Summary of Introductory Remarks
The adoption of the four Geneva Conventions of 1949 marked a watershed moment in the development of international humanitarian law (IHL). Seventy-five years later, international and non-international armed conflicts—including in Ethiopia, Russia and Ukraine, and Israel and Palestine—continue to rage around the world. The circumstances of conflict are also changing. Participation in conflict by non-state armed groups, private militaries, security companies, and mercenaries, as well as by sub-regional coalitions, is on the rise.
Other challenges are also putting pressure on IHL. Insecurity associated with climate change could provoke new conflicts. Artificial intelligence has opened new possibilities on the battlefield. Additionally, challenges concerning humanitarian access and assistance will require a clarification of the rules to ensure IHL remains relevant and sufficient to address the circumstances of armed conflict today and in the future.
The panel includes experts who will discuss these issues and the future of IHL. The panelists include Lieutenant Colonel Ron Alcala, who has served as a JAG in the U.S. Army and is currently a law professor and associate dean at the United States Military Academy at West Point. He also serves as the executive director of the West Point Press and executive editor of Articles of War. He is also the co-editor of the Impact of Emergency Technologies on the Law of Armed Conflict and is an executive committee member of ASIL's Lieber Society.
Lakmini Seneviratne is an operational legal advisor at the International Committee of the Red Cross (ICRC), who is currently serving as the legal advisor and head of the Legal Department at the ICRC Regional Delegation for the United States and Canada. She has previously worked in Sri Lanka, Afghanistan, Iraq, and Syria. In her work with the ICRC, Lakmini engages with states, non-state actors, and their influencers to implement and operationalize IHL.
Tadesse Kebebew is a post-doctoral researcher at the University of Geneva on the platform for international water law at the Geneva Water Hub. He previously served as a teaching assistant at the Geneva Academy of International Humanitarian Law and Human Rights and as a lecturer in law and research and technology, and interchange director at a university in Ethiopia.
Afonso Seixas-Nunes is an assistant professor at St. Louis University Law School and a member of the editorial board of the Journal of Humanitarian Legal Studies. After finishing his PhD in IHL, Afonso joined the University of Oxford Institute for Ethics, Law, and Armed Conflict. He has been a Jesuit priest since 2010.
Questions for Lakmini Seneviratne
How would you describe the significance of the conventions and their implementation in the last seventy-five years? What would you say are its major implications for the way we fight wars today?
Thank you, and pleasure to be here. Thank you all. In the interest of time, I will try to be brief. There is a ton to be said about what you just asked, but maybe starting off by saying, indeed, it is the seventy-fifth anniversary of the Geneva Conventions of 1949, but we also have to remind ourselves that there is the first Geneva Conventions of 1864, and we are celebrating 160 years since then. The journey has been long, and the commitment to regulate conducting armed conflicts has been a conviction that states pursued since 160 years at least in terms of treaty qualification. That is one good thing to think about.
When you think about the 1949 Geneva Conventions, one could say that it was a product of its time because it was essentially responding to the horrendous consequences of World War II, and in that sense, it was a response to circumstances that prevailed at the time. One can also think of the fact that there may have been powers that were more influential in putting the conventions together and spearheading that process. But at the end of it, the resulting agreement was very significant, whatever those circumstances that led to it. One thing to note is that there was agreement about the object and purpose of these four Geneva Conventions—to minimize suffering in times of armed conflict. That is an agreement that the states around the world that sat together agreed on.
The second thing is, in light of that, to try and minimize the suffering through a balance between military necessity and humanity. The second principle that we see throughout this agreement is the fact that reciprocity does not apply. Parties to conflict, be they states or non-state actors, are bound by these rules, and therefore, the commitment is toward all parties to armed conflict.
To that end, the conventions focus predominantly on international armed conflict, and we can also say that large-scale military operations are not a thing of recent history. It is something that was already the case in World War II. This is responding to large-scale military operations. It did not forget non-international armed conflict. There is at least one provision with minimum standards that must apply in times of non-international armed conflict, and it laid down ways in which those who are no longer taking part in hostilities should be protected.
