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International humanitarian law for the Australian defence industry

An introduction to international humanitarian law (IHL) and its relevance to the people working in the Australian defence industry – by Dr Derek Rogers.

Introduction

IHL, also known as the Law of Armed Conflict or the laws of war, is the set of rules that protects certain people and property caught up in war and armed conflict. These laws balance the principle of military necessity with the humane treatment of people and the protection of civilian property.

History contains some devastating examples of the brutality of war. Some of these events led to the establishment of the International Committee of the Red Cross and, among other instruments of international law, the four Geneva Conventions of 1949 and their three Additional Protocols.

Every country in the world has ratified the 1949 Geneva Conventions. A majority of countries have also ratified Additional Protocols I and II (174 and 169 respectively) and a significant number have ratified Additional Protocol III (79).

No other treaty has such universal acceptance. This demonstrates the gravity and seriousness with which the world regards these laws.

However, new and emerging technologies are changing the way in which wars are fought and it is not just members of the armed forces and governments to whom these laws apply. There are also implications for people who work in the defence industry. Such personnel may find themselves subject to IHL, its protections, responsibilities and the corporate and individual risks that come with it.

Key principles of IHL

The key limiting and protecting principles of IHL include:

  • Distinction: parties to an armed conflict are required to ‘at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives’.
  • Military necessity and proportionality: only the amount and kind of force necessary to defeat the enemy can be used. Attacks must not cause incidental damage to civilians and civilian objects excessive to the anticipated military advantage.
  • Prohibition of the use of any means of warfare that may result in superfluous injury or unnecessary suffering.
  • Prohibition of widespread, long-term and severe damage to the natural environment.
  • Humane treatment: requires protected people to be treated humanely at all times.
  • Impartiality, or non-discrimination: all protected persons shall be treated the same irrespective of race, sex, nationality, religious belief, or political opinion.
  • Preferential treatment, respect and protection of women and children.

As new technologies emerge and are used as weapons and in military tactics, these and other IHL principles must hold fast and be respected.

Reviewing new and newly acquired weapons

Particularly relevant for engineers and organisations involved in the development of both civilian and military technology is Article 36 to Additional Protocol I (‘Article 36 Reviews’). These reviews examine the lawfulness of a new or newly acquired weapon before its introduction to the warfighting domain.

There are many subtleties to be aware of in conducting these reviews. For example, what constitutes a ‘weapon’ or ‘means or method of warfare’ is not always obvious; a communications system could be classified as such.

In Australia, the Department of Defence is responsible for conducting Article 36 Reviews in the case of new technologies such as autonomous and artificial intelligence systems and cyber capabilities. Article 36 Reviews also rely heavily on the specialist expertise of those in the defence industry. This can have significant ramifications for the IHL protections, responsibilities and risks to both individuals and organisations.

International criminal law and its application to people in the defence industry

International criminal law sets the standard to which members of the Australian Defence Force and others must operate, and is covered by section 268 of chapter 8 of the Criminal Code Act 1995 (Commonwealth of Australia). While the details are not covered in this article it may be argued that aspects of the laws and statutes could apply to defence industry personnel involved in weapons development.

Due to the specialist knowledge that a member of the defence industry could have, and the nature of their relationship with Defence, there is a risk they could incur individual criminal responsibility in relation to the provision of weapon systems. As noted above, what constitutes a weapon may not always be obvious.

Consider this as a hypothetical scenario; the actions of a company conducting an autonomous weapons development program. The Chief Technology Officer consciously disregards information that suggests (i) the targeting algorithms (Artificial Intelligence) may have biases in them, or (ii) the company did not institute a program to properly check for such bias.

An Article 36 Review will rely heavily on the specialist knowledge of the company. Consequently, a court may consider that moment where a specialist designed or oversaw that aspect of the performance, and assess this within the realm of attributing criminal responsibility. Under Australian law there may also be civil liability for the company and individuals involved.

Opportunity

“Ignorance of the law excuses no one” and people involved in the Australian defence industry must have an understanding of IHL. This is vital, apart from any moral reason, because of the potential liability they may face under domestic civil and criminal law, and international criminal law.

However, education and knowledge also present an opportunity. Societies will develop weapons. Australia develops weapons. But what we can do is increase the awareness and understanding of IHL among people working in the defence industry.

We can encourage organisations and individuals to design and deliver weapons that consciously satisfy IHL requirements. This will reduce, or even avoid potential liability, and will also be attractive to people in the Australian Defence Force who need to meet their own obligations.

Dr Rogers is an Australian Red Cross IHL Advisory Committee Member in South Australia. He is a professional engineer with over 24 years of industry experience. Opinions expressed in this paper are his own and are not associated with his employer, any of his adjunct roles, and are not an official position of Australian Red Cross.

  • This article is a summary of a longer paper by the author which will be published later this year. Please note, this is not a definitive authority and further guidance should be sought from experts on any specific circumstances.

Further information

In Australia and across the world, Red Cross has a mandated responsibility to ensure that IHL is understood and respected in times of war and peace. Australian Red Cross is committed to working with the Australian defence industry, to ensure they have the knowledge and tools they need to align their practices with IHL.

Would you like to speak to someone from our IHL team? Please email ihlupdate@redcross.org.au.