Crimes against humanity
|Crimes against humanity|
|Individuals may incur criminal responsibility for crimes against humanity based on Article 7 of the Rome Statute, which can be committed through cyber operations or cyber means. As provided for in the chapeau to Article 7(1) of the Rome Statute, for an act to constitute a crime against humanity it must be “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. Article 7(2)(a) of the Rome Statute further defines the term “[a]ttack directed against any civilian population” as “a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack”. The attributes “widespread or systematic” are disjunctive. The term “widespread” refers to the geographical scope of the attack and the number of victims. The systematic nature of the attack refers to “the organised nature of the acts of violence and the improbability of their random occurrence”.
Several of the acts listed in Article 7(1) of the Rome Statute could be committed by cyber means. When cyber operations are used to attack the civilian population and lead to the loss of life, the perpetrators could be responsible for murder under Article 7(1)(a) of the Rome Statute, provided that they had the intent to kill one or more persons. Cyber means could also be used to persecute an identifiable group or collectivity on one of the prohibited grounds listed in Article 7(1)(h) of the Rome Statute. Article 7(2)(g) specifies that persecution “means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity”. The necessary mental element is the intent to discriminate. It is also conceivable that an individual is criminally responsible for using cyber means to commit “[o]ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health” under Article 7(1)(k) of the Rome Statute. This residual provision suggests that the list of expressly named acts is not exhaustive.
Notes and references
- Kai Ambos, ‘International Criminal Responsibility in Cyberspace’ in Nicholas Tsagourias and Russell Buchan (eds), Research Handbook on Cyberspace and International Law (Elgar 2015) 118, 141.
- The Elements of Crimes explain that “[i]t is understood that ‘policy to commit such attack’ requires that the State or organization actively promote or encourage such an attack against a civilian population” but adds in a footnote that “[t]hat such a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack. The existence of such a policy cannot be inferred solely from the absence of governmental or organizational action.” (ICC, Elements of Crimes (ICC 2011), 5).
- CLICC commentary, Art. 7 (1).
- Ibid, relying inter alia on Prosecutor v Katanga and Ngudjolo (Decision on confirmation of charges) ICC-01/04-01/07-717 (30 September 2008) ; Prosecutor v Gbagbo (Decision on the confirmation of charges) ICC-02/11-01/11-656-Red (12 June 2014) ; Prosecutor v Katanga (Judgment pursuant to article 74 of the Statute) ICC-01/04-01/07-3436 (7 March 2014) ; and Prosecutor v Bemba (Decision pursuant to Article 61(7)(a) and (b) of the Rome Statute on the charges of the Prosecutor) ICC-01/05-01/08-424 (15 June 2009) .
- Prosecutor v Katanga and Ngudjolo (Decision on confirmation of charges) ICC-01/04-01/07-717 (30 September 2008) ; and Prosecutor v Gbagbo (Decision on the confirmation of charges) ICC-02/11-01/11-656-Red (12 June 2014) .
- CLICC commentary, Art 7(1)(a).
- Prosecutor v Nahimana (Media Case) (Appeals Judgement) ICTR 99-52-A (28 November 2007)  (finding that “the hate speeches and calls for violence against the Tutsi made after 6 April 1994 [i.e., after the beginning of a systematic and widespread attack against the Tutsi] themselves constituted underlying acts of persecution”).
- CLICC commentary, Article 7(1)(h).
- CLICC commentary, Article 7(1)(k).