It created mechanisms through which there could be a neutral intermediary during armed conflict. There could be protecting powers in times of armed conflict. There could be instances in which it paved the way for accountability because there is a grave breacher's regime in these conventions. There is a lot to say about the framework that was put together.
Then came the process of ratification. By now, we know that there is a global consensus because there is universalization of the Geneva Conventions. There are 196 states that are states’ parties to the Geneva Conventions. It is interesting to note some interesting facts about this is that, of course, the conventions came into being on October 21, 1950, and came into effect when Switzerland and Yugoslavia ratified. But already in the 1950s, there were an additional seventy-four states that ratified, another forty-eight in the 1960s. Each time states ratified these conventions, they ratified it as a set. No one chose to do the first one and not the third one. It was always as a set. It shows the conviction that states had when accepting these treaties and ratifying them.
Even when you look at national implementation of these treaties, there could be improvement for sure. There is room for improvement, but at the same time, there is a whole series of military manuals that have incorporated these principles. There is integration into doctrines. There are laws that have incorporated the principles in local legislation. The global consensus in accepting the preventive value of the Geneva Conventions is not something that we should take lightly.
Questions for Lakmini Seneviratne
What would you say are some of the noteworthy trends in contemporary warfare and the challenges posed by the development of new means of contemporary warfare? Are there any concerns about the adequacy of the Geneva Conventions to ensure humanity in war?
Lakmini Seneviratne
The main implication of the Geneva Conventions today is that in whatever shape or form an armed conflict takes place, there is a framework in place to regulate it. We have states around the world and non-state actors have to accept this. There is a framework in place. The challenge today is for us to comply with that and to build on that and to surpass that and not to question the framework as such.
In that spirit, I would say the ICRC looks at challenges not as issues that have not been foreseen at all but as issues that have come up over time, how the newer manifestations of belligerent conduct and innovations in means and methods of warfare that require us to apply the framework in two and see if they can be regulated. Are there any gaps? Are there ways in which to fill those gaps?
For us as the ICRC, we absolutely do not question the fact that IHL has to evolve, and it has to evolve why? Because it wants to keep to its promise of protecting those who are affected by armed conflict. It has to do so in line with the evolution of military practices and military technologies. The question is not whether it needs to happen; it is how it needs to happen. I would say that draws us back to the object and purpose. What is the law there for?
In this sense, there are a number of things that we can talk about in terms of challenges, but in the interest of time—and I know Ron will go into detail of some of these—I will mention a few. There is the proliferation of non-state actors, as you talked about. I do not think that is the challenge. The challenge is how states and actors came about to regulate or to deal with the phenomenon of proliferation of non-state actors.
We came up with counterterrorism (CT) frameworks. We came up with CT legislation. How do you co-exist IHL and CT frameworks? That was one challenge we had to look at.
And then the fact that we now have new and emerging technologies. We have autonomous weapon systems. We have use of AI in the battlefield. We have new domains of warfare, and military operations are now going into outer space. Afonso will talk about this. When you look at these new and emerging technologies and multi-domain military operations, again, if you look at the law, the basics are there. Wherever the conflict takes place, there is a way to classify whether it is an armed conflict or not. Common Article 1 talks about it. Non-Common Article 3 talks about it. Then Article 36 to the additional Protocol 1 talks about new means and methods of warfare and how to regulate that. So the framework is there.
But as the ICRC, again, we would not question the need for evolution. You do need to spell out how autonomous weapons are being used, and we take the position that some autonomous weapons should even be prohibited because it takes away the human control and judgment in the process. We do accept AI can serve a purpose, it can have potential benefits, but there are risks, and therefore, AI has to be regulated as well in terms of international humanitarian law.
