To Kill a Man with a Joystick

Written by: Teymour Aslam

With hindsight, it appears that the horrific events of September 11th, 2001, may have triggered a paradigm shift between established geopolitical alliances, altering conventional perceptions of, and existing relations between nation states, the manner in which international relations are conducted, and perhaps most relevantly, the utilisation of unconventional military tactics in situations which are becoming increasingly difficult to classify as conventional or traditional armed conflicts under IHL.  Continue reading

How High are High Officials: Analyzing Obama’s Speech on Syria

The early hours of August 21, 2013 saw a drastic turn in the Syrian conflict as a chemical weapons attack on civilians living in the agricultural belt around Damascus took place. Three days after the attack, medical charity Medecins Sans Frontieres confirmed that three hospitals it supports in Damascus had treated about 3,600 patients with “neurotoxic symptoms” on the day of the attack; 355 of these had died.[1] Ever since there’ve been mutual accusations of the use of chemical weapons by the countering parties, namely Assad’s regime and the rebels,[2] which also caused a split of views and stances on the international plane. Yet, despite the absence of the forthcoming United Nations [hereinafter UN] report on the attack,[3] the parties to the conflict and the international community are all of no doubt that the attack has taken place. 10 days after the beginning of the political turmoil within the ‘concerned’ international community President Obama issued a statement on Syria accusing the Assad’s regime of the attack on its own people and calling for a targeted military strike to deter the regime from using the chemical weapons ever again.[4]

Continue reading

The Last Resort


Until the dramatic events of September 2001 terrorism was perceived as an exceptional and a rare phenomenon, which didn’t quite bother specialists of any field. Today there is hardly a person who has never though about the roots and the nature of this evil. The growing threat takes multiple forms, including transnational groups targeting means of transport, planning attacks with weapons of mass destruction or through the Internet, or resorting to new channels to finance their acts.[1] And even though we may disapprove of it, terrorists can indeed assemble plausible if not logical arguments in defense of their actions.

However, whatever the ideological motives of terrorist groups are one should, consider the reasons for a choice of this means of warfare in the first place as to develop an effective doctrine to combat it. As Major Robert W. Cerney states, “terrorists exercise their right to fight for what they believe in the only way they can with any hope of survival till the eventual achievement of their goal.”[2] Terrorism as a means of warfare indeed proves to be successful, but the key point in Maj. Cerney’s assertion is that it’s the only feasible option for those waging an asymmetric war.

It is worth mentioning, that none of the conflicts is perfectly symmetrical, but the wider the gap, the dirtier it gets. Today with only one remaining superpower and more generally the considerable and predictably widening technological divide, a huge imbalance in the capacity of warring parties has become a characteristic feature of any contemporary armed conflict.[3] The wide disparity between the parties, primarily in military and economic power, potential and resources, provides for a need for a form of violence that serves as a force multiplier that maximizes the outwardly limited resources in confrontation with an incomparably stronger opponent that a party cannot effectively challenge by conventional means. Given the inability to fight on the enemy’s own ground and to challenge a stronger opponent on equal terms, the weaker, lower status side has to find some other ground and to rely on other resources to establish a two-way asymmetry.[4] This, in turn, conditions the terrorists’ modus operandi: attacking the enemy’s weakest points, namely, its civilians and non-combatants, thus, not conforming to international legal standards. Yet, why would one play by the system rules when those rules are established to support a system fought…

Western societies are becoming more vulnerable due to many factors, including global communications, travel, and the proliferation of weapons technology, as well as the fact that the number of relatively deprived people in failing societies is growing.[5] The threat of terrorism forces them to respond by increasing homeland security measures. The latter have reduced the number of attacks by 34 percent, limiting the number of terrorism victims to an average of 67 a year and having cost the developed countries roughly US$70 billion since 2001.[6] The material cost of a suicide bombing, in turn, is as low as $150(US), and results in an average of 12 deaths, spreading enormous fear throughout the targeted population.[7] Thus, it amounts to an estimated $5.8(US) billion a year protecting 34 innocent lives which might be deprived at a price of $425(US). Apart from this financial asymmetry, one should also bear in mind that terrorism is responding to new security challenges with new approaches having the same bloodshed effect.

To this end, terrorism seems to be the last if not the only resort of the weaker parties trying to shift the balance and restore the warfare symmetry with any means possible. Given that the means are dirty and that terrorism will not conform to international standards, we must adapt to it and consider a more effective, yet legal, strategy of combating it with a view of its asymmetric character.

