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CONTEMPORARY DILEMMAS IN ENFORCING INTERNATIONAL HUMANITARIAN LAW DURING MODERN WARFARE CONTEXTS
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CONTEMPORARY DILEMMAS IN ENFORCING
INTERNATIONAL HUMANITARIAN LAW DURING MODERN WARFARE CONTEXTS
AUTHORED BY - AJAYITA SANDHU
Abstract:
Emerging technologies are reshaping
warfare, with nations investing heavily in digital tools like cyber
capabilities, autonomous weapons, and AI. The International Committee of the
Red Cross (ICRC) monitors these developments to apply international humanitarian
law (IHL) effectively. Throughout history, legal frameworks have evolved to
regulate new weaponry, emphasising principles to minimise suffering. However,
applying existing laws to emerging technologies requires careful consideration.
Cyber operations, for example, raise concerns about civilian harm and
infrastructure disruption, necessitating adherence to IHL principles.
Autonomous weapon systems pose challenges regarding human control,
accountability, and ethical implications, prompting calls for international
limits. AI and machine learning present concerns about decision-making,
transparency, and bias in armed conflict, highlighting the need for human-
centered approaches. Additionally, the weaponisation of outer space poses
humanitarian risks, necessitating adherence to existing legal frameworks and
multilateral efforts to minimise civilian harm. Legal evaluations of novel
weaponry face obstacles like non-compliance and resource disparities,
highlighting the need for standardised processes and collaboration. Strategies
to address these challenges include early initiation of legal assessments,
multidisciplinary approaches, training, and rigorous testing. The researcher
aims to develop how to comply with International legal norms and responsible
innovation by allowing stakeholders to navigate the complexities of
technological advancements in warfare while upholding humanitarian values.
Keywords: armed;
artificial; conflict; technology; weapon
I.
INTRODUCTION:
Emerging technologies are
revolutionising human interactions, even in times of conflict, with many
nations investing heavily in digital technology for warfare, including cyber
tools, autonomous weapons, and AI. The International Committee of the Red Cross
(ICRC) closely monitors these developments and collaborates with stakeholders
to apply international humanitarian law (IHL) to these new methods. Throughout
history, advancements in technology and weaponry have transformed warfare.
Innovations like cannon powder and airplanes have reshaped the battlefield from
the chariot era to the nuclear age. Efforts to regulate these advancements
began with the St. Petersburg Declaration of 1868, limiting certain
projectiles' use. Over time, international humanitarian law evolved to address
new weaponry, emphasising minimising unnecessary suffering through overarching
principles applicable to all methods of warfare and specific agreements banning
or restricting particular weapons, such as chemical and biological agents or
cluster munitions, to protect combatants and civilians from indiscriminate
harm. As technology advances, the flexibility of international humanitarian law
allows it to adapt to unforeseen developments, as outlined in Article 36 of
Additional Protocol I. However, applying existing legal frameworks to emerging
technologies requires careful consideration of their unique characteristics and
potential humanitarian consequences, prompting some states to establish more
tailored regulations. Today, the proliferation of information technology
integrates it onto the battlefield, enabling increasingly sophisticated weapons
systems, including smaller, more affordable drones and remote infrastructure
manipulation.
While such advancements can improve
civilian protection by enabling more precise targeting and informed military
decisions, they introduce new risks and challenges for combatants and
civilians, necessitating a comprehensive assessment of their humanitarian
impact. IHL applies to the development and use of these technologies in
warfare, with states responsible for ensuring compliance. Recent conflicts
highlight the enduring toll on civilians, with estimates suggesting 80 to 90
percent of casualties are non-combatants, emphasising the need for humanitarian
aid and training of armed conflict participants, including military personnel
and NGOs, in the laws and customs of warfare. Contemporary armed conflicts
exhibit shifts, with civil wars and engagements against elusive terrorist
groups increasingly common, posing fresh challenges to IHL. Advancements in weaponry,
such as combat drones and lethal autonomous weapons, along with ongoing arms
technology developments, introduce legal and ethical uncertainties. Addressing
these challenges requires continuous collaboration among stakeholders to ensure
the protection of human life and dignity amidst evolving warfare landscapes.