If you look at the involvement of civilians in armed conflict—and when I say civilians, what I mean is private individuals and tech companies—these involvements, particularly private individuals being involved in armed conflict, are nothing new. We already saw this from decades back at the inception of the Geneva Conventions as well. But now with the emergence of technology, the scope and scale and speed at which this is happening is evolving. How does the law look at that, and how does law regulate that, especially when states are encouraging this conduct with the use of apps, for example? When tech companies take on cyber defense capabilities, what does that imply in terms of their protection? As fundamentally civilian actors, where do they lose protection? The law does talk about direct participation in hostilities. There is room for us to work on these issues, and the challenge is how.
Beyond all of this, there is information operations and how that intersects with misinformation and disinformation, how do you regulate the conduct in that regard, and there are different ways in which we can talk about it. But I think fundamentally for the ICRC, we think there is also a more obvious challenge, and that is compliance. The law is there. The fundamental rules are there, and there is a problem of compliance in today's world, and that challenge is not just a challenge. It is an obligation. The law does impose or recognize obligations on the party. That is the most obvious and most important challenge and obligation to address today.
Question for LTC Ronald Alcala
How has the law of targeting, in particular in urban environments, changed in the last seventy-five years since the Geneva Conventions were adopted?
Thank you very much for the question, and thank you to Jess Peake and the rest of the ASIL team for putting this panel together. Thank you.
I should start with the standard disclaimer before I begin. The views that I am about to express are my own and do not necessarily reflect those of the United States Military Academy, the United States Army, the Department of Defense, or any other department or agency of the United States government.
With all of that out of the way, for starters, I believe that the fundamental principles of the law of armed conflict remain adequate in contemporary warfare. The principles of distinction, military necessity, proportionality, and unnecessary suffering are embedded in the Geneva Conventions and the additional protocols. That is not to say that targeting has gotten any easier or that, for that matter, that targeting was ever easy.
One topic that has gained a lot of interest in recent years deals with civilian harm and national policies designed to mitigate civilian harm in armed conflict. These policies include the Department of Defense's own recent instruction on civilian harm mitigation and response. Incidentally, this topic is the focus of the panel for tomorrow at 0900, so I am not going to get into too much detail here. But as I think the panel is going to discuss, there is a tension between what is perceived as required by law and what is mandated as a matter of policy.
Lieutenant General Chuck Pede, who served as the Judge Advocate General of the Army from 2017 to 2021, talked about what he called a gap in understanding between what is required by the law of armed conflict and what has come to be expected in armed conflict, sometimes constrained by policy. It is essentially a lex lata versus lex ferenda debate based on military operations from the perspective of the military. He wrote an article, which was called “The 18th Gap,” and in the article, General Pede argued that twenty years of counterterrorism and counterinsurgency operations created what he called a gap in the mindset and the expectations of commanders, of soldiers, as well as members of the general public. He wrote, “The popular misunderstanding of modern warfare imagines highly precise smart bombs winning the battle, if not the war.” He went on to argue that this view of warfare would be highly detrimental in a conflict with a near-peer adversary. Large-scale military operations, large-scale combat operations, as Lakmini mentioned, will involve much larger forces—so, larger formations of infantry, larger formations of armor, more warplanes. Expecting that the same highly constrained and surgical employment of force in what we call a LSCO—large-scale combat operation—would, in his opinion, unnecessarily limit a commander's legal maneuver space on the battlefield. Ultimately, General Pede argues that what is needed is—and I am quoting from his article again—“adherence to the law of war and its fundamental principles: military necessity, distinction, proportionality, humanity, and honor.” Some of you may recall that honor was added as a principle to the Department of Defense Law of War Manual back in 2015.
From a U.S. military perspective, the law of targeting in an urban environment has not really changed. What has changed, however, are the capabilities of military forces, as well as the expectations of how combat in urban areas is expected to be conducted.
Question for LTC Ronald Alcala
Can you provide some examples of how you believe that the application of IHL has been impacted by contemporary developments, particularly from a state perspective?
