Law and War in the Virtual Era

Law and War in the Virtual Era

Full Citation

Jack M.Beard, Law and War in the Virtual Era, 103 Am. J. Int'l. L. 409 (2009). Web

BibTeX

Categorization

• Issues: Cyberwar; law of war

• Approaches: International Law (including Laws of War)

Key Words

virtual military technologies, UAVs, intelligence infrastructure/information ifrastructure, lawyers and war/lawyers and security, lawfare

Synopsis and Key Themes

Thesis

The article traces the changing role and growing strategic importance of law in warfare. Whereas for most of its existence, and since the first attempts by states to use law to regulate armed conflict, jus in bello, or the law of war (also referred to in the article as “international humanitarian law”), often failed to protect civilians from the adverse effects of war, the article’s author suggests that the advent of automated, or “virtual” military technologies (specifically, Beard looks at the place of unmanned aerial vehicles, or UAVs, in modern warfare), though originally designed and implemented to expand military capabilities, also expand military informational resources, and therefore unintentionally reinforce the importance of jus in bello, and by association, the role of lawyers in modern military operations. Whereas advances in military technology historically have made law more distant and less relevant to the suffering of civilians (Beard uses both World Wars as examples of this phenomenon), the rise of UAVs has created unprecedented amounts of transparency, a new expectation of accountability, and given more control than ever before to affect military decisions. Beard opens his article with an anecdote about the aborted killing of the Taliban leader Mullah Omar at the start of the Afghanistan War, on the first night of the war, in 2001. Fleeing Kabul, Mullah Omar was targeted by a Predator, the unmanned aerial vehicle most frequently employed by the U.S. military. Although the UAV held its target throughout a portion of his flight, the legal office at the U.S. Central Command raised concerns about the likelihood that the air strike would cause excessive civilian casualties, and called off the mission.

The unintended consequences of technology

Technological advances can occur with little deliberation about their long-term consequences, and the implications of all the potential applications of a new weapons system (this article dwells on “virtual” military technologies, and in particular, on UAVs) may therefore be largely unforeseen. While the US has been driven to more accurate bombing out of strategy, monetary and practical objectives (leading to an increase in the use of Precision-Guided Missiles, or PGMs, during the Gulf War), and not predominantly humanitarian concerns, the use of such technologies often have large ramifications for the humanitarian element of warfare.

The rise of UAVs

Before 9/11, UAVs were only of limited use. With the U.S. wars in Afghanistan and Iraq, UAVs became integral to U.S. military operations once their enormous potential in the area of ISR (Intelligence, Surveillance, Reconnaissance) was recognized; thereafter, UAVs were produced and deployed pervasively throughout combat zones in the Middle East. In 2001, the US Congress mandated that a full third of essential U.S. military aircraft and ground vehicles be unmanned by 2015, signifying the influence and importance of UAVs in modern warfare, and the scope of the change they effect on military and combat operations. The success of UAVs in American military operations derives from their capacity to do dirty, dull or dangerous work that would otherwise be performed at a greater cost by human beings, but it also takes root in the virtual distance and virtual extrahuman surveillance capabilities effected by their use. With expanded attack capabilities, continuous presence, the ability to simultaneously follow greater numbers of targets, and offering a more continuous, pervasive presence, UAVs transform the modern military landscape. Likewise, the use of UAVs suggests problematic legal and humanitarian implications, because their use expands the potential list of targets that can be attacked. Allowing the military to strike a much more comprehensive list of targets, the deployment of UAVs raises similar questions to those brought up by the use of PGMs during the Gulf War, which is the blurring of the line between target and victim, between combatant and noncombatant. The pervasive presence and targeting and attack potential offered by UAVs suggests that war can now exist everywhere, all the time.

UAVs and intelligence consequences -- challenges to the U.S. military intelligence infrastructure

UAVs allow the U.S. military to engage in persistent surveillance around distant areas of the globe, to accumulate more recorded, real-time information than was ever thought possible to collect. But the vast quantities and new types of ISR data have little value if they do not reach the right decision makers or commanders in time. Beard suggests that the linear organizational schemes or vertical bureaucracies that characterize the command structure of the U.S. military are ill-suited to take advantage of the large amounts of new intelligence and ISR information. The rather obsolete hierarchical structure of the U.S. intelligence dissemination network is a traditional linear structure that makes far too little information available to the subordinate unites that need it, on the ground, while producing informational and data overload at the top levels of the command structure. The U.S. military is not an adaptive, decentralized, network-centric intelligence system (as are, for instance, terrorist networks), and network-oriented reforms must be implemented so that commanders at all levels can access real time information and surveillance results.

