Artificial Intelligence in Warfare: How is it a contemporary challenge to the principle of distinction?

November/26/2020

Author: Yoseph Genene

Image source: https://thebulletin.org/2018/04/why-the-world-needs-to-regulate-autonomous-weapons-and-soon/

Have you ever wondered how YouTube videos are recommended for you or how the ads and suggestions relating to your previous activities on the internet like Facebook or any other social media platforms came from? Saving the data and privacy concerns for another time, the immediate answer we get for what’s behind all these is artificial intelligence algorithm. More than we care to admit, Artificial Intelligence (AI) is tremendously affecting our daily lives.

Humanity has always been fascinated about creating an artificial life. The concept of AI as some researchers argue dates back to ancient Greek mythologies. Hesiod`s Talos, the bronze man to be the warder of crete incorporate the idea of intelligent robot. Hesiod’s originally described Pandora as an artificial, evil woman built by Hephaestus and sent to Earth on the orders of Zeus to punish humans for discovering fire.

Oxford dictionaries define AI as a theory and development of computer systems able to perform tasks normally requiring human intelligence, such as visual perception, speech recognition, decision-making, and translation between languages. Humankind has a lot of experiences pulling in emerging technologies to military use; AI is no exception. IHL is not opposed to new technologies in warfare. Nonetheless, it requires that any new technology of warfare must be used, and must be capable of being used, in compliance with existing rules of IHL.

One of the fundamental principles of IHL which is the principle of distinction dictates that “the parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians”.

Combatants must also distinguish themselves (i.e., allow their enemies to identify them) from all other persons (civilians), who may not be attacked nor directly participate in the hostilities. 

The introduction of AI in armed conflicts has perceptibly brought challenges in IHL, especially to the principle of distinction. Such technological fifth generation warfare methods cannot discriminate between combatants and non-combatants or other immune actors such as service workers, retirees, combatants that are wounded, have surrendered, or are mentally ill in a way that would satisfy the principle of distinction. For example, in Pakistan an attempt to kill 41 men resulted in the deaths of an estimated 1,147 people. Also, in Yemen 17 named men were targeted multiple times but the strikes on them killed 273 people; at least seven of them are children. Both attacks were conducted by US drones. From 2004- 2014 the number of US drone strikes in Pakistan reached 400. Research by the Bureau of Investigative Journalism finds that fewer than 4% of the people killed have been identified by available records as named members of Al- Qaeda.

What jeopardizes the principle of distinction is that we do not have an adequate definition of a civilian that we can translate into computer code. The Geneva conventions do not provide a definition that could give a machine with the necessary information. Additional Protocol I defines a civilian in the negative sense as someone who is not a combatant. AI lack components required to ensure compliance with the principle of distinction. First, they do not have adequate sensory or vision processing systems for separating combatants from civilians. Even if the machines had adequate sensing mechanisms to detect the difference between civilians and uniform-wearing military, they would still be missing battlefield awareness or common sense reasoning to assist in discrimination decisions, as like article 44(3) of the Additional Protocol I of the Geneva Conventions acknowledges, “there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself.”

SKYNET, uses machine learning algorithm on the cellular network metadata of individuals to try and rate each person`s likelihood of being a terrorist. As most big data businesses, 0.0008% false positive rate seems very low. But, unlike other businesses its failure is not about unwanted YouTube recommendations or displaying an ad to the wrong person; here it is between life and death of a human being. Therefore, if we take 0.0008% of let’s say 60 million population its 48,000 innocent civilians that will be targeted. Accordingly, AI algorithm will consider them as a as threat and certainly they will be a victims of an attack.

IHL states that solely the presence of military or civilians direct participation in hostilities (DPH) among the civilian population does not deprive the population a protection from an attack. This requires the need for military commanders to issue context-based decisions. In addition, identifying hors de combat and combatants or civilians DPH surrendering also require a contextual analysis, and the ability to interpret human intentions. AI inherently lacks both capabilities, which are of a paramount importance according to IHL. 

The ideal solution for AI in warfare to comply with the principle of distinction would be full-fledged automatization of the battlefield in the foreseeable future. Thereupon, it will lead us to “bloodless fights” due to the exclusion of humans from the battlefield with combat predominantly conducted between AI guided machines.

When we come to the feasible measures to achieve the ultimate purpose of IHL which is to limit effects of armed conflict for humanitarian reasons, and particularly to exercise the principle of distinction in warfare we can suggest two recommendations. The first one will be arranging methods to team up human intelligence in interpreting machine languages inputs. Secondly, the international community should closely monitor conflicts that implement the use of AI in warfare so as to further prevent, halt and sanction actions of the perpetrators.

Yoseph Genene is an undergraduate student at the School of Law, College of Law and Governance Studies, Addis Ababa University. He can be reached through the email address geneneyoseph@gmail.com or twitter @geneneyoseph.

International Humanitarian Law – a legal framework to safeguard African States against the effects of hostile cyber operation

Authors: Dr. Tilman Rodenhauser, Thematic Legal Advisor, ICRC HQ

                 Raji Gezahegn, Legal Advisor, ICRC Delegation in Ethiopia

Image source: https://thinkrcg.com

   

Around the world, societies are digitizing. The African continent is no exception. In fact, it is a front runner in certain areas, such as mobile-money services. There are great opportunities in the digital transformation of societies, including for the delivery of health services, mobile banking, communication, educational resources, e-government services and new infrastructure projects. However, there are also risks that these services be disrupted through the malicious use of information and communication technology (ICT) by States and non-State actors. This risk is particularly acute for States with rather weak cyber security systems – according to the ITU 2018 Global Cyber security Index many African states are among them.

