In this episode, Dr Simon McKenzie talks with Associate Professor Rain Liivoja on how the law of armed conflict deals with new technology. The conversation includes an overview of how international law regulates war and the role of pragmatism in the development of this law. They discuss some of the key points in the history of the law of armed conflict and some contemporary challenges, including autonomy in weapons, human enhancement and cyber operations.

Rain Liivoja is an Associate Professor at the University of Queensland Law School, where he leads the Law and the Future of War research group. Rain also holds the title of Adjunct Professor of International Law at the University of Helsinki, where he is affiliated with the Erik Castrén Institute of International Law and Human Rights.

Links to further reading:

• Rain Liivoja, 'Technological change and the evolution of the law of war' (2016) 97 International Review of the Red Cross 900, 1157-1177.
• Martin van Creveld, Technology and War: From 2000 B.C. to the Present (1991, Touchstone).
• Max Boot, War Made New: Weapons, Warriors and the Making of the Modern World (2007, Penguin Putnam Inc).

In this episode, Isabelle Peart talks with Dr Eve Massingham about the operation of weapons law in armed conflict. They talk about the definition of a 'weapon', and how international law regulates them in two ways: prohibitions on specific weapons, and general prohibitions covering weapons that have certain effects. They also talk about the role that the idea of 'humanity' plays in the law of war, .

Dr Eve Massingham is a Senior Research Fellow with the School of Law, The University of Queensland. Eve's current research focuses on the diverse ways in which the law constrains or enables autonomous functions of military platforms, systems and weapons. She is the co-editor of Ensuring Respect for International Humanitarian Law (Routledge, 2020) and she has published a number of book chapters and journal articles in the fields of international humanitarian law and international law and the use of force.

In this episode Dr Simon McKenzie talks with Dr Anna Hood and Dr Monique Cormier to discuss the attempt to ban the most destructive weapons in the Nuclear Weapons Ban Treaty. They talk about how the treaty works, who has signed up, and the value of the treaty given that no nuclear weapon states have signed up. They also explore its history, and how it connects to the Nuclear Non-Proliferation Treaty.

Australia did not participate in the negotiations for the Nuclear Ban Treaty and has not become a State party. They discuss why the rationale that has been given for this refusal, and explain what is meant by the "nuclear umbrella" and "extended nuclear deterrence," and how it relates to the joint military facility at Pine Gap and the ANZUS treaty.

Dr Anna Hood is a Senior Lecturer at the University of Auckland. Anna is a public international lawyer. She has a BA/LLB (hons) from the University of Melbourne, an LLM (International Legal Studies) from NYU and a PhD from the University of Melbourne. Anna's work focuses primarily on disarmament law, refugee law and issues concering New Zealand and international law. She also has a keen interest in legal education and the role of universities in the 21st century.

Dr Monique Cormier is a Lecturer at the University of New England. Monique has Bachelor of International Studies and Bachelor of Laws (hons) from the University of Adelaide, an LLM from Columbia University, and a PhD from the University of Melbourne. Monique's primary research interests are jurisdiction, defences and immunities in international criminal law and on legal issues relating to nuclear disarmament and extended nuclear deterrence.

Suggested further reading:

• Anna Hood and Monique Cormier, 'Can Australia Join the Nuclear Ban Treaty Without Undermining ANZUS?' (2020) 44(1) Melbourne University Law Review.
• Monique Cormier and Anna Hood, ‘Australia’s Reliance on US Extended Nuclear Deterrence under International Law' (2017) 13 Journal of International Law and International Relations 3
• The Pine Gap Project on the Nautilus Institute
• Stuart Casley-Maslen, The Treaty on the Prohibition of Nuclear Weapons: A Commentary (Oxford University Press, 2019)
• Treasa Dunworth and Anna Hood (eds), Disarmament Law: Reviving the Field (Routledge, 2021).
• The research of Richard Tanter

In this episode, Dr Simon McKenzie is joined by Dr Eve Massingham and Associate Professor Rain Liivoja to grapple with the findings of the Brereton Report. The report is shocking: it found credible evidence of 39 murders of civilians and prisoners by, or on the instructions of, members of the Australian special forces which were then covered up.

