Defence industry

New and emerging technologies are fundamentally changing warfighting today.

Take, for example, drone surveillance or the use of precision guided munitions in aerial strikes, particularly in urban warfare settings. Among governments around the world, there is significant interest in the modernisation of defence capabilities – in some cases, to minimise harm to civilians through the use of advanced technologies, and/or to provide arms bearers with a unique military advantage in operations. These developments can generate novel humanitarian challenges in IHL, for example with respect to autonomous weapons systems, cyber-attacks and artificial intelligence.

In many cases, governments and militaries are exploring alternative options to the design and development of these new technologies, including outsourcing and privatising production. This has resulted in the increased involvement of the private sector and contracted personnel. This is significant because, while members of a State’s armed forces often receive training in the basic principles of IHL, the workforce behind the defence force – the defence industry – does not. Yet, just as there are implications for business personnel in armed conflict, 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 risks (including criminal liability risks) that come with it.

Of particular relevance to engineers and companies involved in the development of both civilian and military technology is Article 36 to Additional Protocol I, which provides for strict reviews (‘Article 36 Reviews’) to examine the lawfulness of a new or newly acquired weapon before its use in an armed conflict. Only a limited number of countries, including Australia, have enacted a formal Article 36 Review mechanism though. These reviews are not only applicable to what you might traditionally conceive is a weapon, but also in cases of new technologies, such as artificial intelligence and machine learning, offensive space technologies or cyber warfare capabilities.

However, by the time Article 36 Reviews become relevant, the associated technology or weapon has already been developed. Instead, embedding IHL awareness and application further down the chain – in the earliest stages of research, design and development – would help to ensure that IHL considerations are “built in” from the outset. As Damian Copeland and Lauren Sanders write in their article on ‘Engaging with the industry: integrating IHL into new technologies in urban warfare’,

Cooperation with industry to give effect to the whole of development, design and use cycle incorporating IHL compliance is a win-win for militaries and industry, while enabling the promise of technology to deliver advancements in the more refined use of force in urban environments. … [A]ny technology developed and designed with IHL in mind gives effect to ensuring capability is limited in use for legitimate purposes only, and through incorporating inherent design limitations that factor in IHL requirements, supports prevention of misuse of new or novel technology in order to achieve the aims of IHL. This supports what should be the ultimate aim of any fighting force – to end the conflict as swiftly as possible while minimizing harm to the civilian population.

In this respect, there is much more to be done in – and achieved from – advancing IHL awareness in the defence industry.