Routledge Handbook of War, Law and Technology

James Gow, Ernst Dijxhoorn, Rachel Kerr, Guglielmo Verdirame, James Gow, Ernst Dijxhoorn, Rachel Kerr, Guglielmo Verdirame

• Publisher: Routledge
• Year: 2019
• eBook ISBN: 9781351619974
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Military & Maritime History
• Index: Politics & International Relations

This volume provides an authoritative, cutting-edge resource on the characteristics of both technological and social change in warfare in the twenty-first century, and the challenges such change presents to international law.

The character of contemporary warfare has recently undergone significant transformation in several important respects: the nature of the actors, the changing technological capabilities available to them, and the sites and spaces in which war is fought. These changes have augmented the phenomenon of non-obvious warfare, making understanding warfare one of the key challenges. Such developments have been accompanied by significant flux and uncertainty in the international legal sphere. This handbook brings together a unique blend of expertise, combining scholars and practitioners in science and technology, international law, strategy and policy, in order properly to understand and identify the chief characteristics and features of a range of innovative developments, means and processes in the context of obvious and non-obvious warfare. The handbook has six thematic sections:

• 
  
  

• Law, war and technology

• 
  
  

• Cyber warfare

• 
  
  

• Autonomy, robotics and drones

• 
  
  

• Synthetic biology

• 
  
  

• New frontiers

• 
  
  

• International perspectives.

This interdisciplinary blend and the novel, rich and insightful contribution that it makes across various fields will make this volume a crucial research tool and guide for practitioners, scholars and students of war studies, security studies, technology and design, ethics, international relations and international law.

1

INTRODUCTION

Technological innovation, non-obvious warfare and challenges to international law

Rachel Kerr

We are experiencing a period of immense upheaval in all spheres of human existence. In this context, it is not surprising that war too is undergoing rapid and dramatic change. Over the last few decades, received images of conventional war based on highly organised and trained forces engaged in a ‘duel’ have become almost entirely outdated. Whether characterised in terms of so-called ‘new wars’,¹ Revolutions in Military Affairs,² hybrid wars,³ virtual wars,⁴ human wars,⁵ spectator-sport wars⁶ and wars among the people,⁷ the image of war has shifted radically from the twentieth century experience of major inter-state war to a twenty-first century dominated by wars within as well as among states and involving a complex mix of state and non-state actors. These wars are often categorised in terms of what they are not rather than what they are, including ‘non-state’,⁸ ‘non-obvious’ and ‘non-linear’ wars, such as those in Crimea and eastern Ukraine.⁹

At the same time, the context in which technological and scientific innovation is occurring is itself rife with new ambiguities. Media of all kinds, both traditional and the new social media, play a dominant role in the ways in which military operations are perceived and supported (or not) by publics who consume a constant stream of information and commentary – some of it in the form of powerful and shocking visual imagery streamed around the world even as events are unfolding. Meanwhile, violations of international law give rise not only to state responsibility, but also to individual criminal responsibility and there has been a proliferation of mechanisms for accountability, including the establishment of a permanent International Criminal Court, operational from July 2002. Legal scrutiny and argumentation has given rise to what some have called ‘Lawfare’¹⁰ and others the ‘judicialisation of war’,¹¹ demonstrated most pertinently in the still ongoing ‘fury of litigation’ that followed the ill-fated 2003 Iraq War.

In many respects, international law and politics have been found wanting. The war in Syria demonstrated the limits of international action when the UN Security Council is divided. In the context of the so-called ‘war on terror’, it was argued that international law was at once too weak – not up to the challenge of preventing atrocities – and outdated, or ‘quaint’ in the face of the new challenges wrought by a globalised terrorist threat. A major area of contention concerns the range of new technologies that have entered the battlefield in the last decades, which challenge both our understanding of the use of kinetic force and the state-centric paradigm central to the laws of war. We are at the beginning of a curve of intense technological change; unsurprisingly, predicting where these processes will take us is largely a speculative exercise. Some technological developments, ‘cyber war’ for example, challenge our existing categories so profoundly that one wonders whether they still come under the broad umbrella of ‘war’.¹² Other technologies, such as synthetic biology, have not yet entered the battlefield but their destructive potential is such that prevention seems at first glance to be the only sensible strategy.

