Applying the Law of War to 21st Century Warfare | Col. Winston Williams
Tuesday, March 1, 2022 | Room 105, Berkeley Law
Event Video
Event Description
War has returned to Europe. Russia has invaded Ukraine. What is the role of law in regulating 21st Century conflict? Colonel Winston Williams, the head of the law department at West Point, will address these and other contemporary issues arising from the interaction between law and armed conflict.
Panelists
Winston Williams is a Colonel in the U.S. Army and an Associate Professor in the Department of Law at the United States Military Academy, West Point, New York. Upon graduating from Florida A&M University in 1998 with a B.S. in Civil Engineering, Colonel Williams was commissioned as an Engineer officer and served as a platoon leader with the 44th Engineer Battalion, 2nd Infantry Division, Republic of Korea. He also served as an Executive Officer for D Company, 35th Engineer Battalion, Fort Leonard Wood, Missouri. After attending law school, Colonel Williams transitioned into the Judge Advocate General’s Corps in 2004. Since becoming a Judge Advocate, Colonel Williams has served in a number of legal positions including: Chief of Administrative Law, 82nd Airborne Division, Fort Bragg North Carolina; Trial Counsel for 3rd Brigade, 82nd Airborne Division, Tikrit, Iraq; Senior Trial Counsel, 82nd Airborne Division, Fort Bragg, North Carolina; Senior Operational Law Observer/Controller at the Joint Readiness Training Center, Fort Polk, Louisiana, Professor of International and Operational Law at the Judge Advocate General’s Legal Center and School in Charlottesville, Virginia, and Chief of Administrative and Civil Law for 18th Airborne Corps, Fort Bragg, North Carolina. Colonel Williams holds a LL.M in Military Law from the Judge Advocate General’s Legal Center and School, and a Juris Doctorate from the University of Tennessee College of Law.
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[YOO] Okay, let’s uh let’s get started. It’s really a great pleasure for me to welcome Colonel Winston Williams from West Point to the law school. Um, I wish we could claim the power of prediction that we invited him to come speak at the outset of this terrible war in Eastern Europe, but it was scheduled almost a year ago for him to come today. But he’s had to change the topic of his talk because he was going to come originally speak about the laws – Law of War of the 21st century and, uh, he’s obviously going to devote most of his remarks to Ukraine so, uh, what was he going to, uh, give, uh, some remarks and then, um, he said he would reserve about 25-30 minutes for questions from all of you. Just briefly, his biography: he’s the head of the law department at West Point but he started out actually believing in real things like materials and engineering. He was an undergraduate engineering major at Florida A&M then, after serving in the military, he went to law school and then rejoined the military as a JAG attorney, went to the University of Tennessee for law school, and then received an LLM at the University of Virginia – Charlotte’s – oh not the university of – the Charlottesville JAG school, um, and then from that point he joined the law faculty at West Point. Uh, he has been an instructor there for many years with – now the dean of the law department, and so he’s been – I just want to say thank you for coming, uh, also thanks for all the time you spent with our students, uh, yesterday and today and, you know, the faculty. Iit’s a great, uh, pleasure for us at the law school to build this relationship with West Point, uh, Colonel. Let me turn it over to you.
[COL. WILLIAMS] Thank you, thank you. Thank you so much and, uh, and I’m really, really happy to be here. Good afternoon, uh, it’s great to be back here at UC Berkeley, and I’m honored, uh, by this opportunity to talk with you today. On my last visit, I was here, uh, two – a little over two years ago, and I was supposed to present in the class but uh that was, uh, inhibited by the rolling blackout, um, so that was, uh, that was 2019 – in the fall of 2019 – and of course the pandemic has certainly slowed down a lot of these types of engagement, and I’m really excited uh to be back here today to share some thoughts with you.
And before I get started, I do have a couple of things that I’d like to do: First, I am here in my personal capacity, um, and toda,y uh, the – the views expressed in this talk represent my personal views and do not necessarily reflect, uh, those of the Department of – Defense Department of the Army and the United States Military Academy we’re going to talk a lot about a lot of issues, but I’m just going to provide my own personal uh views on that and I don’t want to give the impression that I am espousing some type of DOD department of army policy and of course as it relates to the Ukraine it’s a very developing situation um there are a lot of a lot of things that are happening it and uh I’ll be able to provide some some thoughts on that um and when I got when I, you know, we planned this visit and I really enjoyed meeting with the law faculty, meeting with law students here. We planned this visit over a year ago, and and even as of maybe three weeks ago when I started writing my remarks I had a certain, uh, presentation prepared today and I’m gonna get into that too. I’m gonna talk about, uh, approaching applying the Law of Armed Conflict – Law of War to future, uh, 21st century warfare, uh, but I’m also going to have some thoughts that I’d like to share on the current conflict, uh, as it relates to the Law of War.