Written by Jan Guardian

[1]       United Nations Office on Drugs and Crime, The Universal Legal Framework Against Terrorism. New York (2010), p. iii.

[2]       Major Robert W. Cerney, International Terrorism:  The Poor Man’s Warfare. Executive Summary. USMC CSC 1991 [online][accessed 28 March 2013].

[3]       Robin Geiss, Asymmetric Conflict Structures. International Review of the Red Cross, Vol. 88, 864, December 2006, 757-758.

[4]       Ekaterina Stepanova, Terrorism in Asymmetrical Conflicts: Ideological and Structural Aspects. SIPRI Research Report No. 23. OxfordUniversity Press (2008), p. 20.

[5]       Shahram Chubin, Jerrold D. Green, Terrorism and Asymmetric Conflict in Southwest Asia. RAND (2002), p. 7.

[6]       Bjorn Lomborg, Is counterterrorism good value for money? NATO review 4 (2008) [online][accessed 29 March 2013].

[7]       Ibid.

Cyber Warfare: Between Games and Reality

Written by Lina Laurinaviciute

Cyber Warfare: Between Games and Reality

fog-of-cyber-warfare_1Setting the background

A top secret super-computer which has a complete control over a nuclear arsenal and the countdown to World War 3 – such scenarios, as the one of a movie “War Games” (1983) were presented as the science fiction in the last century. Indeed, new expansions in the tactical as well as technical dimensions have changed the landscape of warfare where a cyber space battlefield became a realization of that fictional future.

Today, cyberspace exists in all critical infrastructure sectors: telecommunications networks, the electric grid, power plants, traffic control centers, financial sectors, etc. The same technology that enables us to have live video chat on our mobile phones or remote controls used to control air conditioning units also makes it possible to turn off the lights in a city on the other side of the globe.[1]

Usually, media as well as policy-makers refer to cyberspace when simply looking for a synonym to the Internet or describing anything electronic. However, cyberspace may be described as “a global domain within the information environment consisting of the interdependent network of information technology infrastructures, including the Internet, telecommunications networks, computer systems, and embedded processors and controllers.”[2]

Similarly, such terms as “cyber operations”, “cyber attacks”, or ”network attacks” as well as the concept of cyber warfare are used in different contexts and different people appear to mean different things when they refer to them. In general, cyber operations are conducted against or via a computer or a computer system through a data stream. “Such operations can aim to do different things, for instance to infiltrate a computer system and collect, export, destroy, change, or encrypt data or to trigger, alter or otherwise manipulate processes controlled by the infiltrated system.”[3]

One of the main issues raised by “cyber war” is whether a cyber attack can rise to the kind of attack amounting to war. International Humanitarian Law (hereinafter IHL), also referred to as the laws of war, characterizes war as the resort to protracted and intense armed force by two or more parties. Armed conflict is either between States, characterized as international armed conflict, or between States or armed groups operating inside a single State, referred to as non-international armed conflict. The most well-known of the laws are the 1949 Geneva Conventions[4] and 1977 Additional Protocols[5], which present rules for protecting civilians and those hors de combat (wounded, sick and unable to fight soldiers) in land, naval, and air warfare.[6] As it can be expected, due to the development of new technologies, none of the provisions of these laws specifically mention cyber attacks.

Some researchers, such as Joel Brenner, are of the opinion that cyber attacks should not fall under IHL. As cyber warfare is not a kinetic action, it is not an armed attack and thus, IHL does not apply.[7] However, the growing importance of the use of information technology in military activities and its potential to gain military advantage in a more cost effective way, urges to look at it from the IHL perspective and determine the circumstances, under which cyber operations (as opposed to the traditional kinetic military operations) can constitute attacks within the meaning of IHL.

The fact that a new concept of a cyber attack has come into existence after the treaty laws were adopted, does not preclude the applicability of these laws. Article 36 of Additional Protocol I (hereinafter AP I) says that in the study, development or adoption of a new weapon or method of warfare, States Parties are under an obligation to determine whether their employment would, in some or all circumstances, be prohibited by international law applicable to them.[8] Also, in its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the International Court of Justice held that “it cannot be concluded […] that the established principles and rules of humanitarian law applicable in armed conflict did not apply to nuclear weapons. Such a conclusion would be incompatible with the intrinsically humanitarian character of the legal principles in question which permeates the entire law of armed conflict and applies to all forms of warfare and to all kinds of weapons, those of the past, those of the present and those of the future”.[9] Hence, it has been well accepted already that “a lack of directly applicable treaty law does not create an international humanitarian law – free zone, where anyone can conduct hostile activities without rules or restraints.”[10] Due to the fundamental prohibitions, IHL was designed to be flexible enough to accommodate technological developments, including those that could never have been anticipated at the time.[11] It follows that cyberspace is not a distinct domain subject to a separate body of law.

