Technology and Evolution of International Humanitarian Law

Armed conflicts have evolved due to technological developments in the military. These wars are no longer limited to the land, sea, and air but have been extended to the unpredictable cyberspace. The internet, robotics, and other artificial intelligence have become means and tools for conducting hostilities. They are used in surveillance, intelligence, reconnaissance, attacks, and defense. The advent of technological war has serious implications for the interpretation and application of international humanitarian law (IHL). This ranges from the issue of application of the fundamental principles of the law of war, like distinction, proportionality, necessity, and humanity, to issues of defining the critical components of the crimes created by the existing law. This leads to the concern about the adequacy of the existing customs of war on the regulation of this upgrade. While the proposal to have new regulations is indispensable, an evolutionary approach to applying the traditional law of hostilities is critical for regulating technological warfare, especially in cyberspace and autonomous weapons.

The Law of War and Technology War

There is no state practice and binding treaty with regards to the regulation of cyber-war and autonomous weapon systems.[1] While there is no specific international humanitarian law instrument dedicated to technological warfare, the traditional laws of hostilities are applicable to the use of cyberspace and autonomous weaponry in hostilities. The application of the informal IHL is likely to lead to discrepancies and inconsistencies in the regulation of cyber warfare and the use of autonomous weapons during hostilities.[2] It is, therefore, imperative that, pending the discussions and negotiations about establishing treaties and conventions regulating technology war, the existing law can be evolutionarily interpreted to cater to the same. These include the Geneva Conventions of 1949 and the Additional Protocols of 1977. These laws have become peremptory norms that bind all states by virtue of the principle of jus cogens and, therefore, prevail over treaty laws and ordinary customary law. Peremptory norms or principles established by these international instruments are non-derogable and overriding in nature.^[3] This implies that states do not have to sign the treaties for these norms to apply to them. Any treaties or conventions inconsistent with these norms are regarded as void ab initio due to jus cogens norms.

Distinction is underscored in Article 48 of Protocol I. In this provision, parties engaging in hostilities are prohibited from indiscriminate attacks. Instead, they are obligated to ensure that their attacks are directed at the military objectives to protect the civilians and their objects. This is underscored in article 48, which states that this principle is meant to "ensure respect for and protection of the civilian population and their objects."[4] In Article 57, the principle of proportionality imposes an obligation on the parties engaging in hostilities to ensure that they undertake an assessment of the military advantage that they will accrue vis-à-vis the humanitarian risks that such wars would pose. Under this principle, the use of means that would result in collateral damage is prohibited. Arguably, any form of cyber-war or autonomous weapons that may cause collateral humanitarian consequences is not permitted under this law. Article 23(g) of the Hague Convention entrenches the principle of military necessity. This provision requires engaging in hostilities to ensure they only destroy or seize the combatant's properties as directed by necessity. It also guards against excess damages that are not justifiable in consideration of the achievement of their military objectives.

Under Article 36 of the Additional Protocol I, states engaging in hostilities have an obligation to determine whether the new methods, means, and weapons they develop or adopt are likely to be prohibited by IHL in all or some circumstances. This is particularly required during the “study, development, acquisition or adoption of new weapon, means or method of warfare.”[5] It is imperative that this provision imposes an obligation upon the parties to refrain from premature use of new weapons and technologies in circumstances that may render their compliance with IHL uncertain. According to the International Committee of the Red Cross (ICRC), the primary objective of this provision is the prevention of the use of weapons “that would violate international law in all circumstances, and to impose restrictions on the use of weapons that would violate international law in some circumstances.”[6] While this provision seems to be generic in nature, it can be applied effectively to the case of cyber-wars and autonomous weapon systems alongside other non-binding instruments that have been formulated to regulate technological warfare.^[7] However, the compliance with this obligation among the states that have developed and acquired autonomous systems remains a growing concern. This can be attributed to the secrecy and uncertainty in the trends of innovations and the challenges of uncertainty of technology, as revealed in the “ICRC Guide to the Legal Review of New Weapons, Means and Methods of Warfare, 2010.”^[8] Moreover, discrepancies in the interpretation and the application of the customary norms of the informal IHL may lead to selective and biased compliance with the requirements of Article 36 of the Additional Protocol I of the Geneva Conventions.

To operationalize the obligations of Article 36 of the Additional Protocol I above, the ‘Group of Governmental Experts on Emerging Technologies’ adopted 11 Guiding Principles upon which the weapon review is to be conducted. However, these principles are non-binding and have not achieved the aim for which they were established. This is partly due to the controversies about the adequacy of the existing IHL in regulating technological warfare.^[9] Weapons review practices vary from state to state due to the different legal regimes regulating the implementation of Additional Protocol I. Therefore, these demonstrate the centrality of Article 36 in establishing a traditional standard of weapons review processes in different jurisdictions worldwide.

