New Technologies and the Exhaustive Evolution of International Humanitarian Law
Direct Participation in Hostilities and the Evolution of Private Contracting
The concept of Direct Participation in Hostilities (DPH) is foundational to modern interventions, influencing how functions are sourced or outsourced within the international league. This concept has progressed to international treaty-making bodies as they consider the responsibilities, roles, and accountability of private contractors. These bodies also examine the obligations of the governments that oversee these contractors and the specific jurisdictions involved. The linkage between DPH and private security and maintenance contractors is viewed as a significant factor altering the nature of the modern conflict landscape.
The shifting nature of the conflict landscape brings new dynamics to the forefront regarding roles and responsibilities. New technologies coming into the conflict arena impact everything from military strategy to the contribution of smart committees. These advancements raise critical questions about whether existing legal frameworks remain appropriate for today's warfare. Specifically, in the context of hybrid warfare and cyber attacks, the question of what constitutes direct participation in hostilities becomes increasingly complex.
Historical Foundations of International Humanitarian Law and Early Technological Shifts
International Humanitarian Law (IHL) is often traced back to Henri Dunant, considered the father of the Geneva Convention. Dunant's experiences at the Battle of Solferino led him to write "A Memory of Solferino," a foundational text that motivated the creation of international treaties and frameworks to guide combatants and establish responding entities like the Red Cross. During the 19th century, conflicts were generally straightforward, featuring two armies facing off with conventional tools such as cannons and bayonets, with a brutal emphasis on close-quarters combat.
Significant transformations in conflict occur not only through modern gadgets but through a history of new platforms and waves of IT. The arrival of the airplane was a massive transformation for soldiers of that era, introducing long-distance capabilities and the ability to drop munitions from the sky. The First World War serves as a notable example of tough military strategy involving trench warfare. In this barbaric setting, thousands of troops would inhabit trenches, only to emerge upon a whistle to run across open fields under fire. This era acted as a testing ground for airplanes, tanks, and chemical weapons, such as gas sources, which left soldiers with few defenses.
Technological evolution continued through the Second World War with the development of the V1, V2, and V4 long-distance ballistic missiles. These unmanned weapons, famously used by Germany against the UK, changed the face of war by removing the necessity for clear line-of-sight between enemies. Historically, the battlefield was clear and the enemy was visible as a legitimate unformed soldier. However, war has always been in an evolutionary state involving relentless research and development (R&D) in the weapons industry aimed at creating tools for mass destruction or, theoretically, tools that reduce suffering.
Legal Mechanisms for Regulating Modern Weaponry: Article 36 Reviews
Article 36 of Additional Protocol I to the Geneva Conventions is a fundamental provision recognizing that new weapon developments must be reviewed, tested, and modified before deployment. This ensures that any weapon rolled out onto the battlefield respects the core provisions of IHL, including the principles of distinction, proportionality, and precaution. Even nations that are not party to Additional Protocol I, such as the United States, often maintain robust review processes. If a weapon cannot meet stringent IHL requirements, the basis of the policy is that it cannot be deployed.
While the majority of new weapons are used by governments, many are produced by private entities. It is essential that governments and private contractors work together to ensure these technologies comply with Article 36. An example of a prohibited weapon is the laser blinding weapon that causes permanent blindness. This weapon is deemed illegal because it causes unnecessary suffering; while a soldier may be taken out of battle, the permanent nature of the blindness destroys the individual's well-being for the rest of their life. This contrasts with tools like dazzle lasers used against helicopter pilots, which only cause temporary blurring of vision and are considered useful tactical alternatives.
The prohibition of certain weapons hinges on the concept of unnecessary suffering relative to tactical utility. High-caliber weapons that take limbs off or certain types of bayonets, such as tri-blades that are impossible for surgeons to sew up, are scrutinized through this lens. If a legitimate alternative exists that can accomplish a tactical need with less permanent impact, it must be considered. IHL recognizes that armed conflict involves loss of life and limb, but it aims to introduce a red line of humanity to prevent suffering that is not militarily necessary.
