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Strife Series: Legal Violence and Legitimacy Building in the United States – Introduction

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The White House at Night. Photo Credit: Robert Scoble, licensed under Creative Commons.

The history of United States foreign policy is a fascinating and complex subject. It is marked by the disparity between its successes and its failures. American contributions to the international system range from constructive and valuable to destructive and destabilizing, and the nature of the United States political ecosystem ensures a level of discontinuity from year to year. At its best, the United States acts as the ultimate guarantor of enforcement behind international governing bodies like the United Nations or the World Trade Organization. At its worst, it can delegitimize all the above and cause crises of faith in global governance. The one unifying thread between all the disparate manifestations of US foreign policy is its domestic law. Everything the US does abroad must conform with the law of the land. This series will focus on how the law has been both sword and shield for the controversial agendas of presidential administrations in the last 50 years.

In collaboration with my esteemed colleague, David A. Harrison, the actions of Presidents Ronald Reagan and George W. Bush will take center stage in an analysis of how the law was manipulated to normalize and justify state violence abroad. We have selected these two administrations because their abuses were particularly well-documented and there is plenty of room for discussion, but it should be noted that the techniques used by Reagan and Bush are by no means unique to their presidencies. Future administrations led by Democratic presidents have extensively used the tools given to them by their Republican predecessors, but the legal strategies themselves were pioneered by conservatives.

The Reagan Administration’s Contradictory Foreign Policies

During the 1980s, the United States split its focus between its global fight against the spread of workers movements and communism, and the suppression of drug trafficking. The Reagan administration considered these maxims as the core components of its foreign policy. In Latin America, these two agendas frequently ran into conflict with one another, as the Drug Enforcement Administration and the Central Intelligence Agency had competing interpretations of how to realize Reagan’s vision. The DEA needed to stop the flow of cocaine into North America, but the Central Intelligence Agency had a vested interest in keeping the Narcos afloat because their funds were being used to underwrite legally dubious ‘regime change’ activities throughout the Latin American region. The expansion of executive power and administrative authority during the Cold War gave the intelligence community a significant degree of autonomy that the Reagan cabinet was keen to take advantage of. As a result, Reagan’s foreign policies were disjointed and frequently undermined by the competing interests of his underlings.

Harrison’s first installment in the series will focus on how the intelligence community used its new powers to back politically repressive movements, to the detriment of both Latin and Central American communities and Reagan’s own agenda. This scattered and problematic approach brought attention from Congress, and an attempt was made to make the CIA account for its actions. We will discuss the CIA’s strategy to avoid Congressional oversight and we will pierce through its smokescreen by questioning the validity of the arguments made by the Reagan administration’s legal counsel.

The Bush Administration’s Legal Torture

The last two parts of the series concentrate on a specific set of documents produced by the United States Department of Justice under the Bush Administration colloquially known as the Torture Memos. During the War on Terror, the United States began pursuing a highly controversial campaign of violence against prisoners of war that were alleged to have information about the operations of the terror group known as al-Qaeda. Under both international law and the domestic laws of the United States, torture is illegal. This fact was merely an inconvenient stumbling block for the Bush administration, as emergent legal strategies such as the Unitary Executive theory had already given the President the tools necessary to evade the law.

Harrison’s two-part series on the torture memos explains the legal ramifications of the Torture Memos and how they affected Abu Zubaydah—a Saudi Arabian man imprisoned on the presumption of involvement with terrorism. This case illustrates how a legal strategy can translate directly into state violence, and how important it is to resist the discursive minimization of practices such as water boarding. The Bush Administration argued that its ‘enhanced interrogation’ techniques were not capable of causing permanent psychological distress, and repeatedly denied the status of its detainees. Harrison engages the Bush administration’s arguments on a substantive level with evidence from psychiatric medical professionals and explains why these flimsy defenses must be categorically rejected.

Conclusion

My hope in creating this series is to shed light on the interconnected nature of law and state violence, and to show the disconnect between what is legal and what is ethical. The cases included in this series are narrowly focused on how the phenomenon manifests in the United States, but the law has been the primary tool of the state in maintaining its monopoly on force since antiquity, and its importance has only waxed since the enlightenment. Understanding how systems of power remain in place requires a much deeper reading of history, but the content of this series should provide insight into how the United States manages dissidents and keeps its hegemonic status intact.

