Nathalie Fouet

17 February 2022

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International Humanitarian Law and New Technologies

Drones, autonomous or robotic weapons systems, cyberwar, enhanced soldiers, nanoweapons, and so on. Means and methods of warfare that were once the stuff of science fiction are quickly becoming a reality – if they are not already – and there is a real possibility that they will cause future humanitarian disasters.

Governments are arming their forces and investing in these new methods, but their views on ethics and performance vary widely. The Ministry of Armed Forces in France has a Cyber Defense Command, and the Directorate-General for External Security (DGSE) has specific powers in information system security. France also formed a Defense Ethics Committee in early 2020. The French National Agency for the Security of Information Systems (ANSSI) plays an instrumental role in preventing and mitigating cyberattacks (ransomware, spyware, etc.).

In addition, the Red Team initiative was launched in 2019. Its objective is to foresee threats that could endanger France by analyzing economic, social, environmental, and technological elements. Its members include scientific and military experts as well as science fiction authors and screenwriters.

The development of these revolutionary means and methods of warfare should be accompanied by ethical thinking and form part of a legal framework: governments must ensure that the use of these new weapons complies with humanitarian law. International humanitarian law (IHL) or the Law of Armed Conflict aims to minimize the impact of war by providing protection for civilians and limiting “the methods and means of warfare.”

Definition of International Humanitarian Law

IHL is a “flexible” treaty law that is periodically renegotiated (mainly Hague Convention 1899, 1907 and Geneva Convention 1864, 1949, 1974, and 1977).

This law is based on specific founding principles (Article 3, common to all four Geneva Conventions):

The principle of distinction requires a distinction to be made between civilians and soldiers and between civilian property and military objectives.
The principle of precaution requires military operations to be conducted while ensuring that civilian populations and civilian property are spared at all times.
The principle of proportionality: where it cannot be avoided, strike a fair balance between collateral damage and the intended military benefits from the operation.
The principle of humanity imposes IHL as the pragmatic law at the center of the conflict to reconcile military and human interests.

Since its inception, IHL has successfully adapted to various technological developments. However, technological challenges such as cyber threats and new weaponry, notably automated weapons and “intelligent” systems (artificial intelligence, AI), cast doubt on its adaptability and future application.

International Humanitarian Law & Cyberspace

Major cyber attacks are becoming more common: in 2010, the Stuxnet virus infiltrated the computers of two Iranian nuclear power plants. In May 2021, the operator of the Texan pipeline Colonial Pipeline, a fuel supplier to the American East Coast, was targeted by DarkSide ransomware. The United States announced in December 2021 that it had been the subject of a malicious attack affecting both public (Federal departments) and private parties, all of whom were users of SolarWinds software. In recent weeks, the cyber threat has been omnipresent in the “Ukrainian crisis” between Russia and the United States. In France, Guillaume Poupard, Director of ANSSI, indicated that there is “concern about state hackers still being extremely active on French territory” (Le Monde interview, June 11, 2021).

The sabotage or destruction of IT systems in the event of a cyberwar could have major economic implications for a country’s organization and on the lives of its people if its healthcare and emergency services were paralyzed, for example, in terms of access to necessary resources (energy, transport, etc.).

However, cyberspace complicates the use of IHL for various reasons:

The use of both civil and military objects

The use of objects that both civilians and the military might use makes applying the principle of distinction problematic today: computers, smartphones, the original Internet network developed for military objectives, drones (civilian objects but can be armed).

Data, a reinterpretation of the concept of “protected civilian property”

These days, some attacks are particularly designed to destroy data and information in general. IHL initially considered physical damage to be damage to “civilian property.”

However, reliance on data (strategic, medical, bank account, and data center data) can make its destruction more devastating and redefines the concept of protected civilian property, demonstrating the flexibility of IHL. The International Committee of the Red Cross (ICRC) is unequivocal: “If cyberwarfare means and methods cause the same real-world effects as conventional weapons (destruction, disruption, damage, loss, injury or death), they must be governed by the same rules as conventional weapons!” (Cordula Droege, 2011, ICRC legal advisor).

The criteria for qualifying as armed aggression in cyberspace: balancing the level of damage and attack

According to Gilles Castel, a career military officer and legal advisor, the difficulty in cyberspace is in the degree of the attack: the trick would be to remain below the level that qualifies as armed aggression.

Article 2 of the United Nations Charter states that: “All members of the organization shall refrain in their international relations from the threat or use of force(…)”. This concept of use of force in cyberspace raises several questions.

