Ukraine Symposium – Accountability for Cyber War Crimes


| Apr 14, 2023

Cyber war crimes

In our digitally connected and technology-dependent world, cyber-attacks on critical infrastructure such as electric power grids, water treatment facilities, and industrial control systems have far-reaching safety and security consequences. When these attacks are directed at civilian targets in an armed conflict, they can and should be considered war crimes.

Since Russia’s full-scale invasion of Ukraine in February 2022, the world has witnessed the worst horrors of war, shocking the conscience of the global community. However, unlike the bombardment of civilians in Syria, imprisonment of Uighurs in China, or violent crackdown on protesters in Iran, multiple forums exist for adjudicating war crimes committed in Ukraine. These include the International Criminal Court (ICC), Ukraine’s national courts, the national courts of other countries pursuant to the principle of universal jurisdiction, and possibly a new hybrid or international tribunal that could be established by the United Nations General Assembly.

The numerous avenues for accountability for international crimes committed in the Russia-Ukraine conflict allow for creative thinking about how to achieve many goals of the international criminal justice system. In addition to the specific objectives of establishing the truth, holding the perpetrator accountable, and compensating the victim with reparations, international judicial bodies can crystalize norms, strengthen legal protections for civilians, and set innovative legal precedents that advance and modernize international law.

As an early conflict to feature a major cyber power’s deployment of cyber means and methods of warfare, this conflict presents a unique opportunity to achieve these broader objectives. In March 2023, Berkeley Law’s Human Rights Center filed a second “article 15 communication” with the ICC Prosecutor on cyber war crimes in Ukraine. The submission presents the case for charging five Russian cyber-attacks against Ukraine’s critical infrastructure as war crimes. This post summarizes the key legal questions raised in the submission, namely: what constitutes “attacks,” “objects,” and “military objectives” in cyberspace?

What Constitutes an “Attack” in Cyberspace?

A threshold issue is whether a cyber operation constitutes an “attack” under international humanitarian law (IHL) and article 8 of the Rome Statute. Russian cyber operations against Ukraine encompass a range of activities, not all of which meet the requisite threshold. For example, hacking for surveillance purposes and espionage would not qualify as attacks. The term “attack” is not defined in the Court’s statute, nor is there an agreed upon definition in ICC jurisprudence. In Prosecutor v. Ntaganda, the Appeals Chamber considered this question, issuing four separate opinions with wide disagreement among the judges.

In Ntaganda, the Prosecutor adopted the definition of “attacks” under Article 49 of Additional Protocol I (AP I) to the Geneva Conventions, defined as “acts of violence against the adversary, whether in offence or in defense.” In its commentary to AP I, the International Committee for the Red Cross (ICRC) explains that the term “violence” can refer to either the means of an operation, or to its effects. This definition does not specify that the act must be physically violent or result in physical consequences, although that is how many legal traditionalists interpret it.

This narrow interpretation of the law, however, is at odds with the object and purpose of IHL, as well as with society’s broadening interpretation of the word “violence,” which has come to be used to describe acts that are not just physical, but psychological and emotional, economic, or digital. Thus, in 2023, it is appropriate to adopt a broad interpretation of the term “violence.”

The issue of what constitutes an “attack” gets more complicated when applied in cyberspace. It is widely accepted by States and academics that cyber operations expected to cause death, injury, or physical damage constitute attacks under IHL. Rule 92 of the Tallinn Manual 2.0 reflects this position. However, a growing contingent of scholars and States has recognized cyber operations that cause a loss of functionality (without physical damage) as attacks. Under this approach, loss of functionality occurs “where the targeted equipment or systems no longer provide the service for which they were implemented, whether temporarily or permanently, reversibly or not.” The ICRC and key ICC member States such as Japan, Germany, and France have adopted this position. The Human Rights Center’s submission similarly concludes that treating loss of functionality as an attack is most consistent with the object and purpose of IHL’s rules on the conduct of hostilities, and strongly advocates that the ICC adopt this approach.

What Constitutes an “Object” in Cyberspace?

