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International efforts are also underway to enshrine cyber attacks in leading international criminal treaties.  The Rome Statute of the ICC, specifically Article 5, limits the jurisdiction to the most serious crimes of concern to the international community as a whole.  These include the crimes of genocide, crimes against humanity, and war crimes.  The conference recommended that a review conference pursuant to the article 123 of the Statute of the ICC consider such crimes with the view of their inclusion in the list within the jurisdiction of the Court.247  Cyber attacks and serious cybercrimes should be included by amendment in 2009 in accordance with articles 121 and 123.248  If this were to occur, the international community would no longer have to lurch from attack to attack on a case-by-case basis, but instead be confident in a multilateral response to cyber attack already rooted in the international system.

State-sponsored cyber attacks can straddle the worlds of IHRL and IHL.  Non-state actors that engage in international violence at the behest of states, regardless of whether it raises to the level of an armed conflict, do not fit in nearly with either paradigm.  A threatened use of weapons of mass destruction by a transnational terrorist group may not be amenable to a human rights review approach, for example.  Even so, classifying global terrorism may be an easier case study than IW given that most terrorist attacks have a tangible harm.  As such, aggressive acts in cyberspace can only be assessed by their consequences.249

247 Rome Statute U.N.  Doc.  A/CONF.183/9 of 17 July 1998, Art. 123.

248 Defined by the Council of Europe Cybercrime Convention of 2001.

249 The fact that IHRL is designed to function in peacetime, contains no rules governing the methods and means of warfare, and applies only to one party to a conflict led at least one human rights nongovernmental organization to look to IHL to provide a “methodological basis for dealing with the problematic issue of civilian casualties and to judge objectively the conduct of military operations by the responsive parties.”  Weller, supra note 88.

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