Weapon System with Autonomous Functions and the Martens Clause: Are the use of these weapons in line with the principles of humanity and the dictates of public conscience?

January 25, 2022January 19, 2022Posted in International Humanitarian Law, International Law and Technology, Public International Law, UncategorizedTagged autonomous weapons, ihl, ILTech, international lawLeave a comment

By Clea Strydom

[Clea Strydom completed her B.A. Law and LL.B at Stellenbosch University, South Africa, before writing her LL.M dissertation on the International Humanitarian Law implications of weapon systems with autonomous functions through the University of Johannesburg, South Africa.]

Introduction

States are increasingly implementing artificial intelligence (AI) to pursue autonomy in weapon systems for armed conflict for various reasons, including, faster reaction time, faster data collection and processing, and being able to use robots instead of risking human combatants’ lives. There are, however, concerns that weapon systems with autonomous functions cannot be used in compliance with International Humanitarian Law (IHL), that it is unethical for machines to lethally target humans, and that their use could lead to an accountability gap. Therefore, there has been an ongoing debate about whether to ban the development of these weapon systems. The mere fact that these systems have autonomy is not the issue the ongoing legal debate is focused on; rather it is the delegation of critical functions i.e., acquiring, tracking, selecting, and attacking targets, to weapon systems, that is of concern. The ICRC has correctly identified that “ethics, humanity and the dictates of the public conscience are at the heart of the debate about the acceptability of autonomous weapon systems.”

Weapon Systems with Autonomous Functions

Autonomy in weapon systems should not be seen as a mere development of conventional weapons, instead, it is a paradigm shift in weapons technology that could change warfare drastically. Autonomy in weapon systems does not denote a specific new weapon but rather a shift in the level of human control over critical functions to weapon systems. This concerns a change in how warfare is conducted. While the most widely used terms are Lethal Autonomous Weapon Systems (LAWS) or Autonomous Weapon Systems (AWS), ascribing autonomy to the whole system is problematic. It should be kept in mind that autonomy is not a type of technology, but rather a characteristic of technology, related to certain functions, instead of being attached to the object itself. Due to the problems with ascribing autonomy to the system, Andrew Williams suggests referring to “autonomous functioning in a system” in general, or “systems with autonomous functions” when referring to a specific platform or system. Therefore, the author has adopted the term weapon systems with autonomous functions (WSAF), as it indicates that the whole machine is not autonomous, but instead that it can perform certain functions with varying degrees of human interference, which will depend on various factors such as the system’s design or intelligence, the external environmental conditions in which the systems will be required to operate, the nature and complexity of the mission, as well as policy and legal regulations. It must be kept in mind that while autonomy in weapon systems is being pursued by several States, weapon systems that can perform critical functions autonomously are still a thing of the future. Therefore, the debate, including the advantages and disadvantages of autonomy in weapon systems, is at this stage still speculative.

The Martens Clause

The Martens Clause made its first appearance in the 1899 Hague Convention II and has since been included in Additional Protocol to the Geneva Conventions, Article 1(2):

“In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience”.

The International Court of Justice in the Legality of the Threat or Use of Nuclear Weapons Advisory Opinion confirmed the principle contained in the Marten Clause as customary IHL and held that it “proved to be an effective means of addressing rapid evolution of military technology”. Concerning WSAF, the crux is whether the delegation of life and death decisions to a robot would be in line with the dictates of public conscience and principles of humanity.

Professor Michel Veuthy highlighted the importance of public conscience in IHL and identified that it can trigger the codification of IHL principles, be an impetus for the implementation and enforcement of IHL, and provide a safeguard for all situations not provided for or considered in the law. On the other side of the argument, Michael Schmitt argues that the Martens Clause only applies in the absence of applicable law in the Geneva Convention and Additional Protocols or international agreements such as treaties; and that since 1899, when the Martens Clause first appeared, the law relating to weapons has developed to such an extent that it covers all existing and future weapons. As a result, the role of the Martens Clause has been diminished. He argues that it is unlikely that any weapons would be found to be in contravention of the Martens Clause if it has been found to comply with IHL and applicable treaties. However, Robin Geiss points out that the IHL principles applicable to weapons are framed in a human-centric manner and might not sufficiently be able to deal with autonomy in weapon systems; therefore the Martens Clause could be used to create new laws or act as a safety net, as Veuthy suggests.

