New technologies and war legislation: a progress?
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New weapon technologies under legal scrutiny
07-09-2011 News Release 11/184
Geneva (ICRC) – New weapon technologies in modern warfare, their humanitarian impact and their regulation under international humanitarian law will be the subject of a round table in San Remo, Italy, hosted by the International Institute of International Humanitarian Law and the International Committee of the Red Cross (ICRC) from 8 to 10 September.
"The world of new technologies is neither a virtual world nor science fiction. In armed conflict, the new technologies can cause death and damage that is all too real," said Jakob Kellenberger, the president of the ICRC. "It is important to discuss the issues raised by their development, to assess their humanitarian consequences and to ensure that they are not prematurely employed under conditions where respect for the law cannot be guaranteed."
Cyber technology, remote-controlled weapon systems and robotic weapon systems are some of the new weapon technologies which will be at the core of the debates. Is it possible to ensure that attacks through cyber space are controllable and not indiscriminate? What is the status of those who operate drones thousands of miles away from the battlefield? Could robots be capable of the level of discrimination required under international humanitarian law?
New technologies can lead to better protection for civilians and civilian infrastructure, for instance by making it possible to take greater precaution or to use greater precision in attack. But they also bear risks. Ultimately, their compliance with international humanitarian law will depend mostly on the concrete use that is made of them, for which the parties to conflicts and individuals deploying them are responsible.
There is little doubt that these new technologies, like new technologies before them, are changing the landscape of war. And just as air warfare had to comply with the existing framework of international humanitarian law when it was introduced in the 20th century, so too must the new technologies of the 21st century comply with fundamental rules governing the means and methods of warfare.
The text of the keynote address by the president of the ICRC will be available on our website on 9 September.
http://www.cicr.org/eng/resources/do...2011-09-07.htm
From the San Reno Round Table.
Are new technologies really changing the landscape of war or is it just new tools ?
ICRC states it will increase civilian protection and ease the application of humanitarian laws and GC. But how far new technologies will ease law application and legislative environment enforcement in war ?
A bit more of early 20th IHL vs Reality
The 1899 "Balloon Bombing Ban" (adherence by a couple of dozen "State Parties") lapsed; but was "renewed" in 1907 by Hague Declaration (XIV) Prohibiting the Discharge of Projectiles and Explosives from Balloons (The Hague, 18 October 1907).
However, its text provided:
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The undersigned, Plenipotentiaries of the Powers invited to the Second International Peace Conference at The Hague, duly authorized to that effect by their Governments, inspired by the sentiments which found expression in the Declaration of St. Petersburg of 29 November (11 December) 1868, land being desirous of renewing the declaration of The Hague of 29 July 1899, which has now expired,
Declare:
The Contracting Powers agree to prohibit, for a period extending to the close of the Third Peace Conference, the discharge of projectiles and explosives from balloons or by other new methods of a similar nature.
The present Declaration is only binding on the Contracting Powers in case of war between two or more of them.
It shall cease to be binding from the time when, in a war between the Contracting Powers, one of the belligerents is joined by a non-Contracting Power.
Adhered by some 20 State Parties (NOT including some major participants in WWI), it was a "dead letter".
For contemporary and later analysis, see "my hero", J.R. Spaight (Irish; Trinity College, Dublin):
Aircraft in war (1914)
Bombing Vindicated (1944)
Authoring a number of intermediate publications on airpower and the RAF, he also authored War rights on land (1911).
The Red Cross press release does not know its early 20th century history - and is ignorant of the Laws of War as understood by Spaight and others.
Regards
Mike
Moving from balloons to drones
Hey Marc,
What goes into a ROE is illustrated quite simply:
http://council.smallwarsjournal.com/...1&d=1238532689
The devil, of course, is in the details - each major circle may involve hundreds of considerations - some conflicting with others.
Let's look at the "Law" circle, using as examples three 2011 articles on targeted killing by drones and direct actions:
Each of these articles presents a different take in answering the question: What is "The Law" ?
Who decides on Choice of Law ? My take: that is a political question best decided in a constitutional democracy by the branch(es) of government assigned powers over armed conflicts.
