This article discusses the question of the territorial jurisdiction of the International Criminal Court over international crimes committed through the Internet. It argues that the Court may assert its territorial jurisdiction over such conduct consistently with international law and the Rome Statute, by localising the cyber-commission of a core crime in whole or in part within the territory of States Parties. However, to mitigate state complaints of jurisdictional overreach, it further argues that the Court could avoid the outright endorsement of extensive versions of territorial jurisdiction. Instead, it should pursue first a detailed analysis of core crimes, followed by a well-versed application of territoriality. In closing, the article discusses the application of this approach in the example of online incitement to commit genocide.

1. Introduction

The Rome Statute establishing the International Criminal Court (ICC) was adopted in 1998 and entered into force in 2002.1 By that time, the first state efforts to address Internet criminality had already appeared.2 The UN, for its part, had already called upon states to ‘ensure that their laws and practice eliminate safe havens for those who criminally misuse information technologies’.3

These developments went unnoticed during the ICC negotiations. This is not surprising. The topic of jurisdiction proved to be so controversial, that minimum agreement was achieved in Rome only through a last-minute package-deal.4 As a result, the new Court’s jurisdiction is laid down in a few articles, which provide in general terms for territoriality and nationality,5 or exceptionally for universal jurisdiction pursuant to a Security Council referral.6

Beyond this general framework, however, the Rome Statute provides no guidance as regards the specific question of the territorial reach of the Court’s jurisdiction for core crimes7 committed through the Internet. The Prosecutor has recently conceded the importance of such questions. In the 2016–18 Strategic Policy, she acknowledged that international investigations and prosecutions need to adapt to the new challenges raised by the exponential expansion of the Internet.8 In the field of jurisdiction, such challenges become evident in the fictional example of a Russian national who incites the commission of genocide against ethnic Georgians in South Ossetia through his online blog. Considering that Russia is not party to the ICC Statute, the issue is whether the Court has territorial jurisdiction by virtue of the worldwide dissemination of such messages through the Internet.9

Against this background, this article asks what elements of a core crime should be committed through the Internet on State Party territory for the ICC to have jurisdiction. Questions of jurisdiction on the basis of nationality or universal jurisdiction in case of a Security Council referral are not addressed here. This choice is driven primarily by state practice; states tend to search for answers in the realm of territorial jurisdiction to address issues of internet criminality.10

To achieve its objective, this article first looks into the jurisdictional framework of the ICC (Section 2). Section 3 will then explore the possibilities for asserting ICC territorial jurisdiction over relevant cyber-criminality. It will explain the general international law framework (Section A) before turning to relevant state practice, as reflected in international treaties and EU law (Section B) as well as national legislation (Section C). Domestic case-law and patterns of judicial reasoning in related domestic judgments are then identified and analysed (Section 3.4). Section 4 will then apply the findings concerning the exercise of jurisdiction to the concrete example of incitement to genocide in the ICC context. Certain concluding observations will be offered in closing (Section 5).

2. The Legislative Framework of the ICC’s Territorial Jurisdiction

Article 12(2)(a) of the Rome Statute provides that the Court has territorial jurisdiction when ‘the conduct in question occurs’ on State Party territory. None of the key instruments of the Court provides for ‘qualified territoriality’,11 namely subjective or objective territoriality (or the establishment of jurisdiction on the basis of the location of the commencement or of the results of a crime, respectively) or ubiquity (jurisdiction over a crime if any part thereof has been committed on the territory of a State Party).12

There has been no clarification of these issues. The Assembly of State Parties did not adopt any amendments on point, although territorial jurisdiction was briefly discussed during the post-Rome negotiations on the crime of aggression. In particular, in November 2008, the following question emerged: would the Court have territorial jurisdiction if the crime of aggression was decided in the territory of a state not party, but its consequences manifested in the territory of a State Party? The record of the negotiation shows that some states argued for territorial jurisdiction in the event that the consequences of an offence took place on State Party territory.13 Others proposed to leave the matter up to the Court, whereas a third group hinted that ICC jurisdiction should depend on the territory of manifestation of the criminal conduct alone, not the territory of its consequences, bearing in mind Article 30 ICC Statute. For others, more time was requested to consider the issue. Ultimately, no decision was made in the subsequent meetings and the matter was left there.14 In Kampala, the only legislative development finally adopted was for the crime of aggression.15

The Court, for its part, has not made clear statements on this issue to date, even though there have been instances of ‘off-line’ remote commission of crimes.16

In this context, the critical question is whether the Court may use constructions of qualified territoriality, in the absence of explicit legislation, to address the cyber commission of core crimes. The Court has already noted that, in the event of a lacuna in the sources listed in Article 21(1)(a) RS, the matter should be resolved through interpretation on the basis of Articles 31 and 32 of the Vienna Convention on the Law of Treaties.17 If such interpretation did not suffice, the Court would consult rules of customary law, treaty law or general principles of law.18

To begin with, it is clear that the Court has the authority to decide on its jurisdiction.19 However, the interpretation of Article 12(2)(a) is a difficult exercise, which does not allow for unequivocal conclusions. First of all, no Rules of Procedure or Elements of the Crimes shed light on the meaning of this provision. Moreover, the ordinary meaning of the terms, coupled with the purpose and object of the treaty, could be construed to support opposite points of view. For example, it could be argued that ‘conduct in question’ in Article 12(2)(a) refers only to conduct, thus excluding jurisdiction on the basis of the territory where the consequences manifested. Certain states seem to have alluded as much in the Aggression working group.20 This restrictive approach is further supported by the other clauses of Article 12, which refer always and consistently to the ‘crime in question’. Presumably, the distinction in Article 12(2)(a) would suggest that territorial jurisdiction is limited only to the territory of the criminal ‘conduct in question’. At the same time, the drafters showed some degree of technological awareness since Article 68(2) of the Statute explicitly allowed for the electronic presentation of evidence. Therefore, some may argue a contrario that the drafters were aware of the issue of Internet-criminality, but decided to limit the Court’s jurisdiction by excluding it.

