Balancing Interests: Technological development v. International Humanitarian Law
Pedro Barasnevicius Quagliato *
Purpose
There is a danger in weakening International Humanitarian Law (“IHL”) by turning it into a type of law that it was never intended to be, thus ending up weakening the protection due to the victims, because when you try to regulate the weapons parties choose to kill each other, you’re slipping into the political arena, and there goes the (already tenuous) neutrality of the Red Cross.
International Humanitarian Law was designed to protect, to the extent possible, those individuals who are not participating in hostilities, and their properties, from the effects of those hostilities. It was also created to ensure that combatants do not suffer unnecessarily.
Traditionally the role of International Humanitarian Law is not to regulate what type of weapons belligerents use, but to focus on the victims of war. The goal of International Humanitarian Law is to limit the effects of war on people and property and to protect particularly vulnerable persons.
In the military context, the advances of technology in the twentieth century have often had a strong effect on the battlefield. Technological development of weapons has become an organized process based on many researches all over the world heavily supported by governments and private industry.
International Humanitarian Law responds to shifts in the nature of conflict through codification. For example, the 1925 Gas Protocol and the 1929 Geneva Convention opposed, respectively, to the use of poison gas and the treatment of prisoners during the World War I (1914-1918) and World War II (1939-1945). Actually, many of the provisions created by the Fourth Geneva Convention, adopted in 1949, regarding the protection of civilians were added in response to war crimes committed during World War I and II. To analyze how modern high and low-tech methods of warfare might affect International Humanitarian Law, it is important to understand the technological revolution in military affairs.
The Fourth Geneva Convention, known as the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (“Geneva Convention”), made explicit the protections that should be extended to civilians during wartime. The basic principle, set forth in Article 48 of the Protocol Additional to the Geneva Conventions of 12 August 1949 (PI), and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, provides that “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.”
The Article 51.4 of Protocol Additional 1 forbids methods that cannot be directed at a specific military objective, such as, biological weapons that indiscriminately spread disease through the civilians and computer viruses designed to contaminate networks on which essential civilian functions. Besides, no physical or moral coercion shall be exercised to obtain information from civilians.
According these Protocols, parties must also do their best efforts in order to “remove the civilian population (individuals and objects) under their control from the vicinity of military objectives;” “avoid locating military objectives within or near densely populated areas;” and take other “necessary precautions” to protect civilians under their control from the dangers of military operations (PI, Art. 58).
The question is if the countries are capable to develop weapons and military strategies that abide these International Humanitarian Laws. Currently, for instance, pinpoint weapons impervious to the vagrancies of weather can precisely strike military targets hundreds of miles away.
As a result, it is possible to use a single weapon platform such as an aircraft to attack multiple targets with great confidence of success. The advanced communications capabilities are capable to cancel or suspended an attack when it becomes apparent that the target is not a military objective or that disproportionate collateral damage or incidental injury will result.
This new military technology does not only involve the development and production of new military equipment and weapons, but it also covers the development of strategies, tactics and techniques in the art of war. Information technology makes it easier to locate military objectives and combatants and to do so with greater surety that the objects attacked are what the attacker believes them to be.
Technology costs are high and rising unceasingly as the costs of new military technology associated with sophisticated weapons systems are increasing and beyond the financial reach of most countries. However, it can be increasingly affordable for some other developed countries, such as the
Technological innovation has been improving the capabilities and performance of military forces of a country engaged in war. However, technology, being a product of human intellect, is also flawed, similar to the human weaknesses. The possibility of a breakdown of sophisticated systems can occur at the crucial moment of conflict when the efficient functioning of such systems is most desired.
Another great challenge for the future of the International Humanitarian Laws will be not only to convince the low-tech warfare practitioners to abide by the law, but also persuade their high-tech adversaries not to abandon it.
Therefore, in past decades, the international community has made considerable efforts to strengthen international humanitarian law and to develop new mechanisms, new concepts and approaches to increase respect for the law by warring parties. However, achieving compliance for humanitarian law will require a constant attention and dedication.
References:
A.H. Robertson “Humanitarian Law and Human Rights studies and essays on international humanitarian law and Red Cross principles in honor of Jean Pictet”
I.O. Agbede/Yinka Omorogbe “Armed Conflicts In Africa: The Role And Importance Of International Humanitarian Law Today” A.O. Ajala – I.E. Sagay (Eds) Implementation Of International Humanitarian Law In Nigeria, 1997 International Committee Of The Red Cross, 73 – 98.
Y. Omorogbe “Expanding Horizons Of International Humanitarian Law,” Vol. 1 No. 1. African Journal Of Peace And Conflict Studies, June 2003, 45 – 60
Y. Omorogbe “The Military And International Humanitarian Law” In D.R.A. Ndefo (Ed) The Nigerian Military And Parading Shift In Global Politics And Economics. Proceedings Of The Training Conference Of 2 Division, Nigerian Army,
* Pedro Barasnevicius Quagliato is a Brazilian attorney who specializes in corporate, contracts and international law matters. He is a graduate of Universidade Paulista, SP, Brazil (J.D. 2000), received an MBA degree from the Fundação Getúlio Vargas, RJ, Brazil (2001); a specialization degree in Consumers Affairs from Pontifícia Universidade Católica de São Paulo (2004); and the LLM degree in International Commercial Law from the University of California, Davis (2007). Mr. Quagliato has served on committee for the Patient’s Rights of Ordem dos Advogados do Brasil.
Pedro Barasnevicius Quagliato é um advogado atuante nas áreas de Direito Comercial, Direito Internacional e Contratos. É graduado pela Universidade Paulista de Campinas (2000); possui MBA em Direito da Economia e da Empresa pela Fundação Getúlio Vargas (2001) e especialização em Relações de Consumo pela Pontifícia Universidade Católica de São Paulo (2004). Em 2007, concluiu o Mestrado – LL.M. Program – International Commercial Law pela University of California, Davis.