A Project Work on New Weapons unLaw, Challenges &

By:Yohannes Eneyew

(3 months Internship in the ICRC Addis Ababalaw)

on nder International Humanitarian & Prospects

Submitted to the ICRC

Eneyew

ICRC Addis Ababa from Wollo University, school of

June 2014

Addis Ababa Ethiopia

Humanitarian

ICRC, Addis Ababa

from Wollo University, school of

June 2014

Ababa Ethiopia

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Table of contents Page

Acknowledgement………………………………………………………………………2

Abstract……………………………………………………………………………………..…3

Chapter One General Orientation of the project……………………….…4

1.1 Background of the study……………………………………………………......41.2 Problem of the study…………………………………………………………….…5

1.3Objective of the study……………………………………………………………. .6

1.4Methodology……………………………………………………………………………6

1.5Scope of the study……………………………………………………………………6

Chapter Two New Technologies of Warfare……………….……7

2.1 Introduction……………………………………………………………………………………….….7

2.2 cyber warfare………………………………………………………………………………………..8

2.3 Drones/remote-controlled weapon system……………………………………………11

2.4 Robotic Weapon systems……………………………………………………………………...14

Chapter Three Conclusions and Recommendations…………..17

3.1 Conclusion………………………………………………………………………………………….… 17

3.2 The way forward and Prospects ……………………………………………………… ... 17

Bibliography………………………………………………………………………………………… …….19

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Above all, Thanks to the source of Wisdom Almighty God and his mother St.Holy virgin Mary for their unfailing grace!

Secondly, I acknowledge all staffs of International committee of Red Cross(ICRC) Ethiopian delegation for their meaningful support by allow-ing their office to undertake this externship project interalia,Ms.Ariane Tombet,ICRC Head of delega,tion Mr.Zewdu Ayalew,ICRC communica-tion officer, Ms Blen G/Medhin Sr.Communication officer ICRC-AU Delegation ,Mr.Desalegn Tadesse and et.al

Most importantly, my gratitude should goes to Mr.solomon Gezah-gen,ICRC legal officer who advises me in the furtherance of this project.

Furthermore, credit to my beloved father Mr.Eneyew Ayalew and my mother Ms.Askeke Fetene as well as my brothers and sisters and my uncle Mr.Mebratu Taye for their help and support beside me.

Finally, my gratitude goes to other stakeholders who have help me to accomplish this project.

Yohannes Eneyew Ayalew

Addis Ababa, Ethiopia

May, 2014

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AbstractIf the new and frightful weapons of destruction which are now at the disposal of the nation’s seem destined to abridge the duration of future wars, it appears likely, on the other hand, that future battles will only become more and more murderous. Henry Dunant, Memory of Solferino, 1862

Yes indeed, Technological advancement in the fields of warfare by way of cyber space, drones and robots do have a far-reaching consequence. Cyber warfare involves the actions by a nation-state or non-state actors to attack and attempt to damage another nation's computers or in-formation networks through, for example, computer viruses or denial-of-service attacks. And drone strikes are conducted by unmanned planes on certain area of target while robotic weapon system refers those that operate without human intervention and as such are able to complete their tasks by processing, responding to and acting on the environment they operate in.

This project glanced at the challenges and prospects brought by cyber warfare, drone strikes and robotic weapon system.

Moreover, critical legal analysis is used as principal methodology for the furtherance of this pro-ject and also interviews are conducted with experts on the field as well as relevant literatures are consulted.

Findings of the project revealed that there are scenarios to be underlined and emphasized in-teralia, cyber and drone regimes .Recommendations are made by suggesting points of im-provement until the international community have agreed on these cross-cutting contemporary issues.

Chapter One General Orientation

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Of the project

1.1 Background of the study

Above all, the information revolution has fundamentally changed the way that wars are fought in the 21st century, from actors point of view, the strategies that parties adopted as well as the spread of technology in to all aspects of warfare is pervasive.

New technologies and new weapons have revolutionised warfare since time immemorial. We need only think about the invention of the chariot, of canon powder, of the airplane or of the nu-clear bomb to remember how new technologies have changed the landscape of warfare.Since the St. Petersburg Declaration of 1868, this banned the use ofProjectiles of less than 400 grams, the international community has attempted to regulate new technologies in warfare. And modern international humanitarian law has in many ways devel-oped in response to new challenges raised by novel weaponry.1

Still more, as weapons become more technologically complex, the challenges of complying with this apparently simple requirement of international law become more daunting and discourag-ing.2

The threshold questions are whether the existing law applies to new technologies issues at all, and, if so, how? Views on the subject range from a full application of the law of armed conflict, along the lines of the International Court of Justice’s3 pronouncement that it applies to “any use of force,regardless of the weapons employed”4, to strict application of the Permanent Court of International Justice’s pronouncement that acts not forbidden in international law are generally permitted.5

