The first case is likely to be a Russian cyberattack targeting Ukrainian civilian critical infrastructure.

For years, some cybersecurity defenders and advocates have been calling for a Geneva Convention, a new international law on cyberwarfare, that would create clear consequences for anyone who hacks into critical civilian infrastructure such as power grids, banks and hospitals. as a result of. Now, the chief prosecutor of the International Criminal Court in The Hague has made clear that he intends to enforce these consequences — without the need for a new Geneva Convention. Instead, he made it clear for the first time that The Hague will investigate and prosecute any criminal hacking that violates existing international law, just as it does for war crimes committed in the real world.

In a little-known article published last month in the quarterly foreign policy analysisICC chief prosecutor Karim Khan spelled out the new commitment: His office will investigate cybercrimes that may violate the Rome Statute, which regulates the court’s prosecution of war crimes, crimes against humanity and more. and genocide.

“Cyber ​​warfare is not abstract. Rather, it can have a profound impact on people’s lives,” Khan wrote. “Attempts to impact critical infrastructure such as medical facilities or power generation control systems can have direct consequences for many people, especially the most vulnerable. Therefore, as part of the investigation, my office will collect and review evidence of such actions. “

When contacted by WIRED, a spokesperson for the prosecutor’s office confirmed that this is in fact the current official position of the office. The spokesperson wrote: “The Office believes that, in appropriate circumstances, conduct in cyberspace may constitute war crimes, crimes against humanity, genocide and/or the crime of aggression, and that such conduct may be subject to prosecution before prosecution by judicial authorities. .” The case is serious enough for the court. “

Neither Khan’s article nor his office’s statement to WIRED mentioned Russia or Ukraine. But the new announcement by ICC prosecutors that they intend to investigate and prosecute criminal hacking comes amid growing international concern over Russia’s cyberattacks on Ukraine both before and after Russia launched a sweeping incursion into the neighboring country in early 2022. Last March, the Human Rights Center at the University of California, Berkeley School of Law issued a formal request to the ICC prosecutor’s office, urging it to consider war crimes prosecutions for Russian hackers’ cyberattacks in Ukraine, even as prosecutors continued to collect more traditional Evidence of the physical war crimes Russia committed in its invasion.

Also Read:  How X Is Suing Its Way Out of Accountability

In the Berkeley Human Rights Center’s request, formally known as the Article 15 document, the Center focused on cyberattacks carried out by Sandworm, a group affiliated with Russia’s GRU military intelligence agency. Since 2014, the GRU and Sandworm have launched a series of cyberwarfare attacks on Ukrainian civilian critical infrastructure on a scale unprecedented in the history of the Internet. Their brazen hacking included targeting Ukrainian power companies, triggering the only two blackouts ever caused by a cyberattack, and releasing the data-destroying NotPetya malware, which spread from Ukraine to the rest of the world and caused more than 100 Billion dollar losses. Includes hospital networks in Ukraine and the United States.

While the Berkeley group’s submission initially focused on Sandworm’s 2015 and 2016 attacks on Ukraine’s power grid, the clearest example of a cyberattack with physical effects comparable to traditional warfare, it later expanded its argument to also include Sandworm The NotPetya cyber attack, which was the third attempt by hackers to disrupt Ukraine’s power grid, was another cyber attack on the Viasat satellite modem network used by the Ukrainian military, causing satellite modem outages across Europe.

Lindsay Freeman, technical director of the Center for Human Rights, said Khan did not explicitly mention Russia in the article, but that did not mean he was shying away from investigating Sandworm or other Russians involved in the attack in Ukraine. offense. Laws and policies. Instead, she viewed the article as a broader statement that hacking activities that violate international law would be considered part of any investigation by prosecutors. “In fact, not only did he say he was going to do it in Ukraine, but he was going to all Investigations are really important,” Freeman said. “Seeing that this is the reality of cyber warfare and that as an office they have to investigate every case — and that’s beyond what we’re pushing for, that’s a very important and A powerful move. “

Also Read:

Meanwhile, the Ukrainian government has launched an investigation into Russian war crimes committed through cyber attacks. As well as charging any Russian hackers or their superiors in their own court system, evidence from that investigation can now be provided to prosecutors at the International Criminal Court to help any case brought against Russia by prosecutors in The Hague.

In fact, six of Sandworm’s hackers are already facing indictment in the United States for cyberattacks on networks in Ukraine and the 2018 Pyeongchang Winter Olympics in South Korea. But Freeman noted that the charges against Russian hackers in The Hague will have wider implications: 123 countries are parties to the Rome Statute and therefore agree to help detain and extradite convicted war criminals. These include countries that do not have extradition treaties with the United States, such as Switzerland and Ecuador. Freeman noted that Hague’s remit covers not only the keyboard hackers themselves but also the command structures above those hackers, raising the possibility of new charges against senior Russian military officials and even Russian President Vladimir Putin himself.

In terms of legal precedent, Khan’s statement that the prosecutor’s office in The Hague now views hacking as a potential breach of international law is “novel but not surprising,” said Bobby Brown, director of the Strauss Center for International Security and Law at UK University. Chesney said. Texas College of Law. “I don’t think anyone who takes international law seriously would dispute that, at least in some circumstances, civilians can be intentionally harmed by cyber means in a manner that constitutes an attack and therefore violates the Rome Convention,” Chesney said, stating that the statute states Combatants differentiate between civilian and military targets.

Also Read:  Beware Your ChatGPT Plugins

Chesney said he was more interested in other parts of Khan’s article that mentioned disinformation as a separate area of ​​concern and “gray zone” tactics that “operate between war and peace.” As a precedent for charging sources of false information under international law, Chesney pointed to rare incidents such as the 1994 conviction of a broadcast journalist by the International Criminal Court for helping to incite the Rwandan genocide. Investigating or charging hacking that occurred outside of the context of war, as Khan’s article seems to suggest, would be a newer area of ​​violation of international law.

But Freeman of the Human Rights Center believes that any commitment to investigate and potentially charge cyberwarfare crimes is a historic moment, given that ICC prosecutors have limited resources and discretion in choosing which cases to prosecute. “Just look at the way cyber is used in warfare, [Khan] I think that’s really important to consider that that’s his remit and to see things that are worthy of investigation as priorities within his discretion,” she said.

Khan clearly thinks the stakes are just as high: He ends his article by quoting (or perhaps misquoting) Albert Einstein’s concern that “technology will overtake our humanity.”

“There is no doubt that we will be tested,” Khan wrote. “But by working together – and especially by believing that we can use the law to deliver justice on these new fronts – we can together ensure a more humane world. The ICC will play its role now and in the years to come. .”

Categories: Security