Shuchi Agrawal and Rupam Das, third year students of Jindal Global Law School pursuing B.A., LL.B. (Hons.) course.
DATE OF PUBLICATION- 10/03/2021
In the recent past, there have been many developments in the field of the internet and cyberspace. The internet has linked people and communities, separated by geographical and cultural boundaries, and has transformed the world into a global village. However, the growing influence of cyberspace and the internet has introduced the possibility of cyber-commission of a crime within the jurisdiction of the International Criminal Court (hereinafter “ICC”). The Rome Statute, which is the principal statutory document of the ICC, recognizes four core crimes – genocide, crimes against humanity, war crimes and crime of aggression. The crime of genocide is defined under Article 6 as including the killing of individuals with the intention to destroy, in whole or in part, an ethnic, national or religious group. Relevantly, genocide has been considered the “ultimate crime”and the most severe violation of human rights. Further, Article 25 of the Rome Statute lays down the different modes of individual criminal responsibility. This arrangement of criminal responsibility implies that individual actors who participate in the commission of a core crime can be prosecuted for their role in the concerned crime. One of the modes in which an individual may be criminally responsible is by directly and publicly inciting genocide.
The unique features of cyberspace make it possible for an individual to incite genocide remotely. The devastating effects of such incitement may occur in a place where the inciter may not be physically present. The use of cyberspace in committing incitement is not an obscure possibility, as the utilization of social media posts in Myanmar has indicated. Situations involving the usage of cyberspace for incitement have led to the problem of invoking territorial jurisdiction of the ICC. Since cyberspace is a non-physical space, therefore territorializing it, so as to bring it within the ICC’s jurisdiction has been a difficult proposition.
Establishment of ICC’s Jurisdiction
Article 13 of the Rome Statute mentions the situations under which the ICC may exercise jurisdiction over a case, including in the event of a state party referral under Article 14 or when the prosecutor takes suo moto cognizance as per Article 15. The ICC can exercise its jurisdiction in the above-mentioned instances if a case satisfies the pre-conditions laid down under Article 12. Article 12(2) is of particular relevance in determining the ICC’s jurisdiction in the context of cyberspace, as it deals with the unique situation where an accused may be a national of a different country from the one in which the conduct relating to the crime actually occurs. In such an event, the ICC requires that at least, either the nationality state of the accused, or the territoriality State, be a party to the Rome Statute, or may have accepted the court’s jurisdiction. The territoriality state being the state where the “conduct in question” occurs.
The predicament regarding the ICC’s jurisdiction over crimes committed in cyberspace has been discussed in great detail by presenting a hypothetical. The hypothetical in question presents a situation where a Russian blogger in Moscow uses a website hosted by a Russian server to incite individuals to commit genocide in a state which is a party to the Rome Statute. It is pertinent to note that Russia is not a party to the Rome Statute. In such situations, the Pre-Trial Chamber of the ICC would have to determine whether the ICC would have jurisdiction in such a case, and how.
Extending ICC’s Jurisdiction Over Crimes Committed in Cyberspace
The “conduct in question” mentioned in Article 12 refers to the acts which may give rise to individual criminal liability that natural persons may possess under Article 25 of the Rome Statute. However, if an individual incites genocide through cyber-space, and the nationality state refuses to accept the ICCs jurisdiction, then the determination of the State of territoriality assumes great importance. In such an event, three different approaches may be adopted to support ICC’s jurisdiction.
Firstly, the ICC Statute and its travaux préparatoires suggest that incitement is an inchoate crime, implying that the mere display of such material would constitute the offence. Hence, the location of the display of the inciting material would determine the State of territoriality. This approach has been employed by national courts in deciding cases related to online display and this argument helps territorialize cyber-space, a non-physical space. Moreover, communications in cyberspace occur through a combination of locations such as the ‘content provider, the host server, the user server and the user.’ Without the presence of any of these links, ‘the act of display over the internet to a user cannot take place.’ Thus, the presence of any of these links in a State would grant it the status of being the state of territoriality. The availability of the inciting material in a State Party territory would be sufficient for asserting territorial jurisdiction. Further, this interpretation was followed in the Yahoo! Auction cases, where France had a law criminalizing the ‘displaying and selling of Nazi-related items in an auction site.’ The French court decided that it had jurisdiction in the case despite the fact that the server was located in the United States, and maintained by a United States company. The courts applied access based jurisdiction in the Yahoo! Case by claiming that mere display of Nazi items was a crime within their territory.
Secondly, the effects doctrine can be invoked if the crimes are committed in cyberspace, which is a border-less arena, but has real-world effects in ‘physical world legal jurisdictions.’ Jurisdiction can be exercised if the effects of a crime take place in State Party territory. The effects doctrine of jurisdiction requires countries to interpret criminal law in a manner that supports the contention, that the territory in which the effects of an act manifest or where a constitutive element is located, is the state of territoriality, irrespective of the location of the offenders. Further, in cases where information has been published on websites, the servers of which are located in one country and the effects of publication result in an offence in another country, jurisdiction over the matter lies with the latter. Hence, the ICC may exercise jurisdiction even in the cases where the host server is located in a state which is not a party to the Rome Statute if the effects have manifested in a State party to the ICC Statute. In addition to this, the actual attempt to commit genocide is not requiredto convict an individual for incitement.
Lastly, another alternate approach could also be employed to claim jurisdiction by claiming conduct in cyberspace to be a new manner of committing a crime or by asserting that acts done in cyberspace aid in the incitement and commission of such crimes. As per this line of reasoning, the display or publication of inciting material could be considered a novel form of incitement. Consequently, cyberspace acts which result in physical impact may constitute ‘acts of genocide’under Article 6(a).
Conclusion
With increasing growth and developments in the field of technology and cyberspace, it is imperative for the ICC to determine the scope of its jurisdiction with regard to cyberspace. The ICC needs to adapt to the technologically fast-paced world that we live in and develop its jurisprudence to retain relevance and provide justice. Moreover, ICC’s preamble establishes that the Court is determined to stop impunity for the perpetrators of crimes. However, in case of incitement to genocide in cyberspace, if the nationality state refuses to accept the ICC’s jurisdiction, then it is important for the Court to engage with the question of cyberspace and determine the territoriality state. Its failure to do so would constitute a travesty of justice and would defeat the mission of the Court, as was recognised in the Kampala declaration. In the interest of justice, it is important to maintain that what is considered an offence offline must be considered an offence online. Consequently, the ICC must interpret its jurisdiction in a manner so as to bring incitement of genocide in cyberspace within the ICC’s jurisdiction.