8 July 2021
Due to rapid technological developments, warfare has been and is changing. From a humanitarian perspective, new technologies bring both opportunities and challenges. Indeed, new technologies might offer better protection of civilians during armed conflict, but they can also pose new threats to both civilians and armed forces (ICRC Position Paper, 2019, 3-4). At the same time, new technologies often challenge the application and implementation of state-centred international humanitarian law (IHL) (ICRC, 2021).
In this context, it can be observed that cyber operations found their way to the battlefield as states are increasingly developing cyber capabilities (ICRC 2018). Cyber operations can complement or substitute traditional means and methods of warfare and enable the warring parties to minimise civilian casualties and destruction during armed conflict (Ibid). At the same time, cyber-attacks all over the globe have shown the easiness by which essential civilian services and infrastructure can be disrupted through cyber operations (Gisel et. al, 2021, 297).
Additionally, issues of a legal nature have come up due to the emergence of cyber warfare. For instance, the applicability of IHL to cyber operations during armed conflict continues to be the subject of debate. The International Committee of the Red Cross (ICRC), backed by various authors, has firmly taken the stance that IHL applies to cyber operations as cyber capabilities are not more than new means and methods of warfare (Ibid, 298). However, humanitarian rules on the conduct of hostilities only apply if the cyber operations reach the threshold of an armed conflict (Ibid, 303-304). Furthermore, attribution of state responsibility for cyber-attacks to state and non-state actors has proven to be no sinecure (Ibid 309-310; ICRC, 2019, 6-8).
In response to these challenges, the International Committee of the Red Cross (ICRC) has established the Global Advisory Board (the Advisory Board) on Digital Threats in June 2021. The Advisory Board consists of 17 multidisciplinary experts, including the president of the ICRC as chairman, who will research how populations can be protected from cyber threats and other digital risks in practice (ICRC, 2021). The Advisory Board will establish concrete good practices to protect civilian infrastructure against hostile cyber operations during armed conflict and harmful consequences of information operations during armed conflict (Ibid).
Despite all the legal debate and uncertainty surrounding cyber operations under humanitarian law, the Advisory Board is a practical initiative that might go outside the books. It can produce good practices and guidelines on diminishing suffering and protecting civilians considering the digitalisation of armed conflict. It ought to be seen what the outcome of the Advisory Board will be. “The world is digitalising, so are armed conflict,” the ICRC President said on the launch of the Advisory Board (Sberbank, 2021). In this context, the initiative is worth following. It might offer practical guidance to states on protecting civilians from cyberwarfare and applying IHL to this rising phenomenon.
Written by Wout DECLERCQ, Legal Researcher at Finabel – European Army Interoperability Centre
Sources
Gisel, Laurent, Tilman Rodenhäuser and Knut Dörmann. “Twenty years on: International humanitarian law and the protection of civilians against the effects of cyber operations during armed conflicts.” International Review of the Red Cross, no. 913 (March 2021): 287-334.
ICRC, (2019). “ICRC Position Paper, International Humanitarian Law and Cyber Operations during Armed Conflicts.” 9p. [online] Available at: https://www.icrc.org/en/document/international-humanitarian-law-and-cyber-operations-during-armed-conflicts.
ICRC (2021). “Global Advisory Board on digital threats during conflict.” [online] Available at https://www.icrc.org/en/document/global-advisory-board-digital-threats.
ICRC, (2018). “International humanitarian law and cyber operations during armed conflicts.” [online] Available at: https://www.icrc.org/en/document/international-humanitarian-law-and-cyber-operations-during-armed-conflicts.
Sberbank, (2021). “BI.ZONE now part of the Global Advisory Board on digital threats.” [online] Available at: https://www.sberbank.com/news-and-media/press-releases/article?newsID=1b1da9b4-a480-4387-9788-0a8a6a2adb6d&blockID=7®ionID=77&lang=en&type=NEWS.