That, of course, is not the only answer on the table. Mary Ellen O’Connell, The Choice of Law Against Terrorism (2010), in reality assigns that function to the I Law community (primarily academics; herself and some others):
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On 9/11, the United States made a radical change in its choice of law against terrorism. After a century of pursuing terrorists using criminal law and police methods, the United States invoked the law of armed conflict and military means. This article has presented evidence that the change was and is not supported by international law. In November 2008, this author and colleagues David Graham and Phillipe Sands drew up a set of principles to guide the Obama administration toward reforms of post-9/11 U.S. laws and policies. Our aim was to improve U.S. compliance with the world‘s law against terrorism. The first principle was to stop relying on war as the legal and policy basis for confronting terrorists:
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The phrase "Global War on Terrorism" should no longer be used in the sense of an on-going war or armed conflict being waged against terrorism. Nor should it serve as either the legal or security policy basis for the range of counter- and anti-terrorism measures taken by the Administration in addressing the very real and present challenges faced by the United States and other nations in addressing terrorism. [115]
115. Washburn Consensus on Post-9/11 Principles are reproduced in, Mary Ellen O‘Connell, The Way Forward: Post 9/11 Principles, JURIST (Nov. 25, 2008), available at
http://jurist.law.pitt.edu/forumy/20...principles.php.
Peacetime criminal law, not the law of armed conflict is the right choice against sporadic acts of terrorist violence. The example of the United States adhering closely to its legal obligations in this vital area can only help create a world of greater respect for the rule of law.
As expressed in so many other posts, I disagree with Ms. O'Connell. The "Laws of War" and "Rule of Law" both have a role, but cannot be conflated. Some situations are handled better by LoW and others by RoL. The choice of which course to follow in a given situation is a political question, especially in a constitutional democracy.
That being said, I expect that the Red Cross will in the end adopt something closer to Ms O'Connell's position. That result is likely therefore to be contrary to the policies followed by two Executives and several Congresses since 9 Sep 2001 (and, as affirmed by the US appellate courts to date - AUMF, etc.).
Regards
Mike
Why do you hope for this ?
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From MAL
From the last one, I hope that we can expect a judicial decision (or draft) of what generation of smart bomb can be declared as “legal” and what generation is not acute enough to be labeled in a different category than normal non-smart bombs.
What expertise does a court have in determining the acuity of smart (or dumb) bombs ? Even a court consisting of JMM99 military dilettantes (dabblers) would be sadly deficient in that area of expertise. :D
The Kunduz tanker incident and Col. Klein involved audio from a B1 bomber, audio and visuals from a pair of F-15s, audio from an Afghan informant - and perhaps drone visuals and/or ISAF boots on the ground visuals. The actual strike was by 500# bombs from one or both of the F-15s. All this from the Wiki, Kunduz airstrike - which ain't quite legal evidence. ;)
Is there a (more or less) complete report of the incident in English that could be linked here ? I agree that it could be a case study.
Violent non-state actors (VNSAs) will use whatever weapons they can get their hands on (hmm .. surface to air missiles ?) - Battle of Algiers:
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Journalist: M. Ben M'Hidi, don't you think it's a bit cowardly to use women's baskets and handbags to carry explosive devices that kill so many innocent people?
Ben M'Hidi: And doesn't it seem to you even more cowardly to drop napalm bombs on defenseless villages, so that there are a thousand times more innocent victims? Of course, if we had your airplanes it would be a lot easier for us. Give us your bombers, and you can have our baskets.
Since when do VNSAs follow the "Laws of Wars" - other than those drafted to favor them ?
Regards
Mike
If you want peace: prepare for war
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What expertise does a court have in determining the acuity of smart (or dumb) bombs ? Even a court consisting of JMM99 military dilettantes (dabblers) would be sadly deficient in that area of expertise.
Basically, I do not know much more than you on smart and dumb bombs. But I know that ICRC legal advisers and organizations working on IHL have a sound weaponry knowledge and will be able to identify which ammunition (up to the serial nb) have been used when, where. (I have met several representatives of such organizations, even US senators or deputy representatives.) They probably would be able to identify which generations of bombs have been used in Libya, Irak, Astan and Pakistan and be able to trace the accuracy evolution.
My point was that I do expect them to be able to come with a statement similar as the one on the use of phosphorus. It is not banned but regulated. The best (For non combatants) being a regulation based on environments in which such bombs are used: in civilian environment (cities, villages…) you can “legally” use A,B,C; in non civilian environment (battle field, open war zone, including cities if considered as a war zone…) you can legally use Z,W,X.
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Is there a (more or less) complete report of the incident in English that could be linked here ? I agree that it could be a case study.
Unfortunately, on the Kunduz airstick I have no better information at the moment. But I do think this is the perfect case study for anyone in the field (and is probably already being used in military academies, or they should).
But will keep looking.
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Since when do VNSAs follow the "Laws of Wars" - other than those drafted to favor them ?