Even if it is accepted that a weapon could be banned based on the Martens Clause, several questions with no clear answers arise: first, how does one determine what the public conscience is, and secondly, which public? It is unlikely that the global public will share a common ‘conscience’. The public conscience and principles of humanity are not timeless or universal. Several individuals have conducted surveys to try and determine public opinion on the weapon systems in question. Political scientist and current Inspector General of the United States Department of Justice, Michael Horowitz found that public opinions depend on context. In the first round of questions, Horowitz’s survey found that 48% of participants were opposed to “autonomous weapons”. However, once he put the use of the weapons in context and highlighted their benefits, opposition to them dropped to 27%. In American roboticist and robo-ethicist, Ronald Arkin’s survey participants acknowledged that “autonomous weapon systems” do have a role to play, but the majority felt that they should not be allowed to use force. IPSOS, a global market research, and public opinion specialist company has done various surveys on the views of “killer robots” for Human Rights Watch and the Campaign to Stop Killer Robots (who have called for a ban of “weapon systems that can perform critical functions autonomously). Interestingly the latest survey, conducted between November 2020 and January 2021 across 28 countries, shows that there is a correlation between opposition and the age of the respondents; with a 54% opposition average for those under 35 years of age, and 69% among those ages 50-74. This can be indicative of several factors, including that the younger generation is more accepting of technology and that the older population is more likely to have had first-hand experiences of the horrors of war.

HRW believes that States should be considering these views when reviewing “autonomous weapons”. The perspectives do not create binding rules but may influence treaties and decisions to deploy the weapons. It is important to keep in mind that opinions change over time. While 50 years ago we could not imagine the possibility of unmanned remote-controlled systems being an integral part of military arsenals as they are today, we have come to accept them to a large extent. Surveys need to be seen in the context of the time, the way the questions are framed, and in this case, advancement in technology. As autonomy in weapon systems develop and the technology becomes more advanced, views on them will change. Armin Krishnan notes, in his book titled Killer Robots: Legality and Ethicality of Autonomous Weapons, that with “social conditioning” views on WSAF will evolve.

Regarding the principles of humanity, there is a concern about the importance of human agency in life and death decisions. A lot of anxiety exists about losing human control over weapon systems and war in general, which raises questions beyond compliance with laws and also considers whether the deployment of such weapon systems is in line with our values. Delegating decisions about life and death may dehumanize armed conflict even further. The concern is that allowing weapon systems to lethally target humans means they are not treated as unique human beings which is an afront on human dignity; late Professor Heyns referred to this as “death by algorithm”. It has also been argued that the anthropocentric formulation of IHL principles implicitly requires human judgment over decisions regarding force.

Conclusion

To date, the Martens Clause has never been used to ban a weapon. It must be kept in mind that at this stage the debate is still very speculative. Weapon systems that can perform critical functions autonomously, however, offer numerous advantages and it is unlikely that States will refrain from developing and deploying weapons that would give them the upper hand based on personally held views. What the Martens Clause does do is to remind us that in deciding on whether and how to design, develop and use WSAF we must do so in a way that safeguards our values instead of rendering them unsustainable.

Views expressed in this article are the author’s own and are not representative of the official views of Jus Cogens Blog or any other institute or organization that the author may be affiliated with.

If War Were To Doom Us All Tomorrow, The ICJ Would Still Plant A Tree

March 30, 2021June 7, 2021Posted in International Environmental Law, International Humanitarian LawTagged environment, Gabcikovo, ICJ, ihl, Nuclear Weapons, Pulp Mills, Rome Statute1 Comment

By Moises A Montiel M

Moisés Montiel is a Venezuelan lawyer advising individuals and governments in matters of International Law at Lotus Soluciones Legales. He holds an LLM from the Fletcher School of Law and Diplomacy at Tufts University and teaches IHL and Treaty Law at Universidad Panamericana and Universidad Iberoamericana in Mexico.

