States spend tens of billions of dollars each year to help implement humanitarian programs in conflicts across the world. Yet, in practice, counterterrorism objectives increasingly prevail over humanitarian concerns, often resulting in devastating effects for civilian populations in need of aid and protection in war. Not least, confusion and misapprehensions about the power and authority of States relative to the United Nations Security Council to set policy preferences and configure legal obligations contribute significantly to this trajectory.

In a guide for States published by the Harvard Law School Program on International Law and Armed Conflict (HLS PILAC), Dustin A. Lewis, Radhika Kapoor, and Naz K. Modirzadeh argue that it is possible — and, they believe, urgently called for — to arrest this trajectory and safeguard principled humanitarian action. In their view, short-term and ad-hoc solutions are less likely to uphold the humanitarian imperative.

Instead, the authors present a framework for States to reconfigure the relations between these core commitments by deciding to assess the counterterrorism architecture through the lens of impartial humanitarianism. The authors also identify key questions that States may answer to help formulate and instantiate their values, policy commitments, and legal positions in order to advance the humanitarian imperative and uphold respect for principled humanitarian action in connection with carrying out the Security Council’s counterterrorism decisions.

For at least a decade, States, humanitarian bodies, and civil-society actors have raised concerns about how certain counterterrorism measures can prevent or impede humanitarian and medical activities in armed conflicts. In 2019, the issue drew the attention of the world’s preeminent body charged with maintaining or restoring international peace and security: the United Nations Security Council. In two resolutions — Resolution 2462 (2019) and Resolution 2482 (2019) — adopted that year, the Security Council urged States to take into account the potential effects of certain counterterrorism measures on exclusively humanitarian activities, including medical activities, that are carried out by impartial humanitarian actors in a manner consistent with international humanitarian law (IHL). By implicitly recognizing that measures adopted to achieve one policy objective (countering terrorism) can impair or prevent another policy objective (safeguarding humanitarian and medical activities), the Security Council elevated taking into account the potential effects of certain counterterrorism measures on exclusively humanitarian activities to an issue implicating international peace and security.

In this legal briefing, HLS PILAC authors aim to support the development of an analytical framework through which a State may seek to devise and administer a system to take into account the potential effects of counterterrorism measures on humanitarian and medical activities. Their primary intended audience includes the people involved in creating or administering a “take into account” system and in developing relevant laws and policies. Their analysis zooms in on Resolution 2462 (2019) and Resolution 2482 (2019) and focuses on grounding the framework in respect for international law, notably the U.N. Charter and IHL.

Under the United Nations Charter, the U.N. Security Council has several important functions and powers, not least with regard to taking binding actions to maintain international peace and security. The ten elected members have the opportunity to influence this area and others during their two-year terms on the Council. In this paper, HLS PILAC authors aim to illustrate some of these opportunities, identify potential guidance from prior elected members’ experiences, and outline the key procedures that incoming elected members should be aware of as they prepare to join the Council. In doing so, they seek in part to summarize the current state of scholarship and policy analysis in an effort to make this material more accessible to States and, particularly, to States’ legal advisers. The authors drafted this paper with a view towards States that have been elected and are preparing to join the Council, as well as for those States that are considering bidding for a seat on the Council.

Existing and emerging applications of artificial intelligence in armed conflicts and other systems reliant upon war algorithms and data span diverse areas. Natural persons may increasingly depend upon these technologies in decisions and activities related to killing combatants, destroying enemy installations, detaining adversaries, protecting civilians, undertaking missions at sea, conferring legal advice, and configuring logistics.

In intergovernmental debates on autonomous weapons, a normative impasse appears to have emerged. Some countries assert that existing law suffices, while several others call for new rules. Meanwhile, the vast majority of efforts by States to address relevant systems focus by and large on weapons, means, and methods of warfare. Partly as a result, the broad spectrum of other far-reaching applications is rarely brought into view.

One normatively grounded way to help identify and address relevant issues is to elaborate pathways that States, international organizations, non-state parties to armed conflict, and others may pursue to help secure greater respect for international law. In this commentary, HLS PILAC’s Research Director elaborates on three such pathways: forming and publicly expressing positions on key legal issues, taking measures relative to their own conduct, and taking steps relative to the behavior of others. None of these pathways is sufficient in itself, and there are no doubt many others that ought to be pursued. But each of the identified tracks is arguably necessary to ensure that international law is — or becomes — fit for purpose.

