War crimes in cyberspace: prosecuting disruptive cyber operations under Article 8 of the Rome Statute

Abstract

This article reviews the existing scholarship concerning the applicability of IHL norms to cyberspace, and in particular the Tallinn Manual, which is considered to be the most authoritative restatement of international law applicable in the cyber context. In doing so, it seeks to answer the question of whether purely disruptive (as opposed to physically destructive) cyber operations could be prosecuted as war crimes at the International Criminal Court under Article 8 of the Rome Statute. The Tallinn Manual, being a restatement of lex lata at the time that it was drafted, places a heavy emphasis on physical effects when applying the jus in bello to cyber warfare. If the ICC were to rely on the Tallinn Manual’s conclusions to inform its interpretation of Article 8 in relation to cyber-based war crimes, this could have the effect of excluding disruptive cyber operations from its jurisdiction. This is a cause for concern in a world where militaries and civilian populations alike are becoming increasingly reliant on computer systems and the internet. Disruptive cyber operations can result in devastating consequences even though they do not cause physical damage, and are likely to become more powerful and sophisticated in future as technology develops.