Redefining Combatants

Context: Recent Mumbai cyberattacks point to the need to rethink what constitutes a force and what a justified response can be.

Issues in contextualising cyberattacks:

• Changing definitions: The definition of combat and combatants undergoes fast mutation and excluded cyber-attacks for E.g.
  • Lieber Code of 1863: Defines a combatant as “So soon as a man is armed by a sovereign and takes the soldier’s oath of fidelity, he is a belligerent...”.
  • The 1899 Hague Convention: Clarity of what constitutes a regular force.
    • Force should be commanded by a person responsible for his subordinates.
    • It must have a distinctive emblem recognisable at a distance.
    • It must carry arms openly.
    • It must conduct operations in accordance with laws and customs of war.
  • Thus, those who conducted Mumbai ‘cyberattack on power systems 2020’ or 2007 attack on Estonia’s banking system did not meet any conditions.
    • A rogue nation could well turn these non­uniformed people into cyber ‘warriors’.
    • Cyber ‘warriors’ do not carry arms openly. Their arms are malicious software that is invisible.
    • The source of the attack could be alone software nerd who does not have a leader and is up to dirty tricks for money, blackmail or simply some fun.
• Limitations of sanctions: While 2014 was the first time that the US initiated sanctions against foreign nationals, the question is, how long before this escalates to covert and/ or overt kinetic retaliation.
• Question of self-defence: If these people are considered as combatants, does any country has the right to self-defence as an act of pre-emption in order?

India’s stand: India has given its view of the right to self-defence In a February 24, 2021, UN Arria Formula meeting on ‘Upholding the collective security system of the UN Charter.

• India argues that “...a State would be compelled to undertake a pre­emptive strike when it is confronted by an imminent armed attack from a non­state actor operating in a third state.”
• This state of affairs exonerates the affected state from the duty to respect, vis­-a-­vis the aggressor, the general obligation to refrain from the use of force.

Conclusion: India seems to have made its intentions clear at the UN meet, but this is a game that two can play; if not regulated globally, it could lead to a wild­ west situation.