Artificial Intelligence and International Humanitarian Law

Author: Dr. Garima Tiwari

Partially autonomous unmanned military drones, lethal autonomous weapons systems (LAWS), automated defensive systems like Israel’s Iron dome, and ‘killer robots’ have highlighted the need for immediately regulating the production, distribution and use of weapons based on artificial intelligence. This post will raise and re-iterate the issues relating to the International Humanitarian Law and Artificial Intelligence. Continue reading

Advertisements

To Kill a Man with a Joystick

Written by: Teymour Aslam

With hindsight, it appears that the horrific events of September 11th, 2001, may have triggered a paradigm shift between established geopolitical alliances, altering conventional perceptions of, and existing relations between nation states, the manner in which international relations are conducted, and perhaps most relevantly, the utilisation of unconventional military tactics in situations which are becoming increasingly difficult to classify as conventional or traditional armed conflicts under IHL.  Continue reading

How High are High Officials: Analyzing Obama’s Speech on Syria

The early hours of August 21, 2013 saw a drastic turn in the Syrian conflict as a chemical weapons attack on civilians living in the agricultural belt around Damascus took place. Three days after the attack, medical charity Medecins Sans Frontieres confirmed that three hospitals it supports in Damascus had treated about 3,600 patients with “neurotoxic symptoms” on the day of the attack; 355 of these had died.[1] Ever since there’ve been mutual accusations of the use of chemical weapons by the countering parties, namely Assad’s regime and the rebels,[2] which also caused a split of views and stances on the international plane. Yet, despite the absence of the forthcoming United Nations [hereinafter UN] report on the attack,[3] the parties to the conflict and the international community are all of no doubt that the attack has taken place. 10 days after the beginning of the political turmoil within the ‘concerned’ international community President Obama issued a statement on Syria accusing the Assad’s regime of the attack on its own people and calling for a targeted military strike to deter the regime from using the chemical weapons ever again.[4]

Continue reading

Humanity Hanging on a Cross of Iron: the Arms Trade Treaty Towards Reducing Human Suffering

Written by Lina Laurinaviciute

 

Setting the Scene

The famous Doctor Who once made a splendid remark on the issue of weapons: “You want weapons? […] Books are the best weapon in the world. […] Arm yourself!”[1] Unfortunately, in a real world, the wide availability of different kind weapons and ammunition has led to human suffering, political repression, crime and terror among civilian populations. The flows of arms in all parts of the world can be sourced through diversion from State stockpiles and other legal circuits, recycling from previous conflicts in the concerned State or in the neighbouring countries, State-sponsored supplies to proxies, strategic caches of arms stored in anticipation of conflict, illegal manufacturing and other means.[2]

Irresponsible transfers of conventional weapons[3] destabilize security in a region, enable the violation of the United Nations Security Council (hereinafter – UNSC) arms embargoes and contribute to human rights abuses. Consequently, in countries experiencing conflict and high levels of violence investment is discouraged and hence development is disrupted.[4] It is evident that, the widespread availability of weapons tends to prolong conflicts, facilitate violations of international humanitarian law (also known as law of war or law of armed conflict), and put civilians at high risk of death or injury from weapons-related violence even after armed conflicts have ended.[5]

On 2 April 2013, the UN General Assembly has witnessed an event, to which the Secretary-General Ban Ki-moon referred as “a victory for the world’s people.”[6] The UN Member-states voted by 154 votes to three, with 23 abstentions (including Russia and China, which are among the world’s biggest exporters[7]), to control a trade worth between $170 million and $320 million per year.[8] As a consequence, the poorly regulated arms trade has devastating, multifaceted effects. These include fueling violence and armed conflict, hindering efforts to promote socioeconomic development and creating a permanent atmosphere of fear and instability in conflict settings.[9]

Therefore, the Article 2 of the newly adopted Arms Trade Treaty (hereinafter – ATT) sets its scope to regulate the international trade in conventional arms, from small arms to battle tanks. Namely it is applied to: battle tanks; armoured combat vehicles; large-calibre artillery systems; combat aircraft; attack helicopters; warships; missiles and missile launchers; and small arms and light weapons.

The treaty prohibits states from exporting conventional weapons in violation of arms embargoes, or weapons that would be used for acts of genocide, crimes against humanity, war crimes or terrorism. It also requires states to prevent conventional weapons reaching the black market. Thus it is expected that it will put a stop to destabilizing arms flows from its signatories to conflict regions. It will prevent human rights abusers and violators of the law of war from being supplied with arms. And it will help keep warlords, pirates, and gangs from acquiring these deadly tools.[10]

Indeed, the majority of modern day intra-State conflicts have been fought mainly with small arms and light weapons. However, recent events in Libya and Syria underscore the continued misuse of heavier conventional weapons – including tanks, heavy artillery, helicopters and aircraft – against civilians. Although it is often difficult to anticipate that a government will eventually use its weaponry against civilian populations, it is expected that the ATT will compel exporters to exercise enhanced diligence in analysing early warning signs that may help them assess the risk that transferred weapons would be used to commit grave human rights violations.[11]

Indeed, the use of explosive weapons in populated areas, including man-portable or vehicle-mounted grenades, rocket-propelled grenade launchers, missiles and mortars, can have indiscriminate and devastating impact on civilians, particularly children.[12] For instance, in Yemen, 71 percent of the child conflict casualties in 2009 were a direct result of shelling of civilian areas by all parties to the conflict.[13]

Moreover, the high availability of small arms and the presence of armed violence create threats to humanitarian personnel and can force humanitarian organizations to evacuate their staff from high-risk areas or suspend their programmes, thus depriving affected people of badly needed assistance.[14] For example, in Pakistan, humanitarian actors indicate ongoing hostilities as the most significant impediment to access.[15] Also, the Lord’s Resistance Army since 2009 has carried out armed attacks, including against refugee settlements, in South Sudan, Central African Republic and in the Democratic Republic of Congo during which scores of civilians were killed, thousands of civilians were forced to flee, serious disruptions to the distribution of humanitarian assistance was evident as well.[16]