Now, before I get started with talking about the application of the Law of War uh to future warfare I’d like to give a general overview of the law of war when it applies in the various treaties that are relevant to our discussion today um the law of war is a pretty broad area it’s also it encompasses a lot of treaties but it encompasses a lot of history too as it relates to the law of war so I’m going to address some of the treaties that I think are important some of the principles that we have to understand in order for us to get into it and mainly I do that so that I’m not just throwing things out there that you don’t understand and uh kind of uh maybe losing losing your attention so when we think about the law of war when I whenever I give a class about the law of war I divide it up into two areas use ad bellum which is the legal basis for engaging in warfare and then use envelope the law in war the laws that govern the actions in warfare when we think of use at bellum uh that’s really codified in the UN charter and you’re trying to mandate that all member states resolve their their disputes peacefully and refrain from the threat or use of force against the territorial integrity or political independence of a of any state, but there are exceptions to that when I talk about states throughout this particular talk when I say state that means country that means nations it means state parties to these different treaties and these conventions and these charters. So when I say state – it is a state party to be unconvinced that the UN charter in this situation there are exceptions under the UN charter where a state may use force against another state uh one of the exceptions is if you get a chapter seven action under the UN charter a uh a you’re in security council resolution that allows you to that allows you to use force uh did we saw this in Libya in unscared 1973 uh for that particular conflict but if you have that’s an exception so if there’s a UN security council resolution then that state can use force that’s one exception the other exception is article 51 if a nation state if a state you know is the victim of an armed attack then they can respond in self-defense so Article 51 salesman so those are the two exceptions that allow a state to use force against another state so that’s using that you said and I don’t really cover much of that today but that’s a basic understanding that’s in the UN charter um that that that prohibits the use of the threat of use of force now use in bellow that’s what I’m going to talk a lot about uh today and that’s the the rules in war the law that dictates how we fight how we target how we detain and use envelope is codified in the Geneva Conventions uh Geneva missions one two three and four and the additional protocols additional protocol one and additional protocol two so Geneva Convention 1949 the additional protocols 1977. now the United States is not a party to their signatory but not a party to additional protocol one or different protocol too but a large portion of those particular different protocols are customary international laws so in addition to the law that is codified we also have customary international law and customaries law also dictates how we um engage in warfare the rules of war and rules of war and customer international laws develop you know consistency practice done out of a sense of legal obligation opinion of yours so that’s customary international that has developed too so there are aspects of the law of war that apply in warfare that regulate warfare that are customary international law and then the third part that I want to talk about before I get into the substance is conflict classification so in the Geneva Conventions uh one of the one of the one of the most important parts is what we call common article two and common article three and common article two applies to state on state conflicts the Ukraine and Russia that is what we call a common RPC conflict where two states two countries are engaged in warfare and that’s important it’s important to kind of set that because in a international conflict all the Geneva Conventions apply all four Geneva Conventions and additional protocol one so POWs that’s a big deal uh somewhat like a combatant getting pow status so you have pow status in an international conflict so that’s common article two state on state now common arc of three conflicts that is a state versus a non-state actor so in Afghanistan United States forces against the Taliban that is a common article three conflict right so that’s against a non-state actor so whenever we’re engaged in conflict against a non-state actor uh that common article three applies and not all the Geneva Conventions do not apply so you’re limited to the provisions of common article 3 and customary international law and the law targeting uh still applause there and I’m going to talk a lot about the last 20 years of warfare we think about the wars in our Iraq in Afghanistan those have been non-international conflicts those have been commonality conflicts because they’ve been between the US and the US and allied forces against the non-state actor and even the conflict in Syria the aspect of you know United States versus ISIS that’s going to be a non-international property so it’s just important to kind of understand uh that has been the perspective for 20 years and that’s the lens through which we have applied conflict and I’m going to talk about the implications for that looking forward into future warfare so the character modern warfare is changing the development and employment of emerging technologies on the battlefield will continue to impact how and where wars are fought in addition to legal engagements on land air and sea space-based capabilities and cyber weapons have opened up cyber space and outer space domains for use and on conflict as combatants seek to gain a competitive advantage across these domains the existing law seeks to keep pace and now the law was codified again Geneva Conventions 1949 and judicial protocols in 1977 and this is the law that we apply today and is changing character warfare so while there may be a need for new treaties uh and international agreements amongst the states to respond to the evolving character of modern warfare these states may be reluctant uh to add restrictions to the extant law in an era of great power competition this is not to say that this existing law is insufficient to regulate modern warfare however it is a recognition that much has changed and continues to change and the question is how will legal practitioners apply the existing law of armed conflict to modern warfare that is multi-domain and machine enabled in this talk I’ll provide a quick overview of the law of war as codified in the existing treaties that highlight key principles that form the foundation of its application to modern warfare then I will discuss the evolving character of warfare and the influence of the past 20 years of non-international conflict and emerging technologies and I’ll talk about the legal implications of those for future warfare and I will close and talk about a way forward and we can talk about the implications for the current conflict in the Ukraine so the character warfare has changed drastically since the ratification of the Geneva Conventions with additional protocols in a district customary international law in addition to those three discussed American national laws they formed the regulatory framework for use envelop the law and warfare but invited in these treaties so these treaties are not just developed out of full law it comes from a history of the application of the law of war and there