CYIL Vol. 6, 2015

THE KAMPALA AGREEMENT ON CRIME OF AGGRESSION … the relationship between the state officials and private actors might be very remote and hardly investigated today. There is no need any more for physical contact, when communication can be easily arranged through the internet and funds could be transferred through a series of offshore accounts via virtual operations. Furthermore the supply of malicious software developed by a state agency might leave traces of a different kind, but still traces, as a supply of riffles. Admittedly, in the case of cyber-attack the prosecution would probably face serious challenges with the identification of the perpetrator who was actually sitting by the computer in concern. 31 However, the investigation of serious international crimes is never an effortless and cheap task, 32 and even in the course of a “non-cyber” related investigation, the ICC Prosecutor has already tasted the hardship of collecting sufficient evidence in order to prove the appropriate relationship between the executors of crimes and those who were allegedly behind them. 33 The complementary regime of the Rome Statute makes the ICC dependent on a state’s cooperation and on the national police services’ willingness and effectiveness. Successful investigation can be hardly expected if states deliberately refuse to investigate the possible crime or lack appropriate technological equipment. But all these difficulties apply to the investigation of cyber-attacks and the investigation of “traditional” attacks by non-state actors comparably, with an emphasis on growing needs for sophisticated technological sources on a states’ side. 3.2 The character, gravity and scale of an act of aggression From paragraph 1 of Article 8 bis it is further obvious that the definition of crime of aggression is based on the occurrence of the act of aggression as a necessary element of the commitment of the corresponding crime. However, from the last sentence of the first paragraph it is also clear that not every act of aggression qualifies as a crime of aggression , even if all other conditions of the definition are satisfied. Only those acts of aggression which by their character, gravity and scale, constitute a manifest violation of the Charter of the United Nations, are able to establish individual criminal responsibility for the crime of aggression. According to Annex III to the Kampala Resolution 34 it is an unconditional requirement to fulfil at least jointly two of the three (character, gravity or scale) requirements cumulatively. Yet, that still is not enough, since the violation of the UN Charter must as well be manifest . Under 31 LESSIG, L., The Law of the Horse, what Cyber law might teach, Harvard Law Review , vol. 113, 1999, 501-546, p. 514. 32 International Criminal Court, Report of the Committee on Budget and Finance on the work of its Twenty-Third session, 18 November 2014, ICC-ASP/13/15. 33 International Criminal Court, Trial Chamber V(B), Decision on the withdrawal of charges against Mr Kenyatta of 13 March 2015, The Prosecutor v. Uhuru Muigai Kenyatta , No.: ICC-0l/09-02l11 34 Resolution RC/Res.6 of the Review Conference of the Rome Statute, adopted at the 13th plenary meeting, on 11 June 2010.

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