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Challenges New Weapons and Humanitarian Assistance Present for International Law

Editor’s Note: This is the fourth post in a miniseries about the International Committee of the Red Cross’s newly released Report on International Humanitarian Law and the Challenges of Contemporary Conflicts. Other pieces in the series can be found here, here, and here.

In this fourth and final post in a series reflecting on the International Committee for the Red Cross’s just-released Report on International Humanitarian Law and the Challenges of Contemporary Conflicts, I’ll address a mixed bag of issues discussed in the report: new weapons, challenges to humanitarian assistance, and some thoughts about how and why the United States could benefit from greater openness to the ICRC’s perspectives.

New Weapons: Cyber Warfare

The ICRC report affirms the near-global consensus that pre-existing rules of international law apply to cyberspace, including IHL to cyber warfare. It notes that “asserting that IHL applies to cyber warfare is not an encouragement to militarize cyberspace and should not, in any way, be understood as legitimizing cyber warfare.” The ICRC was too diplomatic to say so, but the reason it needed to make this obvious point is that some states have asserted that accepting application of IHL legitimizes cyber warfare. Of course, their argument is no more valid than is the false claim that the Geneva Conventions (to which all States are party) legitimizes warfare. In either case, the UN Charter’s prohibition on the use of force in international relations still applies.

The ICRC also correctly and helpfully notes that “cyber warfare” is to be distinguished from “cyber attacks,” most of which have nothing to do with armed conflict, and therefore do not implicate IHL. The tough question is at what point cyber operations are occurring in the context, or trigger the application, of IHL. The answer to this question will dictate whether there are broad or narrow rights to use lethal force and detention powers, among other things. One view recounted in the ICRC report is that in order to trigger IHL, “operations against a computer or a computer system through a data stream” should have kinetic effects, such as disabling or destroying a power grid. The ICRC, however, also considers that attacks with no direct kinetic effects, such as disabling a banking system or stock exchange, might also either trigger, or be part of, an armed conflict to which IHL applies.

Assuming the context is armed conflict, the next question is whether a cyber attack amounts to an attack as that term is used in IHL. The IHL principle of distinction restricts attacks to military objectives. Indeed, attacking civilians or civilian objects is a war crime. It’s perhaps counterintuitive that only if an action constitutes an attack under IHL, will IHL prohibit the targeting of civilians.

The ICRC notes that the debate here centers on whether physical damage is required to constitute an “attack,” or whether loss of functionality of an object can suffice. Again, the ICRC takes the latter view. For example, a cyber attack from a party to a conflict that physically damages a civilian’s computer is certainly an attack. In the ICRC’s view, one that disables her computer without physical damage is also an attack. But a cyber attack that merely destroys certain data (e.g., erases her blog post that calls for taking up arms against the enemy) is not an attack. Even here, however, the ICRC would apply the principle of distinction:

Even cyber operations that would constitute “military operations” without amounting to “attacks” per se are governed by the principle of distinction. According to this principle, there is an obligation to distinguish at all times between civilians and civilian objects on the one hand, and military objectives on the other, and to take constant care in the conduct of military operations to spare the former.

The Tallinn Manual on the International Law Applicable to Cyber Warfare, however, takes the opposite view. (Speaking of which, the ICRC was an observer in the development of the Tallinn Manual and might have given it more recognition in its report.) The manual has fast become a respected source of guidance for policymakers and practitioners working in the cyber field. (Full disclosure: while I was not a member of the panel of experts responsible for the Tallinn Manual, I am a member of the group writing Tallinn2, which will cover a broader spectrum of international law applicable to a broader spectrum of cyber activities.)

The great complication in the cyber realm is that the military and civilian nature of both the infrastructure of cyberspace and the functions it performs are highly intertwined. While there may be military advantage in destroying tax records or interrupting the function of power grids through cyber means, the IHL principles of proportionality (the military advantage must outweigh the civilian harm) and the prohibition of indiscriminate attacks would normally rule out the legality of such attacks. As for whether tax records or power grids could be military objectives in the first place, it makes no difference whether the means of attack are “kinetic” or cyber.

New Weapons: Autonomous Weapon Systems

The ICRC also addresses the challenges to fundamental IHL rules of distinction, proportionality, and precautions in attack posed by autonomous weapons that can select and attack targets without human intervention. But there’s an elephant that goes unaddressed in this section: the need to analyze remote targeting methods that may not be purely autonomous, such as drones, in a way that acknowledges their similarities to autonomous weapons. The ICRC notes that autonomous weapon systems are distinguished from armed drones in which “critical functions” are controlled remotely by a human operator. Nothing more is said about drones as a means of targeted killing. Instead of merely distinguishing drones from autonomous weapons, the ICRC might have also addressed how availability and use of both remote and autonomous weapons affect not just the application of rules of distinction, proportionality, and precautions in attack, but also the very calculus of killing, and therefore, the cost of entry to war.

Here, it’s worth stepping back for a broader perspective than the ICRC’s narrow focus on what rules apply once war begins. Having worked for the ICRC abroad, I’ve come to see that European and American military sensibilities about IHL differ. I suspect that in Europe, where there is living memory of the horrendous effect of war on civilian populations, there is a greater emphasis on the humanitarian, civilian protection functions of IHL than there is within the US military. In the US military, which since the Civil War has fought all its wars on someone else’s soil, there is greater focus on the force protection aspects of IHL. Readers interested in this alleged dichotomy may want to check out the recent Just Security forum on the US Law of War Manual and compare the manual to its relatively brief, clear, and concise UK counterpart.