Whither America First: A New US Foreign Policy under Biden?

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by Owen Saunders

Joseph R. Biden (D) and Donald J. Trump (R), the candidates in the 2020 US Presidential Race (Image credit: BBC)

After a long election cycle, the US Presidential Election is almost concluded. In January, Joe Biden will become the 46th President of the United States. Whilst Democrats managed to retain control of the House of Representatives, the Republican Party looks likely to hold their Senate majority. The Senate has an important role to play in the ratification of treaties negotiated by the President and, thus, the successful execution of his foreign policy. Just as Trump’s foreign policy offered a break with the Obama-era, the question is now what change will Biden bring: a return to the goals of his former running mate, or a new unique path? As of 20 January 2021, a new foreign policy dynamic will be in place. The legacy of Trump’s ‘America First’ approach, however, may limit Biden’s ability to restore US leadership globally.

On environmental issues, Donald Trump had repeatedly criticised the Obama administration’s engagement in the 2015 Paris Agreement, arguing that the accord would unduly impact rustbelt states and American sovereignty. Consequently, last year Trump announced the formal withdrawal of the United States, a decision coming into effect the day after the election. Joe Biden has promised to rejoin the accord and can do so without Senate ratification. The problem sits with the Senate, who again must approve many of the measures required to meet the goals of the accord. Former President Bill Clinton experienced similar resistance in regard to the 1997 Kyoto Protocol.

In the course of his presidency, Trump has also repeatedly turned a blind eye to human rights abuses, most recently in the case of China’s Uighur Muslim minority. He has refused to condemn or sanction China over the issue because it would threaten ongoing trade negotiations. The Biden campaign, in comparison, repeatedly called the treatment of the Uighur population ‘genocide’. Similarly, China has imposed national security legislation in Hong Kong, restricting freedoms and denying Hong Kongers of their sovereignty. In reaction, Trump signed an Executive Order in July of 2020 calling for “Hong Kong Normalization.” Biden, like Obama, can be expected to outwardly condemn these actions.

Bilateral and multilateral trade arrangements have been heavily criticised by Trump as damaging for American economic interests. One of Trump’s first foreign policy decisions was to withdraw from the Transpacific Partnership negotiated by Obama (TPP). Biden will presumably attempt to resuscitate the pact, though he will need Congressional approval and Senate ratification. Further, Trump successfully re-negotiated the North American Free Trade Agreement (NAFTA) which he had repeatedly lamented for undermining the US auto-manufacturing industries. The new agreement, the Canada United States Mexico Agreement (CUSMA), was mainly a cosmetic change, however, it does enforce greater percentages of steel and aluminum produced in the US to be integrated in automobiles. Changes to CUSMA are unlikely under a Biden administration. Early on, Trump imposed trade tariffs on Chinese goods to force a better trade deal, but these initiatives largely failed to address trade disputes. Preliminary agreements to reduce tariffs had been reached by early 2020 but then the COVID-19 pandemic took hold. Biden has argued that the tariffs have only hurt US businesses and consumers and will likely pursue less confrontational methods of negotiation.

Regarding bilateral relations, Trump is boastful of his relationship with Russian President Vladimir Putin, though the minutes of their five meetings are unrecorded. Russia has proven to be a central threat in the spread of misinformation across the United States and Trump has often been reluctant to criticize them. Given Russia’s role in the 2016 election and Biden’s criticism throughout the campaign of Trump’s “unknown diplomacy” with Russia, Biden will likely take a tough stance against Putin, including on the occupation of the Crimea. Similarly, despite Biden’s criticisms of Trump’s legitimising of North Korea,’ his administration would continue negotiations with North Korea on nuclear issues. Finally, the Anglo-American Special Relationship may be impacted by Biden’s election. While Trump remains an advocate for Brexit and a quick trade deal with the UK, Biden opposed Brexit and his administration will only approve a new deal if Brexit does not threaten the Good Friday Agreement.

The Trump administration has repeatedly criticised Western security alliances and agreements. As a result, the Trump administration abandoned the Obama-era Joint Comprehensive Plan of Action (JCPOA), in 2018 and imposed new economic sanctions on Iran. Under a Biden presidency, removing those sanctions is a real possibility that could open re-engagement with Iran and lower bilateral tensions. A Senate approval of two-thirds vote is required for a new agreement or re-entry into the old one, which may prove difficult to achieve. Trump has also not been shy to criticize the North Atlantic Treaty Organization (NATO), mainly as European members fail to meet obligations to spend 2% of GDP on defense. The Biden administration will undoubtedly re-engage with and vigorously support the organization, as he championed the Obama administration’s commitments to the security alliance.