IHL Regulation of Cyber-war

The evolution of information communication technologies has led to the enhancement of global connectivity. While this innovation has made the virtual space resourceful, it has implications of rendering the principles of IHL vulnerable. Thus, various IHL stakeholders like the ICRC, states, international judicial systems, and other international organizations have adopted purposive and liberal interpretations of the current law of war to regulate cyber warfare. Article 36 of the Additional Protocol I has been construed as the foundational IHL for regulating technology in warfare. According to the 2015 ICRC Report, cyber-war is regulated by the rules of war, mainly if cyberspace and cyber systems are used as a means or method of war in the hostilities.[10] When cyberspace is used as a method or means of warfare, the party that resorts to its utility has to adhere to the cardinal principle of distinction and the principle of proportionality. This implies that, as much as reasonably possible, the parties must ensure that their attacks are directed at military objectives and not the civilian population and their objects.

In the context of hostilities, internal or international armed conflicts, cyber warfare can lead to unforeseeable consequences for humanitarianism. Parties to the hostilities can resort to using computers and computer systems to control essential materials that are indispensable for human survival, like water, food, transportation, and electricity supply. While the cyber means and methods may be seen to be bloodless, they have far-reaching consequences that may jeopardize the existence of humans. The impacts may be indiscriminate, hence leading to immense suffering by the civilians, their objects, and protected groups. Within the auspices of the United Nations, cyber-wars have been expressly integrated into the IHL through the UN Charter, 1945. The ‘Group of Governmental Experts on Developments in the Field of Information and Telecommunications’ stated in paragraph 28 that with regards to cyberspace, "[i]nternational law, and in particular the Charter of the United Nations, is applicable…the established international legal principles, including, where applicable, the principles of humanity, necessity, proportionality, and distinction.”^[11] This brings the application of cyberspace to hostilities under the strict application of traditional IHL standards and principles. The ICRC emphasizes that the customary laws of hostilities apply to cyberspace, whether it is used as an artificial or new warship domain.

In its advisory opinion on the “Legality of the threat or use of nuclear weapons,” the International Court of Justice (ICJ) held that the international customary laws apply “…to all forms of warfare and all kinds of weapons…including those of the future.”[12] This dictum recognizes the potential and unpredictability of military technology and, therefore, provides a basis for the application of the existing customary IHL in regulating cyberspace and cyber warfare. While cyber-war may not necessarily be waged on land, its impacts on land can be far-reaching. Accordingly, Article 49(3) of the Additional Protocol I applies not only to warfare on land but also to “all other types of warfare which may affect civilians on land.” Clearly, this brings cyber-war to the domain of the customary IHL principles. Together with these principles, states have developed domestic legal frameworks regulating the emerging issues in the law of war. Soft law is more effective considering the rapidity of technological evolution in light of the lengthy procedures in treaty-making and parliamentary legislation.

In spite of the preceding, cyberspace still poses challenges in contemporary military warfare. Cyberspace is unruly due to its unique features, like anonymity. This can make it difficult to hold parties accountable for transgressions in the cyber hostilities. Certain cyber-wars do not have a kinetic character, and in some instances, they can indiscriminately impact a broader target that includes the protected objectives. Different states have different technological capacities and may, therefore, reserve the information and knowledge that would be critical in forming responsive regulations. Cyberspace, as a method of warfare, may expose or breach civilian data. Incidents of essential civilian information breakdown may be recorded. In such cases, it may be challenging to comply with the cardinal principle of distinction since it may not be practically possible to isolate civilian and military data on the website.^[13] However, considering the totality of Additional Protocol I, cyber-attacks can be construed to be attacks within the meaning of Article 49. This only becomes problematic where cyber-wars do not fulfill the various illegalities defined by the existing customary IHL.

Regulation of Autonomous Weapon Systems in the existing IHL

Artificial intelligence has been leveraged in contemporary military systems through robotics, drones, sentry guns, underwater vehicles, and automatic and independent loitering munitions. While it is not lost that these systems can be programmed to selectively attack military objectives, such programming has not been adequate and, therefore, exposes civilians and their objects to risks.^[14] The trend of urbanization of warfare may complicate the isolation of military objectives from civilians and their objects. This calls for reviewing autonomous weapon systems and equipping them with technology that can independently isolate military objectives from civilians and their objects, as well as protected groups from combatants.^[15] These raise pertinent questions on the ability of these autonomous systems to independently distinguish and isolate these objectives and comply with the IHL principles in urban settings.

