on
Jurisdiction, 70 (Int’l Crim. Trib. For The Former Yugoslavia Oct. 2, 1995)
.
13
Prosecutor V. Tadic, Case No. It-94-1-A, Appeals Chamber Judgment 131-40, 145 (Intl’l Crim. Trib. For
The Former Yugoslavia July 15, 1999). See Also Application of the Convention on The Prevention and
Punishment of The Crime of Genocide (Bosn. & Herz. V. Serb. & Montenegro.), 2007 I.C.J. 108, 404 (Feb.
26); Http://Www.Icc-Cpi.Int/Iccdocs/Doc/Doc266175.Pdf (accessed on 27th September 2021)
14
Michael N. Schmitt, The Law of Cyber Warfare: Quo Vadis? Stanford Law & Policy Review, Vol. PP
25:269 https://law.stanford.edu/publications/law-cyber-warfare-quo-vadis/ (accessed on 27th September 2021)
15
Tallinn Manual, At 74, of The Red Cross, Interpretive Guidance on the notion of direct participation in
hostilities under international humanitarian law 43 (Nils Melzer Ed., 2009),
Http://Www.Icrc.Org/Eng/Resources/Documents/Publication/P0990.Htm. (Accessed on 27th October)
8
International armed conflicts are generally governed by International Humanitarian Law (hereinafter
referred to as IHL) and Customary International Law16; the four Geneva Conventions and the
Additional Protocol provide the legal framework for regulating conduct during warfare. However, it
has already been 72 years, since the beginning of modern warfare in cyber space without using
traditional means and methods. Therefore, it is questionable whether the above-mentioned old laws
and mechanisms can be applicable to Cyber Warfare in the present context. Also, there should be a
clear determination of to what extent a cyber-attack amounts to an armed conflict and how these types
of attacks may count as the fundamental crimes recognized under Article 6, Article 7, and Article 8 of
the Rome Statute.
According to the literature, the IHL regulates the conduct of parties during an armed conflict. Although
the IHL does not provide any provisions for penalties regarding the violations of fundamental crimes,
since the Nuremberg Tribunal, Tokyo Tribunal, United Nations Security Council Ad-hoc tribunals,
and also the International Criminal Court, have prosecuted violations of fundamental crimes. Certain
punishments are provided for armed conflicts under international criminal law, and the Rome Statute
criminalizes certain conduct that amounts to serious crimes in this context.
3.3 Cyber Warfare as an ‘Attack’
The Common Article 2 of the Geneva Conventions states the necessity of an attack as follows;
“The present Convention shall apply to all cases of declared war or of any other armed conflict which
may arise between two or more of the high contracting parties, even if the state of war is not recognized
by one of them.’’17 Therefore, cyber operations resulting in either severe injuries or deaths of people
or damage or destruction of property can amount to attacks under IHL.
3.4 Legal principles that are applicable to Cyber Warfare
As previously noted, in the present context of international law, violations of Cyber-attacks will be
regulated according to the principles of the law of armed conflict and the United Nations Charter
16
18
.
Jonathan Crowe And Kylie Weston-Scheuber, Principles of International Humanitarian Law, Vol.21, Issue
2, Article 7 (Edward Elgar Publishing -2013).
https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1915&context=hrbrief (accessed on 27th
September 2021)
17
Geneva Convention for the Relief of Wounded and Sick Armed Forces in the Field, Art. 2, Aug. 12, 1949,
75 U.N.T.S. 970
18
Charter of The United Nations and Statute of The International Court of Justice
https://treaties.un.org/doc/publication/ctc/uncharter.pdf (here in after refer as UN Charter) (accessed on 27th
September 2021)
9
The ‘jus ad bellum’ codified by the U.N Charter applies to an ongoing war when nations may use
force. According to Article 2(4), the U.N charter prohibits states from using force except when
conducted in self defense as provided under Article 51 or under the auspices of the Security Council
in accordance with Article 39. States that have signed onto the U.N Charter have agreed to abide by
these rules when waging conventional wars. 19
Certain actions are prohibited under international humanitarian law (IHL) "during an armed conflict"
(jus in bello). The Hague Conferences, Geneva Conventions, and customary international law specify
how force may be used during war, whereas International Criminal Law criminalizes certain
behaviours and provides for punishments "once the conflict has ended" (jus post bellum). It governs
behaviour during war. Military necessity, proportionality, perfidy, distinction, neutrality, and
discrimination are also applicable as principles in that manner.
According to the above laws and principles, it is needed to understand how these principles do or
should apply to cyberweapons.20 Another question is whether these long-standing laws and principles
of armed conflict are sufficient to regulate and punish cyber warfare.