Regarding public health, Trump has repeatedly blamed China for the COVID-19 virus. In September 2020, announcing that the US would withdraw from the World Health Organization (WHO), blaming the multilateral institution for the failure to recognize and react to the virus adequately. Under Biden, Trump’s commitment to withdraw from the WHO would not be honored.

President-elect Biden has a great deal of work to do in repairing damaged bilateral and multilateral organisations and relationships around the world. Although not every foreign policy decision made under the Trump administration is noted here, the evidence of an ‘America First’ policy is strong. Nonetheless, Trump himself is not the problem, he is a symbol of sentiments within the United States that are anti-trade, anti-immigration and pro-isolationism. Although Biden’s foreign policy will likely be a continuation of the Obama administration, which itself was not perfect, Biden is likely to be limited in his efforts to return American foreign policy towards multilateralism and globalization.

Despite the popularity of ‘America First’ casting a long shadow, Biden will continue seeking re-engagement with the world, despite the domestic political difficulties at home. President Biden can do so by focusing on re-entering environmental agreements and security deals, upholding human rights, and restoring the reputation of the United States as a leader of the liberal international order. Through bi-partisan negotiation, the undoing of President Trump’s executive orders, and the implementation of new executive orders himself; any successes will depend to a great extent on working with other states in regaining more effective US diplomacy and leadership in the world.

Owen is pursuing his MA in International Peace and Security in the Department of War Studies at King’s College London. His interest in researching this topic developed from a US Foreign Policy graduate course thought by Dr. David G. Haglund, Department of Political Studies, at Queen’s University in Canada. Find him on Twitter @owensaunders26

Strife Series on Climate Change and Conflict (Part III) – Slow Violence: Climate Refugees and the Legal Lacuna of Protection

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by Eloise Judd

Climate change and natural disasters are rapidly putting people around the world on the run, often rendering them stateless climate refugees (Image credit: Campaigncc)

Cities and states are gradually being submerged by rising sea levels, food and water security are threatened by temperature and rainfall variability, and diseases are spreading with increasing frequency and severity – to name but a few effects of climate change. Refugees coming from such regions find themselves in a legal lacuna of protection in international law. This ‘slow violence’ that is ‘not just attritional but exponential’ is exacerbated with each passing day of political inaction. The inertia of legal developments mirrors the very threat faced by these refugees, with climate change and its correlative forced migration as the epitome of ‘delayed destruction’.

Climate-induced migration will also be, for the most part, gradual, with the exception of sporadic, mostly internal, migration shifts in response to significant climatic events such as cyclones or king tides. However, by focusing on transnational migration, specifically from low-lying, ‘disappearing’ island states, pertinent and unanswered questions around statelessness, international law, and human rights obligations are highlighted.

The slow violence of climate change is consistently an issue of representation, accruing in the shadows of the ‘immediate’, ‘explosive’ and ‘spectacular’ violence that dominates rapid news cycles and political agendas. This article seeks to bring the legal lacuna in which climate refugees are positioned to the fore. By challenging the ‘slow violence’ of political inaction, it advocates for an amendment to treaty law on the basis of international human rights obligations.

Despite its poignant resonance, the term ‘climate refugee’ does not exist in international law. For this reason, many authors avoid this label as it is considered an ‘international misnomer’ which ‘does not accurately reflect in legal terms the status of those who move’. Instead, alternative appellations such as ‘environmentally displaced person’ or ‘climate change migrant’ are adopted. Yet, in doing so, authors present an implied acceptance of a differential standard of legal protection according to the source of harm from which one is fleeing.

Climate refugees fall within a ‘protection gap’ – a legal lacuna – unprotected by the 1951 Convention Relating to the Status of Refugees (1951 Convention) (UNHCR, 1951) and the 1954 Convention Relating to the Status of Stateless People (1954 Convention). The former is ‘the centrepiece of international refugee protection’ however the criterion of Article 1A(2) is limited to those with a ‘fear of persecution for reasons of race, religion, nationality, membership of a particular group or political opinion’.