Automation of warfare leads to the emergence of accountability issues due to its autonomous nature and limited human input. Moreover, these weapons may not be capable of respecting humanity and public conscience as dictated under Article 1(2) of Additional Protocol I and the Preamble of Additional Protocol II.[16] These systems are typically programmed to operate within specific durations and to attack particular locations and targets. The location of civilians and combatants in the same spot may not be taken care of by these weapons, necessitating human oversight. In the “Legality of the threat or the use of nuclear weapons” advisory opinion, the ICK held that the Martens Clause is peremptory, "is not to be doubted," and demands respect to the conscience of the public and humanity.[17] The court proceeded to hold that due to the foregoing, the Martens clause had “proved to be an effective means of addressing the rapid evolution of military technology.”[18] Humanity and public conscience therefore appear to be the key consideration for every party that wishes to participate in hostilities including by use of autonomous weapon systems. While accountability may be rolled down to the parties at war, they may actually have no meaningful control over the systems, as much of the programming is done by manufacturers rather than the users. This may lead to the challenge of whether to institute product liability proceedings against the manufacturer or the users.

Conclusion

In conclusion, the new military technology is largely governed by the existing customary laws of war. This has been mainly made possible by the underlying principles of IHL upon which the Geneva Conventions and the Additional Protocols are established. While this is so, it is essential to note that military technology is sophisticated and becoming increasingly unpredictable each day. This renders the existing customary international humanitarian law inadequate to effectively regulate hostilities that involve the use of these technologies. From the issue of responsibility, the scope of human control, and the complex features like anonymity and legal gaps, there is a need for a specific international regulatory regime covering contemporary military innovations. This includes the application of soft laws and regulations designed by experts and other unique bodies, and the domestic implementation policy frameworks.

1.Evhen Tsybulenko and Aleksi Kajander, ‘Customary International Humanitarian Law and Article 36 of Additional Protocol I to the Geneva Conventions: A Stopgap Regulator of Autonomous Weapons Systems?’ (2022) 12 TalTech Journal of European Studies 87. ↑

2.Mahmood Ahmed Shaikh Shafiq Ur Rahman and others, ‘Navigating Modern Warfare Challenges: A Review of the Evolution of International Humanitarian Law In Cyberwarfare’ (2024) 59 Journal of Southwest Jiaotong University <http://jsju.org/index.php/journal/article/view/1945> accessed 25 March 2024. ↑

3.Sean Murphy, 'Peremptory Norms of General International Law (Jus Cogens) and Other Topics: The Seventy-First Session of the International Law Commission' (2020) 114 GW Law Faculty Publications & Other Works <https://scholarship.law.gwu.edu/faculty_publications/1510/> accessed 3 June 2024. ↑

4.Additional Protocol I 1977. ↑

5.Ibid, n.4, art. 36. ↑

6.Damian Copeland, Rain Liivoja and Lauren Sanders, ‘The Utility of Weapons Reviews in Addressing Concerns Raised by Autonomous Weapon Systems’ (2022) 28 Journal of Conflict and Security Law 285. ↑

7.Ibid, n.1. ↑

8.ICRC, 'A Guide to the Legal Review of the New Weapons, Means and Methods of Warfare: Measures to Implement Article 36 of Additional Protocol I of 1977' (2010) <https://www.icrc.org/eng/assets/files/other/icrc_002_0902.pdf> accessed 4 June 2024. ↑

9.Ibid, n. 6. ↑

10.ICRC, ‘Report on the International Humanitarian Law and the Challenges of Contemporary Armed Conflicts’ (International Committee of the Red Cross31 October 2015) <https://www.icrc.org/en/document/international-humanitarian-law-and-challenges-contemporary-armed-conflicts> accessed 4 June 2024. ↑

11.Kubo Mačák and Tilman Rodenhäuser, ‘Towards Common Understandings: The Application of Established IHL Principles to Cyber Operations’ (Humanitarian Law & Policy Blog7 March 2023) <https://blogs.icrc.org/law-and-policy/2023/03/07/towards-common-understandings-the-application-of-established-ihl-principles-to-cyber-operations/> accessed 4 June 2024. ↑

12.ICJ Reports 226/96, July 78, 1966. ↑

13.Ibid, n. 10. ↑

14.Evhen Tsybulenko and Aleksi Kajander, ‘Customary International Humanitarian Law and Article 36 of Additional Protocol I to the Geneva Conventions: A Stopgap Regulator of Autonomous Weapons Systems?’ at n. 1. ↑

15.ICRC, ‘ICRC Position on Autonomous Weapon Systems’ (Icrc.org2021) <https://www.icrc.org/en/download/file/166330/icrc_position_on_aws_and_background_paper.pdf>. ↑

16.1977. ↑

17.Ibid, n. 12. ↑

18.Ibid. ↑