Balancing Bytes and Bullets: AI, Law, and Africa's Militaries

Wendo Githaka

The Harmattan, a relentless wind whipping sand across the vast plains of the Sahel, carries with it a new kind of chill. It's the chill of uncertainty, a fear that whispers on the edges of the sandstorm – the fear of machines making life-or-death decisions on the battlefield.

According to the International Committee of the Red Cross (ICRC), “AI and machine-learning systems could have profound implications for the role of humans in armed conflict, especially concerning: increasing autonomy of weapon systems and other unmanned systems; new forms of cyber and information warfare; and, more broadly, the nature of decision-making.” Artificial intelligence (AI) is no longer science fiction; it's a spectre haunting the war-torn landscapes of Africa. Some African countries, e.g., Zimbabwe, Eswatini, Angola, and Mozambique, have used national security justifications to deploy surveillance technologies to control and discipline non-law-abiding citizens. The challenge with mass surveillance, it creates a climate of fear and citizens are presumed to be guilty unless proven innocent. This eventually alters the ‘power balance between a state and its citizens.’

In Nigeria, 2.2 billion Naira was allocated in the 2018 budget for the “Social Media Mining Suite” in addition to ordering the military to watch for anti-government content online. In Libya, autonomous lethal weapons systems have already been used in fighting. In Zimbabwe, a controversial, military-driven national facial recognition scheme has raised concerns over the government’s alleged use of the technology as a surveillance tool. The draft AU-AI policy didn’t explicitly address the use of AI by African governments for national security interests, but it acknowledges that there could be hazardous AI risks.

Potential Benefits of AI in African Militaries

In the realm of peace and security, AI can enable more effective conflict analysis and early warning. It can support peace-making and mediation by addressing information asymmetry. AI-driven technology can also enable state institutions to enhance their capacity for enforcing law and order, and fighting criminality, thereby contributing to the security of citizens. AI-driven surveillance and policing platforms are deployed for tracking organized criminal networks and responding to or preventing the activities of terrorist or insurgent groups.

The Nigerian Navy is embracing AI since it and other emerging technologies are increasingly used in ship construction. The technology has grown in popularity as maritime battlefields become increasingly complex. Chief of the Naval Staff Vice Adm. Emmanuel Ogalla revealed this during the presentation of a paper by Navy participants at the National Defence College, titled “Artificial Intelligence and Ship Maintenance: Strategic Options for the Nigerian Navy by 2035. ”

Ogalla said the Nigerian Navy is embracing AI since it and other emerging technologies are increasingly used in ship construction.“The Nigerian Navy must continue to adopt and integrate these technologies in order to maintain a competitive edge during operations,” Ogalla said in a report by the Nigerian newspaper Leadership. In light of the need for guidelines and legal frameworks that promote transparency, accountability, and compliance with human rights in the adoption and use of AI-driven technologies, at least seven African countries in Africa (Benin, Egypt, Ghana, Mauritius, Rwanda, Senegal, and Tunisia) have developed national AI programs.

While the adoption of such regimes at the national level is important, the nature of the governance and regulatory challenges posed by AI-driven technologies is beyond the capacity of individual states. One area where AI is already being used and will undoubtedly spread with unpredictable benefits and possibly much harm is in the many wars and conflicts across the continent.

Risks and Ethical Concerns

AI also carries negative aspects, some of them of particular concern for Africa. As a general-purpose technology, AI is susceptible to being used for negative ends. There are increasing concerns associated with generative AI linked to disinformation, cybersecurity threats, hate speech targeting women and minorities, and fomenting or inciting violence in times of crises and conflicts.

For example, deepfakes involving AI-driven voice and image technologies have been used to impersonate political figures, propagating false information during elections in Nigeria and the ongoing civil war in Sudan. “AI is already baked in as part of the technology for surveillance platforms or satellite image analysis. One use could be to look for terrorists, by spotting signs of movement such as tyre tracks,” said Nate Allen, a specialist in military use of AI on the continent and an associate professor at the Africa Center for Strategic Studies, Washington. “You don’t need an autonomous F-35 [a state-of-the-art fighter jet] but an autonomous drone that can understand the difference between a tank and a car. What will work best in Africa is everything that is low-cost and relatively easy to use.” Many point to uses such as autonomous weapons systems. Drones have already been widely used in conflicts across the continent.

International Humanitarian Law and AI

International Humanitarian Law (IHL), the cornerstone of civilized warfare, is in danger of being trampled by the march of machines. Who is accountable for the actions of an autonomous weapon system? How can we ensure respect for proportionality and distinction – principles enshrined in IHL – when the trigger finger belongs to an algorithm? The legal frameworks governing warfare haven't caught up to this new reality, leaving a dangerous vacuum.

There is some jurisprudence on this issue, though very scarce. In August 2020, the case of R (Bridges) v Chief Constable of South Wales Police was the first challenge to AI invoking human rights law in the UK. South Wales Police was trialling the use of live automated facial recognition technology (AFR) to compare CCTV images of people attending public events with images of persons on a database. The Court of Appeal found that there was not a proper basis in law for the use of AFR, breaching the Data Protection Act. The case temporarily halted South Wales Police’s use of facial recognition technology but allowed the possibility of its reintroduction in the future with proper legal footing and due regard to the Public Sector Equality Duty.

Some have raised the nightmarish prospect of swarms of heavily armed automated drones that are supposed to be able to distinguish legitimate targets such as combatants from civilians but in reality, rarely discriminate.

Optimists have suggested AI could soon be used to predict war and civil unrest, allowing early interventions that could preserve peace or at least mitigate violence. ECOWAS, the West African regional body, is thought to be working towards incorporating AI into such predictive models using intelligence gathered from its various members.

Conclusion

South Africa now has an artificial intelligence (AI) institute dedicated to defence and the military sector, as part of the hubs of the AI Institute of South Africa (AIISA). ITWeb first reported on the imminent launch of the AI hub at the South African Military Academy last year. Unlike the EU, the AU lacks the power to enforce sweeping policies and laws across its member states. Even if the draft AI strategy wins the endorsement of parliamentarians at the AU’s assembly next February, African nations must then implement the continental strategy through national AI policies and laws.

The choice before Africa is stark. Will it embrace AI and risk becoming a testing ground for the ghosts in the machine? Or will it chart a course of responsible development, ensuring that technology serves humanity, not the other way around? The answer will echo across the battlefields of Africa, shaping not just the fate of wars, but the very soul of the continent.