International Humanitarian Law and Emerging Technologies

International Humanitarian Law (IHL), also known as the Law of Armed Conflict or the Law of War, governs the conduct of hostilities and the protection of those not participating in the conflict. While its roots lie in historical treaties like the Geneva Conventions, modern warfare has drastically evolved due to technological advancements. From cyber operations and autonomous weapons to surveillance drones and artificial intelligence (AI), technology presents both opportunities and challenges to the enforcement and relevance of IHL.

As new technologies are integrated into military operations, legal scholars and policymakers are compelled to analyze their compatibility with IHL principles such as distinction, proportionality, necessity, and humanity.

This article explores the intersection of IHL and technology, focusing on the impact of emerging technologies on the conduct of war, legal interpretations, and the future of humanitarian protections.

Understanding the Scope of IHL in Technological Warfare

IHL is primarily derived from two sources: treaty law and customary international law. The four Geneva Conventions of 1949 and their Additional Protocols, along with the Hague Conventions, form the backbone of this legal regime. IHL applies in both international and non-international armed conflicts.

The cardinal principles of IHL include:

• Distinction between civilians and combatants.
• Proportionality in attacks, avoiding excessive civilian harm.
• Military necessity justifies the use of force for legitimate military aims.
• Humanity prohibits unnecessary suffering.

These principles are designed to be technology-neutral. That is, IHL applies to all methods and means of warfare, irrespective of technological development. However, the application of these principles to technologies such as autonomous weapons or cyber warfare remains a significant area of debate.

Autonomous Weapon Systems (AWS) and IHL

Autonomous Weapon Systems, often referred to as “killer robots,” are capable of selecting and engaging targets without direct human intervention. These systems raise pressing legal and ethical concerns under IHL.

Challenges to IHL

• Distinction: Can AWS reliably distinguish between combatants and civilians, especially in complex urban environments?
• Accountability: Who is responsible for unlawful actions taken by an autonomous system — the programmer, commander, or manufacturer?
• Proportionality and Judgment: Can machines accurately assess proportionality in attacks that require context-based moral judgment?

International Response

There is currently no binding international treaty regulating AWS, although the Convention on Certain Conventional Weapons (CCW) has hosted discussions since 2013. States like Austria and Chile have called for preemptive bans, while others advocate for a “human-in-the-loop” approach to retain human control over lethal decisions.

Cyber Warfare and IHL

Cyber operations can be used to disrupt enemy networks, disable infrastructure, or even inflict physical damage, as demonstrated in the Stuxnet attack on Iran’s nuclear facilities.

Key Legal Issues

• Classification: Is a cyber operation considered an “armed attack” under IHL?
• Attribution: Can the originator of a cyberattack be identified with certainty?
• Proportionality: How do we measure proportionality in a cyberattack that causes economic damage or psychological harm?

Existing Frameworks

The Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, although non-binding, provides valuable guidance on how IHL can apply to cyber warfare.

Artificial Intelligence and Decision-Making in War

AI is increasingly used in predictive analysis, drone surveillance, target recognition, and logistics. While AI enhances military efficiency, its integration into decision-making introduces unpredictability.

Concerns for IHL

• Opacity: AI decision-making often involves “black box” systems, where even developers may not understand the reasoning.
• Bias and Error: Data bias can lead to erroneous targeting decisions or misidentification of combatants.
• Loss of Human Judgment: Overreliance on AI may erode human ethical oversight and lead to IHL violations.

IHL Implications

There is a growing call for meaningful human control over all AI applications in warfare to ensure compliance with IHL norms and ethical standards.

Surveillance Technologies and IHL

Drones, satellite imagery, and biometric tools have revolutionized battlefield intelligence and surveillance. They are used for both targeting and humanitarian monitoring.

Positive Applications

Precision Targeting: Minimizes collateral damage by allowing greater accuracy.

Accountability: Enables documentation of violations and real-time monitoring of hostilities.

Risks and Limitations

Privacy Violations: Constant surveillance may infringe upon civilians’ rights and dignity.

Psychological Impact: Persistent drone presence causes fear and trauma among civilian populations.

Space Technology and Warfare

With the deployment of satellites for communication, navigation, and reconnaissance, outer space has become a militarized domain. The use of anti-satellite weapons (ASATs) poses a threat to both military and civilian infrastructure.

Legal Status

The Outer Space Treaty of 1967 prohibits weapons of mass destruction in space but does not specifically ban conventional weapons or ASAT systems.

IHL Perspective

If space-based attacks result in destruction on Earth or disrupt humanitarian services, such actions fall within the purview of IHL, requiring compliance with its principles.

Biotechnology and Enhanced Soldiers

Technological enhancement of soldiers through drugs, implants, or genetic engineering is on the horizon. These raise novel IHL questions:

• Does enhancement affect combatant status?
• What rights apply to enhanced individuals if captured?
• Can enhancement reduce or increase human suffering?

Such developments, while still speculative, demand proactive legal consideration under the preventive arms of IHL.

The Martens Clause and Technological Uncertainty

The Martens Clause, found in the preamble to the 1899 Hague Convention II, states that in cases not covered by existing treaties, civilians and combatants remain under the protection of the principles of humanity and public conscience.

This clause serves as a moral compass for emerging technologies, acting as a gap-filler when specific legal norms are absent.

Recommendations for Adapting IHL to Technological Advances

1. Updating Treaty Law: IHL treaties may need updates or new protocols to explicitly address cyber warfare, AI, and autonomous weapons, ensuring legal clarity.
2. Developing Interpretive Guidance: Non-binding instruments like the Tallinn Manual help bridge the gap between traditional IHL and new domains. Continued state engagement is essential.
3. Ensuring Human Control: Across domains — whether cyber, AI, or autonomous systems — maintaining meaningful human control must be central to IHL compliance.
4. Enhancing Accountability Mechanisms: Establishing responsibility in automated warfare scenarios requires robust legal frameworks and international cooperation.

Conclusion

Technology has transformed the landscape of modern armed conflict. While it offers tools to reduce civilian harm and increase precision, it also challenges the foundational norms of International Humanitarian Law. As warfare becomes more digitized and autonomous, the principles of IHL must not only remain relevant but be reaffirmed and adapted to ensure that technological advancements serve humanity rather than undermine it.

Through vigilant interpretation, international dialogue, and legal innovation, the global community can ensure that the spirit of IHL — the protection of human dignity during conflict — remains intact in the age of technology.

References

[1] Geneva Conventions of 1949 and Additional Protocols I & II (1977)

[2] Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, Available Here

[3] The Weaponization of Increasingly Autonomous Technologies, Available Here

[4] Roberts, A., & Guelff, R. (2000). Documents on the Laws of War (3rd Edition)