INTERNATIONAL HUMANITARIAN LAW IN NEW AGE WEAPONS ERA: A TOOTHLESS TIGER?

Abstract:

Weapons of any description are meant to kill, maim or destroy. With advance of technology the weapons have become extremely lethal, vastly destructive, and easy to deploy and strike. This has replaced the conventional war to a great extent. International Humanitarian Law with its extant principles is applied to regulate the war fought with new age weapons. The ramifications of the war fought or to be fought with new-age weapons of present and future are complicated because of their immeasurable power of destruction, lack of transparency about their development, use and effect, absence of responsibility and accountability for the same, military power imbalance and possible lack of remedial measures etc. The International Humanitarian Law can be said to have lagged behind in comparison to the fast pace of development of weapons and the ‘virtual’ war they are capable to fight. The prevailing International Humanitarian Laws needs to evolve correspondingly with the rapid development in the new-age weapons, changes in nature of military conflicts or become redundant. The world community needs such regulatory regime to control weapons and wars for its own survival.

1.      INTRODUCTION

‘I know not with what weapons World War III will be fought, but World War IV will be fought with sticks and stones’, forewarned Albert Einstein after the World War II. He had vision of the destructive power of the weapons of the future which would be developed with the development of science and technology and which would push the world back to the stone age in case of an all out war. Since we are on the aspect of the adequacy of International Humanitarian Law to deal with conflicts involving new age weapons and warfare but not of the World War scale, we may ignore the doomsday scenario of mankind exterminating itself in such a war, where all laws become redundant.

Since the beginning of mankind there have been conflicts, battles and wars and use of weapons in fighting them. Over the ages the weapons have been improved and made more deadly and lethal. Advancement of science and technology has further revolutionized the weapon systems and their potent power to kill and destroy. To quote Tom Clancy: “Technology has always been a factor in deciding how to equip and organize armed forces. Ever since the first man chose to pick up a rock or stick to gain advantage over other men, there has been a race to find better rocks and sticks. And when these couldn’t be found, men designed and built new and improved rocks and sticks. Once upon a time, it took ten years or more to get a weapons system from the drawing board to the battle field. No longer. Today, the bewildering pace of technological change makes it hard to decide what kind of rocks and sticks to build.”[1]

Last century saw rapid improvements of weapons and their strike powers in tandem with the advancement of technology. Between World War I and II there was tremendous advancement in the weapon systems completely changing the nature of warfare by armies, navies and air forces. War from being relatively localized became global in true sense. The magnitude of destruction and loss of life became mind boggling. The use of atom bomb demonstrated the annihilation power of nuclear weapons which was at that time considered the ultimate of the weapons. But that was not to be. What Einstein predicted was not an exaggeration. The weapons already developed and being developed make ‘Fat Boy’ and ‘Little Man’ crude weapons.

2.      INTERNATIONAL HUMANITARIAN LAW: CONCEPTUAL CONNOTATIONS AND SCOPE

International Humanitarian Law or law of conflict is a field of international law that specifically deals with the military intervention and conflict resolution during a conflict situation. It is based on the conventions such as Hague Convention and Geneva Conventions, other treaties and case laws that controls the conduct of armed conflict. IHL or jus in bello (law in war) of customary international law which deals with the issues pertaining to the law of war that, limits the suffering caused by war by protecting and assisting the victims as far as possible. Thus it addresses the reality of a conflict without considering the reasons for or legality of resorting to force[2]. On the other hand jus ad bellum(law on the use of force) or jus contra bellum(law on the use of force)  deals with the  set of criteria that must be fulfilled in order to check whether the war is justifiable or is the last resort between the states. But in this manner, one state may have to suffer the aggression by the other as their right is not practiced or paralyzed by the implementation of such law. Hence, IHL is important enough to protect the war victims and their fundamental rights no matter to which state party they belong.[3] So, both jus in bello and jus ad bellum compliments as a law of war, former deals with conflict situation and later with pre-war situation.