‘Cyber Security’ is a flagship project of the African Union’s Agenda 2063. Experts argue that African States should consider a range of measures from coordination and cyber capacity building at national, regional, and global level, to developing a robust international legal framework to protect States and their citizens from digital threats. In this post, we argue that cyber operations are increasingly being used in armed conflicts, African States should embrace the applicability of international humanitarian law in cyberspace as a safeguard against the harmful effects of hostile cyber operations conducted during on-going or future armed conflicts. While African States may not be involved in these conflicts, cyber operations – in particular unlawful indiscriminate attacks – risk spreading beyond the confines of one conflict affect African States incidentally.

The risk of human harm through cyber operations

Cyber operations pose a real risk of human harm. Cyber security experts warn against a ‘humanitarian crisis in the making’. This risk is particularly important when critical infrastructure is targeted through cyber operations. Attacks against medical infrastructure (seen around the globe during the COVID-19 pandemic, including in South Africa) or water and sanitation systems can affect the health and lives of citizens. Attacks against electricity providers (as witnessed in Johannesburg in 2017) or against mobile money systems can cause significant societal and economic disruption.

In a recent statement of the African Group in the United Nations Open-Ended Working Group on ICTs, 54 African States framed the threat as follows:

“A number of States are developing ICT capabilities that could be used for malicious and offensive military purposes. These technologies easily proliferate to non-state actors. All these developments coincide with increasing tensions at the international levels and a new arms-race. The risk of harmful ICTs attacks against critical infrastructure is both real and indeed very serious.”

This assessment corresponds with the International Committee of the Red Cross’ (ICRC) warning that with an increasing number of States developing military cyber capabilities, ‘the use of such capabilities is likely to increase’.

International humanitarian law as a protection framework in cyberspace

International humanitarian law (IHL) is the field of international law that applies during armed conflicts. Most IHL rules aim to protect civilians and civilian infrastructure against the effects of hostilities. Of course, in the Geneva Conventions of 1949 and their Additional Protocols of 1977 States defined these rules having in mind armed conflicts fought with conventional weapons – but the drafters had sufficient foresight to explicitly include rules making clear that IHL also applies to future weapons, means or methods of warfare (see article 36 Additional Protocol I). While some States have raised questions about the applicability of these rules to cyber operations, In 1996, the International  Court of justice stated that the established principles and rules of humanitarian law applicable in armed conflict apply ‘to all forms of warfare and to all kinds of weapons’, including ‘those of the future’. Undoubtedly, this includes cyber operations during armed conflicts. Similarly, the ICRC has long held the view that IHL ‘limits cyber operations during armed conflicts just as it limits the use of any other weapon, means and methods of warfare in an armed conflict, whether new or old’.

In the debate around the applicability of international law in cyberspace, legal experts and policy makers – including in Africa – may wonder whether IHL should be their priority. After all, in many States armed conflicts are fought with guns, not with laptops and malware. Are cyber operations not taking place at a ‘safe distance’ from African States?

In cyberspace, this approach would be dangerous. Because of the interconnected nature of cyberspace, attacks carried out against one State affects many others – wherever they are located and irrespective of whether they are involved in the conflict. For example, malware such as WannaCry or NotPetya infected computers in many countries at peace, first in Asia or Europe before spreading around the globe and also affecting African States. Having strong international rules applicable to cyber operations during armed conflict and insisting that IHL is respected should be a cyber security-concern for all States – for their own protection.  

IHL prohibits the development and use of malware that targets civilian objects (including what is sometimes called ‘critical civilian infrastructure’) or that spreads automatically and affects military and civilian targets without discrimination. Likewise, parties to conflicts are prohibited from carrying out an attack – including through cyber means – that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. These are but two examples of the rules that all States have an interest – and an obligation – to see respected.

The way forward: speaking law to power

In 2018, States established two United Nations processes on ICT security (the Open-Ended Working Group and a Group of Governmental Experts). In both processes, States are mandated to study the legal framework governing cyberspace. While States’ views diverge on questions such as whether a new treaty governing cyberspace is needed, especially those States that risk being intentionally targeted or becoming unintentionally affected by cyber operations should have a strong interest and obligation in stressing that existing rules of IHL apply and restrict cyber operations during armed conflicts. In 1977 already, States agreed that IHL cannot ‘be construed as legitimizing or authorizing any act of aggression or any other use of force inconsistent with the Charter of the United Nations’. Indeed, IHL must not be regarded as undermining United Nations Charter but as an additional layer of protection for civilians and civilian infrastructure.

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“Dr. Tilman Rodenhäuser is a legal adviser at the International Committee of the Red Cross (ICRC). The views expressed on this blog are his own and do not necessarily reflect those of the ICRC. Prior to joining the ICRC in 2016, Tilman has worked with the German Red Cross, the think-tank DCAF, the NGO Geneva Call, and the United Nations, with missions in Africa and the Middle East. Tilman holds a PhD from the Graduate Institute of International and Development Studies in Geneva and recently published the monograph Organizing Rebellion: Non-state armed groups under international humanitarian law, human rights law, and international criminal law(OUP, 2018). He has also published various articles in renowned international journals and received different awards for his work. He can be reached at trodenhauser@icrc.org”

“Raji Gezahegn a legal adviser at the International Committee of the Red Cross (ICRC). The views expressed on this blog are his own and do not necessarily reflect those of the ICRC. Prior to joining ICRC, Raji worked as Lecture of Law for several years. Raji holds two graduate degrees in Public International  Law and International Human Rights Law from Addis Ababa University and University of Essex respectively. He can be reached at graji@icrc.org “

Cluster Munitions in South Sudan: Setting the Legal and Policy Framework to Humanitarian Ends

By Marco Chol, Legal Advisor, International Committee of the Red Cross at South Sudan Delegation in Juba

Photo Credit: U.S. Air Force

Cluster munitions release explosive submunitions: small, unguided explosives or bomblets that are designed to explode prior to, on or after impact. Theses bomblets disperse over a large area and often fail to ‘detonate as intended, lying on the ground for years, even decades, after the war has ended, waiting to kill or maim any man, woman or child who touches or steps on them’.

