By Chong Jen Hui, Advocate and Solicitor, Steven Thiru & Sudhar Partnership
The 37th LAWASIA Conference 2024 took place from 13 to 15 Oct 2024 at Hilton Kuala Lumpur.
The final plenary session of the 37th LAWASIA Conference 2024 was moderated by M Ramachelvam, Co-Chairperson, Bar Council Civil and Law Reform Committee. The plenary session addressed the impact of the growing threat of digital warfare and how the global community can mitigate these threats by promoting accountability.
The first speaker, Dr Srirak Plipat, Regional Director for Asia Pacific World Justice Project, placed emphasis on accountability in discussing digital warfare. He started the session by explaining the common purpose cyberattacks i.e., to disrupt critical infrastructure and to undermine national security, among other reasons. He explained that digital warfare can stand alone or be used to supplement other acts of wars. In cases of digital warfare, the principle of accountability comes into sharp focus; as without clear attribution of accountability, it may erode public trust in state actors. He emphasised the importance of upholding human rights in governmental measures to promote national security, as intrusive measures are often taken in the name of national security. Dr Plipat also recommended steps that may be taken towards protection against cyber-attacks — these include strengthening multilateral frameworks where international organisations such as the International Criminal Court and others should be empowered to strengthen enforcement mechanisms; and promote public-private partnerships where private sectors can play a role by reporting cyber activities, thereby reinforcing accountability and to incentivise compliance with international norms. He concluded that although technological advances have brought incredible opportunity, it also brought about unprecedented risks, and therefore the commitment to uphold the rule of law must evolve as digital warfare is also evolving.
The second speaker, Professor Yasushi Higashizawa of the Japan Federation of Bar Associations, spoke about the challenges of countering digital war and the role of lawyers in the implementation of remedies. Professor Higashizawa shared the sentiment of Dr Plipat that while cyberattacks causes widespread damage, there are no explicit rules in international law. He explained that lawyers are needed as much as the individualisation of international humanitarian laws are needed. This is particularly because lawyers are specialised in the pursuit of criminal justice, and can provide assistance on obtaining remedies for those that are victimised. He emphasised the importance of cooperation among bar associations in the struggle against digital warfare.
The third speaker, Dr Loganathan Krishnan of Universiti Malaya, echoed the devastating effect of digital warfare and identified that those most vulnerable to such attacks are developing nations that have not yet developed the necessary infrastructure to respond to such attacks. Dr Krishnan took the position that the Geneva Convention should be updated to address the humanitarian crisis that arises from digital warfare. In the context of Malaysia, Dr Krishnan explained that the Cybersecurity Strategy 2020–2024 is in place, and there are cybersecurity agencies which collaborate with Interpol, ASEAN, APEC and the United Nations. However, he identified that such efforts were focused on cybersecurity and not humanitarian crisis during digital warfare. He urged that efforts must therefore be taken to focus on the humanitarian impact of digital warfare.
During the question and answer session, in response to a question posed by a member of the audience as to whether a state should be held responsible for failing to take action or prosecute non-state actors, Professor Higashizawa explained that there is a governance gap amongst enforcement, and such enforcement should be done by an international authority where there is cooperation between states.