Practical Pieces & Perspectives

The cutting-edge technology of autonomous weapon systems (AWS) – robotic weapons that once activated, are able to make the decision as to who to target or harm without any further human intervention or control[1] – presents several legal, ethical, and security challenges.  There is no agreement among states on how this emerging technology should be governed. Do we need new laws or are existing ones adequate?  If existing laws are inadequate to govern AWS, should the international community turn to ethics to fill the gaps? These are the questions that are answered in this piece.

The UN Secretary General has identified AWS as one of the critical issues that the international community needs to urgently address.[2]  Even amidst the deadly coronavirus pandemic, states continue to realise the urgency of the matter, organising, for example, the first virtual forum on disarmament.[3]  As the host of the forum, the German Government reiterated that “letting machines decide over life and death of human beings runs against all of our ethical standards.”[4]  It is argued that where machines make decisions about who lives or dies, the fundamental right to human dignity is violated.[5]

Heyns notes that AWS raise far-reaching legal and security concerns.[6]  AWS with unbridled autonomy in their critical functions are unpredictable and incapable of complying with international humanitarian law (IHL)and other applicable laws.[7]  Critical functions are those that relate to the decision of who to target or harm.[8]

Furthermore, in the event that an AWS commits crimes, crimes that the person who deployed them had no intention to commit,[9] who is to be held responsible?  AWS may thus create an accountability gap in violation of victims’ right to a remedy.[10]  Scholars have also argued that AWS may lower the threshold on states’ resort to use of force thereby undermining international peace and security.[11]

Often, debaters emphasise that AWS must be used in compliance with international law.[12]  The question is whether such international law is adequate to govern AWS?  IHL principles such as distinction, proportionality and precaution were designed to be applied by humans not machines.  Yet the advent of AWS presents a situation where such rules and the tasks they present may be borne by machines in an unprecedented manner that creates a legal gap.

A legal gap is “a situation where the absence of a law or legal norm prevents an inherently ‘illegal’ situation from being addressed, or where the applicable law is incomplete such that it prevents States Parties from fulfilling their obligations.”[13]  A legal gap may also be understood as the “absence of something that arguably ought to be there.”[14]  The International Committee for the Red Cross (ICRC) has already noted that AWS raise questions that go beyond compatibility with our laws to include questions of acceptability to our values.[15]  For that reason, the ICRC has underscored the need for internationally agreed limits on autonomy in weapon systems.[16]  The Campaign to Stop Killer Robots has provided an example of an additional legally binding treaty that sets out such limits.[17]

While the treaty suggested by the Campaign to Stop Killer Robots draws from existing limits on autonomy as read into existing provisions of IHL, it also draws inspiration from ethical standards that call for the maintenance of human control to preserve human dignity and the value of human life.[18]  Indeed, this turn to ethics is desirable, yet there are diverging views on which ethics are relevant and how they should be applied and interpreted.

Notwithstanding the current disagreements on the applicability of ethics to AWS and their interpretation, ethics may potentially play a defining role in the international response to AWS. To begin with, while international legal theory does not necessarily have explicit claims that ethics and international law are intertwined, it can be discerned that a planetary ethic is at the heart of international law treaties, in particular, those relating to disarmament.[19]  Indeed, “when we theorise about international law, we draw on ethical discourse to create an ethic of international law.”[20]  In addition to sustaining, challenging, and changing international law, ethics serve as gap fillers.[21]

In the current discussions, there are sharp conflicts as to which ethics, law or normative commitment should govern AWS.  Whenever there is reference to ethics, in particular those that relate to human dignity, the debate reaches an impasse.  By end of 2019, the UN Group of Governmental Experts on AWS listed ethics as one of the points of divergence that needs further consideration.

