Cyber War Crimes Will Be Prosecuted

The International Criminal Court (ICC) will begin to investigate and prosecute cyber war crimes in the way it investigates kinetic and physical war crimes.  Writing in the online journal Digital Frontlines, the ICC prosecutor Karim Khan focused on criminal cyber acts. 

In his essay, asserts that the types of aggression being carried out in cyberspace could “potentially fulfill” the conditions already laid out in current international crime criteria, thereby warranting ICC scrutiny and potential prosecution.

“As states and other actors increasingly resort to operations in cyberspace, this new and rapidly developing means of statecraft and warfare can be misused to carry out or facilitate war crimes, crimes against humanity, genocide, and even the aggression of one state against another." 

Cyberwarfare does not play out in the abstract. Rather, it can have a profound impact on people’s lives,” Khan writes. 

“Attempts to impact critical infrastructure such as medical facilities or control systems for power generation may result in immediate consequences for many, particularly the most vulnerable. Consequently, as part of its investigations, my Office will collect and review evidence of such conduct.” In his analysis, Khan includes includes the softer areas of cyber operations for ICC review. These would include, such as disinformation that seek to “exploit ambiguity” and operate in the gray area between conflict and peace, legal and illegal, where proxies and nonstate elements are utilised.  

Under the Geneva Convention, attacks against civilians can constitute war crimes under international humanitarian law, and for some time, researchers have pushed for cyber crimes to be recognized in this category.

Russia is not discussed in the article, although it is clear that the types of activities Khan is describing is what has  been seen taking place during the Ukraine conflict since the 2014 occupation of Crimea. Russia-inspired cyber activity has targeted Ukrainian critical infrastructure, notably its power grids, causing temporary blackouts across Ukraine. These events notably included the deployment of NotPetya malware, initially used to infect Ukraine but quickly spreading around the world.  Instead of stealing data, NotPetya destroyed it, elevating a disruptive attack into a highly destructive one.  

With respect to the softer side of cyber operations, Russia has been connected to global fake information and propaganda attempting to influence national elections. On this basis, is quite likely that  Russia’s cyber attacks against civilian infrastructure in Ukraine may be the first case to be brought by the ICC.

Karim Khan:     Oodaloop:      Wired:     CybersecurityConnect:    Ars Technica:   DigWatch:

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