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Unfortunately, both these interpretations of the second paragraph are possible,
and this question has yet to be decided by the ICC judges. Their hypothetical support
of the exhaustive list would leave any cyber-attacks out of the scope of the crime
of aggression. Nevertheless, the approach of the open list is proposed here, not
only because of consideration of the drafters’ intention. The definition of an act of
aggression is seen in the first sentence of paragraph 2 Article 8 bis, and the requirements
of certain gravity, scale and character together with the demand of manifest violation of
the United Nations Charter (even in spite of ambiguity) provided by the first paragraph
Article 8 bis should sufficiently secure fulfilment of the principle of legality.
Conclusion
The international community was not able to settle on a definition of the crime of
aggression for more than fifty years. Achieving the compromise in Kampala represents
another step in a task of making “war less attractive to those who have governments and
the destiny of peoples in their power,”53 and should not be undervalued.
Nevertheless, the definition is hiding certain vague components to be solved by
interpretation; some of these issues and possible interpretative approaches were briefly
outlined above. Considering individual accountability for cyber-attacks in connection
with a crime of aggression, two main obstacles are awaiting for the prosecution. First
is the state link requirement in the definition of crime, since the majority of cyber-
attacks are executed by non-state actors with possible state involvement behind the
hackers.54 However the legal principles on attribution can help to bridge the gap
between the non-state actor and an accountable public official. The second possible
weakness lies in the interpretation of the act of aggression, particularly the notion of
the “armed force” element. It would be necessary to perceive cyber-attacks as a new
kind of weaponry in order to apply the definition of a crime of aggression to cyber-
attackers. Cyber-attacks are not per se excluded from satisfying the definition of the
crime; however, considering the high threshold vested in the definition, a majority
of them would probably stand outside of the scope of the definition of the crime
of aggression. But this is not necessarily seen as a weakness of the definition. The
crime of aggression is an exceptional international crime, and it is not a role of the
International Criminal Court to seek accountability for minor offences.55
53 JACKSON, R., Report to the President on the Atrocities and War Crimes, United States Department of
State Bulletin, (Government Printing Office) (1945), available at
imt/jack01.htm.
54 OPHARDT, J., supra note, p. 46.
55 See also Article 1 of the Rome Statute „.An International Criminal Court (‘the Court’) is hereby
established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over
persons for the most serious crimes of international concern“.