3.5 International Convention on Cybercrime.
The states have already attempted to address cyber criminality since 1998. 21 In 2000, the UN General
Assembly also called upon states to ‘‘ensure that their laws and practices eliminate safe havens for
those who criminally misuse information technologies’’22
19
Dorothy E. Denning, The Ethics of Cyber Conflict, In the Handbook of Information and Computer Ethics
Eds. K. E. Himma and H. T. Tavani, 4 (Hoboken, Nj: Wiley, 2008). Colleen E. Garcia, Regulating NationState Cyber Attacks in Counterterrorism Operations, (June -2010)
20
Colleen E. Garcia, Regulating Nation-State Cyber Attacks in Counterterrorism Operations (June2010), William A. Owens, Kenneth W. Dam, and Herbert S. Lin, Technology, Policy, Law, and
Ethics Regarding the United States' Acquisition and Use of Cyber-Attack Capabilities (Washington,
D.C.: The National Academies Press, 2009), P 3–20.
21
Marco Roscini, Gravity in The Statute of The International Criminal Court and Cyber Conduct That
Constitutes, Instigates or Facilitates International Crime, Criminal Law Forum (2019) 30:247–272
22
(Un General Assembly Resolution 55/63, 4 December 2000, Para. 1; Marco Roscini, Gravity in The Statute
of The International Criminal Court and Cyber Conduct That Constitutes Instigates or Facilitates International
Crime, Criminal Law Forum (2019) 30: P247–272
10
The Convention on cybercrimes is the first and only international treaty to deal with breaches of law:
happening over the Internet or other information networks. This was adopted in 2001 by the Council
of Europe and entered into force in 2004.
‘Thirty countries, including the United States, have signed and this Convention requires state
signatories to “update and harmonize their criminal laws against hacking, infringements on copyrights,
computer facilitated fraud, child pornography, and other illicit cyber activities’’. 23 This Convention
also seeks to harmonize national laws, improve cybercrime investigation techniques, and improve
international cooperation.24
While analysing the existing international law which applies to cyberspace, ‘the debate about the
qualification of cyber-attacks as fundamental crimes under International Criminal Law is still ongoing
and has not produced definitive answers.25
4. Analysis of the Rome Statute and its Jurisdiction on Cyber Warfare
As it was mentioned previously, the IHL does not provide any punishments for violations of an armed
conflict. After the 1st world war, the 1919 Peace Treaty of Versailles (Article 229 (2)) attempted to
prosecute for IHL violations. However, in 2002, the International Criminal Court was established26.
As a permeant institution; the International Criminal Court shall have the power to exercise its
jurisdiction over persons for the most serious crimes of international concern.’27 It means the Rome
23
Convention On Cybercrime, Council of Europe,
http://Conventions.Coe.Int/Treaty/En/Treaties/Html/185.Htm(accessed on 27th September 2021)
24
https://Www.Unodc.Org/E4j/En/Cybercrime/Module-3/Key-Issues/International-And-RegionalInstruments.Html, Https://Www.Coe.Int/En/Web/Cybercrime/Home (accessed on 27th September 2021)
25
Gian Piero Greco, Cyber-Attacks as Aggression Crimes in Cyberspace in The Context of International
Criminal Law, European Journal of Political Science Studies Volume 4, Issue 1 (2020)
26
Rome Statute of The International Criminal Court, A/Conf.183/9 Of 17 July 1998, Done at Rome on 17 July
1998, In Force On 1 July 2002, United Nations, Treaty Series, Vol. 2187, No. 38544, Depositary: SecretaryGeneral of The United Nations.
27
Un General Assembly, Rome Statute of The International Criminal Court, 17 July 1998, Article 1, The CourtAn International Criminal Court ("the court") is hereby established. It shall be a permanent institution and shall
have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as
referred to in this statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and
functioning of the court shall be governed by the provisions of this statute
11
Statute is applicable for violations of serious breaches of international law in an armed conflict and
entails not only state responsibility, but also individual criminal responsibility.
In article 5, the Rome statue limits its jurisdiction to the most serious crimes. Furthermore, the
following crimes have been identified as serious crimes under the Rome Statute.
a) The Crime of Genocide,28
b) Crimes against Humanity,29
c) War Crimes30
d) The crime of Aggression31
According to some literature
International Humanitarian Law meets International Criminal Law
through Article 5, Articles, 6, 7, 8 and 8 bis.32 However, the Rome Statute does not provide any
provisions explicitly regarding Cyber Warfare.