On the other hand, this approach would generate too large a loophole to the Court’s jurisdictional scheme. The overarching purpose of the Statute of ‘ending impunity’21 would be squarely defeated by limiting territorial jurisdiction only to the territory of the criminal conduct and only when that is committed ‘offline’. Emphasis should be awarded to the telos of the treaty. The troublesome language of Article 12 is probably the result of the difficult drafting process, insulated from other parts during the negotiations,22 without submission to the Drafting Committee due to lack of time and with no consultation among all states present at the conference.23 This would explain also why the Court’s early jurisprudence has referred in passing to the ‘crimes in question’, also for the purposes of Article 12(2)(a).24

Accordingly, in light of this unclear situation, the best approach would be to turn to Article 21(1)(b) for a solution and consult rules of customary law. The content of these rules and their possible application in the ICC system will be addressed next.

3. ICC Territorial Jurisdiction over Core Crimes Committed Through the Internet

A. The General International Law Framework

Under customary law, state criminal jurisdiction rests in state sovereignty.25 In that context, while prescriptive jurisdiction is virtually unlimited, enforcement jurisdiction is territorially limited.26 Beyond this basic prescription, customary international law does not explain specifically how little of a crime must be committed on the territory of a state for that state to have jurisdiction in accordance with international law, or which part of the crime awards priority of jurisdictional claim.27 Treaty law for its part is not very helpful either. To date, there is no general international treaty on criminal jurisdiction. International treaties criminalising specific forms of conduct have further maintained this ‘fluid situation’ through jurisdictional clauses that are generally worded in permissive terms and remain deferential to national law. As a result, the concept of commission in part developed largely as a matter of national law.28

Similarly, as regards criminal activity committed via the Internet, state practice shows that there is no universal agreement on a minimum common denominator for the exercise of territorial jurisdiction beyond the general acceptance of qualified territoriality. This is reflected in the provisions of one of the most important treaties in the field, the Council of Europe’s Budapest Convention on Cybercrime, as well as in relevant EU instruments, which will be examined in the next section.

B. The Budapest Convention and EU Instruments

The Council of Europe Cybercrime Convention is the first international standard-setting Convention on the punishment of certain offences committed through the internet. Article 22 provides that ‘[e]ach Party shall adopt such legislative and other measures as may be necessary to establish jurisdiction over any offence established in accordance with Articles 2 through 11 of this Convention, when the offence is committed: (a) in its territory;[…].’29 At the same time, it stipulates that the Convention does not exclude any exercise of jurisdiction in accordance with domestic law.30

Article 22 of the Convention is not subject to reservations.31 Additionally, parties seem to have agreed that the location of the attacked computer system may suffice to determine the locus delicti commissi in such cases.32 Beyond that, the implementation of the Convention by States Parties shows significant variation in the selection of methods for the constructive localisation of criminal activity within their territory.33

The EU was also one of the first non-state entities to address aspects of cyber-criminality. The relevant instruments typically provide for territorial criminal jurisdiction on the basis of the commission of the offence ‘in whole or in part’.34

In all these instruments, two important points are made clear. First, the implementation of the rules on territorial jurisdiction are mandatory and not subject to Member State opt-out.35 Secondly, the jurisdictional clauses apply to all forms of participation in the commission of the crime, including instigation, aiding and abetting.36

Conversely, the precise meaning of commission ‘in whole or in part’ within a state’s territory varies per instrument. In 2004, territorial jurisdiction over child pornography could be asserted when the offence is committed through a computer system accessed from Member State territory. 37 In 2005, either presence of the accused or presence of the information system on Member State territory at the time of the commission of the offence sufficed to assert territorial jurisdiction for attacks against information systems.38 In 2008, territorial jurisdiction over racist and xenophobic speech extended over those crimes committed through an information system, provided that either the material or the offender was on Member State territory at the time of commission. 39 These are described as the ‘minimum criteria’ for the harmonisation of Member State rules on territorial jurisdiction for such type of activity.40

C. Cyber-criminality and Territorial Jurisdiction in Domestic Legislation

In this largely permissive international context, states have followed a variety of national criminal law constructions to address cyber-criminality.

To begin with, some states follow a ‘technologically neutral approach’. They seem to consider their existing criminal law sufficient to address cyber-criminality.41 From that perspective, information systems and the Internet may be treated as an instrument of the offence.42

Other legal systems have adopted specific legislation for the punishment of criminal activity committed through the Internet.43 States differ in the identification of the minimum connection with their territory that a form of cyber-criminality should have to enable them to assert territorial jurisdiction.44

Indicatively, under the UK Computer Misuse Act, a ‘significant link with domestic jurisdiction’, such as the location of the data or the accused at the time of the commission of the offence, is enough to establish jurisdiction.45 The location of the offender or the affected computer or the affected computer system at the material time is considered sufficient also for Brunei.46

Controversially, certain legal instruments push the boundaries of territoriality. They require very limited connection, such as the location of the data on their territory at the material time,47 or even that the data was only capable of being sent or used there.48

Finally, under US law, the USA have authority to prosecute and punish offences committed against a ‘protected computer’. As such a computer ‘which is used in or affecting interstate or foreign commerce or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States’ is also qualified.49 Thus, the commission of any listed offence involving a computer connected to the Internet used in or affecting interstate or international communication may fall within US jurisdiction.50

D. Process of Legal Analysis

Domestic case-law made equally significant contributions to the development of the law on this point. Domestic courts were the first ones to attempt to explain the exercise of territorial authority over complex cyber-crimes, sometimes long before tailor-made legislation existed. In spite of the many difficulties posed by the Internet51—or perhaps because of them—national judges opted for rather conservative interpretations of territorial jurisdiction on the basis of ‘commission in part’ in the state ‘of origin’ or ‘of destination’ of activities occurring online.52 This was made possible through an artful prior analysis of the substantive crime and its dissection in ‘parts’ or ‘constituent elements’ on a crime-by-crime basis.

Certain influential litigations seem to follow this pattern. In the Töben case, Mr Töben blogged a number of comments effectively denying certain historical incidents concerning the implementation of the ‘Final Solution’ by the Nazi regime. The material was hosted on a server situated in Australia with worldwide dissemination.53 Töben was arrested while in Germany for violating section 130 of the German Criminal Code, namely for inciting racial hatred and denying Nazi crimes.