1 International Humanitarian Law and New Weapon Technologies,34th Round Table on current issues of international humanitarian law, San Remo, 8–10 September 2011Keynote address by Dr Jakob Kellenberger, ICRC President, and Conclusions by Dr Philip Spoerri, ICRC Director for International Law and Cooperation pp12 New capabilities in warfare: an overview of contemporary Technological developments and the associ-ated legal and engineering issues in Article 36 weapons reviews byAlan Backstrom and Ian Henderson on ICRC review volume 94 No886 summer 2012 pp4843 International court of justice(ICJ) was established by UN charter served at world court since 1945 yet Permanent court of international Justice(PCIJ) was established under the auspices of league of Nations ceased its service after 1945 glance at http://www.experts123.com/q/what-is-the-difference-between-the-pcij-and-the-present-international-court-of-justice.html last visited12-0520144 Nuclear Weapons Advisory Opinion, para. 39.5The Permanent Court of International Justice famously asserted that “[t]he rules of law binding upon States . . . emanate from their own free will as expressed in conventions or by usages generally accepted as expressing princi-ples of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims.” Lotus Case at 18.

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Finally, the author of this paper believes the international community should attentively follow the impact of new technologies and warfare on IHL and the author delve in to various cross-cutting issues with regard to cyber warfare, drone attacks and Robotic Weapon systems and pinpoints the nexus between them and IHL.

1.2 Problem of the Study

Above all, almost all IHL treaties are known by their bad connotation called “One war behind reality” thus, due to that reason there were plenty of sufferings and superfluous injuries occurred in history of man-kind. In other words, in the past 150 years all most all IHL treaties were not stipulated in advance whether a war or armed conflict occurred or not, Albeit; treaties were so far enacted after the drama of a certain warfare .For instance, The 1929 Convention on the treatment of prisoners of war was the result of The incident of First world war(WWI)6 .Surprisingly even the Four Geneva Conventions of 1949 were enacted after the scourges of Second World War(WWII).7

On top of that, now a days there is no binding legal instrument under international law to govern and deal with cyber warfare, drone attacks and Robotic Weapon systems. However, only Proto-cols Additional to The Geneva Conventions relating to the Protection of Victims of International Armed Conflicts(Protocol I) here in after “AP I” have a very single provision in general terms dealing with New Weapons8which vividly stipulates;

“In the study, development, acquisition or adoption of a new weapon, means and methods of war fare, a High Contracting party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this pro-tocol or by any other rule of international law applicable to the High Contracting party.”

Besides, the international community so far witnessed plethora of cyber incidents and drone at-tacks coupled with lenient and unregulated law on them. And also there is no organized legal framework under international law even to punish the alleged perpetrators of such warfare.

Therefore, the researcher undertakes a project on the challenges of new weapons ultimately by strongly wishing and believing that the international community with in the near future should think over it and come up with binding treaty to avert the possible damages in advance.

6 The number of soldiers imprisoned reached a little over seven million for all the belligerents, of whom around 2,400,000 were held by Germany and also German and Austrian populations literally starve under the British blockade--roughly 800,000 Germans die to starvation and starvation-related disease. available at http://en.wikipedia.org/wiki/World_War_I_prisoners_of_war_in_Germany last visited 12-05-20147 The financial cost of World War II is estimated at about a $1.944 trillion U.S. dollars world-wide,making it the most costly war in capital as well as lives. See generally http://en.wikipedia.org/wiki/Effects_of_war last visited 12-05-20148 Protocols Additional to The Geneva Conventions relating to the Protection of Victims of International Armed Conflicts(Protocol I) Arts 36

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1.3.Objective of the Study

The objective of this project is basically to demonstrate the challenges of new technologies and warfare on IHL ,to critically analyse the law governing them under the contemporary world.

Hence, the main objective of this project is;

To assess the notion of new technologies and warfare.

To evaluate the current challenges associated with cyber warfare, drones and ro-bots.

to provide recommendations for international community to come up with binding International treaty governing such warfare

1.4 Methodology

In order to achieve the above mentioned objectives the author of this project uses a Critical Le-gal Analysis as a principal method of this paper for the furtherance of the study.

On top of that, the author of this paper also uses primary and secondary sources needless to men-tion, international treaties, customary international law, General principles of IHL and Case laws related with the subject at hand also investigated.

Moreover, relevant literatures, law books, articles and commentaries associated with such warfare also consulted.

Finally, information will be gathered from the concerned professionals practicing on IHL via in-terviews.

1.5 The Scope of the Study

The scope of this project is limited to the challenges of new technologies and warfare on IHL during armed conflict weather international or Non International Armed conflicts.

On top of that from legal point of view, it is important to distinguish between cyber warfare and drones conducted in the context of armed conflicts within the meaning of IHL and cyber opera-tions and drones outside such contexts. Since cyber-attacks and drones occur in peace time then it will be dealt with either as a criminal matter or, if it is by another state, as a matter of the jus ad bellum whether it is a use of force under the UN Charter.

