AUTONOMOUS WEAPON SYSTEMS IN CONTEXT OF THE INTERNATIONAL LAW OF ARMED CONFLICT

Transcription

1 BEYOND THE FOG: AUTONOMOUS WEAPON SYSTEMS IN CONTEXT OF THE INTERNATIONAL LAW OF ARMED CONFLICT Associate professor D-r Metodi Hadji-Janev, Col. Military Academy-Macedonia Associate professor D-r Kiril Hristovski, ASU ASU, May- 2016, AZ, USA

2 4. New Convention Treaty or Protocol that will maintain connection between AWS and decision makers as a potential solution Associate professor D-r Metodi Hadji-Janev, Col. Associate professor D-r Kiril Hristovski, ASU BEYOND THE FOG: AUTONOMOUS WEAPON SYSTEMS IN CONTEXT Working theses 1. Introduction of the Autonomous Weapon Systems (AWS) in conflict resolution represent a veritable paradigm shift 2. There are shockwaves inside the legal community over the usage of AWS: from complete ban of the development of the autonomous weapon systems to the complete support of these systems 3. States are divided over the usage of AWS

3 BEYOND THE FOG: AUTONOMOUS WEAPON SYSTEMS IN CONTEXT Premise Quemadmodum gladius neminem occidit; occidentis telum est. A sword never kills anybody;...it is a tool in the killer's hand. Seneka- Associate professor D-r Metodi Hadji-Janev, Col. Associate professor D-r Kiril Hristovski, ASU

4 BEYOND THE FOG: AUTONOMOUS WEAPON SYSTEMS IN CONTEXT OUTLINE 1. AWS in conflict resolution hic sunt leones 2. Inside the fog: the legal debate over the AWS usage 3. State s position over the AWS employment 4. Beyond the fog: the new treaty as a start 5. Conclusion Associate professor D-r Metodi Hadji-Janev, Col Associate professor D-r Kiril Hristovski, ASU

5 BEYOND THE FOG: AUTONOMOUS WEAPON SYSTEMS IN CONTEXT Working theses 1. Introduction of the Autonomous Weapon Systems (AWS) in conflict resolution represent a veritable paradigm shift Associate professor D-r Metodi Hadji-Janev, Col. Associate professor D-r Kiril Hristovski, ASU

6 BEYOND THE FOG: AUTONOMOUS WEAPON SYSTEMS IN CONTEXT OUTLINE 1. AWS in conflict resolution hic sunt leones 2. Inside the fog: the legal debate over the AWS usage 3. State s position over the AWS employment 4. Beyond the fog: the new treaty as a start 5. Conclusion Associate professor D-r Metodi Hadji-Janev, Col Associate professor D-r Kiril Hristovski, ASU

7 1. AWS in conflict resolution hic sunt leones The technology have always influenced the operational environment Post WW-II - the political imperatives to increase the force protection and protection of the civilians and civilian property

8 1. AWS in conflict resolution hic sunt leones drone technology evolution of conducting military operations (planning, conducting and analyzing) operational environment transformed from time and space driven i.e., linear understanding - a battlefield, to a multi-dimensional system of systems understanding - a battlespace

9 1. AWS in conflict resolution hic sunt leones Militaries around the world acquire systems that can identify, track, and prioritize targets Autonomy present in the systems that maneuvering and homing in on targets or the timing firing

10 1. AWS in conflict resolution hic sunt leones Michael C. Horowitz and Paul Scharre at least 30 countries have defensive systems with humansupervised autonomous modes, Michael C. Horowitz Paul Scharre in a few rare exceptions, autonomy is used for weapons to select and engage targets on Michael C. Horowitz & Paul Scharre, An introduction to autonomy in weapon systems, Center for New American Security, February 2015, retrieved April 28, 2016 from:

11 1. AWS in conflict resolution hic sunt leones Contemporary achievements in science and technology, along with the dynamics in political and operational affairs, dictate that the trend of utilizing advanced technology into military operations will increase!