Extensive literature has debated whether ‘climate change counts as persecution.’ This focus, however, is misguided. The centralisation of ‘persecution’ overshadows the elaboration in Article 1A(2) of one ‘being unable… to avail himself of the protection of [his] country’. By encouraging the notion of ‘protection’ to take precedence in debate, a case can be made in favour of extending the 1951 Convention to obligate international protection for human rights when state assurance is inhibited.

Under international law, human rights are the positive obligation of a citizen’s nation-state. Climate change may undermine the state’s capacity to protect and ensure numerous human rights: including the right to life, the right to health, the right to a nationality, and the right to political freedoms. In Tuvalu and Kiribati, for example, this cessation will ensue on a slow and violent continuum: the state will become increasingly uninhabitable, with resources such as freshwater supply threatened until the point that it is lost below sea level. Consequently, climate refugees are de facto stateless; a status that should not be limited to the de jure loss of nationality but to the loss of ‘protection resulting from nationality’.

This is a novel form of statelessness, unprotected by the 1954 Convention which, when drafted, was formulated around state absorption, merger, and dissolution (with successor states). The loss of low-lying island states, however, is not met by a territorial replacement. Contributing further to the lacuna of protection, the right to nationality outlined in article 15 of the Universal Declaration of Human Rights is not present in customary international law. This lacuna of protection is highly significant for de facto stateless climate refugees who are unable to rely upon the legal obligation of the international community to grant a new nationality.

Solutions posited to the legal lacuna centre around the principles of non-refoulement and ‘complementary protection’. The former is exemplified in the Teitiota ruling in January 2020, heralded as a ‘landmark’ and ‘historic’ case. Although valuable in its unprecedented recognition of climate refugees, the legal protection afforded in insufficient. The case made by Teitiota, a Kiribatian man seeking asylum in New Zealand, formed the basis of the UNHCR ruling against the deportation of persons who’s right to life may be threatened by climate change upon return.

However, the protection offered by non-refoulement is conditional and temporally latent, premised upon an individual reaching the host state before any form of security is granted. It is also a highly individualised form of protection, wholly inadequate to meet the demands of entire populations as states disappear below sea level. Similar ad hoc protection is reflected in ‘complementary protection’ regimes – nation-state responses to persons outside of the 1951 Convention seeking asylum. These are premised upon national discretion rather than a universalized obligation. Without a binding treaty, disparate nation-state displays of altruism are ineffectual.

Nevertheless, ‘complementary protection’ regimes do exemplify political will to meet the post-1951 Convention demands of refugeehood on the basis of human rights. This notwithstanding, political will must be transformed into action to explicitly incorporate climate refugees in the mandated protection afforded by the 1951 Convention. Some authors, such as McAdam and Saul and Williams critique that the Convention cannot, or should not, be amended; arguing that the incorporation of specialised sub-groups would devalue current refugee protection by fragmenting the legal regime.

This contention is flawed, however, as the 1951 Convention itself is additional to the refugee criterion established in the Arrangements of 12 May 1926 and 30 June 1928, the Conventions of 18 October 1933 and 10 February 1938, the Protocol of 14 September 1939, and the Constitution of the Refugee Organisation. The Convention encompasses former refugee definitions, thus broadening rather than devaluing protection.

Expansion to meet novel contexts, such as climate change and its correlative forced migration, was anticipated when drafting the Convention in 1950: the French delegate critiqued the narrow criterion, affirming that ‘new and undreamed-of categories of refugees might be created’ and ‘in view of the turbulent state of the world, no such list could ever be complete’. Thus, it was acknowledged in Recommendation E of the Conference’s Final Act that the Convention could be extended in response to changing demands. Ad hoc extensions of the contractual scope have been exemplified at the national level by ‘complementary protection’ regimes. However, until climate refugees are explicitly protected by the 1951 Convention, they will continue to exist precariously in a lacuna of international legal protection.

Eloise Judd is currently completing an MA in Conflict, Security & Development within the War Studies Department at King’s College London. Formerly specialising in Political Geography at Durham University, she is currently researching protracted refugee situations and the interaction between camp architecture and human rights. Eloise hopes to pursue a career in conflict resolution and peacebuilding. You can connect with her on LinkedIn, or follow her on Twitter: @eloise_judd

Nuclear Non-Use: Normative versus Legal Constraints

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by Anahad Kaur Khangura

“Ours is a world of nuclear giants and ethical infants,” as General Omar N. Bradley famously said with reference to nuclear weapons and their use. Pictured: the atomic cloud over Nagasaki (Image credit: Wikimedia Commons).