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It is only in the context of armed conflicts that the rules of IHL apply, imposing specific restric-tions on the parties to the conflict.9

Finally, this project is limited with challenges posed by cyber attacks, drones and robots (with less emphasis) since others like Nanotechnologies, autonomous systems such as combat robots and laser weapons are excluded since they are still in the experimental and developmen-tal stages.

Chapter Two New Technologies of Warfare

2.1 Introduction

Technology has dominated warfare since the early 1900s. Throughout history, societies have put their best minds to work creating new ways to fight each other. New Scientistlooks at the major milestones in the development of tools of war.10

Technological developments have given rise to new methods and means of warfare, such as cyber attacks, armed drones and robots, raising novel humanitarian and legal chal-lenges. When developing or acquiring any new weapon, means or method of warfare, it is vitally important that a State assess whether it complies with international humani-tarian law. In this spirit, the regulation of new means and methods of warfare has developed along two tracks for the last 150 years. The first consists of general principles and rules that apply to all means and methods of warfare, as a result of the recognition that the imperative of humanity im-poses limits to their choice and use. The general principles and rules protect combatants against weapons of a nature to cause superfluous injury or unnecessary suffering but have also developed to protect civilians from the effects of hostilities. The second consists of international agree-ments which ban or limit the use of specific weapons – such as chemical and biological weap-ons, incendiary weapons, anti-personnel mines, or cluster munitions.

Informed by these fundamental general prohibitions, international 9International Committee of the Red Cross (ICRC), is empowered to follow up the specific situation of cyber op-erations and drones amounting to or conducted in the context of armed conflicts. Since the ICRC has a specific man-date under the 1949 Geneva Conventions to assist and protect the victims of armed conflicts. It is also mandated by the international community to work for the understanding and dissemination of IHL. Glance at, e.g., GC III, Art. 126(5), GC IV ,Art. 143(5), and Statutes of the International Red Cross and Red Crescent Movement, Art. 5(2)(g)10 www.newscientist.com/topic/weapons last visited 02 may 2014

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Humanitarian law was designed to be flexible enough to adapt to technological developments, including those that could never have been anticipated at the time. There can be no doubt that international humanitarian law applies to new weaponry and to all new technology used in war-fare.11

However, applying pre-existing legal rules to a new technology may raise the question of whether the rules are sufficiently clear in light of the technology's specific characteristics and foreseeable humanitarian impact.12

At the same time, while banning a very specific weapon, the St. Petersburg Declaration already set out some general principles which would later inform the entire approach of international humanitarian law towards new means and methods of warfare. It states that the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy, and that this object would be exceeded by the em-ployment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable.13

In recent years a wide array of new technologies has entered the modern battlefield. Cyberspace has opened up a potentially new war-fighting domain. Remote controlled weapons systems such as drones are increasingly being used by the parties to armedConflicts. Automated weapons systems are also on the rise.14

In toto,new technologies do not change existing law, but rather must abide by it, taking into consideration that current norms do not sufficiently regulate some of the challenges posed and might need to be elaborated as well as new treaty to be adopted.

2.2 Cyber warfare

Cyber warfare is a new a phenomenon and scenario under International Humanitarian law. There is no agreed definition for cyber warfare albeit for the sake of understanding it is Inter-net- based conflict involving politically motivated attacks on information and information sys-tems cyber warfare attacks can disable official websites and networks, disrupt or disable essential services, steal or alter classified data and cripple financial systems…among many other possi-bilities.15

Cyberspace has opened up a potentially new war-fighting domain, a man-made theatre of war additional to the natural theatres of land, air, sea and outer space and is inter- 11Supranote112 http://www.icrc.org/eng/war-and-law/contemporary-challenges-for-ihl/ihl-new-technologies/index.jsp last vis-ited 2 may 201413 Supranote1,pp48514 International Humanitarian Law and the challenges of contemporary armed conflicts Report Document prepared by the International Committee of the Red CrossGeneva, October 2011 pp 3615 Definition from what Is.com last visit 11may,2014

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linked with all of them. It is a virtual space that provides worldwide interconnectivity re-gardless of borders.16

Cyber operations can be broadly described as operations against or via a computer or a computer system through a data stream. Such operations can aim to do different things, for instance to infiltrate a system and collect, export, destroy, change, or encrypt data or to trigger, alter or otherwise manipulate processes controlled by the infiltrated computer system.By these means, a variety of "targets" in the real world can be destroyed, altered or dis-rupted, such as industries, infrastructures, telecommunications, or financial systems. The potential effects of such operations in are therefore of serious humanitarian con-cern.17

IHL provisions do not specifically mention cyber operations. Because of this, and because the exploitation of cyber technology is relatively new and sometimes appears to introduce a com-plete qualitative change in the means and methods of warfare, it has occasionally been argued that IHL is ill adapted to the cyber realm and cannot be applied to cyber warfare.18

Generally speaking, it shall be taken for granted that new scenarios of warfare are not far-flung from IHL regulation.Since, in the Nuclear Weapons Advisory Opinion, the International Court of Justice affirmed that “the established principles and rules of humanitarian law… apply to all forms of warfare, and to all kinds of weapons, those of the past, those of the present and those of the fu-ture.”19

Even though IHL doesn’t specifically mention cyber warfare, the Martens clause, that is associated with accepted principle in IHL, says that whenever a state of affairs isn’t coated by a global agreement, “civilians and combatants stay below the protection and authority of the principles of jurisprudence derived from established custom, from the principles of humanity, and from the dictates of public conscience”. However, the absence in IHL of specific references to cyber operations does not mean that such operations are not subject to the rules of IHL. New technologies of all kinds are being developed all the time and IHL is sufficiently broad to accommodate these developments.

