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0 MEANS AND METHODS OF WARFARE

The term means and methods of warfare generally describes means and methods

that are used in an armed conflict those that are being used by parties to an armed

conflict in the conduct of hostility. It must be noted that Weapons that are used

outside of hostility cannot be termed as means and methods of warfare like weapons

used by law enforcement agencies. It’s a broader concept than weapons, for it

extends also to platforms and equipment’s1 which makes it possible for an attack2.

‘Means of warfare’ generally refers to weapons being used in an armed conflict.

‘Methods of warfare’ generally refers to the way in which such weapons are used

during a military operation.3 The distinction evokes the difference often made in the

doctrine between inherently unlawful weapons4 and unlawful use of weapons5.

The distinction between mean and methods of warfare is not consistently upheld

and means sometimes has a broad meaning that is not limited to weapons, in

particular early International Humanitarian law instruments as 1922/23 Hague Rules

1
For example in aerial warfare Means and methods of warfare include weapons such as bombs, missiles and
rockets, and the aircraft executing the attack, also include other objects upon which the aircraft relies carrying an
attack, for example aircraft which providing target data and other essential information to an aircraft actual
engaging the attack qualifies as means and methods of warfare.
2
Commentary on the HPCR Manual on International law Applicable to Air and Missile Warfare, programs on
Humanitarian policy and conflict research at Harvard University, 2010, Pp. 41 and 55
3
Y. Sandoz et al. (eds), Commentary on the Additional protocols of the 8th July 1977 to the Geneva Convention
of 12 August 1949, ICRC, Martinus Nijhoff Publishers, Geneva 1987.
4
Weapons unlawful per se or by their nature
5
For example poison is unlawful in itself, as would be any weapon which would by its very nature, be so
imprecise that it would inevitably cause indiscriminate damage,… however a weapon that can be used with
precision can also be abusively used against the civilian population, in this case it’s not the weapon that is
prohibited but the method the way which its used
on Air warfare, use of aircraft for purpose of propaganda is considered means of

warfare the 1863 Leiber Code Article 101 describes deception of war as means of

warfare.

It should borne in mind that effects of usage of such weapons, with which

international humanitarian law is ultimately concerned will always result from a

combination of its design and a manner which it is used6.

2.0 CLASSIFICATION OF TECHNOLOGIES USED IN WARFARE

2.0.1 Automated weapon system

Automated weapon systems7: are not remotely controlled but function in a self-

contained and independent manner once deployed.8. Such weapons have high

combat capability and can perform what would be tedious work for long hours and

without the risk of falling asleep9.

6
A Guide to the Legal Review of New Weapons, means and methods of warfare, ICRC Geneva, 2006, Pp. 17
Examples of such systems include automated sentry guns, sensor-fused munitions and certain anti-vehicle
landmines
7
Not to be confused with automatic weapons, which are weapons, that fire multiple times upon activation of the
trigger mechanism – e.g., a machine gun that continues firing for as long as the trigger remains activated by the
person firing the weapon.
8
Jakob Kellenberger, ICRC President, ‘International humanitarian law and new weapon technologies’, 34th
Round Table on Current Issues of International Humanitarian Law, San Remo, 8–10 September 2011,
Keynote address, p. 5, available at: http://iihl.org/iihl/Documents/JKBSan%20Remo%20Speech.pdf (last
visited 30 May 2015)
9
South Korea is developing robots with heat and motion detectors to sense possible threats. Upon detection, an
alert is sent to a command centre where the robots audio or video communications system can be used to
determine if the target is a threat. If so, the operator can order the robot to fire its gun or 40mm automatic
grenade launcher. ‘S. Korea deploys sentry robot along N. Korea border’, in Agence France-Presse, 13 July
2010, available at: http://www.defensenews.com/article/20100713/DEFSECT02/7130302/S-Korea-Deploys-
Sentry-Robot-Along-N-Korea-Border (last visited 30 May 2015).
The principal legal issue with automated weapons is their ability to discriminate

between lawful targets and civilians and civilian objects. The second main concern is

how to deal with expected incidental injury to civilians and damage to civilian

objects10.

2.0.2 Autonomous weapon system

Are weapons systems that can select and fire upon targets on their own without

human intervention; they would act on the basis of artificial intelligence, which

basically created arithmetic calculations and programming of the robot11.