In this framework, cyber warfare refers to means and methods of warfare that rely on information technology and are used in the context of an armed conflict. The experts of the recently issued Tallinn Manual on the International Law Applicable to Cyber Warfare (hereinafter Tallinn Manual), defined cyber weapons as “any cyber device, materiel, instrument, mechanism, equipment, or software used, designed, or intended to be used to conduct a cyber attack.”[12] It is also important to keep in mind that IHL is applicable in time of an armed conflict. Therefore, one of the challenges addressing war in cyberspace is to determine whether resort to cyber weapons can constitute an armed attack.

In accordance with Article 49 (1) of AP I “Attacks” means acts of violence against the adversary, whether in offence or in defence.[13] A “cyber attack” is very fact-specific and must be distinct from cyber espionage, which is done by many nations including recent cases of China, Russia, Iran and does not violate traditional interpretations of IHL. Examples of the cyber operations that have been carried out so far, such as a 2007 Israeli cyber-attack on Syria that disabled all Syrian anti-air systems so that the Israeli air-force could bomb a secret Syrian nuclear reactor site undetected or the 2007 attacks on Estonian banks and government websites as well as the 2008 Russian cyber attacks on Georgia during the South Ossetia War, do not appear to have had serious consequences for the civilian population.[14] However, they show that while the critical infrastructure of nations continually becomes more reliant on networks and cyberspace, the possible targets for cyber-attacks greatly increase. Logic bombs and computer viruses can disrupt everything from electric grids and the stock market to nuclear power plants and water treatment facilities. Therefore, potentially catastrophic scenarios, such as collisions between aircraft, the release of poisons from chemical plants, or the disruption of vital infrastructure and services cannot be dismissed. Such attacks would most likely have large scale humanitarian consequences and could result in significant civilian casualties and damages.[15]

Therefore, the situations when cyber activities result in death, injury, or significant destruction would likely be treated as a use of force.”[16] However, the determination of the threshold for the use of force, especially, in cases not involving physical harm, remains problematic. It might depend on the degree of damage that a computer network attack causes –“the greater the damage, the more likely the situation will be viewed as an armed conflict.”[17] The other factors, that may be significant for the classification of cyber operation as a use of force, include: immediacy (the speed with which consequences manifest), directness (the causal relation between a cyber operation and its consequences), invasiveness (the degree to which a cyber operation intrudes into targeted systems), measurability of the effects, military character of the cyber operation, extent of State involvement, and presumptive legality (acts not expressly prohibited by international law).[18]

Generally speaking, cyber operations are not violent in the sense of releasing kinetic energy, unless they qualify as an attack by virtue of their consequences, specifically injury or death of persons, damage or destruction of objects. Therefore, the principle of distinction between military and civilian objectives, prohibition of indiscriminate attacks, requirement to take the necessary precautions and abstain from attacks if civilian damage is likely to be excessive to the value of the military objective to be attacked are also applicable to such attacks and operate in the same way as to the attack which is carried out using traditional weapons.[19] Nevertheless, in practice, IHL faces some significant challenges dealing with cyber warfare.

Challenges applying rules of IHL in cyberspace

The challenges met by the international legal regulation in cyber warfare are due to the fact that cyberspace consists of innumerable computer systems across the world where civilian and military computer networks are highly interconnected.[20] A lot of military infrastructure relies on civilian computers or computer networks. It is estimated that 95 percent of world data and voice traffic is carried over fiber optic cables, providing shared bandwidth services to both public and private sectors. Indeed, the interconnectivity of military and civilian networks are so high that it is questionable whether a military-civilian separation in cyberspace is possible and, thus, if a military objective can accurately be targeted without any damage to the civilian cyber infrastructure. For example, 95 percent of American military communication goes through a civilian infrastructure.[21]

It is important to stress, that IHL prohibits indiscriminate attacks. The principle of distinction, as stipulated in the Article 48 of AP I, requires that parties to a conflict distinguish at all times between civilians and combatants and between civilian objects and military objectives.[22] In accordance with Article 51 (4) of AP I, an indiscriminate attack is defined as one which is either not aimed at a specific military objective or because the effects of an attack on a military objective are uncontrollable and unpredictable.[23] Attacks may only be directed against combatants or military objectives, which in pursuant to the Article 52 (2) [24] AP I are the ones that make an effective contribution to the military actions of the adversary and in the circumstances at the time when they are attacked must give a direct and concrete military advantage to the attacker.

