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TECHNOLOGICAL ADVANCEMENT IN INTERNATIONAL AND NON-INTERNATIONAL ARMED CONFLICTS
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TECHNOLOGICAL
ADVANCEMENT IN INTERNATIONAL AND NON-INTERNATIONAL ARMED CONFLICTS
AUTHORED BY - SOMASREE BAKSHI
ABSTRACT
Expansion in technologies and advanced armaments have revolutionized
warfare since time immemorial, with the invention of the nuclear-powered
armaments and various atomic weaponries to remember how innovation technologies
have been transmuted the landscape of warfare. International community have broadly
examined the relevance of the existing laws to address the evolving technological
changes, but they have dedicated comparatively little attention in these evaluates
for the prior development of the law as a result of technological transformation.
The general paucity of serious appointment with the history of international
law applicable in armed conflicts with the challenge and the disagreements
about the impact of technology on society, and the consequence of military
technology on warfare in general. Nevertheless, this article examines the laws
governing the standing, legality and validity of both automatic and remote
weapons systems under international humanitarian law. Technologically innovative
military systems are being introduced into the contemporary battlespace with
insufficient recognition of their possible challenge to the international
humanitarian law. Further, it contains the challenges posed to international
humanitarian law by the extensive use of new technology which enabled the
materials and other potential applications.
KEYWORDS:
Law of armed conflict, law of war, international humanitarian law (IHL),
international treaties, law of war, international criminal court (ICC).
?INTRODUCTION
As armaments become more technologically composite, the challenges
complying with this advancement are ostensibly the unpretentious requirements
of international law which become more intimidating. The particulars of the construction
and testing methods would correspondingly be monotonous. The same cannot be stated
about some modern weapons which are still under development. The practice of a
guided armament with an unstoppable firing option requires an understanding of
the legal limitations, the production, manufacturing design, and testing or
validation, and how the weapon might be employed on the battlefield needs deep
apprehension. Furthermore, the breakdown of barriers through a
multidisciplinary method that classifies the key legal issues associated with
employing new technological advanced weapons sets out important features of
emerging technology and examines how scientific tests and evaluations can be
used to update the weapon review process. The amalgamation of these methods
provides a over-all framework to address the legal issues associated with
weapon development and how to put restrictions upon them, regardless of the
simplicity or complexity of the weapon.
?SIGNIFICANCE OF HISTORY
Law of War has been challenged by new technologies over and over again
in the last few decades. Numerous technologies transformed the battlespace in particular
weapons which have been perceived to be the most evolved instrument. The
history of warfare has been repeatedly interrupted by the advancement in the
weaponries which claims that every new weapons are “unlawful” which will
led to the devastation of mankind. Prior encounters amongst legal sanctions and
technologically advanced armaments give some indication regarding effectiveness
of legal solutions implemented to solve the concerning technological change in
the battlespace. In the domestic jurisdictional context, the technological
advanced law to support and endure high-tech changes widely. The significant matter
for the law of war which has been so specific as to be easily condensed and
inapplicable in the new changes. The noticeable instance is the prohibition of
gas warfare. The first prohibition on the use of gas in warfare was in the 1899
Hague Declaration where the contracting States agreed “to abstain from
the use of projectiles the sole object of which is the diffusion of
asphyxiating or deleterious gases”.[1] Hereafter,
since then the changes in weaponry has been emerged and evolved
accordingly.
INTERNATIONAL
& NON-INTERNATIONAL
ARMED
CONFLICT
International Humanitarian Law, the
subdivision of international law which governs armed conflict distinguishes two
types of armed conflicts, namely: international armed conflicts, which evolve
the hostilities between two or more States, and non-international armed
conflicts, which include governmental forces and non-governmental armed groups.
