NEWPORT, R.I. - Renowned law scholars and warfare experts discussed the challenges to international law posed by the changing character of war at the 2010 International Law Conference at the Naval War College (NWC) from June 22 to 24.
International authorities delivered presentations and participated in panel discussions at the three-day conference cosponsored by NWC’s International Law Department, University of Texas School of Law, International Institute of Humanitarian Law, and Lieber Society on the Law of Armed Conflict-American Society of International Law.
Dialogue centered on the Law of Armed Conflict (LOAC), International Human Rights Law, asymmetrical conflicts, cyberwarfare, and the growing use of unmanned weapon systems across the globe.
Nicholas Rostow, former Legal Advisor to the National Security Council and to the U.S. Ambassador to the U.N., delivered the opening address and spoke of a state’s right of self-defense and use of force in suppressing and preventing terrorist or armed attacks—both from within and outside a country’s borders.
“Policy makers are going to have to balance the instruments they use,” Rostow said. “Sometimes it will be law enforcement and sometimes it will be military.”
He added that “terrorism is not going away as a phenomenon. It exists because it’s effective.”
The panel “The Changing Character of the Battlefield: The Use of Force in Cyberspace” gave an overview of the inherent legal issues surrounding cyberwarfare. They discussed how the Distributed Denial of Service (DDoS) in the Republic of Estonia in 2007, which occurred during a political dispute with Russia, impacted websites of various organizations including Estonian parliament, banks, schools, newspapers, and broadcasters. They distinguished the incident in Estonia from the attack against the Ministry of Defense in Georgia in 2008, which was characterized as a cyberattack.
“Those who study cyberattacks are usually quick to point out the problem of identification and attribution,” said Columbia School of Law Professor Matthew Waxman. “It’s not always possible to discern quickly, precisely or accurately who launched or directed a cyberattack.”
The panelists also evaluated Articles 2(4) and 51 of the United Nations Charter regarding the use of force and the law of self defense, respectively, during kinetic and non-kinetic attacks. Topics included the pursuit of violators over geographical boundaries, collateral damage to civilians, organizations and computer systems and recourse available to states victimized by these attacks.
“If there’s a violation of Article 2(4), but you don’t have an armed attack—then your remedies are limited,” said Michael Schmitt, professor at the Durham University Law School. “They’re limited to lawful, non-forceful action, countermeasures and recourse to action authorized by the U.N. Security Council.”
Targeted killings and legal justification of unmanned weapons by military and paramilitary organizations were among the issues debated during “The Changing Character of Weapon Systems: Unmanned Systems/Unmanned Vehicles.” This panel focused on whether the use of drones complied with the LOAC and human rights laws.
The panelists debated a published report written for the U.N. detailing the first publicly-known drone attacks in 2002 by the U.S. against Yemen. At the time, the U.S. faced international pressure to provide legal justification for this method of lethal force that has grown substantially since that event.
“There are now more than 40 countries that have drones with intelligence, surveillance and reconnaissance capabilities and a significant number of countries are obtaining drones that are weaponized,” said Hina Shamsi, a Senior Advisor to the Project on Extrajudicial Executions at New York University School of Law.
Other related topics addressed by this panel involved who may be targeted and who may be the operator of drone attacks—including use of these weapons by the CIA.
“Main controversies that arise over the use of drones begin once it moves from being just a substitute battlefield weapon to the question of uses of the weapon by civilian intelligence actors of various kinds,” said Ken Anderson, a professor at American University and Washington College of Law.
During his closing address to the conference Professor Yoram Dinstein, Professor Emeritus at Tel Aviv University, explored the argument that unmanned aerial vehicles (UAVs) have been used for extrajudicial executions.
“Those who regard an attack by a UAV as an extrajudicial execution, apparently assume that death taking place in war ordinarily is judicial,” Dinstein said. “Is that so? What death in war is judicial? Every death in war is extrajudicial.”
Dinstein acknowledged that Human Rights Law can fill gaps where the LOAC is silent. For example, he mentioned that although the LOAC specifically prohibits torture, it is silent concerning the conditions of detention of unlawful combatants. In that instance Human Rights Law should be used to fill the gap found within the LOAC.
Professor Robert Chesney of the University of Texas School of Law described the impact of recent U.S. detention litigation during his presentation. He said the spotlight of litigation in Guantanamo and the global media interest that resulted, helped reduce the possibility of innocent detainees.
“Litigation creates an abiding interest in the legality of the detention system itself and the merits of particular detention decisions,” Chesney said. “But litigation does more than that. Litigation insures that the debate will be framed in legal terms rather just in policy terms.”
Other panels at the conference spoke of the changing character of the participants of war, tactics and international legal scrutiny.
The papers from this year’s event will be published in Volume 87 of the Naval War College International Law Studies (Blue Book) series, which was initiated by the College in 1901 to publish materials that contribute to a broader understanding of international law.
The 2010 International Law Conference was also made possible through the support of the Naval War College Foundation and the Israel Yearbook on Human Rights.
By David Reese, Naval War College Public Affairs