There is no comprehensive international treaty exists to regulate cyber attacks. Plethora international legal frameworks are not directly aimed at cyber-attacks but however regulate means that may be used in or may be a focus of a cyber-attack. These include particularly , the international law governing telecommunications, aviation, space, and the law of sea.20

16 Supra note 1317 ibid18Charles J. Dunlap Jr., ‘Perspectives for cyber strategists on law for cyber war’, in Strategic Studies Quarterly, Spring 2011, p. 8119 Supra note 320 The impact of cyber warfare on international humanitarian law, A critical legal Analysis: A senior essay by Yohannes Eneyew Unpublished 2014 pp 41

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The general principles of IHL like military necessity, proportionality, precaution and distinction as well as humanity mutatis mutandis applies to cyber warfare since such principles from times immemorial guide and regulate the conduct of belligerent’s.21

Cyber warfare has impact on both civilians and combatants. First on the civilian side, as a general rule, then, during an international armed conflict, civilians are persons who are not members of the armed forces or of groups assimilated to the armed forces22. The right of civilians is not absolute right since they owe a duty of refraining from par-ticipation in warfare generally and cyber warfare particularly.23

Civilians had the right from two view points firstly, from protection point of view they shoulddeserve protection from being targets of attacks since the international legal framework in force obliges to do so and secondly from Participation point of view civilians have no the right to participate in the conduct of hostilities yet if they are take part on warfare they loss the protection of the law.in a nutshell, Civilian hackers remain civilians unless they meet the definition of com-batants under the law.24

On the other side members of the armed forces of a Party to a conflict (other than medical per-sonnel and chaplains covered by Article 33 of Geneva Convention III) are combatants, that is to say they have the right to participate directly in hostilities. Unlike civilians, combatants are enti-tled to directly participate in hostilities and are subsequently immune from prosecution as well as prisoner of war status.25

The major challenges posed by cyber warfare is summarized as follow as;

As to the battlefield, there is only one cyberspace, shared by military and civilian us-ers, and everything is interconnected. The key challenges are to ensure that attacks are directed against military objectives only and that constant care is taken to spare the civilian population and civilian infrastructure.26

Are hackers a legitimate target in cyber warfare? Most hackers would be civilians who remain protected by IHL against direct attack – although they would remain subject to law enforcement and possible criminal prosecution depending on whether their activities violated other bodies of law. The researcher argues that if hackers take a direct part in hostilities by way of a cyber-attack in support of one side in an armed conflict. In such a situation, the hackers will be legitimately targeted.

Attitudinal and policy differences between major super powers as to cyber law 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

21 ibid22 Suprnote8,Arts 50(1)23 Supranote18,pp7224 Interview with Dr.Harrison International cyber law expert on e-mail on 9 April 201425 ibid26 Supra note 8,Arts 48

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two of its primary concerns. Instead, the U.S. has suggested increasing national cy-ber-defence technology and increasing the cooperation between law enforcement agencies.27Albeit, Russia has been the 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.

The digitalization on which cyberspace is built ensures anonymity and thus compli-cates the attribution of conduct. Thus, in most cases, it appears that it is difficult if not impossible to identify the author of an attack. Since IHL relies on the attribution of responsibility to individuals and parties to conflicts, major difficulties arise. In par-ticular, if the perpetrator of a given operation and thus the link of the operation to an armed conflict cannot be identified, it is extremely difficult to determine whether IHL is even applicable to the operation.28

Finally, there are no centralized monitoring mechanisms to govern cyber warfare so far only NATO, Council of Europe, Organization of American states and Shanghai Coopera-tion Organization follow up their respective regions and members.

