Reimagining the ICC’s Role in Prosecuting Digital Intellectual Property Crimes

By: Alan Tai
Edited by: Alexa Tan and Clark Mahoney

For much of human history, spoils of war have been tangible: gold, grain, art, people. One of the oldest examples is in the 8th century BC, when Assyrian king Tiglath-Pileser III took the statues of gods from enemy cities.[1] During the Second World War, looting (or pillaging) was common among both Axis and Allied soldiers, targeting museums, homes, and cultural spaces. Even as recently as 2003, looters stole 15,000 objects from the National Museum in Baghdad during the chaos of the Iraq War. 

What counts as a spoil of war has vastly changed today. The most consequential assets, from national registries to proprietary software, exist only as information, oftentimes exclusively in the digital space. Notably, much of this data is protected under modern-day intellectual property (IP) law. IP is broadly recognized as “creations of the mind,” which can include digital cultural works across a variety of mediums.[2] Digital IP can also be cultural; examples of digital cultural works exist in Indigenous communities in the U.S., who have digitized artworks, hosted Cree language lessons on social media, and produced games that teach students about Indigenous culture.[3] In many ways, these works are analogous to physical artifacts: they embody collective memory, transmit cultural identity, and serve as repositories of tradition; they can be irreparably damaged or erased through intentional destruction; they can be misappropriated or used without consent; and they hold community-level significance that makes their exploitation materially harmful. 

However, international humanitarian law (IHL) remains anchored in a physical definition of “property.” From the 1954 Hague Convention to the International Committee of the Red Cross, cultural property is frequently mentioned but has generally been limited to physical assets.[4] The Tallinn Manual 2.0, an academic project addressing the application of international law to cyber activities, debated the meaning of terms like “object” and “property,” with a majority of the writers agreeing that “sensu stricto” (strictly speaking), the IHL notion of “object” does not include data due to its intangibility.[5]

Despite the fixation on “property” as physical assets, the importance of digital property in the modern age is apparent. Christopher Greulich and Eric Talbot Jensen of the J. Reuben Clark Law School suggest that definitions of “pillage” are transforming during the digital era, particularly with the rise of cyber crimes.[6] For instance, Chinese intellectual property theft from the U.S. is valued at 225 to 600 billion dollars yearly.[7] With cybercrime rapidly proliferating, the need to consider its implications from the lens of IHL is only growing, especially for future cases where it may be used to target digital cultural property.

Richard Ong offers a perspective on how cybercrime may target digital cultural IP in the Columbia Human Rights Law Review. Actors may attack and exploit cultural property as a method of ideological assertion or gaining economic benefits.[8] A proof of concept for this comes from the 2014 North Korean cyberattack on U.S. film studio Sony Pictures, motivated by the negative portrayal of Kim Jong Un in the film The Interview. Ong states that “cyberattacks are a potent means of targeting cultural objects” at a time when museums, archives, and heritage institutions have become digitized through online galleries and multimedia exhibits. It is not difficult to imagine a world several decades into the future where the tenets of a subgroup’s culture — language, art, craftsmanship — exist solely as digital artifacts after rapid cultural assimilation. 

The International Criminal Court (ICC) is one actor that may be equipped to handle digital IP crime. It is an independent judicial body that is governed by the Rome Statute, which 123 nations are party to.[9] The ICC’s mandate is to prosecute genocide, crimes against humanity, war crimes, and crimes of aggression—crimes that can include the pillaging of cultural IP. Under Article 8(2)(b)(xvi) and 8(2)(e)(v) of the Rome Statute, “pillage” is explicitly listed as a war crime.[10] Traditionally, pillage refers to the appropriation of physical property without consent, especially during armed conflict. As stated earlier, classical legal readings of IHL view pillage as only involving tangible goods. 

However, given the importance of cultural data, it is reasonable—perhaps just—for the ICC to encompass IP crimes under pillaging. If cultural data performs the same social and historical functions as physical artifacts, its appropriation produces the same type of harm that classical pillage provisions aim to prevent. In fact, the ICC has already recognized cultural destruction as a standalone war crime with intangible harms. The 2016 Prosecutor v. Ahmad Al Faqi Al-Mahdi case is the ICC’s most relevant and recent precedent. Al-Mahdi, a member of a Malian jihadist organization, was convicted for intentionally directing the destruction of cultural buildings in Timbuktu, Mali in 2012.[11] The case lays the groundwork for prosecuting further crimes against cultural property, even in the context of digital IP. The Court emphasized that the destruction was criminal because it harmed the identity and history of a cultural community, even if the damage did not result in major economic losses or human casualties, which many saw as a landmark precedent. The symbolic nature of the act was at the heart of the case, rather than its tangible consequences. Cyberattacks on digital cultural property in the future may follow identical motivations and therefore be subject to the same logic used by the prosecution in this case. 