Without physical damage, cyberattacks were rarely deemed attacks in the strict sense of IHL a decade ago. This attitude is changing due to rapid advances in technology and the severity of cyberattacks, as evidenced by NATO’s new cyber defense policy enacted in June 2021. On the other hand, there is the issue of operations intended to disseminate a mass of false information that could destabilize a population – which does not appear to have met the criteria for the time being (ADHS Sorbonne Conference, “New Technologies and IHL,” 2021).

In 2013, NATO commissioned a panel of experts to publish the Tallinn Manual (updated in 2017) on adapting international humanitarian law to these new concerns. It specifically addresses this use of force in cyberspace: “A cyber operation is a use of force when its scale (degree/level of intensity) and effects are comparable to non-cyber operations that meet the criteria for a use of force.”

Aside from cyber threats, another problem for IHL is the advancement of weapons systems, notably autonomous weapons and weapons with “intelligent” systems.

International Humanitarian Law and New Weapons Systems: Autonomous Weapons and Artificial Intelligence

Beyond cyber threats, new weapons systems, such as autonomous or robotic weapons, present an additional challenge to IHL’s adaptability.

Lethal Autonomous Weapons Systems (LAWS)

Still mainly in the experimental stage, the development of these weapons and their deployment on the battlefield raises substantial ethical and legal concerns. The goal of these systems is to improve accuracy while reducing or eliminating the need for human intervention.

Then there is the issue of adding principles of international humanitarian law into such systems’ programming: how can proportionality be ensured between military objectives and collateral damage (principle of proportionality)? How should an intelligent system be designed to recognize the difference between a soldier and a civilian (principle of distinction) without fail? How might the principle of humanity be incorporated? And so on. The autonomy of these weapons that are devoid of human control does not seem compatible with the application of IHL.

“Intelligent” Weapons Systems (Artificial Intelligence)

There are currently extremely strong opinions about the compatibility of artificial intelligence with IHL. Some states appear to believe that the improved accuracy and performance of this type of system allows for more effective use of IHL: “From the Chinese perspective, the guiding principle is performance above all else. Everything that is effective in terms of tactics and operations is considered ethical. Russia is on a similar wavelength, and the American attitude is changing, if slowly at first.” (Thierry Berthier, teacher and associate researcher at CREC Saint-Cyr, France Culture, “Augmented War: Doubled-Edged Technologies,” Nov. 2021). Others believe that human control over these weapons is crucial. Thales, a French technology group, said in 2019 that it would refuse to design such autonomous weapons, citing the need for clear legislation on the use of artificial intelligence in the weapons industry.

What Are the Consequences of IHL Violations?

The performance and accuracy of these new weapons will enable a reduction in certain human errors, but they will never be completely eliminated: this then raises the question of attributing liability in the case of an IHL violation. The challenge of identifying and locating the perpetrator in cyberspace makes this attribution all the more difficult. Furthermore, new weapons systems featuring some level of artificial “intelligence” increase the number of people involved in a military operation, including the scientists and developers who build these technologies, especially when they lack any human “safeguards.”

A Possibility of Agreement?

Faced with these issues, there is rising concern about IHL’s future flexibility: According to Sarah Cassela, Professor at Maine University, “the combination of these issues risks eroding the basis of humanitarian law by making it unenforceable. It is critical to remember that humanitarian law is a pragmatic law aimed largely at non-lawyers. It will lose its purpose if it loses its essential qualities and becomes overly complex.” (“Le droit humanitaire en péril” [Humanitarian Law at Risk], Vie publique, November 2021).

So, could the technological challenges encountered today, which are expected to increase in the coming years, make IHL problematic to apply… or even unenforceable?

Is it now possible to reach an agreement on these issues? Current events indicate a downward trend in this respect, and tension is mounting between the major military powers. The United Nations’ 193 member states do not all have the same interests in renegotiating the convention: the gap in progress on these new technologies and the desire to keep them secret are preventing a united discussion.

However, while States are required to follow IHL when using these new weapons, the Martens clause, which was introduced in 1899, also allows civil society to raise awareness of and debate the humanitarian implications of these means and methods of warfare, thereby helping form what the clause calls a “public conscience.” Although attorneys interpret this clause in many ways, the International Court of Justice (ICJ) emphasizes its significance, stating that it “has proved to be an effective means of addressing the rapid evolution of military technology.” (International Court of Justice, “Legality of the Threat or Use of Nuclear Weapons,” Advisory Opinion of July 8, 1996.)

“Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.” (Martens clause, Preamble to the 1899 Hague Convention II.)