Is International Criminal Law Ready to Accommodate Online Harm?

Abstract

New technologies have the potential to both advance accountability for international crimes and to aid in their perpetration. Most of the existing literature to date focuses on the former, such as how digital evidence can be used in international criminal law (ICL) proceedings, or in the case of the latter, has taken a mainly rights-based approach (such as how technology can infringe upon rights to privacy or freedom of expression). This article answers the understudied question of how technology can serve as the vehicle by which certain international crimes are committed or lead to new offences, and how current ICL frameworks may be able to accommodate these ‘online harms’ to ensure that the law recognizes the full scope of harms caused to victims, who currently may not be able to access redress through the international criminal justice system. It identifies three examples of online harm that have a foreseeable nexus to the perpetration of international crimes, including hate speech and disinformation, sharing footage of crimes to the internet, and online sexual violence. The article evaluates the online harms alongside similar harms that have been encompassed by core ICL crimes, including genocide, crimes against humanity, and war crimes, to assess how online harms might fit into ICL frameworks (e.g. as an aggravating factor at sentencing, a new mode of commission of an existing crime, or a new crime). It concludes that some types of online harm may be more feasible to account for than others, and identifies where the existing ICL architecture falls short, which is important for providing a basis for future research as to how to best include novel online harms under ICL. Finally, the article emphasizes that as technology will only continue to develop and serve as a vehicle for an increasing array of harms, finding ways to account for online harm and bring redress to victims should be an issue at the forefront of ICL.