Year Ahead – 2022
In our look back at 2021, affiliates of the Lieber Institute discussed some of the law of armed conflict issues that made an impact in the past year. In the present post, Professors Wolff Heintschel von Heinegg, Chris Jenks, Laurie Blank, Daphné Richemond-Barak, and Eric Talbot Jensen address some of the law of armed conflict concerns they believe we should watch for in 2022.
Updating the Law of Naval Warfare
The San Remo Manual on International Law Applicable to Armed Conflicts at Sea was adopted by a group of international experts in 1994. The Manual, including the Explanations thereto, was published in 1995. The Manual has certainly had a considerable impact on various national military manuals and, thus, on how States understand the contemporary law of naval warfare. Since its adoption, however, more than a quarter century has passed. Accordingly, some of the Manual’s provisions may no longer correctly reflect the current state of the law of naval warfare. Moreover, there are some obvious mistakes that need to be corrected.
Given these concerns, a group of international experts representing major sea powers and the various legal cultures of the World was invited to take a fresh look at the San Remo Manual. They were asked to identify issues that have not been dealt with or that have not been dealt with appropriately, and to submit proposals on an update of the Manual. The first meeting of the group was held in Copenhagen in October 2019. The second meeting was to take place in Canberra. Because of the pandemic, however, the experts had to meet online in December 2020. A third meeting scheduled to take place in Norway in 2021 had to be postponed because online meetings had proven to be the second-best choice for a thorough and productive discussion.
It is uncertain when the group of international experts will be able to resume its work. It is equally uncertain whether the group will be able to agree on a substantial update of the San Remo Manual. Whereas some stakeholders seem to prefer a mere and most cautious update of the Explanations and to leave the black-letter rules unmodified, others are of the view that some of the black-letter rules no longer provide the necessary guidance to decision-makers and naval operators. Hence, it would be surprising if some current and pressing issues of the law of naval warfare were adequately dealt with in a potential update of the San Remo Manual. These issues include:
(1) belligerent uses of neutral archipelagic waters and the relevance of the peacetime obligation to pay “due regard” in high seas areas;
(2) the legal status of unmanned maritime systems as warships;
(3) the legal status of small craft, such as RHIBs;
(4) the use of maritime militias;
(5) conditions under which submarine communication cables qualify as lawful targets; (6) cyber attacks against vessels;
(7) the standard applicable to precautions in attack;
(8) the applicability of the notion of “direct participation in the hostilities” to naval warfare;
(9) the legitimate purposes pursued with the establishment of an “exclusion zone”;
(10) the legal status of the masters and crews of neutral merchant vessels and civil aircraft that have become lawful targets by use;
(11) the relationship between maritime search and rescue treaties and the 1949 Geneva Convention II; and
(12) the applicability of the law of naval warfare to non-international armed conflicts extending to the sea.
Professor Dr. Wolff Heintschel von Heinegg holds the Chair of Public Law, in particular Public International law, European Law and Foreign Constitutional Law at the Europa-Universität Viadrina in Frankfurt (Oder), Germany.
Lethal Autonomous Weapons: 2021 and the Road to Nowhere
Last year saw a series of “developments” related to lethal autonomous weapons (LAWS) which portend continued confusion over what is meant by the term and disagreement about whether and why new regulation may be needed.
In January 2021, the United Nations Secretary General delivered remarks on priorities for the year ahead. The Secretary General renewed his call for a ban on LAWS but did so amidst remarks about artificial intelligence (AI). By not clearly demarcating autonomy from AI, the Secretary General’s remarks risked oversimplifying these technologies and fostering a mistaken belief that these descriptors are interchangeable.
This is much more than semantics. If the international community does not quickly come to a shared (and rigidly adhered to) understanding of what is meant by autonomy and AI, the discussion about LAWS, and really any emerging military technology, is doomed to annoying incoherence akin to the Abbot and Costello “Who’s on First” comedy routine.
In March, and as Hitoshi Nasu previously wrote, a United Nations Panel of Experts on Libya reported on the offensive use of LAWS the previous spring (2020). According to the Panel, Turkish manufactured loitering munitions “were programmed to attack targets without requiring data connectivity between the operator and the munition: in effect, a true ‘fire, forget and find’ capability.” What’s not clear from the report is the quantum and quality of the human involvement in employing the LAWS. Depending on the context of their employment, the offensive use of LAWs may—or may not—have violated the law of armed conflict (LOAC). This trend of uncertainty follows the 2020 Armenia/Azerbaijan armed conflict which featured the use of weapons which may—or may not—have been employed in an autonomous mode.
