As early as 2008, Bill Gates expressed his concern to the Stockholm International Peace Research Institute regarding the potential use of various emerging technologies, including the use of nanomaterials, for security,

International environmental law is important to consider during war, as the environment may be seriously harmed during armed conflict, with long-term impact on the environment and human health long after battles pass. In the case of nanomaterials, this harm may even be intergenerational. Nanomaterials enter water tables and food chains; are able to move across human membranes; and may reside in the human body indefinitely. Scientists are only just beginning to understand the potentially toxic effects of nanomaterials on the environment and the human body in the short and long term. Protection of the environment during armed conflict requires not only high-level international legal agreements but also practical rules and granular guidance in military manuals and instructions that can be correctly applied in any battlefield. For this reason, the perspective of this chapter broadens beyond traditional international laws of war to examine how international environmental law should be used to review and address the effects of nanomaterials from ‘means or methods of warfare’ to the environment. The risks of potential long-term harm of environmental damage during war are increasingly being discussed in international fora.1

As discussed in Chapter 1, there has always been tension between the desire to demonstrate humanity and the desire for security, which requires ‘continual adaptation following the needs of a changing world’.1 Attempts to address this tension have resulted in many treaties and agreements. Prior to written agreements, the behaviour of professional soldiers was, to a large extent, regulated by unwritten rules and customs.2 It has been suggested that ‘a large part of the modern law of war has developed simply as a codification and universalization of the customs and conventions of the vocational/professional soldiery’.3 However, these understandings were not codified, nor did States seek their codification, in an international form until the late nineteenth and early twentieth centuries: the Lieber Code in 1861,4 A Memory of Solferino (a text calling for codification of the principles of the laws of war in 1886),5 the Brussels Declaration in 1874,6 the Oxford Manual in 1880,7 the 1899 Hague Regulations (revised in 1907)8 and, more recently, the four Geneva Conventions9 and their three additional Protocols.10 These principles and rules, now codified, exemplify the behaviour that States expected from each other prior to treaties being negotiated that codified these expectations.

The desire for humanity and the desire for security have co-existed as long as humans have been alive. Often these desires are in conflict. In 2013, ‘Skull 5’, a 1.8 million-year-old hominid, was found in Georgia on the Armenian border.1 Skull 5 ‘was ill, his jaw was worn away from infections, and he had lost all but one tooth. No longer able to provide for himself, someone must have fed him and kept him safe from harm’.2 Skull 5’s level of nurturing by his clan ensured that he received food and care when he was unable to do so himself – evidence of a sense of humanity 1.8 million years ago.

This chapter shows that international human rights law has direct applicability to the three technologies under consideration during war. In arriving at this conclusion, this chapter analyses the decisions of international courts and judicial bodies, which provide a ‘subsidiary means for the determination of the rules of law’.1 Given that Article 36 weapon reviews require consideration of all international law obligations, and given that international human rights law applicable to the uses of nanomaterials is under consideration, it follows that Article 36 reviews require application and careful consideration of international human rights law.

As noted in Chapter 1, customary international law is a combination of State practice and opinio juris, or the intention of States to undertake a practice. Both are required to form customary international law.1 State practice must be ‘both extensive and virtually uniform’.2 Official State documents may evidence opinio juris.3 The distinction between treaty law and custom and principles is, in part, an artificial one. Custom is, over time, often embodied in treaty language.4 Treaty ratification can also contribute to State practice for the purposes of customary international law.5 Nevertheless, customary law can be established as an individual source of law.6 This chapter will provide an analysis of the general customary law and principles applicable to the laws of war, and then apply them to the three technologies, namely thermobaric weapons with nanomaterials, optogenetics and genetic modification.

‘Nanotechnologies’ cannot be legally reviewed as one single category. In this chapter, the three technologies utilising nanomaterials to be discussed in this book will be introduced in some technical detail: thermobaric weapons, optogenetics and genetic modification. Each use of nanomaterials needs to be considered individually to ensure compliance with existing international laws during war. The three uses of nanomaterials considered in this book have been chosen because they raise different existing international law (illustrating the breadth and depth of existing international law) and finally, because they are each at a different stage of development and use.

To understand what genes “do,” we have to consider what happens during development. The first and most striking evidence that the local environment matters for the outcome of development was provided by the experiments of embryologists Wilhelm Roux and Hans Driesch in the late nineteenth and early twentieth centuries. Roux had hypothesized that during the cell divisions of the embryo, hereditary particles were unevenly distributed in its cells, thus driving their differentiation. This view entailed that even the first blastomeres (the cells emerging from the first few divisions of the zygote – that is, the fertilized ovum) would each have different hereditary material and that the embryo would thus become a kind of mosaic. Roux decided to test this hypothesis. He assumed that if it were true, destroying a blastomere in the two-cell or the four-cell stage would produce a partially deformed embryo. If it were not true, then the destruction of a blastomere would have no effect. With a hot sterilized needle, Roux punctured one of the blastomeres in a two-cell frog embryo that was thus killed. The other blastomere was left to develop. The outcome was a half-developed embryo; the part occupied by the punctured blastomere was highly disorganized and undifferentiated, whereas those cells resulting from the other blastomere were well-developed and partially differentiated. This result stood as confirmation for Roux’s hypothesis.

During the 1970s, more puzzling observations were made. The first was that the genome of animals contained large amounts of DNA with unique sequences that should correspond to a larger number of genes than anticipated. It was also observed that the RNA molecules in the nuclei of cells were much longer than those found outside the nucleus, in the cytoplasm. These observations started making sense in 1977, when sequences of mRNA were compared to the corresponding DNA sequences. It was shown that certain sequences that existed in the DNA did not exist in the mRNA, and that therefore they must have been somehow removed. It was thus concluded that the genes encoding various proteins in eukaryotes included both coding sequences and ones that were not included in the mRNA that would reach the ribosomes for translation. These “removed” sequences were called introns, to contrast them with the ones that were expressed in translation, which were called exons. The procedure that removed the intron sequences from the initial mRNA and that left only the exon sequences in the mature mRNA was named “RNA splicing.”