Recognising Cyber Blockades as Crimes Against Humanity: Can International Criminal Law Keep Up?

Abstract

As a result of the heavily digitalised world on top of our increasing online presence and interconnectedness, states and civilian populations are becoming more and more vulnerable to cyber attacks. It is thus imperative to examine the dangers large scale cyber attacks pose with respect to their contribution to potential human suffering. As such, these large scale cyber attacks, especially a cyber blockade, may be able to constitute an international crime. The Prosecutor of the International Criminal Court announced at the Digital Front Lines conference that his office is willing to investigate cyber operations as potential war crimes given that they are capable of causing severe consequences akin to kinetic warfare. (Yoon Onn, 2023) This is the first significant step towards recognising the harmful effects of malicious cyber operations as international crimes. However, not only is the Rome Statute itself silent on cyber operations as potential international crimes, the ICC has not yet seen a case concerning malicious cyber activities as either a war crime or as a crime against humanity. As such, the central question the paper seeks to answer is whether the Rome Statute could potentially encompass cyber blockades as the crime against humanity of “other inhumane acts” under Article 7(1)(k) of the Rome Statute. The paper looks at crimes against humanity for three reasons: firstly, Karim Khan KC has already touched on cyber attacks potentially prosecuted as war crimes, as mentioned above, thus the knowledge gap is gradually being bridged with respect to war crimes. Secondly, there is an absence of any regulatory framework should a cyber blockade be unleashed in peacetime, where international humanitarian principles do not apply. Thirdly, establishing a cyber blockade as a crime against humanity would lead to greater individual criminal responsibility as opposed to a war crimes conviction. This, in turn, would send a strong deterrent message in both war and peace.