Military objectives, such as communication lines, command and control systems, computers or computer systems used in support of military infrastructure or for military purposes can be targeted. As long as the two conditions that determine a military objective are fulfilled and as long as the attack does not spill over to civilian damage and suffering, the act is legitimate. It follows that attacks via cyber space may not be directed against computer systems used in medical facilities, schools, and other purely civilian installations that has special protections against attacks, such as drinking water installations and irrigation works, dams, dykes, or nuclear electric stations that have the ability to release dangerous forces.[25]

Thus, the uncontrollable computer virus would be prohibited as an indiscriminate weapon in the same way that the use of a biological virus would be prohibited; while a destructive cyber attack that leads to the overheating and destruction of exclusively military cyber installations would raise no particular legal concerns. An obvious example would be the release of a virus or a range of viruses into the computer systems of a target State. Even if introduced only into the military network of a State, if the virus is virulent enough, it would soon seep out of that network and into civilian systems of the targeted State or even beyond to neutral or friendly States. Such viruses must most likely should be considered as indiscriminate because they cannot be directed against a specific military objective, and they would be a mean or a method of combat which effects cannot be limited as required by AP I even if aimed accurately at the intended target.[26]

Also, some dilemmas are raised on the use of social networks for military purposes. Indeed, in recent conflicts, it became a common practice to transmit military information via Twitter, Facebook and other social media. The experts of the Tallinn Manual agreed that such use of social networks would transform those facets of the social media networks that are used for military purposes into military objectives. However, the entire networks would not be subject to direct attack.[27]

Another problematic issue is the status of persons involved in cyber operations.

When activities related to cyber attack are performed directly by the personnel of armed forces, it is considered to be performed by a combatant and, thus, such person can directly be attacked and are subject to have prisoners of war status. The problem is that since the specific technical expertise of computer technology mostly lies in the civilian domain, the use of civilians for military activities can be a common practice. It follows, that civilians who are directly participating in hostilities (hereinafter DPH) can become legitimate targets. The involvement in DPH can be manifested through various forms. For example, civilians may be those who launch a cyber attack or they are used to maintain the computer programs or computer network from which a cyber attack is launched. However, the interpretation of the concept of DPH in activities related to cyber attacks, which results to the loss of protection under IHL, is still debatable.[28]

In addition, it is a fundamental rule of IHL that if a party to an armed conflict intends to carry out a cyber attack it is under a legal obligation to conduct a proportionality assessment and to take precautions before launching such an attack. Respect for these principles, as reflected in Article 57 AP1, includes the obligation of an attacker to take all necessary precautions in the choice of means and methods of attack in order to avoid or minimize civilian casualties and collateral damages. [29]For example, commanders must decide whether launching a worm attack on the network of the adversary is feasible or not because the functioning of a worm is such that it has a very high capability of infecting large networks, and that shows its capability of damaging civilian cyber infrastructure, including that of hospitals and banks.[30] In this view, collateral damage is perceived as the loss of civilian objects during military combat operations due to the violent character of war.

Collateral damage in order to get the direct and concrete military advantage is legal as long as it does not violate the rules of proportionality. According to them “[a] cyber attack that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated is prohibited.”[31] Therefore, no collateral damage is acceptable if it is in excess of the anticipated concrete and direct military advantage.

In this regard, the development of new technologies may successfully contribute to the purpose of protection reflected in the core principles of IHL. In certain cases cyber operations might cause fewer incidental civilian casualties and less incidental civilian damage compared to the use of traditional weapons.

However, despite the advantages provided by the new technologies, the digitalization on which cyberspace is built causes another difficulty in applying the rules of IHL to cyberspace, as in most cases, it is difficult if not impossible to identify the author of an attack, the location from which it is being conducted, and to estimate its destructive potential. It is often necessary to work a way back in the chain of computers controlling other computers in order to figure out who attacked. This implies some sort of intrusive capability to identify who is attacking and thus complicates the attribution of conduct.[32]

However, from the general point of view, attribution is a practical/ technical problem in nature and therefore, can be resolved through practical or technical means, but not by means of the law. Hence, the tendencies of technological innovation may provide solutions to this practical difficulty much faster than we may anticipate today.[33] Till that day, the anonymity of communications rise difficulties on the attribution of responsibility to individuals and parties to conflict on which IHL strictly relies.

