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Law and War in the Virtual Era

  • Jack M. Beard (a1) (a2)

Extract

Since the first attempts by states to use law to regulate armed conflict, legal constraints have often failed to protect civilians from the adverse effects of war. Advances in military technology have usually not improved this situation and have instead made law even more distant and less relevant to the suffering of civilians in wartime. The massive, indiscriminate incendiary bombing campaigns against major urban areas in World War II spoke volumes about the irrelevance of fundamental legal principles and rules designed to protect civilian populations in wartime. Law and lawyers were in fact far removed, physically and operationally, from the cockpits of the United States bombers flying over Tokyo, whose aircrews were focused on surviving their missions. They struggled with limited information about their assigned targets and conducted their operations with rudimentary preflight instructions that directed them, for example, to avoid destroying the palace of the Japanese emperor but left them free to submerge entire residential areas of the city in a sea of flames.

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1 For example, long-range artillery, aircraft, and missiles each dramatically expanded the battlefield and in so doing threatened ever-increasing numbers of civilians, greatly complicating compliance with practices or rules obliging military forces to distinguish combatants from noncombatants.

2 See Grant, Rebecca The Afghan Air War 17 (Air Force Association Special Report, 2002), available at http://www.afa.org/media/reports/afghanbook/Afghanbk.pdf ; Thomas, Evan & Klaidman, Daniel The Battle Within, Newsweek, Sept. 15, 2003, at 40; Hersh, Seymour King’s Ransom: How Vulnerable Are the Saudi Royals? Newyorker, Oct. 22, 2001, at 35. Ultimately, the decision whether the convoy could be fired upon by the CLA- operated Predator had to be made by the commander in chief of CENTCOM, as advised by CENTCOM Judge Advocate General officers.

3 While the term “virtual” was once used in common parlance only to describe something imaginary—and in the military context has often been associated with computer-simulated war games or simulated “virtual reality” training techniques—it is now increasingly used as well to encompass and describe a wide variety of technologically assisted remote operations of real activities. The new era of virtual offices and classrooms, in which humans work on projects by proxy or at a distance, and virtual equipment, such as fences that function through networks of tower- mounted sensors and surveillance gear, can now appropriately be said to include military operations that rely on a growing assortment of vehicles, platforms, and weapons controlled, managed, and directed by personnel at distant sites. For purposes of this article, “virtual military technologies” comprise nonexpendable and remotely controlled or semiautonomous weapons systems, robots, naval craft, and ground and aerial vehicles. They do not include ballistic or semiballistic missiles, cruise missiles, artillery projectiles, and precision-guided munitions (which are also excluded from the definition of “UAVs” by the U.S. military).

4 Jus in bello refers to that part of the law of war governing the conduct of armed conflicts. In its modern form, the law of war can also be referred to as the “law of armed conflict” and “international humanitarian law.” U.S. law, such as the Uniform Code of Military Justice, contains important references to the law of war, ensuring that this older term will continue to require the attention of scholars who will interpret it consistently with growing commentary linked to the more contemporary term “international humanitarian law.” The Supreme Court, when forced to opine on the subject, has concluded that the term “law of war” includes at a minimum “the four Geneva Conventions signed in 1949,” and must be read consistently with the “rules and precepts of the law of nations” as applied in Ex parte Quirin, 317 U.S. 1, 28 (1942). See Hamdan v. Rumsfeld, 548 U.S. 557, 613 (2006).

5 Waltz, Kenneth N. Theory of International Politics 127 (1979). This competition is heightened by the inherently relative nature of military power and the high-stakes security environment, which makes states believe that there is little room left for error. See Jervis, Robert Security Regimes, in International Regimes 173, 17374 (Krasner, Stephen D. ed., 1983).

6 See MacKenzie, Donald A. & Wajcman, Judy Introduction to pt. 4, Technological Determinism and Weaponry, in Social Shaping of Technology 343 (MacKenzie, Donald A. & Wajcman, Judy eds., 2d ed. 1999).

7 Gray, Chris H. Postmodern War: The New Politics of Conflict 231 (1997) (noting that as many as half of all engineers and scientists in the United States are working for the military or on military problems, or otherwise working in accord with military priorities).

8 See, e.g., Thomas, Evan & Barry, John War’s New Science, Newsweek, Feb. 18, 1991, at 38 (“Americans have always looked to science for their answers, in war as in everything else.”). Some have suggested that the U.S. attachment to new military technology even borders on “technophilia.” E.g., Landa, Manuel De War in the Age of Intelligent Machines 29, 225 (1991).

9 Such unintended consequences may arise in a variety of contexts, including the proliferation of new weapons in the hands of enemy states or nonstate actors, resulting changes in the ways wars are waged, commercial spin-offs of technologies that were once monopolized by the military, and unforeseen applications of new technologies.

10 This phenomenon stands in contrast to the less prominent role that science played in warfare in some earlier societies. See, e.g., Gray, supra note 7, at 231 (noting that wheels were used on toys for hundreds of years before they were used on chariots and that gunpowder was used for fireworks in China long before it was used to revolutionize warfare).

11 A bomb that could improve the likelihood of achieving a one-shot, one-kill ratio not only would be a bargain, but also would increase the capability to destroy hard targets and reduce the number of sorties required for any one mission. It would further mean that weapons could be released from safer distances and altitudes. See Budiansky, Stephen, Air Power: the Men, Machines, and Ideas That Revolutionized War, from Kitty Hawkto Gulf War II 40809 (2004).

12 Rumsfeld, Donald H. 2002 Annual Report to The President and the Congress 3, Available at http://www.dod.gov/execsec/adr2002/index.htm.

13 Ackerman, Robert K. Persistent Surveillance Comes into View, Signal Mag., May 2002, at 18 (quoting a senior official in the Department of Defense on how persistent surveillance highlights the difference between the information needs of the intelligence community (which may be inclined toward “every so often”) and those of the military (which generally is looking for “whatever ‘now’ is defined as”)).

14 While satellites are adequate for certain intelligence purposes, they provide coverage of specific locations for intermittent periods only. U-2 spy planes and other manned high-altitude aircraft provide more extended surveillance coverage but are limited by the risks they pose to pilots and human limits that constrain the number and length of required missions.

15 Israel demonstrated how UAVs could perform critical and dangerous ISR missions by using them in 1982 to identify Syrian antiaircraft batteries and monitor Syrian airfields. Budiansky, supra note 11, at 404-05. Limited U.S. deployments of UAVs over Bosnia in 1995 and in the Kosovo conflict in 1999 further demonstrated these capabilities.

