124 / 464
110
KRISTÝNA URBANOVÁ
CYIL 6 ȍ2015Ȏ
Annex II of the amending resolution – Amendment of the Elements of Crimes,
the term “manifest” is an objective qualification. There is no requirement to prove
that the perpetrator has made a legal evaluation as to the “manifest” nature of the
violation of the Charter of the United Nations.
35
The threshold was the subject
of many debates during the preparation work and reflects the interest to avoid
international criminal prosecution in cases of border skirmishes or other examples
of use of force of less gravity.
36
Although, critics are sceptical over the vagueness of
the term “manifest“, pointing to the legal uncertainty of the concept,
37
its purpose–
to avoid criminalization of minor acts has been fulfilled. Besides, the possibility to
set out such an objective threshold and provide more legal certainty by any other
different term is doubtful.
38
It is argued here that cyber-attacks are able to reach and cross over the quantitative
and qualitative threshold (gravity, scale, character and manifest violation). In today’s
highly technologically developed world crucial national services and infrastructure
are controlled by the computer system. This includes emergency services, energy
infrastructure, the water system, transportation, agriculture, etc.
39
It was stated above
that, in the Estonian example, the national emergency services system was briefly
interrupted. Such a short interruption would not satisfy the threshold set out by the
definition, but the example illustrates the vulnerability of key national services to
attacks from cyberspace. Moreover, the environmental damage in Australia caused by
the cyber-attack on a sewage and water treatment plant in 2002, or the deviation of
the control system of the Ohio power plant for several hours
40
just typify the possible
devastating effects of cyber-attacks. The threat through cyber-space might be seen
as too abstract and remote; however deprivation of a nation’s food, water or energy
supply could be achieved without firing a simple shot from a gun. The successful
elimination of these key components of a state’s functions through a cyber-attack
could be of the same gravity as an airstrike on the state’s infrastructure. The gravity
and character would not be enough for the criminalization of an act of aggression;
manifest violation of the UN Charter would have to come jointly. The cases of the
Stuxnet or Orchad examples illustrate that a cyber-attack may be used in such a
manner, as well that they might be used
against the sovereignty, territorial integrity
35
Annex II, Resolution RC/Res.6 of the Review Conference of the Rome Statute, adopted at
the 13th
plenary meeting, on 11 June 2010.
36
KRESS, C., Time For Decision: Some Thoughts on the Immediate Future of the Crime of Aggression:
A Reply to Andreas Paulus,
European Journal of International Law,
no. 20, 2009, 1129- 1146. p. 1138.
37
GLENNON, M., The Blank-Prose Crime of Aggression,
The Yale Journal of International Law
, vol. 35,
2010, 72-114, p. 100.
38
AMBOS, K., The crime of aggression after Kampala, G
erman Yearbook of International Law,
vol. 53,
2010, 463-509, p. 478 and 479.
39
SOLCE,
supra
note 7, p. 202-203.
40
Ibid.
, p. 203.