Beyond fueling armed conflicts, the availability of firearms due to the poorly regulated arms transfers is a major factor sustaining organized crime and terrorism in all regions. The recent events in Libya, for example, presented an opportunity for various criminal and terrorist groups to procure firearms and ammunitions from looted government stockpiles. While Somali pirates reportedly received about US$170 million in ransom in 2011 for hijacked vessels and crews. It is important to mention, that piracy and armed robbery against ships affect the freedom of shipping and the safety of vital shipping lanes, carrying around 90 percent of the world trade.[17]

There is also a specific relationship between firearm availability and high levels of homicide. It is estimated that 42 percent of the overall global homicides are committed with firearms. This percentage is considerably higher in regions where homicides are often associated with the illicit activities of organized criminal groups. In some regions, misuse and illicit trafficking of firearms and their ammunition is often associated with other crimes, in particular drug trafficking. In these situations, the ability of security institutions, such as the police and the military, to enforce the law is greatly diminished in the face of the power of well-armed organized crime groups with ready access to arms in the black market, thus undermining the social fabric of entire communities.[18]

In this regard, Africa, Latin America and the Caribbean are the three most affected regions in the world by both arms trafficking and small arms misuse, and share similar challenges fighting against the illicit arms circulation. Interestingly, “the studies on seized arms reveal the use of a variety of arms in street and organized crime. For example, handguns are the preferred weapon used in the commission of most street crime, while military-style arms are used by organized criminals, such as by the drug cartels in Mexico and in the favelas in Brazil.”[19]

The problem of a poorly regulated arms trade was well noted by the UN, which stated that: “the absence of a global framework regulating the international trade in all conventional arms has obscured transparency, comparability and accountability.”[20] However, it took almost a decade to agree on principles to control the flow of such arms.

The Birth of the Treaty

Unlike trade in chemical, biological and nuclear weapons, trade in conventional weapons was not regulated in a comprehensive treaty at the international level.[21] The initiative on the current principles of the ATT have been started by Dr. Oscar Arias who in 1995, led a group of fellow Nobel Peace Prize Laureates in announcing their support for the international regulation of the trade in conventional arms. Of the many advocacy initiatives undertaken in support of the ATT, the “Million Faces Petition” of the Control Arms campaign gained the greatest international attention. The Petition, which comprised individual portraits as expressions of support, was formally submitted to UN Secretary General Kofi Annan in June 2006.[22]

After some months, the process within the UN system began with General Assembly Resolution 61/89 of December 2006 entitled “Towards an arms trade treaty: establishing common international standards for the import, export and transfer of conventional arms”.[23] In this resolution, the General Assembly requested countries to submit their views on the feasibility, scope and draft parameters for a comprehensive, legally binding instrument on the import, export and transfer of conventional arms. Following those views, the General Assembly adopted a second resolution on an ATT (Resolution 63/240) in 2008. In this resolution the UN General Assembly decided to establish an open ended working group, which would be open to all states, to further consider the possible elements of the future agreement on the arms trade.[24]

A year after, in 2009, the UN General Assembly adopted Resolution 64/48 in which UN member states decided to convene a UN conference on an Arms Trade Treaty in 2012 with the scope “to elaborate a legally binding instrument on the highest possible common international standards for the transfer of conventional arms”[25]. Importantly, under the US administration of President Barack Obama, the US changed its position and after voting against the ATT in 2006 and 2008, it finally supported this process. Undoubtedly, this support was conditional on success of the future negotiations as well as for the agreement being reached in consensus.[26]

After years of advocacy for a worldwide ATT and four intensive weeks of diplomatic bargaining, in July 2012 the UN convened a conference to negotiate a legally binding arms trade treaty. Unfortunately, the final negotiation round did not result in an agreement to which all 193 countries of the UN could commit. At the end of the negotiations, the US blocked an agreement by declaring that it needed more time to reach a consensus. Russia, North Korea, Cuba and Venezuela supported this position. It was mutually agreed, however, that: “Arms export controls can only be effective if implemented at the global level, in a coherent and consistent manner”[27] as the “poorly regulated trade in conventional arms and ammunition fuels conflict, poverty and human rights abuses all over the world”[28]. Therefore, it was decided to continue negotiations at the next years (2013) conference with a view to concluding the ATT. Finally, the treaty was adopted in April, 2013.

A Glance Inside the Treaty

The preamble of the treaty recognizes “that civilians, particularly women and children, account for the vast majority of those affected by armed conflict and armed violence”[29] and “the challenges faced by victims of armed conflict and their need for an adequate care, rehabilitation and social and economic inclusion.”[30] The treaty also recalls that States Parties to the treaty are determined to act in accordance with the duty to ensure respect to IHL.”[31] One of the purposes of the treaty is to reduce human suffering by establishing the highest possible common international standards for regulating or improving the regulation of the international trade in conventional arms.[32] To reach these goals, the treaty sets forth the principles of sovereignty and non-intervention, transparency and universality.

As mentioned before, the Article 2 of the treaty sets out the scope of conventional arms to which the treaty shall apply. It explicitly refers to the seven major categories of conventional arms already included in the UN Register of Conventional Arms, plus small arms[33] and light weapons[34]. Ammunition, munitions, and parts and components for these conventional arms are also covered in Articles 3 and 4.

Article 2 also includes activities to which the treaty shall apply: These are “activities of the international trade” that comprise export, import, transit, trans-shipment, and brokering. Particularly, it aims to prevent and suppress illicit production, trafficking and illicit brokering of conventional arms.

