Since conflicts began, attempts have been made to carve out acceptable means and methods of warfare in the international order. Indeed, they can be deemed to represent two sides of the same coin; while the means of warfare refer to the weapons being used in the armed conflict, the methods of warfare refer to the strategies or measures that a party to the conflict may resort to in order to achieve their respective goals.1Editorial, “Methods and means of warfare” ICRC Overview (29 October 2010) The rules and regulations governing means and methods of warfare have been enshrined in international law, and these must be considered while evaluating the status of new means and methods of warfare. Keeping their evolution owing to technological, political and other similar measures in mind, international humanitarian law has devoted itself to establishing a clear threshold for lawful means and methods of warfare.2Rain Lilvoja, “Technological change and the evolution of the law of war” International Review of the Red Cross (2016), 97(900), 1157-1177. Based on the principle of humanity, this threshold defines the permitted means and methods of warfare to serve the common objective of reducing suffering and protecting civilians from the adverse and avoidable repercussions of an armed conflict.3United Nations Human Rights (Office of the Commissioner) “International Legal Protection of Human Rights in Armed Conflict” United Nations Publications (New York and Geneva: 2011)
Designing a Distinct Framework
States do not have an absolute right to choose any means or methods of warfare.4Article 35(1), Additional Protocol I Even in the direst of situations, States must adhere to their international obligations to refrain from weapons that cause long-term and widespread harm to the environment and anything that makes civilians the object of an attack in an indiscriminate manner.5Rule 45 and Rule 71 of Customary International Humanitarian Law (ICRC) IHL Database For this purpose, the international community has to respect the rules and regulations enshrined in customary international humanitarian law and treaties. By conveying a clear ambit for permitted means and methods of warfare, these rules facilitate military objectives while simultaneously attempting to maintain a shield for civilians, even in the face of necessity. Under this umbrella, the 1907 Hague Convention, the Geneva Conventions, their Additional Protocols and other multilateral treaties, and customs stand as major pillars that extend support to this framework.
Means of Warfare
Biological weapons refer to viruses, fungi, bacteria and other similar means that are developed with the intention to spread death and disease amongst humans and other living creatures. Considering how history has witnessed consistent occurrences of bioterrorism, upholding the prohibition of biological weapons is crucial.6Stefan Riedel, Biological warfare and bioterrorism: a historical review” Proc (Bayl Univ Med Cent) (October 2004) 17(4), 400-406 For instance, the adverse effects witnessed in light of smallpox and Ebola indicate that biological weapons have the potential to violate the principle of distinction on a vast scale.7Mark Shwarts, “Biological warfare: an emerging threat in the 21st century” Stanford News Service (1/11/01) Keeping this in mind, customary international humanitarian law has deemed that the use of biological weapons is prohibited.8Rule 73 of Customary International Humanitarian Law (ICRC) IHL Database The same has also been endorsed in the Biological Weapons Convention.9Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction 1972
The Nuclear Weapons Question
The nuclear bombings of Hiroshima and Nagasaki confirmed the horrors that accompany a nuclear weapon.13Editorial, “75 years after Hiroshima and Nagasaki, a nuclear threat returns” ICRC (31 July 2020) In its Advisory Opinion, the International Court of Justice deemed that by virtue of the principle of distinction and principle of humanity, the “threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict”.14Advisory Opinion, “Legality of the Threat or Use of Nuclear Weapons” International Court of Justice (Reports of Judgments, Advisory Opinions and Orders) (8 July 1996) However, the Court did not hold that there was a customary prohibition on the use of nuclear weapons. Considering the magnitude of destruction that accompanies the use of nuclear weapons, the United Nations encouraged the ban of such weapons with the Treaty on the Prohibition of Nuclear Weapons;15United Nations, Treaty on the Prohibition of Nuclear Weapons (Adopted on 7 July 2017, entered into force on 22 January 2021) with 86 signatory states and 55 state parties presently, the objective is gradually being highlighted in the international community.16UNODA, Treaty on the Prohibition of Nuclear Weapons (Status of the Treaty) Available at <https://treaties.unoda.org/t/tpnw> Likewise, the International Red Cross and the Red Crescent Movement passed a historic resolution17Council of Delegates (2001) “Working towards the elimination of nuclear weapons” Resolution 1 ICRC which said that nuclear weapons should not be used in armed conflicts as they prevent adherence to the principles of proportionality, precaution, humanity and distinction. Similarly, the Nuclear Non-Proliferation Treaty 1968 served the purpose of discouraging nuclear armament as well.18United Nations, Treaty on the Non-Proliferation of Nuclear Weapons 1968 (729 UNTS) Although no customary rule exists banning nuclear weapons, such treaties and resolutions form state practice which may result in one emerging in the future.
Methods of Warfare
Autonomous Weapons: A New Player
According to Article 36 of the First Additional Protocol to the Geneva Conventions, it is mandatory to assess new weapons, means or methods of warfare in order to ensure that they comply with international law. With the dawn of an age where a combatant sitting in one part of the globe can use cyberspace to launch an attack halfway across the world, the evolution and emergence of new means and methods of warfare is becoming a dangerous reality. For instance, the rising use of suicide bombers to target civilian populations and objects as a method of warfare betrays the principle of distinction. In furtherance to this, considering a cyber military operation’s capacity to regulate in a borderless and unconquered territory anonymously, it has the potential to set a dangerous precedent that threatens peace, stability, and security in the international community. In a similar fashion, the use of autonomous weapons has sparked an international debate; from the use of drones, the world is now warming towards the idea of killer robots entering the arena of armed conflicts.27Bonnie Docherty, “A Moral and Legal Imperative to Ban Killer Robots” Heed the Call Therefore, we can no longer afford to keep the current and future status of autonomous weapons ungoverned.
Autonomous weapons, equipped with appropriate software and sensors, function without human involvement; in an armed conflict, their weapon system allows them to detect and attack targets. This means that after such a weapon has been activated by its operator, the autonomous weapon adorns the role of a combatant.28A legal perspective: Autonomous weapon systems under international humanitarian law Neil Davison Scientific and Policy Adviser Arms Unit, Legal Division International Committee of the Red Cross Since the use of force is not governed by human control and compassion, the use of autonomous weapons raises ethical concerns over whether artificial intelligence can respect the principle of proportionality. Considering how machine interfaces may also be susceptible to hacking or spoofing, there is a legitimate risk of autonomous weapons being exploited by terrorists or belligerents to launch indiscriminate attacks against civilians.29Matthew Breay Bolton et.al., “Addressing the threat of Autonomous Weapons” Friedrich-Ebert-Stiftung (January 2021) This indicates that the predictability of autonomous weapons is yet to be conquered, and so the possibility of them abiding by the rules of proportionality, distinction and precaution appears to be murky.
To ensure that the use of autonomous weapons remains within the authorized parameters of international law, it is important to ensure a foolproof system that accurately identifies perpetrators who use autonomous weapons to cause harm to civilian life. Moreover, transparency and accountability should be considered as key factors governing the use of autonomous weapons; no major defect regarding their use should be concealed, and perpetrators should be held accountable if their use of such weapons is contrary to the principles of international humanitarian law. Such accountability should stretch from national jurisdictions to international courts dedicated to preserving law and order in the international community. In order to establish them as legitimate means and methods of warfare complying with international law, it is integral for the international community to unite in designing a set of rules and regulations that governs the use of autonomous weapons in a separate international treaty. Since this is still a grey area, international entities, varying from state bodies to international non-governmental organizations, shoulder an important responsibility of devising an appropriate path for the use of autonomous weapons in armed conflicts.