These weapons raised challenges to mean and methods of warfare as can they

differentiate between civilians and combatants one side and defenceless or

uninvolved persons on the other side, can such systems evaluate proportionality of

attacks as robotics care doubted to be able to make such decisions, who can be held

accountable as no individual can be held accountable as the system was self-

operational.12

2.0.3 Cyber Operations

Is the action of penetrating another nation computer or network for the purpose of

causing damages of disruptions13. Some government has made it an integral part of

10
Article 51(5)(b) and Article 57(2)(a)(iii) of AP I.
11
Although not fully deployed but countries like China, United Kingdom, Israel and Russia support and fund
development of such weapons. United States, United Kingdom, and Republic of Korea have deployed robotic
system with various degree of autonomy.
12
P. Warren, “Robot Warriors take over the battlefield. Future Intelligence. Future Intelligence. [Online
Document], 01 Mar 07. Available at: http://www.futureintelligence.co.uk/content/view/94/62/., Retrieved 30th
may 2015
13
Clarke, Richard A. Cyber War, HarperCollins. (2010)
their overall military strategy with some having invested heavily in cyber warfare as

a new domain in warfare as critical to military operation as Land Sea, air and space.

This raises legal question as how the law is able to categorize it to means and

methods of warfare. And also the question of the attacks carried by cyber warfare,

the people carrying the attacks fall under what level of distinction are they

combatants or civilians14 and cyber operations is indiscriminate in nature.15

2.0.4 Remote Controlled Weapons

Are weapon systems that they allow combatants to be physically absent from a zone

of combat operations. Weapons that are controlled remotely.16.

But the issue comes to question is the relevance of the surveillance data during the

attack how can the person holding the remote trigger ascertain the data provided as

at times he may not be present at the actual battle environment and depend on

cameras for visual conformation and the level of distinction in attacks using a visual

target from a monitor is not accurate as using normal eye sight at battle17.

14
As most hackers who perform cyber operation are just contractors hired for the task and not official military
personnel and sometime it cyber operations are conducted anywhere as long as a person has a laptop then he can
conduct a cyber-operation
15
Gaycken, Sandro, Cyberwar 2010.Pp 45 Cyber operation do not only cripple the communication medium of
military targets rather it also extends to civilians system as once its launched it has to control the magnitude of
damage caused, that cyberspace is characterized by interconnectivity and thus by the difficulty to limit the
effects of such operations to military computer systems
16
Andy Myers, ‘The legal and moral challenges facing the 21st century air commander’, in Air Power Review,
Vol. 10, No. 1, 2007, p. 81,
17
Remote controlled drones are a conspicuous example of a remote controlled weapons system.
2.2 Basic Principles of International Humanitarian Law.

For the purpose of this study these principles may be used to help interpretation of

the law when the legal issue are unclear of controversial, on the basis of technology

application in war, it’s a controversy and an unclear issue that in understanding its

application and legality you have to place in consideration these basic principles

which are;

2.2.1 Principle of distinction

The principle of distinction protects civilian persons and civilian objects from the

effects of military operations. It requires parties to an armed conflict to distinguish at

all times, and under all circumstances, between combatants and military objectives

on the one hand, and civilians and civilian objects on the other; and only to target the

former which is military targets. It also provides that civilians lose such protection

should they take a direct part in hostilities18. The principle of distinction has also

been found by the International Committee of the Red Cross to be reflected in state

practice; it is therefore an established norm of customary international law in both

international and non-international armed conflicts.

2.2.2 Necessity and proportionality

Necessity and proportionality are established principles in humanitarian law. Under

International Humanitarian Law, a belligerent may apply only the amount and kind

of force necessary to defeat the enemy. Further, attacks on military objects must not

cause loss of civilian life considered excessive in relation to the direct military

18
Additional Protocol 1, Articles 48, 51-52, 57; Additional Protocol II, 13-16
advantage anticipated19. Every feasible precaution must be taken by commanders to

avoid civilian casualties.20 The principle of proportionality has also been found by

the International Committee of the Red Cross to form part of customary

international law in international and non-international armed conflicts.

2.2.4 Principle of humane treatment (humanity)

The principle of humane treatment requires that civilians be treated humanely at all

times21. Common Article 3 of the Geneva Convention’s prohibits violence to life and

person (including cruel treatment and torture), the taking of hostages, humiliating

and degrading treatment, and execution without regular trial against non-

combatants, including persons hors de combat (wounded, sick and shipwrecked).

