The use of remotely controlled aircraft and cyber operations in modern warfare and their impact on international humanitarian law.

Introduction

The emergence of advanced weapons whose capabilities significantly impacted on how warfare is conducted has contributed to the already fragile world peace, ranging from the deployment of remotely controlled drones in Pakistan and Somalia by the USA to more sophisticated cyber-attacks carried out by states such as Israel against Iran,[1]And North Korea against the United States.[2] One might argue there needs to be treaty put in place to regulate the use of advanced means of warfare.

International humanitarian law is concerned with how hostilities are conducted between states to states and states andnon-state actors, on the other hand, the question then is, how we reconcile this new technology with norms already in place such as Hague regulation, Geneva Convention and UN charter and customary international law.

As the world moves to a new phase of 5g networks coupled with the expansion of cities, vital infrastructures are getting connected; this increases the risk of hacking. Just recently a citizen of UK hacked and shut down the whole internet system of Liberia,[3] assuming that happened to USA or Russia for example, the world peace will be at stake.

The world over governments and military industrial complex are heavily investing in advanced weapons systems with the USA and Russia leading on the missile front and Israel and western countries taking the lead in cyber operations. The current war in Syria showcased Israel’s superiority in air warfare partly aided by its advanced cyber capabilities,missiles airplanes that can evade radars and destroy targets thousands of miles away.

The state of Israel has in the past deployed very sophisticated STUXNET virus against Iran’s nuclear plants destroying centrifuges that led to Iran nuclear ambition been set back years. Because of lack of consensus in the international community to develop norms, Estonia stepped in after it suffered destructive cyber-attacks from what is believed to be Russians.[4] Estonia initiated the world’s first conference of experts from various countries who came up with the Tallinn manual 2.0 on the international law applicable to cyber operations. Although not legally binding it carriesa heavy weight on the legal arena.

International humanitarian law is also concerned with the protection of civilians and civilian objects as such whenever such weapons are deployed they must conform to the principle of distinction. To understand further how such weapons affect hostilities we then have to examine themindividually?

Remotely controlled aircraft aka drones

According to article 13 of Hague draft regulations of 1923 which states military aircrafts are alone entitled to exercisebelligerent rights.[5] The San Remomanual Military aircraft’ means any aircraft

• •  operated by the armed forces of a State;
  •  bearing the military markings of that State;
  •  commanded by a member of the armed forces; and
  •  manned by a crew subject to regular armed forces discipline

Drones are mainly used by advanced militaries such USA, Israel and NATO countries like Germany, once deployed and armed they are formidable often staying long hours circulating its target and engaging with precision. Their use has increased in countries like Afghanistan, Somalia, Yemen, and Pakistan because they reduce the risk to the pilot. The USA military and the CIA often rely on them to carry out clandestine operations.

The use of drones in armed conflict must conform to the principles of international law, once deployed targeting laws are applicable.

Art 51.4. a, 51.5.a AP1

Art 51.5.b AP1 collateral damage

Art 57 AP1 precaution in attack

The ongoing deployment and use of combatant drones raise concern. Unlike the use of balloons, helicopters, and planes to fight the enemy, drones are fitted with missiles and bombs, and carry no human operator, but, from a location several miles away. Drones have been used for surveillance besides launching of attacks. Drones help in saving lives, have low risks to the users, lethal to an enemy and can remain in operation for more extended hours. On the contrary, drones have limited ability to communicate with civilians and can be shot down. The types of weaponry drones carry, and their use during armed conflict calls for the application of international humanitarian law which provides for the following conditions:[6]

1. Conflicting states must distinguish between the combatants and the civilian population to avoid destruction of life and property.
2. None of the civilian population as a whole or an individual may be attacked.

• Attacks against military objects are allowed.

1. Individuals no longer involved in the hostilities entitled to protection, mental integrity, respect, and physical health.
2. Protection of the lives of the enemies, and not killing adversaries, and
3. The law prohibits the use of weapons capable of causing unnecessary suffering.

Since the International humanitarian law prohibits arbitrary deprivation of life, but allow resort to lethal force such as combat drones to save human beings, specific rules, principles, and articles apply.

Law of Armed Conflict (LOAC)

LOAC provide guidelines for preventing unnecessary destruction of property and loss of life during armed hostilities. The Law of Armed Conflict has three important principles including proportionality, distinction and military necessity which governs armed conflict.[7] Military necessity principle limits combat forces to military objectives. Equipment, powers, and facilities targeted and destroyed should subject the enemy to submission. Also, the military necessity principle prohibits the use of illegal weapons such as expanding hollow point bullets and poison weapons. Distinction principle provides for the engagement of the actual army targets. Military objects and civilian objects, and hostile groups and civilians must be distinguished before striking. Lastly, proportionality prevents the use of excessive force beyond military objective. Weighing between harm inflicted and the military advantage gained conducted before hitting at the target.

