Advances in technology and weaponry have revolutionised warfare since time immemorial, where inventions such as the chariot, canon powder and the airplane effectively changed the landscape of warfare.1 The law of armed conflict (LOAC) that exists today has developed as a reaction to the atrocities committed in the past; the four Geneva Conventions and the Additional Protocols of 1977 originated as responses to the increased suffering of civilians in armed conflict due in part to developments of weapon technology.2 The legal instruments to regulate the application of these advances in technology can barely keep up with challenges resulting from the rapidness of the advancement of contemporary military technologies. Moreover, recent technological advances raise the prospect of upheavals in practice so fundamental that they challenge assumptions underlying long-established international laws of war.3 This is because advances in technology have dramatically affected the weapons and tactics of future armed conflict, the
“places” where conflicts are fought, the “actors” by whom they are fought, and the
“means and methods” by which they are fought.4 These changes stress the fundamental principles of the LOAC, thus undermining its ability to regulate the conduct of hostilities; namely, by posing challenges to the principles of distinction, proportionality, military necessity and unnecessary suffering. This essay aims to assess the impact technology has had upon the LOACs ability to regulate the

1

Dr. Jakob Kellenberger, 'International Humanitarian Law and New Weapon Technologies'
Daniel Klingele, 'THE CONDUCT OF HOSTILITIES Revisiting the Law of Armed Conflict 100
Years after the 1907 Hague Conventions and 30 Years after the 1977 Additional Protocols '
(Statement 2007) accessed 4th March 2016
3
Braden R. Allenby, 'Are new technologies undermining the laws of war?' [2014] 70 (1) BAS accessed 4th March 2016
4
Eric Talbot Jensen , 'Future War, Future Law' [2013] 282 (Summer 2013) MJIL accessed 4th
March 2016
2

conduct of hostilities. Examples of emerging technologies – namely cyber technology, remote-controlled weapon systems, and autonomous weapon systems will be used to facilitate an analysis of the relevant effects of technological progress in relation to the basic principles of the LOAC to show that technological progress has indeed undermined the LOACs ability to regulate the conduct of hostilities.
However, as Colonel Darren Stewart observed, ‘one of the notable features of [the law of armed conflict] has been its evolutionary flexibility.’5 In line with this sentiment, this essay will pose the question of whether it is technological progress, or alternatively, the inherent nature of the rules and principles themselves that undermine the LOAC.

Cyber and information warfare, and its associated legal issues, is referred to as a ‘game-changer’ by Allenby, due to the multitude of intertwined legal and social questions it raises.6 The main challenge cyber warfare poses, stems from the interconnectivity that characterizes cyberspace which in turn, undermines the principles of distinction and proportionality.7 The ‘dual-use’ of cyber networks, between civilian and military traffic, causes a much wider overlap between the two when compared to the traditional model of warfare, which is predominantly in a physical world, and consequentially, it is difficult to

5

Darren M. Stewart, ' New Technology and the Law of Armed Conflict' [2011] 87 International Law and the Changing Character of War accessed 4th
March
6

Braden R. Allenby, 'Are new technologies undermining the laws of war?' [2014] 70 (1) BAS accessed 4th March 2016
7
Fred Schreier, 'On Cyberwarfare' [2015] WORKING PAPER No. 7 () DCAF accessed 4th March
2016

limit the effects of such operations to military computer systems.8 This ‘global mixing of civilian and military activity’ makes it increasingly difficult to define the ‘extent of the battlefield’, as well as make the distinction between military and civilian objects.9 Moreover, this interdependence facilitates the participation of civilians in cyber warfare, especially since it can be expected that civilians and military personnel will be on par skills wise at using the tools of cyber war. This ‘civilian creep’10 undermines the operational distinction between civilians and the military, and arguably may even encourage the use of civilians by states in cyber wars, as well as destabilize the balance between military necessity and humanity by forcing a reassessment of the role of a civilian in contemporary warfare. New types of civilian destruction may also be observed, making ‘giant electrical generators to shred themselves, trains to derail, high-tension power-transmission lines to burn, gas pipelines to explode, aircraft to crash’ and not only ‘weapons to malfunction’, but also
‘funds to disappear’.11 Moreover, cyber warfare’s non-attributive nature complicates issues further as the foundation on which it is built on, digitalization, ensures anonymity and thus, in most cases protects the identity of the attacker.12 As IHL is reliant on the attribution of responsibility to individuals or parties to conflict, identifying the perpetrator is essential in

