Autonomous weapon systems and international humanitarian law: a reply to the critics

In November 2012, Human Rights Watch, in collaboration with the International Human Rights Clinic at Harvard Law School, released Losing Humanity: The Case against Killer Robots.[2] Human Rights Watch is among the most sophisticated of human rights organizations working in the field of international humanitarian law. Its reports are deservedly influential and have often helped shape application of the law during armed conflict. Although this author and the organization have occasionally crossed swords,[3] we generally find common ground on key issues. This time, we have not. “Robots” is a colloquial rendering for autonomous weapon systems. Human Rights Watch’s position on them is forceful and unambiguous: “[F]ully autonomous weapons would not only be unable to meet legal standards but would also undermine essential non-safeguards for civilians.”[4] Therefore, they “should be banned and . . . governments should urgently pursue that end.”[5] In fact, if the systems cannot meet the legal standards cited by Human Rights Watch, then they are already unlawful as such under customary international law irrespective of any policy or treaty law ban on them.[6] Unfortunately, Losing Humanity obfuscates the on-going legal debate over autonomous weapon systems. A principal flaw in the analysis is a blurring of the distinction between international humanitarian law’s prohibitions on weapons per se and those on the unlawful use of otherwise lawful weapons.[7] Only the former render a weapon illegal as such. To illustrate, a rifle is lawful, but may be used unlawfully, as in shooting a civilian. By contrast, under customary international law, biological weapons are unlawful per se; this is so even if they are used against lawful targets, such as the enemy’s armed forces. The practice of inappropriately conflating these two different strands of international humanitarian law has plagued debates over other weapon systems, most notably unmanned combat aerial systems such as the armed Predator. In addition, some of the report’s legal analysis fails to take account of likely developments in autonomous weapon systems technology or is based on unfounded assumptions as to the nature of the systems. Simply put, much of Losing Humanity is either counter-factual or counter-normative. This Article is designed to infuse granularity and precision into the legal debates surrounding such weapon systems and their use in the future “battlespace.” It suggests that whereas some conceivable autonomous weapon systems might be prohibited as a matter of law, the use of others will be unlawful only when employed in a manner that runs contrary to international humanitarian law’s prescriptive norms. This Article concludes that Losing Humanity’s recommendation to ban the systems is insupportable as a matter of law, policy, and operational good sense. Human Rights Watch’s analysis sells international humanitarian law short by failing to appreciate how the law tackles the very issues about which the organization expresses concern. Perhaps the most glaring weakness in the recommendation is the extent to which it is premature. No such weapons have even left the drawing board. To ban autonomous weapon systems altogether based on speculation as to their future form is to forfeit any potential uses of them that might minimize harm to civilians and civilian objects when compared to other systems in military arsenals

Peacetime cyber responses and wartime cyber operations under international law: an analytical vade mecum

Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations examines the application of extant international law principles and rules to cyber activities occurring during both peacetime and armed conflict. It was intended by the two International Groups of Experts that drafted it to be a useful tool for analysis of cyber operations. The manual comprises 154 Rules, together with commentary explaining the source and application of the Rules. However, as a compendium of rules and commentary, the manual merely sets forth the law. In this article, the director of the Tallinn Manual Project offers a roadmap for thinking through cyber operations from the perspective of international law. Two flowcharts are provided, one addressing state responses to peacetime cyber operations, the other analyzing cyber attacks that take place during armed conflicts. The text explains each step in the analytical process. Together, they serve as a vade mecum designed to guide government legal advisers and others through the analytical process that applies in these two situations, which tend to be the focus of great state concern. Readers are cautioned that the article represents but a skeleton of the requisite analysis and therefore should be used in conjunction with the more robust and granular examination of the subjects set forth in Tallinn Manual 2.0

"Virtual disenfranchisement": cyber election meddling in the grey zones of international law

This Article examines remotely conducted election meddling by cyber means in the context of international law and asks whether such cyber operations qualify as "internationally wrongful acts." An internationally wrongful act requires both a breach of a legal obligation owed by one State to another under international law and attribution of the act to the former. The Article considers three possible breaches related to such meddling-violation of the requirement to respect sovereignty, intervention into the internal affairs of another State, and, when the cyber operations are not attributable to the State from which they were launched, breach of the due diligence obligation that requires States to ensure cyber operations with serious adverse consequences are not mounted from their territory. The Article then examines the various modalities for attributing a cyber operation to a State under international law. Whether cyber meddling in another State's election is unlawful, as well as the severity thereof, determines the range of responses available to the victim State. The Article concludes that the law applicable to remotely conducted meddling in another State's election is unsettled, thereby comprising a normative grey zone ripe for exploitation by States and non-State actors

The North Atlantic alliance and collective defense at 70: confession and response revisited

The North Atlantic Treaty was largely a response to global sentiment that other international organizations, namely the United Nations, were not accomplishing their intended purpose of the maintenance and promotion of peace and order in the world. This had a magnifying effect due to the global trauma and destruction that had been witnessed by the world following World War II. This Article visits the realities of history that led to the formation of NATO as a collective measure for self-defense and the effectiveness it had as a response to global concern of peace preservation. Importantly, this Article analyzes the substantive military functioning articles of the North Atlantic Treaty, namely Article 5. This Article serves to provide a reflection on the instability and overwhelming concerns that motivated the creation of NATO and its rippling effect felt globally as a responsory action. Lastly, this Article positions collective self-defense in the context off issues faced in 2019 and how it serves to respond to them

International humanitarian law and the targeting of non-state intelligence personnel and objects

This Article examines the targetability of individuals and organizations performing intelligence functions for a non-State group involved in an armed conflict. Specifically, it considers the circumstances under which they lose the international humanitarian law (IHL) protections from, and during, attacks that they would otherwise enjoy as civilians. To do so, the piece deconstructs IHL’s “organized armed group” construct to determine when an intelligence organization can be characterized as a component thereof. Noting that some non-State groups consist of both entities involved in the hostilities and organizations having no relationship to them, the Article introduces the concept of a non-State group’s “overall OAG,” a notion that parallel’s the characterization of a State’s various military units as its “armed forces.” Additionally, the Article assesses the circumstances under which individuals engaged in activities intelligence who are not members of an OAG may be targeted on the basis of their “direct participation in the hostilities.

The law of cyber targeting

Cyber technology on the battlefield has outpaced the law, or at least full understanding of how extant law governs emerging capabilities—a strategically perilous state of affairs

Wired warfare 3.0: protecting the civilian population during cyber operations

As a general matter, international humanitarian law is up to the task of providing the legal framework for cyber operations during an armed conflict. However, two debates persist in this regard, the resolution of which will determine the precise degree of protection the civilian population will enjoy during cyber operations. The first revolves around the meaning of the term “attack” in various conduct of hostilities rules, while the second addresses the issue of whether data may be considered an object such that operations destroying or altering it are subject to the prohibition on attacking civilian objects and that such effects need be considered when considering proportionality and the taking of precautions in attack. Even if these debates were to be resolved, the civilian population would still face risks from the unique capabilities of cyber operations. This article proposes two policies which parties to a conflict should consider adopting in order to ameliorate such risks. They are both based on the premise that military operations must reflect a balance between military concerns and the interest of States in prevailing in the conflict