IHL is applicable only once an armed conflict has begun and then equally to all parties regardless of the reasons for the conflict or the question of who initiate the war. Armed conflict between two or more state is known as International Armed conflict. These International Armed Conflict is governed by four Geneva Conventions and the First Additional Protocol to the Geneva Conventions of 1977(IAP) that makes sure about the protection of victims of international armed conflict.[4] Secondly, the armed conflicts within one state, between the state forces and an armed group or between several such groups are called Internal Armed Conflict. The common Article 3 of four Geneva Conventions, which is a part of customary law, is applicable to internal conflicts.[5]  Moreover Second Additional Protocol (IIAP) from 1977 also deals with the protection of the ratified members (162 states) against internal conflict.[6]

3.      PRINCIPLES OF INTERNATIONAL HUMANITARIAN LAW: IN THE LIGHT OF MODERN AGE WEAPONS TECHNOLOGY

It is important to understand the various concepts of IHL and how there is a need for advancement in this field with the introduction of new weapon technology.

Principle of distinction:

According to Article 48(1) IAP, The principle of distinction prohibits all means and methods that can not make a distinction between those who do take part in hostilities, and are therefore considered combatants, and those who do not and are therefore protected. The sick and wounded, medical personnel, civilians and prisoners of war (POWs) are all called protected persons.

Combatants are the members of armed forces or groups, that if captured then they are called Prisoners of War. The armed groups form the part of combatants if;

a) They are commanded by a person responsible for his subordinates;

b) They have a fixed distinctive emblem recognizable at a distance;

c) Carrying arms openly;

d) Conducting their operations in accordance with the laws and customs of war.

So, if any person falls in any of these criteria then he/she should be presumed to be POW.

Secondly, the group of people who don’t follow such conditions and are not part of armed forces are known as civilians. According to Protection of civilians under fourth Geneva Conventions, the civilians must be protected at the time of war[7]. Indiscriminate attacks which cannot be directed at a specific military objective or attacks does not have any distinction between the two groups which is forbidden.

As per Article 42 of the Hague Regulations provides that territory is to be considered as occupied ‘when it is actually placed under the authority of the hostile army’ and that the occupation only extends to the territory ‘where such authority has been established and can be exercised’[8], while Article 2(2) of the Convention provides that it is to 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 resistance’. The International Court in the Democratic Republic of the Congo v. Uganda case noted that in order to determine whether a state whose forces are present on the territory of another state is an occupying power, one must examine whether there is sufficient evidence to demonstrate that the said authority was in fact established and exercised by the intervening state in the areas in question. The Court understood this to mean in practice in that case that Ugandan forces in the Congo were stationed there in particular areas and that they had substituted their own authority for that of the Congolese government.

The military occupation of enemy territory is termed ‘belligerent occupation’ and international law establishes a legal framework concerning the legal relations of occupier and occupied. There are two key conditions for the establishment of an occupation in this sense first, that the former government is no longer capable of publicly exercising its authority the area in question and, secondly, that the occupying power is in a position to substitute its own authority for that of the former government.[9]

Hence, according to this principle there must be a differentiation between the hostilities within a reasonable time. Moreover there needs to be a development in terms of scope of distinctive sign to recognize combatants of non regular armed forces, as per Article 44(3).[10]

Principle of proportionality:

According to Article 51(5)(b)(IAP), The principle of proportionality (Article 51(5)(b) IAP) is another basic principle. It states that even if there is a clear military target it is not possible to attack it if the harm to civilians or civilian property is excessive to the expected military advantage.

A military target is an object that contributes effectively to the military operation. It is theoretically correct to state what a military target is but in reality it is not practically viable[11]. For example a radio can be used for communication by the enemy armed group but it can’t be a military target if it is used for civilian purposes.[12] In a leading Israeli case ruling of even is a least harmful means test under the principle of proportionality.