International treaties also establish more on the terms international armed
conflicts and non-international armed conflicts respectively within the
definition provided in Art. 1 of Additional Protocol II, Rome Statute of
International Criminal Court and common Article 3 of the Geneva Conventions of
1949. Legitimately, there is no other type of armed conflict exists, nevertheless
significant to emphasize that a situation can evolve from one type of armed
conflict to another, depending on the facts dominant at a particular instance.[2]
·
Article 3 of the Fourth Geneva Convention 1949:
Article 3 common to the 1949 Geneva
Conventions are applicable in the case of a non-international type of armed
conflict. This provision concerns the armed conflict of “not of an
international character” and does not provide a definition. So, referring back
to Article 2, armed conflicts that are not of an international character
comprise those conflicts in which at least one of the parties involved is
non-governmental. Common Article 3 also undertakes that international humanitarian
laws do not apply to a situation of violence until it has reached a
distinguished level of internal disturbances and isolated acts of violence are
not of a parallel nature. The International Criminal Tribunal for the Former
Yugoslavia specified that the threshold for an internal armed conflict reaches
when the situation can be defined as ‘protracted armed violence’.[3] Two
main elements are establishing an internal armed conflicts are i) any certain
intensity of the armed violence, ii) or a certain phase of association of the
parties. When these two conditions have not been established the situation of violence
may be defined as internal disturbances or internal tensions. These two
concepts, which designate categories of social instability that do not pertain
to armed conflict, have never been defined in law granting all this they are mentioned
explicitly in Additional Protocol II.[4]
·
Article I of Additional Protocol II:
This applies to non-international
armed conflicts which were taken place in the territory of a High Contracting
Party between its armed forces and rebellious armed forces or other organized
armed groups which exercise such control over a part of its territory and
concerted military operations and to implement this Protocol. However, these
provisions do not apply to wars between national liberation, which are
associated with international armed conflicts.[5]
Article 3 when combined with
Additional Protocol II denotes more restricted field of application of
international humanitarian law by implementing the regulations. which denotes
the requirements for a particular organization that they must operate ‘under
responsible command’ and exercise territorial control, allowing them ‘to
carry out sustained and concerted military operations and to implement this
Protocol’. Even though the Common Article similarly conveys that a
particular organization does not require to exercise control of a part of a
territory. Nearly, a conflict may fall under Common Article 3 without
fulfilling conditions determined by Additional Protocol II. All the armed
conflicts covered by Additional Protocol II have been governed by Common
Article 3. Predominantly, it is often difficult to control situations that
comply with the criteria of Additional Protocol II. The required degree of
territorial control differs from case to case. If Article 1(1) is to be applied
strictly, only those non-governmental parties would be covered which exercise
similar control of a State, hence the nature of conflict would be subsequent to
international armed conflict. The ICRC (International Committee of the Red
Cross) seems to be the middle path on the territorial issue. It denotes that
sometimes territorial control can be relative. Additional Protocol II restricts
its field of application to armed conflicts between government armed forces and
dissident armed forces unlike Common Article 3 which extends to conflicts
solely between non-governmental groups. Ultimately, Additional Protocol II
started the criteria already given in Common Article 3 that they cover only
non-international armed conflicts occurring in any one High Contracting Party.
·
Rome Statute of International Criminal Court :
The Rome Statute of the ICC signifies
two categories of crimes that occur during ‘armed conflicts not of an
international character’: (a) serious violations of common Article 3, and (b)
other serious violations of several laws and customs of war that are applicable
in those circumstances. In both cases, the Statute denotes the lowest level of
applicability of the relevant provisions by stipulating that they do not apply
to ‘situations of internal disturbances and tensions, such as riots, isolated
and serious acts of violence and other acts of a similar nature’. Besides, this
instrument which does not give a more precise definition of the material field
of application of the rules about ‘serious violations of common Article 3’
(Article 8(2)(d)), it illuminates the concepts of non-international armed
conflict in the case of ‘other serious violations’. Article 8(2)(f) specifies
in that case that the rules must implicate ‘to armed conflicts that take place
in the territory of a State when there is a protracted armed conflict between
governmental authorities and organized armed groups’.
Case law established the legality of
the interpretation in the Statute. In the Lubanga Dyilo case, the ICC Pre-Trial
Chamber relied upon Additional Protocol II to interpret paragraph (2)(f) of the
Statute. It thus evidently wanted to confer a distinct meaning on this
provision, by stating a specific threshold of applicability. The Chamber made
specify that this threshold is characterized by two conditions: (a) the
violence must contains certain intensity to be protracted; (b) an armed group
with a dimension of organized groups particularly have the ‘ability to plan
and carry out military operations for a prolonged period’ must be
connected.[6]
?JUS AD BELLUM & JUS IN BELLO
·
Jus ad bellum
Jus ad bellum refers to the
circumstances under which States resort to war or the use of armed force
without any prohibition. This is distinct from the set of rules which ought to
be followed during a war, known as jus in bello, which govern the measure taken
by the parties involved in an armed conflict. There are certain principles laid
down in accordance with Jus Ad Bellum. The principles of the justice of war are
commonly held to be: having cause for the specific measures, being a last
resort, being declared by a proper authority, possessing the right intention to involve in
armed conflict, having a reasonable chance of success, and the end being
proportional to the means used by the other party.
