By: Zachary Orr
Russia’s use of offensive cyber operations to further its illegal war against Ukraine has prompted calls for a response to these cyber operations from the International Criminal Court. However, the International Criminal Court is an inadequate forum for adjudicating
cyber conduct in armed conflict because cyber operations fit awkwardly into the traditional war crimes legal framework. Furthermore, the Rome Statute’s strict substantive and procedural features provide strict limitations on the kinds of cyber conduct that might constitute a war
crime against which the Prosecutor of the International Criminal Court could bring an effective case. Because most cyber conduct does not produce kinetic effects, the established framework of international humanitarian law that the Rome Statute reflects does not comprehensively regulate the unique domain in which cyber operations occur.
This Note argues that observers have overlooked a more promising way of addressing illegal cyber operations in armed conflict: the right to life under international human rights law. As a more malleable body of law that mutually reinforces international humanitarian law,
human rights law—and the right to life, in particular—can capture more cyber conduct and hold armed actors accountable for their harmful effects on civilians. Addressing cyber operations through human rights law will also accelerate the development of the law governing cyber operations and encourage a more interdisciplinary approach to evaluating how the cyber domain is governed by complementary fields of international law.