Principle of military necessity:

According to Article 52, IAP, Military necessity is a legal concept used in international humanitarian law as part of the legal justification for attacks on legitimate military targets that may have terrible, consequences for civilians and civilian objects. It means that even though there’s a legitimate consideration to win the battle still then the principles of IHL shall not be put alongside. According to the Harvard based “Program on Humanitarian Policy and Conflict Research” (HPCR) there are five tests to verify the proper use of military necessity:[13]

·         First, you have to ask if the measure will violate an absolute prohibition in IHL? The right to take a measure under military necessity has to be stated in the law.

·         Second, are the military forces facing an actual state of necessity, a danger or a need for supply?

·         Third, is the measure taken a sufficient and effective response to the existing threat?

·         Fourth, is the measure in line with the principle of proportionality, i.e. does the military advantage outweigh the risk of damage to the civilians or civilian property?

·         Lastly, is the decision taken by the correct authority and after careful review?

The tests are included in a policy brief on the Wall and international humanitarian law, with a particular focus on the concept of military necessity.[14]

Principle of precaution:

As part of the principle of distinction, the parties to an armed conflict are obliged to respect the rule of precautions in attack. This rule supplements the general obligation to distinguish, at all times, between civilians and combatants, and between civilian and military objectives.

According to the Article.57, IAP, There must be precaution taken by the parties of conflict to spare the civilian population and civilian objects.[15] Moreover, also as per Article.58, IAP, there must be precaution taken to protect the civilian population and civilian objects, which is under their own control against the effects of military attacks.[16]

First and foremost step taken by the party involved in a military conflict must be to clear the densely populated areas by civilians from that of military target. Secondly, the targets must be verified such that there must not be causalities of that of civilians at large and if there’s any such instance then there must be warning given to the civilians.[17]

International Humanitarian law has evolved with advancement in the weapon and warfare technology. There has been lot of promulgations in the law related to use of weapons with the change in time as now there is better acceptance of the fact that, countries are efficient and capable enough to have better weapons to safeguard their territory and war purposes. In last 150 years, there has been development in the regulation of use of new means and methods of warfare. The guiding principle is that parties to an armed force are limited in their use of weapons and how they use them[18]. There are numerous conventions that restrict the use of weapons such as nuclear, chemical and biological weapons, anti-personnel mines, cluster munitions and blinding laser weapons. Article 36 of 1977 Additional Protocol 1 to the Geneva Conventions of 1949 requires each state party to ensure that the use of any new weapons, means or methods of warfare that it studies, develops,  acquires or adopts comply with the rules of international Humanitarian Law. So, there must be restriction on use of any new technology as it affects the norms and practices of International humanitarian law. There are basically few weapons that cause unnecessary suffering or to be inherently indiscriminate. There has been a paradigm shift in the scenario of law of war from the weapons to be the “requirements of humanity” to “military necessity”. The two basic principles of law of armed conflict concerning the use of weapons are that weapons should neither cause unnecessary suffering to the combatants nor be used in the manner that will indiscriminately affect both combatants and non-combatants.[19] The prohibition against use of weapons causing unnecessary suffering stems from the principle that that the right of belligerents to adopt means of combat is not unlimited As Greenwood said “humanitarian law accepts that one of the legitimate objects of warfare is to disable enemy combatants,,, but it rejects the use of weapons which cause additional suffering for no military gain.”[20] Hence there must be a balance between the two.

Secondly there are weapons that are inherently indiscriminate and their prohibition is closely related to the principle of proportionality.  In the Nuclear Weapons case, the court held that the States must never make civilians as the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets.[21] Hence there must be no direct attack by such weapons on the civilians. There are also developments in the regard of remote controlled weapons or robotic weapon system that lacks grounds to justify its usage as per the International Humanitarian law as there are queries related to the legality and moreover these weapons don’t look into protection of civilians unlike human soldiers. Thus these weapons prove to be a twin sided sword where, once it acts as a precise weapon technology but at the same time disregards the principles of International Humanitarian Law to take into account in pre and post war situation.

