In 2001, the United States lost 2,996 lives in 9/11.  In response, the United States Congress voted to invade Afghanistan, thus initiating the war on terror. New York never thought they would live through such a tragedy again. Now, over 32,422 New York City residents have died of Covid-19, and the city was nothing short of a stagnant portal between life and death - a shadow of a city that had thought it had seen it all as their leaders reminded them in daily briefings that the city was at war with the virus.

There is not doubt that if a virus was weaponized it could cause devastating effects to a sovereign nation. Though science proves COVID-19 came from nature itself, lawmakers have to entertain the possibility that a nation could weaponize a virus as a way to weaken a rival foreign power. Lethal viruses are silent killers and make the subway, shopping center, church, or mosque the new battlefield. In the United State’s alone 137,922 people have died, and Twenty two million Americans are unemployed.  

The possibility of foreign nations using biological warfare as an aggressive act to force another nation to succumb to its political will is no longer a fantasy left to sci-fi films, but a reality lawmakers need to consider when they interpret what counts as armed conflict in the context of the laws of war.  It is in the best interest of the civilian population to reevaluate this standard in a world that has abandoned the pageantry of the battlefield and simplicity of a rifle to a world evolving beyond our wildest dreams.  The traditional definition of war needs to be altered to address the ambiguities that arise in terms such as “ armed conflict” to encompass advancements in science and warfare.

The laws of war are the laws that regulate the conduct of hostilities and insure protection of war victims in both international and non-international armed conflict. The recognition of “armed conflict” is significant because without it, the laws of war will not apply.  First of all, biological warfare is a type of warfare, but using it alone does not create an armed conflict that would put two nations at war. The Biological Warfare treaty of 1972 bans the use of Biological warfare for non peaceful or preventive uses by countries that are party to the treaties however, nowhere does it state a nation is at war or engaged in an armed conflict when biological warfare is used against them. Though Biological warfare was used in the Rhodesian Bush war, and potentially during the Gulf war, armed conflict existed prior to the use of the biological weapon. There is not yet an incident where biological warfare on its own constituted as an “armed conflict” that laws of war require.  Further, according to the World Health Organization, biological warfare is defined as toxins that are produced and released deliberately to cause disease and death in humans, animals or plants.  Therefore, it cannot be used peacefully.

The United Nations recognizes a broad definition of war but sees traditional combat as a key element in its definition.  The United Nations defines war as “an act of aggression such as as crime against international peace such as armed invasions or attacks, bombardments, blockades, armed violations of territory, permitting other states to use one's own territory to perpetrate acts of aggression and the employment of armed irregulars or mercenaries to carry out acts of aggression.”   Clearly, everyone would agree deploying a lethal pathogen is aggressive. Yet, at the same time, the Geneva conventions do not actually define “armed conflict” . Some scholars believe there needs to be a “threshold of prolonged violence.” The International Court of Justice requires for there to be an armed conflict  armed groups must show a minimum degree of organization and the armed confrontations must reach a minimum level of intensity. When measuring the later part, the International court of Justice will look at the gravity of the armed clashes, the type of government forces involved, the number of fighters and troops involved, the types of weapons used, the number of casualties and the extent of the damage caused by the fighting.  Under this definition, the International Court of Justice would consider people deliberately spreading the virus to others in an organized fashion an “armed conflict” however, that would mean classifying everyone that is carrying the disease as “armed” and engaging in armed conflict simply by going to the store while they are unaware they are carrying the disease.

The definition of war in the United States also struggles with these ambiguities.  The United States defines war as an “armed conflict, whether or not war has been declared, between two or more nations; or armed conflict between military forces of any origin.” The first part of the definition requires an act of war must be an act by a  “force of a foreign origin”. This fits comfortably if a nation commits acts of biological warfare.  However, similar to the United Nations, there is no general consensus on what constitutes an “armed conflict”.  The legal definition of “ armed ” in the United States is “furnished with weapons of offense or defense; furnished with the means of security or protection.“  Further in Buchannon v. State, 554 So. 2d 494, 495 (Ala. 1989) the court held that “In the context of substantive criminal statutes, most courts have concluded that "armed" means having a weapon that is within a person's immediate control and available for his use.  Clearly, the tension here lies with the fact that a virus is effective because it cannot be controlled thus, an “armed conflict” would not exist. However, if the term armed is about possessing a weapon that one controls physically such as a knife or a gun, and if a foreign nation was armed with a biological weapon and used it, perhaps the U.S. law could encompass biological warfare as an armed conflict to justify war.