The ICJ is no stranger to the growing concern about the environment. In fact, the existence (albeit brief) of an Environmental Chamber credits the importance attributed by the Court to this global common good. Directly or indirectly, the bench has been faced with opportunities to deal with the subject and has done its share to advance the cause of environmental protection, even during armed conflict as exceptional situations.

Before any further comments are made, it should be recalled that article 59 of the Court’s Statute contains a prohibition to generate binding precedent. However, these are not any 15 Johns and Janes Doe issuing a sentence, the compliance pull emitted by any ruling of the ICJ (or its legitimacy, if the New Haven School is brought to bear) demands attention and even persuades into compliance.

In this intelligence, this piece aims to highlight relevant dicta of the ICJ in asserting that there exists, without need for juggling or licentious interpretation, international obligations protecting the environment (almost) completely applicable during armed conflicts.

The ICJ has advanced the conversation to a point where it is not unreasonable to assert that environmental protections during armed conflict should not be a by-product of the respect owed to protected categories, but an end in and of itself.

The Nuclear Weapons Opinion

In parallel to the main goal of the opinion, the Court drew attention to the impact that nuclear weapons could have on the environment and how their use is brutally incompatible with the protections stemming from the principles of precaution, military necessity, and distinction not just towards people, but to the environment itself (see paras. 27-33).

The Court acknowledged that a number of States expressed their conviction that the use of nuclear weapons both in armed conflict and outside of violates existing regulations. It reasserted the existence of a general obligation (untouched in the context of IHL) of States to make sure that activities within their jurisdiction respect the environmental rights of other States and the environment itself. A conclusion later supported by the Paper Mills case ruling.

In the Nuclear Weapons Opinion, the Court took note of the objections of some States which claimed that, for instance, obligations arising out of the ENMOD Convention would become inapplicable during armed conflicts. The Court answered by rephrasing the question and assumed from the start that the obligations were binding during conflict and, instead, analyzed whether they were absolute restrictions.

It answered the new question by subordinating the absolute prohibition to the logic of military necessity and the balancing act it demands. It concluded that the environment is an element to be weighed in assessing if the principles of necessity and proportionality permit attack. In supporting this conclusion, the Court recalled principle 24 of the 1992 Rio Declaration which recalled the duty of States to comply with the seminal principles of IHL with due regard to the environment and the effect of hostilities on it.

In its Opinion, the Court also recalled UNGA Resolution 47/37 concerning the protection of the environment during armed conflicts. This instrument reaffirms the duty to consider the impact of military operations on the environment. It could be assumed that the Court found an indication of opinio juris under customary IHL in this document.

Nuclear Weapons is the most important jurisprudential contribution towards the goal of demonstrating the existence of a solid normative regime protecting the environment during armed conflict and, also, the necessary starting point for any proposition grounded in blackletter law about responsibility for crimes against the environment during armed conflicts.

Gabcikovo-Nagymaros Project (Hungary/Slovakia)

In the ‘pocket guide for the casual conventional delinquent’, also dubbed by the Court as the Gabcikovo-Nagymaros Project case the bench held that the ‘ecological state of necessity’ would theoretically justify the failure to comply with conventional obligations, only that it was not satisfied that such a state of necessity existed in this case. Moreover, the Court entertained the notion that environmental concerns constitute an essential interest of the State, thus opening the door for it to give way to the invocation of rebus sic stantibus (the doctrine of the fundamental change of circumstances). Both of these substantially raise the entity of the environment as an object of special protection under general international law.

The Court also found that the deviation of the waters of the Danube by Slovakia was in breach of international obligations, a conclusion which warrants no further explanation if extrapolated to the realm of IHL, especially if understood in line with protections of basic essential goods for human populations.

While it is true that this case did not directly touch upon environmental protection during armed conflict, it is no less valuable a contribution since it highlights the importance of the environment and furthers the notion that it constitutes a global common good, both protected by general international law and (consequentially) by IHL.