Civilians are entitled to respect for their physical and mental integrity, their honor,

family rights, religious convictions and practices, and their manners and

customs22. This principle of humane treatment has been affirmed by the

International Committee of the Red Cross as a norm of customary international law,

applicable in both international and non-international armed conflicts.

2.2.5 Principle of non-discrimination

The principle of non-discrimination is a core principle of International Humanitarian

Law. Adverse distinction based on race, nationality, religious belief or political

19
Additional Protocol 1, Article 35 and 51(5)
20
Additional Protocol 1, Article 57, 58
21
Geneva Convention IV, Article 27
22
Additional Protocol 1, Article 75(1)
opinion is prohibited in the treatment of prisoners of war,23 civilians24, and

persons hors de combat.25 All protected persons shall be treated with the same

consideration by parties to the conflict, without distinction based on race, religion,

sex or political opinion26. Each and every person affected by armed conflict is

entitled to his fundamental rights and guarantees, without discrimination27.The

prohibition against adverse distinction is also considered by the International

Committee of the Red cross to form part of customary international law in

international and non-international armed conflict.28

2.3 PROHIBITED WEAPONS

These are weapons that are prohibited to be used in warfare, generally weapons that

cannot afford the level of discrimination required by the law and those weapons that

cause unnecessary sufferings. Weapons that are prevented to be used are those types

of weapons that cause unnecessary sufferings and indiscriminate weapons or

methods of attacks are also prevented29.

St. Petersburg Declaration30, in its preamble imposes condition of weapons that are to

be used in wartime, if a weapon cannot fulfil these conditions then it will be banned

23
Geneva Convention III, Article 16
24
Geneva Convention IV, Article 13 and Common Article 3
25
Common Article 3
26
Geneva Convention IV, Article 27 and Common Article 3
27
Additional Protocol 1, Article 75(1)
28
Geneva Convention IV, Article 24, 27; Additional Protocol I, Article 76-78; Additional Protocol II, Article
4(3)
29
Article 22, Hague Regulations concerning laws and customs of war on Land
30
St. Petersburg Declaration to the Effect of prohibiting the use of certain projectiles in Wartime 29 November
1868
and prohibited, according to the declaration warring parties should use weapons

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

war is to weaken the military forces of the enemy;

Weapons 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

and the employment of such arms would therefore be contrary to the laws of

humanity. So weapons that don’t fall under this wording I considered a prohibited

weapon this also include technologies31

2.4 PROHIBITED MEANS AND METHODS

International humanitarian law limits the methods and means used to wage war.

These restrictions apply to types of weapons used, the way they are and the general

conduct of all those engaged in the armed conflict. The main treaties placing

prohibition on methods and means of warfare are, The Hague Convention of 1907,

the 1977, Additional protocols to the Geneva Convections and a series of agreement

of specific weapons.

Article 36 of Additional Protocol 1 prohibits means and methods that cause

superfluous injury or unnecessary sufferings. As a result certain types of weapons

are not allowed and the way other weapons are used in Restriction. Also the use of

weapons that cause unnecessary sufferings like poisonous weapons, perfidious

attacks, failure to wear uniform and identify oneself as a legal combatant, pillage

31
International Committee of the Red Cross, Weapons that may Cause unnecessary Suffering or have
Indiscriminate Effects: REPORT ON THE WORK OF EXPERTS, Geneva 1973, Pp. 12
terrorism, reprisal against protected persons or objects, misuse of protected emblems

all these are considered as prohibited means32.

Advance technology however advantageous it may be but if it cannot adhere to the

means and methods required then it will fall under prohibited means.33

2.5 INTERNATIONAL HUMANITARIAN LAW AND TECHNOLOGY

APPLICATION IN WAR

In general International Humanitarian law and its principle34 are the rules that

regulate the usage of technology in warfare, as the general principles and rules tend

to regulate and protect civilian and combatant against weapons of a nature to cause

superfluous injury or unnecessary sufferings, also is developed so as to protect

civilians from the effects of hostility35.

