New Technology and the Law of Armed Conflict

• Author: Darren M. Stewart
• Position: Colonel, British Army; Director, Military Department, International Institute of Humanitarian Law (IIHL)
• Pages: 271-298

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New Technology and the Law of

Armed Conflict

Darren M. Stewart*

Technological Meteorites and Legal Dinosaurs?

The tacit contract ofcombat throughout the ages has always assumed abasic

equality ofmoral risk: kill or be killed. Accordingly violence in war avails itself of

the legitimacy ofself-defence. But this contract is void when one side begins kill-

ing with impunity. 1

Introduction

Theissue ofnew technology and its implications for the law of armed conflict

(LOAC) is not anew question. For centuries nations and their militaries

have had to respond to developments in the means and methods ofwarfare. These

have ranged from hardware developments, such as the crossbow and gunpowder,

to the development of tactics, such as asymmetric warfare or doctrines like the

effects-based approach to operations (EBAO). In response to each of these chal-

lenges, belligerents have either developed enhanced weapons or tactics, or suffered

defeat. Usually technological change has been of arelatively minor, evolutionary

*Colonel, British Army; Director, Military Department, International Institute of Humanitar-

ian Law (IIHL). The views expressed in this article do not reflect those of the IIHL, the British

Army, the United Kingdom Ministry of Defence or Her Majesty's Government and are the au-

thor's personal views.

New Technology and the Law ofArmed Conflict

nature, affording localized tactical or operational advantage. Occasionally devel-

opments have been profound, changing the strategic balance in the favor of one

side over the other. History provides examples ofthese in the form ofthe crossbow,

gunpowder and nuclear weapons in the case of hardware. Similarly the Greek

hoplite phalanx, the Roman legion and the development of the corps structure by

Napoleon are all examples of innovations which have shaped tactics.

The question frequently posed today is whether the current nature of develop-

ments in military technology constitutes asimilarly seismic shift in the military

paradigm. Will the development of unmanned systems in the land, air and mari-

time environments be recorded in history in the same revolutionary terms as those

previously mentioned? This article will consider this question in the context of the

implications that flow from these developments for LOAC.

Over the centuries LOAC, in its various guises, has always had as its focus the

regulation of armed conflict so as to protect the victims of war.2During the nine-

teenth century, in response to both the development of military technology and the

prevailing social mores of the time, LOAC rules started to become formalized and

began to reflect the format that we are familiar with today.

One of the notable features of LOAC has been its evolutionary flexibility. This

flexibility has allowed LOAC to evolve in amanner that adapts to the developments

in both technological capabilities (means) and tactics (methods) employed in

armed conflict. This has included specific measures to ban weapons3and tactics 4

when seen as appropriate. More important, LOAC has demonstrated its flexibility

through the defining principles underpinning its operation. These principles

—

military necessity, humanity, distinction and proportionality—are of an enduring

quality and provide abenchmark against which developments in technology and

tactics can be assessed as to their lawfulness. When applied in the context of pre-

vailing international mores, LOAC proves itself both flexible and responsive to

changes in the armed conflict paradigm.

The changing character of weapons systems and their impact on the law is nei-

ther one-dimensional nor negative. In fact, technological advances in weaponry

frequently work to enhance application of LOAC, particularly in the areas of dis-

tinction and proportionality. Challenges usually arise when such developments

raise wider questions as to what are the acceptable ethical limits in the application

of technology to military purposes. In this context LOAC, operating as asystem

regulating what is inherently ahuman activity within aprevailing set of interna-

tional mores, becomes an important consideration.

This article will consider whether the changing character of weapons systems,

particularly unmanned systems and vehicles, is such as to call into question

LOAC's ability to respond to the introduction of new technology onto the

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