International criminal responsibility in cyberspace

Abstract

The primary objective of this chapter is to give a reliable overview of the state of the art with regard to 'computer network attacks' (CNAs) or cyber-attacks. A CNA constitutes the strongest form of what is regarded to be cyber warfare, i.e., the use of technical means to wage war against an adversary in cyberspace. The focus on CNAs is explained by the fact that only these forms of crimes in cyberspace are normally serious enough to qualify as international crimes and thus be covered by an international criminal jurisdiction like the ICC. As to ‘international criminal responsibility’ the current debate in the cyber context is mostly concerned with the application of the law of armed conflict or international humanitarian law (IHL) to CNAs (infra Section 2). Less intense is the debate regarding a possible criminal responsibility for a crime of aggression (infra Section 3). Finally, there is virtually no debate regarding the commission of crimes against humanity by way of CNAs but it is worthwhile taking a brief look at this possibility too (infra Section 4). There are, of course, other issues regarding international criminal responsibility in cyberspace but they must be left to further inquiries.