Attack Decision-Making

Proportionality is one of the most important civilian protection rules in the Law of Armed Conflict (LOAC). In an era when combat almost always occurs in areas with substantial civilian populations, the proportionality rule is critical to protecting civilians and civilian property from the incidental and collateral consequences of attacks directed at otherwise lawful targets. The proportionality rule, however, prohibits attacks against otherwise lawful military objectives only when the attacker anticipates that civilian casualties or destruction to civilian property will be excessive in relation to the concrete and direct military advantage anticipated from the attack. Application of the proportionality rule has triggered ongoing debates over the meaning of its constituent terms: What is a military advantage? How is military advantage to be valued? What qualifies as a concrete and direct advantage? When does the knowing infliction of civilian harm qualify as excessive? Considering criminal accountability adds another layer of complexity: What is the proper standard of assessing criminal responsibility based on a violation of this obligation? This chapter explores the relationship between the duty of obedience and the implementation of the proportionality obligation at the tactical level. Given that deliberate attack planning and dynamic targeting arise in different operational contexts, each requires a different implementation focus.

Emerging Technologies and the Principle of Distinction

This chapter assesses the need to reconsider the principle of distinction in light of advancements in technology. Various emerging technologies, including unmanned aerial systems, lethal autonomous weapons, and cyber capabilities, have already begun to test the principle of distinction. How will these and other emerging technologies impact the implementation of the principle of distinction under the Law of Armed Conflict?

Leveraging Emerging Technology for LOAC Compliance

Many of the current issues with the Law of Armed Conflict (LOAC) compliance are rooted in the limitation that parties to an armed conflict are only required to do what is “feasible” to protect civilians and civilian objects during hostilities. This would, of course, apply to the employment of emerging technologies. However, an understanding of feasibility that is enlightened by the use of emerging technologies will dramatically increase the effectiveness of steps which parties to an armed conflict can take to protect the civilian population. Further, the effectiveness and ease of application of these emerging technologies should be reflected in what the international community accepts as feasible actions by the parties to an armed conflict.

The Other Side of Autonomous Weapons

The role of autonomy and artificial intelligence (AI) in armed conflict has sparked heated debate. The resulting controversy has obscured the benefits of autonomy and AI for compliance with international humanitarian law (IHL). Compliance with IHL often hinges on situational awareness: information about a possible target's behavior, nearby protected persons and objects, and conditions that might compromise the planner's own perception or judgment. This chapter argues that AI can assist in developing situational awareness technology (SAT) that will make target selection and collateral damage estimation more accurate, thereby reducing harm to civilians. SAT complements familiar precautionary measures such as taking additional time and consulting with more senior officers. These familiar precautions are subject to three limiting factors: contingency, imperfect information, and confirmation bias. This chapter breaks down SAT into three roles. Gatekeeper SAT ensures that operators have the information they need. In each of the three contexts, SAT can help fulfill IHL's mandate of “constant care” in the avoidance of harm to civilian persons and objects.

Lethal Autonomous Weapons Systems

The rise of lethal autonomous weapons systems creates numerous problems for legal regimes meant to ensure public accountability for unlawful uses of force. In particular, international humanitarian law has long relied on enforcement through individual criminal responsibility, which is complicated by autonomous weapons that fragment responsibility for decisions to deploy violence. Accordingly, there may often be no human being with the requisite level of intent to trigger individual responsibility under existing doctrine. In response, perhaps international criminal law could be reformed to account for such issues. Or, in the alternative, greater emphasis on other forms of accountability, such as tort liability and state responsibility might be useful supplements. Another form of accountability that often gets overlooked or dismissed as inconsequential is one that could be termed “administrative accountability.” This chapter provides a close look at this type of accountability and its potential.