A second issue is whether the attack was directed at “civilian objects,” which raises the question of whether electronic data constitute an object. During this conflict, Russian perpetrators have deployed more than 15 types of wipers, a type of malware designed to destroy data and systems. Given that the target of cyber-attacks is often civilian, we must consider whether such data qualify as objects under IHL and the Rome Statute.

While the Rome Statute refers to attacks on “objects” in several provisions, it does not define this term. AP I defines civilian objects simply as those that are “not military objectives,” which is not helpful in addressing whether an intangible item of value fits the definition. In general, there are several alternative definitions for the term “object,” some of which explicitly include the word “material” or “physical,” but others that do not. One of the legal definitions provided describes an object as “something toward which thought, feeling, or action is directed.” In our increasingly digitized world, removing the tangibility requirement is logical. Otherwise, a strict interpretation would lead to the contradictory outcome that, for example, hard copies of wills and medical files are protected, while their corresponding digital versions are not.

During the drafting of the Tallinn Manual, members of the International Group of Experts diverged on whether data constitute an object. However, in recent years, an increasing number of scholars has shifted its position to accept that, at least in some circumstances, data are objects. The Tallinn Manual conversations occurred before the full-scale Russian invasion of Ukraine and the aggressive, unprecedented use of wipers. This type of scenario was never offered as a hypothetical case during their debates. Now that we have a real-world example of how cyberwar unfolds in practice, and how the deletion of data is an integral part of military strategy, as well as a means of punishment against the civilian population, it is very possible that we are headed towards a consensus that data constitute objects.

Given the inherent value and practical importance vested in data in modern life, the ICC should take a broad interpretation of the term “object” to encompass electronic data. This view is consistent with that of the ICRC and key ICC States Parties such as Germany, Estonia, and France.

What Constitutes a “Military Objective” in Cyberspace?

Finally, the prosecution must prove that the civilian objects were not “military objectives.” This is a challenging feat when dealing with digital systems that might support both civilian services and military operations. Article 52 of AP I defines military objectives as “objects which by their nature, location, purpose, or use, make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.” In addition, Article 52(3) specifies that, “In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.” Thus, there is a treaty-based presumption that objects enjoy civilian status.

The definition translates into a two-prong test. First, the object must, by its nature, location, purpose or use, make an effective contribution to military action. The “nature” of an object denotes its intrinsic character. It must be endowed with some inherent attribute which makes an effective contribution to military action, for example, a military base or weapons depot. The “purpose” of a military objective is concerned with the intended future use of an object, while that of “use” is concerned with its present function. The “location” of an objective concerns a specific land area that can be regarded per se as a military objective, for example, a mountain pass of strategic value. Critically, these factors are predicated on the reasonably anticipated intentions and actual activity of the adversary, not on hypothetical scenarios or guesswork. While military lawyers tend to take a permissive interpretation of “military objectives,” overly broad interpretations that place military necessity over civilian protection are dangerous and undermine the object and purpose of AP I, which was intended to secure greater protections for civilians.

The second prong requires that the object’s destruction, capture, or neutralization, in the circumstances ruling at the time, must offer a definite military advantage. Similarly, this turns on the interpretation of what constitutes a definite military advantage at the time. It has been observed that the Russian military intelligence (GRU) units involved in offensive cyber operations frequently engage in gratuitous cyber-attacks with little military advantage to be gained. As one U.S. Assistant Attorney General describes it, Russia weaponizes its cyber capabilities to “wantonly [cause] unprecedented damage to pursue small tactical advantages and to satisfy fits of spite.”

This assessment gets more complicated in cyberspace, where civilian and military infrastructure are increasingly intertwined. While some objects support the dual uses of both military campaigns and ordinary civilian life, IHL does not formally recognize such a category, instead treating dual-use objects as military objectives subject to a proportionality analysis. Thus, even if an object is a military objective under IHL, armed forces must “take all feasible precautions in the choice of means and methods of attack” to avoid “incidental loss of civilian life, injury to civilians and damage to civilian objects.” Thus, a related consideration when it comes to dual-use objects is how to apply a proportionality analysis to the cyber context.