The Federal Court of Justice issued the final decision in the case, upholding his conviction. The Federal Court’s reasoning started with a meticulous analysis of section 130. It classified the offence in question as an abstract-concrete endangerment offence. In doing so, it acknowledged that the drafters adopted this provision, to protect the German public from actions that disturb or have the ability to disturb public peace.54

The Federal Court confirmed that the online publication in question could raise a reasonable fear that public trust to common security would be threatened. 55 It examined the communications in question and held that their harmful effects could be construed as having occurred in Germany. Therefore, jurisdiction was properly established under sections 3 and 9 of the German Criminal Code (territorial jurisdiction in part).56 The Federal Court explained that, while in English, the statements were addressed to the German public and the website was accessible to German users.57 It furthermore maintained that such jurisdictional assertion was in accordance with public international law, insofar as there is a substantial connection between the state exercising jurisdiction and the offence at hand.58 The connection existed because the harmful effects, one of the elements of the offence, took place in Germany.59

A similar process of reasoning appears in the Yahoo! Case.60 In this litigation, certain associations complained to the French authorities that the display and sale of Nazi memorabilia by Yahoo! in its auction websites Yahoo!.com and Yahoo!.fr violated French law. Under Article R.645-1 of the French Criminal Code, the exhibition or display of Nazi uniforms, signs or emblems constituted a violation of French Criminal law.

The domestic courts, in their interim orders, considered and dismissed the challenge to jurisdiction raised by the defendant. They explained that French criminal law prohibited the simple visualisation of these objects in France. This visualisation by itself caused an injury to the applicants. Thus, Yahoo! was considered to have committed a violation on French territory, since the crime could be localised there.61

Subsequent hearings on the substance reiterated that the act in question had materialised equally in French territory since the Yahoo! websites were accessible from France.62 The French Courts took a constitutive element approach. They considered that advertising was a necessary element of the offence. Thus, the crime was construed as having occurred on French territory, because the website was accessible to French users.63 The Paris Court of Appeal further explained that this decision was justified also on grounds of judicial policy; accepting a limited view of its jurisdiction would likely promote a safe haven phenomenon for online hate speech.64

These decisions have stirred up some criticism, challenging the courts’ position that a sufficiently close connection was proven to exist with Germany and France, respectively.65 Regardless, the process of analysis has not been criticised either by legal commentators or by the superior domestic courts hearing the cases. In fact, similar litigations in Canada and Australia seem to follow the same pattern: a rigorous analysis of substantive law, followed by an uncontroversial localisation of a constituent part of the offence within their territory.66

This approach is, however, instructive, not exclusive. There are examples of domestic judgments where courts follow the ‘traditional’ route of dealing with questions of territorial jurisdiction, before turning to the analysis of the substantive crime. These are usually low-profile cases that occasionally yield interesting pronouncements on jurisdiction. Such a case is R v Sheppard and Whittle,67 concerning the online publication of racist material. The English Court of Appeal applied the ‘substantial measure’ test at the outset and found that, since most acts took place in the UK (drafting, editing of the texts, controlling the website), English jurisdiction was established. Hosting the material on a US server alone was not enough to convince the Court that it lacked territorial jurisdiction. The server was considered to be merely ‘a stage in the transmission of the material requiring no intervention once the website was activated’.68 Additionally, the Court was not convinced that the automatic transformation of the material by the US server from FTP to HTML format, so as to make it publicly available on the website, constituted a new criminal act for the purposes of jurisdiction.69

In closing, presenting the application of territorial jurisdiction as a natural consequence of a prior analysis of the substantive crime is just one among many approaches that may be relevant for the ICC. Although it is not without its own pitfalls, it may hold significant benefits for the Court, as the next section will attempt to show in the case of online incitement to genocide.

4. An Example: Incitement to Genocide

Our hypothesis would involve a prolific Russian blogger in Moscow inciting individuals to commit genocide against Georgians in South Ossetia through comments in English published in a website hosted by a Russian server.70 The ICC Prosecutor requests an arrest warrant against the blogger, who happens to be in the Netherlands, accusing him of the crime of incitement to commit genocide. To issue a warrant of arrest, the relevant Pre-Trial Chamber would need to assess whether the specific crime falls within the Court’s territorial jurisdiction.71 Namely, the Court needs to ascertain to what extent online incitement has been committed on State Party territory to establish jurisdiction according to Article 12 ICCSt.

In line with the approach identified above, the Pre-Trial Chamber needs first to establish the elements of the crime before turning to Article 12(2)(a) of the Statute. Article 25(3)(e) of the Rome Statute criminalises the act of directly and publicly inciting others to commit genocide.

Neither the Rome Statute, nor the Elements of Crimes analyse the objective and subjective elements of incitement to genocide.72 Therefore, the Court is likely to have recourse to relevant international jurisprudence.73

According to the International Criminal Tribunal for Rwanda (ICTR), the objective element of the offence consists of the direct and public incitement of the commission of genocide. Incitement qualifies as ‘direct’ when the formulation of the message is an actual invitation for the commission of genocidal acts.74 It can be implicit (coded language),75 or explicit.76 Coded messages pose particular difficulties, because their actual meaning may not be understandable to everyone. The main test is whether ‘the persons for whom the message was intended immediately grasped the implication thereof’.77

The incitement must also qualify as ‘public’. This relates to the place and the addressees of the statement.78 It has been described as ‘directly provoking the perpetrator(s) to commit genocide, whether through speeches, shouting or threats uttered in public areas or at public gatherings, or through the sale or dissemination, offer for sale or display of written material or printed matter in public places or at public gatherings, or through the public display of placards or posters, or through any other means of audiovisual communication’.79

The mens rea of incitement to genocide is double: the act of incitement must be intentional and the inciter must have genocidal intent (dolus specialis).80 The content of the statement is used to deduce the perpetrator’s intent to incite genocide.81

Finally, incitement to commit genocide is an inchoate crime.82 Therefore, the public display of written material directly provoking perpetrators to commit genocide through audiovisual means is sufficient to trigger criminal liability, regardless of whether anyone is actually incited.83

Turning to our example, for the purposes of territorial jurisdiction the qualifications of public and direct are important. The mens rea is deduced by the text of the communication itself and is best examined as part of the proof of the accusation in the merits of the case.84

First of all, the message must be communicated to the general public, through any technological means of mass communication.85 The qualification of the Internet as a means of mass communication and the specific act of publication (‘display’) require, therefore, some elaboration.