5. Why does the Rome Statute need to be amended?
The means and methods of war are rapidly changing. Therefore, as previously noted, several issues
related to Cyber Warfare seem to emerge under the Rome Statute. The perpetrator may carry out the
attack without giving any warnings. Furthermore, in most cases, it is difficult to categorize the act as
an act of Cyber Warfare. While the attack is carried out through a virtual platform, it is difficult to
Un General Assembly, Rome Statute Of The International Criminal Court, 17 July 1998, Article 6 – ‘For the
purpose of this Statute, "Genocide" means any of the following acts committed with intent to destroy, in whole
or in part, A National, Ethnical, Racial Or Religious Group, as such: (a) killing members of the group; (b)
causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group
conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures
intended to prevent births within the group; (e) forcibly transferring children of the group to another group’.
28
29
Un General Assembly, Rome Statute of The International Criminal Court, 17 July 1998, Article 7 states that
for the purpose of this Statute, "crime against humanity" means any of the specified acts when committed as
part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
30
Un General Assembly, Rome Statute of The International Criminal Court, 17 July 1998, Article 8 refers to
war crimes - The Court shall have jurisdiction in respect of war crimes in particular when committed as part of
a plan or policy or as part of a large-scale commission of such crimes.
31
UN General Assembly, Rome Statute of the International Criminal Court, 17 July 1998, Article 8 bis states
that “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position
effectively to exercise control over or to direct the political or military action of a state, of an act of aggression
which, by its character, gravity, and scale, constitutes a manifest violation of the Charter of the United Nations.
32
Aman Kumar, Placing Cyber Warfare Within the Rome Statute Framework (November 16, 2019).
International Humanitarian Law: A Reflection on 70 Years of Geneva Conventions 1949
Https://Ssrn.Com/Abstract=3514098(accessed on 27th September 2021)
12
identify the opposing force in an armed conflict. Also, the attack must be counted as a serious crime
which comes under the jurisdiction of the International Criminal Court. Another issue is territoriality;
the location of the data, or the location of the data controller or the nationality of the data owner. 33
Some commentators argue that ‘the lack of sufficient evidence might be a significant obstacle to the
identification and prosecution of those ‘‘most responsible’’ for the crimes involving conduct in
cyberspace.’34 However, because of the incompletion of the law relating to these issues in the Rome
Statute; prosecuting such cases may become more comprehensive and challenging to enforce for
criminal justice.35
According to the Rome Statute the gravity of the crime is the most important element. When concern
about the application of the gravity threshold of cyber conduct which might come under the jurisdiction
of the International Criminal Court, there are several issues which may arise. There must be sufficient
gravity in order to determine or assess the gravity of a specific cyber conduct. The preamble of the
33
When it comes to define the cyber space operations; the cloud means servers that have access over the internet.
the software and databases run on those servers. a number of issues rise with regarding this cloud computing as
there is no any certain law to interpret about such online methods and it is very complected to gain electronic
evidence for criminal justice purposes to impose the responsibility upon the perpetrator. following issues may
rise such as; ‘location of data? nationality of owner of data? location of data controller? headquarters of a cloud
service provider? subsidiary of a cloud service provider? territory where a cloud provider is offering its services?