These technologies are transforming the modern battlefield. A central concern for international lawyers and military practitioners alike is whether and how existing laws governing armed conflict – the Law of Armed Conflict (LOAC) or International Humanitarian Law (IHL) – are applicable to new and emerging technologies in the context of contemporary war. What is the effect of these developments on the international law of war – and on the ethical ideas that animate it? Do these changes call for more than evolving interpretations of existing principles and rules? Is there anything inherently new or different about the range of new technologies in a military context and the dilemmas they raise, or are they merely an extension of the challenges we have already identified. In other words, do they cause new problems or simply exacerbate old ones?

The book

This handbook investigates the characteristics of technological and scientific innovations in the context of obvious and non-obvious warfare, exploring their legal, ethical, and strategic dimensions. The questions it examines are important and complex. They have often been considered within the confines of specialist disciplines with little genuine cross-departmental interaction. By contrast, this handbook attempts to create a new and common ground for scholarly debate among lawyers, policy specialists, and the science and technology community, with experts from different fields invited to develop reflections that transgress traditional academic boundaries.

The interdisciplinary nature of the book marks it out from the various books on the law of armed conflict and new military technologies published over the last few years. It is not the aim of this book to map out the legal issues around new technologies in a systematic way. The objective is, rather, to stimulate new thinking about these developments, and address the big strategic, technological, legal and policy questions behind them. As with every genuinely interdisciplinary project, the editors faced a challenge – both substantive and presentational. The project was greatly assisted by the fact that editors and contributors – together with other participants – presented drafts of their chapters in two workshops and by the skill and flexibility of the individual authors – all experts in their respective fields. The workshops, and other aspects of the research that led to this book, were funded through a grant from the UK Research Councils and the Defence, Science and Technology Laboratory (DSTL), part of the UK Ministry of Defence’s Science and Security Programme. The result (we hope readers will agree) is a book that provides insight into the key challenges posed by the advent of new technologies in the shifting contexts of obvious and non-obvious wars.

The handbook is organised in six parts:

I Law, War and Technology

II Cyber Warfare

III Autonomy, Robotics and Drones

IV Synthetic Biology

V International Perspectives

VI New Frontiers

Part I examines the context in which discussions about technological change are taking place, focusing on the existing international legal framework, on the process of political contestation in the creation of new law, and on the legal and technical framework in which new means of warfare are developed. In Chapter 2, James Gow and Ernst Dijxhoorn review changes in the strategic and legal landscape in which technological change must be accommodated and understood – referred to elsewhere in terms of a Transformation of Strategic Affairs.¹³ Contemporary war is different in that wars are no longer fought for decisive victory by two, or more, state-armies meeting on the battlefield; almost all wars now involve non-state actors alongside or against the state and are fought ‘among the people’.¹⁴ In this context, the key to success is the ability to create and maintain legitimacy and every decision has the potential to have strategic impact. Complicating the picture further is the power of strategic communication (including mis-information) via all types of media, deployed by states and non-state actors, and amplifying the reach of the latter, and an increasingly blurred picture of who is waging war, how and when. Modalities of technological change, discussed in elsewhere in the Handbook, must therefore be understood against this background.

In Chapter 3, Bill Boothby presents an historical overview of the legal and institutional framework governing the introduction of new weapons technology. As Boothby makes clear, these are not developed, procured and fielded in a legal vacuum. International law includes rules that prohibit certain weapons entirely in armed conflict, while others are the subject of restrictions as to the circumstances in which they can lawfully be employed. Critical to this body of weapons law are the two established principles of humanity and military necessity. The rules of the law regulating weapons represent the balance that states have struck between these conflicting interests, a balance that will vary from weapon to weapon depending on how states perceive the military need associated with the weapon and how they interpret the humanitarian concerns that have motivated the legal provision in question. He concludes by considering the particular problems posed by the development of automated weapons, where at the present time, a human remains in the loop but any developments lead to fully autonomous systems, it will need to be determined that the machine can successfully negotiate the complex decision-making process involved. In Chapter 4, Tony Gillespie, formerly of DSTL, turns the question around and considers what the review process looks like from the point of view of a technologist and how, in practice, states comply with Article 36 of Additional Protocol I to the Geneva Conventions, which obliges them to review new means and methods of war during the procurement process. Gillespie continues the focus on autonomy of the previous chapter, and examines the ever-more extensive use of automated decision-support tools in the military command and control (C2) chain. Gillespie argues that the use of a weapon cannot be separated from the surrounding system, but at the same time, there must be clear boundaries to the weapon under review otherwise review risks becoming an open-ended process. Finally, in this section, Brian Rappert steps back and considers the underlying principles and motivations behind the regulation of new weapons technologies. Scientific and technological developments are often accompanied by legal, political, and social concerns. In the context of armed conflict, this is manifested in moral and humanitarian apprehension about the ‘harm’ caused by new weapons technologies. Autonomous weapons systems, direct energy weapons, and cyber warfare are but a few of the areas that have generated such concerns in recent years. In the past, these concerns have been accommodated within the framework of international humanitarian law, and the debate has been predicated on the balance of military necessity and humanity that sits at the core of that body of law. As Boothby demonstrates in his chapter, the balancing of these principles has underpinned regulation of armed conflict, evidenced in a number of specific legal rules. Rappert proposes a radical shift, however, to an alternative normative framework that takes as its starting point not whether new technologies should be argued ‘out’ but rather that the case needs to be made for allowing them ‘in’.