are some principles some basic principles that have been codified in these treaties that have existed for quite some time as we as nations have sought to regulate warfare so inviting these treaties are basic principles that make this area of law resilient so how do you take the extent law that’s from the 1940s and the 1970s it applied to warfare when you have artificial intelligence and autonomous weapons so these principles make it resilient and adaptive uh to the changes in the conflict environment now many scholars in this area see the law of war as a balance between military necessity and humanity military necessity is one of the key uh principles that forms the foundation for the long-run conflict military necessity justifies the use of all measures needed to defeat the enemy as quickly and efficiently as possible that are not prohibited by the law of war the principle is balanced against the principle of humanity and humanity forbids the infliction of suffering injury or destruction that is not actually necessary for the accomplishment of legitimate purposes one can see that see this balance in other principles in the law of war so when you take that foundation the balance between military necessity what do we need to do in warfare and humanity not taking measures that are not necessary right there’s a balance there and what flows from this balance or other um principles so we think about you know one of the principles is the principle of distinction where we have to distinguish between combatants people that are engaged in warfare and civilians individuals who are not engaged in warfare when we have to distinguish between a military objective and a civilian object so a military example of a military executive is a tank right the enemy’s tank I can target that thing there’s a mill there’s military necessity there it is a military objective I can target the tank but a school is different the school is different unless that school is being used by the enemy to attack horses that school is a civilian object so that’s distinction um also the principle of proportionality so that even when we’re going to engage that tank if that tank is in the middle of a civilian populace we have to balance between the advantage gained by targeting that tank and the incidental loss of life to the civilian population so that’s another principle but you can see in these principles the balance between military necessity and humanity so it really informs how this area blocking applied and finally the principle of unnecessary suffering prohibits the employment of weapons projectiles and methods of warfare that other nature that cause causes superfluous injury like glass bullets like something like that that’s going to cause superfluous injuries or exploding rounds and things like that so um coupled with the application of these provisions the Geneva mentions an additional protocol these principles foster a legal regime that is adaptable so even if you were to add all the emerging technology you can see how you can still adapt you can still make that analysis what’s where’s the military necessity what what what what is the advantage that we seek here is it a legitimate target is it a legitimate military objective or is that a combatant and what is the balance to uh potentially like the personality to the harms of any populous so you know a couple so when we think about that however they also reflect but these principles also reflect a recognition of the nature of warfare so what is the difference between the character of warfare and the nature of warfare so briefly war and you know when we read Clausewitz and I took this this is the definition that this is a talk really that I came up with when I took you know statements from legal from uh military history scholars like Clausewitz and I combined what what what his thoughts were with some other thoughts and and briefly I would say the nature of war is war is a violent contest of wills with an uncertain outcome seeking to achieve a political objective that is the nature of warfare and that does not change and basically you know based on my what I’ve what I’ve seen when we say character warfare changes but the nature of warfare is uncertain it’s violent it has a political objective that remains unchanging but the character warfare is linked to how and where wars are fought and obviously uh this changes it’s my belief that the nation warfare will remain unchanged this idea influences the application of the law of war to future armed conflict and going forward there is an important balance between predicting the challenges that combatants may face and being responsible for being responsive to the actual challenges that they face so we we we’re still going to try to predict what type of challenge we’re going to face but we also have to be at least responsive to the challenges that actually present themselves on on the battlefield specifically one of the things that I I say is you don’t want to craft a legal issue in a in a way that presupposes an answer right you don’t want to ask the question that you don’t have answers the other thing um one thing that you know particularly on a deployment uh before our deployment prepares to deploy and you think of a hard question right a hard question that you may face you say well oh that will never happen well that’s exactly what’s going to happen um so you don’t want to run away from hard questions you always want to be prepared to answer or be prepared to have an approach to answering those types of questions and what we have to do is analyze the key areas that are sparking change in the character warfare while remaining cognizant of this enduring nature in other words the fog of war is real and the uncon in the accompanying uncertainty requires an effective and efficient balance between military and assassin and humanity and while there may be numerous developed developments that affect the application of the law of war to the evolving character warfare there are two areas that I would like to cover today the first is the influence of legal policies and interpretations based on the past 20 years of war of non-international armed conflict that’s the first area I’d like to talk about in the second area is the impact of emerging technologies on modern warfare so the start point for applying my analysis of the law of war is looking back at the past two decades of non-international conflict and the application of the law to those types of conflicts so last year uh the former justification for the Army General Pede he published an article titled “The 18th Gap: Preserving the Commander’s Legal Maneuver Space and on Battlefield Next.” And I thought this was a really really enlightening article um he said by way of background the 18 gap arose as a result of this a study that the army that the army did they identified 17 gaps and capabilities I said because we’ve been focused on a counterinsurgency counter counterterrorism type missions we have reached we have uh we have developed the capabilities to respond to that by by developing those capabilities we created 17 gaps in our capabilities and some examples of these gaps include long-range precision fires next generation combat vehicle network capabilities and vertical airlift so those are some of the gaps that they identified there was 17 and then General Pede identified the 18th gap and so General Pede and his co-author they wrote the popular misunderstanding of modern warfare fighting imagines highly precise smart bombs winning the battle if not the war generations of soldiers including our most senior leaders have consumed a persistent diet of highly restrained policy