In principle, it is hard to dispute that the Internet qualifies as an instrument of mass communication, considering its exponential worldwide reach. There is considerable support for this view in literature86 and domestic jurisprudence on hate speech.87 Barring communications aimed at specific individuals88 or exceptional circumstances that make public access to a certain message very difficult or impossible,89 whether as a public space or as mass media, online blogs and twitter posts can be classified as public for our purposes.

Beyond the nature of the instrument, however, it is important to investigate the specific act of making a statement public. Considering that the act of typing by itself is not criminal, Internet litigation on hate speech has focused on the jurisdictional analysis of the act of ‘display’ through the online systems involved.90

On the one hand, the act of ‘display’ may be construed as making information available on computer screens anywhere in the world.91 In that case, whenever the statement in question is accessible in State Party territory, objective territoriality would apply in the rather classic formulation of constituent part commission.92 Accessibility is not as weak a connection to State Party territory as it might appear at first sight. An electronic communication becomes accessible through a combination of the location of (i) the content-provider, (ii) the host server, (iii) the user’s server and (iv) the user.93 Each one of these links is indispensable for the performance of the act of ‘display’ to a user through the Internet. Thus, the existence of any such link/server in State Party territory would advocate in favour of the Court’s territorial jurisdiction. On the other hand, if ‘display’ means uploading a statement and maintaining a website in the territory of a state that is not party to the ICC, irrespective of its visualisation (in State Party territory),94 then most elements of the offence would occur in a state not party territory. This would likely exclude ICC territorial jurisdiction.

Turning to the notion of ‘direct’, this is in principle relevant only for the criminal character of the statement—the invitation to commit genocide—and depends on the formulation of the message in question. As such, it has no immediate bearing on territorial jurisdiction. Regardless, some could argue that the Court may assert territorial jurisdiction only if the ‘targeted’ audience of the communication was situated in State Party territory. Proponents of this view would assert that only the state of origin or the state of targeted destination of the Internet message would lawfully assert territorial jurisdiction. Other states of incidental exposure should refrain from doing so.95 In legal terms, this ‘moderate destination approach’ suggests that customary law contains a rule of hierarchy of jurisdictional claims arising from online activities, which provides that the state of targeted destination enjoys jurisdictional exclusivity, or at least priority, over other states incidentally affected by that activity.96 This approach is supposed to mitigate jurisdictional conflicts arising from concurrent jurisdictional claims and alleviate the perceived unfairness of exposing an accused to the authority of states that s/he never intended to affect.97 From that perspective, therefore, if the targeted audience is not situated in the territory of a State Party, the Court should refrain from asserting territorial jurisdiction over this case.

Regardless of its value under customary law,98 this position seems inconsistent with the specific system of the Rome Statute.

To begin with, under Article 12(2)(a), the Court’s territorial jurisdiction is conditional upon the occurrence of ‘the conduct in question’ on State Party territory.99 As such, the Court’s territorial jurisdiction does not depend on whether the perpetrator actually intended his/her conduct to occur in that territory.

Additionally, the scope of the Court’s authority as regards territory is a distinctly jurisdictional issue. Conversely, the proof of the actus reus and the mens rea belong to the merits of the case. In the ICC system, the two types of questions are subject to different evidentiary standards and process of analysis.100 Therefore, it is a separate matter whether the Prosecutor would be able to prove that the statement was capable of ‘directly inciting’, particularly if that statement is in coded language understood only by a specific audience. This is a concern for the merits of the case. Failure to prove that the statement amounts to ‘direct’ incitement would cause the charge to fail; it would not entail that the Court lacked jurisdiction to hear the case.101

The position in favour of the irrelevance of targeting for the Court’s territorial jurisdiction is further supported by two arguments premised on the nature of the offence and human rights law. First, incitement is an inchoate offence. It takes place regardless of whether anyone is incited.102 The geographic location of the genocide, if such exists, is therefore immaterial for present purposes. Second, human rights jurisprudence does not require foreseeability of jurisdictional assertions for the accused, lest it open the door to a right to forum shopping in criminal cases.103 Therefore, whether the accused could foresee that posting an inflammatory message online would one day lead to his/her prosecution before the ICC is equally irrelevant.104

Finally, the view that the Court’s territorial jurisdiction in cases of incitement to commit genocide depends on the location of the targeted audience has its own shortcomings. The primary difficulty is identifying the location of the targeted audience. Concretely, in our example, how can someone distinguish whether a blog post in English aims to incite in Ossetia, Georgia or London? 105

To conclude, the construction of an offence as well as Article 12(2)(a) of the Rome Statute will both have an important role to play in the future disposition of such interesting issues. Arguably, the ICC would enjoy significant benefits by interpreting the crime first and turning to a more accepted jurisdictional construction later. In particular, far from stipulating generally applicable standards, this approach has a distinct ‘for this crime only’ flavour. It avoids the risks of general pronouncements of law that may establish bad precedents and engender concerns of judicial activism. At the same time, it allows for a measure of flexibility. The act of typing by itself is not criminal after all and the significance of direct or indirect criminal effects may vary per crime. For example, accessibility of the website might suffice to establish territorial jurisdiction over incitement to genocide, whereas instigation to commit a war crime of murder would require proof of contribution to the actual commission, that is, reading and acting upon the statement.106 The Court would be well advised to retain a margin of flexibility for the future to avoid creating inadvertently online jurisdictional loopholes.