Simon, Eve and Rain talk about the context of the Report and the allegations, and the potential consequences for the individuals who allegedly carried out these acts. They explain what war crimes are and how they differ from domestic crimes, the concept of command responsibility, and what the sentence for any conviction might be. They also how the Australian government might respond to the wrongdoing and ensure the Afghan victims receive justice.

Rain Liivoja is an Associate Professor at The University of Queensland Law School, where he leads the Law and the Future of War research group. Rain also holds the title of Adjunct Professor of International Law at the University of Helsinki, where he is affiliated with the Erik Castrén Institute of International Law and Human Rights.

Eve Massingham is a Senior Research Fellow at The University of Queensland Law School. Eve's current research focuses on the diverse ways in which the law constrains or enables autonomous functions of military platforms, systems and weapons. She is the co-editor of Ensuring Respect for International Humanitarian Law (Routledge, 2020) and she has published a number of book chapters and journal articles in the fields of international humanitarian law and international law and the use of force.

Further reading:

• The Inspector-General of the Australian Defence Force Afghanistan Inquiry (The Brereton Report)
• Eve Massingham, 'Australian Special Forces War Crimes Prosecutions: Crucial but Just One Aspect When It Comes to Respect for the Laws of War' Opinio Juris (20 November 2020)
• Douglas Guilfoyle, 'Australian war crimes in Afghanistan: The Brereton Report' EJIL!Talk (23 November 2020)
• David Letts, ‘Allegations of murder and ‘blooding’ in Brereton report now face many obstacles to prosecution’ The Conversation (19 November 2020)
• Matthew Doran, 'Afghanistan war crimes report released by Defence Chief Angus Campbell includes evidence of 39 murders by special forces' ABC Australia (19 November 2020)
• Christopher Knaus and Rory Callinan, ''We expected better from Australia': shock and anger in Afghanistan at war crimes report' The Guardian (20 November 2020)
• Rain Liivoja, Criminal Jurisdiction Over Armed Forces Abroad (Cambridge University Press, 2017)

In this episode, Dr Simon McKenzie talks with Dr Tim McFarland about autonomy in weapons systems: what it is, why it is important, and how it should be understood for the purpose of the law of armed conflict. They talk about the meaning of 'autonomy', and how the concept is used in the context of weapons systems, and what gets lost in debate about their morality and legality. They also discuss some of the legal principles that are particularly important, including distinction, proportionality and the obligation to take precautions.

Dr Tim McFarland is a Research Fellow at the University of Queensland School of Law. His current research focuses on the legal challenges connected with the defence and security applications of science and technology, with a particular focus on the impact of autonomous systems. His broader research interests include the law of armed conflict and international criminal law. He is the author of Autonomous Weapon Systems and the Law of Armed Conflict (Cambridge University Press, 2020).

For further readings, a basic primer on autonomy and autonomous weapons systems, and links to some further resources, are available on our website.

In this episode, Dr Eve Massingham talks to Professor Jason Scholz and Associate Professor Simon Ng about the development of new military technology. They talk about the key areas of current investments, how the game is changing, and where the future might take us. They also discuss the recent investments Australia has made into autonomous systems, and explain some of the strategic calculations behind this effort.

Professor Jason Scholz is the CEO of the Trusted Autonomous Systems Defence Cooperative Research Centre. Prior to this role, Jason led research in cognitive psychology, decision aids, decision automation and autonomy, and the integration of human and machine decision-making within the Defence Science and Technology Group. He has over fifty refereed publications and several patents, covering research in telecommunications, digital signal processing, artificial intelligence and human decision making. He is passionate about the potential for machine learning based on neuroscience insights, human cognitive enhancement, anti-fragile organisations and is driven to achieve the transition of validated innovative technology and techniques into Defence.

