Volume 2 Chapter Abstracts
PART ONE: Compliance and Accountability
Chapter 1. Regulating New Weapons Technology
Rebecca Crootof
When confronted with a new weapons technology, international law scholars, military lawyers, and civil society activists regularly ask two questions: Are new regulations needed? And are they needed now? This chapter reviews the main categories of technology-fostered legal disruption; tackles the question of whether a given technology will require new law; and weighs the respective benefits of precautionary bans, a wait-and-see approach, and proactive regulation.
Chapter 2. Assessing LOAC Compliance and Discourse as New Technologies Emerge: From Effects Driven Analysis to “What Effects?”
Laurie R. Blank
This chapter explores the consequences for effective discourse about LOAC compliance of new technologies that intentionally or effectively mask the effects of an attack, the location or identify of the attackers, or even the very existence of an attack during armed conflict.
The emergence of new weapons technologies that hinder or eliminate our ability to see the effects of attacks, to make the necessary connections between cause and effect, or to even identify the existence of an attack, may well erode the current trend towards the use of effects-driven, outcome-based analysis—which, although incorrect as a matter of law, nonetheless has captured the attention of media, advocacy groups and others. Examining how legal compliance can or would be assessed in such situations of new technologies is therefore useful to help enhance both implementation and analysis of the law.
Chapter 3. Leveraging Emerging Technology for LOAC Compliance
Eric Talbot Jensen & Alan Hickey
Many of the current issues with LOAC compliance are rooted in the limitation that parties to an armed conflict are only required to do what is “feasible” to protect civilians and civilian objects during hostilities. This would, of course, apply to the employment of emerging technologies. However, an understanding of feasibility that is enlightened by the use of emerging technologies will dramatically increase the effectiveness of steps parties to an armed conflict can take to protect the civilian population. Further, the effectiveness and ease of application of these emerging technologies should be reflected in what the international community accepts as feasible actions by the parties to an armed conflict.
Chapter 4. Lethal Autonomous Weapons Systems: The Overlooked Importance of Administrative Accountability
Laura A. Dickinson
The rise of lethal autonomous weapons systems creates numerous problems for legal regimes meant to ensure public accountability for unlawful uses of force. In particular, international humanitarian law has long relied on enforcement through individual criminal responsibility, which is complicated by autonomous weapons that fragment responsibility for decisions to deploy violence. Accordingly, there may often be no human being with the requisite level of intent to trigger individual responsibility under existing doctrine. In response, perhaps international criminal law could be reformed to account for such issues. Or, in the alternative, greater emphasis on other forms of accountability, such as tort liability and state responsibility might be useful supplements. Another form of accountability that often gets overlooked or dismissed as inconsequential is one that could be termed “administrative accountability.” This chapter provides a close look at this type of accountability and its potential.
PART TWO: Precautions
Chapter 5. Law-of-War Precautions: A Cautionary Note
Sean Watts
While the humanitarian benefits of precautions undertaken to protect civilians during attacks are readily apparent, the operational and legal costs of precautions in the attack are less acknowledged. This chapter traces the nearly simultaneous growth of modern military information technology and law-of-war precautions. It showcases an array of benefits and costs of advances in military information technology and highlights under appreciated but persistent obstacles to situational awareness and decision making in military operations. It then traces the development by States, and the expansion and refinement by private commentators, of an international legal obligation to take humanitarian precautions in attacks. Finally, it identifies operational costs associated with precautions as free-standing international legal obligations. This chapter advises, in light of enforcement competencies and informational realities, that States reexamine precautions and temper public expectations concerning States’ willingness and ability to undertake humanitarian precautions as they consider future development of the international law of war.
Chapter 6. The Other Side of Autonomous Weapons: Using Artificial Intelligence to Enhance IHL Compliance
Peter Margulies
The role of autonomy and artificial intelligence (AI) in armed conflict has sparked heated debate. The resulting controversy has obscured the benefits of autonomy and AI for compliance with international humanitarian law (IHL). Compliance with IHL often hinges on situational awareness: information about a possible target’s behavior, nearby protected persons and objects, and conditions that might compromise the planner’s own perception or judgment. This chapter argues that AI can assist in developing situational awareness technology (SAT) that will make target selection and collateral damage estimation more accurate, thereby reducing harm to civilians. SAT complements familiar precautionary measures such as taking additional time and consulting with more senior officers. These familiar precautions are subject to three limiting factors: contingency, imperfect information, and confirmation bias. This chapter breaks down SAT into three roles. Gatekeeper SAT ensures that operators have the information they need. Cancellation SAT can respond to contingent events, such as the unexpected presence of civilians. Behavioral SAT, the most advanced system, can identify flaws in the targeting process and remedy confirmation bias. In each of these contexts, SAT can help fulfill IHL’s mandate of “constant care” in the avoidance of harm to civilian persons and objects.