In May 2021, the International Committee of the Red Cross (ICRC) announced its position on LAWS, including a recommendation that “States adopt new legally binding rules.” The first (and presumably most important) rule the ICRC suggested was that “[u]npredictable autonomous weapon systems should be expressly ruled out ….” The ICRC position did not explain why parties to an armed conflict would seek to employ unpredictable weapons systems, how extant LOAC is inadequate, or what would be needed in a new rule to correct those deficiencies.
At three separate times in 2021, a group of governmental experts (GGE) met in Geneva under the auspices of the Convention on Certain Conventional Weapons (CCW) to discuss LAWS. The final GGE of 2021 was held in early December. The chair of the meeting, Ambassador Marc Pecsteen de Buytswerve of Belgium, attempted to orient discussions on a draft report that proposed GGE sessions in 2022 with a mandate to negotiate an instrument to regulate LAWS. Not only did the “negotiate an instrument” language not survive, the GGE was unable to reach consensus on any recommendation to the CCW Review Conference held the following week.
In between the LAWS GGE and the Review Conference, the ICRC circulated on social media a letter to the editor submitted by the ICRC’s chief legal officer to The Times (UK). As published by The Times (and disseminated by the ICRC), the letter’s bolded all caps title was “REGULATION OF AI WEAPONS” while the letter’s contents were about autonomous weapons. Although The Times was no doubt responsible for the wording of the title and the choice of typeface, that ten different ICRC twitter accounts circulated the letter globally without removing or clarifying the title risked furthering the misperception that AI and autonomy are interchangeable.
At the CCW Review Conference, the President of the ICRC made a statement expanding on, but still not explaining, the points from the ICRC’s spring position discussed above. The ICRC President’s statement also added “ethical concerns,” which were not mentioned in the spring position. It’s not clear how ethical concerns factor into the CCW’s mandate to “prohibit or restrict the use of certain conventional weapons which are considered excessively injurious or whose effects are indiscriminate.” Additionally, the ethical concerns were based on “substituting human decisions about life and death with sensor, software and machine processes.” But beginning at least as far back was World War II, targeting decisions with life and death consequences have been made based on sensor, software, and machine processes, so it’s unclear why such ethical concerns are an issue, and why now.
The December Review Conference marked the end of the 2021 “developments” related to LAWS. The Review Conference’s actions set the conditions for continued LAWS discussions—and continued confusion. The Review Conference, which is comprised of essentially the same actors as the GGE (who could not agree on a recommendation … to themselves), agreed to ten days of LAWS GGE meetings in 2022 with a mandate to
consider proposals and elaborate, by consensus, possible measures, including taking into account the example of existing protocols within the convention, and other options related to the normative and operational framework on emerging technologies in the area of lethal autonomous weapons systems….
Whether these meetings are able to make any progress towards these goals remains to be seen in the coming year.
We Need Better Tools for Identifying the End of Conflict
Looking forward to 2022, a key lesson from the Afghanistan withdrawal is the need for a more effective and operationally viable legal framework for identifying the end of non-international armed conflict. When a conflict draws to a close, the law of war ceases to apply (with the exception of a few key provisions mandating continued necessary protections). Most significant, parties to the erstwhile conflict no longer have the authority to detain or to use force as a first resort against enemy personnel. Identifying the endpoint is, therefore, essential for the proper application of the law.
On first glance, the withdrawal of forces from Afghanistan surely marks the end of the conflict. But which conflict? The United States and coalition partners, alongside the government of Afghanistan, were involved in a non-international armed conflict against the Taliban since 2002. The United States has also been engaged in a separate non-international armed conflict with al Qaeda and associated forces. There is no indication that the United States believes that the withdrawal from Afghanistan also ended the conflict with al Qaeda, triggering a new set of questions about how to mark the end of a non-international armed conflict with a terrorist or insurgent group outside the territory of the State. Should it be a reverse Tadić analysis, the “tipping point,” or some other framework?
As the United States asserts its readiness to launch “over the horizon” operations against ISIS-K and other terrorist operatives in Afghanistan, and continues, at least for now, to detain men linked to al Qaeda at Guantanamo Bay, we enter a new phase of this armed conflict, one in which there is no locus of hostilities to tether the analysis of armed conflict. We therefore need better tools to assess how and when the conflict comes to an end.