The emergence of nuclear non-use is understood to be a significant norm of constraint in the international security arena. During the Cold War, non-use emerged as an instrument to maintain deterrence between the U.S. and the Soviet Union. This longstanding tradition of non-use is surprising when one considers that with the inception of the nuclear era, it was broadly assumed that nuclear weapons would become a ‘standard feature of modern warfare’. In March 1955, President Dwight D. Eisenhower even stated that nuclear weapons should be ‘used just exactly as you would use a bullet or anything else’. However, the striking fact about nuclear weapons is that they have not been used since 1945. Nevertheless, nations are actively constructing nuclear weapons programmes to maintain their strategic interests.

In light of the seventy-fifth anniversary of the bombings of Hiroshima and Nagasaki, it is questionable whether the use of nuclear weapons would still be legal under the current laws of conflict set up under the Geneva Conventions. However, even though nuclear non-use stands strong today, there is no guarantee that nuclear-armed countries would not consider using such weaponry when their national integrity is under imminent threat.

Normative constraints on non-use 

When considering the origin of normative constraints regarding the nuclear taboo, it is imperative to understand the meaning of the term ‘norm’. A norm could be defined as “a shared expectation about behaviour, a standard of right or wrong.” Research on the subject of nuclear non-use uses a variety of terms such as ‘nuclear taboo’ and ‘tradition’ to define its nature. Should nuclear non-use become a ‘taboo’, it could be identified as a “powerful de facto prohibition against the first use of nuclear weapons.” Indeed, violent instances such as the wars in Korea and Vietnam highlight that the US military addressed ethical and normative concerns while discussing the deployment of nuclear bombs, or the non-use thereof. These examples display that normative concerns have previously acted as driving factors within the USA’s nuclear decision-making. Such a taboo doctrine can also be affiliated with a prevalent repulsion towards nuclear capability and widely-held inhibitions on their use.

The scope of the normative aspect of nuclear non-use is that it can either restrain the use of nuclear weapons instrumentally, where it could appear in the ‘form of a perceived cost’; or it could curb their proliferation more substantively when the set of a country’s core values do not align with their use. In the past, the nuclear taboo has served as a ‘moulding’ component in the historical pattern behind non-use. However, one ought to remember that ‘norms do not determine outcomes, they [merely] shape realms of possibility’. As such, norms influence the likelihood of a certain course of action. By stigmatising the use of nuclear weapons, then, the nuclear taboo lowered the probability of nuclear weapons use. However, it remains hard to quantify such a statement without a legal component.

Legal constraints on non-use 

Legal frameworks on nuclear non-use are an instrument to maintain mutual deterrence among adversaries. Legal constraints such as the No First Use policy (NFU), a pledge made against the using nuclear weapons unless first attacked by an adversary are beneficial in upholding the custom of nuclear non-use within a legal structure. Therefore, the mutual guarantee against the deployment of nuclear weapons, as it is based on internationally recognised legal conventions, serves as an incentive in preserving the tradition of non-use.

However, the current machinery of international politics is facing immense obstruction due to the lack of trust and confidence among nations. Think for example of the slow process in formalising the NFU policy between India and Pakistan. For this reason, legal restrictions are gaining momentum as they promote accountability and provide states with enhanced confidence regarding nuclear non-use by their adversaries. In addition to ensuring confidence, legal constraints on non-use are also supported by a framework of culpability which ensures repercussions upon any party which violates the clauses of any legally binding agreement.

Other constraints on non-use

While it is imperative to recognise the complementary nature between the legal and normative constraints on nuclear non-use, it would be misleading to only consider these elements in describing the structure of nuclear non-use and its function.

Whereas the realist approach towards non-use emphasises the maintenance of mutual deterrence through the regulation of material interests; constructivism approaches from the perspective of norms. Therefore, the overemphasis of the normative elements might overlook the need for maintaining strategic stability and the significance of rational self-interest which played a vital role in forming the non-use tradition at the height of the Cold War. Similarly, overplaying the legal frameworks might lead to ignorance on normative constraints.