16 Ackerman, supra note 13, at 18. A growing array of UAVs is making this requirement a reality. For example, the Predator has been supplemented by the RQ-4A Global Hawk, which can operate at higher altitudes, remain aloft for up to thirty-six hours, and survey an area of forty thousand square miles using high-resolution Synthetic Aperture Radar and electro-optical/infrared sensors. See Hawk, Global to Fly over Canada in January, Aerospace Daily & Def. Rep., dec. 15, 1999.

17 See Wilson, J. R. UAV Worldwide Roundup 2009, Aerospace America, Apr. 2009, at 30, 30 (“The pro-liferation of UAVs continues to accelerate, with a growing number of companies, countries, and innovative designs entering the market.”). As early as 2005, at least forty-one countries were operating eighty models of UAVs. Office of The Secretary of Defense, Unmanned Aircraft Systems Roadmap, 2005-2030, at 38 (2005).

18 While the United States leads the market in research and development, production, and spending, European and Asian investment in UAVs is rapidly growing. See Dickerson, Larry New Respectfor UAVs, Aviation WK. & Space Tech., Jan. 26, 2009, at 94. The United Kingdom, France, and Germany lead Europe in this field, with over ninety different aircraft or variants, from some thirty manufacturers. UAV programs are also under way in many countries in Asia, including China, India, Japan, South Korea, Malaysia, Singapore, and Taiwan. “Israel remains one of the world’s major UAV suppliers. . . . “ Wilson, J. R. UAV Worldwide Roundup—2005, Aerospace America, Sept. 2005, at 26, 29.

19 Office of the Secretary of Defense, supra note 17, at 1-2.

20 Lopez, Ramon Foiling Bombs and Bad Guys, Def. Tech. Int’l, Dec. 1, 2007, at 30 (noting that from 2004 to 2006, unmanned ground vehicles/robots increased from 160 to 4000 in Iraq and Afghanistan, performing nearly 30,000 explosive ordnance disposal missions and neutralizing more than 11,000 improvised explosive devices in 2006 alone).

21 Section 220(a) of the National Defense Authorization Act, Fiscal Year 2001, Pub. L. No. 106-398, 114 Stat. 1654, 1654A-38 (2000), states that by 2010, one-third of the aircraft in the operational deep strike force should be unmanned, and that by 2015, one-third of the army’s Future Combat Systems’ operational ground combat vehicles should be unmanned.

22 For example, Israel made significant use of UAVs against Hezbollah in the 2006 fighting in southern Lebanon; Georgia used UAVs in the 2008 Russo-Georgian conflict to monitor the activities of separatist forces and provide targeting data for Georgian artillery units; and Iran has a growing inventory of UAVs and has apparently been using some of them over Iraq. See Dickerson, supra note 18; Parker, Ned U.S. Says It Downed Iran Drone over Iraq, L.A. Times, Mar. 17, 2009, at A23.

23 See U. S. Air Force, MQ-1 Predator Unmanned Aircraft System (Sept. 2008), at http://www.af. mil/information/factsheets/factsheet.asp?id= 122 ; Tirpak, John A. UAVs with Bite, A.F. Mag., Jan. 2007, at 46.

24 See, e.g., Miller, Greg U.S. Strikes Stagger Al Qaeda, L.A. Times, Mar. 21, 2009, at A1 (noting that since Aug. 31,2008, the Central Intelligence Agency has carried out an “expansive targeted killing program” that has involved “at least 38 Predator strikes in northwest Pakistan”); Morgan, David U.S. Targeted-Killings ofAl Qaeda Suspects Rising, Reuters, Jan. 18, 2006. One of the first notable UAV air strikes was launched in Yemen in 2002 (by a CIA-operated Predator). See Risen, James & Miller, Judith C.I.A. Is Reported to Kill a Leader of Qaeda in Yemen, N.Y. Times, Nov. 5, 2002, at Al.

25 See, e.g., Tami Davis, Biddle Air Power, in The Laws of War: Constraints on Warfare in The Western World 140, 141 (Howard, Michael Andreopoulos, George J. & Shulman, Mark R. eds., 1994) (suggesting that the emergence of more accurate bombing capabilities might lead to a convergence of “ethics and efficiency” that could “bolster the prospects for adherence to international norms”).

26 This question has continued to grow in importance since PGMs were used against new types of targets in the 1991 Gulf war. See Normand, Roger & Chris af, Jochnick The Legitimation of Violence:A Critical Analysis of the Gulf War, 35 Harv. Int’l L.J. 387, 389 (1994) (“Until the GulfWar, the definition of’military objective’ had never really been tested, largely because belligerents lacked the capacity to bypass enemy forces to strike at nonmilitary targets.”).

27 See generally Brooks, Rosa E. War Everywhere: Rights, National Security Law, and the Law of Armed Conflict in the Age of Terror, 153 U. PA. L. Rev. 675 (2004); W. Jason, Fisher Targeted Killing, Norms, and International Law, 45 Colum. J. Transnat’l l. 711 (2007).

28 “Effectsbased targeting” seeks to identify “specific links, nodes, or objects” that, if attacked, will fulfill certain desired objectives. Montgomery, Tony Legal Perspective from the EUCOM Targeting Cell, in Legal and Ethical Lessons of NATO‘s Kosovo Campaign 189, 190 ( Naval War c. Int’l l. Stud. No. 78, Wall, Andru E. ed., 2003 ) [hereinafter Legal & Ethical Lessons]. Such targeting may include attacks on a state’s strategic infrastructure that are designed to coerce a regime into complying with specific demands.

29 For example, Judge James E. Baker warned of “the impending collision among the law of armed conflict, the doctrine of effects-based targeting, and a shared desire to limit collateral casualties and consequences to the fullest extent possible.” Baker, James E. Judging Kosovo: The Legal Process, the Law of Armed Conflict, and the Commander in Chief, in Legal & Ethical Lessons , supra note 28, at 7, 8. Human rights groups are rightly concerned about the humanitarian consequences of any expansion of the definition of persons and facilities that can be legitimately targeted in armed conflicts. See, e.g., Middle East Watch, Needless Deaths in The Gulf War 17793 (1991) (noting how the precise bombing of Iraq’s electrical grid in the Gulf war shut down most Iraqi water treatment plants, contributing to many civilian deaths from water-borne diseases).

30 See, e.g., Eshel, David Tiny and Unafraid: Small UAVs Fly High in Tactical Operations, Def.Tech. Int’l, May 1, 2008, at 32, 36. Small military units can use these micro-UAVs to obtain information on what is “over the next hill” or “around the next block.”

31 Arquilla, John & Ronfeldt, David The Advent of Netwar 44 (Rand, 1996). For this reason, it has sometimes proven difficult for new weapons systems to be integrated into particular societies and their war-fighting machines. See De Landa, supra note 8, at 27.

