International Humanitarian Law And Technological Advancement In Weaponry

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International Humanitarian Law And Technological Advancement In Weaponry

International humanitarian law (IHL), based on the concepts of jus ad bello, is defined to be the law of war. This means that the laws involved are meant to be active in a situation of armed conflict or during war. IHL is branch of public international law that deals with armed conflicts and its relationship with other states. It is defined as:

“a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflicts. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare.”[1]

This definition elaborates the basic concept of international humanitarian law that it is a set of rules to protect those people who are not taking part in armed conflicts. In the field of IHL, there are two basic kinds of armed conflict. First one is international armed conflict (IAC) and the second one is non-international armed conflict (NIAC). Another one is recognized by the International Committee of Red Cross (ICRC) as internationalized non-international armed conflict. IHL is covered by the Geneva Conventions, the Hague Conventions and the customary rules of IHL.

International armed conflict is the conflict between two or more states. Article 2 common to the Geneva Conventions of 1949 states that:

“In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance”.

According to this provision, IACs are those which oppose “high contracting parties”, meaning states. An IAC occurs when one or more states have recourse to using armed force against another state, regardless of the reasons or the intensity of this confrontation. Relevant rules of IHL may be applicable even in the absence of open hostilities. Moreover, no formal declaration of war or recognition of the situation is required. The existence of an IAC, and as a consequence, the possibility to apply international humanitarian law to this situation, depends on what actually happens on ground. It is based on factual conditions. For example, there may be an IAC, even though one of the belligerents does not recognize the government of the other party.[2]

In the Tadic case, the tribunal stated that “an armed conflict exists whenever there is resort to armed force between states”[3]. This definition has been adopted by other international bodies since then and has been a part of IHL.

Under Article 3 common to the Geneva Conventions of 12 August 1949, non-international armed conflicts are armed conflicts in which one or more non-state armed groups are involved. Depending on the situation, hostilities may occur between governmental armed forces and non-state armed groups  or between such groups only. As the four Geneva Conventions have universally been ratified now, the requirement that the armed conflict must occur “in the territory of one of the high contracting parties” has lost its importance in practice. Indeed, any armed conflict between governmental armed forces and armed groups or between such groups cannot but take place on the territory of one of the parties to the Convention.

Furthermore, two requirements are necessary for such situations to be classified as non-international armed conflicts:

(i) the hostilities must reach a minimum level of intensity. This may be the case, for example, when the hostilities are of a collective character or when the government is obliged to use military force against the insurgents, instead of mere police forces.

(ii) Non-governmental groups involved in the conflict must be considered as “parties to the conflict”, meaning that they possess organized armed forces. This means for example that these forces have to be under a certain command structure and have the capacity to sustain military operations.[4]

Challenges To International Humanitarian Law

In contemporary armed conflicts, civilians are the primary victims of violations of IHL committed by both state and non-state parties. The nature of contemporary armed conflicts continues to provide challenges for the application and respect of IHL in a number of areas, ranging from the classification of armed conflicts to the use of new technologies. There is a need to understand and respond to these challenges to ensure that IHL continues to perform its protective function in situations of armed conflict.

The increasing complexity of armed conflicts has given rise to discussions over the notion and typology of armed conflicts, including whether the IHL classification of conflicts into international (IAC) and non-international (NIAC) is sufficient to encompass the types of armed conflicts taking place today. The interplay between IHL and human rights law continues to have practical consequences on the conduct of military operations. The relationship between human rights law and IHL impacts issues related to detention, as well as to the use of force, in both international and non-international armed conflicts, as well as the extraterritorial targeting of persons.[5]

This overview of 05-02-2013 by International Committee of Red Cross (ICRC) on contemporary challenges for international humanitarian law (IHL) explains briefly the challenges faced in the field of IHL. In recent years extra-territorial military operations have given rise to new forms of military presence in the territory of a state and refocused attention on the rights and duties of an occupying power, the regulation of the use of force in occupied territory and the applicability of the law of occupation to UN forces. The responsibilities and tasks assigned to multinational forces have also evolved to encompass a spectrum of operations including conflict prevention, peace-keeping, peace-making, peace-enforcement and peace-building. The multifaceted nature of these operations means multinational forces are more likely to use force and raises the question of when and how IHL will apply to their actions.

