On battlefields of the future, need grows for legal clarity

Having opened a can of worms with drone warfare and another with cyber-war, the US now must worry about other countries following, and also about legal issues.

Every passing month brings a new prediction of when Israel might launch an air attack on Iran's nuclear programme. This month perhaps, for the fabled "October surprise" ahead of the US presidential election? That seems unlikely now. Or maybe January, before the inauguration? Or what about September next year? The skies over the Middle East will be clear and this is the favoured deadline for the Israeli prime minister, Benjamin Netanyahu.

While this game is being played, some radical changes are taking place in the way war is conducted that have nothing to do with anyone's finger on the nuclear button. We should not forget that no one has actually found an appropriate military use for nuclear weapons for the past 67 years, during which we have seen wars big and small erupt all over the world.

Of course, nuclear weapons are hardly redundant: they still strike terror in the hearts of people, and having them secures entry into an exclusive club. But they are not cutting edge military technology.

A pointer to the real future of war has come from the US defence secretary, Leon Panetta, who on October 11 banged the drum of the cyber threat to America's infrastructure and economy. He called the internet "a new terrain for warfare" and "a battlefield of the future".

Addressing defence contractors in New York, he indicated for the first time that the US was acquiring an offensive capability to strike at foreign countries or non-state actors that threaten America. To bolster this, he said the US was making progress in solving the big riddle of cyber attacks: you know when you are attacked, but it is hard to know who is doing the attacking.

After the withdrawal from Iraq and planned departure from Afghanistan, the Pentagon's dollars are increasingly going to be spent on "the finest cyber operators", just as since September 11 it created the "world's finest counter-terrorism force". That sounds like a vast enterprise: a decade after September 11 the US had no fewer than 845,000 holders of "top secret" security clearance to deal with Al Qaeda-style threats.

A few days before Mr Panetta's remarks a drone entered Israeli air space from the Mediterranean and headed across the Negev desert towards the Dimona nuclear facility. It was shot down, but some questions are being asked about how it got so far. The Hizbollah leader, Sheikh Hassan Nasrallah, was quick to boast that he had sent the aircraft, made from parts he said were supplied by Iran.

Drones are not new - they have been around at least since the 1970s - and warnings of cyber attacks on critical infrastructure have been around for a decade and a half. But there is one factor that unites drones and cyber war today: these are both technologies where the US has an advantage and is leading the way into uncharted legal territory.

It will surely not be long before some other country catches up with the US. So is it in Washington's long-term interest to be trailblazing technologies whose legality under international law is questionable?

While Mr Panetta made a strong case for beefing up cyber defences, his audience will have noted that he failed to mention one salient fact. He left out that the US, with Israeli help, opted for aggressive cyber attacks on Iran's nuclear programme back in the days of President George W Bush. These yielded Stuxnet, a computer worm that sabotaged some of the centrifuges which Iran uses to enrich uranium.

In the cloak and dagger world, such actions are usually kept quiet, but the White House was happy to spill the beans to The New York Times, as part of President Barack Obama's defence against Republican challenges that he has run a "weak" foreign policy.

There is now no moral high ground for America to stand on. The US has complained about Russian and Chinese state-sponsored hacking of US companies to get their intellectual property. But now it is publicly in the same game, at a higher level. So it is not surprising that Mr Panetta is preparing the US for retaliation.

On drones, the US so far has a great lead - a capability to keep drones in the air for hours at a time and then launch their weapons at a designated target with pinpoint accuracy. The issues here are that drone strikes are carried out at distance, in secret, usually by the CIA, with no regard for accountability or the laws of war. Without any US soldiers on the ground, there is no one to distinguish between a wedding celebration and a gathering of militants.

An investigation into drone strikes by the law schools at Stanford and New York University has questioned the legality of targeting groups of men whose identities are unknown on the basis that they "bear certain signatures, or defining characteristics associated with terrorist activity". These so-called signatures are undefined but they clearly include attending large gatherings.

The report says: "US targeted killings and drone strike practices undermine respect for the rule of law and international legal protections and may set dangerous precedents." On the basis of US practice, other governments may feel free to use similar force around the globe.

Warfare is not going to be instantly transformed into a virtual battle. Despite years of predictions that the US faces a "cyber Pearl Harbor" none has happened so far. Power outages are usually caused by falling trees and lack of investment, not enemy action. The damage caused by Stuxnet gave the Iranians a shock, but did not kill off its nuclear enrichment programme. The recently discovered Shamoon virus, which infected 30,000 computers at Aramco, the Saudi state oil company, was most likely the work of amateur hackers, not an elite force working for a hostile power, experts believe.

So electronic Armageddon is still some way off. But just because it has not happened does not mean it never will. The Obama administration has put cyber warfare front and centre of the battle space of the future, and no other military power can now afford to be left behind.

On Twitter: @aphilps