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In the digital era, Information and Communication Technologies (ICTs) have revolutionized the world by enabling unprecedented global connectivity. However, this heightened interconnectivity has also given rise to new challenges, notably that of cybercrime. Confronting this borderless threat necessitates international cooperation. In this landscape, the concept of an international court exclusively focused on adjudicating cybercrime is attracting increasing interest and sparking rigorous debate within the international legal community.

 

Cybercrime : a global threat

Cybercrime encompasses a myriad of offenses committed in cyberspace, ranging from cyber-attacks and data theft to online fraud and dissemination of illicit content. These crimes can target individuals, businesses, or even states, leading to significant financial losses and jeopardizing national and international security.

Cybercrime has caused staggering global financial losses, estimated at $8.4 trillion in 2022. This figure is projected to exceed $11 trillion this year, with digital security spending potentially reaching $20 trillion by 2026. These numbers underscore the urgency for concerted action to combat this escalating threat. The establishment of an international cybercrime court is proposed as a coordinated approach to effectively prosecute cybercriminals across borders.

 

Current mechanisms of international cooperation

Combating cybercrime requires efficient international cooperation. Presently, several mechanisms are in place:

  • Multilateral treaties: These treaties establish norms and procedures to facilitate information exchange and judicial assistance between countries. The Budapest convention on cybercrime fosters global legal frameworks and cooperation against cybercrime with 68 States Parties since November 2001.

 

  • Judicial assistance: states can assist each other by providing evidence and information in cybercrime-related investigations and criminal proceedings. However, the effectiveness of these mechanisms can be hindered by legal differences between national systems.

 

  • Law enforcement collaboration: law enforcement agencies from different countries can cooperate to identify, track, and apprehend cybercriminals operating on an international scale.

 

  • Recognition of foreign verdicts: certain countries recognize judgments from foreign courts in cybercrime cases, thereby facilitating the application of laws on an international level.

 

The idea of the Court for International Cybercrime (CTIC)

Proposed by Norwegian judge Stein Schjolberg, a noted expert in the realm of cybercrime, the concept of a “Court for International Cybercrime” (CTIC) is intended to investigate and prosecute individuals implicated in serious transgressions of international laws concerning cybercrime, including the instigators of widespread cyber attacks. Such a court would be tasked with handling cybercrime cases on a global scale and ensuring a fair and effective application of international laws related to cybercrime.

 

Several approaches are considered for the establishment of such a court 

Broadening the Jurisdiction of the International Criminal Court (ICC): some propose including cybercrime-related offenses in the list of crimes falling under the jurisdiction of the ICC. However, achieving such an expansion would necessitate a consensus from the global community.

Creating a specialized international criminal court: another alternative would be to institute an independent court with a specific focus on cybercrime. This court would possess the authority to prosecute serious violations of international laws concerning cybercrime.

Establishing an ad hoc mechanism: some experts propose creating an ad hoc mechanism specific to cybercrime, akin to the international criminal tribunals set up to address war crimes.

 

The complexity of implementing such an international court

The proposal to establish this international jurisdiction raises complex issues and presents numerous legal and practical challenges. Firstly, it’s crucial to understand that cyberspace is not a physically delineated territory, but a virtual domain where actors operate from disparate states under varied jurisdictions. This unique characteristic of cyberspace significantly complicates the process of attributing crimes to specific perpetrators and subsequently prosecuting cybercriminals.

Defining the offenses falling under the court’s jurisdiction would be the first hurdle. Cybercrime is an ever-evolving domain, with new forms of criminal activity emerging constantly. As a result, it would be difficult to define a comprehensive set of offenses covered by the court.

Additionally, the court’s territorial jurisdiction would be a major challenge. As mentioned earlier, cyberspace transcends national borders, and cybercriminals can operate from different jurisdictions. Clear rules would need to be developed regarding the court’s jurisdiction and how it could exercise its authority over individuals and entities located in different countries.

Another obstacle would be the enforcement of the court’s decisions. Since cyberspace is not limited to a specific state or territory, executing the court’s judgments could be problematic. States might be reluctant to extradite individuals accused of cybercrimes or to enforce the sanctions imposed by the court.

Furthermore, the issue of state sovereignty could also be a hindrance. Some countries might perceive the establishment of an international cybercrime court as interference in their internal affairs and may oppose such an initiative.

Lastly, the matter of financing and resourcing the court would be a significant challenge. Cybercrime is a complex global problem, and the court would require substantial resources to conduct thorough and effective investigations into the offenses. Convincing all member states and third parties to contribute financially to the court could prove difficult.

 

Hanan KAICHOUH

M2 Cyberjustice – Promotion 2022/2023

 

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