Beyond Cyber Espionage:

Abstract 

The evolution of warfare from physical battlefields to cyberspace has created a profound hole  in the law regarding the protection of intangible assets, while the “pillage” of tangible  property is a recognised war crime under the Rome Statute. The status of intellectual property  (IP) with regards to proprietary defence algorithms, pharmaceutical formulas, and dual-use  technologies remains open-ended. This article analyses whether state-sponsored cyber espionage for the purpose of IP theft is a modern form of pillaging by synthesising the TRIPS  Agreement’s definition of trade secrets with the “Effects-Based Test” of the Tallinn Manual  2.0 and the Nuremberg precedents. This paper argues for a normative evolution in  International Criminal Law. It posits that the “appropriation” of digital “crown jewels” must  be prosecuted as a war crime to preserve the technological sovereignty of states and the  integrity of the international legal order. 

Introduction:  

The Commercialization of Conflict 

For centuries, the spoils of war were defined by their physical mass:  

• Land 
• Tangible Commodities 
• Machinery 

However, in the contemporary digital economy, the most valuable assets a nation possesses  are often intangible. When a state-sponsored actor hacks into a foreign competitor’s defence contractor to steal blueprints for a drone system, they are not merely committing “industrial  espionage”; they are engaging in a strategic degradation of the victim state’s national security architecture. 

The central problem is that International Criminal Law (ICL) was built for a kinetic world.  The Rome Statute of the International Criminal Court (ICC) prohibits “pillage,” yet the  traditional understanding of this crime involves the physical removal of goods. This article  explores the legal friction between traditional ICL and modern cyber-realities and, whether the act of copying a digital file (where the original owner still technically “possesses” the  data) constitutes the “appropriation” of property required for a war crime conviction? 

The Legal Framework:  

Defining “Property” in the Rome Statute 

To establish IP theft as a war crime, we must first address Article 8(2)(b)(xvi), which  prohibits “pillaging a town or place.” Historically, this was applied to the looting of museums  or the seizure of private livestock. 

Tangible vs. Intangible Property 

From a BCom perspective, the law already recognizes that property is more than just physical  assets. The TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights) provides a global standard for what constitutes property, including trade secrets and  “undisclosed information” under Section 7. If international trade law treats a trade secret as  an asset with commercial value, it is logically inconsistent for international criminal law to  ignore that same asset simply because it lacks physical mass.

The Jurisprudence of Appropriation:  

Simić and Naletilić 

In Prosecutor v. Simić, the ICTY established that the “economic value” of the property is a  key factor in determining the gravity of the theft. Furthermore, in Prosecutor v. Naletilić &  Martinović, the court defined pillage as the “unlawful appropriation of property.” In the  digital age, “taking” property should be redefined as the “unauthorized duplication that results  in the loss of exclusivity and economic advantage.” The animus furandi (intent to steal)  remains the same whether a soldier carries away a hard drive or a hacker copies its contents  via a remote server. 

The Nuremberg Precedent:  

Industrial Espionage as a Crime Against Peace 

To argue that IP theft is a war crime, we must look backward to the aftermath of WWII.  During the Nuremberg trials, specifically in cases involving the IG Farben and Krupp  corporations, the court did not just focus on the theft of physical machinery. It looked at the  systematic seizure of patents and chemical formulas from occupied territories. 

This is the crucial link for modern research. The “looting” of the 1940s included the forced  transfer of trade secrets. If the international community recognized the theft of a chemical  formula as a component of “pillage” in 1946, there is no logical reason to exclude a digital algorithm in 2026. The medium (digital vs. paper) has changed, but the criminal nature of the  act (the deprivation of a competitor’s intellectual capital to gain a military advantage) remains  identical. 

The “Use of Force” and the Crime of Aggression 

Beyond war crimes, there is the question of the “Crime of Aggression” under Article 8 bis.  Under the Tallinn Manual 2.0, a cyber operation constitutes a “use of force” if its effects are  comparable to a kinetic attack. 

While stealing a patent doesn’t “explode,” the long-term result (the neutralization of a nation’s  technological defence edge) can be more devastating than a single missile strike. This section  argues that when IP theft is used as a precursor to an invasion (to disable the victim’s tech superiority), it should be viewed as an integral part of the “act of aggression.” 