 

4.      FROM ‘BOMBS’ TO ‘WARBOTS’: UNDERSTANDING NEW AGE WEAPONS TECHNOLOGY

Thermo nuclear weapons or the hydrogen bombs developed after the World War II had destructive powers hundreds of times more than the atom bombs used in the war. The power of these weapons has since been increased manifold.

Only 8 years after Hiroshima, nuclear artillery shells were invented, and 3 years later these shells were small enough to be fired from a 155 millimetre howitzer. By 1970, U.S. and Soviet navies had deployed nuclear torpedoes capable of sinking the largest aircraft carriers with a single shot. Nuclear bombs that in the 1950s, weighed many tons became smaller so that they could be placed under the wings of fighter aircraft. In the 1950s, nuclear reactors were used for the first time to power a strike carrier. Within 10 years nuclear powered missile frigates and cruisers appeared. Nuclear missiles mounted on nuclear powered submarines capable of staying submerged for months were developed and deployed by the 1960s. These missiles grew in range until it was possible to place several Multiple Independent Re-entry Vehicles (MIRVs) — (warheads) — on a single missile. By 1985 the Trident II submarine carried 24 missiles each mounting 10 separate warheads of almost half a megaton each. Firing submerged, the Trident’s missiles have a range of over 8,000 miles. Land-based strategic missiles are capable of destroying cities from 10,000 miles away in a single blow.[22]

In 1980 the U.S. Army estimated that modern non-nuclear conventional war had become 400 to 700 percent more lethal and intense as it had been in World War II depending, of course, on the battle scenario. The increases in conventional killing power have been enormous, and far greater and more rapid than in any other period in man’s history.

The first qualitative revolution in modern war is the ability of the technology of target acquisition to literally destroy any target that ventures upon the battlefield[23]. Modern military forces are equipped with a wide range of electronic, laser, infrared, satellite, and optical devices that can turn the night time battlefield into day. Modern tank sights can easily locate a target in complete darkness at 3,500 yards. Even when the target cannot be seen by optical enhancing devices, its silhouette can be discerned by infrared and laser sights. Now, for the first time in history, the size of an army is far less important to its ability to achieve victory than the degree of killing technology that it can bring to the battlefield. If the 1991 Gulf War proved anything, it was the demonstration of this proposition. Modern war is a war of speed, mobility, penetration, encirclement, envelopment, and, ultimately, of force annihilation.[24] 

The development of computer technology is fast transforming the battlefield or frontal combats into combats which can be carried out from a control room far away from field of operation. Today cyber weapons are increasingly becoming the new frontier of war.

With the dawning of a new age of combat in the form of cyber-attacks, drone attacks, space weapons, pulses, lasers etc the traditional land and sea power have become irrelevant and so have the laws which govern traditional warfare i.e. International Humanitarian Laws. The nature of warfare is nearing another “hinge point,” due to the advance of technology. Just as gunpowder, cannons, airplanes, rockets and nuclear power changed the face of combat, so too will a new generation of weapons that are on the drawing boards – not just in America, but in China, India and other advanced technological nations[25]. The 21^st century battlefield has seen a drastic change where Unmanned Aerial Vehicles are operated by officers sitting in front of computer screens miles away from the battlefield[26], and they have replaced manned aircrafts; robots and robotic devices are being developed to replace foot soldiers and vehicles; computer networks are used for ‘cyber-attacks’ instead of conventional weapons; and satellites are providing better images than human spies and reconnaissance units ever did. The regulation of these weapons — once a topic for obscure academic theses — has become a topic of mainstream media attention[27].

Robotic Weapons or Warbots:

Fast pace of technology has resulted in rapid development of robotic weapons which are acquiring more and more automation. It is just a matter of time for fully autonomous robotic weapons or warbots to be deployed in war to operate without human intervention. Robotic weapons, which are unmanned, are often divided into three categories based on the amount of human involvement in their actions:

–          Human-in-the-Loop Weapons: Robots that can select targets and deliver force only with a human command;

–          Human-on-the-Loop weapons: Robots  that can select targets and deliver force under the oversight of a human operator who can override the robot’s actions; and

–          Human-out-of-the Loop Weapons: Robots those are capable of selecting targets and delivering force without any human input or interaction.