Although dual-use objects have historically been viewed as legitimate military targets regardless of the degree to which they support civilian life, such interpretations are outdated in the Digital Age. They are also fundamentally incompatible with the object and purpose of AP I. It is wholly inconsistent with the cardinal principle of distinction to classify, for example, an entire electrical grid as a military target when only one portion within that grid may be used for military purposes. Just as an entire city is not transformed into a military objective because a single combatant hides within its limits, an entire electrical grid does not become a military objective because one building fed by that system is used by the armed forces.

Concluding Thoughts

In its aggression against Ukraine, Russian cyber forces have committed serious crimes against victims who suffered real harm. Russia therefore must be held accountable. However, the potential case described in the Human Rights Center’s submission to the ICC is bigger than any one individual victim or perpetrator, and it is intended for greater impact beyond the borders of Ukraine. The submission addresses a new kind of malevolence that is in its infancy but presents a mounting threat to all mankind. Prosecuting cyber-attacks as war crimes would be an unprecedented but critically important step towards modernizing the laws of armed conflict–laws that are at risk of becoming obsolete if they cannot be interpreted broadly with due consideration for the evolution of technology, weapons, and warfighting.


Lindsay Freeman, JD, Adv LLM, is Director of Law and Policy of the Technology Program at the UC Berkeley Human Rights Center.


Photo credit: Pexels


Symposium Intro: Ukraine-Russia Armed Conflict

by Sean WattsWinston WilliamsRonald Alcala

February 28, 2022

Russia’s “Special Military Operation” and the (Claimed) Right of Self-Defense

by Michael N. Schmitt

February 28, 2022

Legal Status of Ukraine’s Resistance Forces

by Ronald Alcala and Steve Szymanski

February 28, 2022

Cluster Munitions and the Ukraine War

by William H. Boothby

February 28, 2022

Neutrality in the War against Ukraine

by Wolff Heintschel von Heinegg

March 1, 2022

The Russia-Ukraine War and the European Convention on Human Rights

by Marko Milanovic

March 1, 2022

Deefake Technology in the Age of Information Warfare

by Hitoshi Nasu

March 1, 2022

Ukraine and the Defender’s Obligations

by Eric Jensen

March 2, 2022

Are Molotov Cocktails Lawful Weapons?

by Sean Watts

March 2, 2022

Application of IHL by and to Proxies: The “Republics” of Donetsk and Luhansk

by Marco Sassòli

March 3, 2022

Closing the Turkish Straits in Times of War

by Raul (Pete) Pedrozo

March 3, 2020

The Abuse of “Peacekeeping”

by Alexander Gilder

March 3, 2022

Prisoners of War in Occupied Territory

by Geoff Corn

March 3, 2022

Combatant Privileges and Protections

by Laurie R. Blank

March 4, 2022

Siege Law

by Sean Watts

March 4, 2022

Russia’s Illegal Invasion of Ukraine & the Role of International Law

by Michael Kelly

March 4, 2022

Russian Troops Out of Uniform and Prisoner of War Status

by Chris Koschnitzky and Michael N. Schmitt

March 4, 2022

On War

by Andrew Clapham

March 5, 2022

Providing Arms and Materiel to Ukraine: Neutrality, Co-belligerency, and the Use of Force

by Michael N. Schmitt

March 7, 2022

Keeping the Ukraine-Russia Jus ad Bellum and Jus in Bello Issues Separate

by Rob Mclaughlin

March 7, 2022

The Other Side of Civilian Protection: The 1949 Fourth Geneva Convention

by Jelena Pejic

March 7, 2022

Special Forces, Unprivileged Belligerency, and the War in the Shadows

by Ken Watkin

March 8, 2022

Accountability and Ukraine: Hurdles to Prosecuting War Crimes and Aggression

by Lauren Sanders

March 9, 2022

Remarks on the Law Relating to the Use of Force in the Ukraine Conflict

by Terry D. Gill

March 9, 2022

Consistency and Change in Russian Approaches to International Law

by Jeffrey Kahn

March 9, 2022

The Fog of War, Civilian Resistance, and the Soft Underbelly of Unprivileged Belligerency

