As communication and commerce increasingly shift into the cyberworld, some states and experts have questioned both the breadth and method of criminal law to protect commercial and public interests. In his “Recommendations for Potential New Global Legal Mechanisms Against Global Cyberattacks and Other Global Cybercrimes,” Norwegian judge Stein Schjolberg, also the Chairman of the global High-Level Experts Group on Cybersecurity, focused on the positive need for increased enforcement mechanisms, writing that “without an international court or tribunal for dealing with the most serious cybercrimes of global concern, many serious cyberattacks will go unpunished.” Schjolberg argued that the 2001 Council of Europe Convention on Cybercrime (Cybercrime Convention), although open to all countries in the world for ratification, is not sufficient to address all global crimes committed in cyberspace. The crimes of concern to Schjolberg in his draft Statute for the International Criminal Tribunal for Cyberspace (ICTC) include attacks on communication infrastructure, illegal access, forgery, identity theft, and fraud—all of which reflect the Cybercrime Convention’s structure and delineated crimes. For Schjolberg, the Cybercrime Convention falls short because it lacks an authoritative international body that could enforce the laws in the realm of international criminal law. However, the Cybercrime Convention does not address specific Internet-based crimes that are more important to many developing and transitional nations.
In the absence of an international tribunal, states have addressed cybercrime through domestic legislation and jurisprudence. Recently, the Philippines’ legislature passed a law criminalizing the same acts as are included in the Cybercrime Convention and using similar language; however, the legislation included one additional crime that, according to that nation’s Supreme Court, violates citizens’ human rights. The Filipino law expanded the definition of criminal libel to include statements made on the Internet and increased the penalty for criminal libel to six years’ imprisonment. In 2011, the United Nations’ Human Rights Committee declared the imprisonment of Filipino journalists for libel in violation of Article 19 of the International Covenant on Civil and Political Rights (ICCPR). In keeping with this ruling, the Filipino Supreme Court determined that the new law’s expansion of libel violates the human rights to freedom of expression and opinion.
Like the Cybercrime Convention, Judge Schjolberg’s recommendation garnered criticism for being too Euro-centric and ignoring the unique threats and concerns that developing nations face. Although the Cybercrime Convention is open for ratification to all nations throughout the world, the treaty is only widely accepted within Europe, and the only non-Member State parties are the United States and Japan. When Brazil considered signing the Convention, it eventually decided not to because the intellectual property-crime provisions were not compatible with Brazil’s developing and emerging market. Such emerging markets, which also include China, Russia, India, and Turkey, are often the most vulnerable and at the highest risk for cyberthreats.
The draft ICTC Statute claims to outline the most serious crimes that would trigger the tribunal’s jurisdiction over individuals, but it does not include any Internet crimes that implicate human rights, and it leaves conspicuously absent any mention of freedom of speech. Judge Schjolberg recommended including the ICTC as a specialized bench within the International Criminal Court (ICC), a body established to address, as stated in the Rome Statute establishing the Court, the “most serious crimes of concern to the international community,” including genocide, crimes against humanity, and war crimes. It is unclear how the defined cybercrimes meet the ICC’s jurisdiction, which generally covers the gravest breaches of human rights. The proposed tribunal also does not address the prominent cybercrime discussion occurring among international bodies, states, and non-governmental organizations, a discussion that focuses on limitations to speech online, the vulnerability of individuals’ human rights to freedom of expression, and speech included within cybercrime legislation. Furthermore, creating an international court tasked with prosecuting individuals accused of committing cybercrimes, particularly without addressing the human rights implications of such crimes and the legislation countries pass to prevent them, increases vulnerability of individuals to domestic criminal laws that include additional provisions that restrict human rights.
A 2012 Freedom House study on Internet freedoms and human rights found that twenty of the 47 studied countries experienced a loss in Internet freedom since January 2011. Countries such as Bahrain, Pakistan, and Ethiopia have suffered the greatest declines. Human rights organizations and international bodies such as the United Nations Human Rights Council are fighting to counteract this trend toward more restrictive Internet access laws. In June 2012, the UN Human Rights Council passed a resolution affirming Internet freedom as a human right. By proposing a tribunal that addresses only economic or privacy-based crimes on the Internet, Schjolberg ignores one of the most prominent concerns regarding Internet safety and opens the door to repressive state governments to adopt laws in compliance with the proposed tribunal that may easily include clauses and provisions that overstep citizens’ rights to Internet access, freedom of expression, and access to information.
Critics argue that the only way to establish a global governing document or body to regulate cybercrime is to allow input and ownership of nations from throughout the world. It may be wasteful to throw away the successes of the Cybercrime Convention and Judge Schjolberg’s Recommendations, but in redrafting and amending the treaty, including representatives from developing and developed nations alike would add legitimacy to the process.