Conventions on Landmines, Cluster Munitions, and Environmental Modification
Anti-personnel landmines and cluster munitions are major topics in the regulation of weaponry. Cluster munitions, governed by a 2005 convention (though the transcript notes the majority joined by 2008), involve a "mother bomb" that releases many smaller submunitions. These are often unreliable, failing to detonate on impact and leaving dangerous duds post-conflict. While some militaries argue for their utility in destroying large targets like airstrips, most countries have signed the ban. The United States has not signed, but maintains policies regarding the reliability and targeting of these weapons, often aiming for reliability thresholds.
The Ottawa Convention governs the prohibition of anti-personnel landmines. The US reserved the right to use them in specific locations like the DMZ between North and South Korea. Recently, Ukraine has suspended its adherence to landmine prevention for operational reasons. Additionally, the Environmental Modification Treaty (ENMOD) from the 1970s prohibits the use of environmental modification techniques—such as creating floods, earthquakes, or droughts—for military or hostile purposes. While rarely discussed, this treaty exists because certain technologies were being developed by states that could have long-term, permanent negative consequences on a country's environment.
The Proliferation of Drones: Ethics, Attribution, and the Scope of the Battlefield
Drones became a dominant feature of warfare around 2008 and 2009, particularly in operations in Afghanistan and the border regions of Pakistan. While now widespread, they were initially a highly concerning technology. One significant issue involves strategic bombing: a drone can do damage and leave without those responsible being present to clean up the aftermath or provide support. From a humanitarian perspective, the attribution of attacks is a major problem; small drones can carry bombs or commercial explosives, allowing for attacks where no one takes responsibility.
A central legal dilemma regarding drones is the scope of the battlefield. Because drones have such long reach, they challenge traditional definitions of where a conflict occurs. For example, a hypothetical scenario involves the potential drone strike against a high-value target like Osama bin Laden if he were spotted on a beach in Mombasa, Kenya. If the Kenyan military is unable or unwilling to arrest the target, the question arises: does the "battlefield" extend to a holiday beach in a country not at war? In such debates, military actors have argued that they are allowed to use lethal force against a target, even if it risks the lives of international tourists, while humanitarian perspectives argue that the scope of conflict does not extend so far as to justify such collateral damage.
Ethical arguments also surround the use of drones, with some contending that there is a moral right to die at the hands of another human being who must consciously decide to take a life. The remote nature of drone operations—where pilots sit in boxes thousands of miles away in places like Nevada—creates a sterile, video-game-like environment that may distance the operator from the gravity of their decisions. Additionally, Amnesty International has noted that the constant presence of drones above a population can constitute psychological torture, as civilians live in fear of an impending strike they can hear but cannot prevent.
Autonomous Weapons Systems and the Ethics of AI in Conflict
Autonomous Weapons Systems (AWS), often referred to by critics as "killer robots," introduce automation into weapon systems so they can react to threats faster than humans. Most current systems are used in defensive modes, such as intercepting incoming missiles. However, the concern is that giving too much autonomy to a weapon allows a machine to identify and decide to kill a human target without a "human in the loop."
The International Committee of the Red Cross (ICRC) maintains a position focused on human control, accountability, and humanity. If a machine makes a lethal decision, it is unclear who is held accountable: the manufacturer, the programmer, the commander who deployed it, or the private contractor? IHL is addressed to humans and governments bound by the Geneva Conventions, and machines do not possess the discretion required to apply these laws. There is also a philosophical concern regarding the "Martens Clause," which suggests that even in the absence of specific laws, the "laws of humanity" and the "dictates of the public conscience" must apply.
Artificial Intelligence (AI) in conflict also presents specific technical risks, such as "hallucinations" where a tool produces incorrect findings. In a military context, an AI error could lead to the unintended targeting of a civilian site, such as a school. Furthermore, AI systems may not be sufficiently refined to make the critical distinction between civilians and combatants. As technology advances faster than law, the debate continues over whether technology can ever replace the human responsibility of weighing the pros and cons before launching a strike.