Remote killing is a manifestation of, and a means of furthering, the emphasis on force protection over civilian protection. Not only is there virtually no risk of American civilian casualties, but we now also minimize, if not eliminate, the risk of American military casualties. This, in turn, increases the incentive to resort to force and decreases our incentive and ability to apply force with proper regard to the traditional rules of distinction, proportionality, and precautions. While some tout the enhanced ability of drones to select targets, others note that knowledge of the drone’s constant presence overhead is itself a source of terror to all those who live under it. In addition, whether a weapon is autonomous or merely remote, its use is only as good as operators’ or programmers’ abilities to properly apply intelligence to law. In the absence of reliable information on the ground, mistakes are and will continue to be abundant.

US assertions that drones improve compliance with international law are an exercise in self-deception. They do not account for the “reduced cost of entry” factors. More specifically, counting non-targeted casualties as “enemies killed in action” in the absence of evidence to the contrary obviously reduces our tally of “collateral damage,” and may well increase our tolerance for it, but just as obviously does not reduce the fact of such damage. In addition to the violence this does to the letter and spirit of the law, there is the incalculable, but logical nexus to two policy considerations. First, the more people we kill, and especially when we do so in error, the more enemies we make. Second, the more we take liberties with the jus ad bellum (international law governing the right to use force in international relations) and the jus in bello (IHL, or the rules governing the means and methods of hostilities and the protections due to non-combatants), the more other States and non-State armed groups will be justified in doing so.

So, while I would not have expected the ICRC to point fingers at any particular country, the humanitarian organization could have noted that both remote and autonomous weapons pose grave challenges to international peace and security due to the pressures they inevitably exert on jus ad bellum and jus in bello.

Challenges to Humanitarian Assistance

Here, the ICRC engages in a detailed exposition of what IHL says about humanitarian assistance in armed conflict, but says little about the aspects of contemporary conflict that increasingly narrow what some call the “humanitarian space.” I’ll note three factors and address one in greater detail.

The nature of war has changed radically since the Geneva Conventions were promulgated and the ICRC was founded over 150 years ago. One change is that wars are rarely fought by the armed forces of one State against those of another. The vast majority of post-World War II armed conflicts have involved non-State armed groups fighting States or each other. Second, and related to the first, as armed conflicts have become increasingly asymmetric (i.e., one party having great military advantage over another) and the province of non-State armed groups, civilians have increasingly become not mere collateral damage, but in fact, the object of attack. There are several reasons for this. For example, terrorists attack civilians because they cannot attack the enemy’s armed forces, and ethnic and religious conflicts necessarily pit civilian populations against each other. Third, legislation that criminalizes support for terrorism fails to adequately carve out an ability of parties to armed conflict — not to mention the right of initiative of neutral, independent entities — to provide humanitarian assistance and protection.

States can do much more to satisfy their own obligations to provide and permit humanitarian assistance and protection to civilians affected by war. And they can do more to hold non-State armed actors accountable for impeding assistance and protection. But where they can do the most to ease the pressures on humanitarian action is in the realm of domestic counterterrorism legislation.

The US makes it a crime to provide “material support” to specially designated terrorist organizations. The law is without limit to the nationality of the accused or where on earth the support is provided. Thus, a French Doctors Without Borders truck driver carrying medical supplies for its hospital in Afghanistan may well want to think twice about coming to the United States for vacation if he has had to pay a “toll” at an al-Qaeda checkpoint along the way. This is so even though under IHL, medical personnel and facilities are entitled to special protections that go beyond that merely accorded to civilians generally. Unfortunately, the protection against attack provided by IHL does not amount to a protection against prosecution. While the likelihood that the truck driver would, in fact, face prosecution in the US is remote, compliance with counterterrorism laws makes the delivery of humanitarian aid difficult to populations under the control of foreign terrorist organizations. Such laws may have a chilling effect on the willingness and ability of those who wish to do humanitarian work in conflict zones.

The ICRC notes that despite the existence of a specific protective regime for medical personnel and facilities, “violence, interference and threats against medical personnel, facilities and transports are widespread in contemporary armed conflicts and have a major impact on the access of the wounded and sick to medical care.” One would not expect the ICRC to single out the US attack on the Doctors Without Borders hospital in Kunduz, Afghanistan earlier this year. But it is not unreasonable to suspect, especially with no investigative results as yet made public by the US, that the criminalization of humanitarian action may be contributing to the diminishment of respect for the medical mission.

Final Thoughts

In these four posts, I’ve sought to summarize some of the important points the ICRC made in its Contemporary Challenges Report and what more it could have said. Most importantly, I’ve tried to add what I think it could not or would not say in a public forum, not least because the ICRC is a humanitarian, rather than advocacy organization. As an American interested in US compliance with international human rights and humanitarian Law, I’ve concentrated especially on what needs to be said to the US, given its poor post-9/11 history of compliance with its international legal obligations.

The ICRC is a venerable institution. As the guardian of IHL, it has great and well-earned credibility among States for the interpretation of law applicable to armed conflict. Since 9/11, the reputation of the US for leadership in the realm of human rights has suffered. Some may suggest that this is an acceptable consequence in the search for security in the age of international terrorism. Others, myself included, suggest that human rights and security are not two elements of a zero-sum game, with the increase of one coming at the expense of the other. In fact, just the opposite. Slacking on compliance with IHL and human rights law — as in overly broad assertions of war, denial of application of human rights law, failure to adequately distance ourselves from the failed legacy of Guantánamo, torture, and military commissions — breeds blowback against us and lowers the bar for others. Better US compliance with understandings of humanitarian law will not compromise our security. It is essential to maintaining and enhancing it.

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About the Author

is a Visiting Professor of Law and Director of the Law and Armed Conflict Project at Cardozo Law School.