Smart Weapons: Does the World Need New Rules for Modern Warfare?

By Dr Inas Mohamed Ahmed
Armed conflict is a social phenomenon that has accompanied the development of human civilisation since the dawn of history. In earlier times, warfare was governed by established customary rules recognised among states. Efforts were later made to codify those rules, leading to the adoption of the 1864 Geneva Convention, which sought to improve the condition of wounded soldiers on the battlefield.
This was followed by the 1868 St Petersburg Declaration prohibiting the use of certain projectiles in war, the Hague Conventions of 1899 and 1907, the four Geneva Conventions of 1949 and their Additional Protocols of 1977. The first written code governing naval warfare also appeared in 1929. Together, these instruments formed the first comprehensive legal framework regulating the conduct of both international and non-international armed conflicts.
Following the First World War, from 1914 to 1918, and the Second World War, from 1939 to 1945, and after the establishment of the United Nations on 24 October 1945, international legal scholars sought to develop measures for maintaining international peace and security in accordance with the principles of the United Nations, replacing the earlier system based on the balance of power.
International humanitarian law subsequently established the principles governing and restricting the conduct of armed conflict, whether international or non-international. Among its most important rules are those concerning the types and uses of weapons. It prohibits weapons that cause excessive suffering, unjustifiable losses, long-term harm or unnecessary human suffering without contributing to a legitimate military objective.
As armed conflicts and wars expanded across many parts of the world, legal experts recognised that a significant regulatory gap had emerged and needed to be addressed. This led to the adoption of the 1980 United Nations Convention on Certain Conventional Weapons, which created a framework for prohibiting or restricting weapons regarded as excessively injurious or indiscriminate.
The world, however, did not become less violent. Wars multiplied, weapons proliferated, military technology advanced, and the international arms trade flourished. In response to these rapid developments, subsequent international declarations and the 1995 report of the International Committee of the Red Cross reinforced prohibitions on poisonous, asphyxiating and other weapons harmful to human beings and the environment. Restrictions were also placed on biological, chemical and bacteriological weapons, blinding weapons, nuclear weapons, certain explosive projectiles and weapons whose fragments cannot be detected in the human body by X-ray.
The methods of warfare have since changed dramatically. New forms of weaponry, particularly autonomous weapons systems, have altered the character of armed conflict. Wars are increasingly becoming “smart”, relying on applications of artificial intelligence.
This development poses a major challenge to international humanitarian law. Questions arise concerning the damage caused by such weapons, their legality, the reasons states resort to them, the international responsibility arising from their use, and the extent to which they comply with the principles of humanitarian law.
We now live in an era in which warfare has moved beyond its traditional form into the digital sphere, with artificial intelligence, or AI, playing an increasingly prominent role. Autonomy has become a feature of the technological system surrounding a weapon rather than of the weapon alone.
This creates difficulties in determining the legal status of such systems, because the four Geneva Conventions of 1949 and their Additional Protocols of 1977 may not provide sufficiently precise answers to all the questions they raise.
The central question therefore remains:
To what extent are autonomous weapons constrained by the existing principles of international humanitarian law?
Under the binding principles of international humanitarian law, states must comply with the principle of distinction. This principle is part of customary international law and cannot be disregarded. Its purpose is to protect civilians and civilian objects by requiring parties to distinguish between military targets and civilian persons or property.
If autonomous weapons are unable to distinguish between military objectives and civilian objects reliably and therefore fail to achieve the intended military benefit without causing unlawful harm, the principle of distinction is not satisfied and a violation occurs.
The second principle is proportionality, a cornerstone of the legal protection afforded to civilians and civilian objects against military attack.
The principle first appeared in the 1868 St Petersburg Declaration, was later reflected in the 1907 Hague Convention, and was further developed in Article 35(2) of Additional Protocol I to the 1949 Geneva Conventions.
Its purpose is to ensure a reasonable relationship between the harm inflicted upon an adversary and the anticipated military advantage resulting from the use of force.