premise on self-defense in the use of legal force fighting terrorists who hide amongst the innocent civilian populace has rightly demanded such a strength so basically that’s their encapsulation of the past 20 years they further state that commanders will need to intuitively know and confidently apply the actual rules of war unhindered by the lingering hangover of the counterinsurgency type rules of engagement and this article goes on to lay out the challenges with using the past few decades of warfare as a template for applying the law of war to future warfare and it’s important to understand that the character worker understand the character of these types of conflicts and when we were involved in those conflicts. We had air superiority we had the ability to conduct to gain a lot of information and conduct precision type operations for citizens strikes um the United States and allied forces they dominated the air space which allowed these forces to track and target enemy forces with little opposition this also allowed coalition forces to engage identified high-value targets with a high degree of precision and certainty. Second, cyberspace was not not a contested domain and access to and deployment of cyber capabilities remain unfeeded. Third, the past 20 years has witnessed the emergence and the use of space-based capabilities so we have these space-based capabilities that we’ve developed over the last 20 years which have become part of our military operations and according to uh the department of defense principal director for space policy space-based capabilities are vital to the US united national security in today’s in today’s era of destabilizing challenges from Russia and undeniable strategic competition with China he further stated that traditional armed conflict will likely extend to space so consequently the character warfare over the past 20 years uh for the US has featured the dominance in multiple multiple domains air, cyberspace, and dare I say outer space but the US armed forces recognize that this will not always be the case and they develop multi-domain operations the multi-domain operations concept of recognizing that these domains will be contested so we think about multi-domain operations we’re talking all those domains outer space cyberspace air sea land recognizing that those will all be contested so the doctrine that’s being developed based on base based on this concept is looking at not having the dominance in airspace so it’s it’s a developing certain concept and it’s also enabling uh you know the army to develop further doctor based on that so and when you look at that development when we start talking about developments in space and cyberspace and all these other land-based capabilities emerging technology is going to feature a prominent role in that competition so emerging technology is like autonomous weapons drones are artificial intelligence and big data and their proliferation have proven to be novel aspects of the way wars will be part of you all of these enablers pretend the conflict environment that is beyond the imagination of the drafters of the Geneva missions and additional protocols autonomous and semi-autonomous weapons systems and artificial intelligence are two that I’d like to discuss I’ll spend a little bit of time talking about those two types of weapons now according to a March 8, 2021 report from the United Nations panel of experts on Libya fully autonomous weapons systems were deployed in Libya during that conflict the cargo 2 the report stated was programmed to attack targets without requiring data connectivity between the operator and munition in effect this report says it stated this is a true fire fire forget and find capability the effective use of this technology by non-interest in a non-international conflict by non-state actors foreshadows future uh use even in international armed conflicts between two states autonomous weapons systems like the cargo change the perspective of air superiority airspace once dominated by fighter jets would have to account for smaller lethal weapon systems operating at lower altitude in addition to legal autonomous weapons systems artificial intelligence is also shaping the character warfare army creatures command stated that the speed of multi-domain operations combined with the scale of fighting a mere period requires decision making taken beyond human cognitive capability human cognitive ability consequently the character warfare will character wars will involve an evolutionary pace that is unlike past conflicts and victory in war as a contest of wills between pure adversaries could be determined by technological capabilities big data is a critical important critical component of emerging technology it fuels artificial intelligence and enables machine learning this is another complexity as peer competitors may seek to acquire manipulate and destroy data below the threshold of war to gain an edge in the subsequent conflict this highlights another aspect of future war which is action below the threshold of war to gain an advantage in warfare so pure competitors competing below the threshold for the law upon conflict does not apply but to gain some type of advantage in a subsequent war is important is an important aspect this is competition important aspect and it does not come within the purview of the law of war because it’s below the threshold war so as we can see the complexity of associated with future warfare will be a challenge for the application of the law of war and I’ve identified some of those challenges but we have to remember you know there are other challenges that could present themselves that we cannot receive it is hard to predict um how these emerging technologies will actually play out on the battlefield you know I recall and when I do a lot of things about world war one how the tank was used as a artillery uh our indirect fire capability so it wasn’t like a maneuver capability where one house used now using wars so even though you have emerging technologies you have an idea of how it’s going to be used but there’s no guarantees that it’s going to work out quite that way so with that in mind I’d like to provide a few thoughts on how to approach the application of war um the application of the law to future warfare and first I would say that the past 20 years will have an impact on future armed future conflict on the future conflict environment I do agree with this with the 18th gap article that by focusing on non-international conflicts and that type of character war we do have to refocus on and look at what we need to develop to face the next type of war but I would add one thing uh to that I would add one thing to that article is non-state actors have also evolved over the last 20 years non-state actors and their capabilities and their willingness to seek to gain an edge in unstable environments you saw that with ISIS and Syria where in a conflict environment you could see that a nazi after using capabilities I mean some of this emerging technologies is available to non-state actors so they have also evolved under the past 20 years of warfare and that is something we have to account for in this complex battle space that will develop where you can have state actors engaged in warfare but also non-state actors potentially seizing opportunities to gain power or gain territory the second part is I I think it’s important to realize that no one can predict when and where or how the next war will be bought and uh three weeks ago I didn’t think that Russia have made or maybe four weeks ago I didn’t think Russia would invade the Europe um I would you know so maybe some people saw that