While the ICC’s ruling in Al-Mahdi did not endorse a broader scope for the Rome Statute’s protection for cultural property (the court focused on facts applied to Article 8(2)(e)(iv) on intentionally directed attacks on buildings), an ICC report published in 2021 offered further clarifications on how the Court views cultural property.[12] The report shifts the Court’s terminology from “cultural property” to “cultural heritage,” which it views as a “broad concept which incorporates both tangible and intangible expressions of human life”—a definition that would include digital artifacts. The ICC aligns its work with human rights law, stating that attacks on cultural heritage may violate not only IHL, but also human rights such as freedom of expression and religion. 

More forcefully, the report outlines how cultural heritage destruction can be linked to other major crimes within the ICC’s jurisdiction. Destruction can constitute persecution (Article 7(1)(h) of the Rome Statute) when used to intentionally and severely deprive a group of people of fundamental rights based on their identity; extermination (Article 7(1)(b)) when intended to bring about the destruction of a people; and torture (Article 7(1)(f)) when it involves severe mental suffering. Acts of cultural heritage destruction may even provide evidence of the specific intent required for genocide (Article 6). The strategies outlined in the 2021 report represent considerable progress in developing jurisprudence on how IP theft may be prosecuted on an international level when it is used to erase, exploit, or appropriate protected groups, especially during times of armed conflict. 

There is still work to be done to make IP crimes widely prosecutable by the Court. The 2021 report primarily focuses on the destruction of cultural heritage, yet IP crimes nowadays are diverse in nature, from the wholesale expropriation to the discrete manipulation of IP. This is only exacerbated by the rise in generative artificial intelligence, which enhances cyber operations. Ronald Alcala in the International Review of the Red Cross proposes mechanisms in which states can strengthen digital cultural IP protection.[15] Alcala argues that during peacetime, states must purposefully and deliberately identify digital works they consider to be important to cultural heritage. This system could involve blockchain authentication, online registrations, or digital identifiers like watermarks. Actions like these would help bolster ICC cases because they create a clear evidentiary record of ownership, provenance, and cultural significance, allowing prosecutors to demonstrate that targeted digital assets meet the thresholds of “property” under IHL. A record of digital cultural works is analogous to how the United Nations Educational, Scientific and Cultural Organization (UNESCO) marks physical cultural heritage sites. In fact, UNESCO World Heritage designation was used by prosecutors to prove the cultural significance of the Malian sites damaged in Al Mahdi. 

Beyond these peacetime considerations, Alcala contends that laws must be conceptualized to protect digital material. In the context of IHL, this approach means that legal interpretations of “property” must expand to include digital IP. Additionally, physical cultural property in the form of digital surrogates, which are digitized versions of physical artifacts, must be protected. This interpretation would focus on cultural information and significance rather than the originality of the work itself. Under such a view, an actor who intentionally pillages digitized museum archives to target a particular community could fall within the ICC’s evolving jurisprudence on cultural property crimes. 

Although the ICC has outlined strategies and frameworks to tackle digital cultural IP crimes, its efficacy is limited. For one, key actors have not signed or ratified the Rome Statute, including three permanent members of the United Nations Security Council: the United States, Russia, and China.[13] Countries which have experienced armed conflict in recent years, such as Israel, Syria, Lebanon, and Libya, are also not party to the ICC. In addition, the Court has suffered from a reputation crisis, with observers noting that it applies a “selective application of justice,” primarily targeting African conflicts and serving neo-colonial Western interests.[14] Powerful nations have targeted the ICC, with the United States applying sanctions to the organization and Russia rejecting the Court’s charges against Vladimir Putin and other Russian officials for the war in Ukraine. If the ICC were to prosecute IP crimes, it must hold powerful countries and individuals accountable and work with both party and non-party states to secure the evidence needed for successful cases. This is crucial within the digital realm of IP crime, given how digital evidence must be collected, verified, stored, and deployed properly.[15]

Digital IP now occupies the same cultural and historical spaces that physical artifacts once exclusively held. While widespread aggression has yet to be seen, it is clear that harms inflicted through cyberattacks, data theft, and digital manipulation have the potential to mirror the violence of traditional pillage: erasing the identities and histories of vulnerable cultural groups. The ICC’s jurisprudence has not fully embraced digital cultural property as “property” under IHL, but the Court’s evolving posture uniquely positions it to take on this challenge and set standards that can enhance doctrinal clarity. If the international community is to prevent future cultural erasure in the digital age, the ICC must reimagine pillage and cultural property for a world where heritage is shared via network streams, encoded onto hard drives, and attacked with bytes rather than bombs. 

