Assessing LOAC Compliance and Discourse As New Technologies Emerge: From Effects-Driven Analysis to 'What Effects?'
Forthcoming, The Impact of Emerging Technologies on the Law of Armed Conflict
20 Pages Posted: 27 Apr 2018
Date Written: April 22, 2018
This chapter explores the consequences for effective discourse about LOAC compliance of new technologies that intentionally or effectively mask the effects of an attack, the location or identify of the attackers, or even the very existence of an attack at all during armed conflict. As new weapons technologies are developed and put into use, increasingly basic questions about whether an attack even occurred or who or what was attacked may well accompany these advancements in technological capacity and introduce new twists into the legal discourse and future development of the law. The potential for such developments triggers the need to examine what this lack of information and attribution will mean not only for the actual application of the law but also for the discourse about the law. As new weapons and technologies emerge that hinder or eliminate our ability to see the effects of attacks, to make the necessary connections between cause and effect, or to even identify the existence of an attack, however, these developments may well erode the current trend towards an effects-driven, outcome-based analysis — which, although incorrect as a matter of law, nonetheless has captured the attention of media, advocacy groups and others. Examining how legal compliance can or would be assessed in such situations of new technologies is therefore useful to help enhance both implementation and analysis of the law. For example, advocacy groups and other commentators may seek to identify other markers of effects, which could raise new questions about legal analysis and methodologies. Similarly, the lack of visible or otherwise identifiable actions and consequences may compound the already challenging task that militaries and governments face in explaining military operations and the nature of their compliance with the law.
The first section frames the problem that new technologies may pose for assessing LOAC compliance, highlighting what may be, in essence, a new “effects problem.” These problems include situations where the effects of an attack are unclear or cannot be seen at all, where the connection between the weapon or attacker and the effects cannot be identified, and where a harm may occur but it is unclear or impossible to tell that there was an attack. The second section then addresses the consequences of this potential new “effects problem,” examining the challenges of legal analysis in the absence of externally identifiable information about what happened, who suffered what effects, or who launched what type of weapon or attack. In addition, this section seeks to identify pressure points for LOAC analysis in the context of new technologies that place stressors on the traditional tools and touchstones of legal analysis.
Keywords: law of armed conflict, technology, cyber, nanotechnology, robots, autonomous weapons, international humanitarian law, geneva conventions, targeting, proportionality, distinction, precautions
Suggested Citation: Suggested Citation