5. Conclusion

This article set out to address the territorial jurisdiction of the ICC for core crimes committed through the Internet. It explained that, beyond the generally worded provision on territorial jurisdiction included in Article 12(2)(a) of the Rome Statute, neither the preparatory works nor the Court’s main instruments shed any light on this issue. Therefore, this article sought to present the possibilities, taking into account state practice as part of customary law. States seem to rely strongly on territorial jurisdiction to combat Internet criminality.107

The Court could follow its domestic counterparts. To do so, however, a ‘gentle touch’ approach to its territorial jurisdiction is required, to avoid stirring state complaints. In particular, the Court could follow a process of judicial reasoning, where a subsequent, unsurprising analysis of territorial jurisdiction fits naturally within a robust analysis of subject-matter jurisdiction. Concretely, this would mean breaking down the crime charged in its constituent elements and localising any one of them in the territory of a State Party. Arguably, this course of action would be firmly established on the Court’s negotiated framework and would dispel accusations of adopting universal jurisdiction in disguise. At the same time, any robust analysis of subject-matter jurisdiction would need to comply with the principle of legality.

Ultimately, the assertion of territorial jurisdiction by the Court in such cases may prove less controversial than anticipated. The thorniest issues would probably arise after such assertion takes place. The Internet creates a veritable worldwide web of concurrent jurisdictional claims and corresponding jurisdictional conflicts. Sorting them out in the context of the ICC Statute through admissibility challenges and complementarity is likely to prove more contentious than, for example, the localisation of online hate speech on state party territory.

However, this is a question for another time. At present, this article argued that the Court would be well served by a clear judgment, affirming that the perpetrator’s technological sophistication is not the ultimate yardstick of the Court’s jurisdictional reach as regards territory. The Court seems to have the ability under international law to send such a message; all that remains is to witness its willingness to do so.

The author is grateful to Vessela Miladinova for her invaluable research assistance and to the Journal’s anonymous reviewers for their useful comments. Any errors are my own.