8

Braden R. Allenby, 'Are new technologies undermining the laws of war?' [2014] 70 (1) BAS accessed 4th March 2016
9
Dr Philip Spoerri, 'New technologies and warfare' [2012] 94 (886) ICRC accessed 4th March 2016
10
Hitoshi Nasu, Robert McLaughlin, New Technologies and the Law of Armed
Conflict(Illustratededn, Springer Science & Business Media, ) 9
11
Cf. Richard Clarke, ‘War from Cyberspace’, The National Interest (November-December 2009), http://nationalinterest.org/article/war-from-cyberspace-3278 12
Reich, P.C., Weinstein, S., Wild C., & Cabanlong A.S.,, 'Cyber Warfare: A Review of Theories,
Law, Policies, Actual Incidents - and the Dilemma of Anonymity' [2010] 1 (2) EJLT accessed 4th March 2016

determining if the operation is even under the remits of IHL. Therefore, it is evident that cyber technology, an example of recent technological progress, has undermined the ability of the LOAC to regulate the conduct of hostilities.

According to the Human Rights Watch (HRW), in its report Losing Humanity:
The Case Against Killer Robots, autonomous weapon systems (AWS) fail to comply with the LOAC, and will fail to meet the requirements of distinction, proportionality, military necessity and the Martens Clause.13 One of the main reasons for this is because there is ambiguity as to whether AWS are actually capable in practice of maintaining the level of discrimination required by IHL, especially in the face of being assigned more complex tasks and deployed in increasingly dynamic environments.14 It is unclear whether AWS would be able to autonomously distinguish military objectives from civilian objects, combatants from civilians, and active combatants from persons hors de combat, and furthermore, the capacity to discriminate is subjectively dependent on the quality and variety of sensors and programming employed within the system.15 Another key challenge involves going a step further, that is, if these robots are capable of being programmed to take into consideration changing circumstances and contextual factors in the process of formulating their response. The artificial intelligence in this case, would have to emulate

13

Human Rights Watch, ‘Losing Humanity: The Case Against Killer Robots’ (2012), available at http://www.hrw.org/sites/default/files/reports/arms1112ForUpload_0_0.pdf 14
International Committee of the Red Cross, 'International humanitarian law and the challenges of contemporary armed conflicts' [ 2015 ] 32IC () 32nd INTERNATIONAL CONFERENCE OF THE
RED CROSS AND RED CRESCENT accessed 4th March 2016
15
International Committee of the Red Cross, 'AUTONOMOUS WEAPON SYSTEMS TECHNICAL,
MILITARY, LEGAL AND HUMANITARIAN ASPECTS' (Expert Meeting Report 2014)

accessed 4th March 2016

that of a human, with the appropriate levels of contextual understanding and a subjective appreciation of the situation at hand. As Sassòli has observed,
‘there are many elements that make a human being understand what is/is not a legitimate target, and those factors must be reproduced in a computer program.16 However, the development of such an algorithm would be highly challenging, if not impossible.17 Issues are also seen in the relationship between the principle of proportionality and AWS. If a weapon could be programmed to sense and weigh up the many contextual factors and variables required to determine whether the attack may be expected to cause incidental civilian casualties and damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, as required by the rule of proportionality.18
Likewise, in the event that it is apparent that the target is not a military objective, or that it is subject to special protection, or it is expected that the attack may violate the rule of proportionality, as required by the rules on precautions in attack, the programming of a weapon to cancel or suspend an attack based on the above reasons would appear to be a formidable challenge.19 Therefore, it is clear that doubt casts its shadow over the development and practice of AWS in compliance with the principles of IHL, in all but the narrowest and simplest of scenarios, and thus it can be argued that