LTC Ronald Alcala
Yes. There are a lot of interesting developments that occurred during the Ukraine conflict, and one example implicates the law of surrender. In September of 2022, Ukraine introduced what was called the “I Want to Live Project,” and this project was designed to encourage and enable Russian soldiers to surrender to Ukrainian forces. It did this by allowing Russian soldiers to contact Ukrainian forces either by phone, by website, or by messenger app to express a desire to surrender. Once contacted, Ukrainian forces would then arrange a specific time and place for a formal surrender.
Now, one wrinkle, at least from a legal perspective, was the way that Ukrainian forces actually facilitated the surrender. In many cases, Ukrainian forces would use drones to monitor and accept the surrender of enemy soldiers. Now, a basic rule of the law of armed conflict provides that combatants placed out of combat or out of the fight must not be made the object of attack. Those rendered out of combat include prisoners of war, so POWs. They include individuals who are wounded or sick and out of the fight, and they also include individuals who have surrendered.
Expressing an intent to surrender is not the same as actually surrendering. Traditionally, this was not much of a problem because the expression of an intent to surrender, either the laying down of arms or raising your hand over your head, took place relatively close in time and space to the actual surrender. With the “I Want to Live Project,” on the other hand, the expression of an intent to surrender could take place days or even weeks before the physical actual surrender takes place. In the meantime, the surrendering soldier is not considered out of combat and, therefore, arguably remains targetable.
What if the surrendering soldier actually makes it to the prearranged surrender point and the soldier is met not by other soldiers but by a drone? When does his or her surrender actually become effective?
The DoD Law of War Manual states that to be effective, surrender must be, one, genuine; two, it must be clear and unconditional; and three, it must take place under circumstances where it is feasible for the opposing party to accept surrender. Assuming, for example, that the first two conditions are met, is it feasible to accept surrender by drone? Arguably, yes, it is, but the enemy's surrender will be fact-dependent. For example, is it feasible for a helicopter pilot who is flying overhead to accept the surrender of an enemy soldier, or is it feasible for a fighter jet pilot, a pilot in, say, an F-22 Raptor who is flying overhead? Is it feasible for that pilot to accept the surrender of an individual on the ground? These questions that are related to the apparently simple act of surrender highlight how technology has complicated the application of law of armed conflict, and this can be seen in other contexts as well.
There is another example for the Ukraine conflict that deals with the use of smartphone technology, and Lakmini talked a little bit about the use of phones and apps to accomplish things on the battlefield. In this particular case, a cell phone app is used to provide information about incoming missiles and other airborne threats. Ukraine developed the app that allowed users to select from a menu of options. They could select “aircraft,” they could select “helicopter,” they could select “drone.” And then once they have selected this option, they could point the phone at the incoming object and then press a button. When they press the button, the information would be sent to neighboring Ukrainian air defense units, and that information would include GPS information, and it would include compass information from the phone. Those air defense units could then use that information to supplement their targeting radars and potentially neutralize the airborne threat.
Use of the app, however, raises a question of under the law of direct participation, again, something Lakmini mentioned. Under the law of armed conflict, civilians obviously are protected from direct or indiscriminate attack. The Commentary, Additional Protocol 1, where this protection is reiterated, states this, and I will read from the commentary. It says, “Article 51 is one of the most important articles in the protocol. It explicitly confirms the customary rule that innocent civilians must be kept outside hostilities as far as possible and enjoy general protection against danger arising from hostilities.” Article 51, however, further states that “Civilians enjoy protection from attack”—and this is from Article 51—“unless and for such time as they take a direct part in hostilities.” So, is a civilian who uses this identification app taking a direct part in hostilities? Again, this touches on an issue that Lakmini mentioned. This is the civilianization of armed conflict. If a civilian takes a direct part in hostilities, that civilian loses his or her protection from attack and may be lawfully targeted. But DPH-ing, direct participation in hostilities, raises other questions as well, such as when does the period of DPH begin, and when does the period of DPH end? Again, loss of civilian protection applies only for the period of the direct participation.
