Cyberwar Crimes? Yep and Prosecutions Coming Down the Pike
November 15, 2023
This essay is the work of a dumb humanoid. No smart software required.
Existing international law has appeared hamstrung in the face of cyber-attacks for years, with advocates calling for new laws to address the growing danger. It appears, however, that step will no longer be necessary. Wired reports, “The International Criminal Court Will Now Prosecute Cyberwar Crimes.” The Court’s lead prosecutor, Karim Khan, acknowledged in an article published by Foreign Policy Analytics that cyber warfare perpetuates serious harm in the real world. Attacks on critical infrastructure like medical facilities and power grids may now be considered “war crimes, crimes against humanity, genocide, and/or the crime of aggression” as defined in the 1998 Rome Statute. That is great news, but why now? Writer Andy Greenberg tells us:
“Neither Khan’s article nor his office’s statement to WIRED mention Russia or Ukraine. But the new statement of the ICC prosecutor’s intent to investigate and prosecute hacking crimes comes in the midst of growing international focus on Russia’s cyberattacks targeting Ukraine both before and after its full-blown invasion of its neighbor in early 2022. In March of last year, the Human Rights Center at UC
Berkeley’s School of Law sent a formal request to the ICC prosecutor’s office urging it to consider war crime prosecutions of Russian hackers for their cyberattacks in Ukraine—even as the prosecutors continued to gather evidence of more traditional, physical war crimes that Russia has carried out in its invasion. In the Berkeley Human Rights Center’s request, formally known as an Article 15 document, the Human Rights Center focused on cyberattacks carried out by a Russian group known as Sandworm, a unit within Russia’s GRU military intelligence agency. Since 2014, the GRU and Sandworm, in particular, have carried out a series of cyberwar attacks against civilian critical infrastructure in Ukraine beyond anything seen in the history of the internet.”
See the article for more details of Sandworm’s attacks. Greenberg consulted Lindsay Freeman, the Human Rights Center’s director of technology, law, and policy, who expects the ICC is ready to apply these standards well beyond the war in Ukraine. She notes the 123 countries that signed the Rome Statute are obligated to detain and extradite convicted war criminals. Another expert, Strauss Center director Bobby Chesney, points out Khan paints disinformation as a separate, “gray zone.” Applying the Rome Statute to that tactic may prove tricky, but he might make it happen. Khan seems determined to hold international bad actors to account as far as the law will possibly allow.
Cynthia Murrell, November 15, 2023
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