Maritime Autonomous Weapon Systems from the Standpoint of International Humanitarian Law

Abstract

Modern armed conflicts demonstrate constant military transformation, and the weapon of the future will be precisely what we now name by the word “autonomous weapon systems” (AWS). Despite many advantages of using it, the possibility of lawful use of AWS and especially unmanned maritime systems as a kind of AWS remains a debatable issue in international law. It is primarily due to the loss of human control over the use of lethal force and the autonomy of such systems. AWS are already widely used by many countries, including Israel, the US, Qatar, the United Arab Emirates, and others, to protect their 34 LEX PORTUS VOL 8 ISS 2 2022 borders, increasing the response times and effectiveness of border forces both on land and at sea. Authors highlight a list of issues, namely the absence of the conventional definition of the term “autonomous weapon systems”, the possibility of individual prosecution due to the misuse of AWS, the protection of human life, privacy and appropriate remedies, the compliance of the use of AWS with the principles of distinction between civilians and combatants, military necessity and proportionality, precautions, etc. The problems of using autonomous weapon systems lie in both legal and ethical areas. Such uncertainty automatically narrows the protection of human rights in armed conflicts, which is unacceptable and illegal. Therefore, it is proposed at the regulatory level to prohibit states from using fully autonomous weapon systems and unmanned maritime systems as a kind of AWS that could use lethal force against humans, as well as to provide for the definition of AWS, their types, and principles of use, clearly define and limit their scope within which states could guarantee respect for human rights, as they are responsible for compliance with IHL and international human rights law. The keywords: autonomous weapon systems, AWS, drones, naval warfare, international humanitarian law, international human rights law, the law of the armed conflict. Introduction Due to technological progress and modernization, new, more advanced technologies emerge that are empowered by artificial intelligence (AI) instead of human intelligence every year. It also applies to the development of weapons, which historically have often been the driving force. Today, the world is still in the process of constant military transformation, and the weapon of the future will be precisely what we now name by the word “autonomous weapon systems” (AWS). AWS, and especially unmanned maritime systems as a kind of AWS, are already widely used by many countries, including Israel, the US, Qatar, the United Arab Emirates, and others, to protect their borders, increasing the response times and effectiveness of border forces on land and at sea. Despite the many advantages of using AWS, the possibility of lawful use remains a debatable issue in international law. It is primarily due to the loss of human control 35 LEX PORTUS VOL 8 ISS 2 2022 over the use of lethal force and the autonomy of such systems. The article will show the most problematic issues of using AWS and suggest ways to overcome them. 1. What are autonomous weapon systems, and should they be prohibited? There are no conventional definitions of terms for “autonomous military robots”, “autonomous military drones”, or “autonomous weapon systems” (AWS). Still, in international humanitarian law (IHL), there is already some understanding of these sort of synonymous terms. Thus, the International Committee of the Red Cross (ICRC) considers autonomous weapon systems as any weapon system with autonomy in its critical functions that can select and attack targets without human intervention (International humanitarian law and the challenges of contemporary armed conflicts, 2019, p. 29). After initial activation or launch by a person, AWS self-initiates or triggers a strike in response to information from the environment received through sensors and based on a generalized “target profile”. This means that the user does not choose, or even know, the specific target(s) and the precise timing and/or location of the resulting application(s) of force (ICRC position on autonomous weapon systems, 2021). The group of experts of the AMPLE program also considers “Unmanned Maritime Systems” (UMS) as a kind of AWS. It makes the definition that it is a self-propelled or remotely-navigated craft that is normally recoverable and designed to perform functions at sea by operating on the surface, semi-submerged or undersea; and either: a) are remotely operated, b) are remotely controlled, or c) perform their functions independently from a human controller or operator on board the craft (Dinstein & Dahl, 2020, p. 51–52). According to the ICRC (Schmitt & Goddard, 2017, p. 571) and the US DoD, “UMS comprise unmanned maritime vehicles (UMVs), which include both unmanned surface