However, the ATT “does not aim to impede or interfere with the lawful ownership and use of weapons.”[35] According to the ATT, Governments remain primarily responsible for keeping to the rule of law. However, before approving the transfers of weapons or ammunition, States Parties to the ATT are required to assess the risk that transferred arms would be used by national armed and security forces, private security companies or other armed State or non-State actors to foment regional instability, to commit grave violations of international humanitarian law and human rights law (e.g. genocide, crimes against humanity, war crimes) or to engage in other forms of politically or criminally motivated armed violence (e.g. terrorism; transnational organised crime, corruption). The common standards should also help States to assess the risk that transferred arms will end up in areas proscribed by UNSC embargoes.[36]

Moreover, States Parties must establish and maintain a national control system, including a national control list of weapons and items covered. They must also maintain national records of export authorizations or actual exports, and report on their implementation of the treaty as well as authorized or actual exports and imports of conventional arms (but not ammunition or parts and components).[37]

The treaty will open for signature on June 3, 2013 at UN headquarters in New York. It will enter into force 90 days following the 50th ratification, acceptance, or approval with the Depositary.[38] Despite the poor monitoring mechanism (the Conference of States parties has a function to review implementation, and consider amendments and issues relating to the treaty interpretation) “the text now has to be implemented in good faith so as to positively affect the lives, health and well-being of millions of people around the world. If properly implemented, it will prevent arms transfers when there is a manifest risk that war crimes or serious violations of human rights will be committed.”[39]

Prospects of the Treaty

Without adequate regulation of international arms transfers based on high common standards to guide national decisions on these transfers, it is easier for arms to be diverted to the illicit market for use in armed conflict, criminal activities and violence, including organized crime groups.[40] With every transfer it authorizes, a government deciding on exporting weapons must realize the profound international responsibility of that decision. And conversely, an importing government must ensure that it will use these weapons only to provide the safety and security for its people and that it has the capacity to safeguard all weapons within its possession throughout their life cycle.[41]

Undoubtedly, the ATT is a significant milestone on the way towards the goal to reduce the flows of the illicit arms and to reduce human suffering. However, this treaty lacks specific indicators as well as specific provisions about arms transfer towards non-State Actors. Furthermore, the obligation of reporting and the monitoring system suggested by the ATT is hardly sufficient for its successful implementation. The treaty also does not pay enough attention to the criminalization of illicit conducts.

Unfortunately, each weakness in the treaty as well as resistance of states on reaching the substantial agreements on the arms trade has a huge cost of human life and dignity. Those suffering the most from the adverse effects of the arms trade are men, women, girls and boys trapped in situations of armed violence and conflict, often in conditions of poverty, deprivation and extreme inequality, where they are all too frequently on the receiving end of the misuse of arms by State armed and security forces, non-State armed groups and criminal gangs.[42] As President Dwight D. Eisenhower well mentioned: “Every gun that is made, every warship launched, every rocket fired signifies in the final sense, a theft from those who hunger and are not fed, those who are cold and are not clothed. This world in arms is not spending money alone. It is spending the sweat of its laborers, the genius of its scientists, the hopes of its children. […] Under the clouds of war, it is humanity hanging on a cross of iron.”[43]


[1] Doctor Who, “Tooth and Claw”, Russell T. Davies.

[2] UNODA Occasional Papers, The Impact of the Poorly Regulated Arms Transfers on the Work of the United Nations, United Nations Coordinating Action on Small Arms (CASA), 2013, p. 3.

[3] A conventional weapon can be defined as a weapon that is neither a nuclear, biological nor a chemical weapon (i.e. not a weapon of mass destruction).

[4] UNODA, About the Arms Trade, available at: <http://www.un.org/disarmament/convarms/ArmsTrade/>, (Last visited on 27 May, 2013).

[5] ICRC, Arms Trade Treaty: A historic step towards reducing human suffering, available at: <http://www.icrc.org/eng/resources/documents/news-release/2013/02-04-weapons-arms-trade-treaty.htm>, (Last visited on 27 May, 2013).

[6] See supra note 4.

[7] The biggest arm suppliers: US, Russia, China, Ukraine, Germany, France, UK, Italy, Netherlands, Spain. See also: BBC, UN passes historic arms trade treaty by huge majority, available at: <http://www.bbc.co.uk/news/world-us-canada-21998394>, (Last visited on 27 May, 2013).

[8] The Globalization of Crime: A Transnational Organized Crime Threat Assessment, United Nations publication, Sales No. E.10.IV.6, 2010.

[9] See supra note 2, p. 1.

[10] See supra note 4.

[11] See supra note 2, p.6.

[12] Ibid., p. 24.

[13] Save the Children, Devastating Impact: Explosive weapons and children, 2011, p. 5.

[14] See supra note 2, p.19.

[15] Ibid., p. 12.

[16] UNHCR News, 14 May 2010.

[17] See supra note 2, p. 23.

[18] Ibid., p. 20.

[19] Ibid., p. 16.

[20] Ibid., p. 2.

[21] Holtom, P. and Wezeman, S. T., Towards an arms trade treaty?, SIPRI Yearbook 2007: Armaments, Disarmament and International Security, Oxford, 2007.

[22] Control Arms Campaign, Million Faces Petition, available at: <http://www.controlarms.org/million_faces/index.php>, (Last visited on 28 May, 2013).

[23] Bailey L., The Foreign Policy Centre Briefing Towards an Arms Trade Treaty, available at: <http://fpc.org.uk/fsblob/1232.pdf>, (Last visited on 28 May, 2013).

[24] The EU Non-Proliferation Consortium, The European Union’s Involvement in Negotiating an Arms Trade Treaty, No. 23 December 2012, p. 3.

[25] UN General Assembly Resolution 64/48, 12 January 2010.

[26] See supra note 24, p. 3.

[27] Ibid. p. 2.

[28] Ibid.

[29] UN General Assembly, The Arms Trade Treaty, A/CONF.217/2013/L.3, Preamble.

[30] Ibid.

[31] Ibid.

[32] See supra note 5.

[33] Revolvers and self-loading pistols, rifles and carbines, assault rifles, sub-machine guns and light machine guns. See also: UN, General and Complete Disarmament: Small Arms, Report of the Panel of Governmental Experts on Small Arms, available at: <http://www.un.org/Depts/ddar/Firstcom/SGreport52/a52298.html>, (Last visited on 27 May, 2013).