In Parts II, III and IV, the contributors examine a range of new technologies and the challenges they pose to international law. In Chapters 6 and 7, Elaine Korzak and James Gow address the problem of cyber warfare, interrogating first the concepts of armed conflict and armed attack to determine on what basis and under which circumstances the law of armed conflict applies to computer network attacks (CNAs) and then, where it does apply, how are principles of distinction and proportionality applied in situations characterised by ambiguity and attrition. Overall, they find that, while significant progress has been made on finding ways to apply the law to cyber warfare, the unique features of these new types of attacks, particularly their non-kinetic mode of operation, their range of possible effects, and their perceived anonymity, create significant difficulties for the application of international law. Even if issues of distinction and proportionality can be resolved, and there are difficulties there, as Korzak and Gow outline in Chapter 7, the problem of attribution for computer network attacks may yet make such determinations moot since there is no possibility of pursing legal recourse without an identified perpetrator. In Chapter 8, Marco Roscini delves deeper into issues around proportionality in relation to targeting in cyber operations, arguing that such operations offer opportunities as well as challenges. Roscini compares two parameters (incidental damage on civilians and civilian property on the one hand, and the attacker’s concrete and direct military advantage on the other) of different nature but of equal standing in specific attacks, asking what does ‘damage’ and ‘military advantage’ mean in the cyber context?

Chapter 9 shifts the focus to ‘big’ data and digital intelligence. As Sir David Omand argues, the actions of Edward Snowden pushed the legal and moral issues associated with intelligence collection in the digital age to the forefront of public debate. Given the origin of the material, much of the debate centred on the United States, but the methods of ‘bulk access’ to internet data and analysis of metadata have raised privacy operations elsewhere as well. Omand’s chapter focuses on the UK’s regulatory systems, depicted as ‘broken’ by critics, and demonstrates that in fact, the British political and legal frameworks that regulate surveillance and intelligence activities place important limitations on the collection of, and access to, data by UK civil servants both in the UK and in the wider world. Given that intelligence support to military and counterterrorism operations will require digital means in the information age, the regulatory systems that constrain intelligence gathering activity are necessary for ongoing legitimacy. The final chapter in this section, by James Gow (Chapter 10) returns to the domain of cyber warfare. Amid the discussions about how existing law might be applied, or where new law might be needed, two highly important factors have largely been ignored. The first of these is the relationship between offence and defence in cyber warfare, where governments are in the business of building robust defensive infrastructure but the advantage lies squarely with the individual able to launch an offensive attack. The second concerns the human factor; that is, for all the legal and technical discussion that there might be, the key to cyber success or failure largely rests at the level of the individual. Minor human errors or unilateral acts of destruction can have major consequences.

Part III returns to the highly contentious issues around the use of automated, autonomous and semi-autonomous weapons systems, briefly discussed in Chapter 3. Thrish Nanayakkara opens the section with an explanation of the technology of automation and how autonomy and rationality are conceptualised in the world of robotics. Contrary to traditional belief that humans are autonomous beings who can take rational decisions, ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of figures
• List of tables
• List of contributors
• Preface and acknowledgements
• 1 Introduction: technological innovation, non-obvious warfare and challenges to international law
• PART I: Law, war and technology
• PART II: Cyber warfare
• PART III: Autonomy, robotics and drones
• PART IV: Synthetic biology
• PART V: New frontiers
• PART VI: International perspectives
• Index