Part 1: What is Legal Review and What are its Legal Basis
The legal review of weapons involves checking if new weapons, methods, and strategies for warfare comply with international law, particularly international humanitarian law (IHL). This review ensures that new weapons or methods don't cause unnecessary suffering and adhere to established legal norms.
The main rule for this review comes from Article 36 of Additional Protocol I to the Geneva Conventions of 1949 (AP I). This article requires countries to ensure that any new weapon they develop or use complies with these rules and other relevant international law:
Article 36 - New weapons : "In the study, development, acquisition, or adoption of a new weapon, means, or method of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party."
This regulation places a responsibility on States Parties to ensure that the weapons they procure and the methods of warfare they develop align with AP I and other relevant international legal norms.
This provision is binding on all 174 States Parties, including all EU member states. Natalia Jevglevskaja points out that while there is no consistent state practice (usus), the recognition of the provision's enforceability as law (opinio iuris) is acknowledged, yet this norm does not hold customary status. Some states, like the United States (a signatory state) and Israel (not a signatory state), implement this type of legal review based on their domestic law.
Despite only around 20 states globally undertaking such a review, the rising interest in autonomous weapon systems has brought the matter of legal review to the forefront. States are considering this process to address the legality of disruptive weapons.
Part 2: Understanding LAWS and International Discussions on this Topic
Lethal Autonomous Weapon Systems (LAWS) are weapon systems that can independently search for, identify, and engage targets without human intervention. These systems raise significant ethical, legal, and practical questions about their use in armed conflict.
International discussions on LAWS have primarily been held under the United Nations Convention on Certain Conventional Weapons (CCW). These discussions focus on the implications of LAWS for international security, humanitarian considerations, and the potential need for new regulations or prohibitions. The debates involve various stakeholders, including states, international organizations, and civil society, who emphasize the importance of maintaining human control over the use of force.
Key issues include the necessity of human judgment in decisions to use lethal force, accountability for actions taken by autonomous systems, and the ability of these systems to comply with the principles of distinction and proportionality under IHL. There is also concern about the ethical implications of delegating life-and-death decisions to machines, which could undermine the moral responsibility traditionally associated with warfare.
Part 3: Challenges of Legal Review of LAWS
The legal review of LAWS poses unique challenges due to their autonomous nature. One of the primary challenges is ensuring that these systems can adhere to the fundamental principles of IHL, such as distinction, proportionality, and military necessity.
Distinction requires that combatants differentiate between military targets and civilians. LAWS must accurately make these distinctions to avoid unlawful civilian casualties. However, the complexity and unpredictability of real-world scenarios make it difficult for autonomous systems to reliably perform this function without human oversight.
Proportionality involves weighing the military advantage gained from an attack against the potential harm to civilians and civilian objects. This principle requires context-sensitive judgments that may be beyond the current capabilities of autonomous systems. The lack of human judgment in LAWS could lead to disproportionate harm in certain situations.
Another significant challenge is accountability. Determining who is responsible for the actions of an autonomous system - whether it be the programmer, operator, manufacturer, or military commander - is complex. This ambiguity in accountability could undermine legal and ethical standards in armed conflict.
Regarding the aspects of the legal review process, it is essential to consider the material and normative scope of the review, the timing at which the obligation is activated, and procedural considerations. Given the ambiguity of Article 36 AP I and the lack of comprehensive international legal regulations on the matter, the analysis is grounded in best practices advocated by the International Committee of the Red Cross (ICRC) and drawn from operational national procedures.
The complexity of the legal review is contingent upon the sophistication of the subject under examination. While it is reasonable to assume that evaluating the legality of the use of firearms is relatively straightforward, assessing the legality of military robots, especially autonomous ones, demands intricate and resource-intensive analysis. States are required to scrutinize whether the typical and anticipated use of a particular weapon could potentially be prohibited under any circumstances. Consequently, a legal review cannot reasonably encompass all conceivable misuse scenarios, as that would render the study unfeasible.
Despite the title of Article 36 AP I, the obligation to conduct a legal review is not applicable to every newly introduced weapon in the market. The notion of novelty, in this context, pertains to the standpoint of the state developing or acquiring the specific means or method of warfare in question. This encompasses conventional weapons, which were the primary focus of the AP I, but also extends to novel types of weaponry, following the wisdom that 'if humans do not master technology but allow it to master them, they will be destroyed by technology.'
This matter is intertwined with the normative scope of the review. The language of Article 36 AP I makes it evident that the legal review must consider the provisions of AP I, with particular emphasis on Article 35 AP I. Furthermore, it should encompass other pertinent international law that are applicable to the state and the subject of the review. In particular, it is advisable to adopt a multidisciplinary approach that takes into consideration safety, environmental impact, health, human rights, and administrative regulations concerning matters such as registration, transportation, and insurance of the subject of the review.