II. CYBER OPERATIONS, THEIR POTENTIAL HUMAN COST, AND THE
PROTECTION PROVIDED BY IHL
The utilisation of cyber operations
in armed conflicts is becoming increasingly prevalent, with a growing number of
states developing military cyber capabilities. The International Committee of
the Red Cross (ICRC) defines "cyber warfare" as operations targeting
computers, networks, or connected devices, raising questions about how existing
provisions of international humanitarian law (IHL) apply and whether further
development of these laws is necessary. While cyber operations may offer
alternatives to traditional methods of warfare, they also carry risks, such as
disrupting essential services to civilian populations. Understanding the
potential human cost of cyber capabilities, the ICRC convened experts to assess
their technical aspects and effects. Cyber operations pose threats to sectors
like healthcare due to increased digitisation, connectivity, and vulnerabilities
in infrastructure. Additionally, attacks on critical civilian infrastructure,
such as electrical grids, can have significant humanitarian consequences. Cyber
operations also raise concerns about overreaction, proliferation of tools, and
attribution challenges. Despite not causing major harm thus far, uncertainties
persist regarding technological advancements and their implications. IHL
provides protections against cyber warfare, including safeguarding medical
facilities and personnel and prohibiting attacks on civilian infrastructure.
While some cyber tools may be designed with precision, adherence to IHL
principles, such as distinction, proportionality, and precautions, is
essential. The ICRC emphasises the importance of recognising civilian data as
protected under IHL and stresses the need for precautionary measures to
minimise harm to civilians and civilian objects. Affirming the applicability of
IHL to cyber warfare does not endorse militarising cyberspace but enhances
civilian protection during hostilities. The ICRC will continue monitoring cyber
operations' evolution and advocate for consensus on interpreting existing IHL
rules and potentially developing additional regulations to protect civilians.
The use of digital technology beyond
warfare purposes during armed conflicts has led to adverse effects on civilian
populations, including misinformation campaigns and increased surveillance.
While IHL does not explicitly prohibit such activities, it prohibits acts aimed
at spreading terror among civilians and prohibits parties from encouraging IHL
violations. International human rights law may also be relevant in assessing
surveillance and disinformation. The digital transformation is also reshaping
humanitarian action, offering opportunities to improve response efforts through
data analysis and two-way communication with affected populations. However, it
also necessitates enhanced digital literacy and data protection measures to
mitigate risks. The ICRC encourages further research and action to ensure
humanitarian organisations can adapt their operations safely to digital changes
while upholding the principle of doing no harm.
III. Autonomous Weapon system and
human attack
The International Committee of the Red
Cross (ICRC) defines autonomous weapon systems as those with autonomy in
critical functions, enabling them to select and attack targets without human
intervention. Unlike traditional weapons where users determine specific targets
and timing, autonomous systems self-initiate attacks based on environmental
cues and generalised target profiles. The loss of human control over the use of
force raises significant humanitarian, legal, and ethical concerns,
particularly regarding the potential risks to civilians and compliance with
International humanitarian law (IHL).
From an IHL perspective, individuals
responsible for planning, deciding, and executing military operations must
comply with legal obligations. Human accountability for the effects of weapon
systems remains paramount, regardless of the level of autonomy. Existing IHL
rules, such as those on distinction, proportionality, and precautions in
attack, provide frameworks for assessing and mitigating risks during armed conflicts.
Combatants must retain human control over weapon systems to make
context-specific judgments and ensure compliance with these rules.[1]
Human control over autonomous weapon
systems occurs at various stages: during development, activation, and operation.
While control measures during development can establish parameters for human
oversight, they alone are insufficient to ensure compliance. The most critical
aspect is human control during activation and operation, allowing for real-time
decision-making aligned with IHL principles. However, existing IHL rules do not
address all concerns regarding autonomous weapon systems comprehensively.