Since when war is a game in which the rules are in favor of the weakest? ;)
Out of jokes, I think that legislating drones use by VNSA is a necessecity as this will happen. Tamul Tigers had an airforce, Hezbollah has a missile force… Basically, rules that apply to state actors do apply to VNSA. Even if they do not want to!!! And that’s why there is the ICC in the Hague: cause what ever you do, if you don’t play by the rules someone will come to get you.:mad::rolleyes::D
the problematic of indirect information collection and environment analyses
I could not find the Kunduz NATO report but I found interresting articles from credible German newpapers (Der Spiegel and Das Bilt) which disclose part of that report.
From the Spiegel:
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The pilots, who felt that the Germans' instructions were odd, remained skeptical and suggested obtaining the approval of the higher-ranked US Combined Air Operations Center in Qatar on the Persian Gulf, so that both sides would be in the clear.
Red Baron's response was unambiguous. He told the pilots that he had the "approval" of Klein, who happened to be sitting next to him, for the strike to proceed, but that the bombs should only hit the sandbar and not the area along the riverbank.
There are strict rules of engagement within NATO, and the pilots were under the impression that a number of these rules were about to be violated. Once again, they repeated their request to be allowed to fly at low altitude over the river as a deterrent. The response from the German base was clear: "Negative. ... I want you to strike directly."
At 1:46 a.m., the American pilots asked the Germans one more time whether the people on the ground truly constituted an "imminent threat." Under the NATO rules of engagement, only an imminent threat justified an attack. Absent such a threat, the pilots would have been required to leave the area. But Klein was apparently intent on having the airstrike go forward, and his forward air controller, acting on Klein's orders, replied: "Yes, those pax (people) are an imminent threat." He said that the insurgents were trying to tap the gasoline from the trucks, and when they had finished, they would "regroup and we have intelligence information about current operations" and they would probably be "attacking Camp Kunduz."
It was apparently a white lie. The investigation report soberly concludes that there was no "specific information" or "hard intelligence" to indicate the Taliban "were either preparing or had a plan for attacking" the German forces that night. Based on everything the Bundeswehr and the Americans now know, the Taliban originally planned to take the trucks to a nearby village and, when the tankers became stuck on the sandbar, they decided to strip the vehicles instead. The report concludes that it was an "act of opportunity."
http://www.spiegel.de/international/...2468-2,00.html
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German KSK Special Forces involved in deadly bombing
It has now come to light that the elite Kommando Spezialkräfte (KSK) unit played a role in the attack on September 4 which killed 142 people including civilians.
BILD can reveal how the KSK intervened in the strike on two fuel tanker trucks in an overnight covert operation.
At least five officers and NCOs advised Colonel Georg Klein, commander of the German military forces in the Kunduz region.
All five belonged to a secret unit codenamed Task Force 47, or TF47, which had Colonel Klein as its presumptive head.
TF47 comprises approximately half of the KSK soldiers, whose goal is to hunt for Taliban leaders and terrorists. The unit has its own command centre with advanced equipment at the German camp in Kunduz.
The first tip arrived from an Afghan informant on the evening of September 3. The Taliban had reportedly hijacked two gasoline tanker trucks which had then become stuck on a sandbank six kilometres from the German camp.
TF 47 soldiers requested help from an American B1B bomber. In the 90 minutes it took the plane to locate the tanker trucks, Colonel Klein was called to the TF47 command post.
During the night Colonel Klein took over as acting commander of TF47. An internal review by the Bundeswehr said that according to NATO rules, Klein would be allowed to order an attack only in this role.
A TF47 officer spoke approximately seven times by phone throughout the night with the Afghan informant who identified four of the Taliban leaders who were with the tankers, as well as other details.
http://www.bild.de/news/bild-english...2584.bild.html
What is interesting in those articles, it high light the difficulty of having an acute information with indirect contact reports.
According to the first article, pilots state that they were first not convinced by the necessity of a kinetic action. Then they received confirmation of the presence of legitimate target on the ground.
According to the second article, that confirmation was given by a direct contact from a ground team (the TF47). Decision making officer had at least 7 contacts with TF47.
The question then is did he have other sources of information and did he have all information (evaluation of ground environment) at the time he took the decision. Quantitatively, 7 contacts could make it but qualitatively it remains a single source.
For his discharge, first information was given by an afghan informant. Due to the complexity of the environment, a confirmation from reliable source was certainly needed. And that is what TF47 did provide.
Now remaining question is how accurate was the assessment of civilian environment?
In addition to the high value of fuel tankers, if high value targets were present, this incident exposes the problematic of war necessity versus IHL.
On a legal aspect, it can at least be assumed that pilots are non responsible. They expressed in their testimony the fact they had doubts and they asked several times for confirmation. They were given information they believed credible and accurate which lifted their doubts. In a physical and technical impossibility to have direct first hand confirmation, they acted according to given orders.