This principle requires parties to take all feasible precautions during military operations. But how can this requirement be fulfilled when autonomous weapons are used?
The third principle is military necessity. This means that force may be used to weaken or defeat an opponent and, where necessary, to destroy their material, military, and human capabilities to achieve a legitimate military objective.
The difficulty lies in determining how to assess the necessary degree of force when autonomous weapons are involved.
Force must be limited to what is required to achieve the military objective and must not be directed against civilians or civilian objects. The question is whether autonomous systems can consistently satisfy this requirement.
The fourth principle is the duty to take precautions in attack, particularly precautions aimed at avoiding or minimising harm to civilians and civilian objects. This becomes especially difficult in urban warfare, where military and civilian environments are closely intertwined.
These principles must be respected regardless of whether the weapons used are traditional or modern. The values and rules of international humanitarian law remain constant, while the technologies of warfare continue to change. This leaves the international community facing a considerable legal challenge.
Another problem concerns criminal and international responsibility.
International humanitarian law generally imposes criminal responsibility upon natural persons who commit war crimes or crimes against humanity. Yet where an autonomous weapon is used, the operator may simply be carrying out orders issued by military commanders.
Would the state then be required to compensate civilians for harm caused by an internationally wrongful act, by a failure to act, or even by conduct that is technically lawful but creates a grave risk and causes severe injury through the use of an autonomous weapon? How should such responsibility be assessed?
International humanitarian law addresses human beings who commit war crimes and crimes against humanity. In the case of autonomous weapons, however, should responsibility fall upon the programmer, the manufacturer, the commander, the operator or the state?
Rules governing accountability and international responsibility must therefore be developed. International systems of intelligent monitoring should also be introduced, multilateral dialogue strengthened and ethical codes adopted to ensure that the humanitarian consequences of smart weapons are properly considered.
Experience has shown that technology also affects state sovereignty, particularly because satellites and digital systems can cross borders with ease.
Will international law eventually recognise a concept of digital sovereignty? Can the principle of non-intervention survive increasingly sophisticated technological intrusions?
How should the law classify an attack carried out by one state through the penetration and destruction of another state’s critical infrastructure? What form should international responsibility take in the digital environment?
The real challenge lies in the inability of international humanitarian law to keep pace with the speed at which smart weapons and cyberattacks are being developed and updated.
Cyber operations may target information technology systems, energy supplies, logistical networks, communications, and vital infrastructure that depend on digital technology. Such attacks may seek to disable these facilities, seize stored information, damage it, erase it or alter it.
These are forms of unconventional warfare.
In response, the international community adopted the 2001 Budapest Convention, formally known as the Council of Europe Convention on Cybercrime. It was the first binding international treaty designed to coordinate national laws and international efforts against crimes involving computer networks and the internet.
Although it began as a regional treaty, it represented an important first step and later provided a wider framework to which states beyond Europe could accede.
This was followed by the Tallinn Manual, a non-binding international academic reference prepared under the auspices of the NATO Cooperative Cyber Defence Centre of Excellence. It examines how international law applies to international armed conflicts and cyber operations.
The first edition, published in 2013, focused on cyber operations during armed conflict and contained 95 rules intended to guide state conduct in cyber or “smart” warfare. A second edition, published in 2017, extended the analysis to peacetime and contained 154 rules addressing hostile cyber operations.
Despite its considerable scholarly value, the Tallinn Manual is neither legally binding nor sufficient to regulate cyber conduct and the use of smart weapons between states.
A comprehensive international agreement is therefore urgently required. Such an agreement should protect civilians, balance digital security with state sovereignty, and establish clear and effective controls over the use of autonomous and intelligent weapons.
The fires of war are unlikely to disappear from a world already overwhelmed by armed conflict, while technological progress in weaponry continues at a pace that no existing treaty has yet been able fully to restrain and no current convention has successfully brought under comprehensive control.

Shortlink: https://sudanhorizon.com/?p=16168