Does this begin when a civilian downloads the app? Does it begin when the app is actually opened? Does the participation begin when the app is actually used? And then on the other end, when does the direct participation end? Does it end once the report is made and the information is sent to the neighboring air defense units? Does it end when the app is closed, or does it end when the app is actually deleted from an individual smartphone? Again, here we see the use of technology testing the limits of the law, but again, ultimately I think the existing law seems capable of addressing these questions.
On the other hand, there are some emerging technologies such as AI and autonomous weapons that might require a more focused consideration of the law. This is more of Afonso's area of expertise. I am going to leave it up to him if he wants to address that. I will leave my remarks there. Thank you.
Question for Tadesse Kebebew
Another very specific topic in IHL concerns the weaponization of water in armed conflict. How would you say that the weaponization of water has impacted the civilian populations and infrastructure in particular?
Thank you, and thank you, organizers, for inviting me to this panel. My topic is very specific, and it is about weaponization of water. This phenomenon has been one of the very serious issues that contemporary armed conflicts are facing, particularly in urban settings and in protracted conflicts. Water infrastructure and wastewater treatment plants often get damaged or destroyed or purposely sometimes attacked, and those have serious consequences for civilians.
I will begin by giving you some examples. The first example is in the prolonged conflict in Syria, two-thirds of the total water infrastructure and water treatment plants have been damaged. That has exposed twelve million people to lack of access to basic drinking water and sanitation. The other example I have—and this report has been put into the United Nations secretary-general's report on the protection of civilians—is happening in Burkina Faso. The rebel groups attacked close to fifty-eight water points or water wells where people fetch water, and that has exposed close to 800,000 people to lack of water.
In Libya too, in one single instance where armed groups controlled a water distribution facility for a few weeks, that specific single incident deprived the total population in Tripoli, two million people, of water supply.
And, of course, I could mention the armed conflicts in Ukraine and in Gaza, where water infrastructure has been a victim, and has also been used as a weapon, flooding areas to block the advance of enemy soldiers, et cetera. These are the direct consequences or impacts of weaponizing water.
What is more delicate and more complex is the indirect impact of water, which might test the limit of the law. By indirect impact or by reverberating impact of attacking water infrastructure or wastewater treatment plants is it will lead into malnutrition. It will lead into health implications. It will lead into the breakout of waterborne disease and environmental degradation.
The question now is, how will IHL address those elements of indirect impacts of attacks? We could also ask, will the military be considering those indirect impacts sometimes referred to as “remote risks” in their assessment of proportionality or even in taking precautions in attacks? These are some of the challenges, but obviously, attacking or weaponizing water has both direct and indirect impacts. And the indirect impact might test the limit of the law.
Question for Tadesse Kebebew
What provisions of IHL provide for the protection of water and other resources during a conflict?
Tadesse Kebebew
Thank you. There are interesting legal protections. We have different layers of legal protection under IHL as well as under other branches of international law providing protection for water. The basic one is general protection that we have under conduct of hostility rules. Water infrastructure is a civilian object by nature. As a civilian object by nature, it cannot be directly attacked. That is the principle of distinction. This principle also prohibits indiscriminate attack of objects, which also protects water infrastructure, water treatment plants, and water resources.
IHL under conduct of hostility rules, as I briefly mentioned, also has the principle of proportionality. Even when water facilities or water treatment plants are not directly targeted, they might be incidentally damaged, attacked, or destroyed. In those cases, what the proportionality principle provides is whenever the attack that you are conducting against a military objective is expected to cause excessive collateral damage, even if you will have direct and concrete military advantage, you cannot pursue what you planned. You cannot execute that operation.
One must ask if this expected collateral damage also will include the consequences or the direct impact, as I briefly mentioned, of displacement, waterborne disease, epidemic, or environmental degradation? Should we expect militaries to consider all of those factors in the assessment of proportionality when they launch their operations?
