Episode 84 – Cybercrimes as war crimes with Lindsay Freeman

Lindsay bottom left, with Stef bottom right, Janet top right, and Margherita top left

The International Criminal Court’s lead prosecutor has said he intends to investigate and prosecute cybercrimes that violate international law.

In a recent article published in Foreign Policy Analytics, the ICC’s chief Prosecutor, Karim Khan, said that international criminal justice “can and must adapt” to states and other actors who, he says, are increasingly resorting to cyberattacks.

“Cyber warfare does not play out in the abstract. Rather, it can have a profound impact on people’s lives,” he wrote.

At a recent side event during the United Nations General Assembly, Kahn added that he hopes to put out a policy paper on cybercrimes in 2024.

It comes at a time when the ICC itself has been the target of cyberattacks, with the international court saying earlier this month it had experienced a “cybersecurity incident”. The Dutch National broadcaster, NOS, reported that a hacker had gained access to a large number of sensitive documents. The ICC has not confirmed this.

This week we sit down with Lindsay Freeman, Director of Technology, Law & Policy at UC Berkeley’s Human Rights Center to talk about cyberthreats. Specifically Russian hacking activities that could constitute a violation of international law.

Lindsay and colleagues have submitted two briefs, called Article 15 submissions, to the Office of the Prosecutor at the ICC. They highlight five incidents of Russian cyberattacks against Ukraine, which she believes could be considered war crimes under the Rome Statute.

For recommendations this week Lindsay highlighted the arrest warrant of Libyan commander Mahmoud Al-Werfalli. A case where social media content became key evidence in the case and led to the drafting of the Berkeley Protocol on Digital Open Source Investigations.

And keeping with the themes of cybersecurity and hacking, Lindsay also recommends Scott Shapiro’s book, Fancy Bear Goes Phishing, as well as the BBC podcast on alleged North Korea activities: The Lazarus Heist.