New Technologies in International Law / Tymofeyeva, Crhák et al.

5.1 I ndividual R esponsibility for W ar C rimes C ommitted in C yberspace under D omestic C riminal L aw and I nternational C riminal L aw

By Robert Łasa (University of Silesia)

Introduction The purpose of the paper is to identify limitations affecting the criminal prosecution of an individual who commits war crimes in cyberspace. The rationale for it is the fact that there are no attempts to prosecute individuals because of war crimes committed in the cyberspace or the absence of appropriate legal rules rendering it possible to prosecute them. The analysis is based on the main research question ‘How to bring to justice a hacker for war crimes committed in the cyberspace effectively?’. A research question formulated this way renders it possible to formulate a hypothesis according to which individuals perpetrating war crimes connected with military operations in the cyberspace are not facing criminal responsibility because of the lack of effective and uniform legal solutions rendering it possible to conduct criminal proceedings against them, both in accordance with domestic and international alike. The paper is divided into two parts. The first one presents the genesis of individual criminal responsibility for war crimes and defines a war crime. In addition, the first part describes the criminal responsibility of an individual for crimes committed in cyberspace from the perspective of international law. The second part is a review of national war crimes regulations of selected countries - the United States of America (USA), the United Kingdom (UK), the People’s Republic of China (China), and the Russian Federation (Russia). The criterion according to which these states were selected is their military potential in terms of conducting military activities in the cyberspace, which has already been confirmed, for example, by the American cyberattack on an Iranian nuclear facility in 2010. 571 Moreover, as the criterion according to which these states were selected was the attitude of the above-mentioned states towards the Rome Statute of the International Criminal Court (ICC Statute). The first three states are not parties to the ICC Statute, whereas the UK ratified it in 2001. The basic method of conducting the research is the dogmatic method, which made it possible to analyze the norms of international law, established at the global and regional level, as well as national law. The complementary role is played by the

571 ‘Iran, Victim of Cyber warfare’ ( ICRC Casebook ) accessed 30 October 2023.

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