Technological Advancement In Weaponry 

A wide array of new technologies has entered the modern battlefield. Cyberspace has opened up a potentially new war-fighting domain. Remote controlled weapon systems such as drones are increasingly being used by the parties to armed conflicts. Automated weapons systems are also on the rise, and certain autonomous systems such as combat robots are being considered for future use on the battlefield. There can be no doubt that IHL applies to these new weapons and the employment of new technology in warfare. However, these new means and methods of warfare pose legal and practical challenges in terms of ensuring their use complies with existing IHL norms, and also that due regard is given to the foreseeable humanitarian impact of their use. Following are some of the new technological advancement in weaponry:

  • Cyber Warfare

It appears that technically, cyber-attacks against airport control and other transportation systems, dams or nuclear power plants are possible. Such attacks would most likely have large-scale humanitarian consequences. They could result in significant civilian casualties and damages.

Wars are a tragic part of our history and are certainly the most tragic part of the future. Since the establishment of the United Nations, wars of aggression are being outlawed and multilateral conflicts are referred to armed conflicts instead of war. But wars of the future won’t be like wars of our past alongside traditional warfare. Our future of conflicts include cyber warfare remotely fighting enemies through the use of a new class of weapons including computer viruses and programs to alter the enemy’s ability to operate. And not only had a cyber-warfare not only covered by existing legal frameworks but the question of what exactly constitute cyber warfare is highly debated.

So how can we deal with cyber warfare, if we cannot even agree on what it means? One way forward is to envision situations where new international laws may be needed. Imagine a new kind of assassin one could propagate a crime without firing a single shot or even been in the same country. For example, an individual working for a government uses a wireless device to send a signal to the pace-maker of another foreign leader with a heart condition. This device makes pace-maker malfunction, ultimately resulting in foreign leader’s death. Will this cyber assassination constitute an act of war?

As a second example, imagine an allied group of nations corporately infiltrating the computer systems of an enemy nation’s warship. This attack results in the nuclear power aircraft carrier almost melting down and just stop short of killing thousands of innocent civilians and soldiers. As a defensive measure, an enemy country responds by unleashing a cyber-attack that results in a power breakdown. Hospitals can no longer treat patients and the entire region is without neat and clean water, ultimately causing thousands of civilian deaths. The origin of power failure is a counter-attack but the fragile infrastructure, feeble cyber security and the antiquated state of the grid system all result in the death of thousands of civilians. Could the country fight back? Who will they fight? Will their retaliation be considered an act of war? Does this constitute a war crime or a crime against humanity? Who is to be held responsible – the computer programmers who wrote the code, the military manager who oversaw the creation of the code, the commander who hit the button setting off the event or the hardware engineer who invented the computer?

Because war has been with us for so long, we have laws for figuring out who should be held accountable in their actions during combat. These legal frameworks aim to contain and prevent the atrocities from being more atrocious. Using civilian planes as weapons, dropping atomic bombs and using gas chambers of poisonous gas in conflicts, all of these actions, if committed, constitute acts of war and war crimes under the Hague Conventions as well as customary international law. Again the current legal framework stays silent on hypothetical questions and countless others because there are no easy answers. There are only two ways to make progress on these questions. PEACE or NEW LAWS.