2.3 Drones/remote-controlled weapon system

Above all, the notion of drones29 is to mean that an Unmanned Aerial Vehicle (UAV) or as named by ICAO as a Remotely Piloted Aircraft (RPA) and commonly known as drone, is an aircraft without a human Pilot board. Its flight is controlled either autonomously by onboard computers or by the remote control of a pilot on the ground or in another vehicle.30

They are usually deployed for military and special operation applications, but also used in a small but growing number of civil applications, such as policing and firefighting and nonmilitary security work, such as surveillance of pipelines.31

The use of drones has grown quickly in recent years because unlike manned aircraft they can stay aloft for many hours (Zephyr a British drone under development has just broken the world record by flying for over 82 hours nonstop); they are much cheaper than military aircraft and they are flown remotely so there is no danger to the flight crew.32

27 Alter Gary Sharp Sr., "The Past, Present, and Future of Cyber security," Journal of National Security Law & Policy 4, no. 1 (2010).28 Supranote1,pp48529 According to the Oxford English Dictionary, the pertinent definition of a drone is ‘a remote-controlled pilotless aircraft or missile’, the etymology being the Old English word for a male bee.30 http://en.wikipedia.org/wiki/Unmanned_aerial_vehicle last visited 06-05-201431 ibid32 http://dronewars.net/aboutdrone/ last visited 06-05-2014

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Needless to mention, while there are dozens of different types of drones, they basically fall into two categories: those that are used for reconnaissance and surveillance purposes and those that are armed with missiles and bombs.33

Besides, Drones are the most conspicuous example of such new technologies, armed or unarmed. Their number has increased exponentially over the last few years. Similarly, so-called unmanned ground vehicles are increasingly deployed on the battlefield. They range from robots to detect and destroy roadside bombs to those that inspect vehicles at approaching checkpoints.34

Still more, over the past decade, the use of drones for military and counterterrorism purposes has seen explosive growth.35 For instance, it is reported that in 2010, United States President Barack Obama’s administration authorized more than twice as many drone strikes in north west Paki-stan than it did in 2009 ‘itself a year in which there were more drone strikes than during GeorgeW. Bush’s entire time in office’.36By early 2012, the Pentagon was said to have 7,500 drones un-der its control, representing about one-third of all US military aircraft.37

Drones were first deployed on a significant scale for surveillance and Reconnaissance in armed conflict by the United States of America: in Vietnam in the 1960s,38 in Bosnia and Herzegovina, and Kosovo in the 1990s.

Very recently, a drone strike in Yemen on Saturday killed at least 10 suspected al Qaeda militants but also inadvertently resulted in the deaths of three civilian day laborers.39

At this juncture, it is worthy to reiterates the argument of Dr.stuart, the use of drones on the battlefield is relatively uncontroversial under Jus in Bello because there may be scant practical difference between the use of a Cruise missile or an aerial bombardment and the use of a drone equipped with explosive weapons. They will thus have to comply with, at a minimum, the IHL rules applicable to the conduct of hostilities, in particular those rules relating to precautions in

33 ibid34 Supranote1, pp 48635 US Department of Defence, ‘US unmanned systems integrated roadmap (fiscal years 2009–2034)’,Washington, DC, 2009, p. 2,http://www.acq.osd.mil/psa/docs/UMSIntegratedRoadmap2009.Pdf last visited 06-05-201436 Peter Bergen and Katherine Tiedemann, ‘Hidden war, there were more drone strikes – and far fewer civilianskilled’, in New America Foundation, 22 December 2010 cited at Dr.Stuart Casey Maslen Article pp 59837 W. J. Hennigan, ‘New drone has no pilot anywhere, so who’s accountable?’, in Los Angeles Times,26 January 2012, available at: http://www.latimes.com/business/la-fi-auto-drone-20120126,0,740306.story.A similar percentage of drones to piloted aircraft is expected within twenty years in the British Royal Air Force (RAF). Nick Hopkins, ‘Afghan civilians killed by RAF drone’, in The Guardian, 5 July 2011,available at: http://www.guardian.co.uk/uk/2011/jul/05/afghanistan-raf-drone-civilian-deaths. 38 David Cenciotti, ‘The dawn of the robot age: US Air Force testing air-launched UCAVs capable to fire Maverick and Shrike missiles in 1972’, in The Aviationist (weblog),cited at Dr.Stuart Casey Maslen Article pp 598

39 http://edition.cnn.com/2014/04/19/world/meast/yemen-drone-strike/ last visited 06-05-2014

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attacks, distinction, and proportionality, and they must not employ weapons the use of which is unlawful under IHL.40

When we delve in to the challenges posed by drones is summarized as follow as;As to precautions in attack, Most of the rules on precautions in attacks, which were codi-fied in 1977 Additional Protocol I, are of a customary nature and are applicable in non-international armed conflict as well as in international armed conflict, according to the In-ternational Committee of the Red Cross (ICRC) study published in 2005. Central among the rules is the obligation to take ‘constant care’ in the conduct of military operations to ‘spare the civilian population, civilians, and civilian objects’. In this regard, ‘all feasible precautions must be taken to avoid, and in any event to minimise, incidental loss of civil-ian life, injury to civilians, and damage to civilian objects’.41However, recent drone at-tacks in black and white shows that death of innocent civilians due to absence of effec-tive precautions .for instance, with one drone Strike in Afghanistan in 2010 alone killing twenty-three Afghan civilians and wounding twelve others.42

