Date of this Version
THE AMERICAN JOURNAL OF INTERNATIONAL LAW 103:409 (2009) pp. 409-445.
Since the first attempts by states to use law to regulate armed conflict, legal constraints have often failed to protect civilians from the adverse effects of war. Advances in military technology have usually not improved this situation and have instead made law even more distant and less relevant to the suffering of civilians in wartime.1 The massive, indiscriminate incendiary bombing campaigns against major urban areas in World War II spoke volumes about the irrelevance of fundamental legal principles and rules designed to protect civilian populations in wartime. Law and lawyers were in fact far removed, physically and operationally, from the cockpits of the United States bombers flying over Tokyo, whose aircrews were focused on surviving their missions. They struggled with limited information about their assigned targets and conducted their operations with rudimentary preflight instructions that directed them, for example, to avoid destroying the palace of the Japanese emperor but left them free to submerge entire residential areas of the city in a sea of flames.
Fifty-six years after the war with Japan, the United States began a military campaign against a new enemy, the Taliban regime in Afghanistan. In contrast to World War II and the human aircrews over Japan, this war on its first night found a robot, the Predator MX-1 (an unmanned aerial vehicle, or UAV), surveilling the roads leading out of that country’s capital city, Kabul. The Predator was equipped with missiles that could be fired by a crew thousands of miles away in the United States controlling the vehicle via a satellite link. It appeared to have an opportunity to kill the fleeing leader of the Taliban regime, Mullah Omar, together with his closest cohorts. The legal office at the U.S. CentralCommand(CENTCOM) reportedly raised various concerns about the air strike, including the likelihood that it would cause excessive civilian casualties, and the attack was aborted.2
The aborted 2001 Predator attack over Kabul involved a previously unimaginable level of safety for the faraway crew conducting the attack, an aircraft that could “loiter” over targets unimpeded by the limits of human pilots, and an extraordinary level of legal review for an air strike in progress. The attack thus demonstrates several key aspects of a new era of warfare made possible by recent advances in remotely controlled or semiautomated “virtual” military technologies.3 This article examines the way these virtual technologies are purposely expanding important military capabilities while unintentionally transforming modern military operations, military information resources, the structure of military organizations, and the role of lawyers within these organizations. Unanticipated applications of virtual military capabilities are creating unprecedented levels of transparency and are unexpectedly making international law more relevant than ever to armed conflicts. This new relevance especially bears on longignored or easily manipulated legal principles and rules that bar attacks on legitimate military targets if those attacks are likely to result in excessive or disproportionate civilian casualties. Such principles and rules are now gaining unheard-of traction and renewed meaning as the new—and very real—virtual era dawns.