Hybrid Warfare and the Threshold of Armed Conflict
Modern warfare is increasingly characterized by "hybrid warfare," which involves sub-conflict, low-intensity disruption, and interventions below the level of traditional conventional force. This can include cyber attacks, misinformation, and economic warfare aimed at undermining national security interests. A major challenge for organizations like NATO is determining when hybrid warfare reaches the threshold to be classified as an armed conflict under IHL.
An International Armed Conflict (IAC) traditionally exists when two states use force against each other, such as through an invasion or a physical attack. However, in hybrid warfare, it is difficult to determine if a cumulative series of non-kinetic actions—like systematic misinformation and cyber attacks—constitutes an "armed attack" allowing for the right of self-defense under the UN Charter. The ICRC suggests that hybrid threats are governed by IHL only if they trigger an armed conflict by meeting specific levels of intensity and organization. This threshold is particularly interesting in conflicts involving non-state armed groups, as governments may apply a lower threshold to their responses than they would against another state.
Cyber Warfare: Defining Attacks and Legal Responses
Cyber warfare introduces the question of when a digital act constitutes an "attack" for the purposes of IHL. For many, an attack must cause death, injury, or physical destruction of property. If a cyber group, such as a hypothetical "Panther Group" operating out of a third nation, disables the entire US banking system, the resulting chaos could eventually lead to death as people lose access to food and essential services. However, there is no international consensus on whether this economic damage triggers the application of IHL.
In the scenario of a massive banking system failure, responses could be framed as law enforcement (counter-terrorism) or as a military operation under IHL. A law enforcement response focuses on de-escalation and proportionality, whereas an IHL framework allows for different rules regarding the use of lethal force. Complicating things further is the issue of distinction; if an attack targets a private bank, it might be seen as purely corporate, but if the bank is state-owned or the entire system fails, it becomes a national security issue. Cyber attacks also carry the risk of becoming uncontrollable, where a virus intended for a military target (like the Pentagon) might accidentally spread to civilian infrastructure.
The Role of Global Tech Corporations in Contemporary Armed Conflict
Private tech companies like Starlink and Microsoft have become integral to modern conflicts, such as in the war in Ukraine. Microsoft has provided data and alerts to the Ukrainian government regarding planned cyber or physical movements. This raises the question of whether a tech company providing military-relevant data becomes a legitimate military target. If a company's actions provide a measurable military advantage to one side, they risk being seen as losing their civilian protection.
The DPH criteria—threshold of harm, direct causation, and belligerent nexus—can be applied here. If a company like Starlink provides satellite capabilities that are used for specific battlefield activities, one party in the conflict might argue that the company is no longer a neutral bystander. As tech giants now have the capacity to influence the outcome of military operations, they must navigate the "red lines" of IHL to avoid becoming part of the conflict, an issue that has led companies to hire military advisors to understand the potential consequences of their support.
Questions & Discussion
Question from Student: Would the use of drones not be a better technology because they allow for more reconnaissance and could have avoided incidents like the US strike on an ICRC hospital?
Response: While a drone could have been useful for reconnaissance to prevent collateral damage, the counter-argument is that reconstructions were already done by forces in that specific case. The issue was often one of coordinates and whether an envoy was sufficiently signaled. Drones of various styles—underwater, aerial, small, and big—are currently being tested in Ukraine for things like medical evacuation and supplying food, which shows they have many beneficial uses if the parameters of IHL are respected.
Question from Student: Do people serving in the military have a say in how they get to die? Is there a right to be killed by another human rather than a machine?
Response: This is more of a philosophical and ethical question rather than a legal one. There is no law in the Geneva Conventions stating that a person must only be killed by another human. However, the ethical argument is that a machine removes the human element of discretion and the conscious moral decision-making process required to take a life. IHL requires precaution and humanity, which are human traits that machines cannot possess in the same way.
Question from Instructor regarding the Kenya Hypothetical: When I put the scenario of a drone strike in Kenya to a two-star general, his response was that they were allowed to target the individual and that the tourists would just have to handle it. He was working through a specific military doctrine, while I was raising a legal concern about the scope of the battlefield. It is vital to have spaces where military officers, humanitarians, and legal experts can debate these perspectives, as many armed forces in the world do not have a strong core of legal advisors to challenge command decisions.**