If what is reported in the article happens to be true, there is now at least 2 level of responsibilities on the ground to be evaluated:
- The TF47 responsibilities: what was their real statement and assessment of the situation.
- Col K responsibilities in evaluating the information transmitted by TF47 and his requests of civil environment and collateral damages assessment.
You missed my point re: my six points
The reason the points are all questions is that each of them has at least two sides (to what should be a continuing debate in the future). The future is far from certain, but it should be interesting. As the song said: "...the times, they are a-changing."
If that change leads to multiple power centers (e.g., China, Russia, India, EU-NATO, Brazil, USA), with no global hegemony (as well as a host of "hollow" or non-existent area governments and VNSAs), an effective "international law" (except in limited areas where there might be general agreement) is even less likely than at present.
Since WWII, one action has been the US's shaping of some international laws; but an equal and opposite reaction has been other's shaping of other international laws (e.g., the 1977 Geneva APs) to disfavor the US. Today, a number of the 1977 "have nots" have become "haves". A fair comment (private) by a Red Cross person is that 1948 Geneva and its 1977 Protocols would likely not be adopted in the early 21st century.
Unfortunately, I've no crystal ball; but I would expect "international humanitarian law" to become more and more regional - depending on the law adopted by each major regional power. Or, if some group (say, UN) demands a true international law, it will be ignored when it conflicts with the major regional power's construct (e.g., China's "Unrestricted Warfare", if that is or becomes China's doctrine).
--------------------------
Not long before the Kunduz tanker incident, the Germans changed their ROEs (post, Change in German ROE before Sep 2009 incident); as to which COL Klein, also before the incident, said:
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Part 2: 'We Will Strike Back with all Necessary Force'
However soldiers in Kunduz told a different tale. "We will strike back with all necessary force," said Colonel Georg Klein, 48, commander of the field camp.
Combat has become routine for German soldiers stationed in Kunduz. After returning to the camp, the men mentioned their "TICs," or "troops in contact" (military jargon for enemy contact) almost casually. For them, requesting American "Reaper" drones to fire at booby traps is just common practice now.
Anyway, clearly not all the soldiers are unnerved by the finer legal details of combat. On May 7, in view of a German convoy, a number of Afghan fighters jumped off their motorcycles and went into combat position. But before they could fire their rockets and assault rifles, the Bundeswehr troops opened fire on them, killing at least two.
"What happened afterwards gave the troops a sense of security," said Klein. Instead of launching an investigation, as would have been the case in the past, the public prosecutor's office in Potsdam, near Berlin, concluded that the soldiers had acted in self-defense. Klein and his men see this as setting a precedent. "Soldiers need courage in the field, what they certainly don't need is fear of a public prosecutor," noted one officer.
Despite what the ICRC may have concluded in its report, the Federal Prosecutor cleared COL Klein (post by Igel):
The Decision of the Federal Prosecutor (in german).
Deutsche Welle: German prosecutors drop case against Kunduz airstrike colonel:
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German state prosecutors on Monday said they had closed the case against Colonel Klein, the officer who ordered the controversial airstrike near Kunduz in September 2009.
According to the prosecution, neither Klein nor any of the other officers present before the attack were in a position to know that there were still civilians at the site at the time of the airstrikes.
"On the contrary, after a thorough assessment of the situation, they could assume that there were only insurgents present," the Karlsruhe-based prosecution said in a statement on Monday.
Colonel Klein had, therefore, not acted in violation of either the international or German criminal code, the prosecution said. Ordering the airstrike on two fuel trucks that had been hijacked by Taliban insurgents did not qualify as an illegal method of warfare.
It would be interesting to see what the ICRC report says.
Regards
Mike
No common framework for discussion
As exemplified by what you term "universality" and "impunity" - as well as by the COL Klein case itself, we have not established a common framework for this discussion.
The huge gap between the US process and the German process (starting with our "Basic Law" vs their's - but going well beyond that) limits the precedential value of decisions made in one system to virtually a null when asserted in the other system. That legal gulf generally exists between the US and other EU members as well. I see no evidence that gap is getting smaller.
In trying to view the German process in US terms, I simply cannot visualize the Prosecuting Attorney for Marquette County conducting an investigation - and possibly charging with war crimes - the commanding officer of our local combat engineer Bn (HQ in that county) for an airstrike he called in Astan.
Saying that does not mean that I'm terminating this discussion. I'm more than willing to listen; but I'm not going to continuously interject comments re: how the US is different and the reasons why. As to what is or is not correct in German law is outside of my expertise. What I want to make clear is that my silence on any given point should not be considered to be implicit agreement.