by Gary Corn

March 10, 2022

Common Article 1 and the Conflict in Ukraine

by Marten Zwanenburg

March 10, 2022

Levée en Masse in Ukraine: Applications, Implications, and Open Questions

by David Wallace and Shane Reeves

March 11, 2022

The Attack at the Zaporizhzhia Nuclear Plant and Additional Protocol I

by Tom Dannenbaum

March 13, 2022

The Russia-Ukraine War and the Space Domain

by Timothy GoinesJeffrey BillerJeremy Grunert

March 14, 2022

Fact-finding in Ukraine: Can Anything Be Learned from Yemen?

by Charles Garraway

March 14, 2022

Status of Foreign Fighters in the Ukrainian Legion

by Petra Ditrichová and Veronika Bílková

March 15, 2022

Law Applicable to Persons Fleeing Armed Conflicts

by Julia Grignon

March 15, 2022

Ukraine’s Legal Counterattack

by Michael Kelly

March 17, 2022

The ICJ’s Provisional Measures Order: Unprecedented

by Ori Pomson

March 17, 2022

Displacement from Conflict: Old Realities, New Protections?

by Ruvi Ziegler

March 17, 2022

A No-Fly Zone Over Ukraine and International Law

by Michael N. Schmitt

March 18, 2022

Time for a New War Crimes Commission?

by Diane Marie Amann

March 18, 2022

Portending Genocide in Ukraine?

by Adam Oler

March 21, 2022

Are Mercenaries in Ukraine?

by Robert Lawless

March 21, 2022

Abducting Dissent: Kidnapping Public Officials in Occupied Ukraine

by Katharine Fortin

March 22, 2022

Are Thermobaric Weapons Unlawful?

by Matt Montazzoli

March 23, 2022

A Ukraine No-Fly Zone: Further Thoughts on the Law and Policy

by Terry D. Gill

March 23, 2022

The War at Sea: Is There a Naval Blockade in the Sea of Azov?

by Martin Fink

March 24, 2022

Deportation of Ukrainian Civilians to Russia: The Legal Framework

by Michael N. Schmitt

March 24, 2022

Weaponizing Food

by Michael N. Schmitt

March 28, 2022

Command Responsibility and the Ukraine Conflict

by Noëlle Quénivet

March 30, 2022

The Siren Song of Universal Jurisdiction: A Cautionary Note

bySteve Szymanski and Peter C. Combe

April 1, 2022

A War Crimes Primer on the Ukraine-Russia Conflict

by Sean Watts and Hitoshi Nasu

April 4, 2022

Russian Booby-traps and the Ukraine Conflict

by Michael N. Schmitt

April 5, 2022

The Ukraine Conflict, Smart Phones, and the LOAC of Takings

by Gary Corn

April 7, 2022

War Crimes against Children

by Véronique Aubert

April 8, 2022

Weaponizing Civilians: Human Shields in Ukraine

by Michael N. Schmitt

April 11, 2022

Unprecedented Environmental Risks

by Karen Hulme

April 12, 2022

Maritime Exclusion Zones in Armed Conflicts

by Raul (Pete) Pedrozo

April 12, 2022

Ukraine’s Levée en Masse and the Obligation to Ensure Respect for LOAC

by Jann K. Kleffner

April 14, 2022

Cultural Property Protection in the Ukraine Conflict

by Dick Jackson

April 14, 2022

Results of a First Enquiry into Violations of International Humanitarian Law in Ukraine