There are many competing possibilities on how to apply and interpret ethics to AWS. In making a choice on the available competing possibilities, debaters have to engage in ethical reasoning to effectuate the international good.[22]  The effectuation of the international good is what intrinsically enjoins ethics and international law since that which is good does not spring from nowhere.[23]

Further, for those debaters who emphasise compliance with international law in the use of AWS, it is not just a matter of legal positivism but also a sense of moral obligation.  The state agents who represent states in Geneva on the AWS debate are, indeed, confronted with moral dilemmas.  To resolve them, they may be forced to resort to moral reasoning.  Likewise, there are states who feel morally pressured by public opinion against AWS or the potential of disapproval by fellow states. That process itself is ethics playing a role in the governance of AWS.

Of course, some scholars are sceptical about the idea of turning to ethics in order to create a new treaty on AWS.[24]  The radical realist’s idiosyncratic response is that an ethical basis to outlaw certain AWS is not only weak but undesired because these emerging military technologies are currently at the centre of state military power, dominance, national security and survival.[25]  The state’s need for survival is considered to outweigh the need for compliance or consideration of certain ethical norms.  The development and potential use of AWS is not, as such, a standardised search for happiness or avoidance of displeasure or disapproval by fellow states or diplomats, it is a typical struggle for survival, preservation of national security, national existence and maintenance of global dominance. [26]

Are ethics applicable to such politics of survival and dominance and can they have any influence?  Of course, as many scholars would say, law and ethics are applicable to everything including to politics of survival.  Yet, in politics of survival, there is often a conflict between the law, morality and ethics.  There are those who argue that that while the use of AWS may be morally or ethically wrong, there are situations where their use may be necessary.[27]  It is this kind of considerations that is currently threatening to break the fragile fabric of diplomatic consensus in the UN debate on AWS.[28]

Furthermore, others argue that appealing to ethics in the discussions on AWS is an unscrupulous move “designed to conceal self-interested action’[29] by certain groups “in order to justify and maintain their dominant position.”[30]  For example, Evans has argued that ethical standards such as those relating to public conscience and morality are too vague to be helpful in the AWS debate and they are only invoked by NGOs in a bid to usurp the legislative powers of states.[31]

Along the same lines, Koskenniemi argues that in an international law discussion like that on AWS, “the turn to ethics is politics. In the case of international law’s obsession about military crises, war and humanitarianism, it is a politics by those who have the means to strengthen control on everyone else.”[32]  In his view, sometimes a turn to ethics involves “shallow and dangerous moralisation which, if generalised, transforms international law into an uncritical instrument for the foreign policy choices of those whom power and privilege has put into decision-making positions.”[33]

While ethics may indeed be politics at times, it is fruitful to consider ethics when grappling with resolving problems such as those posed by AWS because essentially, it boils down to what is internationally good or bad.  Of course, scholars have to be aware of the risk of forcing out their own versions of right and good.  It is indeed difficult “to transport a socially imbedded practice such as ethics to an international community without stamping out other competing social practices through the nomenclature of law.”[34]  Yet, as already mentioned above, most of disarmament treaties that are in force today have their basis in ethics. It will not be easy to lay down an agreed ethical basis for governance of AWS, yet it is a path that the international community cannot afford to avoid.

When it comes to problems – in particular, those raised by AWS – the language of existing law alone cannot provide an adequate answer to the special case that is presented by AWS. Consideration must be given to other discursive tools such as ethics if there is to be hope for some governing framework on this emerging technology. Debaters on AWS ought to realise that the special case of AWS takes us in personal direction, somewhere where we view the situation not only from the legal or utilitarian lenses but through our souls.  It is indeed, a classic and special situation that invites the legal minds, diplomats, representatives of organisations and other professionals to “throw away dry professionalism and imagine themselves as moral agents in mission civilicatrice”.[35]

Likewise, in their moral reasoning on AWS, diplomats and all those who act on behalf of states ought to remember that the dark passions of global power politics or desires for global dominance that military artificial intelligence technologies can bring should not overwhelm the ethical stipulations and international law’s balanced calculations.