'Bloodless Weapons'? The Need to Conduct Legal Reviews of Certain Capabilities and the Implications of Defining them as 'Weapons'

Abstract

The potential implications of a cyber attack on a State have become increasingly apparent. The same is true of attacks in the outer space domain, in the field of nanotechnology and in respect of directed energy capabilities. Yet there may be some reticence to recognize the means of attack as 'weapons', or more broadly, as 'means or methods of warfare'. It might, for example, be said that such means are 'bloodless', especially relative to conventional weapons. While this may be true, the effects of such capabilities are potentially devastating. This paper submits that such capabilities must be recognized as 'weapons, means or methods of warfare' for the purposes of conducting legal reviews of new weapons, whether required by Article 36 of Protocol I to the Geneva Conventions, or by customary international law. The paper explores these capabilities and the legal consequences of recognizing them as weapons. It concludes that there is no reason for a State to take a legal position against recognizing them as 'weapons, means or methods of warfare' for the purpose of conducting a legal review. Such capabilities must be subject to legal review as with any other 'weapon, means or method of warfare' and this is the case even though they may be regarded as 'bloodless'.

Keywords: legal review, Article 36, outer space, cyber space, nanotechnology