by Marco Sassòli

April 14, 2022

Comprehensive Justice and Accountability in Ukraine

by Chris Jenks

April 15, 2022

Maritime Neutrality in the Russia-Ukraine Conflict

by David Letts

April 18, 2022

Cyber Neutrality, Cyber Recruitment, and Cyber Assistance to Ukraine

by Nicholas Tsagourias

April 19, 2022

Defiance of Russia’s Demand to Surrender and Combatant Status

by Chris Koschnitzky and Steve Szymanski

April 22, 2022

The Montreux Convention and Turkey’s Impact on Black Sea Operations

by Adam Aliano and Russell Spivak

April 25, 2022

Lawful Use of Nuclear Weapons

by Jay Jackson and Kenneth “Daniel” Jones

April 26, 2022

Litigating Russia’s Invasion of Ukraine

by Lawrence Hill-Cawthorne

April 27, 2022

Military Networks and Cyber Operations in the War in Ukraine

by Heather Harrison Dinniss

April 29, 2022

Building Momentum: Next Steps towards Justice for Ukraine

by Philippa Webb

May 2, 2022

Counternormativity and the International Order

by Dan E. Stigall

May 3, 2022

Destructive Counter-Mobility Operations and the Law of War

by Sean Watts and Winston Williams

May 5, 2022

Are We at War?

by Michael N. Schmitt

May 9, 2022

The Ukraine Conflict and the Future of Digital Cultural Property

by Ronald Alcala

May 13, 2022

Neutral State Access to Ukraine’s Food Exports

by James Kraska

May 18, 2022

Negotiating an End to the Fighting

by Michael N. Schmitt

May 24, 2022

Is the Law of Neutrality Dead?

by Raul (Pete) Pedrozo

May 31, 2022

Effects-based Enforcement of Targeting Law

by Geoff Corn and Sean Watts

June 2, 2022

U.S. Offensive Cyber Operations in Support of Ukraine

by Michael N. Schmitt

June 6, 2022

War Sanctions Steadily Degrade the Russian Maritime Sector

by James Kraska

June 7, 2022

The Atrocity Crimes Advisory Group & Ukrainian Prosecutions of Russian POWs – Part 1

by Chris Jenks

June 22, 2022

The Atrocity Crimes Advisory Group & Ukrainian Prosecutions of Russian POWs – Part 2

by Chris Jenks

June 24, 2022

The Atrocity Crimes Advisory Group & Ukrainian Prosecutions of Russian POWs – Part 3

by Chris Jenks

June 28, 2022

Putting “Overall Control” to the Test of the Third Geneva Convention

by Alessandra Spadaro

July 6, 2022

The Risk of Commercial Actors in Outer Space Drawing States into Armed Conflict

by Tara Brown

July 8, 2022

The Release of Prisoners of War

by Jeroen van den Boogaard

July 8, 2022

The Attack on the Vasily Bekh and Targeting Logistics Ships

by James Kraska

July 11, 2022

Lessons from Syria’s Ceasefires

by Marika Sosnowski

July 12, 2022

Documentation and Investigation Responses to Serious International Crimes

by Brianne McGonigle Leyh

July 13, 2022

Rebel Prosecutions of Foreign Fighters in Ukraine

by René Provost

July 15, 2022

Forced Civilian Labor in Occupied Territory

by Michael N. Schmitt

August 2, 2022

Forced Conscription in the Self-Declared Republics

by Marten Zwanenburg

August 8, 2022

Amnesty International’s Allegations of Ukrainian IHL Violations

by Michael N. Schmitt

August 8, 2022

Oil Tankers as “Environmental Time Bombs,” or Not

by Mark Jessup

August 12, 2022

The Escalating Military Use of the Zaporizhzhia Nuclear Plant

by Tom Dannenbaum

August 22, 2022

Protected Zones in International Humanitarian Law

by Michael N. Schmitt

August 24, 2022

Photos of the Dead

by William Casey Biggerstaff

August 19, 2022

Deception and the Law of Armed Conflict

by William Casey Biggerstaff

September 8, 2022

Data-Rich Battlefields and the Future of LOAC

by Shane ReevesRobert Lawless

September 12, 2022

Russian Crimes Against Children

by Oleksii KaminetskyiInna Zavorotko

September 14, 2022

Targeting Leadership

by Mehmet Çoban

September 16, 2022

Illegality of Russia’s Annexations in Ukraine

by Lauri Mälksoo

October 3, 2022

Russia’s Forcible Transfer of Children

by Alison Bisset

October 5, 2022

The Kerch Strait Bridge Attack, Retaliation, and International Law

by Marko MilanovicMichael N. Schmitt

October 12, 2022

Russian Preliminary Objections at the ICJ: The Case Must Go On?