Questions remain about the level of human supervision, intervention, and the
ability to deactivate such systems. Additionally, ethical considerations, such
as the loss of human agency in decisions to use force and the diffusion of
moral responsibility, may necessitate additional limitations beyond legal
requirements.[2]
The ICRC advocates for internationally
agreed limits on autonomous weapon systems to uphold compliance with IHL and
protect humanity. While existing IHL rules provide some constraints, further
clarification is needed regarding the degree of human control necessary in
practice. Ethical concerns, particularly regarding systems designed to target
humans directly, may require more stringent limitations or prohibitions.
Addressing these challenges requires urgent agreement on the type and extent of
human control required to ensure both legal compliance and ethical acceptability
in the use of autonomous weapon systems. The ICRC continues to advocate for
dialogue and consensus-building among stakeholders to address these complex
issues effectively.[3]
IV. ARTIFICIAL INTELLIGENCE AND MACHINE LEARNING
Artificial intelligence (AI) and
machine learning systems are sophisticated computer programs capable of
performing tasks that traditionally require human intelligence, such as
cognition, planning, reasoning, or learning. These systems are distinct from
simple algorithms and have broad applications across various domains. In the
context of armed conflict and humanitarian efforts, AI and machine learning
present several areas of concern and consideration.[4]
The first area of concern is the use
of AI and machine learning to control military hardware, particularly unmanned
robotic systems. AI may enhance the autonomy of these systems, potentially
leading to concerns about loss of human control, especially in the case of
autonomous weapon systems. While not all autonomous weapons incorporate AI, the
development of AI-enabled software for tasks like automatic target recognition
could contribute to future autonomous weapon systems, raising questions about
unpredictability and ethical implications. The second area of concern involves the
application of AI and machine learning in cyber warfare. AI-enabled cyber
capabilities could increase the speed, frequency, and severity of cyber
attacks, including the creation and dissemination of false information for
propaganda purposes.[5] These developments have significant
implications for discussions surrounding the humanitarian impact of cyber
warfare, as digital risks pose real dangers for civilians. The third and
perhaps most consequential area of concern is the use of AI and machine learning
for decision-making purposes. AI systems can analyse vast amounts of data to
identify patterns, make recommendations, or predict future actions, potentially
influencing decisions ranging from military strategy to specific operations,
including targeting and detention practices. While AI systems may improve
decision-making in compliance with international humanitarian law (IHL), they
also pose risks of wrong decisions, IHL violations, and increased harm to
civilians due to factors like unpredictability, lack of transparency, and bias.
A human-centered approach is essential
in navigating the use of AI and machine learning in armed conflict. Preserving
human control and judgment is crucial, particularly in tasks and decisions
governed by IHL rules and where the consequences may impact human lives. These
technologies should serve to augment and improve human decision-making rather
than replace it entirely. Ensuring human control and judgment, especially in
situations with significant risks to human life and dignity, is necessary for
IHL compliance and maintaining a humane approach to armed conflict. Human-AI
interaction will vary depending on the specific application, associated
consequences, relevant legal frameworks, and ethical considerations. However,
alongside human control, building trust in AI systems requires ensuring
predictability, reliability, transparency, and lack of bias in their operation
and consequences. Weapon reviews and other mechanisms can play a crucial role
in assessing and verifying the functioning of AI systems to uphold ethical and
humanitarian standards in armed conflict.
V. Weaponising of outer space
The integration of space assets into
military operations has been a significant aspect of warfare for many years.
This involves utilising satellite imagery for target identification, employing
satellite communication systems for command and control purposes, and more
recently, utilising satellites for remotely controlled military operations.
However, the weaponisation of outer space could escalate hostilities in space,
potentially resulting in severe humanitarian consequences for civilians on
Earth. While the exact extent of these consequences remains uncertain, it is
evident that the use of weapons in outer space, whether through kinetic or
non-kinetic means like electronic or directed energy attacks, could directly or
indirectly disrupt, damage, or destroy civilian or dual-use space objects
essential for various civilian activities and services. These include
navigation satellite systems vital for civilian transportation, weather
services crucial for disaster prevention, and satellite phone services
essential for humanitarian assistance and emergency relief efforts.