International Humanitarian law was designed to be flexible enough to adapt to new

technologies development, including those that were never anticipated at the time

the law was been drafted. There can be no doubt that international Humanitarian

law applies to new weaponry and all new technology used in wartime used in

warfare. This is explicitly recognized by Article 3636according to which in the

development or adaptation of new weapons or methods of warfare, state parties are

32
Illegal or prohibited acts by E. Allison and R. K. Goldman available at: http://www.crimeofwar.org/a-z-
guide/illegal-or-prohibited-acts/ ( Retrieved on August 2015)
33
Like using of normal email messages to deliver a cyber-virus for cyber operation in military installations
amounts to perfidy or Drone attacks that tend to cause incidental loss of civilians
34
Principles of prohibition, distinction, limitation, proportionality and humane.
35
For example means and methods of warfare that are indiscriminate are prohibited.
36
Protocol Additional to the Geneva Conventions of 12 August 1949
under an obligation to determine whether their employment would in some or all

circumstances, affect international law applicable to them37.

Article 36 of the Additional protocol to the Geneva Convention of 12 August 1949,

and relation to the protection of victims of international armed conflicts provides

that;

In the study, development, acquisition or adoption of new weapons,

means and methods of warfare, a high contracting party is under an

obligation to determine whether its employment in some or old

circumstances, be prohibited by this protocol or by any other rule of

international law applicable to the High contracting party.38

So, while it may be assumed that the weapons systems already in the armoury have

been evaluated by states in accordance with their obligations under Article 36 of

37
34th round table on current issues of International Humanitarian law, San-Remo 8-10 September 2011, Dr
Jakob Kellenberger, Http:// www.icrc.org/eng/resources/documents/statement/new-weapons-technologies-
statement-2011-09-08.htm (Retrieved 24 June 2015)
38
Opened for signature 12 December 1977, 1125 UNTS 3, entered into force 7 December 1978 (API). See
generally Justin McClelland, ‘The review of weapons in accordance with Article 36 of Additional Protocol I’, in
International Review of the Red Cross, Vol. 85, No. 850, June 2003, pp. 397–415; Kathleen Lawand,
‘Reviewing the legality of new weapons, means and methods of warfare’, in International Review of the Red
Cross, Vol. 88, No. 864, December 2006, pp. 925–930; International Committee of the Red Cross (ICRC), A
Guide to the Legal Review of New, Means and Methods of Warfare: Measures to Implement Article 36 of
Additional Protocol I of 1977, 2006. For a thorough discussion of what is and is not a ‘weapon’ for the purposes
of legal review, see Duncan Blake and Joseph Imburgia, ‘“Bloodless weapons”? The need to conduct legal
reviews of certain capabilities and the implications of defining them as “weapons”’ ,in The Air Force Law
Review, Vol. 66, 2010, p. 157.
Additional Protocol I or customary law39, as the case may be, the position as to

future weapons will depend on how states in future go about that evaluation

process. We all appreciate that the treaty and indeed the customary law obligation is

to assess new weapons by reference to extant rules of law.40 The interesting question,

however, is whether states will in fact do so, and indeed whether they will

implement in a systemic way their Article 36 obligations at all.

All weapons are adhere to the principles of International Humanitarian law and

means and methods, but as weapons become more technologically complex, the

challenges of complying with this apparently simple requirement of international

law become more daunting. International humanitarian law is ultimately concerned

will always will always result from a combination of its design and a manner which

it is used41. New technologies are recognized and are lawful but the manner that

they are used tends to raise legal question mostly raises question to the means and

methods of warfare.

The law provides for legal steps of an attack, the legal step under the law of armed

conflict when conducting an attack can be summarized as Collecting information

about the target, analysing that information to determine whether the target is a

lawful target for attack at the time of the attack; appreciating the potential incidental

effects of the weapon and taking feasible precautions to minimize those effects;

39
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims
of International Armed Conflicts (Protocol 1), 12 December 1977, 1125 UNTS 3 (entered into force 7
December 1979) (‘Additional Protocol I’),
40
Boothby W. H, Weapons and the law of armed conflict. Oxford University Press, Oxford, 2009
41
A Guide to the Legal Review of New Weapons, means and methods of warfare, ICRC Geneva, 2006, Pp. 17
assessing the ‘proportionality’ of any expected incidental effects against the

anticipated military advantage of the overall attack42 weapon firing, releasing, or

otherwise using the weapon such that its effects are directed against the desired

target; monitoring the situation and cancelling or suspending the attack if the

incidental effects are disproportionate.43, but also you should consider type of

weapon to be employed, and particularly relevant to this study is that there are also

ways of using an otherwise lawful weapon that might result in a banned effect (e.g.,

indiscriminately firing a rifle).44

But with more advance technology weapons like Missiles, the complexity of the

weapon design introduces the potential for discrimination to be affected by: design

errors (e.g., the weapon does not fire straight or consistent with any sighting

mechanism as the design is flawed); or manufacturing errors.

