Project Overview and Proposal
The creation of a Council of Advisers on the Application of the Rome Statute to Cyberwarfare. The Permanent Mission of Liechtenstein, along with other partners, established a time-bound forum for States, academics, and civil society members to discuss how different forms of cyber operations fit into the Rome Statute system and other international legal frameworks. At its conclusion, the Council of Advisers has published a report on their discussions.
Project Background and Goals
With the increasing digitization of international warfare, understanding the extent to which the Rome Statute (and other international legal frameworks) apply to cyberattacks is imperative.
Developments in the cyber realm provide an opportunity to better align international criminal justice with 21st century challenges. Current international law relies mostly on analogy and customary international law to regulate cyber behavior (see: The Tallin Manual). There is thus a need to concretely identify specific international law addressing current and emerging threats emanating from cyberspace and to propose sensible modifications that will update the law for the coming age in order to ensure its relevance in the cyber domain.
The General Assembly has recognized the need for greater guidance on the application of international law to cyber activity. Recently the General Assembly voted to pursue this work by authorizing both an Open-Ended Working Group (OEWG) and a Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security (GGE) on these issues. As these groups and others attempt to process how other areas of international law may apply to cyberwarfare it is important that the Rome Statute also evolve accordingly.
Civil society has also called for greater guidance on these issues as a number of states and the European Union have begun to develop their own domestic and supranational cyber response strategies. Contradictions between various cyber strategies call for expert discussion and analysis on how to harmonize international law in this area.
- Can cyberattacks be understood as “armed attacks” (in the sense of Article 8 bis of the Rome Statute) and under what circumstances?
- What qualities of cyberattacks would satisfy the threshold criteria for an act of aggression under the Kampala amendments?
- Issues of attribution and jurisdiction in cyberwarfare, both in events involving state actors and seemingly non-state actors.
- The relationship between grave cyberattacks understood under the Kampala amendments and the threshold for invocation of self-defense under Article 51 of the UN Charter.
- The relevance and application of international humanitarian law, and particularly Articles 7 and 8 of the Rome Statute, to cyberattacks.
Members of the Council of Advisers, experts in the laws on the use of force and cyberwarfare, were invited to join three consultations and three voluntary side-events and contributed to the final report.
The report’s contribution is in its specific and unique focus on the application of the Rome Statute of the ICC to cyber operations. The report discusses the crime of aggression in Part I.