16

Sassoli, Marco, 'Autonomous Weapons and International Humanitarian Law: Advantages, Open
Technical Questions and Legal Issues to be Clarified' [2014] 90 () International Law Studies /
Naval War College accessed 4th March 2016
17
Michael N. Schmitt, 'Autonomous Weapon Systems and International Humanitarian Law: A
Reply to the Critics' [2013] () HLSNSJ accessed 4th March 2016
18
https://www.justsecurity.org/wp-content/uploads/2015/11/2015-ICRC-Report-IHL-andChallenges-of-Armed-Conflicts.pdf
19
https://www.justsecurity.org/wp-content/uploads/2015/11/2015-ICRC-Report-IHL-andChallenges-of-Armed-Conflicts.pdf

the current use of AWS undermines the LOACs ability to conduct hostilities.

Keeping in-line with the long-standing strategic continuum of creating increasingly more distance between soldiers and their enemies and the actual combat zone, the emergence of remote-controlled weapon systems (RWS) in the form of drones, or unmanned aerial vehicles (UAVs) was observed.20
Challenges to the LOAC that stem from its application are seen within the scope of targeted killing, as well as within the territorial scope of armed conflict. The use of armed drones by States for the extraterritorial targeting of persons in non-international armed conflicts (NIAC) in particular is a topic shrouded by controversy; specifically within the distinction between those engaged in hostilities, and civilians. The absence of a ‘combatant’ status from non-state armed groups denied civilians the right to legally take part in hostilities, amidst conflicting complaints by states on the untenability of the limitations of legal targets only to individuals taking part directly in the hostilities and only for the duration of the engagement.21 Furthermore, tendencies like the ‘zero casualty paradigm’ point to a direction that the LOAC is deviating from the protection given to civilians. In fact, within the refines of the principle of proportionality, a civilian who did not take part in hostilities is not guaranteed immunity from attacks, and still be attacked legally. According to the IHL, only attacks that are ‘excessive’ in relation to the concrete and

20

Asst Prof Steven J Barela, Legitimacy and Drones: Investigating the Legality, Morality and
Efficacy of UCAVs (1edn, Ashgate Publishing, Ltd, ) 95
21
Colonel K.W. Watkin, 'COMBATANTS, UNPRIVILEGED BELLIGERENTS AND CONFLICTS IN
THE 21ST CENTURY' [2003] () HPCR accessed 4th March
2016

direct military advantage are criminalized.22The quantifiable nature of what is
‘excessive’ is a subjective concept that differs between commanders, states and circumstances at hand. Different standards of proportionality were enforced by different states, examples being set clearly between the differing standards of the UK and USA. Challenges that arise due to the territorial scope of armed conflict are largely due in part to the IHL lacking an overall explicit provision on its scope of territorial applicability.23 Questions pertaining to the use of drones outside of ‘hot battlefields’24 and in non-war zones include the legality of using drones in so called cross-border counterterrorism operations, as well as in issues relating to the ‘distortion of the boundaries of the battlefield’ and the geographical scope of the law of war.25 For example, current state practice and opinion juris contest the USA’s construction of a single, global NIAC, in which IHL occurs even outside of these hot battlefields.26 Therefore, given the arguments above, it is evident that RWS has undermined the LOAC’s ability to regulate the conduct of hostilities.

22

Asst Prof Steven J Barela, Legitimacy and Drones: Investigating the Legality, Morality and
Efficacy of UCAVs (1edn, Ashgate Publishing, Ltd, ) 57
23
International Committee of the Red Cross, 'International humanitarian law and the challenges of contemporary armed conflicts' [ 2015 ] 32IC () 32nd INTERNATIONAL CONFERENCE OF THE
RED CROSS AND RED CRESCENT accessed 4th March 2016
24
Hitoshi Nasu, Robert McLaughlin, New Technologies and the Law of Armed
Conflict(Illustratededn, Springer Science & Business Media, ) 200
25
Jessica Dorsey and Dr. Christophe Paulussen, 'The Boundaries of the Battlefield: A Critical Look at the Legal Paradigms and Rules in Countering Terrorism ' [2013] () ICCT accessed 4th March 2016
26
Jessica Dorsey and Dr. Christophe Paulussen, 'The Boundaries of the Battlefield: A Critical Look at the Legal Paradigms and Rules in Countering Terrorism ' [2013] () ICCT accessed 4th March 2016