The term ‘fully autonomous weapon’ refers to both out-of-the-loop weapons and those that allow a human on the loop, but that are effectively out-of-the-loop weapons because the supervision is so limited. Fully autonomous weapons do not yet exist, but technology is moving in the direction of their development and precursors are already in use.[28] 

This kind of war fought by remote control is called ‘virtual war’[29] in which precision represents the new way of warfare.  In military jargon, virtual war is a war beyond the current standoff or conventional weapons, one which entails the use of fewer munitions than ever before, and one in which: (i) unmanned aerial vehicles (UAVs), such as the ‘Global Hawk’, are used for reconnaissance and surveillance missions, and for providing real-time information about terrain and activities;’ (ii) unmanned combat aerial vehicles (UCAVs), such as the Predator MX- I and the Reaper, can launch attacks, recover, and return to base’; (iii) precision- guided munitions (PGMs), such as Laser Guided Bombs (LGBs) used in Vietnam and in Operation Desert Storm, and the Joint Direct Attack Munition (JDAM) employed in Operation Allied Force, are the standard; and (iv) robots are used for bombing and improvised explosive device disposal.[30]

Information Warfare and Cyber Warfare:

Use of information as a weapon in a conflict is a historical fact. Control of information plays a vital role in a war and military operations. Today, most armed forces view Information Operations as a core military competency. They see information as both a weapon and a target in warfare, and they think that information and knowledge superiority can win wars.The technological development has made possible in recent decades world wide networks, IT systems, and computer databases. These enable the armed forces to create a higher level of shared situational awareness; to better synchronize command, control, and intelligence; and to translate information superiority into combat power. With ever more weapons increasingly relying on data and technical information – such as smart munitions that use Global Positioning System (GPS) guidance – the armed forces expect information to become more directly relevant in warfare of the future.[31]

Cyber warfare is a step further than the information warfare owing to advanced computer networking and communication systems and complete reliance over the same. Cyberwar exists in the military and intelligence realm and refers to conducting military operations according to information-related principles. It means disrupting or destroying information and communications systems. It also means trying to know everything about an adversary while keeping the adversary from knowing much about oneself. Cyberwar is a warlike conflict in virtual space with means of information and communication technology (ICT) and networks[32]. As other forms of warfare, cyberwar aims at influencing the will and decision making capability of the enemy’s political leadership and armed forces in the theater of Computer Network Operations (CNO).[33]

 

                                                                                                

5.      AN ASSESSMENT OF THE EFFECTS OF NEW-AGE WEAPONS

The proponents of new age weapons claim that these weapons because of their precision are less likely to cause collateral damage. But there remain questions. Technology has advantages and drawbacks. How efficiently can the new technology weapons be controlled? What if there is a glitch and machine acts erratically? Can they be absolutely reliable to not cause damage beyond the target or kill enemy combatants and spare the civilians? Evidences in Iraq and Kosovo show that the claim is not quite correct as precision targeting does cause substantial collateral damage and civilian death.

The new-age weapons have unravelled a war which can wipe out entire populations of a city or even nation and causing total annihilation within a matter of minutes. The chemical and biological weapons being developed pose grave threats to the civilian population. It is recently reported that weapons are being developed which can selectively change the climatic conditions of a region. The destruction and loss of life is increasingly becoming indefinite and indeterminable. Thus, new age weapons pose a serious threat to mankind and there is always a constant fear of a new-age war destroying the world as predicted by Einstein.

