Law and Technology: The Changing Face of War and its Legal Ramifications

Over the last ten years, leaps in technology have led to warfare being augmented by developments that would seem to be more suited to science fiction.  However, the use of drone warfare, cyberwarfare, and data mining has caused a dramatic shift in the way a war is thought of and conducted, in addition to raising a multitude of legal and ethical issues.  The usage of drones in warfare is not only controversial due to the possibility of remote-controlled or automated killing, but also due to issues of whether an unmanned vehicle can violate a nation’s sovereignty.  Cyberwarfare allows an entity to launch difficult-to-trace attacks with impunity, but also blurs the line between a military combatant and civilian noncombatant.  Data mining, though advocated as extremely useful for collecting intelligence, quite possibly violates a person’s right to privacy.  These new tools are powerful assets to a group or nation in the modern world, but carry heavy ethical and legal baggage that must be rapidly addressed.

Over the course of human history, weapons used in war have generally striven to inflict more damage faster from farther away.  The medieval ages saw the development of the trebuchet, designed to knock down castle walls from afar, reducing the need for soldiers to risk their lives by scaling the castle walls.  The last century saw the development of machine guns, tanks, and effective indirect artillery, all of which contributed to the destruction caused by the World Wars, among others.  However, each of these weapons, though employing some degree of automation, still required the input of a human operator in the process of activation.  With the rise and development of drone warfare, this aspect is being phased out.  Autonomous drone warfare poses a plethora of legal and ethical issues that may change the very nature of our current society’s view of war.

Drones are vehicles that are either autonomous or controlled by a remote operator (teleoperated) with no human crew within the vehicle.  These may operate on air, land, or sea for research, military, or recreational purposes [1].  While remote-controlled vehicles have been present for almost a century, they have been used mainly in target practice or observation roles in the military.  From the 1960s to the 1990s, unmanned aerial vehicles were used by militaries in military reconnaissance roles, identifying enemy positions without risking a human life to pilot the aircraft.  However, the most publicized and controversial use of drones has occurred in the last decade in the United States’ wars in Afghanistan and Iraq.

When one thinks of a robot assassin, the first thing that comes to mind is the humanoid, metallic skeleton of the Terminator of Arnold Schwarzenegger fame.  In reality, this is not so.  The General Atomics MQ-1 Predator is a teleoperated unmanned aerial vehicle (shaped very much like a conventional aircraft) utilized by the United States Air Force (USAF) and Central Intelligence Agency (CIA).  While originally conceived as a reconnaissance vehicle, it was retrofitted with laser-guided Hellfire missiles in February 2001 in a CIA plot to assassinate Osama Bin Laden.  Since then, Predators have been used as missile launching platforms in the assassination, strike, and close air support roles.  Predators and similar drones operated by the US military are designed to find enemies with a suite of advanced sensors and then destroy them with laser-guided missiles and bombs [2].  Drones in Pakistan and Afghanistan can be launched in an airbase near an area of operation.  However, they are controlled by humans from airbases in the US through unencrypted satellite links.  Similar drones are programmed before launch to carry out a series of tasks and then autonomously perform them before returning to base.

Drone warfare may end up “sanitising” the act of killing.  Artillery has the ability to kill from many kilometres away, and statistics from World War II shows that most casualties were inflicted by artillery crews, who were detached from fighting and therefore able to perform their job efficiently with little remorse as compared to other soldiers.  Drone operators are often an entire world’s distance away from the drones they operate and the people they kill, operating their drones with video-game like controls and communicating with friendly forces over a long-distance radio.  Would a soldier manning a drone be more inclined to use deadly force because of his/her physical detachment from combat?  When the military is largely composed of robotic ground vehicles with weapons attached, human losses in combat would be minimal, possibly desensitizing society to the costs and effects of war.  Current drones record everything they see, and many clips circulating on the internet consist of footage of drones killing or observing intense combat situations.  These clips have been set to music and posted on YouTube and other websites, potentially causing society to view war and bloodshed as entertainment.

Ethical issues also arise in using a machine that can kill without the input of a human operator.  Almost every weapon used in war needs a human controller to decide when or when not to engage a target.  Current development of drones includes autonomous sentry guns (such as Samsung’s recent sentry gun designed to protect the North Korean-South Korean Demilitarized Zone) and aircraft (the Boeing X-45 unmanned combat aerial vehicle) that can engage and destroy targets without the intervention of a human operator.  The closest possible analogue to autonomous drone warfare is the land mine, which is often victim-operated; that is, the victim of the land mine sets it off.  However, due to the indiscriminate nature of land mines, many nations have already signed the Ottawa Mine Ban Treaty, which bans victim-operated land mines [3].  It is as of yet unknown how autonomous drones, which have software to distinguish between enemies and civilians, will fare.

