21st century arms control challenges: drones, cyber weapons, killer robots, and WMDS. (weapons of mass destruction) (The Legal Challenges of Globalization: A View from the Heartland)

• Published date: 22 September 2014
• Author: O'Connell, Mary Ellen
• Date: 22 September 2014

Dean David Wippman's remarks at the 2013 Midwest Meeting of the International Law Association focused on how we in international law struggle with the view that international law is not really law--or not really law when it comes to the use of military force. Students of legal theory will tell you, however, that defining law poses challenges in all areas of law. Understanding what counts as law is no simple task. Still, the question of whether international law is really law may be more important, especially when it comes to the use of force, because the stakes are so high. Indeed, the stakes are probably higher than with respect to any other body of rules.

Compare, for example, the city of Chicago where the law against murder is frequently violated. In 2012, 500 people were murdered in Chicago; (1) few of the perpetrators will ever be identified, let alone prosecuted. When the rules on the use of force are violated, it is not hundreds that will die but hundreds of thousands. We typically know who is ultimately responsible for the resort to unlawful war and the resulting loss of life and destruction, but rarely are such persons prosecuted. In both contexts--domestic law against murder and international law against war--we must do better. I choose to work in the area of law against war and accept the challenge of persuading others as to why the law of the United Nations Charter binds the United States and all states, and why it matters that the United States and all states comply with this law. The task is challenging for a number of reasons, including the apparent decline in general knowledge respecting international law in the United States and the popularity of resort to military force. During 2013, however, we could see several indications that Americans were thinking differently about war. "War fatigue" has become a common phrase. The poor results and unintended consequences of major wars involving the United States against Serbia (1999), Afghanistan (2001-), Iraq (2003-), and Libya (2011-) are apparent.

Moreover, rather than resort to armed force in Syria in August 2013 over the use of chemical weapons, diplomacy prevailed and an agreement backed by a UN Security Council resolution led quickly to progress in the demolition of Syria's chemical weapons capacity. (2) If Syrian chemical weapons are destroyed through the art of diplomacy, we may see a revival of interest in alternatives to military force even in Washington, D.C. In September 2013, President Obama spoke by telephone with Iran's President Rouhani, giving further support to the view that diplomacy might be on an upswing. (3)

If the United States is moving toward a less militaristic phase, it will be an important time for international law specialists. We need to be ready to fill the knowledge vacuum when asked how the United States can forgo military force and yet promote security, prosperity, human dignity, and the natural environment both in the United States and in the world. Too many Americans--on the left and the right--have believed for too long that military force is the most effective way to deal with a range of complex problems from human rights violations to terrorism to arms control. The focus of these remarks is on the last problem in the list: arms control. (4) International law clearly prohibits the use of military force for arms control, but that is not the end of the story. International law embraces alternatives to the use of force to control certain weapons and certain weapons systems. I will illustrate this contrast of lawful and unlawful means by looking at four weapons categories:

* WMDs, or weapons of mass destruction, which are chemical, biological, and nuclear weapons;

* Drones, or unmanned aerial launch vehicles; the United States also possesses unmanned land and sea launch vehicles;

* Cyber weapons, which are computer programs designed to have destructive capacity; and the newest category,

* Fully autonomous weapons systems, which are robotic weapons programed to select and attack targets without further human intervention following the initial programing of the robot. (5)

All four categories pose challenges for the international community. Although chemical, biological, and nuclear weapons are clearly unlawful to use, a few states still possess them and, in the case of nuclear weapons, may even be seeking to obtain them. (6) Respecting unmanned, cyber, and fully autonomous weapons, certain commentators in the international security field indicate they are unaware of relevant international legal rules or seem to believe international law should play no role in regulating their use. (7)

International law does exist respecting all of these weapons categories. Moreover, looking to the lessons taught by twentieth century arms control efforts, we find that international law is uniquely effective and appropriate for regulating weapons. Here are just three constructive lessons from twentieth century arms control:

1. Controlling weapons proliferation by trying to keep a monopoly on technology or by staying ahead in technological development has not worked.

