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

a grave breach of common Article 3 to the 1949 Geneva Conventions, and willfully killing or causing serious injury to civilians, what violates the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (see 18 US Code § 2441(b)) 589 . Despite a transparent system for prosecuting and trying war criminals, the USA is not willing to do so, at least in the context of its citizens. Committing a war crime in cyberspace is one of the main reasons for the inability to find the person responsible for such acts. Nowadays, technology offers great opportunities to remain anonymous online, which is often exploited by official and unofficial hacker groups (concerning cyber armies and “common” hackers). An additional complication is the concealment of criminals by their state authorities. Unfortunately, in the case of the USA, a large number of war crimes committed by US soldiers in Afghanistan were concealed, or even, in the case of evidence confirming the commission of war crimes, those responsible were not held accountable 590 . This is particularly evident in the conflict between the USA and the ICC. Although the US government actively participated in the negotiations on the ICC Statute, it is not a party to this international agreement 591 . The conflict culminated in 2020 when the ICC agreed to commence an investigation into alleged crimes under the jurisdiction of the Court in relation to the situation in Afghanistan 592 . The investigation was supposed to include the activities of US armed forces in the country from 2003 to 2004. The US response was to impose sanctions on individuals connected with the ICC. President Donald Trump issued legislation blocking the property of certain persons associated with the ICC 593 . In addition to economic sanctions, individuals involved in the work of the Court (e.g., lawyers, judges) could be banned from entering US territory. The reluctance to prosecute war criminals or those who otherwise violate international law who are members of the U.S. armed forces or citizens of this country does not correlate to prosecuting citizens of other countries who commit such acts. An example of this is the indictment of GRU soldiers who, known as SandWorm, committed cyberattacks on Ukrainian energy infrastructure in 2015 and 2016. 594 589 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, 3 May 1996, 2048 UNTS 93. 590 Ning YB, ‘How US Evades Responsibility for War Crimes in Afghanistan’ ( Global Times , 27 September 2021) accessed 30 October 2023. 591 Amann DM, Sellers MNS, ‘The United States of America and the International Criminal Court’ (2002) 50 The American Journal of Comparative Law 381, pp. 381-383. 592 ICC Judgment on the appeal against the decision on the authorisation of an investigation into the situation in the Islamic Republic of Afghanistan , Judgment [2020] ICC-02/17-138. 593 Blocking Property of Certain Persons Associated with the International Criminal Court, 11 June 2020, Executive Order 13928. 594 ‘Six Russian GRU officers charged in connection with worldwide deployment of destructive malware and other disruptive actions in cyberspace’ ( United States District Court Western District of Pennsylvania , 19 October 2020) accessed 30 October 2023.

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