Beyond that, there is also another layer of complexity, which is how do we consider the cumulative impact of attacks. In separate military attacks or in specific military operations, you could strictly follow the limits of the law. However, the moment that accumulates in a prolonged conflict, it will definitely create a bigger challenge. Whether militaries have to consider the cumulative impact has been a delicate issue. Article 51, which includes the provision on proportionality, and Article 57, which talks about precautions in attack, we have expression of military operations. They often talk about attacks when we assess the conduct of hostility rules. Should we also consider a broader military operation? Article 57 is clear, saying that whenever you conduct a military operation, you have to take constant precautions. Does taking constant precautions include considering those cumulative impacts that we have caused through repeated or continuous attack or impacts on civilian infrastructure or water facilities? These are the questions that need to be asked. For some authors in doctrines, and with the ICRC as well, those reverberating impacts or indirect impacts must be factored into proportionality and precaution against in attack. However, this is not always accepted by most countries.
Question for Tadesse Kebebew
Can you provide one practical recommendation that states and other stakeholders can use to better protect water infrastructure during armed conflict?
Tadesse Kebebew
I would say one of the challenges is implementation of IHL rules. We have a diverse set of rules. We have a specific protection for water as an object that is indispensable for civilian populations. We have different rules under international human rights environmental law, but then the challenge is, how do we implement them on the ground? Implementation and then whenever there is a violation, enforcement has been missing. The states need to take the obligation under Common Article 1 seriously. Somehow we also have to broaden the interpretation of some of the rules to make it a living instrument.
Questions for Afonso Seixas-Nunes
Transitioning from a focus on the hyper-local to a broader view of the future of IHL, what would you say are the legal provisions that do or should govern the development and use of autonomous weapon systems? What does IHL demand from users of autonomous weapon systems, whether states or individuals, to ensure they satisfy their IHL obligations? What are the type and degree of human machine interactions or algorithms required for IHL compliance?
Thank you. First of all, I want to thank Jessica Peake for inviting me also in St. Louis to talk about these topics, and I wonder if you know how difficult it is to speak after a military person, then the ICRC. If tomorrow I am sacked, you will probably know why.
Let us talk about autonomous weapon systems (AWS). I think I saw Professor Sassòli outside, and it came to my mind that in 2014, he wrote an article about the challenges of AWS for international humanitarian law. The challenge is that after ten years, we still are discussing the same problems that Professor Sassòli raised in that article.
When I was writing my book, I tried to answer some of those problems, and one of them is what I call dissociation of communication. One problem is that when we talk about dissociation of communication on autonomous weapon systems, we talk immediately about meaningful human control, and that is a big question. But we are forgetting another level of dissociation of communication that in my understanding has a tremendous impact on IHL and how IHL is going to govern these systems. It is that lawyers do not understand what roboticists are saying, and roboticists do not understand the philosophical questions. To put people from these different worlds together to discover what is an autonomous weapon system is already a nightmare. After these ten years, we do not have even an accepted definition by any state.
If you look to the new draft articles that Canada, the United States, Australia, South Korea, and Japan have introduced last year at the CCW about the requirements for AWS, if you read the document carefully, it is full of incoherences, because some parts are written by roboticists, other parts are written by lawyers, and the third part we need to guess.
This is just to talk about the chaos of communication when we talk about new technologies, and if we do not know what we are regulating, how are we going to say if IHL is applicable or not? Here, states are not helping. For instance, the United States, until very recently, had the opinion that there is no need for definition, for example. We had the United Kingdom in 2011 qualifying an autonomous weapon system as a system with the same level of intentionality as a human being. They changed their position, but just to see the chaos of language that we find.
The first problem we have is do these machines make decisions. Are we talking about new agents on the battlefield? Are autonomous systems actually making decisions on the battlefield? Are they moral agents? No. Because they cannot be responsible, thus they are not making decisions, for instance, for a lawyer. For a roboticist, they are making decisions. For a philosopher, he puts question marks.
