Violations of International Humanitarian Law by Non-State Actors during Cyberwarfare: Challenges for Investigations and Prosecutions

Abstract

This article argues that it is possible—given the right resources and expertise—to hold individual non-state actors responsible for violations of international humanitarian law (also known as ‘the laws and customs of war’) perpetrated with cyberweapons. It describes jurisdictional elements of violations of the laws and customs of war as well as points that prosecutors and investigators must consider when planning investigations of serious violations of international humanitarian law perpetrated in cyberspace. It addresses how certain theories of individual criminal responsibility for war crimes apply to offences committed by non-state actors during cyberwarfare and identifies particular evidentiary challenges arising from the particular qualities of cyberspace and cyberweapons. Individual accountability for war crimes perpetrated during cyber operations requires new thinking about the application of legal principles and theories during cyber conflict.