  •  Remote Controlled Weapons

Remote controlled weapon systems such as drones are increasingly being used by the parties involved in armed conflict, for instance, US drone strikes in Pakistan to eliminate terrorists due to which civilians lives also suffer. With advancement in the field of robotics in weaponry, the remote controlled weapon system is entering into a new phase of weapons in armed conflict. This technological advancement is causing the lives of innocent civilians to suffer. As weapons become more technologically complex, the challenges of complying with even the simple requirements of international law become more daunting. If a lawyer were to conduct a legal review of a sword, there would be little need for the lawyer to be concerned with the design characteristics beyond those that could be observed by the naked eye. The intricacies of the production and testing methods would equally be legally uninteresting, and even a lawyer could grasp the method of employment in combat. The same cannot be said about some modern weapons, let alone those under development. The use of a guided weapon with an autonomous firing option requires an understanding of the legal parameters – the engineering design, production and testing (or validation) methods and the way in which the weapon might be employed on the battlefield.[6]

Thus one should know the consequences of building and developing a remote controlled weapon system for armed conflicts.

  • Automated Weapons Systems

Automated weapons systems are also on the rise and certain autonomous systems such as combat robots are being considered for future use on the battlefield. Automated weapons systems should not be confused with automatic weapons, which are weapons that fire multiple times upon activation of the trigger mechanism e.g. a machine gun that continues firing for as long as the trigger remains activated by the person firing the weapon. Automated weapons systems are not remotely controlled but function in a self-contained and independent manner once deployed. Examples of such systems include automated sentry guns, sensor-fused munitions and certain anti-vehicle landmines. Although deployed by humans, such systems will independently verify or detect a particular type of target object and then fire or detonate. An automated sentry gun, for instance, may fire, or not, following voice verification of a potential intruder based on a password.[7]

In short, automated weapons are designed to fire automatically at a target when predetermined parameters are detected. Automated weapons serve three different purposes. Weapons such as mines allow a military to provide area denial without having forces physically present. Automated sentry guns free up combat capability and can perform what would be tedious work for long hours and without the risk of falling asleep.

It is concluded that technological advancement in weaponry in the field of IHL is increasing with the scientific approach of the twenty-first century. A new range of modern weapons has been introduced in armed conflicts both international or non-international. Thus, a new approach towards this technological advancement in IHL should be considered and new laws should be formed with the mutual consent of states for dealing with state and non-state actors.

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References

[1] Basic documents on International Humanitarian law – South Asia Collection, p. 1310

[2]  “It is irrelevant to the validity of international humanitarian law whether the States and Governments involved in the conflict recognize each other as States”: Joint Services Regulations (ZDv) 15/2, in: D

[3]  J. Pictet, Commentary on the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, ICRC, Geneva, 1952, p. 32.

[4] https://casebook.icrc.org/casebook/doc/glossary/non-international-armed-conflict-glossary.htm

[5] https://www.icrc.org/eng/war-and-law/contemporary-challenges-for-ihl/overview-contemporary-challenges-for-ihl.htm

[6] See Michael Schmitt, ‘War, technology and the law of armed conflict’, in Anthony Helm (ed.), The Law of War in the 21st Century: Weaponry and the Use of Force, Vol. 82, International Law Studies, 2006, p. 142.

[7] Jakob Kellenberger, ICRC President, ‘International humanitarian law and new weapon technologies’, 34th Round Table on Current Issues of International Humanitarian Law, San Remo, 8–10 September 2011, Keynote address, p. 5, available at: http://iihl.org/iihl/Documents/JKBSan%20Remo%20Speech.pdf (last visited 8 May 2012). Various types of existing automated and autonomous weapons are briefly discussed, with further useful citations, in Chris Taylor, ‘Future Air Force unmanned combat aerial vehicle capabilities and law of armed conflict restrictions on their potential use’, Australian Command and Staff College, 2011, p. 6 (copy on file with authors)

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.

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Mian Nairab Khurshid

The writer is a law graduate from Punjab University Law College and is currently an LL.M (International Law) student at International Islamic University, Islamabad. He is a senior partner at Khurshid Anwar Law Firm (KALF) and has also worked as a senior associate at Kamran Sheikh & Associates and IJAZ & IJAZ. He is the co-editor of Human Rights Protection Committee's (HRPC's) newsletter at Lahore High Court Bar and has keen interest in constitutional law, international law and legal research.



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