Further the words of the Martens Clause45 assure us that customary law based on

humanity and the dictates of the public conscience protect even where no specific

legal rules have been agreed, hence also extends to the technology that has no

express law to govern them or issues in dispute due to lack of regulation.

42
not just the particular attack of the individual
43
Article 57 (2) of Additional protocol 1
44
A. Backstrom and I. Henderson – New capabilities in warfare: an overview of contemporary technological
developments and the associated legal and engineering issues in Article 36 weapons reviews. Pp. 485
45
Hague Convention II with respect to the Laws and Customs of War on Land, 29 July 1899, 187 CTS 429
(entered into force 4 September 1900) (‘Hague Convention II’), preamble; Additional Protocol I, Article 1(2). It
reads: ‘In cases not covered by this Protocol or by other international agreements, civilians and combatants
remain under the protection and authority of the principles of international law derived from established custom,
from the principles of humanity and from the dictates of public conscience’.
International Humanitarian Law has banned various new technologies such as

blinding laser weapons or landmines, for instance. The same will be true for new

technologies: the lawfulness of new means and methods of warfare will usually

depend on their use, but it is not excluded that some weapons will be found to be

inherently indiscriminate or to cause superfluous injury or suffering, in which case

they will have to be banned. This is why the principle reflected in Article 36 of

Additional Protocol I that states should verify, when developing new means and

methods of warfare, whether their use will be compatible with international

humanitarian law is so critical.

2.6 CONCLUSION

Means and methods of warfare are crucial and need to be adhered to as the law

provide adequate means and methods so as to ensure protection of the persons

protected during war and respect of International humanitarian law principles,

further there numerous types of technology that are now present and considered

available for deployment, the law is considered to regulate all the technologies that

are ready for deployment and all that are in science fiction, but although the present

law is considered to govern means and methods of novel technology but still there

legal challenges that the law is facing regarding to means and methods of warfare

due to usage of these novel technologies.


3.0 FINDINGS AND ANALYSIS

Technological advancement has been introduced into the modern battle field with

the insufficient recognition of their potential challenge to international humanitarian

law means and methods of warfare. The emergence of technologically advanced

military platforms challenges current notions of what weapons and the ‘means and

methods of warfare’ are because of their capacity to filter and analyse information, to

draw conclusions, and to reach decisions. In short, both autonomous and remote

weapons systems possess characteristics associated with autonomy. While this is

clear with autonomous weapons systems, which currently influence human

decision-making and which may make decisions over the use of lethal force in the

near future, contemporary remote weapons systems are capable of acting with

varying levels of independence from direct human control that concomitantly

decrease the necessity and relevance of human oversight. Indeed, the operational

independence of contemporary remote weapons systems can relegate the role of the

human supervisor only to suspending or aborting attacks once they have been

deployed46.

There challenges that are brought upon by the application of new technology in war

that tend to affect the traditional means and methods of warfare, as the weapons

used and the manner such weapons are used do not conform with the provision of

Article 3647

46
McCoubrey, Hilaire. International Humanitarian Law. Aldershot, UK: Ashgate Publishing. 1999 Pp. 241
47
Additional Protocol 1
The legal issues raised by attacks employing new technologies. Must consider

targeting law principles and rules, including distinction, discrimination,

proportionality, and the precautions principles, observes that they all apply to

attacks carried out by technologies.