The experts of Tallinn Manual came to an agreement that “no State may claim sovereignty over cyberspace per se” and that “States may exercise sovereign prerogatives over any cyber infrastructure located on their territory, as well as activities associated with that cyber infrastructure.”[34] However, “the fact that a cyber operation has been routed via the cyber infrastructure located in a State is not sufficient evidence for attributing the operation to that State.”[35] Indeed, the technology for conducting offensive operations in cyberspace can be obtained anywhere, for instance, by mail order, while the knowledge needed to conduct some kind of cyber attack is available on the internet. Thus, many non-state actors, such as companies, terrorists, organized crime, patriotic hackers or even teenagers, can have influence.

In this regard, the International Court of Justice in its very first case on Corfu Channel, held that a State may not “allow knowingly its territory to be used for acts contrary to the rights of other States.”[36] For example, a State would be obligated to take necessary measures to end a cyber attack launched by a terrorist group from its territory against other States.

In addition, According to the Articles on State Responsibility, “[t]he conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.”[37] The jurisprudence of the International Court of Justice suggests that the degree of control for attribution to occur shall reach the level of an “effective control” over non-State actors. Therefore, “merely encouraging or otherwise expressing support for the independent acts of non-State actors does not meet the threshold for the degree of control.”[38]

In this regard, the International Court of Justice in the Nicaragua judgment pointed out that the notion of an armed attack includes “‘the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such as to amount to’ (inter alia) an actual armed attack conducted by regular forces, ‘or its substantial involvement therein’.”[39] It follows that, for instance, providing an organized armed group with malware (funding, legal, practical support) to be used against another State would constitute a use of force, while only providing sanctuary to that group would not reach such level.

However, the more complicated question is whether a non-State actor’s cyber operations that are not attributable to a State can nevertheless qualify as an armed attack and thus can justify  as the use of force in self-defense against that non-State actor.

Article 51 of the United Nations Charter stipulates that: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security.” Concerning this issue, the position of the US government, for instance, has long been that “the inherent right of self-defense potentially applies against any illegal use of force. There is no threshold for a use of deadly force to qualify as an ‘armed attack’ that may warrant a forcible response.”[40]

An agreement can be reached that cyber operations resulting in death or serious injures of individuals or serious damage to objects can qualify as armed attacks. As mentioned before, whether a cyber use of force qualifies as an armed attack depends on its scale and effects. However, the defensive actions are also subject to the requirements of IHL (necessity, proportionality, imminency, and immediacy). It follows that, “[a] State that is the target of a cyber operation that rises to the level of an armed attack may exercise its inherent right of self-defense.”[41] Furthermore, “a State need not take the first cyber hit before acting to defend itself”[42] and, thus, by this approach the “anticipatory self-defense” is allowed under international law.

The way forward

The world of new technologies is neither a world of virtual games nor it is a science fiction. Warfare in a cyberspace can cause death and damage to the real world. However, technology, in itself, is neither good nor bad, “it can be a source of good and progress or result in terrible consequences at worst.”[43] Indeed, today, none of the so called natural domains (air, maritime or space) can function if cyberspace fails which would mean going back to the time of the messenger pigeon or a drawing board.[44]

Even though international laws do not specifically mention cyber attacks, cyber warfare is not emerging in a legal hole or creating a new legal crisis. Cyber operations can be treated as a means and methods of warfare and therefore, IHL rules, that set limitations to cyber attacks through the principles of distinction, proportionality and precaution are applicable. However, the above mentioned challenges, for applying the pre-existing legal rules to a new technology, points out certain gray areas that require further analysis to determine whether these rules are sufficient and clear in light of the technology’s unique attributes. Therefore, specific cyber warfare laws or even a comprehensive treaty might be adopted in the future as technologies evolve and their impact becomes better understood.

Indeed, policy makers and military leaders all over the world are considering the implications of cyber warfare and a number of countries have already taken steps to increase their cyber-warfare capabilities, whereas NATO has listed cyber-defense as a major initiative of its new Strategic Concept.[45] However, in a view of the current political environment, where states have varying views on cyber security, most probably the technology will develop faster than laws. Hopefully, it will not only bring new challenges but also will offer effective solutions for the successful application of IHL in cyberspace.