32 See Boot, Max War Made New 10 (2006) (“No technical advance by itself made a revolution; it was how people responded to technology that produced seismic shifts in warfare.”).

33 Military organizational structures often impede the effective, timely dissemination of intelligence—making too little information available to those who need it-—by forcing commanders to submit their intelligence requirements through a cumbersome system that validates, consolidates, and assigns priority to these requirements at various levels; to request authorization for the use of the necessary intelligence assets from a centralized system; and to wait for the information to be collected, analyzed, put in usable form, and sent back through the same cumbersome structure. See Hammes, Thomas X. The Sling and the Stone: on War in the 21st Century 19293 (2006).

34 Id. at 193 (“[T]he premier benefit of the Information Age—immediate access to current intelligence—is nullified by the way we route it through our vertical bureaucracy.”).

35 Arquilla & Ronfeldt, supra note 31, at 5, 44 (defining “netwar” as “an emerging mode of conflict and crime at societal levels, involving measures short of war, in which the protagonists use—indeed, depend on using— network forms of organization, doctrine, strategy, and communication”).

36 Hammes, supra note 33, at 193 (noting that linear military bureaucracies discourage subordinate units from accessing intelligence information directly, via the Internet, which can result in “limiting. . . the variety and timeliness of the information available to our decision makers”).

37 Ackerman, supra note 13, at 20; Joris Janssen, Lok Empty Battlefield; Commanders Urge New Tactics to Prevail in Asymmetric Campaigns, Def. Tech. Int’l, May 1, 2007, at 12.

38 American ground troops are increasingly equipped with laptops so they can access networks to download realtime video from UAVs operating overhead; according to the commander of one Predator squadron, they “want more and more of it.” Hanley, Charles J. Unmanned Reapers Bound for Iraq, Afghanistan, A.F. Times, July 17, 2007, at http://www.airforcetimes.com.

39 Odierno, Raymond T. [now commanding general, Multinational Force-Iraq], Brooks, Nichoel E. & Mastracchio, Francesco P. ISR Evolution in the Iraqi Theatre, 50 Joint Forces Q. 51, 52 (2008).

40 Id.; The U.S. Army-Marine Corps Counterinsurgency Field Manual 47 (U.S. Army Field Manual No. 3-24, 2007) [Hereinafter U.S. Coin Field Manual],

41 See Miller, Greg & Barnes, Julian E. Special Drones Pursue Militias, L.A. Times, Sept. 12, 2008, at A1 (discussing the use against extremists in Pakistan of UAVs “equipped with sophisticated new surveillance systems that were instrumental in crippling the insurgency in Iraq”); Odierno, Brooks, & Mastracchio, supra note 39, at 53 (discussing the successful use in Iraq of a “new ISR model” that involves the allocation and apportionment of full motion video assets that offer ground commanders greater flexibility and accessibility to information); Pincus, Walter Gadgets That Collect Information Are Also GatheringSuccess, Wash. Post, Sept. 15, 2008, at A18 (suburban ed.) (“ ‘ISR’ has become the new silver bullet in counterinsurgency.”).

42 See David Kennedy, OF War And Law 33 (2006) (further observing that “[w]arfare has become rule and regulation”).

43 Id. at 13-45.

44 See U.S. Dep’t of Defense, Conduct of The Persian Gulf War: Final Report to Congress 607 n.31 (1992) (noting that lawyers provided advice on legal issues at every level of command in all phases of Operations Desert Shield and Desert Storm); Charles, J. Dunlap Jr., Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts 16 (Nov. 19, 2001) (paper presented at Harvard University, Humanitarian Challenges in Military Intervention Workshop), available at http://www.hks.harvard.edu/cchrp/Web%20Working%20Papers/Use%20of%20Force/Dunlap2001 .pdf.

45 Dunlap, supra note 44, at 16.

46 Chairman, Joint Chiefs of Staff Instruction (CJCSI) 5810.01 A, Implementation of the DoD Law of War Program, para. 6(c)(5) (Aug. 27, 1999).

47 Betts, Richard K. Compromised Command; Inside NATO’s First War, Foreign Aff., July/Aug. 2001, at 126,130.

48 During the 1991 Gulf war, the U.S. Army alone deployed more than two hundred lawyers in the theater of operation, a significantly higher per capita deployment than in either the Vietnam War or World War II. See Keeva, Steven Lawyers in the War Room, A.B.A. J., Dec. 1991, at 52, 54.

49 Cooper, Scott A. The Politics of Airstrikes: Why Generals Distrust Politicians, and Vice Versa, Pol’y Rev., June/July 2001, at 55, 58.

50 Hersh, supra note 2, at 40 (reporting that “[d]ays afterward, top Administration officials were still seething about the incident” and that the failure left Defense Secretary Donald H. Rumsfeld “kicking a lot of glass and breaking doors”). Although Secretary Rumsfeld would later deny that lawyers were responsible for the aborted attack, he soon coincidentally tried without success to impose a significant reduction in the number of lawyers in uniform. See Byers, Michael War Law 121 (2005); Rennie, David Bush Orders Shoot to Kill on Terrorists; CIA Is Given Secret List of 24 Enemy Targets, Daily Telegraph (London), Dec. 16, 2002, at 1. This action was consistent, however, with one of Secretary Rumsfelds previously expounded rules of life and good government: “Reduce the number of lawyers. They are like beavers—they get in the middle of the stream and dam it up.” Rumsfeld, Donald Manager’s Journal: Rumsfeld’s Rules, Wall St. J., Jan. 29, 2001, at A26.

51 For pilots and aircrews, virtually provided surveillance may add immeasurably to the underappreciated burdens of accountability that were introduced by PGM bomb-camera videos. See Cooper, supra note 49, at 58-59 (quoting the commander of U.S. Air Forces in Europe during the Kosovo conflict: “Here we put this young man in this situation where he knows that this bomb is enroute to the target, and the videotape that is recording in the cockpit is running, that an hour after he leaves that tape is going to be graded by the Commander of the United States Air Forces in Europe, the Supreme Allied Commander Europe, and probably the President of the United States.”).

52 During the Kosovo conflict U.S. officials ultimately became so focused on the need for effective public relations and accountability measures that, for the first time in any armed conflict, an active archive of MPEG image files was established and made available on the Internet; it contained bomb-camera videos of NATO air strikes, organized chronologically by specific target designations. The video record remains online. See NATO’s Role in Kosovo: Video, at http://www.nato.int/kosovo/video.htm.

53 Stolberg, Sheryl Gay & Shanker, Thom Bush Castigates Iran, Calling Naval Confrontation ‘Provocative Act,’ N.Y. Times, Jan. 9, 2008, at A10; Sanger, David Video Links North Koreans to Syria Reactor, U.S. Says, N.Y. Times, Apr. 24, 2008, at A14; Perlez, Jane Pakistani Fury over Airstrikes Imperils Training, N.Y. Times, June 18, 2008, at A5.

