Gravity in the Statute of the International Criminal Court and Cyber Conduct That Constitutes, Instigates or Facilitates International Crimes

Abstract

This article explores the application of the gravity threshold to cyber conduct that might fall under the jurisdiction of the International Criminal Court. It first looks at how international crimes within the jurisdiction of the Court can be committed, instigated or facilitated in and through cyberspace and then discusses the problems that might arise when assessing gravity in this context. In particular, the article applies the elements of the gravity assessment identified in the Court’s case-law and by the Prosecutor, i.e. the identification of those “most responsible” for the alleged crimes and certain quantitative and qualitative factors, in order to determine the gravity of a case or situation involving cyber conduct.