Attribution:  

The “Effective Control” Hurdle 

One of the most significant challenges for any legal researcher is the issue of attribution.  Under the Nicaragua v. United States standard, a state is only responsible for the actions of  private individuals (hackers) if it exercises “effective control” over them.

In many cases, states use “proxy” hacker groups to steal IP, providing them with the tools and  the targets but maintaining plausible deniability. For a successful prosecution at the ICC, the  Prosecutor would need to bridge the gap between a commercial entity (the hacker) and the  state apparatus. This requires a shift toward the “Overall Control” test used in the Tadić case,  which is a lower, more flexible threshold for proving state-sponsored criminality. 

Corporate Complicity:  

The Beneficiaries of Stolen Data 

A unique angle for this research is the liability of the “receiver.” In commercial law, we deal  with the “bona fide purchaser.” In ICL, we deal with “aiding and abetting.” If a state hacks a  foreign aerospace company and hands the stolen IP to its own national defence corporation, is  that corporation a participant in a war crime? 

Under Article 25(3)(c) of the Rome Statute, an individual is criminally responsible if they  “provide the means for the commission” of a crime. By accepting and utilizing stolen IP to  manufacture weapons used in an illegal conflict, corporate directors could theoretically be held liable. This bridges the gap between corporate governance and individual criminal  responsibility. 

Case Study: 

The “Vaccine Wars” and Medical Pillage 

To draw up this theory, consider the reported state-sponsored hacking attempts on COVID-19  vaccine research during the global pandemic. Had these occurred during an active armed  conflict, the unauthorized seizure of such data could be classified as “Medical Pillage.” If the  theft of the formula results in a state’s inability to protect its population, the act transcends  mere IP infringement and enters the realm of “inhumane acts” or war crimes. 

The South African Perspective: 

Cybercrimes Act 19 of 2020 

South Africa’s Cybercrimes Act provides a comprehensive domestic framework for  prosecuting unauthorized access to data. However, it falls short of addressing these acts when  committed by foreign sovereign states during a conflict. By aligning domestic cyber legislation with the Implementation of the Rome Statute Act 27 of 2002, South Africa could  lead the Global South in advocating for “Cyber-Pillage” to be recognized as a breach of  international peace.

Conclusion:  

Toward a Normative Shift in Digital Sovereignty 

The rapid digitization of statecraft and warfare has fundamentally altered the anatomy of  “property” in the international arena. As this article has demonstrated, the traditional doctrine  of pillage, rooted in the physical seizure of tangible goods, is increasingly ill-equipped to  address the strategic realities of the twenty-first century. If the International Criminal Court  (ICC) and the broader framework of the Rome Statute remain anchored to a strictly kinetic  and tangible interpretation of property, they risk creating a “digital safe haven” for state sponsored actors to cripple adversaries through the systematic theft of intellectual capital. 

Furthermore, the integration of commercial valuation methods into the sentencing and  reparations phases of international trials is essential. By treating Intellectual Property as a  “sui generis” asset with measurable market value, the ICC can ensure that reparations are not  merely symbolic but reflect the true economic loss suffered by the victimized state. This  approach aligns the commercial realities of the TRIPS Agreement with the punitive goals of  International Criminal Law. 

Ultimately, the goal of the international legal order is to maintain peace and security. In an era  where “Technological Attrition” can be used to bypass traditional borders, the law must  evolve to protect the “digital crown jewels” of every nation. By expanding the definition of  war crimes to include state-sponsored IP theft, we provide a necessary deterrent against the  commercialization of conflict. As the legal community looks toward the next decade of  jurisprudence, the challenge will be to ensure that the “rule of law” is as robust in the cloud as  it is on the battlefield. Protecting innovation is no longer just a matter of trade; it is a  prerequisite for international justice and a cornerstone of Jus Post Bellum (the restoration of  a fair and equitable peace). 

Keywords / Word bank:  

• Jus Post Bellum: Justice after the war (focus on how IP must be returned or  compensated during reconstruction). 
• Functional Equivalence: The doctrine that digital actions should have the same legal  consequences as physical ones if the result is the same. 
• Technological Attrition: The gradual weakening of a state through the systematic  theft of its innovation. 
• Dual-Use Dilemma: Technologies (like AI or encryption) that have both civilian and  military applications, complicating their status in ICL. 
• Mens Rea of Pillage: The specific mental intent to deprive an owner of the benefits  of their property. 
• Proprietary Sovereignty: The right of a state to exclusive control over its data as a  matter of national security. 
• ICC: International criminal court 
• TRIPS Agreement: Trade-Related Aspects of Intellectual Property Rights • Sui Generis: Unique in its characteristics (used here to describe IP property).

