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

The ICL also provides criminal responsibility for the commander and other superiors. The ICC Statute identifies three situations in which the commander’s responsibility will arise: when he orders the conduct of an operation that fulfills elements of a war crime, when he knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes, or when he failed to take all necessary and reasonable measures within his power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution (see Article 28 of the ICC Statute). Nowadays, most world powers have cyber army units, e.g., U.S. Cyber Command (USA) or the Russian military intelligence service GRU (Unit 74455). In such a case, identifying the soldier responsible for committing a cyberwar crime and his commander should not raise a problem, provided that the state of the armed forces is willing to prosecute them. Law enforcement faces a much greater challenge when civilians, known as hackers, commit war crimes. Often these are informal groups of civilians cooperating with special services, remaining fully anonymous, such as the Russian Business Network (RBN). 585 The inability to identify hackers limits their prosecution for war crimes. 2. War crimes in domestic law The seriousness of war crimes has led the international community to create a system that would ensure the efficient trial of those who commit such acts. The creation of the ICC follows the steps taken to organize this system. However, the ICC Statute itself prioritizes national courts in conducting criminal proceedings against war crimes perpetrators (see Article 1 of the ICC Statute). This approach entails the creation of national regulations to enable the prosecution and subsequent trial of war criminals. 2.1 War crimes in American law America’s war crimes legislation came first in 1996 when President Bill Clinton signed the War Crimes Act 1996. 586 The Act was amended three times over the next ten years, with the most significant amendment introduced by the Military Commissions Act 2006. 587 A member of the US armed forces or a US citizen who has committed a war crime may be prosecuted. Under the definition set forth in the Act, a war crime is a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party (it should be noted that the US is not a party to the PD I and PD II), violation of prohibition by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907 (1907 Hague Regulations) 588 , 585 Rzeszuta M, ‘Sieć. Piąty Teatr Działań Wojennych: 2008 – Informatyczna Blokada Gruzji’ (2020) Układ Sił 23, p. 52. 586 ‘18 U.S. Code § 2441 – War crimes’ ( Cornell Law School ) accessed 30 October 2023. 587 Military Commissions Act 2006 (c 5) USPL 109-366 (2006). 588 Convention (IV) Respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, 18 October 1907, 36 Stat. 2277.

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