Hillary Kiboro48, said that the use of technology for example drones and remote

weapons in general raises risk of identification of targets as there has been numerous

occasion that civilians are mistakenly and considered as military targets hence

targeted by attacks49. They cannot afford the level of distinction and ascertainment of

targets as required by wording of Article 36 of Additional Protocol 1, including

attacks that do not cause incidental injuries to civilians and unnecessary sufferings,

Secondly, studies have shown that disconnecting a person, especially by means of

distance (be it physical or emotional) from a potential adversary makes targeting

hard and abuses more likely as he is unable to make accurate judgement calls

compared to a person in an actual battlefield.50

Long distance means and methods of warfare also pose some questions as to the

relationship between, on the one hand, the use of new technologies to keep soldiers

out of harm’s way by limiting their exposure to direct combat, and on the other hand

48
Legal officer, International committee of the Red Cross (ICRC), Nairobi Regional Delegation
49
P. Chatterjee, ‘Should we allow NATO free rein to attack and kill people?’, in The Guardian,29 November
2011, available at: http://www.guardian.co.uk/commentisfree/2011/nov/29/nato-free-range-to-kill (last visited
August 2015) Reportedly, in 2010 ‘a U.S. military investigation...harshly criticized a Nevada-based Air Force
drone crew and American ground commanders in Afghanistan for misidentifying civilians as insurgents during a
U.S. Army Special Forces operation in Oruzgan province in February, resulting in the deaths of as many as 23
civilian
50
A. P. V. Rogers, Law on the Battlefield, Manchester University Press, Manchester, 2004, p. 23.
their humanitarian impact for the civilian population51. It is probably impossible to

say that the remoteness of soldiers from the battlefield will by itself create greater

risks for civilians. But given the aversion of many societies and governments to risk

the lives of their soldiers, there is a danger that the tendency towards so-called zero

casualty wars could lead to choices of weapons that would be dictated by this

concern, even if it went to the detriment of the rules of international humanitarian

law that protect civilians against the effects of hostilities. Just like high altitude

bombing might be safer for soldiers but also in certain circumstances indiscriminate

and unlawful, so new technologies, however protective for the troops, will always

have to be tested for their compatibility with humanitarian law and in particular

their possible indiscriminate or disproportionate effects. This, however, requires that

we get a better understanding about the effects of such technologies, in particular

their precision and their incidental effects52.

In relation to cyber operation53 as highlighted above, the interest in legal issues

raised by ‘cyber-warfare’ is currently particularly high. By cyber warfare I mean

51
As weapons have become more capable and can be fired over a longer range, the ability to undertake combat
identification of the enemy at greater distances has become more important. Non-cooperative target recognition
(also called automatic target recognition) is the ability to use technology to identify distinguishing features of
enemy equipment without having to visually observe that equipment hence pose great danger to civilians within
the target
52
Jürgen Altmann, Peter Asaro, Noel Sharkey and Robert Sparrow, Mission Statement of the International
Committee for Robot Arms Control, 2009, available at: http://icrac.net/statements/ (this and all links last visited
June 2015).
53
Cyber operations are taken for the purposes of this study to consist of the use of a computer to interact with
another computer for purposes linked to a military operation. Cyber-attack is therefore, for similar purposes,
the use of a computer to target another computer and thus to cause violent effects, consisting of damage or
destruction to property or death or injury to persons. See Michael N. Schmitt, ‘Cyber operations and the jus in
bello: key issues’, in International Law Studies, Vol. 87, 2011, pp. 93–94.
‘means and methods of warfare’ that rely on information technology and are used in

the context of an armed conflict. The military potential of cyber space is only starting

to be fully explored. From certain cyber operations that have occurred, we know that

one party to a conflict can potentially ‘attack’ another party’s computer systems, for

instance by infiltrating or manipulating it. Thus, the cyber infrastructure on which

the enemy’s military relies can be damaged, disrupted or destroyed. However,

civilian infrastructure might also be hit either because it is being directly targeted or

because it is incidentally damaged or destroyed when military infrastructure is

targeted. Hence this overrules the limitation of the choice of means and methods of

warfare that causes superfluous injury.54

The greatest challenge is that the existing rules of international humanitarian law are

in general inadequate; there is scope for classification of existing rules and further

development of new rules. Thus there is a need to ensure better respect to the

existing rules.

The existing rules provide for technology application in the context of armed

conflict, Article 36 of Additional Protocol 1 provide for the governance of new

technology that will be deployed for military usage not to conflict with the existing

laws and its principles.

