The Future of War (III): Some questions for consideration in light of the changes

By the Future
of War team, New America Foundation


Best Defense office of the future

Law,
institutions, and political organizations always lag behind changing
technologies. While no one can predict with any certainty precisely how evolving
technologies will change the future shape of law and political structures, New
America's "Future of War" project will map out the key conceptual and legal
questions that we need to grapple with as we move forward.

Changing technologies are
simultaneously increasing and decreasing state power; how will these
countervailing trends change the nature of state power vis à vis other states
and non-state actors?




Will
they drive changes in how states interact with one another? On the one hand,
wealthy and powerful states -- in particular, the United States -- now have
unprecedented means of exercising power. Massive surveillance power,
space-based weapons systems, and so on remain within the sole province of
powerful states. Even drones are primarily tools of powerful states, since only
those states have the anti-aircraft capabilities to prevent incursions by
"foreign" drones and the broad-based intelligence capabilities that permit
drones to target specific individuals. On the other hand, individuals and
non-state organizations can confound state power in new ways, both through the
use of sophisticated cyber tools and through the dispersed and decentralized
use of simple, low-tech weapons such as IEDs, which are difficult to track and
control.




As technologies of
violence and control change, so do the concepts of "war" and "peace." Does
"armed conflict" versus "unarmed conflict" still make sense as a distinguishing
category? Should we seek to develop rules governing the "state use of force
across national borders"?




If we retain existing
constructs of war and peace, how do we define these? In the "war" against al Qaeda
and its allies, "the battlefield" is potentially anywhere on the globe and "the
enemy" is not another army but a loosely associated group of individuals of
varying nationalities. The wars in Iraq and Afghanistan were armed conflicts,
but as a legal matter, is the United States in an "armed conflict" with
suspected violent extremists living in Bosnia, or with militant leaders in
Pakistan's tribal regions? Are we in an armed conflict with suspected al Qaeda
"associates" in Somalia? Is a U.S. drone strike in
Somalia a lawful strike against an enemy combatant in an armed conflict, or the
illegal, immoral murder of a human being in a foreign country (and a possible
violation of sovereignty and the United Nations Charter to boot)?




How do we decide who is a
combatant in this new kind of armed conflict, which is not fought by uniformed armies? How do we
define "direct participation in hostilities" when any "hostilities" might be
months or even many years in the future, and might involve anything from the
destruction of a privately owned power plant to an internet denial-of-service
attack? If we're truly in a "war," it's surely
reasonable to consider an al Qaeda operative with bombs strapped to his chest a
combatant who can be targeted or killed. But what about an al Qaeda financial
supporter, or a propagandist who sets up web sites urging violent jihad? Are
the drivers, bodyguards, servants, and wives of al Qaeda leaders combatants?
Would a Somali tribal militant whose operations are wholly confined to Somalia
be considered a combatant if he belongs to an organization that is loosely
affiliated with al Qaeda?




How do we protect
human rights and human dignity in this murky world? If we can't figure out
whether or not there's a war -- or where the war is located, or who's a
combatant in that war and who's a civilian -- we have no way of deciding
whether, where, or to whom the law of war applies. But if we can't figure out
what law applies, we lose any principled basis for making the most vital
decisions a democracy can make, such as: When can lethal force be used inside
the borders of a foreign country? Who can be imprisoned, for how long, and with
what degree, if any, of due process? What matters can the courts decide and
what matters should be beyond the scope of judicial review? When is government
action and administrative procedure guarded by national security interests and
when must government decisions and their basis be submitted to public scrutiny?
And ultimately: Who lives, and who dies?




How does the migration of war
into the cyber domain complicate these questions? Just as the law lags far behind
advances in drone technology, so too the law has
little to say about cyberwar, particularly in determining when and if a cyberattack
is an "act of war." (Similarly, despite the increasing militarization of
space, space law is only in its infancy.) There has
been some discussion about these issues at the Pentagon, but very little in the
public space. But it's important to consider, for instance, whether a
large-scale Stuxnet-like attack on U.S. infrastructure would be an act of war
or not. Would it depend on whether the attack was unleashed by a state, an
organization, or an individual? How would one define "combatants" and civilians
in a cyberconflict?




What does civilian control of
the military mean in the context of these rapidly changing technologies? Consider cyber: There are
reports of a confrontation three years ago between the Obama White House and
the Pentagon over the issue of the pre-authorization of responses to a cyberattack.
The Pentagon argument was that it simply couldn't wait for the White House to
review the situation and decide to act. The White House ultimately responded
that the Pentagon would have to wait for the president to get involved, just as
it does with nuclear weapons. This exchange illustrates some of the new
questions being raised as warfare evolves that are not being answered in a sufficiently
coherent way.




How can we prevent
interstate conflict in a world in which norms of state sovereignty are changing
and eroding? Both human rights norms and security concerns have challenged
traditional understandings of state sovereignty, which is increasingly viewed
as a privilege earned by states that "follow the rules" and potentially waived
by those that do not. In many ways, the shift away from absolutist conceptions
of state sovereignty has been a positive development from a human rights perspective.
But with the U.N. Security Council politicized and often paralyzed, powerful
states -- such as the United States -- have increasingly taken it upon
themselves to determine when it is appropriate to use force inside the borders
of another state, a practice that jeopardizes the already fragile post World
War II collective security bargain.

In
addition to grappling with such large-scale conceptual questions, New America's
"Future of War" project will engage with current policy debates that relate to
these broader questions.

The Future of
War project is led by Peter Bergen, director of national security
studies at the New America Foundation, and the author of several books. This series was drafted by him and the
team's other members: Rosa Brooks, Anne-Marie Slaughter, Sascha Meinrath,
and Tom Ricks.