2. Attempting to control weapons development, proliferation, or use through unlawful means, such as the use of force, has proven ineffective and counter-productive.

3. Using the lawful means available in international law has succeeded in controlling weapons and in achieving other desiderata of the international community.

We will begin by looking first at nuclear weapons, then at the other weapons categories.

NUCLEAR WEAPONS

Most will know at least the outlines of the story of the secret Manhattan project to produce an atomic bomb during World War II. Thanks in large part to old-fashioned espionage, the Soviets quickly acquired the technology to create their own atomic weapons. As Robert O'Connell describes in his book Of Arms and Men.

 Initially, Americans dealt with the bomb from the perspective of
                 their own enormous postwar national power and the presumption of a
                 nuclear monopoly of some considerable duration.... [Then] on 3
                 September 1949 a B-29 flying over the South Pacific detected higher
                 than normal radiation levels explicable only in terms of a Russian
                 atomic bomb test. After only four short years, the nuclear monopoly
                 had ended. (8)
                

Since 1949, both lawful and unlawful measures have been taken to try to prevent more states from acquiring nuclear weapons. Starting with several examples of unlawful measures, we will quickly see that such measures have been inadequate and even counter-productive. In 1981, Israeli jets bombed a nuclear reactor under construction at Osirik, Iraq. The Security Council unanimously condemned the bombing as a violation of United Nations Charter Article 2(4) that was not excused as an exercise of self-defense under Article 51 of the Charter. (9) In the Security Council debate, most delegations pointed to the absence of an armed attack by Iraq on Israel as the most important missing element for lawful self-defense. States made it clear that they do not equate a future risk of nuclear attack with the armed attack requirement of Article 51.

The American representative to the UN Security Council, Ambassador Jeanne Kirkpatrick, stated that the United States, too, understood Israel had violated the Charter, in particular because Israeli leaders had not exhausted peaceful alternatives before ordering the attack. Many representatives were impressed by the testimony of the Director General of the International Atomic Energy Agency that the IAEA had found no evidence of unlawful weapons development by the Iraqi government, such as diversion of nuclear material. Following Israel's attack, Iraq did pursue nuclear weapons, but did so secretly in protected sites. (10) Following the 1991 Gulf War, the United Nations undertook concerted steps to ensure the elimination of all WMDs in Iraq. Those efforts succeeded well before the United States, United Kingdom, and Australia invaded in 2003. In letters to the Security Council, the three invading states sought to justify their resort to force as enforcement of Security Council resolutions mandating that Iraq eliminate its WMD programs. (11)

Israel has also sought to prevent Iran from acquiring nuclear weapons through a variety of means, including assassinations of scientists. (12) The United States has denied any involvement in violent action within Iran; Israel refuses to comment. (13) Nevertheless, the United States has said that military force against Iran is "on the table." (14) Whether Iran's nuclear ambitions have been slowed by either tactic is difficult to say. Some Iranian hardliners have likely cited the threats of military force to support the acquisition of nuclear weapons and to do so as soon as possible. Most observers credit tough economic sanctions as providing the pressure necessary to bring about the new round of negotiations with Iran that began in 2013. (15)

Another unlawful measure taken against Iran has been the Stuxnet worm, apparently released by one or more governments, most likely the United States and Israel, in 2009-10 to slow the progress of Iran's nuclear program. (16) Stuxnet attacked computers manufactured by Siemens and used in the Iranian nuclear program. The effect of the worm in Iran was to cause centrifuges to turn far more rapidly than appropriate. In early 2011, officials in Israel and the United States announced that Iran's nuclear program had been set back "by several years." The Stuxnet worm, however, affected computers in other countries as well, including India, Indonesia, and Russia. Indeed, it is believed that forty percent of the computers affected were outside Iran. Stuxnet is said to be "the first known worm designed to target real-world infrastructure such as power stations, water plants and industrial units." (17)

Ralph Langner, a German computer security expert, is...