[34] Heavy machine guns, hand-held under-barrel and mounted grenade launchers, portable anti-aircraft guns, portable anti-tank guns, recoilless rifles, portable launchers of anti-tank missile and rocket systems; portable launchers of anti-aircraft missile systems (MANPADS); and mortars of calibres of less than 100 mm. See also: UN, General and Complete Disarmament: Small Arms, Report of the Panel of Governmental Experts on Small Arms, available at: <http://www.un.org/Depts/ddar/Firstcom/SGreport52/a52298.html>, (Last visited on 27 May, 2013).

[35] See supra note 4.

[36] See supra note 2, p. 3.

[37] See supra note 24, p.13.

[38] See supra note 29, Article 22.

[39] See supra note 5.

[40] See supra note 2, p. 21.

[41] See supra note 5.

[42] See supra note 2, p. 2.

[43] The Chance for Peace speech given by U.S. President Dwight D. Eisenhower on April 16, 1953.

* Picture source: Reuters.

The Last Resort

Terrorism

Until the dramatic events of September 2001 terrorism was perceived as an exceptional and a rare phenomenon, which didn’t quite bother specialists of any field. Today there is hardly a person who has never though about the roots and the nature of this evil. The growing threat takes multiple forms, including transnational groups targeting means of transport, planning attacks with weapons of mass destruction or through the Internet, or resorting to new channels to finance their acts.[1] And even though we may disapprove of it, terrorists can indeed assemble plausible if not logical arguments in defense of their actions.

However, whatever the ideological motives of terrorist groups are one should, consider the reasons for a choice of this means of warfare in the first place as to develop an effective doctrine to combat it. As Major Robert W. Cerney states, “terrorists exercise their right to fight for what they believe in the only way they can with any hope of survival till the eventual achievement of their goal.”[2] Terrorism as a means of warfare indeed proves to be successful, but the key point in Maj. Cerney’s assertion is that it’s the only feasible option for those waging an asymmetric war.

It is worth mentioning, that none of the conflicts is perfectly symmetrical, but the wider the gap, the dirtier it gets. Today with only one remaining superpower and more generally the considerable and predictably widening technological divide, a huge imbalance in the capacity of warring parties has become a characteristic feature of any contemporary armed conflict.[3] The wide disparity between the parties, primarily in military and economic power, potential and resources, provides for a need for a form of violence that serves as a force multiplier that maximizes the outwardly limited resources in confrontation with an incomparably stronger opponent that a party cannot effectively challenge by conventional means. Given the inability to fight on the enemy’s own ground and to challenge a stronger opponent on equal terms, the weaker, lower status side has to find some other ground and to rely on other resources to establish a two-way asymmetry.[4] This, in turn, conditions the terrorists’ modus operandi: attacking the enemy’s weakest points, namely, its civilians and non-combatants, thus, not conforming to international legal standards. Yet, why would one play by the system rules when those rules are established to support a system fought…

Western societies are becoming more vulnerable due to many factors, including global communications, travel, and the proliferation of weapons technology, as well as the fact that the number of relatively deprived people in failing societies is growing.[5] The threat of terrorism forces them to respond by increasing homeland security measures. The latter have reduced the number of attacks by 34 percent, limiting the number of terrorism victims to an average of 67 a year and having cost the developed countries roughly US$70 billion since 2001.[6] The material cost of a suicide bombing, in turn, is as low as $150(US), and results in an average of 12 deaths, spreading enormous fear throughout the targeted population.[7] Thus, it amounts to an estimated $5.8(US) billion a year protecting 34 innocent lives which might be deprived at a price of $425(US). Apart from this financial asymmetry, one should also bear in mind that terrorism is responding to new security challenges with new approaches having the same bloodshed effect.

To this end, terrorism seems to be the last if not the only resort of the weaker parties trying to shift the balance and restore the warfare symmetry with any means possible. Given that the means are dirty and that terrorism will not conform to international standards, we must adapt to it and consider a more effective, yet legal, strategy of combating it with a view of its asymmetric character.

Written by Jan Guardian


[1]       United Nations Office on Drugs and Crime, The Universal Legal Framework Against Terrorism. New York (2010), p. iii.

[2]       Major Robert W. Cerney, International Terrorism:  The Poor Man’s Warfare. Executive Summary. USMC CSC 1991 [online][accessed 28 March 2013].

[3]       Robin Geiss, Asymmetric Conflict Structures. International Review of the Red Cross, Vol. 88, 864, December 2006, 757-758.

[4]       Ekaterina Stepanova, Terrorism in Asymmetrical Conflicts: Ideological and Structural Aspects. SIPRI Research Report No. 23. OxfordUniversity Press (2008), p. 20.

[5]       Shahram Chubin, Jerrold D. Green, Terrorism and Asymmetric Conflict in Southwest Asia. RAND (2002), p. 7.

[6]       Bjorn Lomborg, Is counterterrorism good value for money? NATO review 4 (2008) [online][accessed 29 March 2013].

[7]       Ibid.

Unroll the War Drums, Change the Paradigm

By Ronald Rogo (rogo.ronald@gmail.com)

In October 2011 Operation Linda Nchi (Kiswahili for “Protect the Country”) was launched by the Kenya Defence Forces (KDF). Operation Linda Nchi was the code name for Kenya’s military incursion into southern Somalia. The ostensible goal of the military adventures was to crash and hopefully eliminate the threat posed by the Al Shabaab, a terrorist organization operating in Somalia and with reported links to the Al Qaeda terror group. The immediate cause of this unusual turn of events was the kidnapping of two Spanish aid workers working with the Médecins Sans Frontières, an international humanitarian organization, from the Dadaab refugee camp in Northern Kenya. It was alleged that this kidnapping was planned and executed by the Al Shabaab. With this military incursion, Kenya joined a growing list of countries that have used the war against terrorism as justification for waging ‘war’ outside their borders .