[1] Dr. Priya Dixit, International Humanitarian Law for Cyber-Warfare, Proceedings of The National Conference

On Undergraduate Research (NCUR) 2011, New York, March 31 – April 2 2011, p. 1.

[2] Ibid., p 2.

[3] Cordula Droege, No Legal Vacuum in Cyber Space, ICRC Interview, 16 August 2011, available at:, [accessed 28 February 2013].

[4] IV Geneva Conventions, 1949.

[5] Additional Protocols to the IV Geneva Conventions, 1977.

[6] In International Committee of the Red Cross,War and International Humanitarian Law, 2011.

[7] Joel Brenner, Cyber-Security: Regulating Threats to the Internet under International Law, ASIL Live-Blogging, available at:, [accessed 28 February 2013].

[8] Additional Protocol I, Article 36, 1997.

[9] International Court of Justice, Legality of the Threat or Use of Nuclear Weapons (General List No. 95) (8 July


[10] Michael N. Schmitt, International Law in Cyberspace: The Koh Speech and Tallinn Manual Juxtaposed, December 2012, p. 5.

[11] International Institute of Humanitarian Law, International Humanitarian Law and New Weapon technologies, 2011, p. 24.

[12] Tallinn Manual on the International Law Applicable to Cyber Warfare, Cambridge University Press 2013, available at:, [accessed 28 February 2013].

[13] Supra note 8., Article 49 (1).

[14] Supra note 1., p. 6.

[15] Supra note 3.

[16] Supra note 10., p. 7.

[17] Knut Dörmann, Applicability of the Additional Protocols to Computer Network Attacks, p. 3.

[18] Supra note 12.

[19] Supra note 12.

[20] Supra note 17.

[21] Supra note 11., p. 148.

[22] Supra note 8., Article 48.

[23] Ibid., Article 51 (4).

[24] Ibid., Article 52 (2)

[25] Bhaskar Sharma, Cyber War and Jus in Bello, December 2012, available at:, [accessed 28 February 2013].

[26] Supra note 17., p. 5.

[27] Supra note 12.

[28] Supra note 25.

[29] Supra note 8., Article 57.

[30] Supra note 25.

[31] Supra note 10., p. 16.

[32] Supra note 11., p. 142.

[33] Ibid., p. 172.

[34] Supra note 12.

[35] Ibid.

[36] International Court of Justice, Corfu Channel Case (U.K v. Alb.) 1949 I.

[37] Articles of State Responsibility, Article 8.

[38] Supra note 12., p. 23.

[39] International Court of Justice, Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986.

[40] Supra note 10.,p. 9.

[41] Supra note 12.

[42] Ibid.

[43] Supra note 11., p. 182.

[44] Ibid., p. 148-152.

[45] NATO, Strategic Concept, 2010, Available at:, [accessed 28 February 2013].

Tracing International Humanitarian Law To Hinduism

Picture by Ben Heine

Picture by Ben Heine

Written by Garima Tiwari

India is party to the four Geneva Conventions of 1949 and has incorporated them into its municipal law, but India is not a signatory to the two Additional Protocols. This post examines how far the concepts of Hinduism have helped in the development of international humanitarian law.

War as an art as well as a science was equally well understood in ancient India.[i] The ancient Indians recognized war as a relation between states, the Agnipurana[ii] defines war “as the direct result of the injuries done to each other by two hostile monarchs.” Professor H. H. Wilson calls the ancient Indian laws of war are very chivalrous and humane, and prohibit the slaying of the unarmed, of women, of the old, and of the conquered.[iii]

In ancient times the first and foremost duty of the king was to protect his people. Protection consisted in countering internal threats as well as external aggression to man‟s liberty.[iv] Hinduism has mentioned wars in its various sources. Francois Bugnion has stated of Hinduism having “law of armed forces on the principle of humanity” in the following words,  “The ancient Hindu law of armed conflict, founded on the principle of humanity, had many rules limiting violence. The Upanishads     taught that all human beings are one and that all are his children…”[v]

The source of the “Hindu law of armed forces” as stated by Francois Bugnion was only Upanishads. But, in real sense, it will not be correct to say so. Hinduism is based on numerous texts. The primary sources of Hinduism are Sruti and Smriti. Sruti literally means what is heard, while Smriti designates what is remembered. In this regard, Sruti is revelation and Smriti tradition. Srutis are the four Vedas, the Rig Veda, Sam Veda Yajur Veda and Atharva Veda. Each Veda consists of four parts: the Samhita (hymn), the Brahmana (rituals), the Aranyakas (interpretations) and the Vedanta (Upanishads). The Bhagavad Gita part of the epic poem Mahabharata, is the most influential Hindu text.[vi] Manu, Yajnavalkya and Prasara are the most celebrated law-givers of ancient India. There are eighteen main Smritis or Dharma Sastras. The Dharma Sastras and epics recognized two kinds of war: Dharma Yuddha (righteous war), and Adharma Yuddha (unrighteous war).