coming but I didn’t many people did not so you really don’t get to decide or predict the next war and to be prepared and to be flexible for that but also having a body of law that can respond to that is very very important um so I admit that when I sat down to write these remarks a few weeks ago that was not that was not on the table um you know it’s certainly unpredictable so war’s unpredictable and outcome is uncertain the third point I’d like to make is that the legal issues presented in the conflict environment where decision making will exceed human cognition are very hard to predict yet that should not inhibit our ability to think broadly about applying the law in this environment consequently the way forward involves dialogue amongst legal scholars practitioners and judge advocates it should include practitioners from both government and non-government organizations my recent experience working with with the libra institute’s book series so I’m one of I was one of the managing editors of our Libra Studies ebook series and where we you know we bring together many different people from different perspectives in a conference um I’ve learned that those different perspectives enhance my understanding of the application of war and I firmly believe that thoughtful disagreement their pluralistic dialogue can enable us to develop a flexible approach to future legal issues and strengthen our ability to predict challenges presented in tomorrow’s conflict environment so it’s very interesting um I i enjoy bringing people together that don’t agree with each other and you learn a lot from thoughtful disagreement um it keeps it breaks us out of our echo change it gets us to think broadly and that doesn’t mean that if I’m in a room with someone who disagrees with me that I’m going to change my position but it does broaden my perspective so I think thoughtful disagreement will enhance our ability to be adaptive to the challenges that we’re going to face so in conclusion I’d like to point out the relationship between the character and nature of warfare has profound implications for the application of the law of war to future armed conflicts it is an evolving character of war is the evolving character of war that creates the complexity and challenges us to think differently about how and where wars are falling emerging technologies offer significant advantages to parties to the conflict and seemingly offer more to targeting and other legal engagements yet I do not believe that this technology will lift up all the war is the nature that leads me to the conclusion that warfare will continue to be fraught with uncertainty in order to keep the law relevant the effective and efficient balance between military necessity and humanity must remain paramount in applying the law maintaining this balance is critical to the resilience of the entire legal framework framework that regulates and fosters compliance with ever-changing conflict environment so with that I’ll take any questions that you have. Thank you.
[YOO] I’ll, um, call on people and please wait for the mic, uh, before you start asking your question. Maybe I’ll start, uh, with one question: Again, what’s your evaluation of what’s happening in Ukraine? Do you think that Russia has violated the two forms of law you set out jus ad bellum and jus in bello in going to war, and then in any aspect of the way they’re carrying out the campaign in Ukraine so under the UN charter as I stated earlier there are two exceptions that allow states uh to use force there is a union security council resolution that authorizes the use of force and then there’s also self-defense article 51. I don’t think any of those exceptions are present in the current current invasion of the Ukraine at all so I don’t think there’s a legal basis under you and charter which Russia is a party uh in that conflict so I think that you have to have those two exceptions and there’s another there’s another I don’t know if you can call it an exception but if if a country consents to uh another nations coming in to help them uh you know in a conflict and that’s also an opportunity uh to use force in another nations territory with their consent but that also does not appear to be uh present in under other discernment that’s sir name’s eric wright thank you very much for coming appreciate your words um when I was a platoon leader in Afghanistan doing operations and checking on my troops or whatnot I was very cognizant that on the other side out there there was a young Taliban leader who was doing the same thing with his troops and sort of it’s very important when when we get into a conflict that you’re aware of what the other side is thinking and a few things through their lens so with the current conflict in Ukraine viewing it through the Russian lens if we take your definition of war violent contest of wills leading to a political outcome their their conflict their contest of wills is with NATO it is not with Ukraine and I’m interested in your thoughts on the potential for escalation um of the conflict because the the uh the contest that the Russians see themselves in is with NATO it’s it’s not with Ukraine um and uh NATO’s are supplying the Ukrainians with shoulder-fired weapons is going to exactly very very high toll and there’s going to be a lot of pressure on Russian commanders to escalate when uh when things don’t go well so just interested in your thoughts on the uh the most likely forms of escalation and potentially the most dangerous moments of escalation thank you so it’s a very it’s it’s really hard to predict um to understand what is the what is the real political end of Russia you know the actions of the invasion seem to to really uh throw conventional wisdom you know to the wind um so I just don’t know I don’t know the the answer uh to that question um I do think that one of the I do know that early on in the conflict one of the demands from uh from the from Vladimir Putin was to guarantee that Ukraine never joined NATO so to your point I mean I think uh that was one of the things one one of the the points earlier in this conflict so maybe that kind of supports what you’re saying maybe it is between Russia and NATO uh but I think that the international community does not want this to escalate because um it could be um it could be a very it’s a very very challenging dynamic situation I don’t think there’s there’s a it will there’s a an asset for any escalation whatsoever uh at this point and it’s probably like the most dangerous uh situation I mean you can imagine um some of the things that could happen in that scenario that would escalate uh so so currently and and a lot of things uh this is still developing so and I don’t know um you know at this point where what what next next week is going to look like so I do think that that’s going to be a challenge going forward and as our leaders now we have the state of the union address tonight and the president may give some more um ideas on what the US approach is going to be so I look forward to watching that uh but but really uh I you know this is really uh it’s hard to predict it’s a very very fast development situation thanks for the question um thank you sir hold up wait for the mic
[AUDIENCE] Thank you sir for coming here today. So earlier you mentioned that there is a distinction between article 2 and article 3 with regards to how forces are fought so given that Ukraine has effectively declared martial law where all men between the ages of 18 to 60 can now carry an AK and go fighting Russian soldiers. What do you think the Russian perspective is and how are they gonna approach balancing between article two and article three?
