New technologies and war legislation: a progress?

[M-A Lagrange]

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 ?

[jmm99]

ban the fusil; and ban the .....

Based on past history, new technologies will generally (most but not all) be accepted based on their military utility.

I found this snip from the ICRC press release amusing:

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.

in light of this 1899 Hague Convention (definitely not applied to 20th century airpower):

Declaration (IV,1), to Prohibit, for the Term of Five Years, the Launching of Projectiles and Explosives from Balloons, and Other Methods of Similar Nature. The Hague, 29 July 1899.

The US and UK were not state parties, but the other major participants in WWI were (State Parties).

The Sanremo conferences have generated several handbooks dealing with ROEs - e.g., The Sanremo Handbook on Rules of Engagemen (2009):

The Sanremo Handbook on Rules of Engagement is intended to continue in the same vein as previous well-known Sanremo publications such as the Sanremo Manual on International Law Applicable to Armed Conflicts at Sea, published in 1995 and the Sanremo Manual on the Law of Non-International Armed Conflict, published in 2006.

These publications are far from the "Bible"; but present compromises - thus, more of common denominator for the divergent views of the "Rule of Law" and "Laws of War" and their interactions. I.e., they might form a basis for a set of ROEs to be used by a multinational force.

The major deficiency in these and other pubications on international law is a focus on "The Law" - that is, a monolith; a brooding legal omnipresence in the sky. Ain't no such thing as "The Law" in International Law - except as to any given grouip of pundits (academic or otherwise), who present "The Law" as they see it.

Regards

Mike

PS: Is the place "San Remo" or "Sanremo" ? From its Wiki, apparently both, explained as so:

The official spelling of the city is Sanremo, a phonetic contraction of San Romolo (Saint Romolo), official saint and protector of the city. In the local dialect of Ligurian, it sounds like Sanrœmu. The spelling San Remo, as two words, was introduced in 1924 by the mayor and used in official documents during Fascism. This form of the name appears still on some road signs and, more rarely, in unofficial tourist information. It has been the most widely used form of the name in English at least since the 19th century.

[jmm99]

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:

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

[M-A Lagrange]

For those valuable historical perspectives.

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.

Just to replace the Red Cross (The ICRC in fact) in its perspectives. ICRC recognises The Hague treaty but uses only the GC (1949 and after) as a discussion base in its debats. With time I have learned to pass over this quite frustrating aspect of the ICRC (As some others on their historical role during several conflicts).
So please excuse them for not being as highly educated as you.

Personnaly I found that press release interresting as it recognises the advantages of new technologies for the civilian protection enforcement. It is an unexpected out come of the Lybia campaign after more than a decade of critics of air ops and intelligent ammunitions. For the very first time since long ICRC recognises that new weapons can be a "progress" and does not call for a ban.

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?

I find this question quite important. If it applies immediatly mainly to soldiers from formal armies (US, UK, Israel, Fr...), it also will soon (or is already) apply to non state armies. Hezbolla developed an "improvised" observation drone and the Libyan rebels developed improvised combat robots (based on US model).
It is clear that if on one end the search for the lower casualties among your troops is an immediat benefit of the new technologies, the responsability of those operating such weapons has to be explore.
Similar question was raised with the A bomb and the status of the ones who would push the button. And responsabilities according to the principle of chain of command and human responsability has been preserved.

I believe that is where the debat can be interresting and valuable. Especially in the field to help those who will have to make the desision. In addition of the SOP, TOE, ROE, what are the parameters that will make a decision legally sound (even with collateral victimes, unfortunately) or abusive?

[jmm99]

Hey Marc,

What goes into a ROE is illustrated quite simply:



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:

Ashley S. Deeks, Pakistan's Sovereignty and the Killing of Osama Bin Laden.

Mary Ellen O’Connell, Unlawful Killing with Combat Drones - A Case Study of Pakistan, 2004-2009.

Robert Chesney, Who May Be Killed ? Anwar Al-Awlaki as a Case Study in the International Legal Regulation of Lethal Force.

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):

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:

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

[M-A Lagrange]

Mike,

I agree with you on what to expect from ICRC. Personally I am probably closer to them than you may are. I do tend to believe that the RoL and LoW/IHL application can/should be independent from politic.

What I expect from ICRC is more a discussion and an opinion that could be used for jurice prudence concerning the responsibilities in the decision making at operational level.

The perfect example being the German drone attack on fuel trucks in Afghanistan. (This is just mentioned as a case study, not as an opinion on what happened).
I hope this will lead to the reaffirmation of the need direct visual contact to the target and most probably a statement on the need to evaluate immediate situation and possible unexpected increase of collateral victims. A position, I think, which would/can be quite balance between IHL pundist and operation freaks.
The other big questions being the use of drones by non state actors or terrorist groups and the use of smart bombs.
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. (But may be I do expect too much from such event ).
The real grey area, I believe, will come with the responsibilities in chain of command in case of non direct visual confirmation and target military value. But that’s a common disagreement point between war necessity and international humanitarian laws.