The Geneva Convention of 1949

The convention is concerned about people in war and protects non- combatants and combatants from inhumane suffering.Geneva Conventions “for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field“,  “for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea“, “relative to the Treatment of Prisoners of War“, “relative to the Protection of Civilian Persons in Time of War“and the protocols PI, PII and PIII protect private property and civilians.[8]

Pi, (1977) “protection of victims of international armed conflicts.”

Pii, (1977) “protection of victims of non- international armed conflict.”

Piii, (2005) “adoption of an additional distinctive Emblem.”

The 1923 Hague Convention.

The Hague rules protect civilians, combatants, and properties during armed aggression, and provide guidelines for the member states. Act 18 provides for the use of racer and explosive projectiles against or in the air. The rule applies to the member states of the 1868 Declaration of St. Petersburg, and the non- members. Act 13 provides for the belligerent rights to military aircrafts during an armed conflict.[9]

The USA, Israel, and Russia among other states over the years has supported and increased the use of drones as a fight of war on terror. In the event of drone strikes, international law highly advocates for moral responsibility.[10] Most recent studies have shown the widespread drone strikes with increasing hostilities around the world. Civilian protection remains a central focus in any drone attack despite the challenges of a targeted threat in proximity to the innocent and non-militant persons. The Huffington Post estimated six thousand deaths for the period 2014 to 2015 caused by USA drone strikes.[11] In 2009, Israeli drones killed forty-eight Palestine civilians in the Gaza strip. Out of the individuals killed were a group of women and girls in an empty street and two children of younger age in a field.[12] The question, therefore; was there a militant commandant or hostile groups among the civilians? If so, how responsible was the strike? If not so, how can the losses caused be justified? From the attack, Israeli forces failed to take feasibility precaution to verify whether the targets were combatants. IDF did not distinguish between civilians and combatants before striking their drones. In another study, Brooking Institution notes the misidentification of civilians as hostile threats leading to the accidental killing of civilians especially in Pakistan, drone stroke by the USA.[13]Booking Institution further indicates that USA drones in Pakistan killed ten civilians for every militant killed. The 2010 Khod, Urozgan Province in Afghanistan drone strike by the USA left behind scores of civilian casualties.Daykundi province in Afghanistan witnessed the killing of civilians traveling in a three-vehicle convoy, misidentified as hostile threats. In a separate study conducted by New American Foundation Analysis revealed that between eight hundred and thirty to one thousand two hundred and ten people in Pakistan; USA sponsored drone strike program for the period 2004 to 2010.[14] On the same note, about five hundred and fifty to eight hundred and fifty were militants while the rest of the individuals killed were civilians. In 2013 Pakistan Government estimated the death toll at two thousand one hundred and sixty Islamic militants, and sixty-seven civilians since 2008. The USA drone strike in Radda Yemen, Bayda Province killed civilians at a wedding even, without clearly identifying hostile threats. The estimates of civilians killed in drone strike continue on an upward trend, with recent statistics showing even a more significant figure. The Bureau of Investigative Journalism provides updates especially on the current USA drone strikes in Yemen, Pakistan, Somalia, and Afghanistan.

Effects of drone strikes.

Stanford’s Living Under Drones Research makes an inquiry into the status of drone attacks in Afghanistan and Pakistan. The research reveals that civilians are slow to help fellow innocent citizens hit by the first drone strikes mainly because of the violent attacks on the rescuers by the follow- on- drone missiles. Also, people rarely gather in groups in visible places. Children, especially in Pakistan and Afghanistan, hardly attend schools, but remain indoors for fear of civilian killings.

Drone strike programs also come with political impacts. Increased drone strikes decrease the legitimacy of local government. In Yemen for instance, citizens protest against the USA- led drone strikes, and against the government for allowing the attacks in the country. The impacts associated with the killing of the civilians require appropriate precautions and accountability mechanisms put in place during drone strikes to adequately address the challenges.

Cyber operations.

Deliberate attacks on information systems globally is on the rise. Cyber operations are either offensive or defensive, with international explanatory powers including the United States, United Kingdom, North Korea, Russia, Iran, Israel, and China developing cyber capabilities. Clarke views cyber operation as an act of infiltrating other states’ networks and computers with the intention of causing disruption and damages, especially in the host’s military during a physical war.[15]Forming an integral part of military strategies today, most countries adopt penetration testing; widely known as ethical hacking. Pen testing help monitors security loopholes the attackers can easily use to destabilize military operations of the affected state. The United States doctrine provides guidelines for conducting pen testing strictly to prevent cyber-attacks against vital infrastructure, lower national vulnerability to cyber-attacks, and reduce damage and time of recovery caused by cyber-attacks.