However, both approaches are obstructed by deficiencies as the sole reliance on either realist or constructivist approach might be an incomplete approach towards understanding non-use. To avoid oversimplifying a complex issue, one ought to be aware that other factors also contribute to the longstanding existence of nuclear non-use as a custom. In fact, understanding the complexity of nuclear non-use requires the addressing of a combination of factors that impact a nation’s decision-making process towards nuclear weapons and their (non-)use.

There are major anomalies if nuclear non-use is only understood from a single vantage point. A notable example is the case of nuclear non-use between India and Pakistan. Both parties possess nuclear weapons and are also not bound by the legal confinements of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) as the countries consider the treaty as a discriminative policy of disarmament that does not impose a fair and complete ban of nuclear weapons. However, despite their endemic rivalry and border insecurities regarding the disputed territory of Kashmir, both sides maintain it.

Multiple reasons could explain non-use in this scenario: it could be that both sides abide by the global non-proliferation norms that exist even outside the parameters of the NPT; both sides might be upholding the normative elements of non-use to avoid large scale destruction; or both parties might well be adopting non-use to preserve their global reputation as responsible members of the international community. However, the tradition of non-use should not be understood as absolute but rather be considered loosely, keeping in mind that states might alter the custom to elevate their national interests.

Additionally, legal frameworks can also be interpreted as a form of internalisation and institutionalisation of the nuclear taboo. Therefore, normative and legal constraints on non-use not only interact with one another but they also provide a “stabilising” effect on nuclear non-use. Consequently, the prescriptive nature of nuclear non-use can only be conceived in its true essence when an integrated approach is adopted which uniformly acknowledges all factors involved.

Anahad Khangura is a Master’s student at War Studies. Her academic interests are inclined towards types of political violence and counterterrorism strategies. Additionally, Anahad bears a keen interest in the security concerns of the Asia Pacific region, specifically in context of the trilateral relations between India, Pakistan and China. For her Masters dissertation, Anahad evaluated the adaptability of terrorist organisations in light of a comparative analysis between Lashkar-e-Taiba and Hezbollah.

Who’s Driving This Train? Intelligent Autonomy and Law

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By Jessica ‘Zhanna’ Malekos Smith

19 December 2018 

 

In August 2018 the United Nations Group of Governmental Experts (UN GGE) held their second session on autonomous weapons systems in Geneva. The delegation examined a variety of subjects on human-machine interface, accountability, and intelligent autonomy.

This article first describes the concept of intelligent autonomy and then offers a rather pointed critique of one view expressed in the UN GGE Chair’s Report on the delegation’s discussion, an advanced copy of which is available here.

Intelligent Autonomy

Autonomy refers to the ability of a machine to function without a human operator.

The UN GGE’s report describes autonomy as a spectrum; it notes that there are variations based on machine performance and technical design characteristics like ‘self-learning’ and ‘self-evolution,’ which is essentially machine-based learning without human design input.

Bearing in mind that autonomous systems function differently from automatic systems, the U.S. Department of Defense’s report Unmanned Systems Integrated Roadmap FY 2011- 2036 describes automatic systems as largely self-steering: ‘follow[ing] an externally given path while compensating for small deviations caused by external disturbances.’

In contrast to these systems, according to DoD Directive 3000.09, an autonomous system ‘can select and engage targets without further intervention by a human operator. This includes human-supervised autonomous weapon systems that are designed to allow human operators to override operation of the weapon system[.]’

Although fully autonomous weapons (FAW) systems operate according to control algorithms set by system operators, they do not require human command to perform combat and support functions. Currently, these specialized systems are being developed by the US, China, the UK, Russia, Israel, and South Korea.  The Congressional Research Service’s report U.S. Ground Forces Robotics and Autonomous Systems provides specific examples of how other states have integrated armed robots into warfighting. Per the report, ‘South Korea has deployed a robot sentry gun to its border with North Korea. Israel has sent an armed robotic ground vehicle, the Guardium, on patrol near the Gaza Border. Russia is building an array of ground combat robots and has plans to build a robot tank.’

A Critique of the UN GGE Chair’s Summary Report

One point of friction in the summary report concerns the vitality of the relationship between law and autonomous weapons.