Recognizing the grave danger for civilians, States concluded the Convention on Cluster Munitions (CCM) in 2008. This year, 1 August 2020, marked the 10^th anniversary of the CCMs entry into force. 

The CCM reinforces fundamental customary international humanitarian law (IHL) rules that require parties to armed conflict to distinguish at all times between civilians and combatants, to direct operations only against military objectives and to take constant care to spare civilians and civilian objects. On the basis of this Convention, cluster munitions are prohibited.

The CCM imposes international obligations upon States Parties to refrain from using, developing, producing, acquiring, stockpiling, retaining or transferring cluster munitions. It also prohibits assisting, encouraging or inducing anyone to undertake prohibited activities. States possessing or affected by cluster munitions must take action in specific areas: destroying stockpiles, clearing remnants of cluster munitions and providing assistance for victims. 

Cluster Munitions and South Sudan To Date

In the East and Horn of Africa, Djibouti, Kenya, Tanzania and Uganda have signed the CCM, but only two States, Rwanda and Somalia, are party to it. Since its independence in 2011, the Republic of South Sudan has expressed its interest to join the Convention. In 2017, based on a proposal put forward by the Ministry of Justice, the South Sudan Council of Ministers passed the CCM’s accession instrument. In addition to this step the constitution requires approval of the parliament and assent of the President for the country to become party to a treaty. These steps were not completed following the Council of Ministers’ decision so the treaty and its critical provisions do not yet bind South Sudan.

Despite the fact that South Sudan is not yet a party to CCM, it has participated as an observer in meetings of the Convention, most recently in September 2018, when it reaffirmed that it has not used, produced, or stockpiled cluster munitions. In April 2020, South Sudan submitted its first Article 7 Report of the Convention on Cluster Munitions – a voluntarily report on measures taken in respect of cluster munitions. This records the nature and types of munitions in the country, the extent of programs to remove or destroy them, the extent of educational programs to prevent harm and, importantly, measures undertaken to clear areas contaminated by such weapons. Amongst other things, the report noted that South Sudan had made ‘progress in cluster munitions clearance [between] 2011 [and] 2019[:] 18,101,789 square metres of land has been cleared from cluster munitions contamination and 3, 270, 629 square metres of land reduced through non-technical survey methodology’. It explains that ‘12,481-cluster munition and 1,549’ unexploded ordinances were destroyed in the reporting period. Despite these achievements, the report also recognizes the need for further action with ongoing international support, particularly from 2020 to 2027, in several key domains, including clearance, risk reduction and assistance to victims.  

Setting the Legal and Policy Framework to Humanitarian Ends

Positive voluntary steps relating to the CCM by South Sudan suggest that the will is there in South Sudan to be bound by this treaty. Decisive action is needed by the executive and legislature to complete the process to bringing the Cluster Munitions Convention into its law, and strengthening international humanitarian law in South Sudan. 

Appropriate local legislation and definition of a medium-term policies will definitively transform South Sudan consistent commitment into a tangible framework that can continue to move forward clearance, risk education and assistance to victims. It will enable the State to receive international cooperation and assistance for clearance, stockpile destruction, victim assistance and risk education, as well as economic and social recovery of affected State Parties; and benefit from the experience and expertise of other states and engaged actors’ through participation and contributions to the Meeting of States Parties.   

From 23 – 27 November 2020, Switzerland will host the second Review Conference of the CCM. The Conference will adopt a new Action Plan to guide the Convention’s implementation for the next five years, including to increase the number of States Parties. In the lead-up to the Conference, States that have not done so already are encouraged to consider the benefits of expressing their intention to be bound by this fundamentally humanitarian treaty.  This is the right time for South Sudan to act and demonstrate its commitment to the Cluster Munitions Convention. 

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Marco Chol is a South Sudanese lawyer, working as legal advisor at the International Committee of the Red Cross at South Sudan delegation in Juba. He is a holder of a Bachelor of Laws, a specialized Post-Graduate Diploma in Human Rights and IHL from the University of Khartoum, a master’s in international Humanitarian Affairs from the University of York, UK. He can be reached at cmarco@icrc.org

Soil Contamination Due to Armed Conflicts

By – Rihana Jemal

Photo Credit: DI LAURO, Marco. Copyright: Getty Images/CICR

Since time immemorial, most of us heard about armed conflicts or been a part of it. It’s undeniable that the effect of armed conflict is often beyond measure. One can easily state that the impact of armed conflict on the environment is so damaging and history is good evidence.

Oftentimes, the causes of soil contamination result from dangerous chemicals that find their way into the soil and disrupt the soil structure.^[1] The atomic bombs dropped in Hiroshima and Nagasaki brought about a massive scale of soil contamination. The radioactive soil has become extremely infertile while the agricultural products that didn’t burn up during the bombing could no longer be consumed due to the massive radiation they contained.^[2] Soil contamination often has an immediate and long-lasting effect. A recent short video titled ‘Landmine Girls’ showing the clearing of unexploded bombs left from the Vietnam War^[3], shows the reality of the long lasting effects of soil contamination.

As the survival of human beings relies on food, soil contamination due to armed conflict may result in the lack of food security/or food insecurity. Especially if it’s a country like Ethiopia whereby most of the populations livelihood depends on agriculture the consequences may be drastic. The issue of soil contamination extends well beyond food security. Taking into account what has been stated above, the overall effect can be diminish agricultural product, affect the land system and health of the people leaving at or aside that area.  

Evidently, the lands of seventy-eight countries in the world are contaminated by land mines, which kill or maim 15,000- 20,000 people every year.^[4] Even the developed world as an example, there are still thousands of tons of unexploded Bombs in Germany, left over from World War II.^[5] Since most weapons contain harmful chemicals, the existence of landmines and unexploded bombs on or under the ground for years has a huge impact in soil contamination. 

