LOAC: New Paradigms Need New Laws

Emerging Trends in Warfare 

Every day new and even more advanced technologies are emerging at a dazzling pace enabling lightning-swift communications, dramatic gains in productivity, new miracle drugs and cures, richer bountiful harvests and more.   While no one wants to give up on the progress enabled by them, they represent a dark side too for which mankind is ill-prepared, so dazed it is by the glitz and glamour they bring with them. Hidden from common view is the strategic quandary these technologies bring to the table, a hallmark being their ability to defy deterrence, elude conventional defences and bypass existing international legal frameworks.

While biological agents have not appeared on the battlefield since the early 20th Century, yet they remain a significant “threat in being.”  The U.S. government has since 2001 graded bio-defence as a topmost priority in their national defence charter. There have been many studies which have been predicting the use of biological agents as a weapon of mass destruction by terrorists or non-state actors being used as proxies by powerful nations/ rogue nations.

Yet another area of concern is Genomics - “study of genes and their function.”  In the field of medical sciences, genomics is being touted as the next revolution with long term effects on the health of mankind. With falling cost, it is predicted that it would be possible to manipulate genomes by individuals working alone to re-engineer genomes into bio weapons.

What may sound like science fiction is very close to reality; infection of crops or target populations through difficult to detect viruses or nanobots to virtually bring about a collapse in all spheres of economic and social life without firing a shot in anger. COVID 19 has graphically and emphatically brought this into focus how international travel and commercial aviation can infect the entire world leading to a virtual collapse of the world as we know.

Cyber is yet another theatre which is poorly covered by LOAC. Cyber attackers can exploit the existing loopholes in LAOAC to create malware that like the Coronavirus, spreads through civilian systems attacking specific target systems to collapse economic and strategic assets. While some existing legal frameworks can be applied to respond to emerging cyber capacities, the need is for creating a new set of rules to deal with the threat in a holistic manner. A good example of the ambiguities in LOAC pertains to the definition of attack as cyber-attacks do not come under its ambient, despite the fact that they can be as deadly as any kinetic attack.

The Internet poses another set of new challenges. It has enabled the association of likeminded, dissatisfied and baleful groups of individuals and organisations to plug into global networks to levee in masse cadre to implement their creed. Leveraging social media, such groups can recruit new adherents, collect information, disseminate their ideology, formulate strategies and coordinate attacks in distant and disparate locations. Hacktivists, as individuals or state-sponsored, can play a critical role while enabling deniability to their sponsors as was witnessed in the recent conflict between Russia and Georgia and Estonia,

Conventional logic while framing LOAC felt that by making combatants wear uniforms distinguished their nationality. This no longer holds good as weapons like viruses, genomes, and malware will require no standards to pinpoint nationality and accountability.

Spatial boundaries based on the Westphalian concept of nation-state enabled LOAC to define specific areas of conflict where these laws could be applied.  Modern technology is making a mockery of the Westphalian concepts, and national boundaries are being rendered irrelevant. LOAC will now have to account for conflicts taking place in outer space, on the seabed, on celestial bodies and across the newly accepted domain of cyberspace. The existing Outer Space Treaty limits some military activities in space, but it does not cater to the weaponisation of space with say, laser weapons etc.

An Obsolete Legal Framework

Most comprehensive legal frameworks governing methods and means of warfare is the 1977 Protocol Additional to the 1949 Geneva Conventions. In addition, the 1972 “Convention on the Prohibition of the Development, Production, and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction,” known as the BWC, lags woefully behind any providing any firm guidelines for inspections and controls. As regards enforcement, no such provision exists. Since bio research is widely conducted worldwide, there is no clear definition of what would amount to an "offensive or defensive research" leading to the formulation of bio weapons. With no accurate verification mechanism for ensuring compliance, the laws are toothless.  Even such a basic factor like what can be constituted as a "trigger" in terms of specific equipment or scientific activity which will point to a biological warfare capability has still not be agreed upon by the international community. 

An inflexible LOAC acts as an incentive for powerful nations to bend it to their convenience. Chinese strategic literature talks about " legal warfare" which is defined as convincing the world that own side is adhering to the law while the opponents are violating it. The U.S. too is contemptuous of LOAC when it comes to the use of latest drone technology to violate sovereign boundaries to execute suspected "transnationals" without trial or any formal declaration of hostilities.

The Way Ahead

With changing times, LOAC has to evolve. It has to become proactive and adapt to the pressures that future developments in technology will bring to bear.  LOAC has to cater for all such conflicts, wherever they are waged, by whom they are fought and whatever means and methods used.   

To remain relevant in its role as the regulator on the conduct of armed conflict, all dimensions of the conflict have to be taken into perspective as never before.

Even if LOAC lack the teeth to take punitive action against violators, its ability to signal to the world in general what is permissible and what is not is important.  It should aim at ensuring that any state developing new warfare technology or adapting existing technology for warfare, must comply with a set of guidelines established under the LOAC. International monitoring agencies backed by LOAC should have the power to review new weapons and methods of warfare and determine its legality under international law.

Existing protocols like the BWC need to be strengthened through a compulsory verification regime that makes it difficult for nations to conceal cyber/ biological weapons programmes. Any unusual outbreak of an unknown disease should lead to automatic inspections by internationally constituted teams to verify if the cause is natural or manmade.  State institutions dealing with genetic manipulation, vaccine creation and aerobiology must file annual declarations and should be open to international surprise inspections.

Large Corporates dealing with cutting edge research in biotechnology and other fields, which are closely related to bio warfare, refuse inspections citing the fear of industrial espionage.  
Surely, the experiences of COVID 19 should be enough to push aside such puerile objections.

An export control regime is critical to the limitation of the spread of bio weapons. However, the dual-purpose nature of the basic ingredients and equipment makes it difficult to deny access to all and sundry.