For instance, section three, paragraph B(27)(e) reads:

‘Autonomy in the military targeting and engagement cycle has to be studied further keeping in view that autonomy can exist throughout or during parts of the targeting cycle and could start to be applied increasingly in other contexts as close combat.’ (emphasis added)

However, section three, paragraph E(33) states: ‘As IHL [international humanitarian law] is fully applicable to potential lethal autonomous weapons systems a view was also expressed that no further legal measures were needed.’ (emphasis added)

Really? No additional inquiry is necessary to develop legal measures addressing autonomous weapons, but we must continue testing these systems in military targeting?

How can ‘no further legal measures be needed’ if the summary report is silent on how international law applies to:

• Situations where a non-state actor uses an autonomous weapon system to harm persons, or objects.

• How the international legal principle of state responsibility extends to this technology.

• How the international legal principle of reciprocity applies here.

• How the use of FAWs influences the way states should inform their decision on ‘when to resort to force.’

• And how a state’s inherent right to self-defense under Article 51 of the United Nations Charter might be challenged if proper and timely attribution to the FAWs attack is encumbered.

This simultaneous call for continued research and development, and the implicit support for the stagnation of international law, is befuddling. This situation is much like a train conductor urging travelers on the station platform to hop aboard the train before it departs, while at the same time barring all entry on or off.

Case in Point: Reciprocity and FAWs

Focusing on the challenges with reciprocity, while the functioning of international humanitarian law and the law of armed conflict (IHL/LOAC) is largely dependent upon states agreeing to be held accountable for their actions, how will the legal concept of reciprocity translate as a control algorithm for FAWs?

Reciprocity is the legal and diplomatic concept that whatever rules and customs states agree to, each shall abide by the terms. In jus in bello, reciprocity encourages combatants to abide by the state-sponsored customs of war. For example, a predominant feature of IHL/LOAC recognizes the need to reduce the means and methods of warfighting that risk unnecessary suffering to combatants and civilians. Human Rights Watch argues that FAWs risk unnecessary suffering because they ‘lack the human qualities necessary to meet the rules of international humanitarian law.’

Responding to this concern, international legal scholar Michael Schmitt provides countervailing evidence about FAWs capabilities. ‘Modern sensors can, inter alia, assess the shape and size of objects, determine their speed, identify the type of propulsion being used, determine the material of which they are made, listen to the object and its environs, and intercept associated communications or other electronic emissions,’ he explains.

To this issue of target discrimination, however, The Verge reports that military commanders are leery of ‘surrendering control to weapons platforms partly because of a lack of confidence in machine reasoning, especially on the battlefield where variables could emerge that a machine and its designers haven’t previously encountered.’ With these compelling counter-viewpoints and burgeoning areas of law to yet explore, how can the position that ‘no further legal measures are needed’ be reasonably supported?

Attempts to interpret the delegation’s intent are further muddled when read alongside paragraph C(b):

‘Where feasible and appropriate, inter-disciplinary perspectives must be integrated in research and development, including through independent ethics reviews bearing in mind national security considerations and restrictions on commercial proprietary information.’

This passage signposts that there are international legal issues yet to be grasped. And yet, the ‘train conductor’ in paragraph E(33) takes the stance that ‘none shall pass.’

Pressing Ahead – Intelligent Law

Discussions at the 2019 UN GGE meeting on lethal autonomous weapons systems must include, and cannot sacrifice, examining how IHL/LOAC applies to the above-mentioned areas, to develop granularity here. ‘Reason is the life of the law,’ as the 16th-century English jurist Sir Edward Coke observed, and indirectly encouraging a lethargy in legal analysis is neither a healthy nor reasonable approach to driving this train.

 

Editor’s note: This article was earlier published in Lawfire on 7 December 2018.

Jessica ‘Zhanna’ Malekos Smith, J.D., the Reuben Everett Cyber Scholar at Duke University Law School, served as a Captain in the U.S. Air Force Judge Advocate General’s Corps. Before that, she was a post-doctoral fellow at the Belfer Center’s Cyber Security Project at the Harvard Kennedy School. She holds a J.D. from the University of California, Davis; a B.A. from Wellesley College, where she was a Fellow of the Madeleine Korbel Albright Institute for Global Affairs; and is finishing her M.A. with the Department of War Studies at King’s College London.

Image source: https://www.theverge.com/2018/9/8/17833160/pentagon-darpa-artificial-intelligence-ai-investment