Although it’s evident that advances in technology have indeed undermined the ability of the LOAC to regulate the conduct of hostilities, it must be noted that recent emerging technologies have challenged the scope of the LOAC more constantly, radically, and aggressively. However, the evolutionary flexibility that plays such a fundamental part in the make up of the LOAC is what has given it the capacity to evolve and adapt itself in response to developments in both technological capabilities and tactics.27 This flexibility can be attributed to the defining basic principles of distinction, proportionality, military necessity and humanity, and their role in providing a benchmark of quality and legality against which advancements in technologies and tactics may be compared.28
In fact, a point to note is that technological progress plays the role of a double-edged sword, which means that while some of its effects undermine the LOAC, its other effects support the application of the LOAC. This exemplifies the dynamic nature of the relationship between technology and the LOAC, and strongly supports the argument that it is neither ‘onedimensional nor negative.’29Instead, legitimate challenges come into play when wider questions pertaining the demarcation of acceptable ethical limits in the application of technology to military purposes are developed.30 For example, within the boundaries of AWS, even if they could be programmed in such a way that is in absolute compliance with IHL rules, moral and ethical

27

Darren M. Stewart, ' New Technology and the Law of Armed Conflict' [2011] 87 International
Law and the Changing Character of War accessed
4th March 2016
28
Dan Saxon, International Humanitarian Law and the Changing Technology of War(1stedn,
Martinus Nijhoff Publishers, ) 200
29
Darren M. Stewart, ' New Technology and the Law of Armed Conflict' [2011] 87 International
Law and the Changing Character of War accessed
4th March 2016 272
30
Vivek Wadhwa, 'Laws and Ethics Can’t Keep Pace with Technology' (Technology review 2014)

accessed 4th March 2016

questions arise as to whether the principle of humanity and the dictates of public conscience (the Martens Clause in this case) allow life and death decisions to be dictated by a machine with little or no human control. It is incorrect to think that the underlying principles of law are obsolete or redundant of any kind, however, it is likely that as technologies continue to advance, the majority of the contemporary LOAC will continue to apply to most armed conflicts in the foreseeable future and thus, to combat and regulate these developments and its associated challenges, the LOAC must also look to evolve and adapt itself within the application of its rules to keep pace with innovation and invention.

In conclusion, emerging technologies such as cyber and information systems, autonomous weapon systems, as well as remote-controlled weapon systems all played, and continue to play a significant part in undermining the LOAC, namely by pitting their application and practice against the general underlying principles of the LOAC. Although technological progress does affect, and undermine the rules of war, it is imperative to note its double-edged nature, whereby certain facets of technological rise seek to strengthen the application and practice of LOAC instead. Within this framework, it can be deduced that solely attributing this undercutting of LOAC to technological progress would only be partially correct, and that the inherent nature of the rules and principles of war may in fact play a part in undermining the LOAC.

Reference List

Books
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Asst Prof Steven J Barela, Legitimacy and Drones: Investigating the
Legality, Morality and Efficacy of UCAVs (1edn, Ashgate
Publishing, Ltd, )
Anthony F. Lang, Jr., Amanda Russell Beattie, War, Torture and
Terrorism: Rethinking the Rules of International Security (1stedn,
Routledge, )
Dan Saxon, International Humanitarian Law and the Changing
Technology of War(1stedn, Martinus Nijhoff Publishers, )
Derek S. Reveron, Cyberspace and National Security: Threats,
Opportunities, and Power in a Virtual World (1stedn, Georgetown
University Press, )
Hitoshi Nasu, Robert McLaughlin, New Technologies and the Law of Armed Conflict(Illustratededn, Springer Science & Business
Media, )
William H. Boothby, Conflict Law: The Influence of New Weapons
Technology, Human Rights and Emerging Actors (1edn, Springer, )

