Battlefield Robots as a Technological Response to ‘Lawfare’, and the Limits to Technological Counters to Bad Behavior

by Kenneth Anderson

(I fear wearing out my welcome at Opinio Juris and wearing out its readers’ patience with so many posts on battlefield robots. So I will post this and one more short one, and then move on to some other topics.)

Among the reasons why the US military seeks to develop battlefield robots are (as noted in my first post on robots): force multipliers, force protection, and a technological counter to violations of the laws of war by the other side.

By that last, I mean that the other side fights using systematic violations of the laws of war, particularly co-mingling among civilians and civilian objects and the use of civilian shields. It doesn’t just use these as means of fighting; it depends in part upon the US military, in its effort to protect noncombatants on the battlefield, to seek to compensate for enemy violations of the laws of war, thus increasing its military burdens. In place of traditional ‘behavioral’ responses to ‘behavioral’ violations of the laws of war by an enemy – reprisal – the US seeks technological counters as a response. It should not be underestimated how much of the development of battlefield robots is an attempt by the US to leverage technology as a response to illegal behavior on the other side.

Indeed, one way to define ‘lawfare’ (at least on the battlefield, and leaving aside other uses of the term) is systematic behavioral violations of the rules of war; violations of law planned through advance study of the laws of war for the purpose of predicting how law-abiding military forces will behave; violations undertaken in order to exploit the non-violating military’s compliance by forcing them to seek, to their own military disadvantage, to protect civilians put at risk by these behaviors; and intending such violations as a behavioral counter to superior military forces, including superior yet law-compliant, technology and weapons systems. 



Understood in this way, ‘lawfare’ on the battlefield is not merely particular violations of the laws of war and particular war crimes, such as illegal use of civilian shields or the failure to wear uniforms or distinguishing marks, etc. It is conceptually (if not in every case legally) perfidy. It seeks illegally to induce an enemy to rely for its safety and the safety of civilians upon the laws of war in order treacherously to attack through violations of those self-same laws of war.

The problem for robotics R&D is this. Robotics for the battlefield is in no small part an effort to create a technological counter to ‘lawfare’. But an enemy indifferent to the laws of war on the battlefield can counter advances in war-fighting technology, such as battlefield robots, by finding new ways to violate the rules of war faster than we can develop new technologies to address them. Behavior can usually change faster than technology, and bad behavior can usually outstrip the rate of advance in adaptive ‘good’ technology.

Update. Matthew Gross in the comments notes that:

“I didn’t think anyone in this modern era considered reprisal (in the form of ignoring other laws of war as they apply to said enemy) as a legitimate action. I certainly haven’t heard the administration justifying any US violation of the Geneva Convention by means of reprisal against enemy violations of the laws of war.”

He is quite correct about this, of course, and it makes me realize that I wasn’t as clear as I should have been above. So let me add this response:

Correct, no one considers reprisal as a response today, and certainly not against categories of protected persons under the Geneva Conventions. Nor should we, let me be completely clear. But that is the point – in the contemporary period, because we have given up reprisal as a behavioral response to violations, we seek technological means of countering those violations, technological responses that don’t involve things like reprisals. And the point I make above is that people willing to violate the rules are probably able to find behavioral ways to do that faster than technologies can be found to deal with their behavior.

http://opiniojuris.org/2008/05/22/battlefield-robots-as-a-technological-response-to-lawfare-and-the-limits-to-technological-counters-to-bad-behavior/

6 Responses

  1. I didn’t think anyone in this modern era considered reprisal (in the form of ignoring other laws of war as they apply to said enemy) as a legitimate action.

    I certainly haven’t heard the administration justifying any US violation of the Geneva Convention by means of reprisal against enemy violations of the laws of war.

  2. Correct, no one considers reprisal as a response today, and certainly not against categories of protected persons under the Geneva Conventions. Nor should we, let me be clear. But that is the point – in the contemporary period, because we have given up reprisal as a behavioral response to violations, we seek technological means of countering those violations, technological responses that don’t involve things like reprisals. And the point I make above is that people willing to violate the rules are probably able to find behavioral ways to do that faster than technologies can be found to deal with their behavior.

  3. I am mildly surprised that ‘certain administration officials’ failed to use Reprisal as a justification for violating the Geneva Conventions, among their other creative arguments.

    But of course to do so might admit that the Geneva Conventions were violated. Instead one can just ‘construe’ treaties, laws and even constitutional clauses in such a way as to find that they do not apply. It is socially more acceptable, and more postmodern (I had never explored the idea of Prof. Organ-Failure-or-Death as a student of Derrida, but there may be something to it).

  4. Well, to be more legally precise, the US has not, to my knowledge, ever renounced reprisal as such. It has renounced reprisal with respect to particular categories of persons, in particular, the categories listed as “protected persons” under the Geneva Conventions of 1949, by the act of joining the treaties. But Protocol I goes much further than the 1949 Conventions in prohibitions on reprisals, and the US has not joined that treaty, nor am I aware that it has accepted the blanket prohibition on reprisals of Protocol I as customary law.

  5. It’s rather surprising, really, considering reprisal is probably a stronger legal argument than most of those they’ve offered so far. A well-crafted reprisal argument (Say, waiving the restriction against “no quarter” warfare against Al Qaeda) might be worth considering, but I’ve seen no indication such a thing is in the works.

    I imagine they haven’t considered it because they think it is unwise on a strategic level, although I hardly see great risk as our enemy already disregards pretty much all of the laws of war.

    Most likely they fear the modern precedent.

  6. Prof. Anderson:

    Do you consider the U.S. efforts to get around Pakistan’s restrictions on U.S. combat troops in the tribal areas by using missile-laden unmanned aerial vehicles to conduct attacks there to be another example of countering ‘lawfare’ through technology?

    This may not fit precisely your stated definition of lawfare, but the Al Qaeda types are certainly taking advantage of Pakistan’s restrictions. Perhaps it is ‘policy-fare’ rather than lawfare, but international borders are tricky in combat and have been used advantageously in history by some (see Viet Cong/Cambodia, North Korea/China, Turkish Kurds/Iraq, etc.).

    And of course Pakistan’s government has mastered the art of impassioned ambiguity, and to some degree may be playing both sides of the fence.

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