The ECCHR (a private group allied with the US-based Center for Constitutional Rights - Michael Ratner, past Pres. of the National Lawyers Guild, is Chairman of ECCHR and President of CCR), in its report you linked, cites C. von der Groeben - Criminal Responsibility of German Soldiers in Afghanistan: The Case of Colonel Klein, German Law Journal 2010, p. 469 - 492. This article is not favorable to COL Klein's case, but is well-written (it might be totally offbase in German law). I did manage to stumble upon it when I looked at the Klein case last year.
Regards
Mike
PS: I'd be curious if the US pilots were in fact operating under exactly the same ROEs as the Germans; particularly as to interpretation and commander's guidance (of what should have been the same "universal" ISAF ROEs). The "pilots' ROEs" seem to have been a bit more restrictive than COL Klein's (my impression, esp. from the German Law Journal article).
1 Attachment(s)
Publicity is the weapon needed
I've read this thread a few times and readily admit this is a field where my knowledge is lacking. Caveat aside now.
There were two 'new' weapons in recent memory that attracted political and eventually public attention: land mines and cluster bombs.
The end result was for land mines the Ottawa Treaty in 1997, for details:http://en.wikipedia.org/wiki/Ottawa_Treaty and for cluster bombs a Convention on Cluster Munitions, in 2008, for details:http://en.wikipedia.org/wiki/Convent...ster_Munitions
For parochial reasons I always associate Diana, Princess of Wales, with the land line campaign. Without such interventions by a public figure I doubt there will be any political consensus for international action; interventions that follow the use of 'new' weapons and public exposure.
The use of robotic in war and the problematic of just war
ROBOT WARS: LEGAL AND ETHICAL DILEMMAS OF USING UNMANNED ROBOTIC SYSTEMS IN 21ST CENTURY WARFARE AND BEYOND
http://www.dtic.mil/cgi-bin/GetTRDoc...f&AD=ADA502401
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Much of this innovative autonomous mission planning described above relies heavily on the required speed and memory capacity in which a system’s computer can process the real time data that is occurring throughout a robot’s environment.
P62
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Higher levels of unmanned system autonomy will allow an unmanned combat aerial system to locate and launch weapons at specific targets that are selected in advance.
P64
It opens an important field of questions as in such view the interaction with human decision is reduced to minimal. The diagram on page 17 clearly shows that nowadays primary legal responsibility in the use of Drones is still based on human decision. As the previous posts have shown, the legality of an order to use force, especially the problematic of proportionality, is still extremely difficult to establish and can be establish on at posteriori.
(See the excellent article from German Law Journal. Thanks to Mike).
And
How Just Could a Robot War Be?
http://www.peterasaro.org/writing/as...obot%20war.pdf
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The relevance of the civilian-combatant distinction to robotic soldiers is that if
they are to be autonomous in choosing their targets, they will have to be able to reliably
distinguish enemy combatants from civilians. It seems that this capability will remain
the most difficult theoretical and practical problem facing the development of such
robots. While there are technologies for picking out humans based on computer vision,
motion and heat patterns, it is extremely difficult to identify particular people, or even
types of people, much less to categorize them reliably into groups such as “friend” or
“foe,” the boundaries of which are often poorly defined and heavily value-laden.
This question is interesting as the first reference establish a course of technology development ending up with the use of “smart weapons” which have the capacity to engage opportunity targets and/or predefined targets without human interaction but only based on computer programming.
This opens the question of the chain of legal responsibilities in such case: if there are no more human interaction to make the decision of using force: who is legally responsible and how to make sure that IHL is respected.
This also echoes the question on proportionality opened in the German Law Journal.
let's use the US law and legal environment
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As exemplified by what you term "universality" and "impunity" - as well as by the COL Klein case itself, we have not established a common framework for this discussion.
Impunity as by http://definitions.uslegal.com/i/impunity/
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Impunity refers to the exemption from punishment or loss attaching to an act.
The U.S. has proposed bilateral agreements seeking to ensure the non-surrender of U.S .nationals and contractors to the International Criminal Court. These agreements are alternately referred to as so-called "Article 98" agreements, bilateral immunity agreements, impunity agreements or bilateral non-surrender agreements.
These agreements sought by the U.S. provide that neither party to the agreement would transfer the other’s current or former government officials, military and other personnel (regardless of whether or not they are nationals of the state concerned) or nationals to the jurisdiction of the ICC. They have been proposed in various forms, some seeking bilateral promises of impunity and others seeking unilateral impunity.