With regard to distinction, it is vivid that Parties to the43 conflict shall at all times distin-guish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military ob-jectives. Only lawful military targets, including civilians ‘participating directly in hostili-ties’, may lawfully be targeted by attacks, in accordance with the provisions of Common Article 3 to the four Geneva Conventions, as supplemented by customary international law and those who exercise such a continuous combat function may, in principle, be targeted by attacks. Albeit, those persons who performs non-combat function, political or administrative function and also like targeting his son, his daughter, his wife, or wives by drone strikes would not be lawful unless they were directly participating in hostilities.Failure to make such a distinction during attack tantamount an attack unlawful and rele-vant evidence of a war crime.44

The issue of proportionality arises even though a target is a lawful military objective under International Humanitarian Law since Violating the rule of proportionality is an in-discriminate Attack according to 1977 Additional Protocol I.45 pursuant to Rule 14 of the

40 Pandora’s-box? Drone strikes under jus ad bellum, jus in bello, and international human rights law by Stuart Casey-Maslen in review of red cross committee vol 94 No 886 summer 2012 ,pp 60641 Supranote8,Arts 57(2)42 In October 2011, the US Department of Defence concluded that a number ofMiscommunication errors between military personnel had led to a drone strike the previous April, a strike that mistakenly killed two US troops in Afghanistan. ‘Drone strike killed Americans’, in RT,17 October 2011, available at: http://rt.com/usa/news/drone-american-military-report-057/.cited at supra note 3743 Supra note 8, Arts 4844 In this regard, claims that numerous CIA drone strikes have targeted funerals or those rescuing the victims of drone strikes are extremely disquieting. According to a report by the Bureau of Investigative Journalism:‘A three-month investigation including eye witness reports has found evidence that at least 50 civilians were killed in fol-low-up strikes when they had gone to help victims. More than 20 civilians have also been attacked in deliberate strikes on funerals and mourners’. Chris Woods and Christina Lamb, ‘Obama terror drones: CIA tactics in Pakistan include targeting rescuers and funerals’, in Bureau of Investigative Journalism, 4 February 2012, available at: http://www.thebureauinvestigates.com/2012/02/04/obamaterror-drones-cia-tactics-in-pakistan -include-targeting-rescuers-and-funerals/ cited at supra note 37 ,pp61145 Ibid, Art. 51(5)(b) and Art. 57(2)(a)(iii).

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ICRC’s study of customary international humanitarian law: Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to ci-vilian objects, or a combination thereof, which would be excessive in relation to the con-crete and direct military advantage anticipated is prohibited .On 23 June 2009, the CIA killed Khwaz Wali Mehsud, a mid-ranking Pakistan Taliban commander. They planned to use his body as ‘bait’ to target Baitullah Mehsud, who was expected to attend KhwazWali Mehsud’s funeral. Up to 5,000 people attended the funeral, including not only Taliban fighters but many civilians. US drones struck again, killing up to eighty-three people. Forty-five of the dead were reportedly civilians, among them ten children and four tribal leaders. Such an attack raises very serious questions about respect for the prohibition on indiscriminate attacks.46the author opined that the above instances un-doubtedly shows that the principle of proportionality is violated by the use of drones.From human rights point of view still International human rights law is the primary body of law that governs the use of armed drones outside an armed conflict, as well as such use in a law enforcement operation taking place within the context of an armed conflict since under international human rights law, the use of lethal force is prohibited as a violation of right to life except in very narrow circumstances. In particular, the absolute prohibition on the arbitrary deprivation of life means that the intentional use of lethal force would only be lawful in the context of a law enforcement operation, where an individual poses an imminent threat to another’s life and where the use of such lethal force is strictly un-avoidable to protect life.47 Albeit, International humanitarian law (IHL) will only regulate a drone strike in the conduct of hostilities in a situation of armed conflicts. As we know target killings are prohibited under human rights law, pursuant to ICCPR48every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life and most importantly this right is non-degradable even dur-ing armed conflicts.49

2.4 Robotic Weapon systems

To begin with, Military robots are autonomous robots or remote-controlled devices designed for military applications.50 Military robots have been used in war in some primitive form since the beginning of the 20th century. Only recently they have moved from a marginal role to the center stage of contemporary military and intelligence operations. The most technologically advanced armed forces have invested heavily into the development of unmanned vehicles and robots of all kinds, ranging from the now very familiar Predator drones to IED robots, heavy

46 According to Meyer, the CIA conducted sixteen missile strikes with the deaths of up to 321 people before they managed to kill Baitullah Mehsud cited at above note 4147 Conference report Drone strikes under international law Wednesday 17 – Friday 19 April 2013 | WP124948 The 1996 INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS Adopted by General Assembly resolution 2200A (XXI) on 16 December 1966, in New York, USA. Arts 649 Ibid,Arts 450 http//en.wikipedia.org/wiki/ Military-robot / last visited 07-05-2014

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unmanned ground vehicles, unmanned maritime vehicles, automated sentry guns, micro-robots, malicious software bots for sophisticated cyber attacks, and even nano-bots.51

Besides, Autonomous weapon (AW) systems are a new and rapidly developing branch of warfare industry.52 By definition, Autonomy in an engineering sense refers to the capability of carrying out its core mission with little or no human supervision.53 Thus, we can say AW systems as those that operate without human intervention and as such are able to complete their tasks by processing, responding to and acting on the environment they operate in. The key feature of an autonomous weapon is the ability to 'pull the trigger' attack a selected target without human initiation nor confirmation, both in case of target choice or attack command.

