Is It Time To Update The Law Of Armed Conflict?

The Global Catastrophic Risk Institute recently hosted an online discussion of whether the law of armed conflict, which regulates conduct during armed hostilities, is prepared to handle future conflicts.

The discussion was moderated by Eric Talbot Jensen, an associate professor at the Brigham Young University School of Law.

What Is The Law Of Armed Conflict
In May 2013 testimony before the US Senate, Charles Stimson, a senior fellow at the Heritage Foundation, explained that the LOAC rests on four basic principles:

  1. The principle of necessity—which authorizes that use of force required to accomplish the mission;
  2. The principles of distinction or discrimination—the requirement that combatants be distinguished from non-combatants;
  3. The principle of proportionality—the concept that the anticipated loss of life and damage to property incidental to attacks must not be excessive in relation to the concrete and direct military advantage expected to be gained; and
  4. The principle of humanity or unnecessary suffering—a military force must minimize unnecessary suffering and is forbidden from employing arms or materials calculated to cause unnecessary suffering.

More information on the LOAC can be found here.

Areas Of Deficiency
While the basic principles remain relevant to today’s conflicts, they are deficient in certain important areas.

One area that needs to be updated, the participants noted, relates to the principle of proportionality, which establishes that damage to civilians and their property must be at least proportional to the military advantage gained by an attack.

“While some future weapons might be incredibly precise—imagine a deadly bioengineered virus delivered to a particular target via nanobots—these weapons also carry the risk of causing a global catastrophe, whether by misuse or unintended consequences. The principle of proportionality under the LOAC does not account for this kind of precision warfare that has low probability, high magnitude risks,” GCRI staffer Grant Wilson noted in his summary of the conversation.

The participants identified several areas in which the LOAC has failed to remain current with today’s methods of warfare. For example, the law provides insufficient consideration of the future modes of warfare, including cyber warfare, nanotechnology and genomics.

In addition, the LOAC was built on wars that primarily involved state actors. Therefore, there is little guidance on how to handle non-state actors, such as terrorist groups.

The challenge ahead is how to bring the LOAC up to speed as the current political environment is not conducive to change. The participants concluded that one feasible alternative was for international organizations to take the lead by beginning to interpret how future weapons could fall under the LOAC.

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