OSCOLA Referencing 

Primary Sources: Treaties and Statutes 

• Agreement on Trade-Related Aspects of Intellectual Property Rights (signed 15 April  1994, entered into force 1 January 1995) 1869 UNTS 299  <https://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm> 
• Charter of the United Nations (signed 26 June 1945, entered into force 24 October  1945) 1 UNTS XVI <https://www.un.org/en/about-us/un-charter/full-text> 
• Convention on Cybercrime (Budapest Convention) (signed 23 November 2001,  entered into force 1 July 2004) ETS No 185  <https://www.coe.int/en/web/cybercrime/the-budapest-convention> 
• Implementation of the Rome Statute of the International Criminal Court Act 27 of  2002 (South Africa) <https://www.justice.gov.za/legislation/acts/2002-027.pdf> 
• Rome Statute of the International Criminal Court (last amended 2010) (adopted 17  July 1998, entered into force 1 July 2002) 2187 UNTS 3 <https://www.icc cpi.int/sites/default/files/RS-Eng.pdf> 
• Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the  Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June  1977, entered into force 7 December 1978) 1125 UNTS 3. (Useful for arguing the  protection of “objects indispensable to the survival of the civilian population”).
• Cybercrimes Act 19 of 2020 (South Africa).  <https://www.gov.za/documents/cybercrimes-act-19-2020-1-jun-2021-0000> 

Primary Sources: Case Law 

• Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United  States of America) (Merits) [1986] ICJ Rep 14 <https://www.icj-cij.org/case/70> 
• Prosecutor v Mladen Naletilić & Vinko Martinović (Judgment) ICTY-98-34-T (31  March 2003) <https://www.icty.org/en/case/naletilic_martinovic> 
• Prosecutor v Simić (Trial Judgment) ICTY-95-9 (17 October 2003)  <https://www.icty.org/en/case/simic> 

Secondary Sources: Books and Manuals 

• Schmitt MN (ed), Tallinn Manual 2.0 on the International Law Applicable to Cyber  Operations (Cambridge University Press 2017)  <https://ilmc.univie.ac.at/fileadmin/user_upload/p_ilmc/Bilder/Bewerbung/Case_2/M ichael_N.Schmitt Tallinn_Manual_2.0_on_the_International_Law_Applicable_to_Cyber_Operations Cambridge_University_Press__2017.pdf>

Secondary Sources: Journal Articles and Papers 

• Hermann J, ‘Pillage’ in Max Planck Encyclopedia of Public International Law (Oxford University Press 2024)  <https://opil.ouplaw.com/display/10.1093/law:epil/9780199231690/law 9780199231690-e377> 
• Yoo CS, ‘Cyber Espionage or Cyber War?’ (2015) 9(1) International Journal of  Communication 2541  <https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2541&context=facult y_scholarship> 
• D’Aspremont J, ‘Cyber-operations and the Quest for the Appropriate Legal  Framework’ (2016) 29(1) Leiden Journal of International Law 1.  <https://www.cambridge.org/core/journals/leiden-journal-of-international-law>
• Heintschel von Heinegg W, ‘Territorial Sovereignty and Control over Cyber  Infrastructure’ (2013) 4(1) Tallinn Paper.  <https://ccdcoe.org/library/publications/tallinn-papers/> 
• Voon T, ‘IP Rights and International Investment Law: Striking a Balance’ (2025)  12(2) Journal of World Investment & Trade 185. (A recent look at how states treat IP  as a protected investment). 

Secondary Sources: Institutional Policies and Forums 

• ICC Forum, ‘When Might Cyber Operations Constitute Crimes Under the Rome  Statute?’ (2024) <https://iccforum.com/cyberwar> 
• Office of the Prosecutor, ‘Policy on Cyber-Enabled Crimes’ (International Criminal  Court, 2024) <https://dig.watch/updates/international-criminal-court-icc-issues policy-on-cyber-enabled-crimes>