On the basis of this study, attention has begun to turn to the question of whether

International Humanitarian Law needs to be supplemented with an international

treaty that explicitly prohibits these technologies. As International Humanitarian

54
Sommer, Peter Reducing systematic cyber security risk, OECD Multi-disciplinary issues. Retrieved 30th May
2015
Law, has been considered to be weak and out dated on the aspect governance of

application of technology in war. As there is a conflicting interpretation of the law

and weakness due to increase of technology application in battlefields.

Mohammed Osman55 is in the opinion that International Humanitarian Law relies

on the attribution of responsibility to individuals and parties to conflicts, major

difficulties arise. Cyber space is built ensures anonymity and thus complicates the

attribution of conduct. Thus, in most cases, it appears that it is difficult if not

impossible to identify the author of an attack. In particular, 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 International Humanitarian

Law is even applicable to the operation.

The understanding of an ‘attack’ under International Humanitarian Law56, but with

the rise of new technology mostly in reference to cyber-attacks it lacks all the

essential wording of the meaning of an attack. Term “attack” is of decisive

importance for the application of the various rules giving effect to the International

Humanitarian Law principle of distinction. It should be borne in mind that

Additional Protocol I and customary International Humanitarian Law contain a

specific definition of the term which is not identical to that provided for in other

branches of law. cyber operations by means of viruses, worms, etc., that result in

physical damage to persons, or damage to objects that goes beyond the computer

program or data attacked could be qualified as "acts of violence", i.e. as an attack in

55
Legal officer, International committee of the Red Cross (ICRC), Somalia Delegation
56
Article 49 (1) of Additional Protocol I, "attacks" means acts of violence against the adversary, whether in
offence or in defence. The term "acts of violence" denotes physical force.
the sense of International Humanitarian Law. It is sometimes claimed that cyber

operations do not fall within the definition of "attack" as long as they do not result in

physical destruction or when its effects are reversible.

3.1 WEAKNESS LAW REGARDING TO THE REGULATION OF APPLICATION OF

TECHNOLOGY IN WARFARE

Many Humanitarian law experts address the weakness of the law, the use of

technology poses a challenge to the law; as the law is inadequate equip to deal with

the issue of technology. He says that the fact that the law contain provision for

regulating and monitoring use of technological advanced weapons does not mean

that its adequate.

The weakness of the law can be highlighted in numerous concepts as, the law is

challenged in the understanding of a direct participation of hostilities57, as the

increasingly use of technology brings about the challenges of persons who are

deemed to take part in hostility, in cyber technology the software expert and

software maintenance are they deemed to take direct participation in hostility.

Technological expert who maintain and provide technical and expert opinion in

relation to operation and certain technology deployment in battlefield what is there

status, they contribute to military attacks but do not cause any threshold of harm. So

generally this is a very conflicting and disturbing notion under International

Humanitarian Law in relation to technology.

57
Derived from Common Article 3 to the Geneva Conventions, the notion of direct or active participation
Jurists argue that technology brings about new concepts that are not covered nor

existed in the law hence making the law not adequate enough and weak in the

coverage of these new term and concepts

They argue more that technology brings about a conflicting understanding of the

term battlefield under International Humanitarian Law in the context of new

technology, this is attributed by the long distance means and methods, capabilities of

launching attacks in approximate areas58.the question related to the geographic

scope of armed conflict, such as: where can a war be fought? Where is the battlefield

in an armed conflict (i.e., does it have a territorial scope tied to a nation state or a

geographic region)? Is an armed conflict related to a “hot battlefield” or does the

conflict follow the participants wherever they may go? Issue of the “hot battlefield”,

and combatant status and location of hostilities59 hence still remain a conflicting

question of the law.

From these conflicting interpretation of the law and lack of precise meaning or

provision of the law hence gives rise to the debate that the law is weak and not

adequate to deal with these new technologies as there is still a lot of unchartered and

uncovered fields of new technologies that the law needs to venture upon, specific

law regarding use and application of technology in battlefield may be the only route

to ensuring effective protection.