54 The U.S. Air Force released ten UAV video clips in response to requests from various television networks and CNN displayed portions of the clips. See New Videos Show Predators at Work in Iraq, CNN.com (Feb. 9, 2005), at http://www.cnn.com/2005/WORLD/meast/02/08/predator.video/index.html.

55 See U.S. Dep’t of Defense, Dictionary of Military and Associated Terms (Joint Staff Pub. 1-02, as amended through Mar. 17, 2009) (defining rules of engagement as “[directives issued by competent military authority that delineate the circumstances and limitations under which United States forces will initiate and/or continue combat engagement with other forces encountered”).

56 Waxman, Matthew C. International Law and the Politics of Urban Air Operations 3132 (Rand, 2000).

57 Dunlap, supra note 44, at 16.

58 See Kennedy, supra note 42, at 105 (“In some instances, the modern military’s own internal rules of engagement are stricter than what traditional law in war requires. In the last years, moreover, we have seen military professionals among those most disturbed by the Bush administration’s efforts to shrink or skirt humanitarian standards in their war on terror.”).

59 See, e.g., Clark, Wesley K. Waging Modern War 444 (2001) (noting that restrictive rules of engagement in the 1999 Kosovo conflict meant that “[t]he weight of public opinion was doing to us what the Serb air defense system had failed to do: limit our strikes”); Gordon, Michael R. & Trainor, Bernard E. The Generals’ War 326 (1994) (noting that in the aftermath of the controversial bombing of the A1 Firdos bunker in the 1991 Gulf war, the air force concluded that “the political fallout from the Al Firdos raid had accomplished what the Iraqi air defenses could not: downtown Baghdad was to be attacked sparingly, if at all”).

60 Waxman, supra note 56, at 31.

61 Benjamin, Mark When Is an Accidental Civilian Death Not an Accident? S ALON.com, July 30, 2007 (quoting a NATO spokesman on the adoption of a highly restrictive “zero tolerance” policy on civilian casualties in preplanned strikes in Afghanistan). Unfortunately, because of the subsequent resurgence of the Taliban in 2008, NATO greatly increased the use of air strikes in Afghanistan, reversing a trend in which civilian casualties had been declining and predictably endangering support for the NATO presence there. See Gall, Carlotta Afghan President Assails U.S.-LedAirstrike That He Says Killed95, N.Y. Times, Aug. 24, 2008, at A6. These developments have contributed to a dramatic increase in the NATO forces’ demand for UAVs and critical UAV surveillance capabilities. See Ignatius, David What a Surge Can’t Solve in Afghanistan, Wash. Post, Sept. 28, 2008, at B7 (noting that Secretary of Defense Robert Gates has pushed for a major increase in ISR assets in Afghanistan); Mulrine, Anna Drones Fill the Troops Gap in Afghanistan, U.S. News & World Rep., Sept. 25, 2008, at 30.

62 U.S. Coin Field Mannual, supra Note 40, At 252.

63 Bilder, Richard B. & Vagts, Detlev F. Speaking Law to Power: Lawyers and Torture, 98 AJIL 689, 695 (2004) (“Unless U.S. foreign policy and actions in the ‘war on terror’ are seen by its own citizens and other nations as legitimate and in compliance with broadly accepted legal and moral standards, they may fail to gain domestic and international support.”).

64 Id.

65 U.S. Coin Field Manual, supra note 40, at 251-52. U.S. counterinsurgency doctrine now emphasizes that international legal standards, including those found in common Article 3 of the Geneva Conventions, are applicable to the treatment of all detainees. Id. at 352. The manual further observes that by condoning torture in the Algerian conflict, France “degraded the ethical climate throughout the French Army,” made the French “extremely vulnerable to enemy propaganda,” and contributed to the ultimate French defeat. Id. at 252.

66 Richard, A. Oppel Jr. & Worth, Robert F. G.I. s Open Attack to Take Fallujafrom Iraq Rebels, N.Y. Times, Nov. 8, 2004, at Al (“This time around, the American military intends to fight its own information war, countering or squelching what has been one of the insurgents’ most potent weapons.”). In their attempt to reclaim the city of Fallujah, U.S. forces put priority on securing the main hospital because it had become “the source of rumors about heavy casualties.” Id.

67 U.S. Coin Field Manual, supra note 40, at 249 (“Fires that cause unnecessary harm or death to noncombatants may create more resistance and increase the insurgency’s appeal—especially if the populace perceives a lack of discrimination in their use.”); see also Ellick, Adam B. Tensions Rise As Afghans Say U.S. Raid Kills Civilians, N.Y. Times, Dec. 19, 2008, at A26.

68 U.S. Coin Field Manual, supra note 40, at 364.

69 See, e.g., Odierno, Brooks, & Mastracchio, supra note 39, at 51 (discussing these new capabilities of conventional units in Iraq made possible by the sudden increase in ISR assets and the delegation down to brigade combat teams of the analysis and exploitation of those assets).

70 U.S. Coin Field Manual, supra note 40, at 364-65 (listing numerous conditions and noting that “[e]ven when justified under the law of war, bombings that result in civilian casualties can bring media coverage that works to the insurgents’ benefit”).

71 See W. Hays, Parks Teaching the law of War, Army Law, June 1987, at 4, 5 (noting the positive role that the law of war can play in maintaining discipline and efficiently employing U.S. forces, and how violations may increase enemy resistance and have other negative effects on the accomplishment of missions). Defense Department policy thus provides that “[m] embers of the DoD Components comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other military operations.” U.S. Dep’t of Defense, DoD Law of War Program, DoD Directive 2311.01E, §4.1 (May 9, 2006).

72 U.S. Coin Field Manual, supra note 40, at 52.

73 While COIN doctrine encourages U.S. forces to make clear that they “do not intend to undermine or change the local religion or traditions,” they nonetheless must find a legitimate basis for reducing “the effects of dysfunctional social practices that affect the ability to conduct effective security operations.” Id. at 219.

74 Dunlap, supra note 44, at 4. Dunlap argues that as U.S. military operations have come to depend on the legitimacy that may be provided by law, adversaries increasingly see this development “as a vulnerability to be exploited.” Id. at 9-10; see also Clark, supra note 59, at 443, 8 (noting that Serbian agents in the Kosovo conflict skillfully publicized apparent NATO law-of-war violations and that “new technologies impacted powerfully at the political levels. The instantaneous flow of news and especially imagery could overwhelm the ability of governments to explain, investigate, coordinate, and confirm.”).