by Ori Pomson

October 13, 2022

The Complicity of Iran in Russia’s Aggression and War Crimes in Ukraine

by Marko Milanovic

October 19, 2022

Attacking Power Infrastructure under International Humanitarian Law

by Michael N. Schmitt

October 20, 2022

Dirty Bombs and International Humanitarian Law

by Michael N. Schmitt

October 26, 2022

Doxing Enemy Soldiers and the Law of War

by Eric Talbot JensenSean Watts

October 31, 2022

Are Civilians Reporting With Cell Phones Directly Participating in Hostilities?

by Michael N. SchmittWilliam Casey Biggerstaff

November 2, 2022

Using Cellphones to Gather and Transmit Military Information, A Postscript

by Michael N. Schmitt

November 4, 2022

State Responsibility for Non-State Actors’ Conduct

by Jennifer Maddocks

November 4, 2022

Reparations for War: What Options for Ukraine?

by Luke Moffett

November 15, 2022

Further Thoughts on Russia’s Campaign against Ukraine’s Power Infrastructure

by Michael N. Schmitt

November 25, 2022

Russia’s Allegations of U.S. Biological Warfare in Ukraine – Part I

by Robert Lawless

December 2, 2022

Russia’s Allegations of U.S. Biological Warfare in Ukraine – Part II

by Robert Lawless

December 9, 2022

The THeMIS Bounty Part I: Seizure of Enemy Property

by Christopher Malis and Hitoshi Nasu

December 12, 2022

Classification of the Conflict(s)

by Michael N. Schmitt

December 14, 2022

The THeMIS Bounty Part II: Stealing Enemy Technology

by Christopher Malis, Hitoshi Nasu

December 16, 2022

The “I Want to Live” Project and Technologically-Enabled Surrender

by David WallaceShane Reeves

January 13, 2023

UN Peacekeepers and the Zaporizhzhia Nuclear Plant

by Alexander Gilder

January 20, 2023

What’s in a Name? Getting it Right for the Naval “Drone” Attack on Sevastopol

by Caroline Tuckett

January 23, 2023

Ukraine’s “Suicide Drone Boats” and International Law

by Charles M. Layne

January 25, 2023

The Impact of Sanctions on Humanitarian Aid

by Alexandra Francis

January 27, 2023

A Wagner Group Fighter in Norway

by Camilla Cooper

February 1, 2023

The Legal and Practical Challenges of Surrendering to Drones

by William Casey Biggerstaff,Caitlin Chiaramonte

February 8, 2023

Field-Modified Weapons under the Law of War

by Ronald Alcala

February 13, 2023

The Wagner Group: Status and Accountability

by Winston WilliamsJennifer Maddocks

February 23, 2023

The Law of Crowdsourced War: Democratized Supply Chains – Part I

by Gary Corn

March 1, 2023

Reprisals in International Law

by Michael N. Schmitt

March 6, 2023

The Law of Belligerent Occupation

by David A. Wallace 

March 8, 2023

Seizure of Russian State Assets: State Immunity and Countermeasures

by Daniel Franchini

March 8, 2023

The Law of Crowdsourced War: Democratized Supply Chains – Part II

by Gary Corn

March 15, 2023

“Damn the Torpedoes!”: Naval Mines in the Black Sea

by Ben RothchildMark Jessup

March 15, 2023

Landmines and the War In Ukraine

by Dario PronestiJeroen van den Boogaard

March 20, 2023

Russia’s “Re-Education” Camps: Grave Violations Against Children in Armed Conflict

by Alison Bisset

March 20, 2023

A Path Forward for Food Security in Armed Conflict


March 22, 2023

The Legality of Depleted Uranium Shells and Their Transfer to Ukraine

by Stuart Casey-Maslen

March 24, 2023