1 The Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3 (hereinafter the Rome Statute/the ICC Statute) Preamble, para 4.
2 Note that the UK Computer Misuse Act dates back to 1990, whereas the US Computer Fraud and Abuse Act to 1986. Further, P Kastner and F Mégret, ‘International Legal Dimensions of cybercrime’ in N Tsagourias and R Buchan (eds), Research Handbook on International Law and Cyberspace (Edgar 2015) 201.
3 UNGA Res 55/63 (22 January 2001) UN Doc A/RES/55/63, operative para 1(a).
4 P Kirsch and JT Holmes, ‘The Rome Conference on an International Criminal Court, The Negotiating Process’ (1999) 93 Am J Intl L 2; M Bergsmo, ‘The Jurisdictional Regime of the International Criminal Court (Part II, arts 11–19)’ (1998) 6 Eur J Crime, Crim L and Crim Just 345, 346–48.
5 art 12(2), 12(3), 13(a) and (c) of the Rome Statute (n 1).
6 art 13(b) of the Rome Statute (n 1).
7 The term ‘core crimes’ refers to the crimes listed in art 5 ICC Statute, namely genocide, crimes against humanity, war crimes and aggression.
8 International Criminal Court, Office of the Prosecutor, ‘Strategic Plan 2016-2018’ (ICC, 6 July 2015) 23, paras 58–60 <www.icc-cpi.int/iccdocs/otp/070715-OTP_Strategic_Plan_2016-2018.pdf>. Further, U Kohl, ‘Jurisdiction in Cyberspace’ in Tsagourias and Buchan (n 2) 37–38ff.
9 See further in detail under Section 4.
10 See in detail, Section C below.
11 G Gilbert, ‘Crimes sans frontières: Jurisdictional Problems in English Law’ (1992) 63 Brit YB Intl L 415, 430; M Wagner, ‘The ICC and its Jurisdiction – Myths, Misperceptions and Realities’ (2004) 7 Max Planck UN YB 409, 485.
12 H D Wolswijk, ‘Locus Delicti and Criminal Jurisdiction’ (1999) 66 Neth Intl L Rev 361, 367.
13 Assembly of States Parties, ‘Report of the Special Working Group on the Crime of Aggression’ (7th Session of the Assembly of States Parties, 14–22 November 2008) ICC-ASP/7/20, Annex III, para 28.
14 Assembly of States Parties, ibid (Second Resumption) (9–13 February 2009) paras 38–39; Assembly of States Parties, ‘Non-Paper by the Chairman on the Conditions for the Exercise of Jurisdiction’ (Informal Inter-sessional Meeting on the Crime of Aggression hosted by the Liechtenstein Institute on Self-Determination, New York, 8–10 June 2009) ICC-ASP/8/INF.2, para 5.
15 The Court will not have jurisdiction over third party nationals committing aggression in the territory of a State Party. art 15(bis), ICC Assembly of States Parties Resolution RC/Res.6 ‘The Crime of Aggression' (Review Conference of the Rome Statue of the International Criminal Court, Kampala 31 May–11 June 2010) <http://crimeofaggression.info/documents/6/Review-Conference-offiical-records-ENG.pdf> accessed 9 January 2016. On international criminal responsibility for cyber aggression see K Ambos, ‘Individual Criminal Responsibility for Cyber Aggression’ in this volume.
16Prosecutor v Callixte Mbarushimana (Decision on the ‘Defence Challenge to the Jurisdiction of the Court’) ICC-01/04-01/10-451 (26 October 2011); R Rastan, ‘The Jurisdictional Scope of Situations before the International Criminal Court’ (2012) 23 Crim Law Forum 19; Prosecutor v Bemba Gombo (Decision on the Prosecutor’s Application for a Warrant of Arrest against Jean‐Pierre Bemba Gombo) ICC-01/05-01/08-14-tENG (17 July 2008) paras 36, 82; Prosecutor v Bemba Gombo (Decision Pursuant to art 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo) ICC-01/05-01/08-424 (15 June 2009) paras 471, 485.
17Situation in Dem Rep Congo (Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal) ICC-01/04 (13 July 2006) para 39; Prosecutor v Al-Bashir (Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al-Bashir) ICC-02/05-01/09-3 (3 March 2009) para 44.
18Prosecutor v Al-Bashir, ibid.
19 F Martinez, ‘Legal Status and Powers of the Court’ in A Cassese and others, The Rome Statute of the International Criminal Court: A Commentary (OUP 2002) 211–12.
20 See (n 14).
21 Preamble, Rome Statute (n 1) para 5.
22Situation in the Republic of Kenya (Decision pursuant to art 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya) ICC-01/09-19 (31 March 2010) 29–30, para 69.
23 MC Bassiouni, Introduction to International Criminal Law (2nd rev edn, Martinus Nijhoff 2012) 681, fn 138; MC Bassiouni, ‘Negotiating the Treaty of Rome on the Establishment of an International Criminal Court’ (1999) 32 Cornell International Law Journal 457, 503–04, fn 30; R Cryer and others, An Introduction to International Criminal Law (3rd edn, CUP 2014) 148–50; S Rosenne, ‘Poor Drafting and Imperfect Organization: flaws to overcome in the Rome Statute’ (2000) 41 Virginia Journal of International Law 185.
24Situation in Dem Rep Congo (Decision on the Application for Participation in the Proceedings of VPRS-1, VPRS-2, VPRS-3, VPRS-4, VPRS-5 and VPRS-6) ICC-01/04 (17 January 2006) para 85; Prosecutor v Callixte Mbarushimana (n 16) paras 16–17.
25The Case of the SS Lotus (France v Turkey) [1928] PCIJ Rep Series A No 10, 20.
26 Derek W Bowett, ‘Jurisdiction: Changing Patterns of Authority over Activities and Resources’ (1982) 53 British Yearbook International Law 1, 1.
27 I Hunter, ‘Specific Application to Antitrust Matters of General Principles of International Law Governing the Assumption and Exercise of Jurisdiction’ in Report of the 54th Conference of the International Law Association at the Hague (ILA 1970), 221, 227; I Cameron, The Protective Principle of International Criminal Jurisdiction (Dartmouth Publishing 1994) 58; C Ryngaert, ‘Territorial Jurisdiction over Cross-Frontier Offences: Revisiting a Classic Problem of International Criminal Law’ (2009) 9 International Criminal Law Review 187, 188.
28 I Bantekas and S Nash, International Criminal Law (Routledge-Cavendish, 3rd edn, 2007) 75; From international treaties, International Convention for the Protection of All Persons from Enforced Disappearance (9 June 1994) UN Doc A/RES/47/133, art IV, which provides for state party territorial jurisdiction, also when ‘any act constituting such offence’ was committed within its jurisdiction.
29 EC Convention on Cybercrime (adopted 23 November 2001, entered into force 1 July 2004) 185 European Treaty Series.
30 ibid, art 22(4).
31 ibid, art 22(2).
32 Explanatory Report of the Convention on Cybercrime (13 November 2001) CM(2001)144 addendum, para 233 <https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016804d873c> accessed 9 January 2016.
33 See below Section C.
34 art 8(1)(a) EU Council Framework Decision 2004/68/JHA of 22 December 2003 on Combating the Sexual Exploitation of Children and Child Pornography [2004] OJ L13/44; art 9(1)(a) of Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law [2008] OJ L 328/55; art 10(1)(a) Council Framework Decision 2005/222/JHA of 24 February 2005 on attacks against information systems OJ L 69; art 9(1)(a) Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism [2002] OJ L 164.