The use I made for impunity in my previous post is the one as per its “common” legal understanding: Exemption or freedom from punishment, harm, or loss.
By impunity, I was talking about a behaviour of an individual lead by the sense he has the right to use force because he feels almighty due to his position or because he missinterprete or abuse the freedom of using force he has been given.
The problematic of non surrender of US citizens to the ICC was not really in my mind as it does not mean that US citizen or contractors will be free from prosecution and punishment or loss but just not being surrendered to the ICC. They still will have to face US law.
Finaly a very complete article from ICRC on “the right to live” during armed conflicts:
http://www.icrc.org/eng/assets/files...swald-beck.pdf
Marc, you have established "no universality"
in current international humanitarian law and in current international human rights law by your own links to the ICC and ICRC (and their positions) vice the US and its position. See United States and the International Criminal Court - Article 98 Agreements - which is not the best researched or written article for reasons stated in Talk:United States and the International Criminal Court. That being said, some states have accepted the US position (definitely "non-universal" with respect to the ICC and ICRC), and other states have rejected it.
As you state:
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By impunity, I was talking about a behaviour of an individual lead by the sense he has the right to use force because he feels almighty due to his position or because he missinterprete or abuse the freedom of using force he has been given.
The problematic of non surrender of US citizens to the ICC was not really in my mind as it does not mean that US citizen or contractors will be free from prosecution and punishment or loss but just not being surrendered to the ICC. They still will have to face US law.
A US Army COL (in a "COL Klein" situation) would face an Army Regulation (AR) 15-6 investigation; possibly leading to an Article 32 investigation and eventual UCMJ court-martial. All of that is "non-universal".
Now, Louise Doswald-Beck (not a new link to me), and our Notre Dame's Mary Ellen O'Connell, are proponents of "universality" in both IHL and IHRL. Both research and write well. It is not that this side of the discussion is stupid, or that the other side of the discussion is stupid. Everyone who seriously reads and writes about these topics knows the legal sources and arguments of the other side.
The real differences arise from policy choices - basic premises. Princess Diana was certainly not an I Law scholar, but she certainly had tremendous clout on policy (a different take than mine, I have to add).
As you may or may not be aware, the Obama administration is having an internal debate (largely between State and Defense via their lawyers) on the present topic - not a major media event, but reported in the following links:
NYT - At White House, Weighing Limits of Terror Fight (by Charlie Savage, 15 Sep 2011):
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...
The Defense Department’s general counsel, Jeh C. Johnson, has argued that the United States could significantly widen its targeting, officials said. His view, they explained, is that if a group has aligned itself with Al Qaeda against Americans, the United States can take aim at any of its combatants, especially in a country that is unable or unwilling to suppress them.
The State Department’s top lawyer, Harold H. Koh, has agreed that the armed conflict with Al Qaeda is not limited to the battlefield theater of Afghanistan and adjoining parts of Pakistan. But, officials say, he has also contended that international law imposes additional constraints on the use of force elsewhere. To kill people elsewhere, he has said, the United States must be able to justify the act as necessary for its self-defense — meaning it should focus only on individuals plotting to attack the United States. ...
Lawfare - Thoughts on the Latest Round of Johnson v. Koh (by Jack Goldsmith, 16 Sep 2011).
Lawfare - One More Thought on Charlie Savage’s Story (by Benjamin Wittes, 17 Sep 2011).
Lawfare - Gabor Rona’s Response to My Post on Johnson v. Koh, with a Note on Ideological Opposition to Working with Congress (by Jack Goldsmith, 18 Sep 2011).
Gabor Rona is the International Legal Director of Human Rights First (formerly on the ICRC staff) - his piece on Was killing Osama bin Laden legal? is fairly typical of a "universalist" viewpoint (e.g., in his response to a left-side critique, he found possible justification for the killing in opinions by "the ICTY, ICTR, Inter-American Court and the ICRC").
If we strip all of this "high powered legalese" down to basics, I believe that two principles are key factors:
1. The essence of legal rules rests in human experience, not logic or divination.
2. Legal rules (like military force) are instruments of policy.
These principles take us back to the three-ring diagram whose intersection leads to ROEs.
Regards
Mike
From the ICRC round table statement:
Link: (Otherwise there would be too many posts)
First the problematic of removing soldiers from the battle field:
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new technologies remove soldiers further and further away from the battlefield was a matter of recurring discussion.
