How international law applies to the use of information and communications technologies by States

Statement given by Tilman Rodenhauser, ICRC’s legal advisor, at the Fourth substantive meeting of the Open-Ended Working Group on security of and in the use of information and communications technologies - 2021-2025 - New York
Statement 08 March 2023 United States of America

Excellencies, ladies and gentlemen,

The ICRC is grateful for the opportunity to address this OEWG on the question of how international law applies to the use of ICTs by States, with a view to promoting common understandings.

We strongly support the call by delegations – and the significant efforts of the chair – to use this working group to identify concrete measures to maintain peace and security. As a humanitarian organization we strive to see security and protection of people – this is achieved best in times of peace.

Over the 160 years of our existence, we have, however, also seen that peace is broken. All delegations in this room are aware that over the past 10 years, cyber operations have been conducted in situations of armed conflicts, and all delegations have agreed – and I am quoting here from the final report of the previous OEWG – that 'the use of ICTs in future conflicts between States is becoming more likely'. The UN Charter aims to outlaw the use of force in international relations and to prevent war. If war erupts, international humanitarian law aims to impose limits on warfare.

Demanding respect for international humanitarian law is of utmost importance in the ICT environment. Even if directed against a specific target during an armed conflict, cyber operations risk affecting countries far away from the physical battlefield. In the interconnected ICT environment, a lack of respect for international humanitarian law by States that possess military cyber capabilities risks harming people, infrastructure and societies around the world, including in countries that may not have such capabilities nor have any stake in the conflict. Demanding respect for IHL in the ICT environment should therefore be a shared concern of all States.

The ICRC commends this working group for having started to build common understandings on how and when international humanitarian law applies to the use of ICTs.

One, there is agreement that recalling IHL principles by no means legitimizes or encourages conflict.

Two, States are clear that IHL applies only in situations of armed conflict.

 There should also be common understanding that the fundamental principles of IHL apply to ICT operations conducted in situations of armed conflict:

  • Cyber attacks must not be directed against civilian infrastructure.
  • Cyber attacks must not be conducted if it may be expected that they cause excessive civilian harm.
  • No one would argue that cyber operations may be conducted to disrupt the functioning of hospitals – not even in times of war.

Moreover, information operations must not be used to threaten violence if the primary purpose is to terrorize civilian populations.

Agreeing on the basics does not, however, mean that there is full agreement on how IHL applies to the use of ICTs. There is an urgent need to discuss cyber-specific questions. To be concrete, the published views of States diverge on whether digital data enjoys legal protection against damage and destruction similar to physical objects. Common understandings on such an elementary question should be sought to ensure that the protection of civilians is upheld in a digitalizing world.

The ICRC is conscious that discussions on how international law applies to the use of ICTs can be a technical question that requires capacity building. As part of our mandate to work for the understanding and dissemination of knowledge of IHL, the ICRC has today published and will share with this working group four short papers on how and when international humanitarian law applies to the use of ICTs.

These papers:

  • recall when IHL applies to the use of ICTs
  • and provide explanations on how the established international humanitarian law principles of
  1. humanity, necessity,
  2. proportionality, and
  3. distinction,

apply to the use of ICT during armed conflicts.

The ICRC hopes that these resources can support the work of this group.

We are available to discuss these subjects further with any interested delegation.

Thank you.