The current laws of war are vague in relation to drone combatants.   Because of their special attributes, drones are regularly operated in Pakistani’s autonomous tribal regions, as they have no human personnel onboard to violate national sovereignty.  Drones are considered military materiél, yet they function in a manner similar to an independent combatant.  One interpretation of international law would classify drones as soldiers who would be subject to international law and capable of violating national sovereignty, while an alternate interpretation regards them as simply munitions fired by a human combatant.  Currently, many CIA-operated drones are operated by civilian, non-uniformed personnel in Langley, Virginia.  In the shaky eyes of the Fourth Geneva Convention [4], these operators could either be considered unlawful combatants or noncombatants.  If drones cause civilian casualties (as has occurred repeatedly in Pakistan), no precedent or rule exists for the placement of responsibility.  And when a glitch causes a malfunction in an autonomous drone that causes civilian casualties, who should be held responsible – the military who deployed the drone or the company that built it?  Currently, UAVs such as the Predator are controlled through unencrypted satellite links.  It is theoretically possible for a third party group to “hijack” a drone by using a similar satellite link and possibly carry out war crimes with the equipment of the nation that originally owned the drone. In such a scenario, it is difficult to prove that a drone was really hijacked and even more difficult to trace the hijacker.  Such questions become extremely important when determining who would be held responsible for illegal actions committed by an autonomous drone.

It is also important to consider how drone warfare affects the current political distribution of power.  In the past, manpower has been a significant determining factor in the power of a military or a nation.  With drones, it is theoretically possible for a small group of people to possess a larger or more powerful military force than a nation state, replacing soldiers with autonomous drones.  Military power would therefore be determined less by traditional markers such as manpower or morale, but by technological and financial capacity.  Additionally, as technology advances, technology required to build relatively simple drones would become less expensive, allowing a terrorist organization to employ low-cost drones to inflict substantial damage with minimal risk of life to the operator.  The most basic example of this philosophy is a RC car filled with explosives, strapped to a camera, and operated by a laptop.  Suicide bombers have already been employed as a popular means of waging asymmetrical warfare, but the availability of cheap, effective, and widespread drone technology would tip the balance of power firmly in the direction of insurgents.  As conventional and unconventional military powers begin to employ drones in greater numbers, one cannot ignore the possibility of a future where all wars are conducted through robots against other robots, stripping armed conflict of any human cost and significance [5].

Potential economic implications of increasing automation in warfare may lead to the growth of the military-industrial complex [6].  Unlike human soldiers who are recruited into armed forces, robots are manufactured.  Current military equipment is usually designed and manufactured by private companies that are contracted by government.  If more and more humans are replaced by drones, more and more drones would probably have to be purchased from and manufactured by private companies.  This shift in defense spending could very well increase the size of the military-industrial complex.  Defense industries would not only receive more money from drone purchases, but would thereby become even more important in the security of nations.  It is conceivably possible that drone producers would be able to field their own armies of drones, as they control the means of producing them.  Currently, it is nigh guaranteed that defense contractors would gain more power and influence through the increased use of drones.

The issues of drones in the world with regards to war, power, and military force have not been addressed by conventions and laws formulated in the previous century.  Currently, many military powerhouses (Russia, China, India, etc.) all possess and operate military drones, making the issues of drone warfare causes for international concern as more groups and nations acquire and deploy drones in combat.  Laws pertaining to war and warriors are inadequate in relation to the issue of drone warfare.  If the characteristics and responsibilities of drones are not clearly established in new law, then they must be determined by precedent, giving free reign to militaries to operate within the legal dead areas of warfare with little heed to the actual consequences of using so many drones to replace humans in war.  Drone warfare’s newly impersonal qualities may change our view of war or change the world’s balance of power as we know it.  Action must be taken to address these problems.

References
1.  Streich, M. (2010, March 12). Drone Warfare in the 21st Century. Retrieved from http://www.suite101.com/content/drone-warfare-in-the-21st-century-a212583.
2.  RQ-1 Predator MAE UAV [Fact Sheet]. (n.d.). Retrieved from GlobalSecurity.org website: http://www.globalsecurity.org/intell/systems/predator.htm.
3.   International Humanitarian Law- Ottawa Treaty, 1997. (1997, September 18). Retrieved from http://www.icrc.org/ihl.nsf/INTRO/580.
4.  The Laws of War. (n.d.). Retrieved from http://avalon.law.yale.edu/subject_menus/lawwar.asp
5.  PW Singer on military robots and the future of war [Video file]. (2009, April). Retrieved from http://www.ted.com/talks/pw_singer_on_robots_of_war.html.
6.  Eisenhower warns us of the military industrial complex. [Video file]. (2006, August 4). Retrieved from http://www.youtube.com/watch?v=8y06NSBBRtY.

Peter is a senior at the Harker School in California

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  • John Smith

    The implication that drones are autonomous weapons is ridiculous. Drones have pilots similar to older war planes. The pilots fly the drones from a distance much like marksmen shoot a weapon from a distance. Should we outlaw war with guns, because the warrior is not using a knife or sword to fight his enemy hand to hand?