Needless to mention, fully autonomous weapons are weapon systems that can select and fire upon targets on their own, without any human intervention. Fully autonomous weapons can be enabled to assess the situational context on a battlefield and to decide on the required attack according to the processed information.54

By the same vein, fully autonomous weapons would act on the basis of an “artificial intelligence”. Artificial intelligence is basically created by arithmetic calculations and programming of the robot. It lacks every feature of human intelligence and human judgment that make humans subject and accountable to rules and norms. The use of artificial intelligence in armed conflict poses a fundamental challenge to the protection of civilians and to compliance with international human rights and humanitarian law.

According to the 31st International Conference of the Red Cross and Red Crescent an autonomous weapon system is one that can learn or adapt its functioning in response to changing circumstances in the environment in which it is deployed. A truly autonomous system would have artificial intelligence that would have to be capable of implementing International Humanitarian Law. Such systems have not yet been weaponized although there is considerable interest within expert literature and considerable funding of relevant research. The deployment of such systems would reflect a paradigm shift and a major qualitative change in the conduct of hostilities. It also raises a range of fundamental legal, ethical and societal issues which need tobe considered before such systems are developed or deployed.55

51 Autonomous Weapons Systems and the Future of War Armin Krishnan, May 27 2013 available at http://www.e-ir.info/2013/05/27/autonomous-weapons-systems-and-the-future-of-war/ last visited 07-05-201452 What are autonomous weapon systems and what ethical issues do they rise? By Marek Foss, 30/03/2008 avail-able at http://www.marekfoss.org/misc/Autonomous_Weapons.pdf last visited 07-05-201453 ibid54 Reaching Critical Will a programme of the Women’s International League for Peace and Freedom available at http://www.reachingcriticalwill.org/images/documents/Resources/Factsheets/killer%20robots.pdf last visited 07-05-201455 Supranote14,pp 39

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UK says killer robots will not meet requirements of international law.56

In theory, it may be possible to program an autonomous weapon system to behave more ethically and more cautiously on the battlefield than a human being yet the practice is otherwise.

When we glance at the practical challenges that will be posed by robotic weapon system it is vivid that;

From humanity point of view, should the decision over death and life be left to a machine?

Are machines habile of acting in accordance to international humanitarian law (IHL) principles like humanity, precautions, distinction, military necessity and proportionality?

Even from distinction principle point of view, should these weapon systems able to differentiate between combatants on the one side and civilians vis-à-vis uninvolved persons on the other side? Since 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.57

In light with proportionality principle, could these robotic weapons effectively assess the proportionality of attack? In certain situations, military attacks are not conducted due to the risk of causing disproportionally high civilian damages.58

From attribution and responsibility point of view, who are responsible for such attacks? Assume the use of an autonomous weapon system results in a war crime, who would be legally, morally or politically responsible for the choices made by autonomous weapon systems: the programmer, the manufacturer, or the command that deploys them?

56 http://www.article36.org/weapons-review/uk-says-killer-robots-will-not-meet-requirements-of-international-law/ last visited 08-05-201457 See above note 4358 Supra note 54,pp1

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Chapter Three; Conclusions And Recommendations

3.1 ConclusionsAbove all, Science cannot be placed above its consequences.59quit sure, since technological advancements in warfare via science should be subjected to regulation. The dazzling scientific and technical progress of recent decades has given rise to unprecedented means and methods of warfare.

As far as new technologies and warfare is concerned, it is worthy to reiterate the saying of first additional protocol In the study, development, acquisition or adoption of a new weapon, means or method of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party.

Technological developments have given rise to new methods and means of warfare, such as cyber-attacks, armed drones and robots, raising novel humanitarian and legal challenges.

Finally, new technologies do not change existing law, but rather must abide by it; taking into consideration that current norms do not sufficiently regulate some of the challenges posed and might need to be elaborated as well as new treaty to be adopted.

3.2 The way forward and prospectsThe researcher suggests the following recommendations as a way forward and a lesson for international community as follows;

Whenever new weapon is introduced by way of technological advancement there should be periodical review as well as regulation of such weapons.

With regard to cyber warfare, from treaty point of view, there is no binding and comprehensive international convention governing cyber warfare since Attitudinal and policy differences between major super powers as to cyber law 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. Instead, the U.S. has suggested increasing national cyber-defence technology and increasing the cooperation between law enforcement agencies. Albeit, Russia has been the 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

59 International Review of Red cross; new technologies and warfare Volume 94 Number 886 Summer 2012,editorial view pp.457

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for a global cyber-warfare treaty.so, there should be binding international treaty which govern the scenarios. Since if there is treaty obligation thereto, then it is vivid that customary international law evolves.