In a paper by the Harvard Law School Program on International Law and Armed Conflict (HLS PILAC) titled “Quantum of Silence: Inaction and Jus ad Bellum” (2019), Dustin A. Lewis, Naz K. Modirzadeh, and Gabriella Blum examine the actual and potential roles of silence in the identification and the development of international law, with a focus on the legal regime governing the threat or use of force in international relations.

The analysis in the paper is complemented with an annex — to which a team of HLS PILAC research assistants contributed — that contains the most comprehensive catalogue to date of apparent self-defense reports to the Security Council under article 51 of the U.N. Charter. Those contributors were Lindsay Anne Bailey, Emma Broches, Laura Clark, Sonia Chakrabarty, Thejasa Jayachandran, Daniel Levine-Spound, Sarah Libowsky, Samantha Lint, Yang Liu, Carolina Silva-Portero, Shira Shamir, William Ossoff, Tamsin Parzen, and Shanelle Van.

Can we say, definitively, when an armed conflict no longer exists under international law? The short, unsatisfying answer is sometimes: it is clear when some conflicts terminate as a matter of international law, but a decisive determination eludes many others. The lack of fully-settled guidance often matters significantly. That is because international law tolerates, for the most part, far less violent harm, devastation, and suppression in situations other than armed conflicts. Thus, certain measures governed by the laws and customs of war—including killing and capturing the enemy, destroying and seizing enemy property, and occupying foreign territory, all on a possibly large scale—would usually constitute grave violations of peacetime law.

This Legal Briefing details the legal considerations and analyzes the implications of that lack of settled guidance. It delves into the myriad (and often-inconsistent) provisions in treaty law, customary law, and relevant jurisprudence that purport to govern the end of war. Alongside the doctrinal analysis, this Briefing considers the changing concept of war and of what constitutes its end; evaluates diverse interests at stake in the continuation or close of conflict; and contextualizes the essentially political work of those who design the law.

In this briefing report, we introduce a new concept — war algorithms — that elevates algorithmically-derived “choices” and “decisions” to a, and perhaps the, central concern regarding technical autonomy in war. We thereby aim to shed light on and recast the discussion regarding “autonomous weapon systems.”

We define “war algorithm” as any algorithm that is expressed in computer code, that is effectuated through a constructed system, and that is capable of operating in relation to armed conflict. In introducing this concept, our foundational technological concern is the capability of a constructed system, without further human intervention, to help make and effectuate a “decision” or “choice” of a war algorithm. Distilled, the two core ingredients are an algorithm expressed in computer code and a suitably capable constructed system.

Through that lens, we link international law and related accountability architectures to relevant technologies. We sketch a three-part (non-exhaustive) approach that highlights traditional and unconventional accountability avenues. We focus largely on international law because it is the only normative regime that purports — in key respects but with important caveats — to be both universal and uniform. By not limiting our inquiry only to weapon systems, we take an expansive view, showing how the broad concept of war algorithms might be susceptible to regulation — and how those algorithms might already fit within the existing regulatory system established by international law.

The surge in armed conflicts involving terrorism has brought to the fore the general question of medical care in armed conflict and the particular legal protections afforded to those providing such care to terrorists. Against this backdrop, we evaluate international humanitarian law (IHL) protections for wartime medical assistance concerning terrorists. Through that lens, we expose gaps and weaknesses in IHL. We also examine tensions between IHL and state responses to terrorism more broadly.

In studying the IHL regime applicable to medical care, substantive fragmentation and gaps in legal protection between states and across types of conflict emerge. These ruptures are not new. But they are increasingly noticeable as terrorism is more frequently conceptualized as forming part of armed conflicts and as more states undertake aggressive responses to terrorist threats. The U.N. Security Council has been a key driver of these responses, requiring member states to take more and broader steps to obviate terrorist threats. Yet so far the Council has not required that, in doing so, states fully exempt impartial wartime medical care, even in circumstances that would render such care protected under IHL. Rather, the Council seems to consider providing medical assistance and supplies to al-Qaeda and its associates as at least a partial ground for designating those who facilitate such care as terrorists themselves.

The overall result today is unsatisfactory. By prosecuting physicians for supporting terrorists through medical care in armed conflicts, some states are likely violating their IHL treaty obligations. But in certain other instances where states intentionally curtail impartial medical care there is no clear IHL violation. Both those actual IHL violations and the lack of clear IHL violations, we think, are cause for concern. The former represent failures to implement the legal regime. And the latter highlight the non-comprehensiveness— or, at least, the indeterminateness and variability — of the normative framework.