The use of weapons in outer space is
subject to existing legal frameworks, including the Outer Space Treaty, the UN
Charter, and International Humanitarian Law (IHL), which governs the conduct of
warfare. IHL applies to military operations in outer space, regardless of the
legality of the use of force under the UN Charter. It aims to uphold a level of
humanity in armed conflicts, particularly by protecting civilians. The Outer
Space Treaty prohibits the placement of weapons of mass destruction in space,
the installation of such weapons on celestial bodies, and the establishment of
military bases or conduct of military activities on celestial bodies.
Additionally, IHL prohibits indiscriminate attacks and requires parties to
distinguish between military and civilian objects, taking precautions to
minimise harm to civilians and civilian objects.
However, even when using weapons not
explicitly prohibited, parties must adhere to IHL rules governing the conduct
of hostilities. This includes avoiding targeting civilian objects and
considering the potential impact on civilians when attacking dual-use
satellites. Furthermore, the creation of space debris resulting from kinetic
attacks poses risks to other satellites supporting civilian activities and
services.
The potential humanitarian
consequences of weaponising outer space underscore the importance of
multilateral efforts to address these risks. Recognising the protections
provided by IHL and acknowledging the significant civilian harm that could
result from the use of weapons in space are essential steps in mitigating these
risks. States have the option to agree on additional rules or limitations to
minimise civilian harm and uphold humanitarian principles. In conclusion, while
the use of space for military purposes is not new, the weaponisation of outer
space presents significant humanitarian challenges. Adhering to existing legal
frameworks and exploring additional measures to reduce civilian harm are
crucial in navigating the complexities of space warfare and preserving
humanitarian principles.
VI. challenges presented by specific emerging technologies of
warfare to legal evaluations of novel weaponry.
New technologies have consistently
been significant in warfare, from ancient weapons like the crossbow to modern
cyber tools. Once developed, such technologies tend to be utilised in military
operations, as noted by U.S. Deputy Secretary of Defence William J. Lynn, III,
who stated that few weapons throughout history remain unused. The integration of new technologies into military
strategies poses intricate legal challenges within the framework of armed
conflict law. Legal progress often reacts to specific situations, with
real-world circumstances driving the need for legal regulations. This is
particularly evident in international law, where treaties and customary
practices, rooted in consensus, serve as the primary legal sources.
Nevertheless, law also functions as a signalling mechanism, offering guidance
to nations as they weigh the incorporation and militarisation of emerging
technologies.
In tandem with
these constraints, international law, notably Article 36 of the 1977 Additional
Protocol to the 1949 Geneva Conventions[6], mandates that
states evaluate whether the use of new weaponry complies with international
legal standards. This process, known informally as a 'weapon review', 'legal
review', or 'Article 36 review', is essential for ensuring that the adoption of
novel technologies aligns with humanitarian principles. The significance of
conducting such reviews is widely acknowledged, particularly in light of
ongoing advancements in civilian and military technologies. The thorough
assessment of Article 36[7] reviews is pivotal
in determining whether the adoption of new technologies poses significant
humanitarian concerns. Moreover, these evaluations ensure that the armed forces
of states can engage in hostilities while upholding their international
obligations. As the landscape of technology continues to evolve, the importance
of these reviews becomes increasingly emphasised, underscoring their role in
maintaining compliance with international legal standards amidst technological
advancements.The effectiveness of Article 36 reviews in regulating
technological advancements can face several obstacles. Primarily, there's a
notable issue of non-compliance, as only a limited number of states have
established formal mechanisms for Article 36 reviews. Additionally, Article 36
lacks specific guidelines on how states should formalise this process,
resulting in variations in format, methodology, mandate, and authority level
among countries. Furthermore, disparities in resources and expertise among
states may hinder their ability to fulfil the obligations outlined in Article
36, especially as new technologies increase the complexity and costliness of
the review process.[8]
The lack of
widespread adherence to Article 36 and the varying approaches to conducting
reviews, coupled with the complexities introduced by new technologies, raise
concerns among civil society organisations focused on arms control and
humanitarian issues. They express skepticism regarding Article 36's adequacy in
preventing the development or usage of weapons that breach international law.