This ruling also serves as a reminder that the control and enjoyment of natural resources is a direct function of the right to self-determination under both the ICCPR and the ICESCR. The conclusion being that no attempt against it is legal if not warranted by strict military necessity.

Pulp Mills on the River Uruguay Case (Argentina v. Uruguay)

The fundamental holding of this case is that environmental damage is equivalent to patrimonial damage under the law of international responsibility, and in acknowledging it the Court confirms an expansion of the jus standi (judicial standing) of States to demand reparation for environmental damages.

The takeaway for IHL, even if the Court did not point it out explicitly, is that in assessing damages derived from armed conflict, environmental damage can and should be taken into account when not strictly justified by necessity and proportionality, otherwise, the delinquent State or party will incur in responsibility and subsequent duty to repair.

This case is also relevant because it advanced and consolidated the notion that there is an international obligation to abstain from carrying out activities that may have an adverse impact on the environment. This obligation, naturally, cannot be held as extraneous to IHL because it does not forcibly, automatically, or singlehandedly hinder the legal conduct of hostilities.

The arguments on sustainable economic development considered in this case also have major implications for environmental protection during armed conflict. The Court noted that there can be no development without environmental protection. Consequentially, it would not elicit any blushing to consider that the obligation to respect the environment/development duo would still hold during armed conflict, even if terms and conditions do apply.

This rings even truer when the ILC Draft Articles on State Responsibility are brought in the mix, since -as codified by the articles- the existence of a state of war between States does not suspend duties owed, except when directly affected by hostilities. Since environmental protection in this context is mostly a duty of abstention, it stands to reason that unwarranted environmental damage not allowed by strict military necessity would suddenly become permissible without the need to prove that compliance with the obligation is directly affected by the state of hostilities.

Whaling in the Antarctic case (Australia v. Japan)

In this case, the Court availed itself of both the CITES and the Convention on Biological Diversity, among other treaties, in assessing the legality of Japanese whaling activities. Even if it is not directly concerned with IHL, some conclusions are worth noting.

The foremost takeaway is that both of these conventions entail duties of the State to be observed mainly within its territory. If the duty to honour obligations is not disrupted by a state of war, it seems plausible to suggest that the environmental duties incumbent upon the State in its own territory should not be suspended in the context of armed conflict not of an international character.

Most revealing in this particular case are – as they tend to be – the separate and dissenting opinions. Judge Yusuf’s dissent points toward the need to consider the shift in attitudes and societal values towards the interpretation of duties of preservation of environmental goods (paras. 25-26). Could the same necessity be derived from the increasing societal concern about the protection of the environment? And more so in contexts of armed conflict? There seems to be nothing barring an answer in the affirmative. Also enlightening – and in abundant detail, as is his custom- is judge Cançado Trindade’s opinion, in it, he insists in the need to understand the increasing multilateralization of environmental protection regimes as a function of a desire for more robust protections for the environment (paras. 7, 12, 22-24). This would come to support the notion of the environment as a global common good.

As hinted at the beginning of this piece, the Court is no stranger to the concern for the protection of the environment (during hostilities or outside of them) and it has time after time reaffirmed its place of honour among internationally protected common goods. Therefore, to say that environmental protection becomes secondary when the clash of swords is heard is to make the effet utile (effectiveness) of environmental protection treaties the first casualty of war, and the Court’s jurisprudence certainly seems to support this conclusion.

[None of the views and opinions represented in this article are necessarily representative of the official views and opinions of Jus Cogens Blog, or any institutes the author may be affiliated with.]

Jus Cogens Podcast Featured on Courting the Law

July 26, 2020October 20, 2020Posted in UncategorizedTagged ihl, international law, jus cogens, pakistan, podcastLeave a comment

13 July 2020

Courting the Law – Pakistan’s leading legal news and analysis portal, did a feature on JC Law Podcast’s journey and development since the first episode with Niels Blokker came out in 2018. Check out the entire piece in the link below.

https://courtingthelaw.com/2020/07/13/more/jus-cogens-podcast-on-international-law/