Coming to the protection accorded in international humanitarian law, Article 35(3) of Additional Protocol I prohibits the use of  “methods or means of warfare which are intended, or maybe expected to cause, widespread, long-term and severe damage to the natural environment’’.^[6] The prohibition has also been included in Article 55(1) of the Additional Protocol I.^[7] The prohibition on inflicting widespread, long- term and severe damage to the natural environment is repeated in the Guidelines on the Protection of the Environment in Times of Armed Conflict and the UN Secretary-General’s Bulletin on the Observance by United Nations Forces of International Humanitarian Law.^[8]

As stated in the Geneva Conventions and Additional Protocols, one of the fundamental principles is the principle of distinction and proportionality. In times of armed conflict, civilian and combatants need to be distinguished. Nevertheless, the result soil contamination due to armed conflict through unexploded bombs and buried landmines mostly affects the civilian population during the war and even decades after. The principle of proportionality is another principle affected similarly. Due to armed conflicts, the soil in different parts of the world has been contaminated whereby millions innocent people and generations to come have been affected. These beg the questions, Is taking measures that affect the upcoming generation really proportional? To what extent is the principle of distinction and proportionality being applied in reality? 

As the aforementioned questions linger in our minds and so long as armed conflicts continue being frequent, there need to be a serious consideration of the issue and impact of soil contamination. Further evaluation needs to be made before and after armed conflicts to ensure the well being of the soil. The ICRC is also mandated in ensuring that military personnel are aware of their obligation to respect and protect the environment during armed conflict.^[9] Even though, armed conflict plays a huge role for soil contamination the issue of soil contamination lacks enough consideration. ICRC’s involvement isn’t enough as this contamination is an environmental issue that concerns all; the international community also needs to play its role. Regarding this issue, especially in Africa, there is no sufficient amount of literature and research.

Clearing leftover landmines and unexploded bombs to solve the issue of soil contamination is a dangerous job. The need for safe and efficient technologies for detecting buried landmines and unexploded ordnance is a humanitarian issue of immense global proportions.^[10] Last but not least it’s important to point out what Charles E. Kellogg, a celebrated soil scientist, said “Essentially, all life depends upon the soil…There can be no life without soil and no soil without life; they have evolved together.” Indeed, the issue of soil contamination is the issue of life.  

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^[1] . Susan Pattersin, Master Gardener, Contaminated Soil Treatment- How To Clean Contaminated Soils. April/5/2018.

^[2].  https://www.ukessays.com/essays/environmental-studies/long-term-environmental-impacts-of-the-manhattan-project.php?vref=1

^[3] .https://youtu.be/6l0pgpszmkU

^[4] . UNICEF. “Children and Landmines: A Deadly Legacy”.

^[5] . Adam Higginbotham, There are still thousands of Tons of unexploded bomb in Germany, left over from World War II.SMITHSONIAN MAGAZINE, JANUARY 2016. 

^[6] . Additional Protocol I, Article 35(3).

^[7] . Additional Protocol I, Article 55(1).

^[8] . Guidelines on the Protection of the Environment in Times of Armed Conflict; UN Secretary General’s Bulletin, Section 6.3.

^[9] . ICRC;  Environment and international humanitarian law, 29-10- 2010.

^[10]. The Hebrew University of Jerusalem. “Glowing bacteria detect buried landmines: Researchers remotely detect buried landmines, using fluorescent bacteria encased in polymeric beads, illuminated by a laser- based scanning system.’’ ScienceDaily.  ScienceDaily, 11 April 2017.

Rihana Jemal Mohammed is an undergraduate student at the School of Law, College of Law and Governance Studies, Addis Ababa University.  She can be reached through the email address rihanajemal29@yahoo.com

(Re)visiting the Relationship Between International Humanitarian Law and the Crime of Aggression

By Emmanuel Maphosa

Photo Credit: Tom Stoddart Copyright: Getty Images/ICRC

Africa is in the process of making modifications on the definition of the crime of aggression, with possible implications on the scope of international humanitarian law (IHL) application. The application of IHL could soon be considered without going through the traditional classification criteria in non-international armed conflicts (NIACs) with regard to the crime of aggression in Africa.

The prospects of modifying the definition to qualify attacks by non-state actors as acts of aggression is a departure from a static and outdated approach to aggression. This is also an attempt to prevent an otherwise conduct of hostilities level of violence going unchecked for a considerable period.

The crime of aggression together with genocide, war crimes and crimes against humanity can be viewed as core international crimes in the public international law arena. One notable difference in those crimes is that the crime of aggression unlike the others is in the ius ad bellum (the law regarding resort to armed conflict) category. The others are in the ius in bello (the law governing conduct during the armed conflict) category.

At least from the Nuremberg Tribunal, attempts have been made to define and determine the scope of application of the crime of aggression. States have been identified as sole actors in the commission of the crime. Further, the crime is out of the ambit of IHL because ius ad bellum considerations are irrelevant in the interpretation or application of IHL. Therefore, the crime of aggression by itself is not a violation of IHL. It is the conduct after the crime has been committed that may amount to violations of the rules governing the conduct of hostilities. An act of aggression creates room for the commission of the other crimes.

The foregoing shows that an interconnectedness exists between the crime of aggression and other crimes. The connection is visible when an act of aggression results in an international armed conflict (IAC). On the other hand, the chain does not hold in NIACs. The evolution of armed conflicts and the desire of States in Africa, to find sustainable and tailored made solutions indicate that it will be naïve to maintain the traditional approach to the crime of aggression. In fact, Africa’s approach to the crime of aggression may serve as one of the African solutions to African problems.

Should the Protocol on the Amendments to the Protocol of the African Court of Justice and Human Rights (Malabo Protocol) come into force in its present form, or at least on the part on the crime of aggression, a mere invasion or attack by a non-state actor would qualify as an act of aggression. This progressive interpretation and development of international law demands a revisit on the relationship between IHL and the crime of aggression.  

