War, Technology and the Law ofArmed Conflict

• Author: Michael N. Schmitt
• Position: Professor of International Law, George C. Marshall European Center for Security Studies, Garmisch-Partenkirchen, Germany
• Pages: 137-182

VII

War, Technology and the Law of Armed

Conflict

Michael N. Schmitt*

War, technology, and the norms governing warfare have influenced

each other dramatically since the beginning of organized conflict. 1

Technology determines how wars can be fought. When the resulting hostilities run

counter to prevailing values or interests, law and other prescriptive strictures often

emerge to restrain them.2This occurs either through treaties or as the result ofpol-

icy decisions by belligerents (generally States) to conduct themselves in aparticu-

lar manner. In the latter case, the practice matures into customary international

law when it becomes "general" (widespread) and "accepted as law" by States. 3

Finally, as the norms governing war become outdated, law is reinterpreted, ig-

nored, or discarded.

In the 21st century, the pace of technological change in warfare has quickened.

This article asks how war and law are likely to react to, and upon, one another in the

near future. It begins with abrief survey of the normative architecture governing

*Professor of International Law, George C. Marshall European Center for Security Studies,

Garmisch-Partenkirchen, Germany. The views expressed herein are those of the author in his

personal capacity and should not be construed as the official position of either the Federal

Republic of Germany or the United States. This article was previously published as an

Occasional Paper by the Program on Humanitarian Policy and Conflict Research (HPCR)

(Summer 2005) and is reprinted with permission. ©2006 by Michael N. Schmitt.

War, Technology and the Law ofArmed Conflict

methods (tactics) and means (weapon systems) of warfare. Technology is then re-

viewed, with particular emphasis on current weapons development programs and

overall trends. The article concludes with an analysis of how this technology may

influence the application and interpretation of the law of armed conflict.

The Law Relevant to Technology

In 1996, the International Court of Justice (ICJ) recognized the law of armed

conflict's two "cardinal" principles in Legality of the Threat or Use of Nuclear

Weapons.4Distinction, the first, provides that "States must never make civilians the

object of attack and must consequently never use weapons that are incapable of

distinguishing between civilian and military targets." In other words, weapons

must be both capable of discrimination and used discriminately. The second disal-

lows weapons that cause combatants unnecessary suffering. Nearly all law of

armed conflict prohibitions related to the conduct of hostilities, whether treaty-

based or customary, find their genesis in these principles.

The 1868 St. Petersburg Declaration, which dealt with explosive projectiles,

ushered in the modern era oflimitations on methods and means of warfare with its

pronouncement:

That the only legitimate object which States should endeavour to accomplish during

war is to weaken the military forces of the enemy;

That for this purpose it is sufficient to disable the greatest possible number of men;

That this object would be exceeded by the employment of arms which uselessly

aggravate the sufferings of disabled men, or render their death inevitable;

That the employment of such arms would, therefore, be contrary to the laws of

humanity. . . .

5

Other efforts to restrict military technology followed6—projectiles and explo-

sives dropped from balloons (1899 and 1907); gas and chemicals (1899, 1925,

1993); expanding bullets (1899); submarine mines (1907); biological weapons

(1972); environmental modification techniques (1976); non-detectable fragments

(1980); mines &booby traps (1980, 1996, and 1997); incendiary weapons (1980);

and blinding lasers (1995).7

Undoubtedly, further attempts to regulate weaponry will be launched. Possible

topics include depleted uranium shells, cluster munitions, computer network at-

tacks, non-lethal weapons, and space-based offensive operations.8The prospect of

States agreeing to accept limits on their weaponry depends on variables ranging

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Michael N. Schmitt

from whether they possess or are likely to be attacked with them, to the degree of

international and domestic concern about their impact on the civilian population.

The international community also regulates methods and means of warfare

through non-weapon specific law of armed conflict principles. Two early compila-

tions were the Regulations annexed to the 1899 and 1907 Hague Conventions on the

Laws and Customs ofWar on Land.9These regulations set forth the most basic limi-

tation on the conduct ofhostilities, that "[t]he right ofbelligerents to adopt means of

injuring the enemy is not unlimited." 10 Other relevant provisions include aban on

poison11 and "arms, projectiles, or material calculated to cause unnecessary suffer-

ing"; 12 acceptance of ruse; 13 and arequirement to take "all necessary steps" to "spare,

as far as possible, buildings dedicated to religion, art, science, or charitable purposes,

historic monuments, hospitals, and places where the sick and wounded are collected,

provided they are not being used at the time for military purposes." 14

The most comprehensive codification governing methods and means of war-

fare is the 1977 Protocol Additional to the 1949 Geneva Conventions (Additional

Protocol I) which governs international armed conflict. 15 Although key States

such as Israel, India, and the United States are not party to the instrument, they

recognize many of the Protocol's provisions as reflective of the customary law of

armed conflict. 16

Article 35 restates the basic Hague principles that there are limits on methods

and means ofwarfare and that weapons causing superfluous injury or unnecessary

suffering are banned. 17 More significant, is Article 48, which sets forth the core law

of armed conflict principle, distinction: "In order to ensure respect for and protec-

tion ofthe civilian population and civilian objects, the Parties to the conflict shall at

all times distinguish between the civilian population and combatants and between

civilian objects and military objectives and accordingly shall direct their operations

only against military objectives." Articles 51 and 52 build on this requirement.

Article 51: (2) The civilian population as such, as well as individual civilians, shall not be

the object of attack. Acts or threats of violence the primary purpose of which is to

spread terror among the civilian population are prohibited.

(3) Civilians shall enjoy the protection afforded by this Section, unless and for such

time as they take adirect part in hostilities.

Article 52: (1) Civilian objects shall not be the object of attack or of reprisals. Civilian

objects are all objects which are not military objectives as defined in paragraph 2.

(2) Attacks shall be limited strictly to military objectives. In so far as objects are

concerned, military objectives are limited to those objects which by their nature,

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