75 See, e.g., Clausewitz, Carl Von On War 13 (Howard, Michael & Paret, Peter eds. & trans., Oxford 1976) (1832) (“Attached to force are certain self-imposed, imperceptible limitations hardly worth mentioning, known as international law and custom, but they scarcely weaken it.”). International law has since become so interwoven into the fabric of international politics that it would probably impress many of its detractors of earlier eras: it is now, at a minimum, the type of political constraint that even Clausewitz would have respected. Id. at 252 (noting that “war is only a branch of political activity” and that “it is in no sense autonomous”).

76 See Normand & Jochnick, supra note 26, at 393-99; see also Kennedy, supra note 42, at 8 (describing how the “humanist vocabulary of international law” has been “mobilized by the military as a strategic asset”).

77 One of the important lessons of the 1991 Gulf war was that the perceived compliance of U.S. military operations with the law of war was a key factor in persuading states to join and remain in the U.S.-led coalition. See byers, supra note 50, at 119-20; Ignatieff, Michael Virtual War 205 (Picador 2001) (2000) (observing that” [t]he legitimacy of [U.S.] military operations overseas depends on persuading other states to join as coalition partners” and that “coalition warfare is increasingly seen as the future of war”).

78 See, e.g., Clark, supra note 59, at 434 (describing the need of NATO forces in the 1999 Kosovo conflict to minimize, if not eliminate, civilian casualties as “the most pressing drumbeat of the campaign” and observing that “each incident of accidental harm to civilians sent shock waves up and down through NATO”).

79 Normand & Jochnick, supra note 26, at 393 (“Most politicians and commentators welcomed what they saw as a new paradigm in war and in law, conjuring visions of a global army using the latest military technology in the service of international law and justice.”) (footnote omitted).

80 Id. at 394; see also U.S. Dep’t of Defense, Conduct of the Persian Gulf Conflict: an Interim Report to Congress 12-2, 12-3 (1991) (stating that coalition forces had “scrupulously adhered to . . . fundamental law of war proscriptions” in conducting “the most discriminate military campaign in history”).

81 Waxman, supra note 56, at 57-59.

82 Id. at 59; Editorial, How Precise Is Our Bombing? N.Y. Times, Mar. 31, 2003, at A12 (noting that “the incessant boasting about the surgical accuracy of the attacks. . . raises expectations that every bomb will hit its target— and outrage around the world when one doesn’t”).

83 Kennedy, supra note 42, at 8 (“ [H]ow should the U.S. military itself react to the escalating public demand that it wage war without collateral damage—or to the tendency to hold the military to an ever higher standard as its technological capabilities increase?”).

84 Dunlap, supra note 44, at 12-13.

85 Hague Convention (IV) Respecting the Laws and Customs of War on Land, Art. 22, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631 [hereinafter Hague IV].

86 Humanity was recognized as a fundamental principle of the law of war at the earliest stages of its development. See St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, Nov. 29/Dec. 11,1868,1 AJIL Supp. 95,95 (1907) (declaring that the employment of arms that uselessly aggravate the sufferings of disabled men would be “contrary to the laws of humanity”) [hereinafter St. Petersburg Declaration]. The application of the principle of humanity was extended and reaffirmed in the Hague Conventions of 1899 and 1907, to which the United States is a party (the 1907 Hague Regulations, annexed to Hague IV, supra note 85, remain among the most authoritative sources of law for the United States in its conduct of military operations).

87 Regulations governing the U.S. Armed Forces recognize that the conduct of hostilities must be carried on within the limits of international law, including restraints imposed by the principles of humanity and military necessity, as well as distinction and proportionality. See, e.g., U.S. Dep’t of the Navy, the Commander’s Handbook on the Law of Naval Operations, ch. 5 (NWP 1-14M, MCWP 5-12.1, comdtpub 5800.7A, 2007) [hereinafter Navy Commander’s Handbook], available at http://www.usnwc.edu/cnws/ild/documents/1-14M_(July_2007)_(NWP).pdf ; U.S. Dep‘t of the Air Force, Targeting, app. A, at 88-90 (A.F. Doctrine Doc. 2-1.9, June 8, 2006); U.S. Dep’t of The Army, the Law of Land Warfare, paras. 3(a), 41 (Field Manual 27-10, 1956).

88 The principle of distinction is fundamental to the law of war and is accepted by the United States as a binding obligation under customary international law. See William, H. Taft IV, The Law of Armed Conflict After 9/11: Some Salient Features, 28 Yale J. Int’l L. 319, 323 (2003) (describing distinction as a “bedrock” principle of the law of armed conflict).

89 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, 1125 UNTS, reprintedin 16ILM 1391 (1977) [hereinafter Protocol I].

90 Matheson, Michael J. [then deputy legal adviser of the U.S. Department of State], Remarks, in Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977Protocols Additional to the Geneva Conventions,! AM. U.J. Int‘l L. & Pol’y 419, 423,426 (1987). Various key provisions of Protocol I are repeated verbatim or in substantially similar terms in regulations and manuals that govern the operations of each of the five services comprised by the U.S. Armed Forces.

91 Protocol I, supra note 89, Art. 48. This principle goes beyond prohibiting attacks against purely civilian targets; it also prohibits attacks that “are of a nature to strike military objectives and civilians or civilian objects without distinction.” Id., Art. 51(4).

92 Articles 51 (5)(b) and 57 of Protocol I, supra note 89, summarize the principle of proportionality, although the term itself does not appear; instead, the word “excessive” is used in relation to civilian casualties.

93 Id., ch. IV.

94 See, e.g., St. Petersburg Declaration, supra note 86 (providing that “the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy”).

95 Franck, Thomas M. On Proportionality of Countermeasures in International Law, 102 AJIL 715, 724 (2008).

96 Protocol I, supra note 89, Art. 51(5)(b).

97 See Byers, supra note 50, at 153 (arguing that “[p]owerful countries have always shaped the international system to their advantage,” including key international legal rules and concepts relating to the use of force).

98 Franck, supra note 95, at 71

99 Id. at 717.

100 See, e.g., Rome Statute of the International Criminal Court, Art. 8(2)(b)(iv), July 17, 1998, 2187 UNTS 3. The necessary mens rea element for such an offense is “knowledge,” which “means awareness that a circumstance exists or a consequence will occur in the ordinary course of events.” Id., Art. 30(3). The required mens rea need not be an intent to harm civilians but, instead, can be satisfied by a “reckless disregard” of such consequences. Dinstein, Yoram The Conduct of Hostilities Under the Law of International Armed Conflict 117 (2004).