12 1. AWS in conflict resolution hic sunt leones Kenneth Anderson and Matthew Waxman : Kenneth Anderson Matthew Waxman Detecting, analyzing and firing on targets will become increasingly automated, and the contexts of when such force is used will expand. The role of humans, - will gradually shift from full command, to partial command, to oversight and so on. Kenneth Anderson and Matthew Waxman, Killer Robots and the Laws of War, The Wall Street Journal, November 3, 2013, retrieved April 26, 2016 from:

13 1. AWS in conflict resolution hic sunt leones So far no AWS in place such weapon systems will not be developed in the foreseeable future is only a matter of time before such system are fully operational Mary Ellen O Connell, Banning Autonomous Killing: The Legal and Ethical Requirement that Humans Make Near-Time Lethal Decisions, in: Matthew Evangelista and Henry Shue (eds), The American Way of Bombing. Changing Ethical and Legal Norms, from B-17s to Drones, Ithaca 2014, pp. 224, 226 Robin Geiss, The International Law Dimension of Autonomous Weapons Systems Friedrih Ebert Stiftung, p.4

14 1. AWS in conflict resolution hic sunt leones The U.S. - programs to develop unmanned systems up to 2038 The International Committee of the Red Cross (ICRC), increasing autonomy already exists in the 'critical functions' of some weapon systems in use today. U.S. Department of Defense, Unmanned Systems Integrated Roadmap FY , 2013, retrieved April26, 2016 from: pdf

15 1. AWS in conflict resolution hic sunt leones Plans that favor AWS have sparked serious debates among activists, lawyers, political scientists, ethicists, philosophers, military and national security professionals.

16 BEYOND THE FOG: AUTONOMOUS WEAPON SYSTEMS IN CONTEXT Working theses 2. There are shockwaves inside the legal community over the usage of AWS: from complete ban of the development of the autonomous weapon systems to the complete support of these systems Associate professor D-r Metodi Hadji-Janev, Col. Associate professor D-r Kiril Hristovski, ASU

17 BEYOND THE FOG: AUTONOMOUS WEAPON SYSTEMS IN CONTEXT OUTLINE 1. AWS in conflict resolution hic sunt leones 2. Inside the fog: the legal debate over the AWS usage 3. State s position over the AWS employment 4. Beyond the fog: the new treaty as a start 5. Conclusion Associate professor D-r Metodi Hadji-Janev, Col Associate professor D-r Kiril Hristovski, ASU

18 2. Inside the fog: the legal debate over the AWS usage - No clear understanding of what is considered as an autonomous weapon system Two problems with this First, there is no fully AWS, - independent of human control Second, there is a lack of understanding of what efforts to produce autonomous weapon systems really means

19 2. Inside the fog: the legal debate over the AWS usage Activists, scholars, experts, but also nation states, have positioned themselves from - complete ban of the development of the autonomous weapon systems - to the complete support of these systems

20 2. Inside the fog: the legal debate over the AWS usage Critics against AWS Critics against AWS exist in ad bellum and in bello context

21 2. Inside the fog: the legal debate over the AWS usage Critics against AWS (ad bellum) the risks that AWS pose is general argument for banning the AWS Human Rights Watch, has called for an ex ante ban on fully autonomous weapons. AWS or robots are incapable of abiding by key principles of international humanitarian law. unable to follow the rules of distinction, proportionality, and military necessity and might contravene the Martens Clause." Human Rights Watch, Losing Humanity: The Case Against Killer Robots (2012), p. 46, retrieved April 30, 2016 from:

22 2. Inside the fog: the legal debate over the AWS usage Critics against AWS (ad bellum) International Committee for Robot Arms Control, prohibition of the development, deployment and use of armed autonomous unmanned systems International Committee for Robotic Arms Controls, Original Mission Statement, ICRAC July 2014, retrieved April 30, 2016 from:

23 2. Inside the fog: the legal debate over the AWS usage Christof Heyns, Critics against AWS (ad bellum) prophylactic precautionary measures against AWS, moratorium on their development until the proper legal framework is in place Christof Heyns, Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Report, 20 21, U.N. Human Rights Council, U.N. Doc. A/HRC/23/47 (Apr. 9, 2013), p.11

24 2. Inside the fog: the legal debate over the AWS usage Robert Sparrow, Critics against AWS (in bellum) designing robots involves formidable technical challenges. hacking, spoofing or piggybacking may aloud interception and missuses Robert Sparrow Robotic Weapons and the Future of War in Jessica Wolfendale and Paolo Tripodi (eds.) New Wars and New Soldiers: Military Ethics in the Contemporary World, 2011, pp ( ), Ashgate, p. 123.

