’Malicious armed forces have a lot of leeway’

Professor of Military Law Marten Zwanenburg is examining the law related to military and defense in his chair. For example, may military astronauts be made prisoners of war or do these "representatives of humanity" deserve protection? In his oration on Dec. 14, Zwanenburg will address the legal questions surrounding the use of new military technology.

Military use of new technology

What new technology is being used in military operations?

’All kinds of technology are of interest to military personnel. In my oration, I specifically address three types: space technology, artificial intelligence and biometrics. The latter involves, for example, recognizing individuals using behavioral and biological characteristics, such as fingerprints and voice recognition. Then there are many questions surrounding the right to privacy. When can you take data from people and under what conditions can you use or share it? There are not many rules around biometrics yet. That is not surprising, because it is quite new.’

Isn’t it dangerous that technologies are already being used while it is not yet clear what the rules of the game are?

’It is true that regulations are lagging behind. To some extent that is understandable: you have to know what something is before you can make proper agreements about it. The blinding laser weapon is the only military technology that has been banned in advance. You can permanently blind people with such strong lasers. The Americans were already far along in its development, but that weapon was seen as something not needed to achieve military purposes.’

How is that balance struck? After all, with any weapon you do harm?

’War law is finding the balance between military necessity, what is needed to win battles, and limiting human suffering as much as possible. Especially for the people who are not fighting along. In most cases, the effect of a weapon does not become readily apparent until after it has appeared on the battlefield and then agreements are made. For example, the use of cluster munitions has been banned and a treaty has been made on the use of landmines.’

What are the implications of this lack of clarity about the use of new technologies?

’For benevolent armed forces, it means that it is not clear in advance what rules they have to follow. That makes planning military operations more difficult. But for malicious powers, that’s precisely an opportunity to play with the space that’s available.’

Where do you see that happening?

’In space, for example, there are a lot of questions surrounding the military use of satellites. It seems that a few years ago Russia put a satellite into space that includes a small satellite that can attack. It is not yet illegal to put conventional weapons in space. The United States probably already does as well. You could say they are taking advantage of the lack of regulation in that area with this.’

Marten Zwanenburg will hold his oration on Dec. 14 at 4:30 p.m. in the auditorium of the Oude Lutherse Kerk in Amsterdam. The title of his oration is Athens’ Algorithms: law during military operations in light of technological developments.

How do you ensure greater clarity so that the ’benevolent armed forces’ don’t lose out?

’There are roughly two ways. One is to interpret existing law in such a way that you can use it even with new technology. The challenge is mainly to get agreement between states on that interpretation. Another way is to make new rules. Here, too, it is difficult to get agreement, especially in the current era and with international tensions. There is also an intermediate category: states can create non-binding directives. These are mainly political agreements that are sometimes turned into rules afterwards.’

What will you focus on?

’I focus mainly on interpreting existing law. Part of that is the so-called "harmonization of different areas of law." Under the law of war, for example, you can make military astronauts prisoners of war. But space law speaks of "delegates of humanity" who must be protected. When multiple jurisdictions apply, the question is: which rules do you apply?

What impact has the war in Ukraine had on this chair?

’It is of course very unfortunate that it took such a terrible conflict, but it has certainly brought more attention to my field. I hope it prompts us to think more about how we think rules should be applied and perhaps new rules. At the same time, with these relations it is difficult to talk about new rules, because just get the United States and Russia at the same table.’