Cyber operation threats.

Cyber operations threat; grouped into two broad categories of soft and hard risks. Hard threats constitute the support of warfare through the disruption of military operation using cyber means to succeed in attacking the affected country. Mild cyber threats include propaganda, sabotage, economic disruption, and espionage.[16] Nuclear weaponry has revolutionized world conflict, thus necessitate private information gathering. Despite the potential tension that could erupt because of spying, espionage helps identify attackers for security preparedness, and prevention of life and property destruction. Espionage agent infiltrates the suspected enemy’s systems, gather information regarding military size and strength, and sabotage the operation of the criminal groups or conduct through disabling system networks, and paralyzing the entire activities of the enemy.Satellites and computers are prone to disruption which translates to device and system failure. Interfering with military systems, for instance, C4ISTAR would intercept communication thus affecting military operations.[17] Sabotage not only put defense forces at risk but, also civilians since the security breaches have advanced to target stock markets, trains, and electronic power grids.STUXNET jointly launched by the United States and Israel, for instance, was used to delay the manufacturing of weapons-grade uranium by Iran.[18] STUXNET integrates with machines that use Microsoft Windows OS and networks, and churn out Siemens step7 software. Programmable Logic Controllers (PLC), commonly used by Iranian electrochemical processes in weaponry creation, constitute the primary target of STUXNET. The Israeli/American cyberweapon used to disintegrate PLC and SCADA systems considering that the malicious computer worm is non-domain- specific. STUXNET has a three-tier operational process; a worm which performs conventional payload. Second is a link file mandated to execute propagated duplicates of the infection, and the third is a rootkit that hides all the suspicious files beyond recognition.

International humanitarian law.

Suppose there was no balance between military expectations, and humanitarian concerns during armed conflict, which experience would civilians have? Even individuals no longer involved in armed conflict, would they survive? To answer the question, international humanitarian law becomes handy in the attempts to limiting the impacts of armed conflict. International humanitarian law focus on two main areas. First, concerned with defining means of warfare regarding military tactics and the use of certain weapons, and two is the protection of individuals not participating, and no longer engages in the fight.[19]Persons not involved in the armed conflict include medical, military and religious personnel, as well as civilians. Besides, international humanitarian law protects individuals who have exited the fight. Such individuals include prisoners of war, the wounded, sick combatants and the shipwreck. The bill further prohibits the killing or injuring of a surrendered enemy or an adversary who is unable to fight. International humanitarian law provides for the collection and caring for the sick and the wounded, protection of ambulances, medical practitioners, hospitals and supplies.[20] Humanitarian law strictly applies to armed conflict and expressed reasonably across the fighting sides regardless of who sparked the fight.International humanitarian law extricates between non- international and foreign military aggression. The international armed conflict involves two or more states, subject to a variety of rules as set out in the Geneva Conventions of 1949. Non- international conflict, on the other hand, is concerned with military aggression within a single state’s territory; the battle may involve the usually armed forces fighting dissidents’ armed groups, or armed groups fighting one another.[21] International humanitarian laws are enshrined in the four protocols of Geneva Conventions of 1949, the 1977 additional protocols concerned with the protection of victims of armed conflicts, other agreements such as: convention for the protection of cultural property during an armed conflict of 1954, the conference on Biological weapons of 1972, the 1980 conventional weapons convention together with the five protocols, Ottawa convention on anti-personnel mines of 1997 and the optional protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict of 2000.[22]

The use of remotely controlled aircrafts and cyber operations have a direct and indirect impact on international humanitarian law. In the event of drone strikes scores of civilians and other groups of people get killed, while the law should protect them. Cyber operations, on the other hand, carry an imminent risk; jam systems are making military operations, communication and industrial processes become crippled.

 

Conclusion.

Cyber operations and remote-controlled warfare has taken the world by surprise, primarily due to the rampant reports of security breaches. Cybersecurity affects national and international security, economy and everyday way of life. The recent releases such as the cyber-attack on the United States National Health Service, perpetrated by a North Korean interfered with vital operations including ambulances, patient records, GP surgeries, and communications. In a similar incidence, cyber-aggression witnessed in Estonia caused several injuries, jammed online banking and also led to looting. The magnitude of lost suffered prompted the launch of the Tallinn Manual to guard the country against similar attack. In a different occurrence, a UK- based hacker infiltrated Liberia’s system, bringing down the communication system in the entire country. Drone strikes on the other hand increases day by night. The United States recently hit Somali, targeting the outlawed Al-Shabaab. Similar combats are witnessed in Pakistan, Afghanistan, Yemen, and other countries. To protect life, property and avoid unnecessary use of excessive force, the international humanitarian law provides guidelines to be applied, essentially during armed conflict.

