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The difference between common (computer) crimes and acts of war

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The difference between common (computer) crimes and acts of war

Obviously and obviously the (Russian-Ukrainian) conflict is also fought by hitting the technological infrastructures. It is not surprising, therefore, that from a Ukraine pushes for the “recruitment” of a “foreign legion.””Of people able to use computers in an offensive way, and who, on the other hand, arise (more or less) spontaneous aggregations of groups that fight for one or the other side using information technologies. Then there is the very slippery issue of actions committed by so-called “state-sponsored” subjects or by those – typically belonging to criminal groups – who take advantage of the fact that the institutions are “casually” distracted and commit crimes to the detriment , coincidentally, of hostile countries. In this case, it is often difficult to draw a line between a state’s inability to prosecute offenders, and an interest in creating a confused and uncertain situation, which it can indirectly take advantage of.

The anti-Russian technological ostracism and the new digital Iron Curtain

by Andrea Monti

23 March 2022

At least under Italian law, going to fight under a foreign flag is not only a crime, but also justifies the application of special prevention measures. This is true both for those who, physically, take up arms in the name of a cause, and for those who, with the same motivations, attack the technological infrastructures of a warring party. In other words, attacking the information systems of a country at war means, to all intents and purposes, being part of the conflict and therefore violating Article 244 of the Criminal Code according to which it provides for prisoners from 6 to 18 years without the authorization of the government, enlist or carry out hostile acts against a foreign state, in such a way as to expose the Italian state to the danger of war. The law increases the penalty up to life imprisonment if due to these actions the war actually breaks out, and punishes even the “simple” exposure of Italy or citizens to retaliation and reprisals with heavy penalties. And if retaliation occurs or diplomatic relations are interrupted, the imprisonment can reach up to fifteen years. The Milan Public Prosecutor’s Office has already launched an investigation into the presence of Italians in Ukraine and it would be interesting to see if it will extend the file to those who are carrying out cyber attacks from Italy. It is worth noting, on this issue, a paradoxical regulatory short circuit concerning the possibility of challenging the authorities of the “recruiter” country (whatever it is) for the crimes of instigation and criminal association as well as the violation of article 288 of the Code penalty (Anyone in the territory of the State and without the approval of the Government enlists or arms citizens, to serve or serve the foreigner, is punished with imprisonment from four to fifteen years.). In fact, since a state of war has not been declared and the alliances have not been formally determined, if a foreign state recruits people on Italian territory to commit crimes (also) in another country, the “principle of ubiquity” of prosecution. It is enough that a crime begins, “crosses” or ends in Italy to allow the prosecutor to start an investigation.

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The case is different for the (more or less spontaneous) aggregations of entities which, while not serving under another flag, decide to attack the infrastructures of a country. Remaining in a purely legal perspective (and which therefore cannot enter into the merits of the ethical value of individual choices), we are faced with common crimes for which it would not even be possible to try to support the defense of having been formally incorporated into an army. foreign. Furthermore, actions that are not coordinated and clearly committed without being framed in an overall strategy risk even being counterproductive.

Finally, there remains the question of covert e clandestine operation in peacetime (formal) – a subject not regulated by Italian law – and therefore subject to the ordinary rules of the criminal code. It is widely conceivable that the involvement of Western states in actions in support of Ukraine and the Russian reaction translate into actions below the threshold of (public) perception and whose existence must be able to be denied and denied in case something goes wrong. the right way. If this were not the case, the certain attribution of a cyber attack to a state would fall into the category of hostile acts in a condition of undeclared war, with all the consequences of the case.

In conclusion, from whatever side you look at it, responding to the “call to arms” of a foreign country or directly intervening in the conflict outside of any norms are illegal actions and should be punished. This, at least until war is enforced. Although, in that case, there will be more to worry about.

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