High-Tech Civilians, Participation in Hostilities, and Criminal Liability

The challenge presented by civilians on, near, and affecting the battlefield is an enduring issue in the Law of Armed Conflict (LOAC). At its core, the LOAC seeks to protect civilians from the dangers of hostilities. The challenge, then, involves adhering to this general respect and protection standard, while balancing the need to send forces (which may include civilian members) to prosecute armed conflicts (which may involve enemy civilian participants). As advancements in technology and a growing dependence on civilian expertise in armed conflict begin to blur the distinction between civilian activity and direct participation in hostilities, how will military forces ensure civilians are properly protected on the battlefield? At what point does civilian involvement in military operations become direct participation in the conflict?

Invisible Soldiers

The idea of invisibility has long tantalized the human imagination. Once considered fantastical, recent advances have edged technology closer to the possibility of invisibility. On the battlefield, invisibility technology could be used to cloak soldiers and military equipment without restraining the mobility or manoeuvrability of troops and equipment. These developments necessitate a consideration of how the Law of Armed Conflict should be interpreted and applied to the use of invisibility technology in warfare. In particular, invisibility raises questions concerning how to determine when the use of invisibility technology has crossed from lawful ruse to prohibited act of perfidy. This chapter explores how the use of invisibility to conceal the causal connection between an act of perfidy and an attack may fall within a grey area of the law.

The Law of Armed Conflict Implications of Covered or Concealed Cyber Operations

This chapter addresses the complex Law of War issues of distinction as applied to cyber operations. Cyberspace is now widely recognized as an operational domain of conflict and states are adopting cyber capabilities and operational constructs as means and methods of warfare at an increasing rate. Owing to the nature of this new and unique domain, operations security is at a premium. The use of cover and concealment and, at some level, the deception inherent thereto directly implicates in novel ways the traditional LOAC rules designed to ensure respect for the principle of honor in the conduct of hostilities and to protect civilians and civilian objects from the dangers of war. These rules must be interpreted in light of the unique aspects of cyberspace and the distinctive challenges it poses. A better understanding of how the cardinal principle of distinction and the LOAC rules meant to implement it awaits elucidation through state practice and opinion. In the meantime, thoughtful discussion and detailed analysis of the issues of perfidy, ruses, and the passive precautions rule are necessary to ensure that the spirit and intent of the LOAC are properly balanced against military necessity.

Assessing LOAC Compliance and Discourse as New Technologies Emerge

This chapter explores the consequences for effective discourse about the Law of Armed Conflict (LOAC) compliance of new technologies that intentionally or effectively mask the effects of an attack, the location or identify of the attackers, or even the very existence of an attack during armed conflict. The emergence of new weapons technologies that hinder or eliminate our ability to see the effects of attacks, to make the necessary connections between cause and effect, or to even identify the existence of an attack, may well erode the current trend towards the use of effects-driven, outcome-based analysis, which, although incorrect as a matter of law, nonetheless has captured attention. Examining how legal compliance can or would be assessed in such situations of new technologies is therefore useful to help enhance both implementation and analysis of the law. The chapter first frames the problem that new technologies may pose for assessing LOAC compliance, highlighting what may be, in essence, a new “effects problem.” These problems include situations where the effects of an attack are unclear or cannot be seen at all, where the connection between the weapon or attacker and the effects cannot be identified, and where a harm may occur but it is unclear or impossible to tell that there was an attack. The chapter then addresses the consequences of this potential new “effects problem,” examining the challenges of legal analysis in the absence of externally identifiable information about what happened, who suffered what effects, or who launched what type of weapon or attack. In addition, the chapter seeks to identify pressure points for LOAC analysis in the context of new technologies that place stressors on the traditional tools and touchstones of legal analysis.

Regulating New Weapons Technology

When confronted with a new weapons technology, international law scholars, military lawyers, and civil society activists regularly ask two questions: Are new regulations needed? Are they needed now? This chapter reviews the main categories of technology-fostered legal disruption; tackles the question of whether a given technology will require new law; and weighs the respective benefits of precautionary bans, a wait-and-see approach, and proactive regulation.