More thinking is required about the consequences of these remote means and methods of warfare. Firstly, what is the consequence of their use for the definition, the extent of the battlefield? Some have argued that if drones can be flown or cyber attacks launched from anywhere in the world, then anywhere in the world becomes a battlefield. This would in effect be an endorsement of the concept of a “global battlefield”, with the consequence that the use of force rules allowing for incidental civilian loss and damage under the IHL principle of proportionality extend far beyond the scope of what has until now been accepted. This is a notion that the ICRC does not follow.
Just like high altitude bombing might be safer for soldiers but also in certain circumstances indiscriminate and unlawful, so new technologies, however protective for the troops, will always have to be tested for their compatibility with humanitarian law and in particular their possible indiscriminate or disproportionate effects. This, however, requires that we get a better understanding about the effects of such technologies, in particular their precision and their incidental effects - not only in abstract technological terms but in the way they are concretely being used.
Secondly the problematic of responsibility:
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responsibility and accountability for the deployment of new technologies. Whether new technologies will reduce our capacity to allocate responsibility and accountability for violations remains to be seen. As a starting point, it is worth recalling that international humanitarian law parties to conflicts (states and organised armed groups) and international criminal law binds individuals.
. It is a topic that reminds me of Goethe's poem Der Zauberlehrling ('the sorcerer apprentice'), who unleashed a broom with destructive artificial intelligence and UAV capacity. Both the apprentice and the magician himself certainly bore their share of responsibility and the magician ultimately had to put his house in order. In cyber space on the other hand, allocation of responsibility does appear to present a legal challenge if anonymity is the rule rather than the exception.
Finally on technology it self:
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technology, in itself, is neither good nor bad. It can be a source of good and progress or result in terrible consequences at worst. This is true most of the time. Transposed to technologies that are weaponised, this means that most weapons are not unlawful as such; whether their use in conflict is lawful or not depends on the circumstances and the way in which they are used.
This being said, some weapons are never lawful and have been banned – blinding laser weapons or landmines, for instance.
Much, much more to think from this statement but an excellent resume of all the questions we raised here at our limited level.
M-A
PS: Mike, I believe that guy is serious on the subject.
A Future for Drones: Automated Killing
Quote:
One afternoon last fall at Fort Benning, Ga., two model-size planes took off, climbed to 800 and 1,000 feet, and began criss-crossing the military base in search of an orange, green and blue tarp.
The successful exercise in autonomous robotics could presage the future of the American way of war: a day when drones hunt, identify and kill the enemy based on calculations made by software, not decisions made by humans. (image: Georgia Tech Research Institute. Alberto Cuadra and Peter Finn/The Washington Post) The automated, unpiloted planes worked on their own, with no human guidance, no hand on any control.
After 20 minutes, one of the aircraft, carrying a computer that processed images from an onboard camera, zeroed in on the tarp and contacted the second plane, which flew nearby and used its own sensors to examine the colorful object. Then one of the aircraft signaled to an unmanned car on the ground so it could take a final, close-up look.
Target confirmed.
This successful exercise in autonomous robotics could presage the future of the American way of war: a day when drones hunt, identify and kill the enemy based on calculations made by software, not decisions made by humans. Imagine aerial “Terminators,” minus beefcake and time travel.
In Berlin last year, a group of robotic engineers, philosophers and human rights activists formed the International Committee for Robot Arms Control (ICRAC) and said such technologies might tempt policymakers to think war can be less bloody.
Some experts also worry that hostile states or terrorist organizations could hack robotic systems and redirect them. Malfunctions also are a problem: In South Africa in 2007, a semiautonomous cannon fatally shot nine friendly soldiers.
The ICRAC would like to see an international treaty, such as the one banning antipersonnel mines, that would outlaw some autonomous lethal machines. Such an agreement could still allow automated antimissile systems.
“The question is whether systems are capable of discrimination,” said Peter Asaro, a founder of the ICRAC and a professor at the New School in New York who teaches a course on digital war. “The good technology is far off, but technology that doesn’t work well is already out there. The worry is that these systems are going to be pushed out too soon, and they make a lot of mistakes, and those mistakes are going to be atrocities.”
Published on Tuesday, September 20, 2011 by The Washington Post
1 Attachment(s)
Problem definitely solved ...
so long as the enemies are "orange, green and blue tarps". :D
"Artificial intelligence" will have to improve beyond "tarps" to identify human enemies (and distinguish them into combatants, non-combatants and civilians), especially where irregular forces are concerned.