101 Icty, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic ofYugoslavia (June 8, 2000), reprinted in 39 ILM 1257 (2000) [hereinafter ICTY Report],

102 Id., para. 49.

103 Id.

104 Middle East Watch further noted that since over 90 percent of the bombs dropped in the Gulf war were “dumb” or unguided bombs, high-altitude bombing clearly increased the risks of civilian casualties, citing as proof the statement to that effect by former undersecretary of defense for research and engineering William J. Perry. Middle East Watch, supra note 29, at 116.

105 See U.S. Dep’t of Defense, Report to Congress on the Conduct of the Persian Gulf War—Appendix on the Role of the Law of War (Apr. 10, 1992), reprinted in 31 ILM 612, 622 (1992) (emphasis added).

106 See, e.g., Amnesty Int’l, Kosovo: Amnesty International Concerns Relating to NA TO Bombings, AI Index EUR 70/069/1999, May 18, 1999.

107 ICTY Report, supra note 101, para. 56.

108 Id.

109 Gordon, Michael R. Crisis in the Balkans: A NA TO Account; NA TO Admits Pilot Bombed 2d Convoy on Kosovo Road, N.Y. Times, Apr. 20, 1999, at A12 (responding to Serbian claims that seventy-four civilians were killed in this incident, NATO officials said their pilots, flying at high altitude, had been convinced they were striking only military vehicles).

110 Icty Report, supra note 101, para. 67 (emphasis added).

111 Id., para. 69.

112 Id., para. 70.

113 Protocol I, supra note 89, Art. 57(2)(a)(ii). Human rights groups argued that “inadequate precautions were taken to avoid civilian casualties” by NATO in the Djakovica incident because “higher altitude seems to have impeded a pilot from adequately identifying a target.” See, e.g., Civilian Deaths in the NATO Air Campaign, 12 Hum. Rts. Watch, NO. 1(D), Feb. 2000, available at http://www.hrw.org/reports/2000/nato/index.htm.

114 See, e.g., U.S. Army, Office of the Surgeon General, Mental Health Advisory Team IV, Final Report 4 (Nov. 17, 2006), available at http://www.armymedicine.army.mil/reports/mhat/mhat_iv/MHAT_IV_Report_ 17NOV06.pdf (finding, inter alia, that soldiers in Iraq who were angry, stressed, or anxious were more likely to report that they had mistreated noncombatants).

115 In addition to eliminating the fear or hysteria that may lead to the taking of excessive measures in self-defense, virtual technologies offer humans in remote locations the opportunity to overcome other factors that might contribute to war crimes and the deaths of noncombatants: command-and-control structures are able to remain more intact; orders may be conveyed more clearly; and human senses augmented by technology may better define the enemy and battle conditions, helping to counter the phenomenon of “scenario fulfillment,” i.e., a “distortion or neglect of contradictory information in stressful situations.” Arkin, Ronald C. Governing Lethal Behavior: Embedding Ethics in A Hybrid Deliberative/Reactive Robot Architecture 6 (Tech. Rep. GIT- GVU-07-11), at http://www.cc.gatech.edu/ai/robot-lab/online-publications/formalizationv35.pdf.

116 ICTY Report, supra note 101, para. 69.

117 See Almond, Peter Joystick Squadron: It’s the RAF’s Newest Combat Group: Pilotless Planes Flown from 8,000 Miles Away, Mail on Sunday (London), July 6, 2008, at 55 (also noting the observations of British UAV pilots that the “cockpit” of a UAV has “far fewer obvious controls than a manned combat jet and almost none of the expensive electronic defences that protect a manned pilot from missile attack”).

118 Frank Main, Guard Pilots Blame Drug in Fatal Bombing , Chi. Sun-Times, Jan. 3, 2003, at 7 (further noting that” [t]he Air Force says the use of’go pill’ is voluntary,” but quoting one of the pilots’ lawyers as saying that “refusal to take uppers or downers is a career-ending decision”); see also Rolfsen, Bruce Sliding Home; A B-1B Arrives with Landing Gear Up, A.F. Times, Oct. 2, 2006.

119 Almond, supra note 117, at 55 (further reporting that “the pilots are free to leave the room mid-flight, get a coffee, do exercise, read a book or maybe phone their wives at their base near Las Vegas. One American pilot is even said to have left his base during a break from his shift to pick up his child from school.”). Other observers note, however, that the prolonged “sensory isolation” associated with flying UAVs can sometimes be a source of great fatigue for pilots. E.g., Retica, Aaron Drone-Pilot Burnout, N.Y. Times, Dec. 14, 2008, at MM55.

120 xyoNATO’s Role in Kosovo, NATO Press Conference (Apr. 13, 1999), available at http://www.nato.int/kosovo/press/p9904l 3a.htm (including the display and explanation by Clark, General of two bomb-camera videos of the air strike).

121 Id.

122 This video, in MPEG format, remains posted on the NATO Web site, NATO’s Role in Kosovo, Videos, Railway Bridge I & II (Apr. 13, 1999), at http://www.nato.int/kosovo/video.htm.

123 ICTY Report, supra note 101, para. 62.

124 Id., para. 70.

125 A. P. V. Rogers, What Is a Legitimate Military Target.? in International Conflict and Security Law: Essays in Memory of Hllaire Mccoubrey 160, 167 (Richard Burchill, Nigel D. White, & Justin Morris eds., 2005).

126 ICTY Report, supra note 101, para. 61.

127 Id.., para. 59 (quoting General Clark).

128 See, e.g., Middle East Watch, supra note 29, at 116 (noting that in the aftermath of the Gulf war, Dr. Perry, the former undersecretary of defense for research and engineering, argued that the accuracy of precision- guided munitions “is independent of the altitude of delivery”).

129 See Prosecutor v. Kupreškić, No. IT-95-16-T, para. 524 (Jan. 14, 2000).

130 See, e.g., Navy Commander’s Handbook, supra note 87, para. 8.3.1 (“Naval commanders must take all reasonable precautions, taking into account military and humanitarian considerations, to keep civilian casualties and damage to the minimum consistent with mission accomplishment and the security of the force.”); Dep’t of The Air Force, USAF Intelligence Targeting Guide, paras. A4.3, A4.3.1 (A.F. Pamphlet 14-210, Feb. 1, 1998); U.S. Dep’t of The Army, supra note 87, para. 41; see also U.S. Dep’t of The Air Force, International Law—The Conduct of Armed Conflict and Air Operations, at 5-9 to 5-10 (AFP 110-31, 1976, designated obsolete Dec. 20, 1995) (restating the provisions of Protocol I, Article 57 almost verbatim).

131 Protocol I, supra note 89, Art. 57(2)(a)(i), (2)(a)(ii), (2)(a)(iii), & (2)(b).

132 See International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, para. 2197 (Sandoz, Yves Swinarski, Christophe & Zimmermann, Bruno eds., 1987) [hereinafter ICRC Commentary] (noting that some states were even concerned that these words “could lay a heavy burden of responsibility on subordinate officers who are not always capable of taking such decisions”).

