Addressing Autonomous Weapon Systems: Necessity of Countermeasures in International Humanitarian Law

2. I.the necessity of countermeasures to the LAWs in the view of IHL • (I)The rapid development of the LAWs raised international concern. • With the rapid development of military technologies, the LAWs has been attracting widely attention in the international community.

3. There is the same revolution in the military technology field. • The emergence and development of the “autonomous weapon system” which combine study, judgment, decision-making with actions will definitely give rise to significant and shocking changes in the future battlefield. • Such changes worried the international community a lot especially the researchers and vindicators of IHL.

4. (II) The LAWs can be an impact to the principles of IHL. • The first is the impact on distinction principle. The principle of distinction requires us distinguish between the military objectives and civilian objects , civilian population and combatants in the process of war.

5. The principle dates back to the regulations of the 1868 St.Petersburg Declaration and be confirmed and reiterated in the 1977 Additional Protocol I, Article 48. • Some of the lethal autonomous weapons cannot meet the standards of the principle of distinction because of the whole lethal function or other complicated reasons.

6. The second is impact on proportionality principle. There should not be large disparities between damage and military advantage. The 1977 Additional Protocol I, Article 57 stipulates that in the conduct of military operations, we should take all feasible precautions in the choice of means and methods of attack, and at the same time refrain from deciding to launch any attack which may cause incidental loss of civilian life ,injury to civilians, damage to civilian objects which would be excessive in relation to military advantage anticipated before.

7. So to speak, some of the LAWs can caused widespread and long-term damages; once the LAWs are put into practice, the damage proportion will lose control.

8. The third is the impact on the examination of the obligation of new weapons. The international law impose countries the obligation to examine their new weapons according to the IHL cautiously.

9. The international obligations can be found both in the 1868 St.Petersburg Declaration and the 1977 Additional Protocol I, Article 36. There is no doubt that the fulfillment of the obligations will fail if no country intervene the development of LAWs.

10. II. The Basic Regulations of handling the LAWs in the Existing IHL and the Shortcomings (I)The basic regulations of regulating operational means and methods in the existing IHL.

11. It’s not objective to say that the existing IHL has no regulation on the emerging LAWs. The regulations on the operational means and methods in the existing IHL can be classified into the following 3 types:

12. i. Prohibitions and restrictions on specific weapons under international treaty law. ii. Prohibitions and restrictions on specific weapons under customary international law.

13. According to the ICRC study on Customary International Humanitarian Law , the use of poison or poisoned, biological and chemical weapons are prohibited.

14. iii. The general principles on the means and methods of warfare in IHL. • The main principles conclude the principles of limit, distinction, proportion, military necessity, etc. According to the principles, consideration should be given to the choice of operational means and methods when the treaty law and customary law are absent.

15. It should be noted that the “Martens Clause” should be observed among these principles and international customs. • The clause is legally binding to the development and application of any kind of new weapons including the LAWs. The LAWs would not gain acceptance by international community unless they meet the principles of humanity and the requirements of public conscience.

16. The clause can be found in preamble to the 1899 Regulations Respecting the Laws and Customs of War on Land. And it was affirmed in the preamble to the 1907 Hague Convention(IV) and Article 1(2) of Additional Protocol I. An advisory opinions of ICJ in 1996 stated that it “had proved to be an effective means of addressing rapid evolution of military technology”.

17. (II)The shortcomings of the regulations on the LAWs in the existing IHL. Despite the spirits and principles on the weapon development and applications in the resources of international law,the specific regulations on LAWs are still absent. Even the Article 36 which stipulates the obligation of countries to examine new weapons doesn’t provide us specific measures, not to mention the legal liability when a country breaches its obligations.

18. The performance of the obligations relies on the morality and self-determination of countries. As a result, the general obligations of new weapons examination can hardly be fulfilled when military necessities are strong.

19. III.The strategy and handling choices on the LAWs in the view of IHL. • (I)The premise of the international legislation. Making regulations on the evolution and application of LAWs through the international legislation is the inevitable choice to regulate the operational means and methods and maintaining the principle of humanity.

20. We should define the LAWs, distinguish categories and looking for practicable control measures before the legislation. However, the international community has no reached board consensus on the 3 issues mentioned above at present and the related research is not sufficient.

21. The main disagreement on the definition of the LAWs has been over the autonomy, the level of autonomy and the demarcation of lethality among experts and researchers from different countries.

22. So far, the autonomous weapons which have been applied to battlefield still operated by people to control weapon platform movement, target identification and selection, fire employment and so on. Experts predict that in the future, it’s technically feasible for the autonomous weapons to operate automatically without human operators. Hand-operated, semiautomatic and automatic weapons may coexist during the evolution of weapons.

23. And according to the features of land, air and naval warfare, the 3 modes of operations can be used simultaneously in reconnaissance, safeguard and attack. • Therefore, it is difficult to reach an agreement on uniform or separated treaty-making.

24. Through the above analysis ,it is easy to see that to define the LAWs clearly on the base of the contemporary international law and military practices is difficult.

25. Type classification of the LAWs also plays an important role in the legislation. From the level of autonomy the categories of the LAWs can be distinguished into 3 types: the hand-operated (attack UAV which need remote control), the semiautomatic (weapons operated by people when taking off, adding fuel or ammunition) and the automatic (intelligent battle robots). The level of autonomy is directly related to the legal liability in operations.

26. The LAWs can be classified as aerial, naval and terrestrial according to the battlefield on which they are used. • The classification of the LAWs is of great importance in regulating operational behaviors and the legal liability, but widely accepted distinguishing standards are not available at present.

27. As for control measures, the main contradiction lies between prior control and post control. 1977 Additional Protocol I, Article 36 imposed Parties the authority and obligation to review new weapons . In this spirit and referring to such international law, Parties should examine new weapons which be planned to develop and use as to achieve the goals of the treaties. From another point of view, the weapons are more autonomous , the less the risk of injury of combatants ;the weapons are more lethal, the better the wounding effects .

28. But for the military advantages and operational effectiveness, it is hard for the Parties to control the lethality and autonomy of new weapons themselves in the context of regulations in IHL.

29. Most Parties have full confidence to the legality of their LAWs before they are applied on battlefields, which makes the prior control become difficult. If we take prior control measures which raise the bar of the legality of the LAWs by regulating the lethality and autonomy through international legislation, the Parties’ interest of developing and using weapons would be hindered.

30. Due to the absence of specific rules in international law, the creation of law to prohibit or restrain such weapons can be a great challenge. • Regulations on the LAWs after the applications are post control, which cannot give full play to the prevention function of law or establish the criteria for the legality. • Undoubtedly, such regulations have many drawbacks.

31. (ii)The legislative path selection on the LAWs • There are 2 main legislative path selections now in international community. • One is the so-called“public legislation”,that is, one or more countries put a motion, draw up law draft and advocate the Accession Treaty of new members.

32. Both the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction(Ottawa Treaty),and the 2008 Convention on Cluster Munitions are achievements of“public legislation”.

33. The other is the“official legislation”,that is, the UN-led treaty-making path such as the 1980 UN Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons. Compared with the latter, the “public legislation” usually frame a treaty effectively while it is sometimes not so ideal to obtain global recognition, influence and legal binding effect .

34. The“official legislation”may cost longer time but can take advantages of the status and influence of UN, It can also provide convenience for the implementation of treaties because of the participation of sovereign states. Therefore, my conclusion is that the “official legislation” is a referential choice because it can fulfill the treaty obligations under the supervision of the UN agencies.