Could Russian Cyber Attacks Be Viewed as War Crimes? Ukraine Puts Together a Case for the UN

by | Jan 16, 2023

The realm of cyberspace has thus far operated by different rules than real-world battlefields, with much more tolerance for incursions that involve espionage or even damage to virtual assets. That line might be redrawn if Ukraine can successfully make a case to the UN International Criminal Court (ICC) that Russian cyber attacks during the invasion should be regarded as war crimes.

The core of Ukraine’s case is that Russian cyber attacks have directly accompanied shellings and bombings of critical infrastructure companies, creating real world damage that impacts civilians. Ukraine is asking the ICC’s Office of the Prosecutor to open an investigation into the possibility, but would have high bars to clear in demonstrating the seriousness of the impact to civilians in terms of meeting the established legal standard of war crimes.

Ukraine pushes ICC to take up cyber war crimes question

Most countries do not have very firm policy as regards cyber activities in general, with the unspoken rule being not to damage each other’s critical infrastructure or do real world damage that harms people (such as causing industrial accidents by hacking controls) to avoid provoking any response beyond sanctions. Russian cyber attacks have been regularly crossing the critical infrastructure line in Ukraine for nearly a decade now, however, as the invading country has caused power outages numerous times. Ukraine now feels that these incursions paired with wartime shellings merit a war crimes charge.

The ICC has been as relatively quiet on the cyber question as most government entities have. But it does have formal standards for war crimes that petitioners must show evidence of. This is where these charges tend to lose footing, as even if the high standards (that generally involve loss of life and limb) can be met the attacks must also be clearly attributable to the party being charged. The Russian cyber attacks rarely leave such clean trails, and are often attributed from collections of circumstantial evidence rather than demonstrable certainty.

Ukraine documents tens of thousands of alleged war crimes, some tied to Russian cyber attacks

The Ukraine petition to have the Russian cyber attacks regarded as war crimes is spearheaded by Victor Zhora, chief digital transformation officer of the State Service of Special Communication and Information Protection (SSSCIP). The argument ties them to certain specific shellings or assaults on electric utilities, telecommunications companies and other forms of critical infrastructure that impact citizens when they are put out for extended periods. In May 2022 human rights activists with UC Berkeley made a very similar argument to the ICC, specifically regarding the Russian state-backed Sandworm group and its specialized malware crafted to target power stations and industrial control systems.

Ukraine has reportedly documented over 34,000 alleged war crimes since the start of the invasion, but it appears only a fraction involve Russian cyber attacks. Zhora named several specific cases in Odessa, Lviv, and Mykolaiv that the country feels merit a war crimes charge.

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