承认网络封锁是危害人类罪:国际刑法能否跟上?

Dora Vanda Velenczei
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引用次数: 0

摘要

由于世界高度数字化,加上我们在网上的存在和相互联系日益紧密,国家和平民越来越容易受到网络攻击。因此,当务之急是研究大规模网络攻击对人类可能造成的痛苦所带来的危险。因此,这些大规模网络攻击,特别是网络封锁,可能构成国际犯罪。国际刑事法院检察官在数字前线会议上宣布,鉴于网络行动能够造成类似动能战争的严重后果,他的办公室愿意将网络行动作为潜在的战争罪进行调查。(Yoon Onn,2023 年)这是承认恶意网络行动的有害影响为国际犯罪的重要一步。然而,不仅《罗马规约》本身对网络行动作为潜在的国际犯罪保持沉默,国际刑事法院也尚未将恶意网络活动作为战争罪或反人类罪处理过。因此,本文试图回答的核心问题是《罗马规约》是否可能将网络封锁作为《罗马规约》第 7(1)(k)条规定的 "其他不人道行为 "的反人类罪。本文研究危害人类罪有三个原因:首先,如上所述,Karim Khan KC 已经涉及可能作为战争罪起诉的网络攻击,因此,在战争罪方面的知识差距正在逐步缩小。其次,如果在和平时期发动网络封锁,则缺乏任何监管框架,而国际人道主义原则在和平时期并不适用。第三,将网络封锁定为危害人类罪将导致更大的个人刑事责任,而不是战争罪定罪。这反过来又会在战争与和平时期发出强有力的威慑信息。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
Recognising Cyber Blockades as Crimes Against Humanity: Can International Criminal Law Keep Up?
As a result of the heavily digitalised world on top of our increasing online presence and interconnectedness, states and civilian populations are becoming more and more vulnerable to cyber attacks. It is thus imperative to examine the dangers large scale cyber attacks pose with respect to their contribution to potential human suffering. As such, these large scale cyber attacks, especially a cyber blockade, may be able to constitute an international crime. The Prosecutor of the International Criminal Court announced at the Digital Front Lines conference that his office is willing to investigate cyber operations as potential war crimes given that they are capable of causing severe consequences akin to kinetic warfare. (Yoon Onn, 2023) This is the first significant step towards recognising the harmful effects of malicious cyber operations as international crimes. However, not only is the Rome Statute itself silent on cyber operations as potential international crimes, the ICC has not yet seen a case concerning malicious cyber activities as either a war crime or as a crime against humanity. As such, the central question the paper seeks to answer is whether the Rome Statute could potentially encompass cyber blockades as the crime against humanity of “other inhumane acts” under Article 7(1)(k) of the Rome Statute. The paper looks at crimes against humanity for three reasons: firstly, Karim Khan KC has already touched on cyber attacks potentially prosecuted as war crimes, as mentioned above, thus the knowledge gap is gradually being bridged with respect to war crimes. Secondly, there is an absence of any regulatory framework should a cyber blockade be unleashed in peacetime, where international humanitarian principles do not apply. Thirdly, establishing a cyber blockade as a crime against humanity would lead to greater individual criminal responsibility as opposed to a war crimes conviction. This, in turn, would send a strong deterrent message in both war and peace.
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