[COL. WILLIAMS]: That that’s that’s a great question um so there’s a there’s a part uh so this is this is a state-owned state um on conflict so come on well the Geneva mission three applause and a part of Geneva Convention three that gives POW status to civilians is in a situation where there’s a level on mass the spontaneous spontaneous uprising against an invading force so you have a territory of land that is not occupied by the enemy and it’s being invaded so those individuals that take up arms against the Russian forces that are invading that will be they’ll constitute a levee on mass and in that situation the individuals that are detained would get power status pw status is important because in a conflict if you get power status you cannot be punished for your world life acts uh you get repatriation that determination of conflicts at the company so those individuals that are responding to an invasion of unoccupied territory and they don’t have time to organize uh they potentially could get protection under a level banks I still think it would be a common article uh to conflict as it relates to that but if they don’t get POW status then they would they would not um they would not be entitled to you know repatriation and they could be you know so so then that if they don’t get you to be status then they they would have to be they could be detained um you know after even maybe even after the conflict is over but uh so that’s one of the aspects of this now the other aspect is direct participation in hostilities so it was civilians taking a direct part in hostilities that they can um then they lose the civilian protections but I didn’t read that that they were arming the civilians to to resist but I just want to point out the levée en masse aspect of that well those individuals.
[AUDIENCE] Thank you again for coming, a couple questions so first you spoke a little bit about Russia violating war crimes and so I’m curious if Belarus is in a similar position or kind of how what that means for them if they’re inviting soldiers if they’re sending their own soldiers kind of just the legal aspects of that and then a totally separate note your thoughts kind of on the ai unmanned warfare in the next 10 20 years and what that could mean will mean and any thoughts on that subject in general.
[COL. WILLIAMS] Oh great great questions. I I’m not I don’t know the I don’t know Belarus’s role in this particular conflict um yeah that’s that’s an aspect of the conflict that I don’t know much about what is the Belarus relationship to Russia uh so I don’t know I don’t know what that would be um but certainly you know violating territorial integrity using force any nation that doesn’t that’s going to be a violation but I just don’t know about Belarusian’s role at that point now the use of autonomous weapons and ai I think that it’s it’s it’s I think it’s a certainty that you know countries will use autonomous weapons and artificial hotels going forward and this uh so what does it mean I think it’s going to be a lot for we think about air superiority in the past where you know you dominate airspace with fighter jets but now if you have these autonomous weapons you know below on that level so you’re not going to have the unimpeded ground movement that you would have if you have air superior so I think that’s going to be a challenge and then how do you counteract uh that is also going to be a bit of a challenge and ai I i think that ai is going to have a lot of applications on the battlefield this emerging technology uh to gain and process data uh it’s gonna it could aid in decision making uh in the future uh these big data we have a we have a current project at the department of law and leader institute we’re looking at big data and um so that’s a very interesting area uh to look at but a lot of big data fuel machine learning a lot of the knowledge that powers these these particular platforms but you know some of the question is a lot of the the debate out there right now is what is the role of humans in autonomous weapons what is going to be the standard how do you apply the long-run conflict to an autonomous weapon um without a human in the loop and who is responsible who bears that responsible when it doesn’t work properly or when we recklessly deploy them uh so those are all questions uh for the law from conflict to really wrestle with and I don’t and I think that it has to you know if you’re going to answer that question you really have to get very very specific with the facts and what if you’re going to develop a hypothetical develop a hypothetical and and work through it because I don’t think you say well you can never use an autonomous weapon that doesn’t have a human human and blue uh but you also you you know maybe maybe you could make a policy where you always have to have a human in the loop and that would be generated maybe by policy reasons and not necessarily the sense that you have to do that in compliance with them question before you which is to follow up on his question which is um reports from the from Ukraine are that the Ukrainians are using uh fully autonomous drones they bought from Turkey and they’ve been extremely successful because right as you described it they’re harder to shoot down by Russian fighters do you think that Ukraine is justified in using these kinds of fire and forget weapons where there’s no human being pulling the trigger they’re just sent out with a target they’ve been acting autonomously so when you look at so typically when we you know we analyze a situation like a situation where where you have a an autonomous weapon that you fire and then you forget and if that weapon is capable of distinguishing this first the first principle there is distinction can that weapon distinguish between a military objective and a civilian object and if it can do that and if it consumes between combatants and and civilians then there’s you know then there’s there’s really not a problem there it’s when the fire forget weapon can’t do that then if it’s just if it’s something that fires and you fire and forget then it just attacks innocent civilians or attacks civilian objectives then that would be the equivalent of an indiscriminate attack um so that’s so distinction is the first