As a result, it has been recommended that the team responsible for the legal review should comprise specialists with diverse backgrounds, including military experts, engineers, lawyers, psychologists, and medical professionals. It cannot be ruled out that, with more technically advanced weapon systems, ongoing cooperation with the manufacturer's representatives will be necessary. This collaboration would aim to adequately assess the robot's suitability and to tailor the method and scope of end-user training or specific conditions linked to its updates and maintenance.
For 'older' or well-established weapons, the legal review process is relatively straightforward, as it primarily involves an analysis of existing international agreements to determine whether a specific means of warfare is prohibited or restricted by these agreements. In contrast, when dealing with newer means of warfare like military robots, there is a lack of dedicated international standards. Therefore, the legal analysis primarily relies on the interpretation of existing general standards, especially the fundamental principles of IHL. Consequently, in the case of the latter, variations in assessments by individual states may arise.
The above holds particular significance because only a limited group of military powers are actual weapons-producing states, while others procure weapons from these producers. Consequently, a situation may arise where a producer state (e.g., the United States) may assert that a specific weapon complies with the international law that is applicable to it. However, this assertion may not hold true for the acquiring state. A prime example of this is the cooperation among NATO member states, which include EU member states and the United States, among others. Due to variations in states' international legal obligations (stemming from differences in the ratification of various international agreements), they may not always be able to act uniformly in a combat environment.
Within the context of European states, a notable distinction arises from the regional human rights protection system, with the European Court of Human Rights at its core. This system places additional obligations on these states, particularly concerning international human rights law (IHRL) standards, especially in the context of the methods of warfare employed. Adding to this, the lack of transparency and public disclosure of review methods, along with the resulting absence of standardization and divergent scopes regarding international legal obligations, significantly impact the matter of interoperability. Consequently, the obligation to conduct a legal review is tailored to each manufacturing, purchaser, or user state. If any modifications or enhancements are introduced to a robot, a legal assessment of its legality must be re-conducted to evaluate the implications of such alterations.
A noteworthy point to consider is that, aside from the legal aspects, there is no consensus regarding whether the subject of the review should also be assessed in terms of, as encapsulated in the Martens clause, the 'principles of humanity and requirements of public conscience.' The author holds the view that such an ethically-oriented approach is acceptable, and this viewpoint is confirmed in the practices of certain states like Australia and the United Kingdom. In essence, invoking the ethical dimension and assessing the desirability of developing a specific means or method of warfare can methodologically strengthen a state's ultimate decision on whether to engage in research or incorporate a particular means or method of warfare into its armed forces' arsenal.
Regarding the procedural aspects, in addition to the consideration that the research team should be chosen on a case-by-case basis, taking into account the specific challenges associated with the subject of the study, it's essential to highlight a few key points from good practice that states should consider. The ICRC recommends that a responsible authority, whether within political or military state structures, be designated to oversee the procedure on every occasion it is conducted. This authority should establish a clear trigger point for the procedure's implementation, introduce appropriate documentation, and establish rules for making the final decision. The outcome of this review can be presented in the form of a report, which should indicate whether a particular measure or method of combat is deemed acceptable and, if so, specify the situations in which the state should refrain from using it and outline the necessary precautions. While there is no obligation to publicly disclose the results of the review, considering the strategic interests of states and the necessity of maintaining military capabilities as classified information, the ICRC advocates for at least a partial release of such a report or the establishment of an international body to oversee the transparency and integrity of national review procedures.
Part 4: Future Developments Needed to Fully Embrace Legal Review of LAWS
To fully embrace the legal review of LAWS, several developments are necessary at both national and international levels. First, there needs to be a clear and universally accepted definition of LAWS to ensure consistent regulation and review standards. This definition should encompass the various degrees of autonomy in weapon systems and their potential uses.
Second, integrating IHRL into the review process is crucial. While IHL provide the main framework, IHRL offers additional protections to ensure humane use of these technologies.
Third, establishing international guidelines and best practices for the legal review of LAWS would help standardize the process across countries. These guidelines should be developed collaboratively by states, international organizations, and civil society.
Finally, ongoing research and dialogue on the ethical and legal implications of LAWS are necessary to keep up with technological advancements. Regular updates to legal frameworks and review processes are needed to address new challenges and ensure the use of autonomous systems in warfare remains compliant with international legal and ethical standards.
In conclusion, the legal review of LAWS is a complex but essential process that requires integrating IHL, IHRL and ethical considerations. By adopting comprehensive review practices and fostering international cooperation, countries can ensure the use of advanced technologies in warfare aligns with the principles of humanity and justice.
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