Agenda item 5(e)
Possible options for addressing the humanitarian and international security challenges posed by emerging technologies in the area of LAWS
September 19, 2020
At the outset, the United States wishes to recognize that one of the principal humanitarian and international security challenges posed by emerging technologies in the area of LAWS, is how to use these emerging technologies to achieve humanitarian and security benefits. For example, guiding principle (h) recognizes that emerging technologies in the area of LAWS can be used to uphold compliance with IHL. Technology can present risks and opportunities, and taking ad-vantages of those opportunities can be as important as minimizing risks.
One theme that we have emphasized, and that Ambassador Karklins also mentioned during his presentation, for the GGE to consider is that form must follow function. It would be counterpro-ductive to determine what form the outcome our work should take before we work through the substantive issues. We have proposed in our national commentaries and in our remarks on the other agenda items substantive conclusions for the GGE to consider. While we continue to sup-port the Chair’s proposal for substantive intercessional work, we fully understand the need for this work to be as inclusive as possible and are ready to engage on the substance of these issues with the appropriate modalities.
That said, in the discussions so far, we have not been persuaded that a new treaty is necessary be-cause we believe existing IHL provides a robust and coherent framework for the regulation of emerging technologies in the area of LAWS. In addition, we must be cautious about predicting the course of technological developments, which are rapid and ongoing. It makes sense to ex-plore formats that allowed for continued discussion, refinement, and iteration. We would not want to codify conclusions that would be rendered obsolete in light of technological develop-ments.
The GGE has done significant work in elaborating guiding principles, and we continue to believe that the Guiding Principles have offered parties to the CCW the best vehicle for clarifying and further developing the normative framework that is immediately available to parties as they navi-gate emerging technologies in the area of LAWS. We disagree that these principles’ utility is limited to guiding the work of the GGE – the decision to endorse the Guiding Principles at last year’s meeting of High Contracting Parties was intended to begin a broader process of providing parties to the CCW with meaningful outcomes. But we are glad that there continues to be con-sensus that the Guiding Principles serve as the foundation for the GGE’s work. We should con-tinue the very successful approach that we took last year of considering how we can elaborate on the guiding principles. To that end, we have proposed further work on guiding principle (a) by clarifying IHL requirements and by articulating how principles of State and individual responsi-bility apply. But we also think the GGE should be compiling and elaborating upon good prac-tices under other Guiding Principles.
For example, Guiding Principle (d) recognizes that State and individual responsibility must be ensured through the effective implementation of accountability measures, including the military
chain of command. In its commentary on Guiding Principle (d), the United States has proposed a number of general practices to help ensure accountability in military operations, including op-erations involving the use of emerging technologies in the area of LAWS. These include:
a. Conducting operations under a clear operational chain of command; and
b. Subjecting members of the armed forces to a system of military law and disci-pline.
The United States has also proposed practices with respect to the use of weapons systems, in-cluding those based on emerging technologies in the areas of LAWs, which can promote ac-countability. These are:
a. Rigorous testing of and training on the weapon system, so commanders and oper-ators understand the likely effects of employing the weapon system.
b. Establishing procedures and doctrine applicable to the use of the weapon system, which provide standards for commanders and operators on responsible use and under which they can be held accountable under the State’s domestic law.
c. Using the weapon system in accordance with training, doctrine, and procedures and refraining from unauthorized uses or modifications of the weapons system.
Additionally, Guiding Principle (e) reaffirms the importance of a robust practice of conducting reviews of the legality of weapons. Such reviews are a good practice to facilitate the implemen-tation of international law applicable to weapons and their use in armed conflict, and can also help ensure that their humanitarian and security benefits are realized, and any risks mitigated. To that end, the United States has proposed in its commentary on Guiding Principle (e) a number of good practices for the legal review of weapons systems.
I highlight a few in particular to this discussion:
1. Legal advisers should be consulted regularly in the development or acquisition process so that legal issues can be identified and more in-depth reviews can be conducted where necessary. A weapon system under modification should be reviewed to determine whether the modification poses any legal issues. New concepts for the employment of existing weapons should also be reviewed, when such concepts differ significantly from the intended uses that were considered when those systems were previously reviewed. [NOTE: SKIPPED #2-4]
5. The legal review should advise those developing or acquiring the weapon system or its concepts of employment to consider potential measures to reduce the likelihood that use of the weapon will cause harm to civilians or civilian objects. And,
6. Persons conducting the legal review should understand the likely effects of employing the weapon in different operational contexts. Such understandings should be produced through realistic system developmental and operational test and evaluation.
Bearing in mind national security considerations or commercial restrictions on proprietary infor-mation, we also believe the GGE should recommend that States share good practices on weapons reviews or legal reviews of particular weapons where appropriate.
Finally, both Guiding Principle (f) and Guiding Principle (g) provide an excellent starting point for addressing humanitarian and security challenges that may arise. Risk assessments, in particu-lar, allow for a weighing of the benefits of the emerging technologies against potential risks and also allow for adjustments to be made as further research and development occurs. Risk assess-ments can also support the training of commanders and operators by helping them understand the function, capabilities, limitations, and likely effects of using a weapon system. The GGE should consider building on the work reflected in paragraphs 23(a) and 23(b) of its 2019 report by fur-ther cataloging potential risks and mitigation measures that should be considered in the design, development, testing, and deployment of weapons systems based on emerging technologies in the area of LAWS.
· U.S. Commentary on Guiding Principles, September 1, 2020.
· U.S. Briefing Paper, “Why the U.S. Delegation Does Not Support a Ban on LAWS,” November 2017.
· U.S. Working Paper, “Autonomy in Weapons Systems,” November 10, 2017, available at https://unog.ch/80256EDD006B8954/(httpAssets)/99487114803FA99EC12581D40065E90A/$file/2017_GGEonLAWS_WP6_USA.pdf.