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

law. This approach of national justice bodies is an obstacle to fulfilling their obligations under international agreements to prosecute war criminals. Another threat in trying war criminals operating in cyberspace is remaining anonymous online. This problem has already been described in the case of the American legal system (see page 8). 2.3 War crimes in Chinese law China’s criminal law lacks provisions on the criminalization of war crimes. 602 The doctrine suggests that the only way to hold war criminals criminally responsible for their actions is to use an analogy from other provisions that criminalize specific conduct, such as Article 232 of the Chinese Penal Code (homicide). 603 The lack of appropriate national regulation, together with the non-ratification of the ICC Statute, constitutes a serious threat to the trial of those responsible for war crimes. It should be noted that most of the crimes that can be committed in cyberspace are carried out by hacker groups unofficially connected with governments (e.g., the RBN, which committed cyber attacks for the benefit of Russia, during the armed conflict in Georgia in 2008). 604 As China has not ratified the ICC Statute, the only way to exercise ICC jurisdiction over crimes committed by Chinese nationals is for the United Nations Security Council (UNSC) to refer the case to the ICC Prosecutor under Article 13 of the ICC Statute. It should be noted here that China is a permanent member of the UNSC, and its veto will stop the above-mentioned procedure. Thus, war criminals will go unpunished under domestic law, and the ICC will not be able to proceed against them. 2.4 War crimes in Russian law The issue of war crimes in the Russian legal system was first addressed in 1965 when the Decree on Punishment of War Criminals was issued. 605 Its provisions applied to all nations of the Soviet Union that suffered during WW II. Accordingly, those who committed war crimes during WW II were subject to prosecution and punishment. Currently, the punishability of war crimes is derived from the 1996 Criminal Code. 606 It regulates criminal responsibility for cruel treatment of prisoners of war, deportation of civilians, the pillage of national property on occupied territory, and use in armed conflict of means and methods of warfare prohibited by international treaties to which Russia is a party. Despite the appropriate regulation of criminal responsibility of war criminals, Russia does not prosecute its citizens based on these laws. There have been numerous 602 Criminal Law of the People’s Republic of China, PRC (1997). 603 Deng H, ‘What can China do to develop International Criminal Law and Justice further from the perspective of the International Criminal Court?’ (2016) 5 Revista Tribuna Internacional 9, p. 26. 604 Swanson L, ‘The Era of Cyber Warfare: Applying International Humanitarian Law to the 2008 Russian Georgian Cyber Conflict’ (2010) 32 Loyola of Los Angeles International and Comparative Law Review 303. 605 Practice Relating to Rule 158. Prosecution of War Crimes accessed 30 October 2023. 606 Criminal Code of The Russian Federation No. 63-Fz of 13 June 1996, Russian Federation (1966).

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