25 2. Inside the fog: the legal debate over the AWS usage Heather Roff, Critics against AWS (in bellum) focus on the accountability responsibility is almost impossible AWS cannot violate a right and thus, cannot uphold a right. a violating a right is an intentional wronging of someone who has moral accountability. Heather Roff Killing in War: Responsibility, Liability and Lethal Autonomous Robots p. 14, retrieved from: mous_robot

26 2. Inside the fog: the legal debate over the AWS usage Markus Wagner Critics against AWS (in bellum) AWS eliminate the possibility to establish individual criminal responsibility that requires moral agency and a determination of mens rea Markus Wagner, Taking humans out of the loop: implications for international humanitarian law, in Journal of Law Information and Science, Vol. 21, 2011, p.5, retrieved (April 30, 2016) from:

27 2. Inside the fog: the legal debate over the AWS usage Critics against AWS (in bellum) Critics based on our inability to foresee how AWS might act in complex operational environment AWS cannot meet some of the requirements under Article 36 of Additional Protocol I (AP-I) to the 1949 Geneva Conventions (1949, GC)

28 2. Inside the fog: the legal debate over the AWS usage Critics against AWS (in bellum) Peter Asaro, AWS that cannot be tested and verified under the ILOAC requirements should be banned

29 2. Inside the fog: the legal debate over the AWS usage Richard M. O Meara Critics against AWS (in bellum) inability to govern the increasingly rapid innovation and associated tactics that are designed for its usage Richard M. O Meara, Contemporary governance architecture regarding robotics technologies: an assessment, in Patrick Lin, Keith Abney and George Bekey, Robot Ethics, MIT Press, Cambridge MA, 2011, pp

30 2. Inside the fog: the legal debate over the AWS usage Contra critics (pro) to the usage of AWS Authors and experts who advocate for usage of AWS build their argumentation by criticizing the calls against usage of AWS - legal argumentation aims to defend certain policy (U.S. predominantly) - argumentation starts by narrowly explaining the technical aspects of the AWS - link these explanations to operational context and complexity of modern warfare - finally, they offer legal analyses to justify policy documents and objectives

31 2. Inside the fog: the legal debate over the AWS usage Contra critics (pro) to the usage of AWS According to those who support these views an outright ban of autonomous weapon systems is insupportable as a matter of law, policy, and operational good sense

32 2. Inside the fog: the legal debate over the AWS usage Contra critics (pro) to the usage of AWS For Schmitt calls to ban outright AWS have serious national security implications Michael N. Schmitt, Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance, 50 VA.J. INT'L L. 795 (2010)

33 2. Inside the fog: the legal debate over the AWS usage For Schmitt Contra critics (pro) to the usage of AWS the ILOAC has never been about ensuring a "fair fight It comprises prohibitions, restrictions, and obligations designed to balance a State's interest in effectively prosecuting the war (military necessity) with its interest in minimizing harm to those involved in a conflict (humanity) whether autonomous weapon systems comply with the legal norms that States have put in place to achieve this balance. Michael N. Schmitt, Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance, 50 VA.J. INT'L L. 795 (2010)

34 2. Inside the fog: the legal debate over the AWS usage Kenneth Anderson Contra critics (pro) to the usage of AWS Matthew Waxman imposing a general ban on autonomous systems could carry some highly unfavorable consequences and possibly dangers improving decision making on the battlefield, system accuracy, minimizing collateral injuries; and limiting human loss of life on both sides and among civilians Kenneth Anderson and Matthew Waxman, Killer Robots and the Laws of War, The Wall Street Journal, November 3, 2013, retrieved April 26, 2016 from:

35 2. Inside the fog: the legal debate over the AWS usage Contra critics (pro) to the usage of AWS The question of legal analysis is one of lawful use of AWS Yoram Dinstein to differentiate between (a)weapons that are employed in specific circumstances contrary to the principle of distinction and (b)weapons that by their very nature or design cannot possibly maintain the distinction in any set of circumstances Yoram Dinstein, The Conduct of Hostilities Under the Law of Armed Conflict, Cambridge University Press, (2d ed. 2010), p.62

36 2. Inside the fog: the legal debate over the AWS usage Contra critics (pro) to the usage of AWS Jeffrey S. Thurnher Applying legal analysis about the legality of AWS must consider that context and environment in which the weapon system operates play a significant role. Jeffrey S. Thurnher, The Law that Applies to Autonomous Weapon Systems, 17 American Society of International Law Insights (Jan. 18, 2013),

37 BEYOND THE FOG: AUTONOMOUS WEAPON SYSTEMS IN CONTEXT Working thesis 3. States are divided over the usage of AWS Associate professor D-r Metodi Hadji-Janev, Col. Associate professor D-r Kiril Hristovski, ASU

38 BEYOND THE FOG: AUTONOMOUS WEAPON SYSTEMS IN CONTEXT OUTLINE 1. AWS in conflict resolution hic sunt leones 2. Inside the fog: the legal debate over the AWS usage 3. State s position over the AWS employment 4. Beyond the fog: the new treaty as a start 5. Conclusion Associate professor D-r Metodi Hadji-Janev, Col Associate professor D-r Kiril Hristovski, ASU

39 3. State s position over the AWS employment States are not united over the legal banning of the AWS usage

40 3. State s position over the AWS employment States are not united over the legal banning of the AWS usage A total of 52 nations have publicly expressed their views on killer robots since 2013, mostly to indicate their support for multilateral talks on concerns raised

41 3. State s position over the AWS employment States are not united over the legal banning of the AWS usage In May 2014, representatives from 87 states participated in the first Convention on Conventional Weapons (CCW) informal meeting of experts to consider questions related to emerging technologies in the area of lethal autonomous weapons systems.