Consider the challenges: if intensity and organization are the key factors, then is a State’s continued attacks on members of the non-State group sufficient to maintain that intensity, even if the group itself is not launching any attacks? If so, then the State holds the key to the armed conflict identification and can essentially sustain the law’s permissive authorities for as long as it wants simply by targeting its far-flung adversaries. Such a result seems counter to the object and purpose of the law. The opposite approach is equally problematic, however. The State is close to achieving its goals once the non-State group is “on the run” and struggling to fight effectively—but if those circumstances mean the conflict is over and the law of war no longer applies, then the State must finish the campaign as a law enforcement operation. Such a result would be operationally illogical.
With “long distance” conflict likely to be a new phase in 2022, shaping a nuanced and appropriate framework for the end of non-international conflict will be essential to ensure the protection of persons and the respect for the law.
Professor Laurie Blank is a Lieber Senior Fellow and a Clinical Professor of Law at Emory University School of Law. She is also the Director of the Center for International and Comparative Law, and the Director of the International Humanitarian Law Clinic at Emory University School of Law.
Dr. Daphné Richemond-Barak is a Lieber Senior Fellow and Assistant Professor in the Lauder School of Government, Diplomacy and Strategy at IDC Herzliya.
“No Plan Survives First Contact.” Will the LOAC?
When my unit was sitting in our German Defensive Positions on the soon to be non-existent border between West Germany and Czechoslovakia, my Squadron Commander would often say to us, “No plan survives first contact.” What he meant was obviously not that we shouldn’t plan, but rather than we should plan and then prepare multiple “branches” and “sequels” because the “enemy gets a vote” in how we prosecute war. His wisdom came not only from studying military doctrine, but from experience, the kind of experience that militaries have gained again in the last two decades of armed conflict against very adaptable, agile, ruthless, and legally non-compliant enemies. In fact, some of our recent foes have made a point of mocking the rules that “bind” Western nations in armed conflict.
More than thirty years later, as I write this contribution to Articles of War, Russian soldiers are massing across the border from Ukraine. Of course, both sides, and NATO, are making plans and developing “branches” and “sequels” so that if the invasion comes, they will be prepared to respond in a way that leads to victory. Underlying these plans, at least for Ukraine and its Western partners, is a commitment to conduct those military operations in compliance with the law of armed conflict. Just as no plan survives first contact, it will be important for us to observe the extent to which the LOAC survives first contact, if conflict occurs.
Various intelligence and news reports have alleged that Putin has already begun a massive mis- and disinformation campaign that will provide the basis for his invasion. While such an information campaign is not per se unlawful, it signals that if a conflict between near-peer military powers (assuming NATO gets involved) is triggered, it will be a fight like none other we have seen before. Both sides will utilize advanced weapons and emerging technologies in ways that will wreak havoc on a scale and across a breadth of domains not envisioned in prior conflict. Such a conflict will put the ever expanding limitations of the LOAC on the conduct of hostilities in stark contrast with the ever expanding target reach and destructive power of modern weapon systems.
As history reminds us in Admiral Karl Doenitz’s trial after WWII, pre-conflict rules don’t always survive actual fighting. Doenitz was charged with violating the laws of war by not complying with the 1936 Submarine Protocol which stated that “a warship, whether surface vessel or submarine, may not sink or render incapable of navigation a merchant vessel without having first placed the passengers, crew, and ship’s papers in a place of safety.” In his defense, Doenitz sent interrogatories to U.S. Admiral Chester Nimitz, who also admitted to ignoring certain textual limitations of the Protocol (for example, with respect to establishing zones where submarines attacked ships, except hospital ships). In what became the conduct of unrestricted submarine warfare, both adversaries deemed it impractical to apply such rules, though some justified their actions as reprisals for initial violations by the other side.
The lack of near-peer hostilities for the past 70+ years has left regulation of the conduct of hostilities untested in the crucible of actual superpower armed conflict. Let’s hope that the rules have remained practical enough to effectively limit warfare in a way that also encourages compliance. More importantly, let’s hope that the year ahead doesn’t give us a chance to find out.
Eric Talbot Jensen is a Lieber Senior Fellow and Professor of Law at Brigham Young University.