ICC’s new mandate: investigating and prosecuting cyberwar crimes

The push for an international accord akin to a cyberwar Geneva Convention has long been a rallying cry among cybersecurity experts. This hypothetical treaty would establish clear consequences for individuals or entities engaging in cyberattacks on vital civilian infrastructure like power grids, financial institutions, or healthcare facilities. Recently, the International Criminal Court (ICC) at the Hague, under the leadership of its lead prosecutor, Karim Khan, has taken a significant step towards addressing this concern. Rather than advocating for a new treaty, Khan has asserted that the ICC will actively investigate and prosecute cybercrimes that breach existing international law, treating them with the same gravity as physical-world war crimes.

In an article published in Digital Front Lines, Khan emphasized the ICC’s commitment to investigating cybercrimes that potentially violate the Rome Statute—a treaty that grants the court the authority to prosecute offences such as war crimes, crimes against humanity, and genocide. Khan’s message is clear: cyberwarfare has real-world consequences, particularly when it targets critical infrastructure or medical facilities, impacting vulnerable populations. Consequently, his office will gather and scrutinize evidence of such cyber activities as part of its investigations.

A spokesperson for the ICC confirmed to Wired that this stance is now official, asserting that cyber activities, in certain circumstances, may amount to war crimes, crimes against humanity, genocide, or the crime of aggression. The spokesperson highlighted that these activities could potentially be prosecuted by the ICC when the gravity of the case warrants it.

Although Khan’s article and official statement do not explicitly reference Russia or Ukraine, their timing is significant. This announcement comes amid heightened global attention on Russia’s cyberattacks against Ukraine, both before and after the full-scale invasion in early 2022. The Human Rights Center at UC Berkeley’s School of Law has formally urged the ICC prosecutor’s office to consider war crime prosecutions for Russian hackers involved in cyberattacks in Ukraine. While Khan’s article doesn’t single out Russia, it signifies a broader commitment to investigating hacking activities that violate international law in all cases.

Ukraine has already initiated its own investigation, amounting Russian cyberattacks to war crimes. Any evidence from this inquiry could support ICC prosecutors in potential cases against Russia. Notably, six members of the Sandworm hacking group already face indictments in the United States for cybercrimes linked to their attacks on Ukraine and the 2018 Winter Olympics.

The significance of the ICC’s involvement lies in its broad jurisdiction. With 123 countries party to the Rome Statute, the treaty implies countries’ assistance in detaining and extraditing convicted war criminals. This includes countries lacking extradition treaties with the USA, extending the reach of potential prosecutions.

While Khan’s statement regarding the ICC’s consideration of hacking as a violation of international law may be seen as novel, experts like Bobby Chesney view it as a logical step. The principle that combatants must differentiate between civilian and military targets is a fundamental aspect of the Rome Statute, and intentionally harming civilians through cyber means can qualify as an attack and violation of this principle.

Khan’s article also delves into disinformation and ‘gray zone’ tactics, highlighting the possibility of charging individuals under international law for engaging in disinformation campaigns. Although this would be relatively uncharted territory, Khan’s commitment to examining and potentially prosecuting cyberwar crimes represents a historic moment, given the ICC’s limited resources and discretion.

Karim Khan’s announcement could signify an important shift in the court’s approach to cybercrimes. By committing to investigate and potentially prosecute hacking activities that breach international law, the ICC is responding to the evolving landscape of cyberwarfare and its real-world consequences. This move underscores the importance of addressing cyber threats within the framework of existing international law, potentially leading to historic prosecutions and setting important precedents for the future. Khan’s belief in the power of the law to ensure a more humane world highlights the ICC’s determination to play its part in this evolving global challenge.