I was struck by a comment in W. Hays Parks, Special Forces’ Wear of Non-Standard Uniforms (2003), p.6 pdf:
Quote:
Special Forces personnel who had served in Afghanistan with whom I spoke stated that al Qaeda and the Taliban had no difficulty in distinguishing Northern Alliance or Southern Alliance forces from the civilian population.[8]
[8] Because neither Taliban/al Qaeda nor Northern or Southern Alliance forces wore a uniform, visual friend or foe identification at a distance was a challenge. Third Battalion, Fifth Special Forces Group, The Liberation of Mazar-e Sharif: 5th SF Group UW in Afghanistan, 15 Special Warfare 34, 36 (June 2002). However, this differs from dressing as civilians for the purpose of using the civilian population or civilian status as a means of avoiding detection of combatant status. From the standpoint of possible violation of the law of war, the issue is one of intent. As indicated in the main text, use of non-standard uniform (Massoud pakol and/or scarf) by some Special Forces personnel was to appear as members of the Northern Alliance rather than be conspicuous as US soldiers and, as indicated in the preceding footnote, high-value targets.
This comment has stuck in my head; and is one factor in my suggesting that "Western rules" may well be immaterial or counterproductive in the context of a "non-Western" environment.
A discussion of "uniform rules" (yes, a bit of a punny) is found in this thread, Is it time for psuedo operations in A-Stan?..., with discussion of articles by Parks and others starting at post #13. That post mentions what I believe is still the best US work on irregular combatants, the 1959 JAG Treatise, A TREATISE ON THE JURIDICAL BASIS OF THE DISTINCTION BETWEEN LAWFUL COMBATANT AND UNPRIVILEGED BELLIGERENT (JAG School 1959).
Here are some words of wisdom from its introduction:
Quote:
A noncombatant [3] who fights can be punished with death. [4]
3. A noncombatant is a person whom both sides on the basis of experience can reasonably expect will not actually engage in overt acts of war. The word can only be defined to the satisfaction of both sides when nations of the same cultural heritage are at war. Then, noncombatant is defined by traditional examples which have meaning to both sides. In most western civilizations all persons not in the fighting forces and some, such as physicians are traditionally thought of as noncombatants. This is the sense in which the word is used here.
4. FM 27-10, The Law of Land Warfare, Jul. 1956, paras. 80, 81, 82.
Again, we are back to the basic factor that "PID" differs between military cultures.
Do I think we should rush out and develop ICRC-type rules for future AI drones and robots ?
No, I think the general principles are sufficient - define the enemy; distinguish between combatants, non-combatants and civilians; allow adequate discretion based on military necessity; and apply a balanced proportionality test to targeting. The tests should be the same whether a human or robot targeter is involved.
We don't need as an addition to the "Laws of War" another ICRC-type "rule" - such as the ICRC 2009 "guidance" on Direct Participation in Hostilities (91 pages on the ICRC's concept of the "transitory guerrilla").
The 1863 Lieber Code (GO 100) is 25 pages in large type pdf (attached). That size effort could be a real "handbook"; and is more of what I'm suggesting for IHL. Someday, someone should add up the pages of ICRC rules and commentaries - surely into the tens of 1000s.
Regards
Mike
The artificially intelligent weapon of tomorrow…
It’s today!
Flying Robots Called 'Nano Quadrotor' Drones Swarm Lab
On Wednesday, robotics researchers at University of Pennsylvania released a video of what they call "nano quadrotors" - tiny flying robots that engage in complex social movements like swarming and pattern formation.
The video shows what look like mini helicopters flying with remarkable agility and precision. They can do flips, avoid obstacles, and shift direction effortlessly, all on command. Toss one up in the air, and it finds its balance and and flies back to the hand that launched it. Best of all, when in the company of other drones, they gather to fly in a figure-8 formation.
http://www.huffingtonpost.com/2012/0...n_1249442.html
We were all convinced it would remain Science Fiction for years…
The rethorical question of an artificially intelligent machine engaing mankind is becoming the trivial next legal frontiere of today. I can see a brand new world of legal, ethic and military questions opening in front of my eye. :(:D:o
Marc, Not everyone was nearsighted ...
A forthcoming article by Wilf in the Infinity Journal is tentatively entitled: "Drivel: 'Nano Quadrotor' Drones Swarming Tactics are not a New Generation in Warfare; Having Been Foreseen by Carl von Clausewitz."
Cheers
Mike
PS: If those reading this (do we have plural readers ?) happen to be mucking about Infinity Journal, they might take a look at Targeted Killings Work, which looks at them from an Israeli viewpoint (which seem to have "rigour" and "vigour", as opposed to the US strikes having "rigor" and "vigor").
By the same authors, "Targeted Killings: A Modern Strategy of the State", A.E. Stahl and William F. Owen, Michigan War Studies Review, July 2011.
But, as the Good Book says: "Name something good that comes out of Ann Arbor."
