Accountability for digital harm under international criminal law

This thesis is concerned with how international criminal law (ICL) frameworks may be able to account for ‘digital harm’, or harm perpetrated through digital technologies. Technology can be used both as a new method of perpetrating existing international crimes or can inflict novel forms of harm that may only be adequately addressed by the creation of a new offence. This thesis analyses how harm has been understood for core international crimes and how digital harms (such as online hate speech and disinformation, sharing footage of crimes online, digital mass surveillance, and online sexual violence) can be encompassed within definitions of those crimes. It draws upon theories of criminalisation commonly considered for ICL to determine why digital harms should be criminalised, and explores the potential challenges to such criminalisation, such as whether digital harms can meet the gravity threshold under ICL and whether prosecutions of digital harms would be viable. Further, obstacles to prosecuting digital harms at international criminal courts and tribunals (ICCTs) are considered, including jurisdictional challenges, the issues that arise when using digital evidence, and cooperation between ICCTs and States, private companies, and civil society. The thesis concludes with two case studies of different digital harms—the beheading of American journalist James Foley by ISIS, which was circulated online, and the digital surveillance used against the Uyghur population in Xinjiang, China—to illustrate how digital harms may be criminalised and prosecuted at an ICCT in practice. Ultimately, this thesis finds that digital harms are similar in nature to the harms traditionally encompassed by core international crimes, and that these harms can and should be criminalised and prosecuted to provide justice to victims. It emphasises that as technology will only continue to develop and serve as a vehicle for an increasing array of harms, finding ways to account for digital harm should be an issue at the forefront of ICL.