Globally, the direct forms of aggression are committed by States and the indirect forms of aggression include inter alia, terrorist attacks and material support such as ideas, money and arms to a State committing an act of aggression. The defect of this view is that it excludes those providing material support as parties to a conflict. The view also fails to address the issue of whether the cross-border element of terrorist and insurgency acts qualify as acts of aggression. From the African perspective, terrorism and material could soon be considered as direct forms of aggression. In this regard, IHL would be activated early.

Material support may precede a violent attack or territorial invasion. Further, an act of aggression may occur within an ongoing armed conflict. This means IHL would once again be called upon to address the complexity caused by additional parties. Hence, IHL cannot afford to detach itself from acts of aggression. IHL should make some adjustments to keep up with the changing battlefield.

This article comes against the backdrop of violent and ῾terrorist᾿ attacks by non-state actors in various parts of Africa. For example, such attacks emerged in Mozambique in October 2017. The government classified them as violence against public order that required a law enforcement dimension response. Words such as ῾terrorism᾿ and ῾insurgency᾿ have been associated with the said situation. These are ῾transnational crimes᾿ which have actual or potential transboundary effects.

The violence in Mozambique has caught the attention of the Southern African Development Community (SADC) governments. On 17 August 2020, the 40^th SADC Summit of the Heads of State and Government committed to support the government of Mozambique in combating terrorism and violent attacks. While the classification of the conflict in Mozambique is beyond the scope of this article, it is worth considering whether IHL may in future be applicable earlier than expected in such situations. Reports that the Islamic State of Iraq and other foreign actors are actively involved in Northern Mozambique, ignite debate on whether acts of aggression exist in light of the modifications mentioned earlier.

How IHL responds to these ῾new wars᾿ is of essence. Acts of terrorism have caught the international eye, albeit with no link to the crime of aggression. At present, these acts are prosecutable before an international court if they amount to war crimes and crimes against humanity. This demonstrates that at some stage the acts trigger the application of IHL.

The challenge for IHL is that States and other international players are hesitant to activate its application where non-state actors are involved in attacks until the duration and intensity of attacks has reached a certain level. The Malabo Protocol on the other hand, presupposes the existence of an armed conflict from the onset under certain circumstances and a situation in which IHL would be activated automatically like in cases of IACs.

Arguably, an early qualification of a NIAC would be beneficial to non-state actors who would otherwise be deprived of protections accorded by IHL to those who are fighting. Likewise, civilians would enjoy without much delay the protections associated with the status of a civilian during armed conflicts.

Author’s Bio – Emmanuel Maphosa works for the International Committee of the Red Cross Regional Delegation for Southern Africa in Pretoria as a Program Adviser to the Armed and Security Forces Department. He is a holder of a Bachelor of Law Degree (LLB) from the University of Fort Hare and a Masters of Law Degree (LLM) with Specialization in Human Rights and Constitutional Practice from the University of Pretoria.

Stumbling Blocks in Striking a Treaty Governing Cyber Warfare under International Humanitarian Law

By Yohannes Eneyew Ayalew

Picture credit : Brookings

Cyber warfare begun to draw the attention of the international legal community in the late 1990s. The United States Naval War College convened the first major legal conference on the subject in 1999. The world has witnessed how cyber operations by “hackers” were executed  against Estonia in 2007— and—against Georgia during its war with the Russian Federation in 2008( See here ,and here). Cyber operations have targeted the Iranian nuclear facilities with the Stuxnet worm in 2010. The other notable cyber operation called “NotPetya” occurred in Ukraine in 2017.

In today’s armed conflicts, cyber operations are being used as a means or method of warfare. Some States have gone as far as publicly acknowledging their use (for example: France position in 2019), and an increasing number of States are developing military cyber capabilities for offensive or/and defensive purposes.

Despite these developments a comprehensive treaty governing cyber warfare is yet to be tabled. At this juncture it is relevant to recall that international humanitarian law (IHL) treaties have often been accused of being  ‘one war behind reality’ potentially contributing to the suffering caused by warfare. The aim of this blog post is therefore to shed some light on how States respond to the threats of cyber operations under IHL and unpack stumbling blocks in striking a comprehensive cyber warfare treaty.

Defining Cyber Warfare

Defining cyber warfare is an elusive exercise since any definition has to take into consideration national contexts. For instance: the 2016 United States War Manual defines cyber warfare may be understood to be operations that involve “[t]he employment of cyberspace capabilities where the primary purpose is to achieve objectives in or through cyberspace.” It includes those operations that use computers to disrupt, deny, degrade, or destroy information resident in computers and computer networks, or the computers and networks themselves. For example, it may include reconnaissance (e.g., mapping a network), seizure of supporting positions (e.g., securing access to key network systems or nodes), and pre-emplacement of capabilities or weapons (e.g., implanting cyber access tools or malicious code) (See US War Manual p.986). But this definition doesn’t specify the modus operandi whether such operations could be launched during international armed conflicts (IAC) or non-international armed conflicts (NIAC).

For Richard Clarke, cyber warfare refers to “actions bya nation-state to penetrate another nation’s computers or networks for the purposes of causing damage or disruption.” Yet, this definition only embraces cyber wars during IAC not NIACs. A more nuanced sort of definition was provided in the 2019 ICRC Position Paper which reads:

“Cyber operations during armed conflicts is used to describe operations against a computer, a computer system or network, or another connected device, through a data stream, when used as means and methods of warfare in the context of an armed conflict.”

Conundrums in Applying the Existing IHL norms to cyber-warfare

The analogous application of IHL rules applicable to conventional means and methods of warfare to cyber warfare is questioned by some observers. In this regard, Michael Schmitt argues that there is no legal doubt that cyber operations launched during an armed conflict having nexus to that conflict must comply with IHL rules.

