New Technologies in International Law / Tymofeyeva, Crhák et al.

a non-international character (NIAC). Serious violations of common Article 3 to the 1949 Geneva Conventions, which are listed as a closed catalog, e.g., violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture, should also be considered war crimes (see Article 8(2)(c) of the ICC Statute). Besides the legal definition found in the ICC Statute, special attention should be given to additional grounds described in the jurisprudence of international criminal tribunals. An example of this is the so-called Tadić test , which was cited in the case of the President of the Local Board of the Serb Democratic Party. 577 According to this, four conditions must exist to establish war crimes: the violation must constitute an infringement of a rule of international humanitarian law, the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met, the violation must be “serious”, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim, the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule. 578 An important factor is to link the war crime to the armed conflict taking place. The purpose of this is to distinguish “ordinary” crimes from crimes committed in the context of an armed conflict. This was pointed out by the ICTY, which stated that the place where the crime was committed was irrelevant, the mere fact that it was connected with an armed conflict taking place on the whole territory of a given state (IAC) or over the entire territory under the control of a party to the conflict (NIAC) was sufficient. 579 1.2 War crimes in cyberspace To date, neither national courts nor international tribunals have tried those responsible for war crimes committed in cyberspace. Of course, this does not mean that such crimes cannot occur in the future. Neither the countries’ domestic law cited in the text nor international law directly regulates criminal activity in cyberspace. Still, by applying an analogy from the ICC Statute, several possibilities for such crimes can be envisaged. Three possibilities of committing war crimes in cyberspace will be presented below. It should be noted that the catalog presented is illustrative, and there may be more possibilities. The first example is an attack aimed directly at the civilian population, primarily individuals civilian. Adversary forces using malware can attack hospitals by modifying critical information in patient records. 580 By modifying a patient’s medical information, a doctor could make the wrong treatment decision, thus leading to the patient’s death. Such action violates Article 51(2) of Additional Protocol I to the 1949 Geneva 577 ‘Case Information Sheet: Duško Tadić’ accessed 30 October 2023. 578 ICTY, Prosecutor v. D. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction , IT-94 1 (2 October 1995). 579 ICTY, Prosecutor v. Kunarac et al., Appeals Chamber Judgement, IT-96-23 & IT-96-23/1-A (12 June 2002), para 57. 580 Schmitt M, Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (CUP, 2017), p. 423.

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