58
Eric Posner, “Obama’s Drone Dilemma”, Slate Magazine (8 October 2012), http://www.slate.com/ articles/
news_and_politics/view_from_chicago/2012/10/obama_s_drone_war_is_probably_illegal_will_it_stop_.single.
html.
59
Drone attacks carried out in Pakistan by the USA from bases in Nellis Air Force Base and Nevada Creech
base in Las Vegas far from the place where the actual attack is taking place.
But from the above contention I do not consider the law been that inadequate as

international humanitarian law tends to have anticipated development of new wave

of technology in war hence it equipped itself for future challenges, as the general

maxim embodied in the Martens clause60 may be referred to here, namely that in

cases not included in applicable conventions, civilians and combatants remain under

the protection and the authority of the principles of international law, as they result

from the principles of humanity and the dictates of public conscience. This

underlines the applicability of international law even in such cases where

prohibitions of specific weapons or concepts do not appear in any existing

international conventions.

3.2 CONCLUSION

Technology has legal impact to the means and methods of warfare, the challenges

are to try to ensure that the applicable law remains relevant as technology evolves. If

the law is destined always to follow technological progress,61often at a significant

distance, the legal and ethical challenge lies in finding ways to ensure that the

vulnerable, the victims, retain the protection. Likewise, new technologies do not

change existing law, but rather must abide by it; taking into account that current

norms do not sufficiently regulate some of the challenges posed and might need to

be elaborated

60
Hague Convention. No. IV, Preamble Paragraph 8
61
McCormack TLH (1997) A non liquet on nuclear weapons—the ICJ avoids the application of general
principles of international humanitarian law. International Rev Red Cross. Pp. 90
4.0 CONCLUSION

This study has comprehensively made a critical analysis on the legal challenges of

new technologies: an overview of their impact on the means and methods of

warfare, the main objectives underlying the study was to examine technological use

in warfare specifically their challenges in the means and methods of warfare, to

analyse the legal challenges that are caused by the use of technological advancement

in warfare and factors behind legal challenges brought about by new technology.

This is evidenced by the research findings that technology poses legal challenges to

means and methods of warfare and the law of warfare in generally, There can be no

doubt that the basic principles of International Humanitarian law apply irrespective

of the novelty of the methods and means employed, the existing international

humanitarian law is sufficiently developed and flexible to cope with all the issues

surrounding the use technology in warfare and govern the means and methods

Nevertheless, the applicability of the existing international humanitarian law to new

and increasingly technology systems should not mislead us to believing that there is

no necessity for a thorough and sober legal analysis of the existing law. The legal

issues surrounding the introduction of new technologies are not solved by mere

reference to the principal applicability of international humanitarian law and to the

obligation to perform a review of new methods and means of warfare. New

technologies do not change existing law, but rather must abide by it; taking into

account that current norms relating to means and methods do not sufficiently

regulate some of the challenges posed by new technology and might need to be

elaborated. The increasing deployment of new technology in the battlefield raises the
questions regarding to means and methods of warfare hence a setback to the law as

the law hasn’t evolved enough to cover applicability of technology.

4.1 RECOMMENDATIONS

Awareness to the general public is my main recommendation especially on the

impact of technology visa vis the law of an armed conflict. There has to be an

awareness regarding the principles of the law that governs warfare and what are the

challenges brought to it by technology, by doing this it will raise consciousness to

users of technology to comply with the law of warfare and wording of Article 36

hence limit effect of technology to the means and warfare, also citizens awareness

regarding International Humanitarian Law is crucial as the citizen may influence

government policies regarding use of novel technologies as might also pressure the

banning of technologies that by their usage tends to affect means and methods of

warfare

New laws should be enacted as well as amendment of existing ones should be done

in order to cover new technology advancement. In context of new technology

however specific law may be the only route to ensuring specific protection and

adequate regulation of means and methods of warfare. The existing law is capable

of being applied to novel technologies, however if a novel technology should raise

humanitarian concern that cannot be easily addressed by the existing law, specific

treaty regulation or law is required to address such concern hence raises a need of

amendment of the law and making of new law that will address specific the
challenge brought to International Humanitarian Law by the deployment of novel

technology in the battlefield.


BIBLIOGRAPHY

Legal Instruments

Additional Protocols to the Geneva conventions

Customary International Humanitarian Law

Geneva Conventions of 1864, 1906, 1929, 1949

The Hague Convention of 1907 and 1977

Hague Convention II with respect to the Laws and Customs of War on Land, 29 July

1899

Books

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Online materials

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Round Table on Current Issues of International Humanitarian Law, San Remo, 8–10

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Http://iihl.org/iihl/Documents/JKBSan%20Remo%20Speech.pdf (last visited

30th May 2015)

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may 2015

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