The existing IHL norms offer some guidance concerning obligations of States concerning the use of new technologies for warfare. Accordingly, when States study, acquire or adopt new means and methods of war (e.g. cyber operations); they need to assess the legality of their employment under the existing norms of IHL (see Article 36 of Additional Protocol I (AP I) to the 1949 Geneva Conventions). In 1996, the International Court of Justice (ICJ) set a compelling precedent in its advisory opinion on the legality of the threat of use of nuclear weapons (para 86). The Court held:

“…the established principles and rules of IHL applicable in armed conflict apply to all forms of warfare and to all kinds of weapons, including ‘those of the future…”

Likewise, the ICRC’s position paper (2019) further asserted the applicability of the existing IHL norms to cyber warfare. In the ICRC’s view, “there is no question that cyber operations during armed conflicts are regulated by IHL – just like any other weapon or means or methods of warfare used by a belligerent in a conflict, whether new or old.”

Given the unprecedented proliferation of new means and methods of warfare including cyber operations, however, the existing body of IHL should be overhauled to respond to growing concerns seen in cyberspace. This is because the existing body of IHL is not sufficiently crafted to address cyber warfare. In other words, with the exception of handful norms such as Article 36 AP I, there is no comprehensive treaty governing cyber warfare. To fill this normative gap, the International Group of Experts (IGE) proposed a very detailed soft law regarding the application of IHL in cyberspace called the Tallinn Manual 2.0.

Attempts towards a comprehensive treaty governing cyber warfare face numerous challenges. Unilateral declaration of States and international organisations regarding the application of the existing bodies of international(humanitarian) law to cyber operations may be a stumbling block in striking a separate treaty governing cyber warfare. For instance, the United States made its position clear that when a cyber operation constitutes an attack, then the law of war rules on conducting attacks must be applied to those cyber operations, and it must comply with the requirements of IHL such as distinction and proportionality. Simply put, IHL applies to cyber operations in war time, including the principles of precaution, humanity, military necessity, proportionality and distinction. (US War Manual 2016 p.1020). Other countries such as—Australia, France and the United Kingdom  have also  taken a similar stance.

Another challenge is the inevitable attitudinal and policy differences between major superpowers to strike cyber operations treaty. For instance, the United States has, for many years, been an opponent of creating an international treaty for cyber warfare. It has listed enforceability and accountability as two of its primary concerns. Many observers argue that America’s enduring hostility towards binding treaty is driven largely by its technological superiority in the realm of tactical cyber warfare ( See here and here). Instead, the United Stateshas suggested increasing national cyber-defence technology and increasing the cooperation between national law enforcement agencies.On the other hand, Russia has been an ardent supporter of an international treaty for cyber warfare. Beginning in 1998, Russia has been submitting requests to members of the United Nations to back its plan for a global cyber warfare treaty.

What’s next?

The use of cyber operations in an armed conflict poses a real risk of harm to civilians. For the protection of the civilian population and civilian infrastructure, it is critical to recognise that such operations do not occur in a legal vacuum. As such, until the international community negotiates and strikes a deal governing cyber operations, States should adhere to the existing bodies of IHL rules. I wish the adage “IHL treaties seen as one war behind reality” would be debunked in cyber context by negotiating and striking a treaty in advance. Finally, instead of making unilateral declarations, States should show a global commitment towards cyber operations—including striking a comprehensive international treaty governing the regime.

Author’s bio: Yohannes Eneyew Ayalew is a PhD Candidate at the Faculty of Law, Monash University, Melbourne, Australia. He can be reached on email: yohannes.ayalew@monash.edu or Twitter @yeayalew.

An opportunity for all Africans interested in writing about IHL

ICRC has organized a competition of best published articles on international Humanitarian Law in Africa. Submit your published articles to enrich the African literature on IHL for a prize of 1000 USD. You can submit your articles that have been published from September 1, 2019 to December 31, 2020.

Refer to the poster below for more information.

75 years after Hiroshima: The Use of Nuclear Bombs vis a vis the Principles of International Humanitarian Law

Lea Mehari

Assistant Lecturer, School of Law, Addis Ababa University

Guerre 1939-1945. Bombe à hydrogène. Copyright Archives CICR (DR)

The first atomic warhead in the world was dropped on Hiroshima, Japan, 75 years ago today, August 6, 1945. An estimated 70,000 people died instantly. The total death toll was around 140,000. The survivors suffered cancer, chronic illnesses, as well as other radiation side effects for decades after. The bomb also damaged 70% of the city’s infrastructure. Three days later, August 9 1945, a second and larger atomic bomb exploded over the city of Nagasaki. The US justified its actions by invoking military necessity. It argued that dropping the bomb shortened the war by forcing the surrender of Japan and saved countless lives that would have been lost by a prolonged warfare. In his first speech after the Hiroshima bombing, U.S. President Harry S. Truman stated that the first atomic bomb was targeted at a military base and precautions were taken to minimize civilian deaths as much as possible. While Hiroshima had some military-related manufacturing plants, an army headquarters, and a military dock, it was disingenuous to characterize a city with more than a quarter-million civilians as just a “military base”. Just fewer than 10% of the civilians killed that day were part of the Japanese military. Besides, no precautions were taken to prevent civilian deaths.

Today, with all the IHL laws and Customary International Humanitarian Law rules, such nuclear weapons should be illegal. Nevertheless, there are many nuclear-weapon states that own nuclear weapons. Many more are currently developing nuclear weapons, a new threat against the restrictions on the means of warfare. Notwithstanding, the Treaty on the Prohibition of Nuclear Weapons, a treaty adopted by 122 states in 2017 and will become legally binding after 50 states ratify it (currently only 40 states have ratified it), will require them to reduce the number of nuclear weapons they have.

In 1996, the International Court of Justice (ICJ) issued a landmark advisory opinion on the legality of the Threat or Use of Nuclear Weapons. The ruling confirmed that there is neither customary nor treaty legal authority, which expressly forbids the possession or even use of nuclear weapons. The only prerequisite is that they are used in compliance with the international rules on self-defense and the principles of International Humanitarian Law (IHL).