Chapter 7. High Tech Civilians, Participation in Hostilities, and Criminal Liability: Reconciling U.S. Perspectives
Lieutenant Colonel Matthew T. King
The challenge presented by civilians on, near, and affecting the battlefield is an enduring issue in the law of armed conflict (LOAC). At its core, the LOAC seeks to protect civilians from the dangers of hostilities. The challenge, then, involves adhering to this general respect and protection standard, while balancing the need to send forces (which may include civilian members) to prosecute armed conflicts (which may involve enemy civilian participants). As advancements in technology and a growing dependence on civilian expertise in armed conflict begin to blur the distinction between civilian activity and direct participation in hostilities, how will military forces ensure civilians are properly protected on the battlefield? At what point does civilian involvement in military operations become direct participation in the conflict?
PART THREE: Distinction
Chapter 8. Emerging Technologies and the Principle of Distinction: A Further Blurring of the Lines between Combatants and Civilians?
Michael W. Meier
This chapter assesses the need to reconsider the principle of distinction in light of advancements in technology. Various emerging technologies, including unmanned aerial systems, lethal autonomous weapons, and cyber capabilities, have already begun to test the principle of distinction. How will these and other emerging technologies impact the implementation of the principle of distinction under the law of armed conflict?
Chapter 9. Who Did It? Attribution of Cyber Intrusions and the Jus in Bello
William Banks
The central concepts that make up the law of armed conflict (LOAC) have not been easy to adapt to cyber operations. In addition to their kinetic history and orientation, the core LOAC principles do not in most instances anticipate the kind of cyber-specific analysis that should accompany the use of increasingly advanced cyber systems and tools in conflict. Cyber operations rarely cause physical damage, much less injury or death. More often they cause cyber harm—by corrupting, manipulating or stealing data, denying access to a website, or interfering temporarily with the functionality of information systems. Or they indirectly disrupt or damage objects that are not part of the cyber domain. Measuring the harm from a cyber incident and calculating that harm in ways that the LOAC credits remains challenging, as does defining and distinguishing civilian and military objects, and accounting for the indirect effects of cyber operations. The LOAC also has not settled on a legal status for critical national security-related components of the cyber domain, including data and dual-use infrastructure.
Chapter 10. The Law of Armed Conflict Implications of Covered or Concealed Cyber Operations: Perfidy, Ruses, and the Principle of Passive Distinction
Colonel Gary P. Corn & Commander Peter P. Pascucci
This chapter addresses the complex law of war issues of distinction as applied to cyber operations. Cyberspace is now widely recognized as an operational domain of conflict and states are adopting cyber capabilities and operational constructs as means and methods of warfare at an increasing rate. Owing to the nature of this new and unique domain, operations security is at a premium. The use of cover and concealment and, at some level, the deception inherent thereto directly implicates in novel ways the traditional LOAC rules designed to ensure respect for the principle of honor in the conduct of hostilities and to protect civilians and civilian objects from the dangers of war. These rules must be interpreted in light of the unique aspects of cyberspace and the distinctive challenges it poses. A better understanding of how the cardinal principle of distinction and the LOAC rules meant to implement it awaits elucidation through state practice and opinion. In the meantime, thoughtful discussion and detailed analysis of the issues of perfidy, ruses, and the passive precautions rule are necessary to ensure that the spirit and intent of the LOAC are properly balanced against military necessity.
Chapter 11. Invisible Soldiers: The Perfidy Implications of Invisibility Technology on Battlefields of the Future
Sephora Sultana & Hitoshi Nasu
The idea of invisibility has long tantalized the human imagination. Once considered fantastical, recent advances have edged technology closer to the possibility of invisibility. On the battlefield, invisibility technology could be used to cloak soldiers and military equipment without restraining the mobility or manoeuvrability of troops and equipment. These developments necessitate a consideration of how the law of armed conflict should be interpreted and applied to the use of invisibility technology in warfare. In particular, invisibility raises questions concerning how to determine when the use of invisibility technology has crossed from lawful ruse to prohibited act of perfidy. This chapter explores how the use of invisibility to conceal the causal connection between an act of perfidy and an attack may fall within a grey area of the law.
Chapter 12. Attack Decision-Making: Context, Reasonableness, and the Duty to Obey
Geoffrey S. Corn
Proportionality is one of the most important civilian protection rules in the law of armed conflict (LOAC). In an era when combat almost always occurs in areas with substantial civilian populations, the proportionality rule is critical to protecting civilians and civilian property from the incidental and collateral consequences of attacks directed at otherwise lawful targets. The proportionality rule, however, prohibits attacks against otherwise lawful military objectives only when the attacker anticipates that civilian casualties or destruction to civilian property will be excessive in relation to the concrete and direct military advantage anticipated from the attack. Application of the proportionality rule has triggered ongoing debates over the meaning of its constituent terms: What is a military advantage? How is military advantage to be valued? What qualifies as a concrete and direct advantage? When does the knowing infliction of civilian harm qualify as excessive? Considering criminal accountability adds another layer of complexity: What is the proper standard of assessing criminal responsibility based on a violation of this obligation? This chapter explores the relationship between the duty of obedience and the implementation of the proportionality obligation at the tactical level. Given that deliberate attack planning and dynamic targeting arise in different operational contexts, each requires a different implementation focus.
