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IHL And New Technologies, Part II - Eric Jensen responds

First guest post on IHL and New Technologies as we continue our IHL Challenges series. Professor Eric Jensen, Associate Professor of Law at Brigham Young University Law argues that a proactive and forward looking stance by States, the ICRC and other stakeholders is needed to better guide the IHL in its evolution to reflect technological advances. 

The ICRC has continuously taken the lead in helping States consider the implications of modern weapons and tactics on the law of armed conflict (LOAC).  From its inception, the ICRC has focused States on the need to make and apply rules that regulate armed conflict and decrease its impact on both combatants and civilians. This 2011 Report continues that great effort, particularly in the area of new technologies of warfare. However, the ICRC could do even more to act proactively in this most important area of the law.

As recently stated by Harold Koh, former Legal Advisor to the US Department of State, it seems clear that the world is increasingly “addressing twenty-first century challenges with twentieth-century laws.”There is nothing inherently wrong or inadequate about that approach, as long as we continue to evaluate the ability of older laws to adequately regulate new situations. As reflected in both the 2011 Report and the recent comments by Cordula Droege, there is no doubt that all new weapon systems must comply with the LOAC. However, as also reflected in boththe report and Ms. Droege’s comments, there appear to be significant areas where the law is potentially unclear or at least not clear enough for advancing technologies. This is one reason why the recent work of the ICRC is so important.  

In its self-reflection commemorating sixty years of the Geneva Conventions, the ICRC turned its attention to the future, issuing a report discussing a number of concerns for future armed conflicts and areas where the law might need to evolve to adequately address the needs of victims of armed conflict. Jakob Kellenberger, then president of the ICRC, stated The nature of armed conflict, and of the causes and consequences of such conflict, is continuing to evolve.  IHL must evolve too.”

To the extent that Kellenberger’s message concerned the LOAC’s need to evolve in response to modern developments, I think the ICRC could do more to guide this evolution. Because of the important signaling effect of the LOAC to militaries, the international community, led by the ICRC, should anticipate where these evolutions will be necessary and appropriate and start working now to bring about effective change.  

The LOAC acts not only as a constraint on current actions in armed conflict, but also as a signal as to what future actions or developments might be appropriate. This signaling function is perhaps different with LOAC than with others areas of the law because of the immense discretionary element of the LOAC. As a commander conducts his military operations, he is expected to use his discretion in applying principles such as proportionality or humanity.  These principles send a signal to the commander about what the boundaries are as he attempts to apply the law to his specific set of facts.

As acknowledged by Kellenberger and Koh, twenty-first century warfare will still be regulated by existing general principles, but will lack specificity in the details. Working through issues before they arise on the battlefield will signal to commanders an appropriate range of considerations and decisions that will allow them to better address the difficult decisions they will face. For example, the STUXNET malware affected tens of thousands of computers, but only “damaged” a very few that were closely connected with the apparent target. If this event had occurred in the context of an armed conflict, would such use have complied with the principles of distinction and discrimination in the attack? At least one scholar has made the determination that it would have.  

One successful example of how this might work is the Tallinn Manual on the International Law Applicable to Cyber Warfare. This was a gathering of experts in cyber warfare who attempted to apply the law as it exists to this emerging method of armed conflict. The ICRC sent a representative to each of the meetings who provided valuable input to the resulting product. It is hoped that the Tallinn Manual will act as a guide to states who are currently engaged in cyber operations or who will do so in the future. If followed, the Manual should signal with greater specificity what is accepted in the emerging area of cyber conflict.

The ICRC should not only participate in similar events, but potentially sponsor such activities that look even deeper into the future. It appears that technological advances will push the areas in which armed conflict now occurs from breathable air zones to areas such as space, underwater, and subterranean. General LOAC principles may be sufficient to guide commanders generally, but for the LOAC to serve its vital signaling function, greater detail is essential.  

In addition to the spaces where armed conflict occurs, technology will also change the “actors” participating in armed conflict. Increased accessibility to developing methods of warfare such as cyber operations is likely to put state-level violence under control of non-traditional fighters in a way not currently accounted for in the LOAC. Additionally, as raised in the Report, the use of robotic, automated, and autonomous weapons will increase. This will raise questions about the application of traditional doctrines such as combatant and civilian status, command responsibility and applying the principle of distinction. The ICRC Report appropriately raises these issues, but more should be done to determine answers.

Finally, the means and methods by which States (and others) conduct armed conflict will change with advancing technology. Currently unmilitarized areas of scientific innovation such as nanotechnology, virology and genomics, will be turned to military purposes and cause us to reconsider such principles as distinction and discrimination.  

States are starting now to develop these advanced technologies and corresponding tactics to use them. The signaling function of the LOAC will be less effective unless the world begins to consider necessary evolutions. The ICRC is perfectly positioned to initiate and participate in that discussion.

Footnotes:

  • Harold Hongju Koh, The State Department Legal Adviser’s Office: Eight Decades in Peace and War, 100 GEO. L.J. 1747, 1772 (June, 2012).
  • Statement of Jakob Kellenberger, Sixty Years of the Geneva Conventions: Learning From the Past to Better Face the Future, (August 12, 2009)
  • Louise Doswald-Beck, Implementation of International Humanitarian Law in Future Wars, in The Law of Armed Conflict: Into the New Millennium, Naval War College International Law Studies, vol. 71, (Michael N. Schmitt & Leslie C. Green eds., 1998);
  • Stephen Peter Rosen, The Future of War and the American Military, Harvard Magazine, May-June 2002, where the author writes, “The people who run the American military have to be futurists, whether they want to be or not.  The process of developing and building new weapons takes decades, as does the process of recruiting and training new military officers.  As a result, when taking such steps, leaders are making statements, implicitly or explicitly, about what they think will be useful many years in the future.”
  • Michael N. Schmitt, et. al., Tallinn Manual on the International Law Applicable to Cyber Warfare, (forthcoming 2013, Cambridge University Press).

 

Previous posts in the IHL And The Challenges Of Contemporary Armed Conflicts series:
Introduction by Knut Doermann, Head of the ICRC Legal Division.
Typology of conflicts, in five parts.
IHL and Terrorism, in five parts.

International Law And The Challenges Of Contemporary Armed Conflicts, an ICRC Report presented at the 31st International Conference of the Red Cross And Red Crescent, Geneva, 2011.

 

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