However, the war paradigm cannot be used as justification for a “war” against terrorism as it does not fit into any of the recognised legal categories of armed conflict. Instead, nations need to come up with another perspective when confronting terrorism that will both be tenable and legally justifiable. First, the UN Charter recognizes the right of a state to respond by force using its armed forces in cases of self defence. However, the initial attack must rise to the level where it causes “necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation” for the responding state. This means that the state must be put in a position where the only feasible option would be to roll out its armed forces. Clearly, it is doubtful whether a solitary terrorist attack would be able to meet this qualification.

Secondly, an armed conflict is seen to arise whenever there is “any difference arising between two States and leading to the intervention of members of the armed forces”. This definition presupposes that there are two sides to the conflict who engage in arms in order to resolve their conflict. There is usually a state of armed conflict between two parties. In addition, the traditional view has been that war is generally an international armed conflict that takes place between two nation states, each trying to assert its will on the other. Based on the above it is doubtful whether one could legally engage in an armed conflict with terrorists. Whereas it is correct that the armed forces of a particular state could be deployed to hunt out, capture and kill terrorists, such as the KDF has done in Somalia, the terrorists do not, in turn, have an armed force that could then result in an armed conflict. In reality any “war” against terrorists does not have the typical ingredients of a battlefield clash; be it in the air, on the land or over the waters. Since terrorists engage in their criminal activities under the cover of ordinary daily occurrences, it is unrealistic to expect them to engage directly with a country’s armed forces. Instead, depending on the particular modus operandi of the particular terrorist organization one would expect that they would attempt to mingle with innocent civilians.
In the Lubanga case the International Criminal Court held that an armed conflict is of an international character if “it takes place between two or more States” and that “this extends to the partial or total occupation of the territory of another State, whether or not the said occupation meets with armed resistance.” Again, the ICC in the Bemba decision, held that “an international armed conflict exists in case of armed hostilities between States through their respective armed forces or other actors acting on behalf of the State” .
A non international armed conflict, on the other hand, must occur within the territory of the State . The Additional Protocol II , provides that the non state actor must be “under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations”. Thus, in order for an internal conflict to be qualified as a non international armed conflict and therefore to be covered by IHL there are certain necessary ingredients that must be met. The main one is that the threshold of the conflict must exceed that of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. In applying this provision the ICTY Appeals Chamber decision in the Tadic case held as follows:
“an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there” .

Further in the Lubanga decision, while setting out the characteristics of a non international armed conflict the court held that one should consider “the force or group’s internal hierarchy; the command structure and rules; the extent to which military equipment, including firearms, are available; the force or group’s ability to plan military operations and put them into effect; and the extent, seriousness, and intensity of any military involvement” .

Again, in order for a conflict to be characterized as a non international armed conflict, it must “take place in the territory of a High Contracting Party” . This means that the theatre of the conflict should have been in Kenya, not Somalia. While the government of Somalia could make the argument that when it combats Al Shabaab it is engaging in a non international armed conflict, the KDF cannot. Significantly, the KDF operation cannot meet the requirements of a non international armed conflict on this score too. Apart from repeated isolated attacks in Kenya it cannot be said that the Al Shabaab controlled a part (or any part of Kenya) of Kenya as at the time of the invasion. Further, the KDF has not engaged militarily with any Al Shabaab terrorist groups within Kenya. Lastly, the law requires the military operations of the armed group to be “sustained and concerted”. Although the Al Shabaab has conducted raids on Kenyan soil, it would be a stretch to characterize them as either sustained or concerted.

Conclusion
From the above, it is evident that the use of a war paradigm when confronting the Al Shabaab terror group in Somalia-or any other terror group for that matter-is tenuous. In reality, attacks by terrorist groups ought to be considered as criminal activities that require police response-even militarized police response if necessary-rather than acts of war. As Stacie Gorman has stated:

“terrorists are criminals, and not soldiers of war… The practice of trying terrorists in a court of law suggests that the United States has, in the past, recognized that it is limited in its ability to declare war against terrorist groups”

It is therefore important for more police action-rather than military activity-to be involved in this “war” against terrorists in the region. The former are not only more efficient in counter terrorism operations but will not suffer legal incongruity.

Cyber Warfare: Between Games and Reality

Written by Lina Laurinaviciute

Cyber Warfare: Between Games and Reality

fog-of-cyber-warfare_1Setting the background

A top secret super-computer which has a complete control over a nuclear arsenal and the countdown to World War 3 – such scenarios, as the one of a movie “War Games” (1983) were presented as the science fiction in the last century. Indeed, new expansions in the tactical as well as technical dimensions have changed the landscape of warfare where a cyber space battlefield became a realization of that fictional future.

Today, cyberspace exists in all critical infrastructure sectors: telecommunications networks, the electric grid, power plants, traffic control centers, financial sectors, etc. The same technology that enables us to have live video chat on our mobile phones or remote controls used to control air conditioning units also makes it possible to turn off the lights in a city on the other side of the globe.[1]

Usually, media as well as policy-makers refer to cyberspace when simply looking for a synonym to the Internet or describing anything electronic. However, cyberspace may be described as “a global domain within the information environment consisting of the interdependent network of information technology infrastructures, including the Internet, telecommunications networks, computer systems, and embedded processors and controllers.”[2]

Similarly, such terms as “cyber operations”, “cyber attacks”, or ”network attacks” as well as the concept of cyber warfare are used in different contexts and different people appear to mean different things when they refer to them. In general, cyber operations are conducted against or via a computer or a computer system through a data stream. “Such operations can aim to do different things, for instance to infiltrate a computer system and collect, export, destroy, change, or encrypt data or to trigger, alter or otherwise manipulate processes controlled by the infiltrated system.”[3]

One of the main issues raised by “cyber war” is whether a cyber attack can rise to the kind of attack amounting to war. International Humanitarian Law (hereinafter IHL), also referred to as the laws of war, characterizes war as the resort to protracted and intense armed force by two or more parties. Armed conflict is either between States, characterized as international armed conflict, or between States or armed groups operating inside a single State, referred to as non-international armed conflict. The most well-known of the laws are the 1949 Geneva Conventions[4] and 1977 Additional Protocols[5], which present rules for protecting civilians and those hors de combat (wounded, sick and unable to fight soldiers) in land, naval, and air warfare.[6] As it can be expected, due to the development of new technologies, none of the provisions of these laws specifically mention cyber attacks.