133 Id, para. 2187 (referring to Art. 57(2)(a)(iii)).

134 For example, NATO understands a “feasible” precaution to mean “that which is practicable or practically possible, taking into account all circumstances at the time, including those relevant to the success of military operations.” Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations 405, para. 8.1.2.1 n. 18 (Naval War C. Int’l L. Stud. No. 73, Thomas, A. R. & Duncan, James C. eds., 1999).

135 Schmitt, Michael N. Precision Attack and International Humanitarian Law, 87 Int’l Rev. Red Cross 445, 461 (2005). For a summary of such arguments, see id.

136 See Sydney, J. Freedberg Jr., The Bills Come Due, Nat’l J., Mar. 15, 2008, at 18 (“Today almost all bombs carried by U.S. aircraft are precision-guided.”).

137 See, e.g., Prosecutor v. Galić, No. IT-98-29-T, para. 58 (Dec. 5, 2003) (noting that in making such a determination, “it is necessary to examine whether a reasonably well-informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack”) (emphasis added) (footnote omitted).

138 See, e.g., Navy Commander’s Handbook, supra note 87, para. 8.1.2 (noting that “the commander must determine whether the anticipated incidental injuries and collateral damage would be excessive, on the basis of an honest and reasonable estimate of the facts available to him,” and whether alternative possible methods of attack should be chosen to reduce civilian casualties and damage “in light of all the facts known or reasonably available to him”) (emphasis added).

139 Schmitt, supra note 135, at 461 (noting such “decisional factors” as time constraints on the ability to gather and process additional information, calculation of the extent to which such information would resolve uncertainties, competing demands on ISR resources, and risks to the systems and operators). These decisional factors are being reshaped by new virtual “persistent surveillance” capabilities, network-centric access to related ISR data throughout the command structure, the improving quality and types of information collected by virtual platforms (especially real-time data), and the complete lack of risk involved in the collection of information through these virtual systems.

140 Graham, Bradley Military Turns to Software to Cut Civilian Casualties, Wash. Post, Feb. 21, 2003, at A18. (The military admits that this computer program originally bore the unfortunate name “Bugsplat” but was later renamed “FAST-CD” or “Fast Assessment Strike Tool—Collateral Damage.”)

141 See generally Dunlap, supra note 44.

142 Benjamin, supra note 61 (quoting the deputy director of the U.S. Combined Air Operations Center in Qatar—the command hub responsible for air operations in both Iraq and Afghanistan—as saying that when immediate air support is requested and only limited information is available on the location of vulnerable civilians, “that is where you see most of the civilians being killed”).

143 ICTY Report, supra note 101, para. 29. While the committee noted that “[b]oth the commander and the aircrew actually engaged in operations must have some range of discretion to determine which available resources shall be used and how they shall be used,” the report predates large-scale deployment of UAVs and availability of related information resources. Id.

144 Franck, supra note 95, at 736 (noting how the ICTY Report “sustains the conclusion that... it is perfectly possible to apply the principle of proportionality to combat decisions and render a plausible second opinion”).

145 Id. at 717 (arguing that some powerful, yet indeterminate, legal principles, such as proportionality, achieve success in helping to resolve disputes by “deliberately creating a space for ‘second opinions’ to which claims of disputants can be referred”).

146 See Lewis, Michael W. The Law of Aerial Bombardment in the 1991 Gulf War, 97 AJIL 481, 504 (2003).

147 Benjamin, supra note 61 (noting that events like the A1 Firdos bunker incident “gave birth to a modern military bureaucracy that could analyze and approve airstrikes based, in part, on anticipated civilian casualties”). Some military officers did not view the birth of this new bureaucracy favorably. See Reynolds, Jefferson D. Collateral Damage on the 21st Century Battlefield: Enemy Exploitation of the Law of Armed Conflict, and the Struggle for a Moral High Ground, 56 A.F. L. Rev. 1, 34 (2005) (“[T]he al-Firdos bunker incident was a turning point, creating a preoccupation to minimize civilian casualties and any other collateral damage.”).

148 Middle East Watch, supra note 29, at 128-47.

149 R. Jeffrey, Smith Building Was Targeted Months Ago as Shelter for Leaders, Wash. Post, Feb. 14, 1991, at A25.

150 See Lewis, supra note 146, at 504 (arguing that the contention that the United States had, or should have had, prior knowledge that civilians were in the A1 Firdos bunker seems “flawed” because of inadequate intelligence resources: he notes that less than 3 percent of the total sorties flown during Operation Desert Storm were reconnaissance sorties and that “much-celebrated reconnaissance platforms such as the Predator and Global Hawk drones lay ten years in the future”).

151 A Centcom staff officer responsible for planning the attack was quoted as saying that “had we known that there were civilians in the bunker, it never would have been attacked.” Id. at 503. Such sentiments, however, were viewed with skepticism by those who saw the U.S. campaign as being built upon a willingness to accept high civilian casualties. See Normand & Jochnick, supra note 26, at 402.

152 Smith, supra note 149 (quoting a U.S. official as saying that “[w]e get a lot more intelligence data than we have time to look at,” and observing that “there are literally thousands of targets worth looking at. It’s hardly surprising that we didn’t look at this the day before the raid.”).

153 Gordon, supra note 109.

154 Benjamin, supra note 61 (quoting Sarah Holewinski, executive director of the Campaign for Innocent Victims in Conflict, who observes of the decision to bomb targets with a certain number of likely civilian casualties: “They call them accidental deaths, but they are n o t . . . . They know what they are doing.”).

155 Graham, Bradley U.S. Moved Early for Air Supremacy; Airstrikes on Iraqi Defenses Began Long Before Invasion, General Says, Wash. Post, July 20, 2003, at A26 (noting that the former commander, U.S. Central Command Air Forces, confirmed that in the early stages of Operation Iraqi Freedom, approval to bomb targets if the deaths of thirty or more civilians might result had to be reserved for Secretary Rumsfeld, and that “[a] bout 40 or 50 targets fell in this category”). While the current limit on potential civilian casualties remains classified, a journalist who has interviewed intelligence analysts familiar with the policy notes that” [t]he days of the ‘magic number’ of 30 are over.” Benjamin, supra note 61.