 

Bibliography.

Bergen and Tiedemann (2011). The Year of Drone. New America Foundation. Retrieved https://web.archive.org/web/20110830213657/http://counterterrorism.newamerica.net/drones

Blank, L. R., and Noone, G. P. (2018). International Law and Armed Conflict: Fundamental Principles and Contemporary Challenges in the Law of War. Wolters Kluwer Law & Business. P.61.

Busby, M. (2018). “North Korean ‘hacker’ Charged over Cyber-attacks Against NHS: Park Jin Hyok, 34, Charged by US Officials over 2017 WannaCry Ransomware Attack that Affected More Than 150 Countries. The Guardian. Accessed January 27, 2019. https://www.theguardian.com/world/2018/sep/06/us-doj-north-korea-sony-hackers-chares.

Byman, D. L. (2009). Do Targeted Killings Work?The Brookings Institution.

Casciani, D. (2019). Briton who knocked Liberia offline with cyber-attack jailed. BBC News. Accessed January 27, 2019. https://www.bbc.com/news/uk-46840461.

Chassay, C. (2009). Cut to pieces: the Palestinian family drinking tea in their courtyard: Israeli crewless aerial vehicles – the dreaded drones – caused at least 48 deaths in Gaza during the 23-day offensive. The Guardian. Accessed January 27, 2019. https://www.theguardian.com/world/2009/mar/23/gaza-war-crimes-drones.

Clapham, A., Gaeta, P., Sassoli et al. (2015). The 1949 Geneva Conventions: A Commentary. Oxford University Press.

Clarke, R. A. (2010). Cyber War. HarperCollins

Fang, M. (2015). Nearly 90 Percent of People Killed in Recent Drone Strikes Were Not the Target: U.S. drone strikes have killed scores of civilians in Afghanistan, Pakistan, Yemen, and Somalia. Huff post. Retrieved January 27, 2019. https://www.huffingtonpost.com/entry/civilian-deaths-drone-strikes_us_561fafe2e4b028dd7ea6c4ff

Hafezi, P. (2018). “Iran Accuses Israel of Failed Cyber Attack.” Discover Thomson Reuters. Accessed January 27, 2019. https://www.reuters.com/article/us-iran-israel-cyber/iran-accuses-israel-of-failed-cyber-attack-idUSKCN1NA1LJ.

International Committee of the Red Cross. (2016). Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Cambridge University Press. Pp.5-17.

ICRC. (2004). what is International Humanitarian Law?:Advisory Service on International Humanitarian Law. Retrieved January 27, 2019. https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf

James, B. (2011). Security: A Huge challenge from China, Russia, and Organized crime.Financial Times.

Liivoja, R., and McCormack, T. (2016). Routledge Handbook of the Law of Armed Conflict. Routledge. P.299.

McGuinness, D. (2017). “How a cyber-attack transformed Estonia.” BBC News. Accessed January 27, 2017. https://www.bbc.com/news/39655415.

Melzer, N. (2016). International humanitarian Law: A Comprehensive Introduction. ICRC. P.8.

Ruy, T. (2010). Armed Attack’ and Article 51 of the UN Charter: Evolutions in Customary Law and Practice. Cambridge University Press.

Strawser, B. J. (2013). Killing by Remote Control: The Ethics of an Unmanned Military. OUP USA. P.84.

(1923). The Hague Rules of Air Warfare. Retrieved January 27, 2018, https://wwi.lib.byu.edu/index.php/The_Hague_Rules_of_Air_Warfare

Zach, S. (2014). The Intercept Wouldn’t Reveal a Country the U.S. Is Spying On, So WikiLeaks Did Instead. Newsweek.

Završnik, A. (2015). Drones and Unmanned Aerial Systems: Legal and Social Implications for Security and Surveillance. Springer. P.186.

 

[1]           Hafezi (2018)

[2]           Busby (2018)

[3]           Casciani (2019)

[4]           McGuinness (2017)

[5]           The Hague Rules of Air Warfare

 

[6]           Završnik (2015, p.186)

[7]           Blank and Noone (2018, p.61)

[8]           International Committee of the Red Cross (2016, pp. 5-17)

[9]           Liivoja and McCormack (2016, p.299)

[10]          Strawser (2013, p.84)

[11]          Fang (2015)

[12]          Chassay (2009)

[13]          Byman (2009, p. 23)

[14]          Bergen and Tiedemann (2011)

[15]          Clarke (2010)

[16]          James (2011)

[17]          Zach (2014)

[18]          McGuinness (2017)

[19]          Melzer (2016, p. 8)

[20]          ICRC (2004)

[21]          Clapham, Gaeta, Sassoli et al. (2015, pp. 23-34)

[22]          Ruys (2010, p.6)

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