6.      UNCERTAINTY ABOUT NEW-AGE WEAPONS TECHNOLOGY: ARE CIVILIANS ACTUALLY SAFE?

Technology has already distanced soldiers from the killing they cause, increasing asymmetrical safety between belligerents. The result could be shielding of the side using warbots from legal consequences. For a series of partially coherent reasons, the ‘human element’ is seen as ‘indispensible’: for providing judgment, restraint, and ultimately responsibility of decisions. The first two of these reasons suggest that there is a risk of violating IHL when autonomous robots are employed. More to the point, to increase autonomy and remove the human element implies two risks: i. the loss of judgment and restraint, could lead to an increased number of indiscriminate attacks, and ii. Attenuating legal accountability in combat endangers the normative framework of IHL. Even if robots are extremely accurate in their targeting, there remains the policy concern that IHL will become inapplicable and unenforceable.[34]

It cannot be said truly that what is technically feasible in today’s war and it is even less clear as to what would be feasible in the future. The humanitarian effect of weapons which are already deployed like the drones, weapons which are ready to be deployed like the cyber-attacks and those which will be deployed in future like autonomous robots is uncertain. The uncertainty of such a crucial aspect makes these weapons deadly. The uncertainty about the specificities and impact of such technologies makes it difficult to know that how far such weapons comply with the International Humanitarian Laws. In cyber warfare, for instance, anonymity and interconnectedness of computer networks around the world do indeed seem to pose very serious questions about the way international humanitarian law will play out in the cyber realm[35]. On the other hand, there seems to be little doubt that cyber attacks are feasible now and can potentially have devastating effects on civilians and civilian infrastructure, for instance by causing the disruption of air control systems, or electricity or water supply systems[36]. Civilian population of the world stay in constant risk from the effects of the new age weapons. Though it is claimed that such weapons do not affect the civilian population, the actual scenario paints quite a different tale.

 

7.      LACK OF TRANSPARENCY & NON-ACCOUNTABILITY OF NEW-AGE WEAPONS

The effects of the drone attacks by the United States in Afghanistan is uncertain as to the number of civilian lives lost, damage to civilian infrastructure and injuries caused. The legality of such weapons becomes questionable with the absence of objective knowledge regarding its effect. And because of the discreet process of development of such weapons, the transparency issue only but increases. In the case of biological weapons the extent and exact nature of damage that could be caused is not known. In all new age weapons the residual and collateral damage that may result is not certain.

New technology reduces the capacity to allocate accountability and responsibility for violations. ‘Even if artificial intelligence were to be achieved and autonomous systems deployed in armed conflicts, would it not always be the case that any robot is at some point switched on by a human being? If that is the case, then that individual – and the party to the conflict – is responsible for the decision, however remote in time or space the weapon might have been deployed from the moment of the attack.’^[37] In case of cyber warfare, anonymity is one of the basic criterions and it becomes a herculean task identifying the culprits and offenders. There is practically no legal frame work to control cyber war. The Rules of Armed Conflict that applies to traditional wars is based on Geneva conventions, protocols, and practices considered as customary law. The technology has in the mean time advanced manifold and new age weapons have developed in tandem with technology[38]. The International Humanitarian Law though has evolved with the times the advancement of technology has been too fast in recent times for it to keep pace.

8.      SUGGESTIONS & CONCLUSION

New age weapon technologies have posed the dilemma as to whether they should be considered desirable or not. Even though there are possible advantages contributing to the greater protection and assisting in complex war situations that seem to be hazardous for the human soldier, it is also a fact that there must be proper care taken in the regard of protection for the civilians and proportionality principle. There must be regulation in International Humanitarian Law for asymmetrical and disproportionate use of totally automated warbots, chemical weapons, weapons of mass destruction that cause heavy loss of lives and property on the lesser equipped side. International Humanitarian Law should evolve to cope with the problems related to applicability of use of new weapon technology in present era and should change to keep pace with the rapid development in the weapons technology or must be replaced fully by a new set of protocols and guidelines which would govern the new age weapons technology and their deployment in warfare. It is the best option to put an end to wars all together and since that is a farfetched dream, the next best thing would be to regulate the development of weapons and the wars with a set of laws for the sake of the humanity.

Mankind must put an end to war before war puts an end to mankind.

                                                                                 John F. Kennedy

 

Submitted by:

Anand Swaroop Das
National Law University,Orissa