Accountability gap: autonomous weapon systems and modes of responsibility in international law.

Author:Chengeta, Thompson
 
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If the nature of a weapon renders responsibility for its consequences impossible, its use should be considered unethical and unlawful as an abhorrent weapon. (1)

  1. INTRODUCTION

    The development of unmanned systems that are remotely controlled and those with increased autonomy in making the decision to target or kill humans has been a worry to the international community for more than a decade now. The idea to develop Autonomous Weapon Systems (AWS)--machines that, once activated, are able to make the decision to kill humans without further human intervention--has sparked heated debates across the globe. (2) The old adage, "technology is a double-edged sword" (3) has never, in the history of weapons development, been more pertinent than it is with AWS. On the one hand, there are claims that AWS promise a potential to save lives--to make a change to the unacceptable current state of affairs in armed conflict and elsewhere--where force is used. (4) On the other hand, however, there are compelling reasons to believe that the deployment of AWS will result in the violation of the right to life, dignity, and other important rights. (5) Scholars, organizations and states are divided on how to respond to AWS. (6) One of the major issues of concern relates to accountability. In this paper, I focus on the challenges of accountability that are posed by AWS and the possible solutions to such.

    AWS without 'Meaningful Human Control' are unpredictable on the battlefield or wherever they are used. (7) In the event of them violating the law--violations that are not intended by the person deploying them--it is not clear who is legally responsible, thereby creating an accountability gap. (8) Accountability is important in international law because where there is an accountability gap, the victims' right to a legal remedy is adversely affected.' There are four forms of accountability that I am going to discuss in this paper: individual, command, corporate, and state responsibility. (10) Under individual and corporate responsibility, there is civil and criminal liability.

    In summary, the arguments I make in this paper are: the above mentioned forms of accountability are complementary to each other; they are not alternatives to the exclusion of the other. (11) For example, if AWS create an accountability gap-as far as the individual criminal responsibility of those deploying AWS on the battlefield is concerned--that specific gap is neither closed by suing the responsible individuals under civil responsibility nor holding the manufacturing company liable under corporate responsibility. (12)

    Under individual responsibility, as long as there remains the possibility of AWS acting in an unpredictable manner, they may present an unresolvable challenge as far as the establishment of the accused person's mens rea is concerned. I also argue that the proposed system of 'split-responsibility' over use of a weapon--where responsibility is divided or shared between the fighter and other persons involved in the production of AWS like manufacturers--is not only foreign to international weapons law as the lex specialis on the use of weapons but also inappropriate and hence unwelcome. (13)

    As for command responsibility, I argue that it is inapplicable to the relationship between AWS and those deploying them. No analogy may be drawn between the relationship of human commander versus a human subordinate and that of the human fighter versus a robot. The continued referral of a person deploying AWS as a commander gives a misleading impression that AWS are somewhat combatants or fighters. (14) AWS must be developed in a manner that they remain weapons in the hands of a fighter who is liable on the basis of individual responsibility in cases where crimes are committed. (15) It should not, and must not, be a case of a commander and subordinate where the notion of command responsibility is invoked. Command responsibility is only applicable to the extent of the responsibilities of a human commander over his or her human subordinates involved in the deployment or use of AWS. (16)

    Persons involved in the production of AWS have their own responsibilities in the designing, manufacturing, selling and transferring stages. (17) This is where corporate responsibility also comes into play. I note, however, that although corporate responsibility is a sound form of accountability, it has an inherent weakness of putting the onus on victims to bring cases against robot corporations which in some cases are registered in foreign countries thereby presenting insurmountable difficulties for the victims. Victims will not only face monetary challenges in terms of legal costs but will also be confronted by jurisdictional challenges. (18)

    State responsibility is like an umbrella to all the forms of responsibility mentioned above: covering and enforcing corporate responsibility at the design stage of AWS up to selling or transferring stage, enforcing individual and command responsibility when the weapon is finally used on the battlefield or law enforcement situations. (19) As one commentator has observed, when considering accountability over the actions of AWS, state responsibility "is the frame of reference for considering other forms of international responsibility." (20) From a state responsibility perspective, I also acknowledge the genuine fear that AWS may make it possible for some states to deploy force against other states in non-attributable ways.

    In conclusion, I recommend that the only way to address the accountability challenges that are presented by AWS is to make sure that humans exercise 'Meaningful Human Control' over weapons. Where 'Meaningful Human Control' is exercised, AWS will remain mere weapons in the hands of the warriors--that is exactly what they should be. In short, however, I propose that the notion of 'Meaningful Human Control' over the use of a weapon is only satisfied where the control that a fighter exercises over a weapon is to such a degree that the actions of an Autonomous Weapon System are entirely his--the system depends on the control of the human fighter to execute the 'critical functions' like the decision as to who to kill and legal calculations on the lawfulness of an attack.

  2. THE IMPORTANCE OF ACCOUNTABILITY IN INTERNATIONAL LAW

    It is necessary to appreciate the seriousness of the problems that are raised by AWS in terms of accountability before going into the details of arguments summarized above. I mentioned in the introduction that the potential accountability gap created by AWS will impact negatively on the victims' rights to remedy. (21) This is a very important area of international law. After all, without accountability, international law is nothing but the proverbial brutum fulmen--a harmless thunderbolt. (22)

    Steven Ratner observes that the purpose of international law is "not only in setting standards for governments, non-state actors and their agents, it is to prescribe the consequences of a failure to meet those standards." (23) International Humanitarian Law norms--some of them part of jus cogens--will mean nothing without accountability for failure to abide by them. (24) Some scholars have observed that non-accountability of violations may pose a threat to the general maintenance of peace and security. (25)

    The issue of accountability is fundamental in international law because it is inherently connected to the victim's right to remedy. (26) In particular reference to remedies for violations as a result of use of certain weapons, Meagan Burke and Loren Persi-Vicentic categorically state that for both civilian and military victims:

    [Unlawful] use of a weapon will give rise to a right to a remedy or reparation. Such unlawful use of weapons includes: any use of a weapon that has been outlawed in all circumstances, such as biological weapons or, at least for any State Party to the relevant treaty, anti-personnel mines or cluster munitions; the use of indiscriminate weapons or the indiscriminate use of a weapon as a method of warfare in an armed conflict; or the use of force that is disproportionate or excessive during law enforcement. Any wilful or negligent failure to protect victims from harmful weapons, especially explosive weapons delivered from drones, mines, sub-munitions or other victim-activated explosive devices has also been recognised [...] as unlawful conduct tantamount to a rights violation. (27) To the list that is mentioned by Meagan Burke and Loren Persi-Vicentic, I add Autonomous Weapon Systems. The accountability challenges that are posed by AWS must be taken seriously as they threaten some aspects of victims' right to remedy. (28)

    Victims of violations of International Humanitarian Law and International Human Rights Law have a right to remedy. (29) In International Law, victims are understood to be "persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment" of their fundamental rights. (30) In International Criminal Law, such harm is "as a result of the commission of crime" (31) and may have been directed at the victim's person, such as "property which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes." (32) In the case of AWS, it means that the victim whose rights are violated by AWS is entitled to a remedy--and the question is: In the case of AWS, are remedies available for the victim?

    Given the importance of accountability, it is the paramount duty of states to provide victims with remedies; not only in circumstances where the state is directly responsible for the violations but even where the violations are committed by non-state actors. (33) Thus, states have an obligation to protect human rights through the adoption of various measures. (34) This obligation of the...

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