The primary source of jus ad bellum
is the United Nations Charter, which explicitly prohibits all signatories from
using force as mentioned by Article 2(4)) except in instances when permitted by
the Security Council pursuant according to a resolution issued under Chapter
VII of the UN Charter, and when a signatory is exercising its inherent right of
self-defense when it has been the target of an armed attack as mentioned
by Article 51. Complications and
ambiguity regarding how the UN Charter should be interpreted when cyberattacks
result from three fundamental facts. Firstly, the UN Charter was written in
1945, long before the evolution of cyberattacks was even imagined. The
fundamental threshold for the formulation of the Charter involved threats to
the territorial sovereignty of the nations, and thus the framers of the Charter
could not have imagined how it might apply to the evolved cyber conflict.
Second, the UN Charter itself contains no definitions for certain key terms,
such as ‘use of force’, ‘threat of force’, or ‘armed attack’.
Thus, the underlying meaning of these terms could not be understood by any
reference invoked in the Charter. Definitions and meanings can only be
supported by historical precedent and practice, how individual nations, the
United Nations, and international judicial bodies have defined these terms in
particular circumstances. Due to the lack of clarity for what these terms it is
not surprising that there is even less clarity for what they might mean in the
context of cyber conflict. Similarly, the UN Charter is internally inconsistent
with the regulations of cybercrimes emerging in the evolved manner. Article
2(4) prohibits the use of force that could damage persons or property other
than in self- defense or authorized by the UN Security Council. However,
Article 41 allows other acts (specifically, economic sanctions) that could
damage persons or property. The use of operations not contemplated by the
framers of the UN Charter which resulted in cyber operations magnifies such
inconsistencies.
·
Jus in bello
Jus in bello, is the law that governs
the procedure in which warfare will be conducted. International Humanitarian
law is purely seeking to limit the suffering caused by an armed conflict. It is
autonomous from quarries about the justification or reasons for war, or its
prevention which is covered by jus ad bellum. The principles of jus in bello,
the regulations regarding the conduct of war fall under the two broad categories
of discrimination and proportionality. The principle of discrimination concerns
who are the legitimate targets in war excluding civilians, whilst the principle
of proportionality concerns how much force is morally appropriate in a war.
Jus in bello is based upon the
provisions of the Geneva Conventions and their customary counterparts. Some of
the fundamental principles underlying jus in bello are the principle of
military necessity the principle of distinction military operations may be
conducted only against ‘military objectives’ and not against civilians,
and the principle of proportionality the unexpected incidental loss of civilian
life, injury to civilians or damage to civilian objects must not be
disproportionate to the military advantage. The UN Charter and the Geneva
Conventions are silent on cyberattack as a modality of conflict, and the
question of how to apply the principles mentioned in any instance involving
cyber conflict may be controversial. The following cases are offered to raise
some key issues. Under the provisions of the Geneva Conventions and Additional
Protocols related to distinctive portions, parties to a conflict must
distinguish between civilians and combatants between civilian objects and
military targets. In the context of cyber warfare, an attack on an adversary’s
technology system or network would have to be intended to result in a definite
military advantage and not merely a political or economic advantage. Today,
military forces are likely to route a large fraction of their communications
over facilities that are primarily used for civilian purposes. ?
TECHNOLOGICAL ADVANCEMENT IN WEAPONRY
The advancement in military technologies
and weapon systems in research and funding programmes increase a range of
substantial legal issues. The complication of the legal issues will be
compounded by increasing technological erudition and greater proliferation of
unconventional weaponries. The St. Petersburg Declaration of 1868,
barred the use of projectiles by which the international community has
attempted to regulate new technologies in warfare. And international
humanitarian law has developed in response to new challenges raised by new
types of machinery. The effects of the emerging technologies have a lead
reflection on the meaning of the ‘use of armed force’ as the threshold
of the applicability of humanitarian law jus in bello, particularly in
the context of a cyberattack. Similarly, this applies to the concept of an ‘armed
attack’, which triggers the right of self-defense under the United Nations
Charter. The cyberattacks in which States have engaged so far seem to be more
closely related to sabotage or espionage than to armed conflict.