Notes:

[1] Blue Shield International, “Looting and Pillage,” accessed Nov. 17, 2025, https://theblueshield.org/looting-and-pillage/

[2] World Intellectual Property Organization, “What Is Intellectual Property (IP)?,” accessed Nov. 17, 2025, https://www.wipo.int/en/web/about-ip

[3] Education Northwest, “Native Communities Harnessing the Internet to Share Traditional Knowledge,” accessed Nov. 17, 2025, https://educationnorthwest.org/insights/how-native-communities-are-harnessing-internet-share-traditional-and-contemporary

[4] Richard Ong, “Hard Drive Heritage: Digital Cultural Property in the Law of Armed Conflict,” Columbia Human Rights Law Review 53, no. 1 (2021): 248–294.

[5] Laurie R. Blank and Eric Talbot Jensen, “LOAC and the Protection and Use of Digital Property,” in The Rights to Privacy and Data Protection in Times of Armed Conflict, ed. Russell Buchan and Asaf Lubin (Tallinn: NATO CCDCOE Publications, 2022), 58.

[6] Eric Talbot Jensen and Christopher D. Greulich, “Cyber Pillage,” Southwestern Journal of International Law 26, no. 2 (2020): 264–288.

[7] Tech Diplomacy, “IP Theft,” accessed Nov. 17, 2025, https://techdiplomacy.org/tech-diplomacy/ip-theft/

[8] Ong, “Hard Drive Heritage.”

[9] Legal Information Institute, Cornell Law School, “International Criminal Court,” accessed Nov. 17, 2025, https://www.law.cornell.edu/wex/international_criminal_court

[10] Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90.

[11] Harvard Law Review, “Prosecutor v. Ahmad Al Faqi Al Mahdi,” Harvard Law Review 130 (2017): 1978–1985, https://harvardlawreview.org/print/vol-130/prosecutor-v-ahmad-al-faqi-al-mahdi/

[12] Office of the Prosecutor, International Criminal Court, Policy on Cultural Heritage (June 14, 2021), https://www.icc-cpi.int/sites/default/files/itemsDocuments/20210614-otp-policy-cultural-heritage-eng.pdf

[13] United Nations Treaty Collection, accessed Nov. 19, 2025, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&clang=_en

[14] Peace Research Institute Oslo (PRIO), “The International Criminal Court at Risk of Collapse,” accessed Nov. 19, 2025, https://www.prio.org/comments/1164

[15] International Criminal Court Forum, “Cyber Evidence Debate — How Can Cyber Evidence Help the ICC?,” accessed Nov. 19, 2025, https://iccforum.com/cyber-evidence

Bibliography:

Blue Shield International. “Looting and Pillage.” Accessed Nov. 17, 2025. https://theblueshield.org/looting-and-pillage/

Blank, Laurie R., and Eric Talbot Jensen. “LOAC and the Protection and Use of Digital Property in Armed Conflict.” In The Rights to Privacy and Data Protection in Times of Armed Conflict, edited by Russell Buchan and Asaf Lubin, 50–66. Tallinn: NATO CCDCOE Publications, 2022.

Education Northwest. “Native Communities Harnessing the Internet to Share Traditional Knowledge.” Accessed Nov. 17, 2025. https://educationnorthwest.org/insights/how-native-communities-are-harnessing-internet-share-traditional-and-contemporary

Harvard Law Review. “Prosecutor v. Ahmad Al Faqi Al Mahdi.” Harvard Law Review 130 (2017): 1978–1985. https://harvardlawreview.org/print/vol-130/prosecutor-v-ahmad-al-faqi-al-mahdi/.

International Criminal Court Forum. “Cyber Evidence Debate — How Can Cyber Evidence Help the ICC?” Accessed Nov. 19, 2025. https://iccforum.com/cyber-evidence.

International Criminal Court, Office of the Prosecutor. Policy on Cultural Heritage. June 14, 2021. https://www.icc-cpi.int/sites/default/files/itemsDocuments/20210614-otp-policy-cultural-heritage-eng.pdf.

Jensen, Eric Talbot, and Christopher D. Greulich. “Cyber Pillage.” Southwestern Journal of International Law 26, no. 2 (2020): 264–288.

Legal Information Institute, Cornell Law School. “International Criminal Court.” Accessed Nov. 17, 2025. https://www.law.cornell.edu/wex/international_criminal_court.

Ong, Richard. “Hard Drive Heritage: Digital Cultural Property in the Law of Armed Conflict.” Columbia Human Rights Law Review 53, no. 1 (2021): 248–294.

Peace Research Institute Oslo (PRIO). “The International Criminal Court at Risk of Collapse.” Accessed Nov. 19, 2025. https://www.prio.org/comments/1164.

Rome Statute of the International Criminal Court. July 17, 1998. 2187 U.N.T.S. 90.

Tech Diplomacy. “IP Theft.” Accessed Nov. 17, 2025. https://techdiplomacy.org/tech-diplomacy/ip-theft/.

United Nations Treaty Collection. Accessed Nov. 19, 2025. https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&clang=_en.

World Intellectual Property Organization. “What Is Intellectual Property (IP)?” Accessed Nov. 17, 2025. https://www.wipo.int/en/web/about-ip.