Considering that the use of nuclear weapons is not explicitly banned by international law, there are concerns on whether the use of nuclear weapons contradict the provisions international conventions, customs or general principles of law that do not even address its use. This issue can be resolved by considering the implications of the use of nuclear weapons based on the fundamental principles of IHL.

The principle of humanity demands soldiers to mitigate the extent of suffering and damage caused by the war. Unnecessary suffering weighs the damage done by the weapon against the military necessity. Nevertheless, the principle of military necessity is not unlimited. It is recognized that IHL imposes limits on military necessity.  The mere existence of a military target does not allow limitless damage. The key issue here is not whether a specific weapon breaches international law, but whether the destruction caused or reasonably expected to be caused by a weapon is proportionate to the concrete military objective sought to be achieved by the attack. The principle of proportionality offers a valuable structure to determine the legitimacy of military strategies. It provides that, in using of nuclear weapons, there is no military need justifying the destruction of urban areas, mostly populated by civilians.  

A few people argue that nuclear weapons violate the St. Petersburg Declaration and the Hague Convention that provide for the principle of unnecessary suffering. While some agree that it is technically possible for a nuclear weapon to be used short of breaching this law, its real-life applications will cause detrimental extent of damage and suffering. A bomb that explodes amid civilians will cause deaths incidental to the military objectives obtained by its utilization. Even smaller nuclear weapons would be fundamentally unable to prevent such damages. Furthermore, the long-lasting impacts of nuclear weapons radiation on those exposed to it and their descendants is unnecessary for any military advantage. Ultimately, in the case of a nuclear attack, the environment will be a highly toxic area. Sufficient healthcare will also be difficult to find, leading to excessive suffering.

The principle of distinction would also be challenged by the use of nuclear weapons. It is well known in international law that civilians and civilian objects are immune from being directly targeted. Even though, some argue that it is technically feasible to use nuclear weapons in a way that prevents indiscriminate harm to civilians, it is doubtful that such usage would be possible. The use of nuclear weapons will also affect the territories of neutral nations. International law has important principles regarding neutral states. First, that belligerent parties cannot expand the battlefield to the territory of a neutral country, and, second, neutral states even have rights to prevent belligerent parties from entering their jurisdiction. The territory of a neutral State is inviolable; it cannot be absolved by using any of the conventional justifications in international law. The impact of nuclear weapons cannot be limited to the territories of a single country.

The Treaty on the Prohibition of Nuclear Weapons would ban nuclear weapons on the grounds of IHL and prohibits the production, testing, stockpiling, use or threat to the use of nuclear weapons. It aids the victims of the use and testing of nuclear weapons and encourages the remediation of contaminated sites. This also establishes mechanisms for a commitment by all States, including nuclear-weapon States, with the aim of the removal of all nuclear weapons.

Nuclear weapons are cruel and indiscriminate weapons. Their effects are devastating and have catastrophic humanitarian implications over generations. With the adoption of the UN Treaty on the Prohibition of Nuclear Weapons (TPNW), many states took a crucial step in building a nuclear-weapon-free future. It is now time to completely ban these weapons.  All states that have not yet done so should ratify this treaty, and save generations to come from the horrific consequences of a nuclear warfare.

Dramatic Change and Enduring Relevance: COVID-19 and IHL in the East and Horn of Africa

Eyerusalem Teshome

Law and Policy Advisor, ICRC Ethiopia Delegation

Copyright- Alemayehu TAKELE / ICRC, Addis Ababa, 2020. 

In the first half of 2020, coronavirus, or COVID-19, has spread across the world, destroying lives and devastating livelihoods. Governments and people are delicately balancing concurrent public health, economic and, in some cases, security considerations. Inevitably, restrictions imposed upon business, movement and human interaction will cause further loss. As elsewhere, African States have taken public health measures to prevent and mitigate the effects of the pandemic, including declaring states of emergency and imposing restrictive measures, such as curfews and border closures. For many people, life is at least partially on hold.

Humanitarian action is also being adapted. In response to the pandemic, the International Committee of the Red Cross (ICRC) has transformed its activities in the East and Horn of Africa. In Ethiopia, it has supplied infection prevention and control items to vulnerable people and promoted health and hygiene. In Kenya, it has worked – together with the Kenyan Red Cross Society and the Kenyan Prison Service – in 48 men’s, women’s and juvenile prisons, to prevent and mitigate the effects of COVID-19. Similar activities have been organized and implemented with urgency across the region and around the world.

At the same time, persistent humanitarian needs that were identified before COVID-19, or that arise concurrently, must be addressed. In addition to its ongoing protection, health, water, habitat, sanitation and other activities, the ICRC continues to work for the promotion of international humanitarian law (IHL). As the guardian of IHL, mandated by the community of States to work for its ‘faithful application’, the ICRC steadfastly pursues the ratification of, accession to and implementation of IHL-related legal instruments. It continues, in the context of its confidential bilateral dialogue, to persuade the parties to armed conflict to abide by their fundamental obligations for the benefit of the victims of armed conflict.

Now more than ever, States confronted by the combined challenges of conflict and coronavirus (not to mention climate change and criminality) have to put IHL at the heart of their concurrent security and public health responses.

Importantly, IHL requires respect, protection and care for the sick and facilitates the functioning of medical services. It provides a framework for the protection of those who are particularly vulnerable, such as internally displaced persons, migrants – including asylum seekers and refugees – and persons deprived of their liberty. IHL protects items essential to human survival, such as water, and foresees humanitarian access, creating space for impartial humanitarian actors to provide relief to those in need. In sum, IHL provides crucial safeguards during pandemics.

Despite the challenges of the last year, between August 2019 and July 2020, States of the East and Horn of Africa have continued to express their commitment to IHL through concrete action. Following South Sudan’s accession in June 2019, Somalia and Ethiopia have also become party to the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa. In doing so, these States celebrate ten years since the adoption of this unique, progressive instrument: the first binding international agreement in respect specifically of internally displaced persons, which, amongst many other things, reflects and recalls IHL.   

