ICRC Statement to United Nations informal multi-stakeholder cyber dialogue on international law

Delivered by Tilman Rodenhäuser, Legal Adviser
Statement 04 December 2020

Ambassador Akahori, Professor Akande, Excellencies, dear colleagues,

The ICRC is grateful for the opportunity to participate in this informal dialogue on how international law applies in cyberspace. In line with our mandate, we will limit our comments to questions relating to international humanitarian law (IHL). IHL is the body of international law that restricts the use of any weapons, means or methods of warfare during an armed conflict, whether these are new or old, cyber or kinetic. Since the adoption of the St Petersburg Declaration of 1868, IHL developed into a body of law that imposes limits on permissible means and methods of warfare to protect civilians against the effects of hostilities and combatants against unnecessary suffering, among others.

In the ICRC's view, the current pre-draft of the OEWG report adequately reflects the important exchanges of views among States on the application of IHL to cyber operations during armed conflict. We attach great importance to the clarifications

  • in paragraph 29, that IHL "reduces risks and potential harm to both civilians and combatants in the context of an armed conflict", and that IHL "neither encourages militarization nor legitimizes resort to conflict in any domain";
  • and in paragraph 32, that "questions relevant to how the principles of international humanitarian law, such as principles of humanity, necessity, proportionality, distinction and precaution, apply to ICT operations in the context of armed conflict" have yet to be fully clarified.

In light of the threats identified in the pre-draft, and the ongoing development of military cyber capabilities, we believe that finding agreement on how international law, including IHL, restricts cyber operations during armed conflict is of great importance. We agree, however, that such legal questions have to be addressed with prudence.

The ICRC has repeatedly stressed the importance of international law for the maintenance of peace and security. Moreover, we emphasize that international law sets out rules that protect civilians in the unfortunate event of war. States agreed on IHL in light of the horrors they had experienced during armed conflicts of the past. These rules aim to preserve a minimum of humanity in future conflicts. For example, they prohibit any attacks on civilians and civilian infrastructure, and they afford special protection to medical facilities. The ICRC urges States to capture this common denominator in the OEWG report: Civilians and civilian infrastructure must be protected against the effects of cyber operations during conflict and must not be attacked, in accordance with IHL.

The ICRC is aware that a number of States have raised legal and political questions in relation to the application of IHL in the ICT environment.

  • First, it has been emphasized that IHL is a body of law that only applies during armed conflict. In our view, this point is uncontroversial from a legal point of view and could be agreed by all delegations.
  • Second, some delegations have expressed concern that recognizing IHL applicability to cyber operations during armed conflict could either encourage the militarization of cyberspace or be misused as legitimizing unlawful cyber operations. Others have emphasized that recalling the applicability of IHL to cyber operations during armed conflict does not, in any way, condone the militarization of cyberspace or cyber warfare. We encourage delegations to work together to find solutions that accommodate the concerns of all States, taking into account that the application of existing rules of IHL in cyberspace does not preclude discussions on additional rules or norms, if deemed necessary.
  • Third, several delegations have raised questions on how IHL applies to cyber operations, including on the interpretation and application of basic IHL principles, such as distinction, proportionality, and precautions. In the ICRC's view, these questions are of utmost importance. We encourage States to deepen their exchanges in future expert discussions on how IHL applies in cyberspace.

The ICRC remains available to support these discussions as needed.

Thank you.