thing but also proportionality I think proportionality is going to be um a challenge right because if we have identified you program this autonomous weapon and it just goes out and it’s following let’s say that chair wherever that chair goes that autonomous weapons is going to follow it had that autonomous weapon been programmed to balance proportionality to make that determination as to when did that autonomous weapons system call off the attack because that’s the long term important because we do have to balance um under proportionality the principal personality it’s it’s an additional protocol one um because if we don’t do that then that then that’s I think where it becomes where you you probably will need a human in the loop to engage in that type of imbalance or unless it’s programmed to call off the attack if civilians are present or if a certain amount of speeds are present or if there’s a swing object that is not targetable that might that would be damage and damage that would exceed uh personality balance sorry sir my question is regarding uh mercenaries or contractors and how they’re viewed under international law um I’m sure it’s not as simple as you know that a actor can hire contractors to carry out their you know uh war but have there been situations that have presented themselves that you’re aware of where state or non-state actors have tried to use some of those proxy forces in order to accomplish their ends and how the uh I guess international legal field has dealt with them so for proxies um there’s certainly if they are a non they’re a non-state actor um so if we if we if well first if you have let’s say you have if they’re incorporated if they’re incorporated into the fighting force they’re part of the private force that’s a different analysis but they’re they’re not incorporated to the fighting force like proxies um then that’s going they’re not going to get all the protections under the Geneva Convention three of their they are not they’re not part of the organized force they’re not going to get those protections so if they’re independent contractor engaged um in whatever they’re engaged to do um again they’re not going to get those that that uh protections but proxy warfare I think that’s another aspect that I did not cover in future warfare I think working through proxies um is going to be another aspect of the of the battle space and again if they are civilians and they are engaged in warfare they lose that protective status they take a direct part in hostilities then they’re going to lose protective status they are targetable and upon uh detention they’re not they’re not going to get a pow status sir I wanted to first thank you for joining us here today my question was um keeping the cyber domain in mind is there any legal provisions or justification for a state actor to go to war over a state actor attacking a non-state actor and the the specific example I can provide is um with Sony’s release of the movie the dictator you had North Korea conduct a cyber-attack on the Sony headquarters in the United States you know it’s a Japanese company headquartered in the United States and there’s a lot of gray area there so a non-state act is the non-state actor conducting the cyber-attack a state actor conducting in a cyber-attack on a non-state actor i think that that would be difficult to to trigger an article 51. so the standard is going to be armed attacked under article 51 of the UN charter so that’s a high threshold and so artificial one so that’s going to be a high bar armed attack uh to me in that circumstance so it’s going to be very very difficult because remember it’s that’s the threshold and it’s interesting right because when the uncharted was drafted you know cyber and cyber warfare was not was not a was not necessarily envisioned um but that’s going to be the threshold it’s pretty high bar um r51 under the uncharted so so I I don’t think you get there with that particular um that particular cyber operation yeah I guess uh my uh two-part question is slightly related to the previous one and knowing I know nothing about this domain but I’m curious if you can help sort me out and maybe some others on when the line is crossed if you can draw a line between activities that like supplying weapons to Ukraine uh supplying ammunition um and supplying intelligence so let me dilate that just a little bit more at what point do those activities cross the line to make you a co-belligerent so on the one hand you know we hear about uh we’re supplying lots of aid what the European union is then you also hear reports that Ukrainian pilots are going to fly polish aircraft out of polish bases possibly then finally the one thing I’ve read in the press and I don’t know if it’s true because who can tell right now is that our own uh military lawyers are debating to what extent we can share intelligence with Ukraine or whether that involves us as being a cultural religion so what I’m really getting to I guess is um how do we calculate the co-belligerent status as it and and the the case of the the hacking we’re in a world now where it may be no longer makes sense to say that the dividing line is simply is a a kinetic activity is the eucharist we use these days right so so I think the threshold in the Nicaragua case um when it comes to at what point do you become a cold belligerent and I think there’s a standard there effective control uh type standard so it’s not you don’t hit the point based on that case just by supplying uh weapons uh supplying things to a a a a party to a conflict so you don’t quite you know you know get there I don’t know about the the Ukrainian launching uh planes from uh from Poland uh but there is there’s a there’s a statement and it is going to be merely supplying weapons uh supplying those types of assets will not trigger uh that that does not make you a cold religion but it’s going to take more um more it’s going to take more than that
[AUDIENCE] Hi sir, thank you for coming today. We’ve talked a lot about technologies different technologies AI, UAVs, um I’m interested in with Vladimir Putin putting the uh his nuclear deterrence forces on high alert very recently interested in hearing your thoughts on the lav war concerning nuclear technologies.
