CYIL 2015

KRISTÝNA URBANOVÁ CYIL 6 ȍ2015Ȏ Annex II of the amending resolution – Amendment of the Elements of Crimes, the term “manifest” is an objective qualification. There is no requirement to prove that the perpetrator has made a legal evaluation as to the “manifest” nature of the violation of the Charter of the United Nations. 35 The threshold was the subject of many debates during the preparation work and reflects the interest to avoid international criminal prosecution in cases of border skirmishes or other examples of use of force of less gravity. 36 Although, critics are sceptical over the vagueness of the term “manifest“, pointing to the legal uncertainty of the concept, 37 its purpose– to avoid criminalization of minor acts has been fulfilled. Besides, the possibility to set out such an objective threshold and provide more legal certainty by any other different term is doubtful. 38 It is argued here that cyber-attacks are able to reach and cross over the quantitative and qualitative threshold (gravity, scale, character and manifest violation). In today’s highly technologically developed world crucial national services and infrastructure are controlled by the computer system. This includes emergency services, energy infrastructure, the water system, transportation, agriculture, etc. 39 It was stated above that, in the Estonian example, the national emergency services system was briefly interrupted. Such a short interruption would not satisfy the threshold set out by the definition, but the example illustrates the vulnerability of key national services to attacks from cyberspace. Moreover, the environmental damage in Australia caused by the cyber-attack on a sewage and water treatment plant in 2002, or the deviation of the control system of the Ohio power plant for several hours 40 just typify the possible devastating effects of cyber-attacks. The threat through cyber-space might be seen as too abstract and remote; however deprivation of a nation’s food, water or energy supply could be achieved without firing a simple shot from a gun. The successful elimination of these key components of a state’s functions through a cyber-attack could be of the same gravity as an airstrike on the state’s infrastructure. The gravity and character would not be enough for the criminalization of an act of aggression; manifest violation of the UN Charter would have to come jointly. The cases of the Stuxnet or Orchad examples illustrate that a cyber-attack may be used in such a manner, as well that they might be used against the sovereignty, territorial integrity 36 KRESS, C., Time For Decision: Some Thoughts on the Immediate Future of the Crime of Aggression: A Reply to Andreas Paulus, European Journal of International Law, no. 20, 2009, 1129- 1146. p. 1138. 37 GLENNON, M., The Blank-Prose Crime of Aggression, The Yale Journal of International Law , vol. 35, 2010, 72-114, p. 100. 38 AMBOS, K., The crime of aggression after Kampala, G erman Yearbook of International Law, vol. 53, 2010, 463-509, p. 478 and 479. 39 SOLCE, supra note 7, p. 202-203. 40 Ibid. , p. 203. 35 Annex II, Resolution RC/Res.6 of the Review Conference of the Rome Statute, adopted at the 13th plenary meeting, on 11 June 2010.

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