Journal Articles
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Braden R. Allenby, 'Are new technologies undermining the laws of war?' [2014] 70 (1) BAS accessed 4th March 2016
Darren M. Stewart, ' New Technology and the Law of Armed
Conflict' [2011] 87 () International Law and the Changing Character of War accessed 4th
March
Dr Philip Spoerri, 'New technologies and warfare' [2012] 94 (886)
ICRC
accessed 4th March 2016
Colonel K.W. Watkin, 'COMBATANTS, UNPRIVILEGED
BELLIGERENTS AND CONFLICTS IN THE 21ST CENTURY'
[2003] () HPCR

 accessed 4th March 2016

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•

•

•

•

•

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Eric Talbot Jensen , 'Future War, Future Law' [2013] 282 (Summer
2013) MJIL accessed 4th March 2016
Jelena Pejic, 'Extraterritorial targeting by means of armed drones:
Some legal implications' [2015] () ICRC accessed 4th March
Jessica Dorsey and Dr. Christophe Paulussen, 'The Boundaries of the Battlefield: A Critical Look at the Legal Paradigms and Rules in
Countering Terrorism ' [2013] () ICCT

accessed 4th March 2016
Laurie Blank and Amos Guiora, ' Teaching an Old Dog New Tricks:
Operationalizing the Law of Armed Conflict in New Warfare' [2010]
4 () Harvard National Security Journal

accessed 4th March 2016
Michael N. Schmitt, 'Autonomous Weapon Systems and
International Humanitarian Law: A Reply to the Critics' [2013] ()
HLSNSJ accessed 4th March 2016
Reich, P.C., Weinstein, S., Wild C., & Cabanlong A.S.,, 'Cyber
Warfare: A Review of Theories, Law, Policies, Actual Incidents and the Dilemma of Anonymity' [2010] 1 (2) EJLT accessed 4th March 2016
Sassoli, Marco, 'Autonomous Weapons and International
Humanitarian Law: Advantages, Open Technical Questions and
Legal Issues to be Clarified' [2014] 90 () International Law Studies /
Naval War College accessed 4th March 2016

Miscellaneous
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Dr. Jakob Kellenberger, 'International Humanitarian Law and New
Weapon Technologies' (Statement 2011) accessed 4th March
2016
Daniel Klingele, 'THE CONDUCT OF HOSTILITIES Revisiting the Law of Armed Conflict 100 Years after the 1907 Hague Conventions and 30
Years after the 1977 Additional Protocols ' (Statement 2007) accessed 4th March 2016
DALE STEPHENS* AND MICHAEL W LEWIS, 'THE LAW OF ARMED
CONFLICT — A CONTEMPORARY CRITIQUE Law of Armed Conflict
— A Contemporary Cri' [2011] 6 () Melbourne Journal of International
Law accessed 4th March 2016
Fred Schreier, 'On Cyberwarfare' [2015] WORKING PAPER No. 7 ()
DCAF accessed 4th March 2016
International Committee of the Red Cross, 'International humanitarian law and the challenges of contemporary armed conflicts' [ 2015 ] 32IC
() 32nd INTERNATIONAL CONFERENCE OF THE RED CROSS AND
RED CRESCENT accessed 4th March 2016
International Committee of the Red Cross, 'AUTONOMOUS WEAPON
SYSTEMS TECHNICAL, MILITARY, LEGAL AND HUMANITARIAN
ASPECTS' (Expert Meeting Report 2014) accessed 4th March 2016
Michael N. Schmitt* &Jeffrey S. Thurnher, '"Out of the Loop":
Autonomous Weapon Systems and the Law of Armed Conflict' [2013] 4
() Harvard National Security Journal accessed 4th
March 2016
Vivek Wadhwa, 'Laws and Ethics Can’t Keep Pace with Technology'
(Technology review 2014) accessed 4th March 2016