A/76/136 Particularly on ICTs, there are many factors advising a cautious approach on countermeasures. First, there is an added difficulty to attribute cyber activities to a particular State, which is aggravated by the fact that States have different technical resources and capabilities to both identify the origins of a cyber activity and to verify claims of breaches of international obligations through cyber means. Second, cyber operations can be designed to mask or spoof the perpetrator, which in turns increase the risks of miscalculated responses against innocent actors. Finally, the speed with which the precipitating wrongful cyber operations may unfold poses a high risk of escalation, with potential rippling effects to the kinetic domain. With this in mind, Brazil considers that there needs to be further discussions on the legality of countermeasures as a response to internationally wrongful acts, including in the cyber context. The discussions must fully take into account the UN Charter in its entirety, thus excluding from the outset any possibility of using force as a countermeasure – a view that has already been confirmed by the ILC. The priority of peaceful settlement of disputes, in line with articles 2(3) and 33 of the UN Charter, must also be reaffirmed. 5. International Humanitarian Law International humanitarian law (IHL) is fairly equipped to answer many of the questions associated with new technologies, including ICTs. There is no doubt that IHL applies to States use of ICTs during an armed conflict. The fact that a specific weapon has been invented after the development of humanitarian law does not exempt it from regulation. Quoting from the ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, excluding cyber operations from IHL scope of application “would be incompatible with the intrinsically humanitarian character of the legal principles in question which permeates the entire law of armed conflict and applies to al1 forms of warfare and to al1 kinds of weapons, those of the past, those of the present and those of the future.” 37 IHL applies to situations amounting to armed conflict independently of its classification as such by the parties. 38 For IHL, it does not matter whether the armed conflict is lawful or not, because its objective is to minimize human suffering and provide a minimum level of protection to civilians in any scenario of hostilities. Hence, the recognition that international humanitarian law applies to the cyberspace does not in any way endorse its militarization or legitimize cyberwarfare, but only ensures a minimum level of protection if an armed conflict arises. There are two instances where IHL might apply to cyber activities. First, if they are carried out as part of an ongoing armed conflict, contributing to conventional operations conducted by the parties. Second, if the cyber activities themselves cross the threshold of violence to be characterized as an armed conflict. Of particular importance, the 2015 GGE report has noted the established international legal principles, including, where applicable, the principles of humanity, necessity, proportionality and distinction. For Brazil, the IHL principle of precaution is also applicable to the use of ICTs by States, meaning that parties must “take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects”. 39 __________________ 37 38 39 22/142 ICJ, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, p. 259. Common article 2 to the Geneva Conventions of 1949. Additional Protocol I to the Geneva Conventions, art. 57. 21-09670