42 3. State s position over the AWS employment States are not united over the legal banning of the AWS usage Follow-up CCW experts meeting on April Several states have expressed interest in discussing the matter at the Human Rights Council since the first debate on the matter took place in April 2013.

43 3. State s position over the AWS employment States are not united over the legal banning of the AWS usage Yet few states have elaborated on their national policy on this issue. Only the UK and US have issued policies on autonomous weapons systems

44 3. State s position over the AWS employment A total of 67 countries have for the first time elaborated their views publicly on lethal autonomous weapons systems in a multilateral forum: - 44 states in 2013, - 7 in 2014, - 15 in 2015, and - 1 in 2016

45 3. State s position over the AWS employment Countries calling for a ban on lethal autonomous weapons systems in alphabetical order: 1. Algeria 2. Chile 3. Costa Rica 4. Cuba 5. Bolivia 6. Ecuador 7. Egypt 8. Ghana 9. Holy See 10. Mexico 11. Nicaragua 12. Pakistan 13. State of Palestine 14. Zimbabwe

46 BEYOND THE FOG: AUTONOMOUS WEAPON SYSTEMS IN CONTEXT Working thesis 4. New convention (treaty) or protocol that will maintain connection between AWS and decision makers as a potential solution Associate professor D-r Metodi Hadji-Janev, Col. Associate professor D-r Kiril Hristovski, ASU

47 BEYOND THE FOG: AUTONOMOUS WEAPON SYSTEMS IN CONTEXT OUTLINE 1. AWS in conflict resolution hic sunt leones 2. Inside the fog: the legal debate over the AWS usage 3. State s position over the AWS employment 4. Beyond the fog: the new treaty as a start 5. Conclusion Associate professor D-r Metodi Hadji-Janev, Col Associate professor D-r Kiril Hristovski, ASU

48 4. Beyond the fog: the new treaty as a start Two general proposals: Unique and rare opportunity to develop regulation ex ante 1. A new, stand-alone treaty or 2. A protocol to the CCW

49 4. Beyond the fog: the new treaty as a start Two general proposals: Regardless of the approach new regulation must consider that AWS must always have meaningful human control

50 4. Beyond the fog: the new treaty as a start The new regulation should consider Art 36 of AP-I (1977) i.e. that operational uses of the AWS must comply with the law of targeting A sword never kills anybody; it is a tool in the killer's hand. Seneka-

51 4. Beyond the fog: the new treaty as a start The new regulation should consider Art 36 of AP-I (1977) i.e. that operational uses of the AWS must comply with the law of targeting Distinction distinguish between combatants and civilians, as well as between military and civilian objects - API (Art 48) Proportionality anticipated military advantage of an operation be weighed against the reasonably anticipated civilian harms API-(Art 51 (c) Accountability Individual combatants should be criminally responsible for committing war crimes if they use AWS to commit them, also if they order AWS to commit criminal acts or fail to prevent them

52 BEYOND THE FOG: AUTONOMOUS WEAPON SYSTEMS IN CONTEXT OUTLINE 1. AWS in conflict resolution hic sunt leones 2. Inside the fog: the legal debate over the AWS usage 3. State s position over the AWS employment 4. Beyond the fog: the new treaty as a start 5. Conclusion Associate professor D-r Metodi Hadji-Janev, Col Associate professor D-r Kiril Hristovski, ASU

53 BEYOND THE FOG: AUTONOMOUS WEAPON SYSTEMS IN CONTEXT 5. Conclusion The desire to introduce the AWS in conflict resolution combat operations, among others, represent a serious legal challenge Activists, scholars, experts, but also nation states, have positioned themselves from complete ban of the development of the autonomous weapon systems to the complete support of these systems A new Treaty or a Protocol that will regulate development and usage of the AWS is needed Associate professor D-r Metodi Hadji-Janev, Col Associate professor D-r Kiril Hristovski, ASU

54 BEYOND THE FOG: AUTONOMOUS WEAPON SYSTEMS IN CONTEXT Q &A Associate professor D-r Metodi Hadji-Janev, Col. Military Academy-Macedonia Associate professor D-r Kiril Hristovski, ASU