Agenda item 5(e)
Possible options for addressing the humanitarian and international security challenges posed by emerging technologies in the area of LAWS
Delivered by Matthew McCormack
1st session of the 2021 Group of Governmental Experts (GGE) on emerging technologies in the area of lethal autonomous weapons systems (LAWS)
Geneva, August 5, 2021
We believe – like many delegations here – that it is important for the GGE to demonstrate at the Review Conference the significant progress the GGE has made. However, as we have said previously, we have not been persuaded thus far that a new treaty is necessary because 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. We would not want to codify conclusions that would be rendered obsolete in light of technological developments. Rather, it makes sense to explore formats that allow for continued discussion, refinement, and iteration. With this in mind, in the joint paper the United States submitted alongside the UK, Canada, Australia, and Japan in June, we highlighted the significant progress on substantive conclusions the GGE has already achieved in four key aspects of the normative and operational framework.
In particular, the joint paper builds on the four elements that Chile has proposed to serve as the focus for organizing the GGE’s consensus recommendations in relation to the clarification, consideration and development of aspects of the normative and operational framework on emerging technologies in the area of LAWS: 1) application of international humanitarian law; 2) human responsibility; 3) human-machine interaction; and 4) weapons reviews.
Under each topic, the joint paper identifies the relevant guiding principles and consensus conclusions already adopted by the GGE. These principles and conclusions, in our view, should be included as part of the GGE’s consensus recommendations to the Sixth CCW Review Conference. The joint paper also suggests areas for developing new GGE consensus recommendations or for further work in 2021 and beyond.
For example, under “Application of International Humanitarian Law,” we have listed the relevant Guiding Principles, Guiding Principles (a) and (h), as follows.
- International humanitarian law continues to apply fully to all weapons systems, including the potential development and use of lethal autonomous weapons systems. (Guiding Principle (a)).
- Consideration should be given to the use of emerging technologies in the area of lethal autonomous weapons systems in upholding compliance with IHL and other applicable international legal obligations. (Guiding Principle (h)).
In addition, the joint paper lists seven consensus conclusions of the GGE on the application of IHL, which reflect both positive and negative aspects of the normative and operational framework related to emerging technologies in the area of LAWS. I will repeat those here because these consensus conclusions demonstrate the substantive progress we have made:
- IHL imposes obligations on States, parties to armed conflict and individuals, not machines. (2019 Report ¶17b).
- A weapons system based on emerging technologies in the area of lethal autonomous weapons systems must not be used if it is of a nature to cause superfluous injury or unnecessary suffering, or if it is inherently indiscriminate, or is otherwise incapable of being used in accordance with the requirements and principles of IHL. (2019 Report ¶17h).
- The potential use of weapons systems based on emerging technologies in the area of lethal autonomous weapons systems must be conducted in accordance with applicable international law, in particular IHL and its requirements and principles, including inter alia distinction, proportionality and precautions in attack. (2019 Report ¶17a).
- The IHL requirements and principles including inter alia distinction, proportionality and precautions in attack must be applied through a chain of responsible command and control by the human operators and commanders who use weapons systems based on emerging technologies in the area of lethal autonomous weapons systems. (2019 Report ¶17d).
- Human judgement is essential in order to ensure that the potential use of weapons systems based on emerging technologies in the area of lethal autonomous weapons systems is in compliance with international law, and in particular IHL. (2019 Report ¶17e).
- Compliance with the IHL requirements and principles, including inter alia distinction, proportionality and precautions in attack, in the potential use of weapons systems based on emerging technologies in the area of lethal autonomous weapons systems requires inter alia that human beings make certain judgements in good faith based on their assessment of the information available to them at the time. (2019 Report ¶17f).
- In cases involving weapons systems based on emerging technologies in the area of lethal autonomous weapons systems not covered by the CCW and its annexed Protocols or by other international agreements, the civilian population and the combatants shall at all times remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience. (2019 Report ¶17g).
The joint paper then lists potential areas for further GGE consensus recommendations or work. This work could form the basis of the GGE mandate for 2022 and beyond.
- Further clarifying how IHL requirements (e.g., distinction, proportionality, and precautions) apply to the use of emerging technologies in the area of LAWS, for example, by considering possible, relevant military applications, such as
- homing munitions that involve autonomous functions;
- decision support tools that that can inform a commander or operator’s decision-making about targeting; and
- relying on autonomous functions in weapon systems to select and engage targets.
- Identifying examples of ways in which emerging technologies in the area of LAWS could be used to reduce the risks to civilians in military operations.
The joint paper takes an analogous approach to the other three areas: 1) human responsibility; 2) human-machine interaction; and 3) weapons reviews, and the joint paper lists consensus conclusions of the GGE and potential areas for further GGE consensus recommendations or work.
In a separate U.S. paper, we have proposed additional substantive conclusions for the GGE’s consideration, as part of the clarification, consideration, and development of aspects of the normative and operational framework on emerging technologies in the area of LAWS.
We continue to believe that the GGE has, in its Guiding Principles and other consensus conclusions, a useful vehicle for clarifying and further developing the normative and operational framework that applicable to CCW parties as they address emerging technologies in the area of LAWS.
We believe this meaningful body of work shows what a uniquely well-suited forum the GGE is for the discussion of these issues. It is quite an achievement that the GGE has come to consensus on so many substantive conclusions. We can work together to shape these and further conclusion that we develop this year into consensus recommendations for the Review Conference that would demonstrate the progress we have made and set a mandate to guide potential future work.
Finally, I would stress that our framework is not only normative, but also operational. From an operational perspective, we support (1) the continuation of the GGE as a forum for expert dialogue on emerging technologies in the area of LAWS; and (2) an exchange of relevant good practices that States have developed based on their experience in using emerging technologies in the area of LAWS. This could include, for example, sharing best practices on legal reviews of weapons with autonomous features. The United States has already shared some practices on how our DoD conducts such reviews and we would welcome the opportunity to learn about other national practices.