Various observations regarding the
development of autonomous weapon systems as having the potential to improve
compliance with humanitarian law on the battlefield. It becomes difficult from
a technological standpoint to give these weapons the capacity to make
distinctions. The ICRC emphasizes that the deployment of such systems
have been raised a range of fundamental legal, ethical and societal issues
which need to be considered before such systems are developed or deployed.[7]
Warfare has been upgraded, over the
past few decades with an extraordinary technological change in conflicts and
military capabilities. Reportedly various States have established dedicated
cyber-warfare units within their armed forces or intelligence agencies to
regulate cybercrimes which help the States fend off hostile cyber-operations
targeting their national infrastructure and undertake such operations against
an adversary. Furthermore, many States are said to operate unmanned aerial
vehicles (UAVs) for intelligence, surveillance and reconnaissance, and
allegedly some 30 States already have or are developing armed UAVs. Military
applications of artificial intelligence and biotechnology are being actively
devised and implemented. This technological shift has signified an extensive debate about the
adequacy of the applicable international law, yet past developments of the law
which resulted in the technological change garnered surprisingly little
attention in these analyses.
?CONCLUSION
Emerging technologies are prominently
dominant on the agenda of policymakers and military leaders around the globe.
New units to ensure cyber security are created at various levels of government,
including in the armed forces. Various cyber operations in armed conflict
situations could have potentially very serious consequences, in particular when
their effect is not limited to the data of the targeted computer system or
computer. Indeed, cybercrimes especially under international laws are usually
intended to have an effect in the ‘real world’. The potential humanitarian impact of several
cyber operations on the civilian population is enormous. It is therefore
significant to discuss the rules of international humanitarian law that govern
such operations because one of the main objectives of this body of law is to
protect the civilian population from the effects of warfare in general.
In conclusion, there is no question
that international humanitarian law also applies to cyber warfare as any other
armed conflict. Moreover, it will provide sufficient protection to the civilian
population, particularly by shielding civilian infrastructure from harm during the
war. If interpreted in good faith it will be possible to protect civilian
infrastructure from being directly targeted or from suffering damage that could
potentially be disastrous for the civilian population. Even then, considering
the potential weaknesses of the principles of distinction and precaution in the
absence of more profound knowledge of offensive capabilities and effects it
cannot be excluded that more stringent rules might be necessary for the domain
of international humanitarian law to deal with the emerging technological
changes.
[1] Hague Declaration (IV, 2) on the Use of Projectiles
the Object of Which is the Diffusion of Asphyxiating or Deleterious Gases, 187
CTS 453, 29 July 1899 (entered into force 4 September 1900).
[2] International Committee of the Red Cross, How
is the term “Armed Conflict” defined in international humanitarian law?,
17.03.2008, available at https://www.icrc.org/en/doc/resources/documents/article/other/armed-conflict-article-170308.htm (accessed
on 10 March 2023).
[3] ICTY, Prosecutor v. Tadic,
Case No. IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, 2 October 1995.
[4] Sylvain Vité, ICRC, Typology of
armed conflicts in international humanitarian law : legal concepts and actual
situations, Volume 91 Number 873, March 2009, available at : https://www.icrc.org/en/doc/assets/files/other/irrc-873-vite.pdf (accessed on 04 March 2023).
[6] International Criminal Court, Prosecutor
v. Lubanga Dyilo, Case No. ICC-01/04-01/06-803, Decision on
the confirmation
of charges (Pre-Trial Chamber I), 29 January 2007.
[7]
ICRC, ‘International humanitarian law
and the challenges of contemporary armed conflicts,’ Report of the 31st
International Conference of the Red Cross and Red Crescent, ICRC, available
at: http://www.icrc.org/eng/assets/files/red-cross-crescent-movement/31st-internationalconference/31-int-conference-ihl-challenges-report-11-5-1-2-en.pdf (accessed on 07 March 2023).
Article Information
TECHNOLOGICAL ADVANCEMENT IN INTERNATIONAL AND NON-INTERNATIONAL ARMED CONFLICTS
Authors: SOMASREE BAKSHI
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/07/05
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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