Some researchers, such as Joel Brenner, are of the opinion that cyber attacks should not fall under IHL. As cyber warfare is not a kinetic action, it is not an armed attack and thus, IHL does not apply.[7] However, the growing importance of the use of information technology in military activities and its potential to gain military advantage in a more cost effective way, urges to look at it from the IHL perspective and determine the circumstances, under which cyber operations (as opposed to the traditional kinetic military operations) can constitute attacks within the meaning of IHL.

The fact that a new concept of a cyber attack has come into existence after the treaty laws were adopted, does not preclude the applicability of these laws. Article 36 of Additional Protocol I (hereinafter AP I) says that in the study, development or adoption of a new weapon or method of warfare, States Parties are under an obligation to determine whether their employment would, in some or all circumstances, be prohibited by international law applicable to them.[8] Also, in its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the International Court of Justice held that “it cannot be concluded […] that the established principles and rules of humanitarian law applicable in armed conflict did not apply to nuclear weapons. Such a conclusion would be incompatible with the intrinsically humanitarian character of the legal principles in question which permeates the entire law of armed conflict and applies to all forms of warfare and to all kinds of weapons, those of the past, those of the present and those of the future”.[9] Hence, it has been well accepted already that “a lack of directly applicable treaty law does not create an international humanitarian law – free zone, where anyone can conduct hostile activities without rules or restraints.”[10] Due to the fundamental prohibitions, IHL was designed to be flexible enough to accommodate technological developments, including those that could never have been anticipated at the time.[11] It follows that cyberspace is not a distinct domain subject to a separate body of law.

In this framework, cyber warfare refers to means and methods of warfare that rely on information technology and are used in the context of an armed conflict. The experts of the recently issued Tallinn Manual on the International Law Applicable to Cyber Warfare (hereinafter Tallinn Manual), defined cyber weapons as “any cyber device, materiel, instrument, mechanism, equipment, or software used, designed, or intended to be used to conduct a cyber attack.”[12] It is also important to keep in mind that IHL is applicable in time of an armed conflict. Therefore, one of the challenges addressing war in cyberspace is to determine whether resort to cyber weapons can constitute an armed attack.

In accordance with Article 49 (1) of AP I “Attacks” means acts of violence against the adversary, whether in offence or in defence.[13] A “cyber attack” is very fact-specific and must be distinct from cyber espionage, which is done by many nations including recent cases of China, Russia, Iran and does not violate traditional interpretations of IHL. Examples of the cyber operations that have been carried out so far, such as a 2007 Israeli cyber-attack on Syria that disabled all Syrian anti-air systems so that the Israeli air-force could bomb a secret Syrian nuclear reactor site undetected or the 2007 attacks on Estonian banks and government websites as well as the 2008 Russian cyber attacks on Georgia during the South Ossetia War, do not appear to have had serious consequences for the civilian population.[14] However, they show that while the critical infrastructure of nations continually becomes more reliant on networks and cyberspace, the possible targets for cyber-attacks greatly increase. Logic bombs and computer viruses can disrupt everything from electric grids and the stock market to nuclear power plants and water treatment facilities. Therefore, potentially catastrophic scenarios, such as collisions between aircraft, the release of poisons from chemical plants, or the disruption of vital infrastructure and services cannot be dismissed. Such attacks would most likely have large scale humanitarian consequences and could result in significant civilian casualties and damages.[15]

Therefore, the situations when cyber activities result in death, injury, or significant destruction would likely be treated as a use of force.”[16] However, the determination of the threshold for the use of force, especially, in cases not involving physical harm, remains problematic. It might depend on the degree of damage that a computer network attack causes –“the greater the damage, the more likely the situation will be viewed as an armed conflict.”[17] The other factors, that may be significant for the classification of cyber operation as a use of force, include: immediacy (the speed with which consequences manifest), directness (the causal relation between a cyber operation and its consequences), invasiveness (the degree to which a cyber operation intrudes into targeted systems), measurability of the effects, military character of the cyber operation, extent of State involvement, and presumptive legality (acts not expressly prohibited by international law).[18]

Generally speaking, cyber operations are not violent in the sense of releasing kinetic energy, unless they qualify as an attack by virtue of their consequences, specifically injury or death of persons, damage or destruction of objects. Therefore, the principle of distinction between military and civilian objectives, prohibition of indiscriminate attacks, requirement to take the necessary precautions and abstain from attacks if civilian damage is likely to be excessive to the value of the military objective to be attacked are also applicable to such attacks and operate in the same way as to the attack which is carried out using traditional weapons.[19] Nevertheless, in practice, IHL faces some significant challenges dealing with cyber warfare.

Challenges applying rules of IHL in cyberspace

The challenges met by the international legal regulation in cyber warfare are due to the fact that cyberspace consists of innumerable computer systems across the world where civilian and military computer networks are highly interconnected.[20] A lot of military infrastructure relies on civilian computers or computer networks. It is estimated that 95 percent of world data and voice traffic is carried over fiber optic cables, providing shared bandwidth services to both public and private sectors. Indeed, the interconnectivity of military and civilian networks are so high that it is questionable whether a military-civilian separation in cyberspace is possible and, thus, if a military objective can accurately be targeted without any damage to the civilian cyber infrastructure. For example, 95 percent of American military communication goes through a civilian infrastructure.[21]

It is important to stress, that IHL prohibits indiscriminate attacks. The principle of distinction, as stipulated in the Article 48 of AP I, requires that parties to a conflict distinguish at all times between civilians and combatants and between civilian objects and military objectives.[22] In accordance with Article 51 (4) of AP I, an indiscriminate attack is defined as one which is either not aimed at a specific military objective or because the effects of an attack on a military objective are uncontrollable and unpredictable.[23] Attacks may only be directed against combatants or military objectives, which in pursuant to the Article 52 (2) [24] AP I are the ones that make an effective contribution to the military actions of the adversary and in the circumstances at the time when they are attacked must give a direct and concrete military advantage to the attacker.