vehicles 36 LEX PORTUS VOL 8 ISS 2 2022 (USVs) and unmanned undersea vehicles (UUVs), all necessary support components, and the fully integrated sensors and payloads necessary to accomplish the required missions” (Unmanned Systems Integrated Roadmap FY2013-2038, p. 8). These missions can include intelligence, surveillance, and reconnaissance; mine countermeasures; anti-submarine warfare; inspection/identification; oceanography; communication/navigation network node; payload delivery; information operations; time-critical strike, and others (Dinstein & Dahl, 2020, p. 51-52). Due to these pivotal missions, UMS are widely used by many countries, especially the USA, India and China, and others in their military operations at sea. Hitherto, the possibility of lawful use of AWS remains a debatable issue in international law. It is primarily due to the loss of human control over the use of lethal force due to the autonomy of such systems. Nevertheless, such weapon systems were widely used in Yemen (Al-Haj, 2013), Nagorno-Karabakh (Perrigo, 2018), Afghanistan (Singer, 2009), and Syria (Heim et al., 2019). These systems are also used in the air defense of a wide range of states. For instance, today, there are three different defense models of AWS, namely Samsung’s SGR-A1 (South Korea), Raphael’s Sentry Tech (Israel), and DODAAM’s Super aEgis II (South Korea). Israel and South Korea are the only two countries that currently produce and sell anti-personnel sentry weapons for border security purposes. Israeli armed forces used the Sentry Tech to protect Israel’s border along the Gaza Strip. South Korea invested in developing the SGR-A1 and Super aEgis II for potential deployment in the Demilitarized Zone (DMZ) – the buffer zone between North and South Korea. The South Korean Army has deployed the SGR-A1 on an experimental basis outside South Korea, notably in Afghanistan and Iraq. DODAAM has also reportedly exported its Super aEgis II to a small number of countries, specifically Qatar and the United Arab Emirates (UAE), 37 LEX PORTUS VOL 8 ISS 2 2022 where it is used to protect airbases and critical infrastructure (Boulanin & Verbruggen, 2017, p. 58). At sea, since UMS can help maintain a persistent presence in areas challenging to monitor due to risks arising from climate, vast or complex terrain, or unexploded ordnance, enabling defense-in-depth even with complex geographies, the Indian militaries, who are engaged in a diverse range of theatres (mountains to the north, deserts to the west, and India’s island territories and oceanic borders), or the Indonesian militaries, who are responsible for 16,000 or so islands, actively use UMS as a kind of AWS. For instance, the Indian Navy inaugurated the Integrated Underwater Harbour Defence and Surveillance System (IUHDSS) in 2016. Currently operational in the port cities of Vishakhapatnam and Mumbai, this Israel-made multisensor system (radar, electro-optic cameras, and sonar) can identify, track and generate warnings for underwater and surface threats near the coasts. However, the system cannot act against these threats. Along the lines of the IUHDSS, AWS can deploy armed Unmanned Underwater Vehicles (UUVs) and UAVs to conduct additional reconnaissance of detected objects, verbal issue warnings where necessary, fire warning shots, or otherwise engage the target without lethal force. The Indonesian Navy also uses AWS to detect and eliminate underwater mines with the help of the STERNA UAV system (Ray, 2018). Because of the facts mentioned above and spreading the use of AWS, the UN Security Council Expert Group, in a report from 2021, even recognized the legal possibility of using autonomous military drones (Final report, 2021). However, if the area of attack, type of bullets, or other equipment of such systems are already regulated by general IHL norms, namely the prohibition of the use of blinding (Additional Protocol IV to the CCW, 1995), biological (Convention on the Prohibition of the Development, Production and Stockpiling of 38 LEX PORTUS VOL 8 ISS 2 2022 Bacteriological (Biological) and Toxin Weapons and on their Destruction, 1972) or chemical (Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, 1992) weapons, anti-personnel mines (Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, 1997), etc., the use of autonomous military robots is regulated neither at the conventional level (Brzozowski, 2019), nor in customary law (Brehm, 2017, p. 57-59). The lack of such regulation leads to numerous legal gaps, namely the possibility of individual prosecution due to the misuse of AWS (Hammond, 2015, p. 662-665), the protection of human life, privacy, and appropriate remedies (Heyns, 2013, para. 45), the compliance of the use of autonomous weapons with the principles of distinction between civilians and combatants (for example, if an autonomous military drone attack was carried out and its victim was not killed, but only wounded, the continuation o