156 PGMs are, of course, guided rather than smart, and a significant percentage of them fails to hit their targets. See Keeter, Hunter Pentagon Estimates 70 Percent PGM Use in Possible War with Iraq, Defense Daily, Mar. 6, 2003 (quoting a U.S. Central Command official that a failure rate “between 8 percent and 10 percent” can be expected for PGMs). This failure rate is based on how many PGMs fall “outside the usually-expected 21-foot circular error probable (CEP) associated with precision strikes.” Id. The Department of Defense defines “CEP” as “the radius of a circle within which half of a missile’s projectiles are expected to fall.” Dictionary of Military and Associated Terms, supra note 55. Along list of things can go wrong in modern aerial bombing missions, including mechanical or electronic malfunctions in navigation, flight control, guidance, or bomb release systems; changes in wind direction; severe atmospheric conditions that degrade visibility and the effectiveness of lasers; fluctuations in global positioning signals; failure of electronic packages on smart bombs, turning them into dumb bombs; and the falling of bombs from their racks in planes. See Evans, Michael Smart Bombs Can Be Stupid, Times (London), Oct. 25, 2001 ; Editorial, How Precise Is Our Bombing? N.Y. Times, Mar. 31, 2003, at A12.

157 See Murphy, Sean D. Contemporary Practice of the United States, 94 AJIL 127-31 (2000).

158 Pickering, Thomas [under secretary of state], Oral Presentation to the Chinese Government Regarding the Accidental Bombing of the P.R.C. Embassy in Belgrade (June 17, 1999), at http://www.state.gov/documents/organization/6524.doc (noting that these “errors and omissions” included a “severely flawed” technique that was used to locate the target, databases that did not contain the correct location of the Chinese Embassy, and a target review process that failed to catch either of these two fundamental errors).

159 Inadvertent Bombing of the Chinese Embassy in Belgrade, Yugoslavia, May 7, 1999: Hearing Before the House Permanent Select Comm. on Intelligence, 106th Cong. (July 22, 1999) (statement of Hamre, John J. deputy secretary of defense), available at http://www.dod.mil/dodgc/olc/docs/test99-7-22hamre.rtf [hereinafter Hamre Statement].

160 Pickering, supra note 158.

161 Hamre Statement, supra note 159 (acknowledging that “I and my colleagues at DoD are absolutely responsible for the systems and procedures” and promising that “[i]f those systems and procedures permit failure or exacerbate honest error, we are absolutely responsible for fixing them”). While the ICTY Committee concluded that this incident resulted from “inadequacy of the supporting data bases” and flawed review procedures, it also took note of the U.S. apology, U.S. payments to China, reprimands of several U.S. officials, and the statements of Secretary Hamre and others, stressing that “[t]he US Government also claims to have taken corrective actions in order to assign individual responsibility and to prevent mistakes such as this from occurring in the future. “ ICTY Report, supra note 101, paras. 83, 84 (emphasis added).

162 As noted by Secretary Hamre:

Fifty years ago we knew we couldn’t discriminate between embassies and legitimate targets in a bombing campaign so we warned everyone accordingly and pressed ahead. We can’t do that today and don’t need to do that today. But that means we have to have data bases that are sufficiently accurate to catch mistakes that will be made.

Hamre Statement, supra note 159 (emphasis added).

163 ICRC Commentary, supra note 132, para. 2195.

164 Hamre Statement, supra note 159 (emphasis added).

165 Lopez, supra note 20, at 30 (noting that in addition to using robots to find and disable roadside bombs, the U.S. military has experimented with remote-control “weaponized robots” to perform dangerous duties in Iraq, including securing checkpoints and conducting “armed reconnaissance”).

166 The reciprocity condition speaks to the mutual ability of belligerents to enforce law-of-war obligations by responding on a tit-for-tat basis to violations. The symmetry condition speaks to whether the two sides are so differently positioned that the burden of compliance falls unevenly on one of them. Some scholars argue that these conditions, rather than humanitarian considerations, serve as the primary basis for compliance with law-of-war obligations, making them particularly ill suited for fighting terrorists. See, e.g., Posner, Eric A. War, International Law, and Sovereignty: Reevaluating the Rules of the Game in a New Century: Terrorism and the Laws of War, 5 Chi. J. Int’l l. 423 (2005).

167 See Byers, supra note 50, at 120 (“High-tech weaponry has reduced the dangers to US personnel, making it easier to sell war to domestic constituencies. . . . This change in thinking has led to a more cavalier approach to the jus ad bellum, as exemplified by the Bush Doctrine of pre-emptive self defence . . . .”); Ignatieff, supra note 77, at 179-80 (“If war becomes virtual—and without risk—democratic electorates may be more willing to fight especially if the cause is justified in the language of human rights and even democracy itself.”). Some have also suggested that new intelligence systems and other sophisticated military technologies may give the leaders of powerful states erroneous feelings of control and understanding, leading to misjudgments that may increase their willingness to become involved in international armed conflicts. See Hammes, supra note 33, at 194.

168 Kavanagh, Jennifer Determinants of Productivity for Military Personnel: A Review of Findings on the Contribution of Experience, Training, and Aptitude to Military Performance (Rand, 2005).

169 Kramnik, Ilya Unmanned Aerial Vehicles Become More Sophisticated, Space Daily, Apr. 30, 2008, at http://www.spacedaily.com/reports/Unmanned_Aerial_Vehicles_Become_More_Sophisticated_999.html (noting that because UAVs require “only a rudimentary infrastructure” and are “smaller, cheaper and easier to maintain,” the demand for them is becoming more widespread and states in the Third World increasingly consider them to be “the only alternative to conventional aircraft requiring expensive pilot-training programs and infrastructure”).

170 Israel and China, for example, each have over forty UAV models and variants, from at least ten different manufacturers in each country, and are exploiting lucrative export markets throughout Asia and Africa. Wilson, supra note 17, at 30. In the developing world, China exports UAVs to Bangladesh, Egypt, Pakistan, Sri Lanka, Tanzania, and Zambia. See Wilson, supra note 18, at 27.

171 ICRC Commentary, supra note 132, para. 2199 (commentary on Art. 57(2)(a)(i)).

172 Id.

173 Sanders, Edmund & Barnes, Julian E. Pirates, Captive Sit in Navy’s Shadow, L.A. Times, Apr. 10, 2009, at A1. The UAV here, called the “ScanEagle,” was launched from the U.S.S. Bainbridge and video footage that it provided was later shown on various news programs. It can be seen, for example, as Scan Eagle Launches to Look for Pirates, Dailymotion, Jan. 19, 2009, at http://www.dailymotion.com/video/x8xrw8_scan-eagle-launches-to-look-for-pir_auto.

* The author was also assigned as a Lieutenant Colonel in the U.S. Army Reserve to the International and Operational Law Division, Office of The Judge Advocate General, Department of the Army. He greatly appreciates comments by David Koplow and Stephen Yeazell on earlier drafts and also thanks Daniel Laidman for research assistance.

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