Responsibility for cyber aggression under international criminal law: basis and conditions of occurrence

Abstract

The article examines the possibility of prosecution for the crime of aggression committed through cyber-attacks (cyberaggression) under international criminal law. The author analyzes the material elements of the crime, examines the most extensive cyberattacks in the last 15 years and concludes that such requirements of the art. 8bis as commitment of the act of aggression only by State and the threshold requirement for the act of aggression to reach the level of manifest violation of the Charter of the United Nations, as well as the lack of indication on the opened or closed list of acts of aggression in art. 8bis, makes its application to cyberaggression difficult. The Rome Statute’s provisions on the subject of the crime of aggression which limit both primary perpetrators and accomplices to those who are in position effectively to exercise control over or to direct the action of a State, prevent cybercrime perpetrators from being held liable for the crime of aggression. Similar difficulties arise when applying the mental element requirements of the crime of aggression to possible cases of cyberaggression, such as intent and knowledge to commit crime of aggression. At the same time the author recognizes the possibility and even the need to extend the definition of aggression to cases of committing this crime through cyberattacks.

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