35 ibid, art 8(2) Council Framework Decision 2004/68/JHA (child pornography); art 9(3) Council Framework Decision 2008/913/JHA (racism); art 10 (5) Council Framework Decision 2005/222/JHA (information systems).
36 ibid, art 8(1) Council Framework Decision 2004/68/JHA (child pornography); art 9(1) Council Framework Decision 2008/913/JHA (racism); art 10 (1) Council Framework Decision 2005/222/JHA (information systems).
37 ibid, art 8(5) Council Framework Decision 2004/68/JHA (child pornography).
38 art 12 (2) Council Directive 2013/40/EU of 12 August 2013 on attacks against information systems and replacing Council Framework Decision 2005/222/JHA [2013] OJ L 218. For the original Framework Decision (n 34).
39 arts 9(2)(a) and 9(2)(b) (n 34).
40 European Commission ‘Proposal for a Framework Decision Combating Racism and Xenophobia’ (28 November 2001) Doc COM (2001) 664 final, 11.
41 This would apply for the following states: Australia, Albania, Armenia, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, China, Croatia, Czech Republic, Dominican Republic, Estonia, Finland, France, Germany, Italy, Japan, Lithuania, Mexico, Morocco, Romania, the Russian Federation, Senegal, Slovakia, Spain, FYR of Macedonia, Myanmar, Thailand, Turkey, United Arab Emirates, Vietnam and Kosovo. See in detail Council of Europe, Cybercrime Legislation: Country Profiles (Council of Europe Portal, 2016) < www.coe.int/en/web/cybercrime/country-profiles> accessed 9 January 2016.
42 In general, Wolswijk (n 12). Further, J Clough, Principles of Cybercrime (CUP 2010) 410–11.
43 Council of Europe, ‘Cybercrime Legislation’ (n 41). This category of states includes Brunei Darussalam, Indonesia, Malaysia, Nigeria, Pakistan, the Philippines, Portugal, Singapore, Sri Lanka, Tonga and the United Kingdom.
44 Council of Europe, ‘Cybercrime Legislation' (n 41). From independent studies, B-J Koops and SW Brenner (eds), Cybercrime and Jurisdiction, A Global Survey (TMC Asser 2006).
45 UK Computer Misuse Act 1990, ss 4–5 <www.legislation.gov.uk/ukpga/1990/18/section/4> accessed 9 January 2016. This approach is followed also by the Criminal Code of Tasmania 1924, as amended, s 257F <www.thelaw.tas.gov.au/tocview/index.w3p;cond=ALL;doc_id=69%2B%2B1924%2BAT@EN%2B20080122090000> accessed 9 January 2016.
46 2007 Computer Misuse Act of Brunei Darussalem (n 41) art 11(2).
47 Singapore Territorial Scope of the Offences under this Act, s 11(3) of the Computer Misuse and Cybersecurity Act, Act 19 of 1993 (Revised 31 July 2007), as amended on 2 January 2011 <http://statutes.agc.gov.sg/aol/search/display/view.w3p;page=0;query=DocId:8a3534de-991c-4e0e-88c5-4ffa712e72af%20%20Status:inforce%20Depth:0;rec=0> accessed 9 January 2016, latest amendment 14/1/2013.
48 Malaysia Territorial Scope of Offences under this Act, Computer Crimes Act 1997, Act 563, as amended on 1 January 2006, s 9(2); Koops and Brenner, ‘Approaches to Cybercrime Jurisdiction’ (n 44) 21.
49 18 USC s 1030 (e) (2) (b) as provided by the Computer Fraud and Abuse Act.
50 Clough, Principles of Cybercrime (n 42) 409. Evidently, the computer need not be located in the USA.
51 T Scassa and RJ Currie, ‘New First Principles? Assessing the Internet’s Challenges to Jurisdiction’ (2011) 42(4) Georgetown Journal of International Law 1021.
52 U Kohl, Jurisdiction and the Internet (CUP 2007) 95–110.
53Re Töben; Decision of the District Court of Mannheim, Urt. v 10.11.1999 – 5 KLs 503 Js 9551/99; Decision of the Federal Court of Justice (BGH), Urt. v 12.12.2000 – 1 StR 184/00, reported in 54(8) NJW (2001) 624–28.
54 Federal Court Decision, ibid D.I.5. Further, U Sieber, ‘Cybercrime and Jurisdiction in Germany. The Present Situation and the Need for New Solutions’ in Koops and Brenner (eds), Cybercrime and Jurisdiction (n 48) 189–92.
55 Federal Court Decision (n 53) D.I.5. (d).
56 ibid D.I.6.
57 ibid D.I.2 and D.I.6.
58 ibid D. II. 4.
59 ibid.
60 Tribunal de Grande Instance de Paris, Judgment of 26 February 2002, 17ème Chambre, Chambre de la Presse, No 0104305259; and the decision of the Cour d’Appel de Paris, Judgment of 17 March 2004, 11ème Chambre, Chambre des Appels Correctionnels, No 03/01520. On the merits, they acquitted and dismissed the action for partie civile. See Tribunal de Grande Instance de Paris, Judgment of 11 February 2003, 17ème Chambre, Chambre de la Presse, No 0104305259, confirmed by the Cour d’Appel on 5 April 2005. M Hayashi, ‘Objective Territorial Principle or Effects Doctrine? Jurisdiction and Cyberspace’ in C Focarelli (ed), Le Nuove Frontiere del Diritto Internationazionale: Attori non Statalui, Spazio Virtule, Valori Fondamentali e Governo Multinazionale di Territori (Morlacchi 2008) 290–93.
61LICRA et Union des Étudiants Juifs de France v Yahoo! Inc. et Yahoo.Fr, Tribunal de Grande Instance de Paris, Ordonnance de réferé du 22 mai 2000, 5; LICRA et Union des Étudiants Juifs de France v Yahoo! Inc. et Yahoo.Fr, Tribunal de Grande Instance de Paris, Ordonnance de réferé du 20 novémbre 2000, 4.
62 Tribunal de Grande Instance de Paris, Judgment of 26 February 2002 (n 60); further Hayashi (n 60) 293.
63 Tribunal de Grande Instance de Paris, Judgement of 26 February 2002, ibid II.2.a. Kohl (n 52) 100.
64Timothy K et Yahoo! v Ministere Public, Judgment of 17 March 2004, 11ème Chambre, Chambre des Appels Correctionnels, No 03/01520. Further, Hayashi (n 60) 301. Further, SW Brenner, ‘The Council of Europe's Convention on Cybercrime’ in JM Balkin and others (eds), Cybercrime: Digital Cops in a Networked Environment (NYU Press 2007) 209. For the history, Yahoo! acquired a declaration from US Courts on the non-enforcement of the French judgment in the US. Yahoo! Inc. v LICRA and UEJF, 169 F Suppl 2d 1181, 1192, 1194 (ND Cal 2001). The case was finally dismissed in Yahoo! v LICRA, 433 F.3d 1199 (CA 9th Cir 2006).
65 Kohl (n 52) 99–101; Hayashi (n 60) 298–302; Y Timofeeva, ‘Worldwide Prescriptive Jurisdiction in Internet Content Controversies: A Comparative Analysis’ (2005) 20(2) Connecticut Journal of International Law 201–11, M Hirst, Jurisdiction and the Ambit of the Criminal Law (OUP 2003) 193.
66 D Fraser, “‘On the Internet, Nobody Know You ‘re A Nazi”: Some Comparative Legal Aspects of Holocaust Denial on the WWW’ in I Hare and J Weinstein (eds), Extreme Speech and Democracy (OUP 2009) 529–36.
67R v Simon Guy Sheppard and Stephen Whittle [2010] EWCA Crim 65 (Judgment of 29 January 2010).
68 ibid 22.
69 ibid.
