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Jack Beard: Law and War in the Virtual Era

My old friend and classmate, Jack Beard, has an excellent article in the latest issue of the American Journal of International Law entitled, “Law and War in the Virtual Era.” In the day and age of Unmanned Aerial Vehicles and other such weapons, Professor Beard raises a number of critical legal issues for the law of armed conflict. Here is his conclusion:

Virtual military technologies are taking law, war, and military institutions on an uncharted path into the future at breakneck speed. Some of the transformational effects of these new weapons systems are clear; others are still emerging. One undeniable fact is that remotely controlled and semiautomated weapons systems are continuing to assume new, important roles in military operations in more and more countries throughout the world. Further-more, 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–or “virtual combatants”–are systematically replacing human combatants, paving the way for armed conflicts in which humans will increasingly be absent from the battlefield and many dangerous war-fighting missions. n165 At some point, the replacement of humans by virtual combatants and the corresponding lack of concern about the death or capture of military personnel could even challenge two conditions seen by some [*443] as limiting the willingness of states to comply fully with and enforce their law-of-war obligations in conflicts with terrorists: reciprocity and symmetry. n166 While states will always have humanitarian, political, strategic, and military reasons to comply with law-of-war obligations even if terrorists can be expected to ignore them, eliminating the need for reciprocity and symmetry could nonetheless contribute to relieving pressure on states to pursue harsher measures against terrorists and other militant groups outside the law-of-war framework.

The movement toward virtual combatants does not come without risks or dangers. The long-term and understudied consequences of replacing human combatants with virtual ones raises fundamental questions in many fields. One problematic area, which lies beyond the scope of this article, concerns the overall consequences of this phenomenon for the jus ad bellum, or international law governing recourse to war. 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. n167

The power of virtual technologies to improve the observance of the jus in bello gives rise to the contrasting concern that these technologies remain dependent on the competence of human operators. Who is to be entrusted with operating virtual weapons systems and how will those persons be affected by these technologies? Although it remains to be seen whether virtual technologies will create an elite class of techno-warriors, states will certainly have to focus on at least one key factor for future operators of these systems: aptitude. An increasingly high-tech U.S. Army already needs soldiers with a high degree of aptitude. A 2005 study by the Rand Corporation commissioned by the Pentagon evaluated a variety of factors affecting military performance; it found aptitude to be critical and concluded that it becomes even more important as tasks become more technical. n168

The implications of the emerging robotic military model for human staffing, recruiting, and training requirements are complex and far-reaching. In shifting from a model in which the primary purpose of technology was to support human combatants to a model in which the role of humans is to support the technology, the robotic military will necessarily demand greater levels of technical competence from the human “robotists.” As these demands for greater competence proliferate and virtual technologies merge humans and machines even more [*444] closely, each component of these new virtual weapons systems, along with the sum of their parts, will continue to be scrutinized. It is in this context and on this basis that law-of-war obligations in the virtual era will be assessed.

The virtual era is rapidly expanding to encompass the entire international community. 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. n169 The acquisition by many countries of UAVs manufactured in the United States, France, and Germany; by Georgia and India of UAVs manufactured in Israel; and by Pakistan and Egypt of UAVs manufactured in China demonstrates that the implications of the virtual era already extend far beyond U.S. military operations alone. n170 This growing worldwide familiarity with UAVs, even if some countries use them only for basic reconnaissance or artillery-spotting missions, will inescapably direct more attention in the future to the improving ability of military forces, especially those belonging to states that can afford to deploy many advanced systems, to verify objectives and take other precautionary measures to ensure observance of the proportionality principle in attacks.

Virtual technologies are thus on the verge of significantly shaping the views and conduct of all states, even those that do not possess them or cannot afford to deploy them in great numbers. New, extensive virtual surveillance capabilities come with new burdens for the states that benefit from them–burdens that are more and more likely to be invoked by poor or other less technologically advanced states in any discussion about the corresponding legal duties. The developed states that seek to avoid these burdens may again find themselves haunted by the new legal content of words such as “available.” Once relied upon as permissive terms, these words may now unexpectedly impose constraints. For example, at the diplomatic conference that ultimately adopted Protocol I, one state observed that the obligation to identify military objectives as targets under Article 57(2) “depended to a large extent on the technical means of detection available to the belligerents.” n171 In its Commentary, the International Committee of the Red Cross agreed, observing that ” [s]ome belligerents might have information owing to a modern reconnaissance device, while other belligerents might not have this type of equipment.” n172 Drawing on such considerations, less developed states can argue that richer countries with extensive, widely deployed and sophisticated virtual surveillance capabilities and unprecedented access to once-unimaginable levels of ISR information are subject to a higher standard of care in verifying targets as military objectives and taking other precautionary measures.

The more exacting legal standards likely to flow from virtual surveillance capabilities will not be diminished by the global newsroom, which increasingly enhances its reporting with video [*445] footage furnished by virtual platforms overhead. Even the five-day standoff and military action against Somali pirates holding an American hostage on a small lifeboat in a remote corner of the Indian Ocean in April 2009 were not exempt from news reports showing video footage from a UAV used by U.S. forces in the operation. n173 When a military operation is not successful or what actually happened is disputed, no small similarity may be remarked to the instant replay so familiar to American football fans; although it may lack the assigned referees, the process involves a close examination of digitally recorded facts, subjects disputed calls to wide public debate, prompts a more exacting application of rules, and sometimes leads to the refinement of those rules. Similarly, whether the home team likes the call or not, a new era of openness and debate has arrived, and with it new life for some of the rules on the playing field.

Virtual weapons systems are poised to transform the conditions of future battlefields for humans and change law, war, and military institutions in profound, far-reaching ways. While military-technological advances have routinely worsened the plight of civilians in war and made law an even more distant concern on the battlefield, virtual technologies are unexpectedly bringing laws that protect civilians closer to war than ever before. These technologies are in fact giving unprecedented traction, transparency, and relevance to venerable jus in bello rules that states have often ignored, manipulated, or consigned only to theoretical applications. At the same time, virtual technologies are refashioning the way military operations are conducted, the way military institutions function, and the way objectives are defined in war itself. The implications of the dawning virtual era deserve to be more carefully studied across a wide spectrum of human behavior. For the military institutions that must address the unfolding consequences of virtual technologies originally designed to help project military power, such a project is in some respects a study in irony.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.