"International humanitarian law should not be construed, or interpreted, as legitimizing the resort to conflict."

Open-ended working group on developments in the field of information and telecommunications in the context of international security. Third Formal Meeting.
Statement 10 March 2021

Ambassador Lauber, excellencies,

We would like to commend you, Chair, for presenting the draft report and for your leadership on these rich and complex discussions.

Thank you for giving us the possibility to provide further background on the ICRC's proposal of a new paragraph in the final report. We have submitted this proposal in writing with the intent to support the work of the OEWG and to hopefully contribute to a strong consensus report.

The ICRC we would like to invite States to consider moving to the 'Agreed Conclusions' in the International Law section the reaffirmation – currently in paragraph 84 – that 'international humanitarian law reduces risks and potential harm to both civilians and civilian objects as well as combatants in the context of an armed conflict'. We also believe that agreement can be found on the clarification that IHL 'neither encourages militarization nor resort to conflict in any domain'.

In light of the comments heard by delegations on this subject over the past 18 months, we suggest complementing these reaffirmations by

  • clear references to principles of the UN Charter, such as the settlement of international disputes by peaceful means and the prohibition of the use of force, and
  • the common objective that armed conflict in cyberspace must be prevented.

Our proposal of a new paragraph, which could follow paragraph 24 of the First Draft, would read as follows:

States agreed that international law is the foundation for stability and predictability in relations between States. In addition to the principles of the UN Charter (paragraph 24), and while stressing that armed conflict in cyberspace must be prevented, States recalled that in the context of an armed conflict, international humanitarian law reduces risks and potential harm to both civilians and civilian objects as well as combatants. At the same time, States underscored that international humanitarian law neither encourages militarization nor legitimizes resort to conflict in any domain and should not be construed as such.

As we have stressed previously, the use of cyber operations during armed conflicts is today a reality. Several delegations have also raised concern that an increasing number of States developing military cyber capabilities. Their use is likely to increase in future. In light of this development and the potential humanitarian consequences that cyber operations can cause, the ICRC pursues the sole objective of protecting civilians against harm. For this purpose, we believe reference to international humanitarian law is vitally important.

Using language currently found in paragraph 84, our proposed paragraph would recall that international humanitarian law restricts the means and methods of warfare in order to reduce 'risks and potential harm to both civilians and civilian objects as well as combatants'. Ever 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, including new ones. The International Court of Justice has recalled the 'intrinsically humanitarian character of the legal principles' as found in international humanitarian law and stated that these principles apply 'to all forms of warfare and to all kinds of weapons, those of the past, those of the present and those of the future'.

The proposed paragraph would also recall that international humanitarian law 'neither encourages militarization nor legitimizes resort to conflict in any domain', which is also currently stated in paragraph 84. This is in line with the preamble of the First Additional Protocol to the Geneva Conventions, in which States expressed their conviction that nothing in international humanitarian law 'can be construed as legitimizing or authorizing any act of aggression or any other use of force inconsistent with the Charter of the United Nations'. In light of this widely agreed language and the comments by several States, we have also suggested adding in this new paragraph that IHL should not be construed, or interpreted, as legitimizing the resort to conflict.

The ICRC hopes that the proposed paragraph may be acceptable to all States. We are available to answer any questions and to work with all States, and with you Chair, to further refine this language.

Thank you.