By Sarah Zarmsky, Assistant Lecturer, Essex Law School

Historically, international criminal law (ICL) has been mainly concerned with physically violent crimes. Progressively, ICL has begun to recognise the importance of mental forms of suffering (such as for torture and genocide), but this has always been in connection with cases focused on physical harms. Recently, developments such as the proposed addition of the crime of ecocide to the Rome Statute of the International Criminal Court have signalled that ICL may be ready to evolve further and accommodate novel types of harm, including those perpetrated through technology.  

To explore the potential of ICL to encompass online harms, or harmful acts perpetrated through online spaces, Sarah Zarmsky, PhD Candidate and Assistant Lecturer with the Law School, recently published her article ‘Is International Criminal Law Ready to Accommodate Online Harm? Challenges and Opportunities’ with the Journal of International Criminal Justice (JICJ). This article stems from part of Sarah’s doctoral research on accountability for digital harms under ICL, which encompasses a broader range of harms inflicted using technology than online harms. 

This article aims to answer the understudied question of how technology can serve as the vehicle by which certain international crimes are committed or lead to new offences. It explores how current international criminal law frameworks may be able to accommodate ‘online harms’ to ensure that the law recognises the full scope of harms caused to victims, who currently may not be able to access redress through the international criminal justice system.  

Three examples of online harm that have a foreseeable nexus to the perpetration of international crimes are identified, including (a) hate speech and disinformation, (b) sharing footage of crimes via the internet, and (c) online sexual violence. The article analyses these online harms alongside similar harms that have been encompassed by core ICL crimes, including genocide, crimes against humanity, and war crimes, to assess how they might fit into existing definitions of crimes (potentially as an aggravating factor at sentencing or as a new manner of commission), or warrant the creation of an entirely new offence.  

The article concludes that the examples of online harm considered in the piece should be able to be accommodated by existing crimes, but this does not mean they should necessarily be treated the same as ‘traditional’ offences.  

For example, in the case of the spread of hate speech, this online harm could likely fall under existing definitions of persecution or incitement to genocide, or when footage of crimes is shared online, it could likely amount to an outrage upon personal dignity. Yet, the online component often exacerbates the harm—for instance, posting a video of a crime could be potentially even more humiliating than committing the same crime in a public square, where the footage is not preserved, distributed, and virtually impossible to get rid of.  

These elements should be recognised by ICL Chambers in future cases, such as during the gravity assessment of the crimes or at sentencing, to ensure that the full scale of the harm is acknowledged.  

Finally, the article 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 online harm and bring redress to victims should be an issue at the forefront of ICL.  

The article forms part of a forthcoming Special Issue with the JICJ edited by Dr Barrie Sander (Leiden University) and Dr Michelle Burgis-Kasthala (University of Edinburgh) titled ‘Contemporary International Criminal Law After Critique’.  

The discussions that will be sparked by this article are relevant to the explorations of engaging with ICL ‘after critique’ presented in the Special Issue, as it is important that ICL be able to recognise and adapt to new forms of harm to avoid the favouring of existing criminal harms that can reinforce traditional assumptions and stereotypes behind the law.