Associate Professor Simon Ng is the Chief Engineer of the Trusted Autonomous Systems Defence Cooperative Research Centre. Prior to this, he led the Unmanned Aerial Systems Group within Defence Science and Technology Group’s Aerospace Division, exploring the role of autonomy in enhancing Defence capability and reducing risk in an increasingly complex operational environment. He has a Bachelor of Science and a Bachelor of Engineering from Monash University and completed his Doctoral Thesis in 1998, studying mechanisms for ionic conduction in solid polymer electrolytes.

Further reading:

• Paul Scharre, Army of None: Autonomous Weapons and the Future of War (2018, W.W. Norton and Company).
• David Kilcullen, Out of the Mountains: The Coming Age of the Urban Guerrilla (2013, Scribe Publishing).
• MacGregor Knox and Williamson Murray, The Dynamics of Military Revolution, 1300-2050 (2001, Cambridge University Press)
• Stephen Biddle, Military Power: Explaining Victory and Defeat in Modern Battle (2010, Princeton University Press).
• Dave Grossman, On Killing: The Psychological Cost of Learning to Kill in War and Society (2009, Back Bay).
• The Philosopher AI App.

In this episode, Dr Simon McKenzie talks with Dr Natalia Jevglevskaja about the obligation to review new weapons found in Article 36 of Additional Protocol 1 to the Geneva Conventions. They discuss what the weapons review obligation requires, the kinds of technologies it applies to, and the different approaches states take to fulfilling the obligation. They also discuss some of its limitations and the challenges posed by recent developments in machine processing and artificial intelligence.

Dr Natalia Jevglevskaja is a Research Fellow at the University of New South Wales at the Australian Defence Force Academy in Canberra. Natalia’s research interests include law of armed conflict, human rights law and comparative law. Natalia has a PhD from the University of Melbourne, holds an LL.M in Public International Law from the University of Utrecht (2013), awarded with cum laude to mark outstanding achievement and completed her undergraduate studies in law at the University of Heidelberg (2011).

Suggested further reading:

• International Committee of the Red Cross, ‘A Guide to the Legal Review of New Weapons, Means and Methods of Warfare: Measures to Implement Article 36 of Additional Protocol I of 1977’ (2006) 88 International Review of the Red Cross 931
• Boulanin, Vincent and Maaike Verbruggen, SIPRI Compendium on Article 36 Reviews (December 2017) SIPRI
• The Australian Article 36 Review Process, Group of Governmental Experts of the High Contracting Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, UN Doc CCW/GGE.2/2018/WP.6

In this episode, Dr Rain Liivoja talks to Professor Michael Schmitt about the Tallinn Manuals on the law applicable to cyber operations. They discuss the impetus for the manuals, their drafting process, some of the main findings and the reception by states and scholars. They also talk about the plans for Tallinn Manual 3.0.

Professor Michael N Schmitt is Professor of International Law at the University of Reading. He is also Senior Fellow at the NATO Cooperative Cyber Defence Centre of Excellence; Francis Lieber Distinguished Scholar at West Point’s Lieber Institute; Charles H Stockton Distinguished Scholar at the US Naval War College; Distinguished Scholar at the University of Texas’ Strass Center for International Security and Law; and Director of Legal Affairs for Cyber Law International. He directed the Tallinn Manual project from 2009–2017.

Further reading

• Michael N Schmitt (gen ed), Tallinn Manual on the International Law Applicable to Cyber Warfare (Cambridge University Press 2013)
• Michael N Schmitt (gen ed), Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (Cambridge University Press 2017)
• Nicholas Tsagourias and Russell Buchan (eds), Research Handbook on International Law and Cyberspace (Elgar 2015)
• NATO CCDCOE Library