Consequently, they propose the need for new regulations or prohibitions to
oversee specific categories of emerging military applications, such as lethal
autonomous weapon systems.
VII. CONCLUSION & Recommendations
Several strategies can address the
challenges outlined above, focusing on (a) leveraging existing best practices,
(b) fostering transparency and collaboration in Article 36 reviews, and (c)
supporting targeted research.Key guidelines include:
•
Early initiation: Commencing the review process
at the project study stage and integrating it into procurement decisions.
•
Multidisciplinary approach: Involving expertise
from legal, medical, operational, and technical fields to comprehensively
assess new technologies.
•
Training: Providing technical training to
military lawyers and educating engineers on international legal requirements.
•
Testing and evaluation: Conducting thorough
tests and evaluations, potentially utilising computer simulations to reduce
costs.
In conclusion, the rapid progress of new technologies in warfare poses
intricate legal and humanitarian dilemmas. As countries heavily invest in
digital tools like cyber capabilities, autonomous weapons, and AI for military
purposes, it's vital to uphold compliance with international humanitarian law
(IHL) and safeguard civilians amidst changing conflict scenarios. The
International Committee of the Red Cross (ICRC) assumes a crucial role in monitoring
these advancements and advocating for adherence to IHL. Regulating these
emerging technologies requires a comprehensive approach, including early
initiation of legal assessments, involvement of diverse expertise, ongoing
training, and rigorous testing. Openness and cooperation in conducting Article
36 reviews are vital to ensure adherence to standards and manage risks linked
to new weaponry. Recommendations encompass drawing upon established practices,
fostering transparency and cooperation in Article 36 evaluations, and backing
targeted research efforts. Prioritising compliance with international legal
norms and responsible innovation allows stakeholders to navigate the
complexities of technological advancements in warfare while upholding
humanitarian values.
[1] Paul Scharre, Army of None: Autonomous Weapons and the
Future of War (New York: W.W. Norton, 2018), p. 305.
[2] McFarland, T., Assaad, Z. Legal reviews of in situ learning
in autonomous weapons. Ethics Information Technology 25, 9 (2023). https://doi.org/10.1007/s10676-023-09688-9
[3] McFarland, T. (2020). Autonomous Weapon Systems and the Law
of Armed Conflict: compatibility with International Humanitarian Law. Cambridge
University Press. https://doi.org/10.1017/9781108584654.
[4] Robert O. Work, “Preface,” in Artificial Intelligence: What Every Policymaker
Needs to Know, ed. Paul Scharre and Michael C. Horowitz (Washington, DC: Center
for a New American Security, June 2018), p. 2.
[5] Lewis, D. (2019, March 21). Legal Reviews of Weapons, Means
and Methods of Warfare Involving Artificial Intelligence: 16 Elements to
Consider. Humanitarian Law & Policy.
https://blogs.icrc.org/law-and-policy/2019/03/21/legal-reviews-weapons-means-methods-warfare-artificial-intelligence-16-elements-consider/.
[6] 1977 Protocol I Additional to the Geneva Conventions, and
Relating to the Protection of Victims of International Armed Conflicts, opened
for signature 12 Dec. 1977, entered into force 7 Dec. 1978.
[7] International Committee of the Red Cross (ICRC), A Guide to
the Legal Review of Weapons, Means and Methods of Warfare (ICRC: Geneva, 2006).
[8] McClelland, J., ‘The review of weapons in accordance with Article 36 of
Additional Protocol I’, International Review of the Red Cross,
vol. 85, no. 850 (June 2003), p. 404.
Article Information
CONTEMPORARY DILEMMAS IN ENFORCING INTERNATIONAL HUMANITARIAN LAW DURING MODERN WARFARE CONTEXTS
Authors: AJAYITA SANDHU
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/05/14
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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