POLICY ON CYBER-ENABLED CRIMES UNDER THE ROME STATUTE – terminology

The term ‘cyber’ is used broadly in POLICY ON CYBER-ENABLED CRIMES2025-cyber-eng UNDER THE ROME STATUTE to denote the range of activities involving information and communications technologies (also known as ICT, or loosely as digital technologies) or networks, including artificial intelligence (AI). Such technologies or networks may very frequently be ‘online’ in some fashion, but need not necessarily be so. Relevant to the investigation and prosecution of crimes within the jurisdiction of the Court, conduct in cyberspace may typically encompass the use, manipulation or disabling of computer systems as a direct means of committing a crime, or to prepare, facilitate or target such crimes including by harvesting data to identify, locate, or track victims. Cyber conduct or means are in this context often contrasted with ‘physical’, ‘kinetic’, or ‘traditional’ means of carrying out or facilitating criminal activity

Cyber-enabled crime under the Rome Statute

The term, ‘cyber-enabled crime’ is used in this Policy as a factual term (rather than as a legal concept) to refer to crimes within the jurisdiction of the Court—that is, genocide, crimes against humanity, war crimes and aggression, as set out in article 5 of the Rome Statute, or offences against the administration of justice at the Court under article 70—when these crimes are committed or facilitated with the use of cyber means. A crime is committed (perpetrated) by cyber means if the conduct element of the offence is satisfied by cyber conduct carried out by the perpetrator, or if the suspect makes an essential contribution to that conduct element by cyber means, consistent with the requirements of article 25(3)(a) of the Statute. The commission of Rome Statute crimes by cyber means can be direct or indirect.  A crime is facilitated by cyber means if a person engages in cyber conduct that satisfies the elements of a mode of responsibility listed in articles 25 or 28 of the Statute, other than commission. These include ordering, inducing, soliciting, and aiding and abetting. It is irrelevant in this context whether the underlying crime of the principal is itself committed by cyber means (it could, but need not, be).