Hinduism does not forbid war but consider it as a last resort for a state. The Manusmriti, provides that a king should first try to conquer his foes by conciliation, by gift and by causing dissension if possible: if all these fail then and then only should he wage war.[vii] The policy of conciliation and making gifts should be tried first before engaging in war.[viii]

The code of Manu advises the king:“when he fights with his foes in battle, let him not strike with weapons concealed (in wood), nor with (such as are) barbed, poisoned, or the points of which are blazing with fire.”[ix] Whether he himself fights or engages others to fight for him, the king must ensure that the battle will be an honest duel.[x]

The Rig Veda also laid down the right conduct of war. Vedic rules maintain that it is unjust to strike someone from behind, cowardly to poison the tip of the arrow and heinous to attack the sick or old, children and women.

The ancient Indian war was a war of righteousness, i.e., Dharmayuddha; hence, any kind of inhumane acts were discouraged and frowned upon. Whose weapons are broken; who finds himself in trouble; the string of whose bow is snapped; whose battle horse is killed – he should never be attacked. Such an enemy falling into one‟s hands, his wounds should be tended, and he should be taken to his home.[xi]

The laws of war in ancient India drew a clear distinction between civilians and belligerent.[xii] The ancient Indian texts like Mahabharata, being the greatest epic ever written in the history of mankind, and Manusmriti, lay down the laws governing war in ancient India, are congruous to the provisions of Geneva Conventions[xiii], as in the Basic Rules of the Geneva Conventions and their Additional Protocols.[xiv]

According to Manu: “persons walking on the road, not participating in the conflict, or mere travellers, or those who are engaged in eating and drinking or pursuing their special avocations or activities or diplomatic errands and of course the Brahmins, unless they are engaged in war, were not to be killed.”[xv]

For example, combat between mounted and unmounted soldiers was strictly forbidden. Furthermore, combat between warriors of officer rank and foot soldiers was not allowed, since the former would generally be much better armed and trained than the latter. Collective attacks against a single soldier and the slaying of a warrior who was temporarily at a disadvantage during battle were strictly prohibited.

The Agni Purana clearly mentions that prisoners of war should not be enslaved. If soldiers  were taken prisoner, they were to be released at the cessation of hostilities. Kautilya advocated the humanitarian treatment of conquered soldiers and citizens. In particular, he maintained that a humanitarian policy toward a defeated people was practical, pointing out that if a king massacres those whom he has defeated, he frightens all the kingdoms that surround him and terrifies even his own ministers,[xvi] whereas more land and loyal subjects can be gained if the defeated are treated magnanimously. Kautilya advised that the conquering king should order the release of all prisoners and give help to the distressed, the helpless and the sick. He thus called for the establishment of a righteous course of conduct for sound military policy.[xvii]

Regarding weapons to be used in war field K.R.R.Sastri quotes Kautilya and written: “Our modern strategists who have killed two or three hundred thousand at Hiroshama and Nagasaki are invited to read the following passage from Kautilya(Book XIII. Ch. IV):”When if fort can be captured by other means, no attempts should be made to set fire to it; for fire cannot be trusted; it not only offends the Gods but also destroys the people, grain, cattle, gold, raw materials and the like. Also, the acquisition of a fort with its property all destroyed is the source of further loss”.[xviii]

In the Shanti Parva of the Mahabharata, it is mentioned: This means to kill someone not in combat; to rape a woman, or misbehave with her; ingratitude; to rob one devoted to learning and knowledge; to deprive another of all he has – these are considered very low acts even among robbers.[xix]

A conquering king should reassure that defeated people that not much has changed except their rulers. He should adopt a character, dress, language and behaviour similar to when the former king was ruling (similar to those of the subjects). Moreover, he should show the same devotion at festivals in honour of deities of that country, festive gatherings and sportive amusements.[xx] He should honour the local deities and make grants of land and money to men distinguished in wisdom and piety. The conquering king should show his goodwill toward the defeated by instituting a righteous custom that had not previously been introduced. Kautilya commented that “one must kill a dangerous person; however, the king must leave his property untouched and shall not appropriate the land, property, sons or wives of the killed one.”[xxi]

