Spying on the ICC: protecting the administration of justice in cyberspace

Abstract Malicious cyber operations against the International Criminal Court in 2023 and 2025 have demonstrated the Court’s vulnerability to such threats. While labelled as cyber espionage, the sensitivity of the information stored by the Court indicates that such cyber operations could significantly undermine the integrity of criminal proceedings before the Court and its mandate. This article submits that cyber espionage against the Court presents a three-fold legal issue. First, it might violate the territorial sovereignty of the Netherlands, a Host State, when attributable to a State. However, this depends heavily on the approach a Host State takes to the rule of sovereignty in cyberspace; the Netherlands follows the effect-based approach. Secondly, cyber espionage may infringe upon the Court’s privileges and immunities when the responsible State has corresponding obligations. It remains unclear whether certain privileges and immunities are part of customary international law and could bind non-State parties. Thirdly, the article contemplates how information obtained through cyber espionage could facilitate the commission of offences against the administration of justice under Article 70(1) of the Rome Statute. While cyber espionage is not an offence under Article 70(1) itself, it can facilitate the commission of such an offence. The article argues that the most appropriate mode of liability to capture the nature of cyber espionage within the framework of individual criminal responsibility is under Article 25(3)(c) of the Statute—aiding, abetting, or assisting. This mode of liability captures factual contribution made by a person who provided information obtained through cyber espionage, while preserving the threshold of substantive contribution (actus reus and mens rea). Lastly, the question of functional immunity for officials of non-State parties for espionage against the Court remains unsettled.