Military objectives, such as communication lines, command and control systems, computers or computer systems used in support of military infrastructure or for military purposes can be targeted. As long as the two conditions that determine a military objective are fulfilled and as long as the attack does not spill over to civilian damage and suffering, the act is legitimate. It follows that attacks via cyber space may not be directed against computer systems used in medical facilities, schools, and other purely civilian installations that has special protections against attacks, such as drinking water installations and irrigation works, dams, dykes, or nuclear electric stations that have the ability to release dangerous forces.[25]

Thus, the uncontrollable computer virus would be prohibited as an indiscriminate weapon in the same way that the use of a biological virus would be prohibited; while a destructive cyber attack that leads to the overheating and destruction of exclusively military cyber installations would raise no particular legal concerns. An obvious example would be the release of a virus or a range of viruses into the computer systems of a target State. Even if introduced only into the military network of a State, if the virus is virulent enough, it would soon seep out of that network and into civilian systems of the targeted State or even beyond to neutral or friendly States. Such viruses must most likely should be considered as indiscriminate because they cannot be directed against a specific military objective, and they would be a mean or a method of combat which effects cannot be limited as required by AP I even if aimed accurately at the intended target.[26]

Also, some dilemmas are raised on the use of social networks for military purposes. Indeed, in recent conflicts, it became a common practice to transmit military information via Twitter, Facebook and other social media. The experts of the Tallinn Manual agreed that such use of social networks would transform those facets of the social media networks that are used for military purposes into military objectives. However, the entire networks would not be subject to direct attack.[27]

Another problematic issue is the status of persons involved in cyber operations.

When activities related to cyber attack are performed directly by the personnel of armed forces, it is considered to be performed by a combatant and, thus, such person can directly be attacked and are subject to have prisoners of war status. The problem is that since the specific technical expertise of computer technology mostly lies in the civilian domain, the use of civilians for military activities can be a common practice. It follows, that civilians who are directly participating in hostilities (hereinafter DPH) can become legitimate targets. The involvement in DPH can be manifested through various forms. For example, civilians may be those who launch a cyber attack or they are used to maintain the computer programs or computer network from which a cyber attack is launched. However, the interpretation of the concept of DPH in activities related to cyber attacks, which results to the loss of protection under IHL, is still debatable.[28]

In addition, it is a fundamental rule of IHL that if a party to an armed conflict intends to carry out a cyber attack it is under a legal obligation to conduct a proportionality assessment and to take precautions before launching such an attack. Respect for these principles, as reflected in Article 57 AP1, includes the obligation of an attacker to take all necessary precautions in the choice of means and methods of attack in order to avoid or minimize civilian casualties and collateral damages. [29]For example, commanders must decide whether launching a worm attack on the network of the adversary is feasible or not because the functioning of a worm is such that it has a very high capability of infecting large networks, and that shows its capability of damaging civilian cyber infrastructure, including that of hospitals and banks.[30] In this view, collateral damage is perceived as the loss of civilian objects during military combat operations due to the violent character of war.

Collateral damage in order to get the direct and concrete military advantage is legal as long as it does not violate the rules of proportionality. According to them “[a] cyber attack that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated is prohibited.”[31] Therefore, no collateral damage is acceptable if it is in excess of the anticipated concrete and direct military advantage.

In this regard, the development of new technologies may successfully contribute to the purpose of protection reflected in the core principles of IHL. In certain cases cyber operations might cause fewer incidental civilian casualties and less incidental civilian damage compared to the use of traditional weapons.

However, despite the advantages provided by the new technologies, the digitalization on which cyberspace is built causes another difficulty in applying the rules of IHL to cyberspace, as in most cases, it is difficult if not impossible to identify the author of an attack, the location from which it is being conducted, and to estimate its destructive potential. It is often necessary to work a way back in the chain of computers controlling other computers in order to figure out who attacked. This implies some sort of intrusive capability to identify who is attacking and thus complicates the attribution of conduct.[32]

However, from the general point of view, attribution is a practical/ technical problem in nature and therefore, can be resolved through practical or technical means, but not by means of the law. Hence, the tendencies of technological innovation may provide solutions to this practical difficulty much faster than we may anticipate today.[33] Till that day, the anonymity of communications rise difficulties on the attribution of responsibility to individuals and parties to conflict on which IHL strictly relies.

The experts of Tallinn Manual came to an agreement that “no State may claim sovereignty over cyberspace per se” and that “States may exercise sovereign prerogatives over any cyber infrastructure located on their territory, as well as activities associated with that cyber infrastructure.”[34] However, “the fact that a cyber operation has been routed via the cyber infrastructure located in a State is not sufficient evidence for attributing the operation to that State.”[35] Indeed, the technology for conducting offensive operations in cyberspace can be obtained anywhere, for instance, by mail order, while the knowledge needed to conduct some kind of cyber attack is available on the internet. Thus, many non-state actors, such as companies, terrorists, organized crime, patriotic hackers or even teenagers, can have influence.

In this regard, the International Court of Justice in its very first case on Corfu Channel, held that a State may not “allow knowingly its territory to be used for acts contrary to the rights of other States.”[36] For example, a State would be obligated to take necessary measures to end a cyber attack launched by a terrorist group from its territory against other States.

In addition, According to the Articles on State Responsibility, “[t]he conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.”[37] The jurisprudence of the International Court of Justice suggests that the degree of control for attribution to occur shall reach the level of an “effective control” over non-State actors. Therefore, “merely encouraging or otherwise expressing support for the independent acts of non-State actors does not meet the threshold for the degree of control.”[38]

In this regard, the International Court of Justice in the Nicaragua judgment pointed out that the notion of an armed attack includes “‘the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such as to amount to’ (inter alia) an actual armed attack conducted by regular forces, ‘or its substantial involvement therein’.”[39] It follows that, for instance, providing an organized armed group with malware (funding, legal, practical support) to be used against another State would constitute a use of force, while only providing sanctuary to that group would not reach such level.