[COL. WILLIAMS] Yeah it’s uh nuclear technologies that exceeds my my really they exceeds my understanding of the law of war nuclear weapons are are certainly um a a you know it’s a it’s a weapon of you know I you know there’s always a debate whether you could even even the current law of war as it is taught about can you lose use nuclear weapons and I think that is that that is sort of an area that that is complicated um and it’s certainly not something that that we would like to see this conflict athlete too uh but when it comes to nuclear weapons and minds of war I mean that exceeds my understanding of the law of war given the nature of nuclear weapons at what point do you hit the threshold to say that this is proportional right I mean it’s a it’s a very very difficult uh you know question but you know you’re going to say we’re going to launch a nuclear weapon um you know even though you can just even I’m not a nuclear weapon at this particular military objective but how do you balance the personality of that given given the fallout and things and things like that so that’s a good question and I guess I’m going to be honest and say that I don’t know I don’t know.
[AUDIENCE] Sir, um so you talked about emerging technologies and we see during the Ukraine crisis now that FaceBook and YouTube they have limited Russian media and whatnot and then also I can see how emerging technologies cross borders like uh Russians might be using the servers here in the United States to analysis big data and stuff like that and I was wondering how do you apply the law against private companies private tech companies who are used as a platform to conduct those illegal wars or unjustified warfare?
[COL. WILLIAMS] So is the question um is so if you don’t repeat the question um because how do you how do you apply the law against private technology companies who are helping illegal warfare or unjustified attacks so so the some of these platforms are being used as enablers right um you know it’s interesting I don’t know if so if at what point the question becomes at what point can you direct military assets against something like that and again I think that’s going to be a high bar too where you say that that is a military objective because it is all intensive purposes a civilian object um so I think it’s going to be a high bar and uh and I think it is a novel question uh but at the end of the day we you know you go back to the basic principle of distinction we’re gonna say that’s a civilian object those are uh civilians and at what point do their activities rise above the threshold the direct participation hostilities that’s going to justify taking action at what point does that asset become move from being a civilian object into being a military objective um so we’re talking about military objectives um you know the way we define the military objective is something about its nature location purpose and use that makes it uh that that makes it fun it provides a definite advantage to uh that particular party to the conflict so something like nature the nature of a tank you can you can you can attack a tank location bridges uh but bridges are example of something by its location that makes it targetable um purpose and then you so use is what we’d be doing with ears at what point does that use rise above the threshold uh to make it a military objective and with those types of technology and those types of capabilities and any type of cyber capabilities um it’s hard it’s just really really difficult to think about that in the vacuum but but that’s the same that’s going to be the standard that is applied uh when they’re analyzing those types of situations.
[YOO] Maybe one more question yeah and uh
[AUDIENCE] Hi, thank you for being here. I was wondering how you gauge the success of the law of war because it seems like bad actors pay a little attention whereas good actors would likely follow the spirit and principle of the law of war regardless of if it existed or not um especially in light of the recent conflicts I was wondering how you gauge its relative success or legitimacy uh and then moving forward um what would it look like for the international legal community to hold Russia to account for what it’s done in Ukraine?
[COL. WILLIAMS] So how do we gauge the success of and that’s a I think there are a number of ways to look at it when you look at how to apply how it affects policies that nations develop and sometimes you see in domestic legislation uh different countries of what they will restrict the types of operations they will not be involved in so sometimes you can see uh as evidence of the success of the law of war in domestic legislation but I think to your point about well well how does it actually impact actions on the boundary how does it really constrain the violence and in any given conflict you can you can see um you know actions that are probably violative that violate the law of war and the accountability mechanism is really um is what will kind of show um that this law is relevant that this law does matter so there’s a couple things there’s how does it actually guide behaviors on the battlefield got policies to how countries fight but also the accountability mechanism and I think that’s the point well how do we hold people accountable and there are multiple um tribunals there’s you know they’re the ICC um and so you have those tribunals but that’s that’s the hard part in the in a lot of these things it’s going to be the accountability mechanisms but we are beginning to see um in some instances where different countries uh have for example Syria as an example where individuals who engage in war crimes in Syria uh they they escaped from Syria and ended up in Germany while the German courts have been prosecuting Syrian war criminals uh under those circumstances so um I think that’s a I think that’s a good thing I think having a very flexible flexible set of accountability mechanisms will also keep help us in holding people accountable for law and war violations do I think the law of war has been successful I i think so I think so and I don’t necessarily look at what a country may do in a particular conflict and say uh where it’s not it’s not being uh successful uh I think it might be it might be difficult because not every actor in the conflict abides by the law firm conflict but I do think that accountability mechanisms you know can work um but it is very very very difficult particularly we’re dealing with a state actor
[YOO] Great well question uh bring us a great panel up speaker. Join me in thanking Colonel Williams from coming out to Berkeley and sharing his thoughts.
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