laws of the territory where the data owner has subscribed to a service? the territory of the criminal justice
authority’
Jan Kleijssen And Pierluigi Perri, Cybercrime, Evidence and Territoriality: Issues and Options, Chapter 7
(T.M.C. Asser Press and The Authors -2017); M. Kuijer and W. Werner (Eds.), Netherlands Yearbook of
International Law (2016) Netherlands Yearbook of International Law47,
34
Article 53(2) Requires that there should be a ‘‘sufficient basis’’ for prosecution, which is arguably a higher
standard than ‘‘reasonable basis to proceed’’; Marco Longobardo, Everything Is Relative, Even Gravity, 14
Journal of International Criminal Justice (2016), Pp. 1022–1023); Marco Roscini, Gravity in The Statute of The
International Criminal Court and Cyber Conduct That Constitutes, Instigates or Facilitates International Crime,
Criminal Law Forum (2019) 30:247–272
35
Colleen E. Garcia, Regulating Nation-State Cyber Attacks in Counterterrorism Operations (June -2010)
‘The National Research Council Finds: The conceptual framework that underpins the U.N. charter on the use of
force and armed attack and today’s law of armed conflict provides a reasonable starting point for an international
legal regime to govern cyber-attack. However, those legal constructs fail to account for non-state actors and for
the technical characteristics of some cyber-attacks.’ William A. Owens, Kenneth W. Dam, And Herbert S. Lin,
Technology, Policy, Law, and Ethics Regarding U.S. Acquisition and Use or Cyber-Attack capabilities
(Washington, Dc: The National Academies Press -2009)
13
Rome Statute stipulates that the International Criminal Court was established to prosecute only ‘the
most serious crimes of concern to the international community as a whole’’36
Furthermore, Article 7 also stipulates that those crimes against humanity must be ‘‘committed as part
of a widespread or systematic attack directed against the civilian population’’. Article 8 bis (1) states
that an act of aggression must be ‘by its character, gravity and scale. Under article 8(1) of war crimes,
provides that the Court prosecutes them ‘‘in particular when committed as part of a plan or policy or
as part of a large-scale commission of such crimes.37
According to the literature, when Violations of IHL norms are prosecuted at the International Criminal
Court under Article 8 of the Rome Statute; the list of war crimes explicitly does not address Cyber
Warfare. 38
6. Recommendations
As previously stated, the absence of Cyber Warfare as a war crime under Article 8 of the Rome Statute39
has resulted in some literature suggesting that the Rome Statute be amended to include Cyber Warfare
as a war crime. However, researchers revealed that so many serious cyber-attacks have occurred
globally, but because of the lack of enforcement of International Criminal Law; nobody has been
sentenced. Furthermore, there is a lacuna in the legal framework regarding the investigation process as
well as prosecuting those violations with proper evidence.
36
U.N General Assembly, Rome Statute of The International Criminal Court, 17 July 1998, Preambledetermined to these ends and for the sake of present and future generations, to establish an independent
permanent international criminal court in relationship with the United Nations system, with jurisdiction over the
most serious crimes of concern to the international community as a whole
When discuss about the cyber-attacks in the context of armed conflict the ‘incidental loss of life or injury to
civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment
which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated’’,
would amount to war crimes under Article 8(2)(b)(i), (ii) and (iv), and Article 8(2)(e)(i) of the Rome Statute.
cyber-attacks resulting in harmful physical consequences on individuals might also constitute acts of genocide
(Article 6(a)), or, if they are ‘‘committed as part of a widespread or systematic attack directed against any civilian
population, with knowledge of the attack’’, crimes against humanity (Article 7(1)(a) and (b)), whether or not
they occur in the context of an armed conflict.
37
38
); Marco Roscini, Gravity in The Statute of The International Criminal Court and Cyber Conduct That
Constitutes, Instigates or Facilitates International Crime, Criminal Law Forum (2019) 30:247–272
39
Aman Kumar, Placing Cyber Warfare Within the Rome Statute Framework (November 16, 2019).
International Humanitarian Law: A Reflection on 70 Years of Geneva Conventions 1949
Https://Ssrn.Com/Abstract=3514098 (accessed on 27th September 2021)
14
Therefore, the Rome Statute should be amended with the following amendments;
a) There should be a clear legal definition of Cyber Warfare
b) It should be mentioned that the threshold of the character, gravity, scale and other parameters
that may constitute Cyber Warfare may amount to a serious crime.
c) The international criminal court may provide assistance to any requesting state party who is
conducting an investigation into cybercrimes.
Furthermore, some literature has suggested establishing a special International Criminal Court for
violations of serious crimes in Cyberspace; as a subdivision of the International Criminal Court or a
separate judicial instrument. It is recommended that if the Rome Statute could be amended with an
alternative tribunal, limited to the jurisdiction of cybercrimes which may amount to serious crimes
recognized under the Rome Statute, the legal enforcement of cyber threats and cyber warfare would be
strengthened.40
7. Conclusion
The Rome Statute is an international legal instrument which is binding globally. Therefore, the
International Criminal Court may strengthen the global integration of procedural and court proceedings
on the most serious crimes of global concern in cyberspace.41 Although the Rome Statute is amended
with specific alternations, the insufficiency of legal enforcement may cause harm to the peace and
security of the nations. As this is a new aspect of war, the international community should move on
from the long-standing international laws and specifically should amend the Rome Statute with new
enforceable laws which can explicitly address Cyber Warfare.
(Word count -4448 words)
40
Stein Schjolberg Norwa, An International Criminal Tribunal for Cyberspace (ICTC), A paper for the East
West Institute (EWI), Cybercrime Legal Working Group (March 2012)
41
An International Criminal Tribunal for Cyberspace (ICTC) By Judge Stein Schjolberg Norwa A paper for
the EastWest Institute (EWI) Cybercrime Legal Working Group by Judge Stein Schjolberg March 2012
15
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