However, the more complicated question is whether a non-State actor’s cyber operations that are not attributable to a State can nevertheless qualify as an armed attack and thus can justify  as the use of force in self-defense against that non-State actor.

Article 51 of the United Nations Charter stipulates that: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security.” Concerning this issue, the position of the US government, for instance, has long been that “the inherent right of self-defense potentially applies against any illegal use of force. There is no threshold for a use of deadly force to qualify as an ‘armed attack’ that may warrant a forcible response.”[40]

An agreement can be reached that cyber operations resulting in death or serious injures of individuals or serious damage to objects can qualify as armed attacks. As mentioned before, whether a cyber use of force qualifies as an armed attack depends on its scale and effects. However, the defensive actions are also subject to the requirements of IHL (necessity, proportionality, imminency, and immediacy). It follows that, “[a] State that is the target of a cyber operation that rises to the level of an armed attack may exercise its inherent right of self-defense.”[41] Furthermore, “a State need not take the first cyber hit before acting to defend itself”[42] and, thus, by this approach the “anticipatory self-defense” is allowed under international law.

The way forward

The world of new technologies is neither a world of virtual games nor it is a science fiction. Warfare in a cyberspace can cause death and damage to the real world. However, technology, in itself, is neither good nor bad, “it can be a source of good and progress or result in terrible consequences at worst.”[43] Indeed, today, none of the so called natural domains (air, maritime or space) can function if cyberspace fails which would mean going back to the time of the messenger pigeon or a drawing board.[44]

Even though international laws do not specifically mention cyber attacks, cyber warfare is not emerging in a legal hole or creating a new legal crisis. Cyber operations can be treated as a means and methods of warfare and therefore, IHL rules, that set limitations to cyber attacks through the principles of distinction, proportionality and precaution are applicable. However, the above mentioned challenges, for applying the pre-existing legal rules to a new technology, points out certain gray areas that require further analysis to determine whether these rules are sufficient and clear in light of the technology’s unique attributes. Therefore, specific cyber warfare laws or even a comprehensive treaty might be adopted in the future as technologies evolve and their impact becomes better understood.

Indeed, policy makers and military leaders all over the world are considering the implications of cyber warfare and a number of countries have already taken steps to increase their cyber-warfare capabilities, whereas NATO has listed cyber-defense as a major initiative of its new Strategic Concept.[45] However, in a view of the current political environment, where states have varying views on cyber security, most probably the technology will develop faster than laws. Hopefully, it will not only bring new challenges but also will offer effective solutions for the successful application of IHL in cyberspace.


[1] Dr. Priya Dixit, International Humanitarian Law for Cyber-Warfare, Proceedings of The National Conference

On Undergraduate Research (NCUR) 2011, New York, March 31 – April 2 2011, p. 1.

[2] Ibid., p 2.

[3] Cordula Droege, No Legal Vacuum in Cyber Space, ICRC Interview, 16 August 2011, available at: http://www.icrc.org/eng/resources/documents/interview/2011/cyber-warfare-interview-2011-08-16.htm, [accessed 28 February 2013].

[4] IV Geneva Conventions, 1949.

[5] Additional Protocols to the IV Geneva Conventions, 1977.

[6] In International Committee of the Red Cross,War and International Humanitarian Law, 2011.

[7] Joel Brenner, Cyber-Security: Regulating Threats to the Internet under International Law, ASIL Live-Blogging, available at: http://thenewinternationallaw.wordpress.com/2012/03/29/asil-live-blogging-cyber-security-regulating-threats-to-the-internet-under-international-law, [accessed 28 February 2013].

[8] Additional Protocol I, Article 36, 1997.

[9] International Court of Justice, Legality of the Threat or Use of Nuclear Weapons (General List No. 95) (8 July

1996).

[10] Michael N. Schmitt, International Law in Cyberspace: The Koh Speech and Tallinn Manual Juxtaposed, December 2012, p. 5.

[11] International Institute of Humanitarian Law, International Humanitarian Law and New Weapon technologies, 2011, p. 24.

[12] Tallinn Manual on the International Law Applicable to Cyber Warfare, Cambridge University Press 2013, available at: http://www.ccdcoe.org/249.html, [accessed 28 February 2013].

[13] Supra note 8., Article 49 (1).

[14] Supra note 1., p. 6.

[15] Supra note 3.

[16] Supra note 10., p. 7.

[17] Knut Dörmann, Applicability of the Additional Protocols to Computer Network Attacks, p. 3.

[18] Supra note 12.

[19] Supra note 12.

[20] Supra note 17.

[21] Supra note 11., p. 148.

[22] Supra note 8., Article 48.

[23] Ibid., Article 51 (4).

[24] Ibid., Article 52 (2)

[25] Bhaskar Sharma, Cyber War and Jus in Bello, December 2012, available at: http://www.foreignpolicyjournal.com/2012/12/03/cyber-war-and-jus-in-bello, [accessed 28 February 2013].

[26] Supra note 17., p. 5.

[27] Supra note 12.

[28] Supra note 25.

[29] Supra note 8., Article 57.

[30] Supra note 25.

[31] Supra note 10., p. 16.

[32] Supra note 11., p. 142.

[33] Ibid., p. 172.

[34] Supra note 12.

[35] Ibid.

[36] International Court of Justice, Corfu Channel Case (U.K v. Alb.) 1949 I.

[37] Articles of State Responsibility, Article 8.

[38] Supra note 12., p. 23.

[39] International Court of Justice, Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986.

[40] Supra note 10.,p. 9.

[41] Supra note 12.

[42] Ibid.

[43] Supra note 11., p. 182.

[44] Ibid., p. 148-152.

[45] NATO, Strategic Concept, 2010, Available at: http://www.nato.int/cps/en/natolive/official_texts_68580.htm#cyber, [accessed 28 February 2013].