Digital Front Lines

The tools used to commit serious international crimes constantly evolve—from bullets and bombs to social media, the internet, and perhaps now even artificial intelligence. As states and other actors increasingly resort to operations in cyberspace, this new and rapidly developing means of statecraft and warfare can be misused to carry out or facilitate war crimes, crimes against humanity, genocide, and even the aggression of one state against another.

International criminal justice can and must adapt to this new landscape. While no provision of the Rome Statute is dedicated to cybercrimes, such conduct may potentially fulfill the elements of many core international crimes as already defined. In particular, the International Committee of the Red Cross has reiterated that cyberattacks must comply with the cardinal principles of distinction and proportionality and should only be directed against military objectives.

There is an emerging consensus among states that cyberspace is not a special domain free from regulation but rather that international law has a clear role to play. I have repeatedly stated that in all situations addressed by the International Criminal Court Office of the Prosecutor, we need to show that the law is able to deliver for those who find themselves on the front lines. And those front lines are no longer just physical: The digital front lines can give rise to damage and suffering comparable to what the founders of the ICC sought to prevent.

Cyber warfare does not play out in the abstract. Rather, it can have a profound impact on people’s lives. Attempts to impact critical infrastructure such as medical facilities or control systems for power generation may result in immediate consequences for many, particularly the most vulnerable. Consequently, as part of its investigations, my Office will collect and review evidence of such conduct. We are likewise mindful of the misuse of the internet to amplify hate speech and disinformation, which may facilitate or even directly lead to the occurrence of atrocities.

Cyber operations are sometimes employed as part of a so-called “hybrid” or “gray zone” strategy. Such strategies aim to exploit ambiguity and operate in the area between war and peace, legal and illegal, with the perpetrators often hidden behind proxy actors. This calls for a whole-of-society response, drawing together distinct functions and capabilities to act in a coordinated way. At the international level, the ICC’s jurisdiction—clearly defined and complementary to the broader jurisdictions of states—can serve as an important part of that collective response.

In particular, as the hub of an international justice system in which states, civil society, and international organizations each play their part, the ICC can make several contributions. Through its own proceedings to ensure legal accountability, the ICC may deter offenders. Such proceedings may also help mitigate the ambiguity of hybrid strategies by reinforcing the applicable law and reliably and prominently determining the truth. The Office may also play a supporting or convening role, by not only investigating with a view to prosecutions before the ICC, but also supporting states and other bodies to proceed under their applicable laws.

In all respects, cooperation is key. It is essential for the ICC to build and strengthen partnerships not only with states but also with corporations. This takes commitment on both sides. Microsoft, and in particular its president, has taken a leading role in cooperating with the ICC, supporting international justice and focusing attention on the need for collective action to address areas of global concern. To highlight this emerging trend and explore innovative and cutting-edge responses, this autumn, my Office and Microsoft will jointly convene a cybercrimes-focused event bringing together expert stakeholders across the private and public sectors. This event will feed into the Office’s development of a policy paper.

The increasing intensity and frequency of cyber operations also highlight the importance of developing and improving the ICC’s own operational practices. This includes ensuring that the ICC is adequately defended against cyber operations. Disinformation, destruction, the alteration of data, and the leaking of confidential information may obstruct the administration of justice at the ICC and, as such, constitute crimes within the ICC’s jurisdiction that might be investigated or prosecuted. But prevention remains better than cure.

With the assistance of states, civil society, and technology leaders, the ICC is already actively working to consolidate and upgrade its information systems architecture and technical capabilities. In particular, partnerships with technology leaders such as Microsoft and Planet Labs have helped my Office harness the power of technology on behalf of victims of international crimes and affected communities, including through the enhanced use of artificial and geospatial intelligence to investigate alleged crimes. We can and will go further in these efforts. Even visionaries such as Albert Einstein are said to have feared that technology might come to exceed our humanity. Undoubtedly, we shall be tested. But through our common efforts—and above all the belief that we can mobilize the law on these new front lines to deliver justice—we may collectively ensure that a more humane world is forged. The ICC will play its part, now and in years to come.

Karim A.A. Khan KC was elected to serve as the third Prosecutor of the International Criminal Court, beginning his term in June 2021. Prior to that, he was an Assistant Secretary-General of the United Nations and served as the first Special Adviser and Head of the United Nations Investigative Team to promote accountability for crimes committed by Da’esh/ISIL in Iraq (UNITAD) between 2018 and 2021. He is a barrister and King’s Counsel with more than 30 years’ professional experience of international criminal law and human rights.