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

Conventions (AP I) 581 and Article 13(2) of Additional Protocol II to the 1949 Geneva Conventions (AP II). 582 Those responsible for modifying relevant data in a patient’s file would be responsible for intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities (see Article 8 (2)(b)(i) and Article 8 (2)(e)(i) of the ICC Statute). The second example is the intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated (see Article 8 (2)(b)(iv) of the ICC Statute). A cyberattack targeting a nuclear power plant or other nuclear facilities could cause civilian harm and environmental damage. This is due to the radiation released into the atmosphere when a facility caused by a cyberattack explodes. IHL prohibits attacking facilities that contain dangerous forces (see Article 56 of PD I and Article 15 of PD II). The last example is an attack directed at buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives (see Articles 8(2)(b)(ix) and 8(2)(e)(iv) of the ICC Statute). An attack targeting a hospital that could cause civilian deaths has already been described above. Obviously, there is the possibility of a cyberattack that would disable the hospital as a whole. Such a situation occurred in March 2020 when an unknown group of hackers attacked a hospital in Brno (Czech Republic), preventing aid to people infected with the SARS-CoV-2 virus. 583 Conducting such an attack during and connected with an armed conflict would establish a war crime. 1.3 Individual criminal responsibility The commission of a war crime gives criminal responsibility to the individual. Anyone who commits the crime itself, but also anyone who ordered the commission of the crime, assisted in the commission of the crime, or in any other way contributes to the commission of the crime is responsible for the serious violations set out in the ICC Statute (see Article 25(3) of the ICC Statute). A necessary element of an individual’s criminal responsibility is the intent to commit the crime. The person committing it knows that he is committing a war crime within the meaning of the ICC Statute ( mens rea , see Article 30 of the ICC Statute). The vast majority of offenses are committed with dolus directus , but some of the elements of the criminal act will also be fulfilled with dolus eventualis or through recklessness. 584 581 Additional Protocol to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 UNTS 3. 582 Additional Protocol to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, 2404 UNTS 609. 583 ‘Brno University Hospital ransomware attack’ (2020) accessed 30 October 2023. 584 Schmitt M, Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (CUP, 2017), p. 392.

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