6th European Conference - Academic Conferences

Alexandru Nitu
Article 51 restricts a state’s right of self-defense to situations involving ’armed attack’, a narrower
category of act than Article 2(4)’s ’use of force’. Although coercion not involving armed force may
violate Article 2(4) and result in action under Article 39, it does not follow that states may also react
unilaterally pursuant to Article 51. This narrowing plainly reflects the Charter’s preference for
community responses over individual ones, even to threats to peace (Schmitt 1999). In the case of a
IW attack, it is also a prudent approach due to the difficulty states may have in identifying the correct
source of an attack.
The main problem IW poses for Article 2(4) does not derive from its large-scale applications, but from
attacks that do not destroy life or property, such as subversion of property, electronic blockades, and
incursions. The large-scale attacks are similar to conventional methods of warfare and fit comfortably
within traditional use of force analysis. The lower-level attacks present the problem when analyzed
under Article 2(4) because they threaten to erase the distinction between acts of force and acts of
coercion. The severity of an IW attack might not be identified promptly, so it would not be feasible to
require a victim to conduct a damage assessment to determine whether an IW penetration were a use
of force or merely of coercion. (Barkham 2001)
3. International legal limits on IW
3.1 Limits on the use of weapons
Many of the international legal provisions regarding armed conflicts are found in the 1949 Geneva
Conventions and the 1977 Additional Protocols to the Geneva Conventions. The Geneva
Conventions, with their focus on the protection of persons in enemy hands, are of some relevance to
IW. Without reference to specific weapons, the Additional Protocols (AP) address various methods
and means of warfare in general terms, thus being able to present a framework for the use of IW.
In order for International Humanitarian Law (IHL) to apply to a particular armed conflict, neither formal
declaration of war, nor recognition of a state of war is required. Instead, the requirements of the law
become applicable as from the actual opening of hostilities. An international armed conflict is
perceived as any difference arising between two States and leading to the intervention of armed
forces, even if one of the Parties denies the existence of a state of war (Pictet 1952).
There is no doubt that an armed conflict exists and IHL applies once traditional kinetic weapons are
used in combination with new methods of IW. The most difficult situation, as far as applicability of IHL
is concerned, would be the one where the first, or the only hostile acts are conducted by means of IW.
The question is if this type of conflict depends on the type of attack in order to be qualified as
constituting an armed conflict within the meaning of the 1949 Geneva Convention and the Additional
Protocols.
Same as in the U.N. Charter’s case, the fact that IW developed only after the adoption of the
Protocols does not exclude their applicability. The first Additional Protocol to the Geneva Conventions
made specific reference for consideration of new weapons. Article 36 of Additional Protocol I (AP I) is
a strong indicator that the drafters of AP I anticipated the application of its rules to new developments
of methods and means of warfare. This provision requires that ‘In the study, development, acquisition
or adoption of a new weapon, means or method of warfare, a High Contracting Party is under an
obligation to determine whether its employment would, in some or all circumstances, be prohibited by
this Protocol or by any other rule of international law applicable to the High Contracting Party’
(Protocol Additional to the Geneva Conventions 1977). This statement obligates a nation at least to
consider the laws of armed conflict before employing IW means. That consideration should focus on
both the means of force and perhaps more importantly on the effects.
Consequently, the fact that a particular military activity constituting a method of warfare is not
specifically regulated does not mean that it can be used without restrictions. Based on that, nothing
precludes assuming that the more recent forms of IW, which do not involve the use of traditional
weapons, are subject to IHL just as any new weapon or delivery system has been so far when used in
an armed conflict. (Dörmann 2004)
Another fundamental rule of warfare, found in Article 35 (1) of AP I, states that ‘the right of the Parties
to the conflict to choose methods or means of warfare is not unlimited’ (Protocol Additional to the
Geneva Conventions 1977). So far, hostilities have involved physical violence and kinetic energy
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