Symposium Review: Moving the Law of Armed Conflict from Crossbows to Cyber Attacks

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Professor Eric Talbot Jensen gave a lecture titled: “The Future of the Law of Armed Conflict at The North Carolina Journal of International Law and Commercial Regulation Symposium on Friday, January 31, 2014. Professor Jensen interspersed his entertaining and thought-provoking lecture with video clips of futuristic weaponry to drive home the point that our technology is developing at such a rapid pace that seemingly futuristic weapons are already within our grasp. As a result, if our laws do not develop to address the possibilities of new weapons that take forms and create harm in unconventional ways, we will be ill-equipped legally to face the threats and consequences of these new weapons.

When the crossbow was invented in the 12th century, laws were created to deal with this new cutting edge weaponry to ensure that warfare was the same as it always was. But, the crossbow changed how war was waged despite the new laws. From that point until now, the advent of every new weapon has brought about new laws to address the consequences of each new weapon with varying degrees of success. Professor Jensen acknowledged that the law is usually reactionary, and for good reason, since the law should regulate real-life instances as opposed to hypothetical situations. Professor Jensen cautions that now the law should attempt to tackle issues in anticipation of future events, as opposed to making decisions in retrospect, because the potential weaponry we are confronted with can create crises and cause destruction on such a grand scale that the time to react may be too short or nonexistent. In Professor Jensen’s estimation, our current set of laws will generally be adequate to handle armed conflict for the next 20-25 years, but he predicts there will be sections of armed conflict over this time period that will illuminate the inadequacies of our current laws of armed conflict. And soon after, those sections of armed conflicts will become the new normal and the majority of our laws will become outdated.

What are these potential new weapons that will change armed conflict as we know it? Professor Jensen believes that with each state trying to outdo the other, the potential is there for space as well as the seabed to be weaponized. Other types of weapons that will change the paradigm of armed conflict will be cyber, bio and genomic weapons. These weapons are particularly interesting because they differ as to our normal definition of what a weapon is, namely something that produces heat, blasts or fragmentation. But cyber, bio, and genomic weapons have the potential to cause great harm without having any of the ordinary characteristics of weapons. Would the use of these weapons constitute an attack? Or would it be considered espionage or sabotage?

Professor Jensen believes that while dealing with weapons of such a different character, we must change our focus from how these weapons function to their effects, but this is only a starting point in creating laws to address these new types of weapons. Additionally, in our changing world, borders are disappearing and the identities and motives of our enemies are becoming more opaque. With so many moving parts, we cannot afford for our laws to fall behind to the point where they cannot adequately cope with the new weapons of the 21st century.

Posted by Vineeth Shanker Hemavathi on Tue. February 11, 2014 8:00 AM
Categories: Customary International Law, Cyberwarfare, Symposium

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