This is the first problem, dissociation of communication, and when are we going to get the concepts right. Every time that I approach a roboticist as saying that I was a PhD candidate, they would not receive me, and one professor explained to me why: Because you come here to say that what I do is wrong. I said, that is a poor perspective of a lawyer. No, you say what I can do or what I cannot do that. I said no. Do you want to be responsible for everything that you create in your lab? Of course not, so that is why you need a lawyer. So roboticists now are my friends.
Now, the second problem is how is IHL compatible with a technical problem such as AWS. First of all, I think that is up to engineers and roboticists to prove that longstanding principles of IHL, namely, jus cogens principles, as the principle of distinction, will be respected when these systems are activated and deployed.
If we look to the recent conflicts in Ukraine and Gaza, we can see even the minister of defense of Israel qualified this recent war as the first AI war. It is debatable, but let us accept it by now. And we see the level of accuracy of data that the Israeli army has access to.
We can think that the principle of distinction with these weapons will be more respected in the sense that the level of data and the way that it is processed gives us access to more quality of data and thus prevents collateral damage. But recently, I have been tackling another problem. If you have noticed for people that enjoy this topic, states are slightly diverging in their position not to accept autonomous weapon systems but to defend supervised autonomous systems. States want systems that before lethal force is deployed, there is a military commander that confirms or rejects what the system is giving to the military commander. This raises lots of issues, and I think that we are watching the last moments of proportionality as we know it today, because the military advantage will be assessed by the system.
The military commander will be confronted with the data of the system, which he will not be able to control or have access to due to the nature of the algorithms involved, and he will assess it only if the military advantage compensates or is not excessive to the collateral damage. We are killing softly proportionality as we have known proportionality until today.
Questions for Afonso Seixas-Nunes
Much of the data that these weapon systems are gathering must be dependent on satellites, which are based in outer space. Would you say space is the new battlefield? Will IHL apply in outer space? What are the accountability requirements for the private owners of these satellites during armed conflicts?
Afonso Seixas-Nunes
First of all, I think there is no question that outer space will be the future battlefield. Since 2019, NATO has clarified any doubts we might have that it is a new domain of warfare, and if we look especially to the United States, because it is more open about these matters, in its defense strategy of 2022, it declared outer space as a new space for warfare. Even if we look to the Magna Carta or the 1967 Outer Space Treaty, we know for sure that the treaty does not prevent an armed conflict to exist in outer space.
Talking about satellites, my recent research has been on outer space and how we depend on satellites without realizing it. Everything we do from mobiles, for computers, for GPS—whatever we do depends on satellites. We have this problem regarding the commercial satellites. We have the United States pretty much alone in this area because Russia and China operate in different and mysterious ways. We have the United States having two kinds of satellites, receiving information like Starlink is giving to the Ukrainian armed forces, so civilian objects that are contributing to the military advantage of a party to a conflict.
Then we have the second part, where the United States is investing massively in double-use satellites—satellites that provide private and civil information but also military information. We have two different situations in terms of IHL. We have one that is a civilian object that because of its use becomes a military objective, and we have the rules of proportionality to apply. The other case is a dual-use object and will raise other problems in terms of precaution, especially about negative or passive precautions.
To sum up, I wonder how proportionality will be assessed in outer space, for example. We had ICRC saying that this is a problem of compliance. I do not know how compliance with the rule of proportionality will be possible in outer space. When we have a military advantage, on the other hand, we can have the entire universe without light, electricity, and so on.
Secondly, the problem of accountability regarding the responsibility of states that the Nuclear Weapons Advisory Opinion in paragraph 84 was very clear to sustain the responsibility of state for any weapons of the past, present, and future, but how are the states complying with the rules of precaution, not only Article 57 but especially Article 58 in the rule of distinguishing civilian objects from military purposes? This opens the debate for jurisprudence and for academic work. But I will say that is a big question mark, the question of accountability in outer space. Thank you so much.
Concluding Remarks
The moderator concluded the panel.