In the same period, Rwanda finalized its ‘Harmonization Study’: an ambitious and comprehensive account of the country’s participation in IHL-related international legal instruments and their domestic implementation. South Sudan made a voluntary report under the Convention on Cluster Munitions, highlighting measures that it had taken to decontaminate unexploded ordinances. Tanzania became the first State in the East and Horn of Africa to sign the Treaty on the Prohibition of Nuclear Weapons, which binds it to refrain from acts that would defeat the object and purpose of this critical, fundamentally humanitarian treaty.   

In December 2019, States and National Red Cross and Red Crescent Societies attended the 33^rd International Conference of the Red Cross and Red Crescent, adopting a ‘roadmap for better national implementation of IHL’, which provides a ‘blue-print [for] States’ to ensure that the armed forces, civil servants, parliamentarians, judges and / or National IHL Committees can strengthen the national implementation of IHL. It invites States to, amongst other measures, conduct compatibility studies and adopt appropriate law, ratify / accede to relevant international instruments, integrate IHL into military practice, disseminate IHL and share best practice.  

In domestic law too, States of the East and Horn of Africa have also progressed on IHL. National law and other implementation measures are being drafted and discussed, including on the use and protection of the red cross, red crescent and red crystal emblems. IHL has also been considered and incorporated into counter-terrorism laws, protecting impartial humanitarian actors against the risk of sanction for the conduct of their usual, otherwise-lawful activities (For more information on this topic, see International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Chapter 5).

In 2019, governments, practitioners and scholars were commemorating the 70^th Anniversary of the Geneva Conventions: the universally ratified cornerstone of contemporary IHL. This year, focus has turned to the law’s role in the context of complex, multifaceted emergencies. This fundamental change mirrors the rapid evolution of the past 12 months and the urgent re-alignment of priorities at both the national and international levels.

The constant, however, is IHL’s enduring relevance in contemporary armed conflicts: protecting persons not or no-longer taking direct part in hostilities and limiting the means and methods of warfare. Perhaps now more than ever, IHL, robustly and comprehensively implemented, is critical in conflict and pandemic-affected contexts.    

Stolen Childhood – Children in Armed Conflicts

By Rihana Jemal

Image by ICRC – https://twitter.com/ICRC_Africa/status/1040110346785173504/photo/2

Armed conflicts affect a significant part of the lives and well-being of civilians. Children are one of the most affected civilians. Keeping that in mind, as stated in the Declaration of the Rights of the Child, ‘the child, due to his or her physical and mental immaturity, needs special protection and care, including adequate legal protection, before as well as and after birth.’[1]  Due to armed conflicts, it is easy to understand that millions of children around the world are unable to enjoy their rights. Such problems threaten the current and future well-being of the next generation, the children of today.

Each child has the right to bear the fruit of his or her childhood. For example, in addition to all human and democratic rights, children need to enjoy their childhood by playing, engaging with peers, having quality childcare, and many others. Children affected by armed conflict are usually denied their basic needs, their basic rights.  Numerous conventions and protocols have been adopted; various panel discussions and forums have been held worldwide to address this issue and its long-term effect. Two of these are the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict and the June 29, 1998, UN Security Council first open debate on Children and Armed Conflicts.

Often serious violations against children in armed conflict such as killing and maiming, rape and sexual violence, recruitment and use of children , child abduction, school and hospital attacks and denial of humanitarian access. This shows that the impact is beyond measure. Olara Otunnu, former Under Secretary General and Special Representative for Children in Armed Conflicts[2]. He rightly pointed out to the UN Security Council that the first debate on children and armed conflict areas involved the Council in moving towards ‘prevention, protection, and recovery.’[3]

In armed conflicts, the fundamental principles laid down in the Geneva Convention must be respected and implemented. The lack of respect for the concepts of distinction, proportionality, and precaution is illustrated by a rise in the killing and maiming of children and attacks on schools and hospitals in a variety of situations of conflict having impacts on children and communities. Some of the impacts are permanent disabilities and prolonged disruption of education and health service.[4] Therefore, in one way or another, respect for international humanitarian law results in the protection of children in armed conflict. 

Children in armed conflict are also faced with problems for the future. For example, the vast majority of Southern Sudanese children have been denied their right to education and missed opportunities to learn practical skills that would prepare them for jobs and their future careers.[5] Nowadays, most children are exposed to forced migration, child trafficking, discrimination, child labor, lack of self-esteem, and other further Problems. These problems remain unresolved and outstanding.

A research by Save the Children shows that the involvement of international humanitarian agencies tends to reflect the hope and expectations of children in armed conflict. However, migration and instability have also contributed to a decline in the amount of humanitarian assistance available to children and young people, which in turn serve as a driving force for recruitment and re-recruitment.[6]

Every day, the unspeakable horrors that children have to endure remind us of the immense task ahead of us.[7] We all are responsible. We must not wait any longer so that the voice of the young generation affected by armed conflict to be heard.

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[1] . Convention on the Rights of the Child, Preamble.

[2] . ‘’Olara A. Otunna (Cote d’Ivoire), Secretary-General’s Special Representative for Children in Armed Conflict’’, United Nations press release, SG/A/655, BIO/3110, 10 October 1997.

[3] . 20 Years to BETTER PROTECT CHILDREN AFFECTED BY CONFLICT, Office of the Special Representative  of the Secretary- General for CHILDREN AND ARMED CONFLICT, 2016 P. 18.

[4] . ibid, 40-41.

[5] . J. Young et al, FROM THE GROUND UP: EDUCATION AND LIVELIHOODS IN SOUTHERN SUDAN, WOMEN’S COMMISSION FOR REFUGEE WOMEN AND CHILDREN, 2007.

[6] . Stolen Futures, reintegration of children affected by armed conflict Submission to the ten-year review of the 1996,  Machel study on the impact of armed conflict on children, Save the children P.29

[7] Note 3 P. 46