 The United States does define “ act of war” as a declared war or armed conflict, whether or not war has been declared, B. between two or more nations or C. armed conflict between military forces of any origin. Here, the same tensions exist because there is a lack of definition on “armed conflict” or military force of any origin.  Perhaps, if a military has deployed a biological weapon,“ military force could encompass a biological attack.

Unless the law is read in a way that would consider spreading a lethal disease as an “aggressive action“ or “armed conflict”, there is a chance that the traditional laws of war will not apply to deliberately spreading a virus on a civilian population because the definition of an armed attack has only applied to physical, direct acts of violence in the past.

Part of the issue is that most of the laws of war, Geneva conventions, and other International doctrines were written when battles were fought on a physical battle field.  However, the laws of war aim to protect civilian deaths, the deaths of those aiding military personnel and prosecute civilian deaths as war crimes.  Without a definition of war that fails to include biological attacks, civilians can go unprotected if a biological warfare attack is not classified as engaging in armed conflict. Simply because the authors of the laws of war could not foresee modern day weaponry does not mean that they wished to exempt heinous acts by the hands of foreign governments.  

The first step in including biological warfare into what would constitute an “act of aggression” or “ armed conflict” is to accept how language around warfare is flexible. The concept of war has always been fluid.  There have been many historical incidents called “ wars'.  It can be argued that the Cold war was not a real war because Russia and the United States never invaded the sovereign territory of the other, but we called it a war anyways because both countries deployed tactics to weaken the other in a race to become the global hegemony.  Moving from there, perhaps a more flexible definition of war can create more coherent results in the age of biological warfare.  In the Art of War, Sun Tzu states, “The supreme art of war is to subdue the enemy without fighting.”  Chris Hedges, American Pulitzer Prize-winning journalist states ”War is often regarded by observers as honorable and noble. It can be viewed as a contest between nations, a chance to compete and be declared the victor.” 

Both of these definitions are persuasive because both authors remind us that at its core, war is about at least two parties against each other engaging in harmful conduct with the intent to force one party to submit to the other, thus creating a winner and looser relationship. Biological warfare causes death, economic meltdowns. From messy politics, to hospitals hitting maximum capacity to destroyed industries, the impact of a virus would inspire submission thus creating a victor however, critics will say that this is too vague, all encompassing, and would make traditional channels of diplomacy “acts of war”.  If the law goes in this direction, sanctions placed on nations could be classified as an act of war. If the law goes in this direction, sanctions placed on nations could be classified as an act of war, potentially lowering the bar to initiating war and/or unduly constraining foreign policy.  Which would not be ideal and burden diplomatic measures.

A second approach under United Nations law would be deploying a biological weapon as an invasion of sovereignty.  The United Nations considered invading the sovereighty, the territorial integrity of another state, an act of aggression.  Therefore, a virus entering another nation’s borders as a way to undermine or attack that nation could as an invasion of sovereignty. Though not an army marching in as human combatants would, if a nation releases a virus in the borders of another nation, that conduct could count as invasion of sovereignty that would justify war if the law was reinterpreted as combatants capable of invading the sovereignty of a nation to include non human combatants deliberately spread to cause illness.

Maybe the real answer is to replace the formalities of the laws of war and focus not on when or if an armed conflict has occurred, but the intent of the laws of war in the first place.  The laws of war aim to limit the methods and means of warfare, and to protect people who are not, or no longer, taking part in the hostilities.  Biological warfare is incapable of distinguishing who is a combatant and who is not. Failure to enforce them would aggravate the purpose of the laws of war. Given the Laws of war focus on the regulations on weakening an enemy while mitigating suffering, at their core, maybe the answer is to apply them when the conduct of one nation attempts to weaken another by engaging in any type of deliberate action that causes death or injury to non combatants. Though biological warfare may not fit perfectly in traditional definitions of “armed conflict”, it is a type of warfare. Thus, if another nation engages in biological warfare absent of a traditional armed conflict, perhaps the laws of war can be applied because the goals of laws of war would be aggravated if they could not protect victims of attacks that are not “armed” in the traditional sense.

War needs to be redefined in the modern age to ensure that the laws of war will operate in the way they were intended to.

Shayna Koczur is a Law Clerk in Union County New Jersey.  She is a recent Brooklyn Law graduate.  During her time at Brooklyn Law School, she enjoyed learning about Constitutional Law Criminal law and International law. She has interned at the Union County Prosecutor’s office, as well as the Brooklyn District Attorneys’ office. Shayna Koczur graduated Bard College in 2018 with a degree in International Affairs. During her undergraduate career, she interned at the United Nations Liaison office for the International Network on Small Arms, the Hudson Institute, and was president of the Bard College United Nations team. She speaks French and Russian.