From jus in bello point of view since the law of war is based in large part on the provisions of the Geneva Conventions and their cus-tomary counterparts. Some of the fundamental principles underlying law of war are the principle of military necessity (military operations must be intended to assist in the military defeat of the enemy and must serve the intended military purpose) the principle of distinction (military op-erations may be conducted only against ‘military objectives’ and not against civilian targets), and the principle of proportionality (the ex-pected incidental loss of civilian life, injury to civilians or damage to civilian objects must not be disproportionate to the anticipated military advantage).Thus, the author recommends that fore one thing, cyber war-fare should be conducted to serve military necessity principle fore an-other thing, Even if one cyber dominion, combatants in cyber warfare should spare civilians’ and their objects. And with regard to objects having dual purpose that is military as well as civil use effective assessment should be made in light with principle of proportionality.

As to should hackers a legitimate target in cyber warfare? Most hackers would be civilians who remain protected by IHL against direct attack – although they would remain subject to law enforcement and possible criminal prosecution depending on whether their activities violated other bodies of law. The researcher recom-mends the notion of direct participation in hostilities should be on pragmatic way (case by case) that is if hackers take a direct part in hostilities by way of a cyber-attack in support of one side in an armed conflict. In such a situation, the hackers will be legitimately targeted.

From monitoring organ point of view, there are no centralized monitoring mecha-nisms to govern cyber warfare so far only NATO, Council of Europe, Organiza-tion of American states and Shanghai Cooperation Organization follow up their respective regions and members. There should be United Nation Special body for Cyber Affairs to come up with centralized monitoring organ.

With regard to drones, the missiles fired from drones should be conducted in a very smaller blast radius in order to minimize the incidental civilian causalities’.

The targets of drone strikes should be located using a tracking device that is painted at the vehicle, luggage, or equipment, or the person or one of the per-sons being targeted in order to achieve distinction principle.

Most importantly, there should be international treaty regulating the use of drones in armed conflict.

Finally, as to the use of robotic weapon system they should be banned or at least restricted by law before deployed in battlefield.

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Bibliography

I.Books1.Alan Backstrom and Ian Henderson(2012 )“New capabilities in warfare: an over-view of contemporary Technological developments and the associated legal and engi-neering issues in Article 36 weapons reviews “by ICRC review volume 94 No886 sum-mer 2012

2. Alter Gary Sharp Sr., "The Past, Present, and Future of Cyber security," Journal of National Security Law & Policy 4, no. 1 (2010).

3.Armin Krishnan(2013) Autonomous Weapons Systems and the Future of War , May 27 2013 available at http://www.e-ir.info/2013/05/27/autonomous-weapons-systems-and-the-future-of-war/

4. Charles J. Dunlap Jr., ‘Perspectives for cyber strategists on law for cyberwar’, in Strategic Studies Quarterly,Spring 2011

5. David Cenciotti, ‘The dawn of the robot age: US Air Force testing air-launched UCAVs capable to fire Maverick and Shrike missiles in 1972

6. Dr.Stuart Casey-Maslen Pandora’s box? Drone strikes under jus ad bellum, jus in bello, and international hu-man rights law in review of red cross committee vol 94 No 886 summer 2012

7. Marek Foss,What are autonomous weapon systems and what ethical issues do they rise?, 30/03/2008 available at http://www.marekfoss.org/misc/Autonomous_Weapons.pdf

8.Yohannes Eneyew(2014), The impact of cyber warfare on international humanitarian law, A critical legal Analysis: A senior essay Unpublished 2014

9. W. J. Hennigan, ‘New drone has no pilot anywhere, so who’s accountable?’, in Los Angeles Times, 26 January 2012, available at:http://www.latimes.com/business/la-fi-auto-drone

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II Web Pages1. http://www.icrc.org/eng/war-and-law/contemporary-challenges-for-ihl/ihl-new technolo-gies/index.jsp 2. http://www.guardian.co.uk/media/2010/dec/11/wikileaks-backlash-cyber-war ; 3. http://www.economist.com/debate/overview 4. http://www.article36.org/weapons-review/uk-says-killer-robots-will-not-meet-requirements-of-international-law/ 5. www.newscientist.com/topic/weapons 6. http://en.wikipedia.org/wiki/Unmanned_aerial_vehicle 7. http://dronewars.net/aboutdrone / 8. http://edition.cnn.com/2014/04/19/world/meast/yemen-drone-strike / 9. http://rt.com/usa/news/drone-american-military-report-057/ 10. http://www.e-ir.info/2013/05/27/autonomous-weapons-systems-and-the-future-of-war 11.http://www.reachingcriticalwill.org/images/documents/Resources/Factsheets/killer%20robots.pdf