Kautilya also held that the fundamental rule about immoveable property was that it did not belong to the victor by right; only such things as chariots, animals, and war material belonged to the conquering forces. The king should personally examine all such captured wealth and should then keep a part for himself and distribute the rest among his armed forces according to rank.[xxii]

According to the Manusmriti, only the warriors who actually fight in the battle can take the spoils of war. Yet they are to be shared with the ruler inasmuch as the kings who have engaged them to settle scores with the enemies demand the best part of the booty.[xxiii] In this connection, the conqueror is advised to grant remissions on taxes instead of looting the conquered territory. He must seek to win over the commoners of conquered territory and not do anything that would increase their bitterness. He should not be vengeful but should instead offer an amnesty to all who have surrendered to him.

Thus, humanitarian law principles found their existence in India long before the Geneva Conventions and Protocols.


  1. Manoj Kumar Sinha ,Hinduism and International Humanitarian Law, International Review of the Red Cross, Volume 87 Number 858 June 2005
  2. Gaurav Arora, Gunveer Kaur, Supritha Prodaturi, Vinayak Gupta,International Humanitarian Law and Concept of Hinduism, , International Journal of Multidisciplinary Research Vol.2 Issue 2, February 2012, PP.452-458
  3. Modh, Bhumika Mukesh, International Humanitarian Law: An Ancient Indian Perspective (January 12, 2011). Available at SSRN: or

[i] H. B. Sarda, Hindu Superiority: An Attempt to determine the position of the Hindu race in the scale of nations, Scottish Mission Industries Company, 2nd Ed., Pune, 1917, p 349.

[ii] Agnipurana is one of the 18 Mahapuranas, a genre of Hindu religious texts, contains descriptions and details of various incarnations (avataras) of Lord Vishnu.

[iii] H. H. Wilson, Essays and Lectures on the Religions of the Hindus, Vol. II, Trubner & Co., London, 1861, p. 302.

[iv] Pandurang Varman Kane, History of Dharmasastra, Poona, 1973, Vol. 3, p. 56.

[v] Francois Bugnion,Customary International Humanitarian Law, ISIL Yearbook of International Humanitarian and Refugee Law Vol. 7,2007, p. 1.

[vi] Surya P. Subedi, The concept in Hinduism of just war, Journal of Peace and Conflict Studies, 2003, Vol. 8,p. 339-361.

[vii] Ancient India developed a method in four successive stages for the settlement of disputes between States: the first stage is called peaceful negotiation (sama); the second stage consists of offering gifts (dana) to appease the enemy; the third is a veiled threat (bheda); and the last stage allows the use of force (danda).

[viii] K. R. R. Sastry, “Hinduism and International Law”, Recueil des Cours, 1966 (I), Vol. 117, pp. 507-614

[ix] V. Nagarajan, “Manusmriti as Socio-political Constitution”, available at <;

[x] Ibid

[xi] Bhagshastro vipinnashch krittajyo hatvahanaha| Chikitsyaha syaat svavaishaye prapyo svagrahe bhavet|| shanti 15.13||

[xii] Lakshmikanth Penna, “Traditional Asian approaches: An Indian view” Australian Yearbook of International Law, 1985, Vol. 9,p. 108-191

[xiii] The modern laws of war were developed mainly by The Hague Peace Conferences of 1899 and 1907, and in the four Geneva Conventions of 1949 and the two 1977 Additional Protocols thereto

[xiv] Basic Rules of the Geneva Conventions and their Additional Protocols, ICRC publication 1988, ref. 0365

[xv] Supra xii

[xvi] Roger Boesche, Kautilya’s Arthasastra on War and Diplomacy in Ancient India, available at <;

[xvii] C. H. Alexandrowich, “Kautilyan principles and the law of nations”, British Yearbook of International Law,1965-66, Vol. 41,p.301-320

[xviii] K.R.R. Sastri, Hinduism and International Law, Recueil Des Cours Vol. 117, 1966 p. 507.

[xix] Chaturvedi Badrinath, The Mahabharata: An inquiry in the human condition, Orient Longman Pvt. Ltd., New Delhi, 2006, p. 152

[xx] Supra xvii

[xxi] Supra xvii

[xxii] Supra xvii

[xxiii] Supra xii