70 The ICC has already opened an investigation in the situation in Georgia. Situation in Georgia (Decision on the Prosecutor’s request for authorization of an investigation) ICC-01/15-12 (27 January 2016) para 59.
71 art 58 ICC Statute (n 1).
72 See Preparatory Commission for the International Criminal Court ‘Proposal Submitted by the United States of America’ (4 February 1999) UN Doc PCNICC/1999/DP.4/Add.3. The proposal was rejected on the argument that the topic was beyond the mandate of the Commission. M Kelt and H von Hebel, ‘General Principles of Criminal Law and Elements of Crimes’ in RS Lee and others (eds), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Transnational Publishers 2001) 21.
73 G Boas and others, Elements of Crimes under International Law (International Criminal Law Practitioner Library Series, CUP 2008) 204.
74Prosecutor v Akayesu (Judgment) ICTR-96-4-T (2 September 1998) para 556-557, 561-562; affirmed in Prosecutor v Kalimanzira (Judgment) ICTR-05-88-T (22 June 2009) para 515, Prosecutor v Nahimana et al (Judgment) ICTR-99-52-A (28 November 2007) para 431; Prosecutor v Ruggiu (Judgment and Sentence) ICTR-97-21-1 (1 June 2000) para 44; W Timmermann and WA Schabas, ‘Incitement to Genocide’ in P Behrens and R Henham (eds), Elements of Genocide (Routledge 2012) 156, WA Schabas, Genocide in International Law: The Crime of Crimes (2nd edn, 2009) 331–32ff.
75Mugesera v Canada (Minister of Citizenship and Immigration) [2005] 2 S.C.R. 100, 2005 SCC 40, paras 90–95 (the ‘river’ passage: send ‘the cockroaches’ back to Ethiopia through the river Nyabarongo) conveying the message of sending Tutsi corpses to Ethiopia by disposing them into the particular river.
76Prosecutor v Simon Bikindi (Judgment) ICTR-72-1-T (2 December 2008) para 423 (message: call ‘not to spare anybody’).
77Prosecutor v Kajelijeli (Judgment) ICTR-98-44A-T (1 December 2003) para 853.
78 Akayesu (n 74) para 284.
79 ibid para 559.
80Nahimana (n 74) para 677; E van Sliedregt, Individual Criminal Responsibility in International Law (OUP 2012) 180.
81Nahimana, ibid para 706; Timmermann and Schabas (n 74) 326.
82 WA Schabas, The International Criminal Court: A Commentary on the Rome Statute (OUP 2010) 438; See also, K Ambos, ‘Article 25’ in O Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (2nd edn, CH Beck-Hart-Nomos 2008) 760–61; A Eser, ‘Individual Criminal Responsibility’ in A Cassese and others (eds), The Rome Statute of the International Criminal Court: A Commentary ( vol I, OUP 2002) 803–05. Contra, TE Davies, ‘How the Rome Statute Weakens the International Prohibition on Incitement to Genocide’ (2009) 22 Harvard Human Rights Journal 260ff, 264.
83Akayesu (n 74) para 559.
84 See (n 80). Further, mutatis mutandis, Prosecutor v Ruto et al (Decision on the Appeal of Mr William Samoei Ruto and Mr Joshua Arap Sang against the Decision of Pre-Trial Chamber II of 23 January 2012 Entitled ‘Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute') ICC-01/09-01/11-414 (OA 3 OA 4) (24 May 2012) para 30; Prosecutor v Muthaura et al (Decision on the Appeal of Mr Francis Kirimi Muthaura and Mr Uhuru Muigai Kenyatta against the Decision of Pre-Trial Chamber II of 23 January 2012 Entitled ‘Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute') ICC-01/09-02/11-425 (OA 4) (24 May 2012) para 29.
85 International Law Commission, ‘Draft Code of Crimes against the Peace and Security of Mankind with Commentaries’ (1996) II(2) Yearbook of the International Law Commission 22, para 16.
86 R Cohen-Almagor, Confronting the Internet’s Dark Side (CUP 2015) 303–04, W Dautermann, ‘Internet Regulation: Foreign Actors and Local Harms – At the Cross-Roads of Pornography, Hate Speech and Freedom of Expression’ (2002) 28 North Carolina J of International and Commercial Regulation 207–08; G Mettraux, International Crimes and the Ad Hoc Tribunals (OUP 2005) 255–56. Further, R Cryer and others (n 23) 378. For relevant reports of international organisations, see UN Office on Drugs and Crimes, The Use of the Internet for Terrorist Purposes (2012) 6, 23 and 42; Organization for Security and Co-operation in Europe, Ministerial Council Decision 9/09 on Combating Hate Crimes (Athens, 2 December 2009) para 11 <www.osce.org/cio/40695> accessed 9 January 2016.
87 See among many others, Yahoo! and Töben (nn 57, 64 and text). Among many others, see the ‘virtual jihad’ case (Prosecutor v Ibrahim Rashid (Judgment of the Higher Court of Celle (OLG), Germany) (19 June 2008)) involving the conviction of individuals for online recruitment of individuals for al-Qaeda, in the UNODC Report, ibid 42, and <www.dw.com/en/iraqi-jailed-in-germany-for-recruiting-terrorists-online/a-3424897’> accessed 9 January 2016; or the conviction of a woman in Spain for inciting terror over Twitter: in detail, E Rediker, ‘The Incitement of Terrorism on the Internet: Legal Standards, Enforcement and the role of the European Union’ (2015) 36 Michigan Journal of International Law 321, 342–43.
88 Eg email or online message available only to a specific person: Y Ronen, ‘Incitement to Terrorist Acts under International Law’ (2010) 23 Leiden Journal of International Law 654, 666; Rediker, ibid 349.
89 This would be the case with national measures to prevent access to the internet; Kohl (n 8) 53 (Turkey’s block of Google in Yildirim v Turkey App No 3111/10, (ECtHR, 18 March 2013).
90 M Hayashi (n 60) 298.
91 ibid 298–99.
92 ibid.
93 O Bigos, ‘Jurisdiction over Cross-Border Wrongs on the Internet’ (2005) 54(3) International and Comparative Law Quarterly 592 (also for emails). For the corresponding situation in ‘cloud services’, NA Kazia, ‘An Overview of Cloud Computing and its Legal Implications in India’ (2012) Computer and Telecommunications Law Review 49–51.
94 M Hayashi (n 60).
95 Kohl, in Tsagourias/Buchan (n 8) 47–49, 54. The view is developed in her earlier writings, Kohl (n 52) 96–110.
96 ibid.
97 Kohl (n 52) 108–10.
98 As Kohl herself admits, targeting as a jurisdictional yardstick has been applied extensively in private law cases, but not in criminal law litigations. ibid 109.
99Prosecutor v Thomas Lubanga Dyilo (Judgment on Appeal against Decision on Defense Challenge to Jurisdiction of the Court pursuant to art 19(2)(a) of the Statute) ICC-01/04-01/06-772 (14 December 2006) paras 21, 24.
100Ruto et al (n 84) para 29.
101 See mutatis mutandis in ibid para 30.
102 See (n 82).
103Jorgic v Germany App No 74613/01 (ECtHR, 12 July 2007) para 65.
104 In detail, M Vagias and J Ferencz, ‘Burden and Standard of Proof in Defence Challenges to the Jurisdiction of the International Criminal Court’ (2015) 28 Leiden Journal of International Law 133, 135–36.
105 Kohl, in Tsagourias/Buchan (n 8) 49.
106 van Sliedregt (n 80) 104–05, 165–68.
107 Kohl (n 52) 96.