Lawyers, UAVs, and modern warfare

Major technological changes such as the use of UAVs pose personnel challenges to the vast, complex bureaucracies that manage modern warfare. In particular, it greatly enhances the role of lawyers in military operations. The unblinking eye of UAVs and the intensified surveillance capabilities of UAVs have increased public scrutiny of military actions and augmented the demand for military transparency. Rising public expectations of transparency are causing attack planners and military commanders to grapple with new legal responsibilities, and causing lawyers involved with the military to often take a broad view of potential humanitarian considerations that go beyond the more permissive rules of engagement. Prior to authorizing an attack, lawyers, planners, and commanders nowadays must consider the unprecedented new video record that may be created, especially if an attack risks harm to civilians and is likely to be scrutinized later. Laws, rules, and regulations pervade all aspects of military operations and the military social system, and are expected more than ever by the public eye to be respected and adhered. Empowered by diminished need for on-the-ground decision making, and enabled to overcome physical distance thanks to unmanned virtual technologies, lawyers are more linked than ever to the command structure and more involved in targeting decisions. The expanding contours of legal oversight, and the availability of continuous streams of information changes the meaning of what constitutes appropriate legal review. In place of limited sporadic information issued by satellites and manned aircraft, the unblinking eyes of UAVs capture not just the target but the presence of civilians that might be endangered by an attack. The NATO military effort in Kosovo in 1999 relied almost exclusively on air power. The relative absence of human troops on the ground marked the increasing prominence of lawyers in armed conflict; effectively, NATO’s lawyers, given greater legal review than ever before, became its de facto tactical commanders. The direct involvement of lawyers in military operations has further expanded since Kosovo, reflecting emerging trends in the legalization of war and the rising utility of legal support in modern military operations.

Lawfare, jus in bello, and violations of humanitarian law

U.S. COIN doctrine provides new opportunities for international law to serve as a basis for U.S. forces to engage with the civilian population. The new relevance of international law has not been lost on terrorist groups and rogue states, even if they do not observe it: such groups and governments use new informational technologies to exploit images of dead civilians and other evidence of alleged law-of-war violations as part of a growing practice that some describe as “lawfare.” Although most military theorists once viewed law as largely irrelevant to war, the political and moral legitimacy of military operations is increasingly linked to the observance of legal obligations, particularly those related to protection of the civilian population. American of ficials have learned that the single most important indicator of compliance with the law of war is the perceived respect for rules protecting the civilian population. One of the central tenets of the Geneva Conventions, which lay down much of the foundation for modern jus in bello (law of war) is proportionality, the idea that an attack on a military target may be illegal if it implies too much collateral damage. The new “virtual” distance enabled by UAVs is giving proportionality requirements new significance by eliminating some of the key excuses that states have long used to escape responsibility for attacks that appear to cause excessive civilian casualties. Even as virtual technologies enhance the surveillance capabilities of military personnel, they also make the military’s own activities more perceptible before, during, and after attacks. Those who plan or decide upon an attack will increasingly do so with the knowledge that a much more complete record is being created of both their actions and the basis for their decisions.

Conclusions

The irony of new virtual military technologies is that, though intended to enhance military and attack capabilities, in fact, they do much to hamper military action. As risk assessment has become so much more reliable and accurate, more precise estimates of how many civilians are likely to die from a given attack means that civilian deaths are now incidental, and no longer accidental to military attacks. The increasing fusion of humans and machines in war does not diminish accidental civilian casualties, but terms like “technical malfunctions” are used nonetheless to describe seemingly unavoidable causes of many unintended civilian casualties, blurring the distinction between human error and technological malfunction. The absence of humans as the actual combatants in armed conflicts seems to be steadily achieving acceptance and entering society’s collective consciousness with relatively little reflection. Remotely controlled machines are paving the way for armed conflicts in which humans will increasingly be absent from the battlefield and many dangerous war-fighting missions. Inasmuch as technological developments reduce the political costs of going to war by eliminating the risk that human operators will be killed or captured, some commentators fear that those developments will make it easier and more attractive for states to become involved in armed conflicts. The demand for UAVs, for example, is soaring as more and more countries, including many in the developing world, are obtaining and becoming familiar with virtual technologies and their ISR capabilities, in part because UAV systems cost much less than their manned counterparts.

Additional Notes and Highlights

About the author: A Lecturer at UCLA School of Law, Jack Beard was formerly Associate Deputy General Counsel for International Affairs in the Department of Defense. Beard also served in the International and Operational Law Division as a Lieutenant Colonel, in the U.S. Army Reserve.

NYT Article about social media, virtual technologies, and remote military decisions http://nyti.ms/a2dnOq