Ian Henderson

New Capabilities in Warfare: An Overview of Contemporary Technological Developments and the Associated Legal and Engineering Issues in Article 36 Weapons Reviews

The increasing complexity of weapon systems requires an interdisciplinary approach to the conduct of weapon reviews. Developers need to be aware of international humanitarian law principles that apply to the employment of weapons. Lawyers need to be aware of how a weapon will be operationally employed and use this knowledge to help formulate meaningful operational guidelines in light of any technological issues identified in relation to international humanitarian law. As the details of a weapon’s capability are often highly classified and compartmentalised, lawyers, engineers and operators need to work cooperatively and imaginatively to overcome security classification and compartmental access limitations.

Unmanned Aerial Vehicles (UAVs): Do They Pose Legal Challenges?

Of all the new technologies constantly being introduced on the battlefield, unmanned aerial vehicles (UAVs) have generated significant debate. As much of that debate is couched in terms of legal issues, even where it is actually a policy debate. In general, UAV operations do not introduce new legal issues but do require a careful analysis of existing law.This chapter covers the legal rules and principles dealing with: can a state respond in national self-defence to the actions of a non-state actor acting independently of any state; can a state use force in the territory of a third state against a non-state actor (what are the geographic limits of a non-international armed conflict?); what is the status of a civilian operator of a UAV in a non-international armed conflict (the status of a civilian operator in an international armed conflict is more settled); and is there is an obligation under the law of armed conflict to positively consider the option of capture prior to attempting to kill?While the authors believe that there are preferred legal positions to be adopted on these points, it would be misleading to indicate that there are concluded positions that represent ‘the law.’

Remote and Autonomous Warfare Systems – Precautions in Attack and Individual Accountability

The long and tragic history of human warfare manifests an endless quest for more effective ways to conduct attacks and defeat adversaries. This has in turn driven innovation in means and methods of defence against attacks. Remote warfare exemplifies both streams of development. The ability to conduct effective attacks at great distance from your own forces is a significant advantage in attack. Similarly, the ability to distance military personnel from the effective range of enemy weapons is a significant advantage in defence. Military forces have sought these advantages since time immemorial.Modern remote weapon systems, including vehicles that can be operated remotely, are but the latest element in this continuum of development. For a variety of reasons, the means of remote warfare that involve armed remotely operated vehicles have evoked significant social, political and legal reactions. The next evolution, autonomous weapon systems (AWS), inherent in which is the concept of autonomous decision making by machines to conduct attacks on human beings, arouses visceral trepidation for many and has given rise to calls for bans before the technology can be developed. The potential development of remote AWS is an important topic for legal and ethical discussion by governments, non-government organisations and scholars. This chapter discusses the legal dimensions of remote AWS, analysing how the precautions in attack in Article 57 of Additional Protocol I might apply to such systems and how the persons creating or using such systems may be held accountable under international humanitarian law for outcomes of their use.The authors suggest that this analysis of the law has demonstrated that neither remote warfare systems nor autonomous weapon systems are means of warfare that are currently proscribed by the law of armed conflict. Like all means of warfare, there are methods of use of these systems that may contravene the law of armed conflict. There is no doubt that continued developments in remote and automated systems will inspire further study of the law as it applies to such systems and further advocacy for what the law ought to be. It also seems that the developments in remote and autonomous systems may be destined to change the role played by combatants; but it appears unlikely that this will reduce the role played by lawyers.