In Backing Future Autonomous Weapons Ban, the ICRC Appears Intent on Repeating Past Mistakes

Today’s post is by Lawfire® regular, Cornell Law’s Brian L. Cox.  Brian tackles the International Committee of the Red Cross’ (ICRC) new position on the development and fielding of autonomous weapons.  Essentially, the ICRC wants “new rules” just for autonomous weapons.

As expressed in this post, “A Better Way to Protect Civilians and Combatants than Weapons Bans: Strict Adherence to the Core Principles of the Law of War,” I believe it’s generally a poor strategy to try to create new law of armed conflict (LOAC) rules for specific technologies.

By the time international consensus is obtained, the technology could have developed to the point where the original concerns are obviated, and the rules themselves can become an impediment to LOAC’s aim of avoiding unnecessary suffering in armed conflict.

In my view if a combatant’s use of autonomous weaponry results in operations that comply with the key LOAC principles of (e.g., military necessity, distinction, proportionality and the avoidance of unnecessary suffering) at least as well as a commander might reasonably expect weaponry employed without autonomy would do, specialized rules not only are unnecessary, but unproductive.

Why?  Technology-specific rules invite endless debate, and ultimately, confusion as to what, exactly, the rapidly-out-of-date rules cover.

Moreover, if technology develops in a way that makes it obvious it can better protect civilians in war yet is still banned, the apparent illogic of the rules can undermine the legitimacy of the LOAC architecture in the eyes of operators.  Additionally, they also carry the practical potential to blur and, eventually, erode the centrality of LOAC’s fundamental principles in the mind of the warfighter.

Brian provides us with a fresh perspective that addresses with specificity the ICRC’s new proposal.  He gives us a lot to think about, particularly by examining previous weapons’ ban efforts.

Importantly, Brian doesn’t just criticize, he offers a ‘way ahead’ by urging states to employ the existing Convention on Conventional Weapons (CCW) framework to address concerns about autonomous weapons. 

Here’s his essay:

In Backing Future Autonomous Weapons Ban,

the ICRC Appears Intent on Repeating Past Mistakes

By Brian L. Cox

Last week, the President of the International Committee of the Red Cross, Peter Maurer, made international headlines when he announced a new ICRC position on the development and fielding of autonomous weapons.

During the briefing, Maurer accurately pointed out that “discussions among States about autonomous weapons have spanned the past decade,” and these conversations, as Maurer notes, have involved extensive engagement among States through the Convention on Conventional Weapons (CCW) framework.

While the CCW process has famously thus far not yielded “a basis for negotiating a new legally binding instrument” that would impose meaningful restrictions on the development and use of fully autonomous weapons systems, this seeming lack of progress should not be taken as an indication that the CCW framework is a failure. Rather, the lack of consensus to date simply indicates that a ban is currently not warranted.

Despite what Mary Wareham of Human Rights Watch described as “[f]rustration over the lack of progress in diplomatic talks” related to binding legal restrictions on autonomous weapons, lessons from past ventures to step outside of the CCW framework to develop multilateral arms control treaties do not suggest that “a new process should be undertaken to negotiate an international treaty on killer robots that many countries seek.”

Although Wareham is correct to point out that “no international arms treaties have been adopted in recent decades without [the] support and participation” of the ICRC, the failures of previous treaties to achieve a full ban on the respective category of weapons suggests that the familiar playbook of civil society leading the charge away from the CCW is ill-advised.

If the goal of the ICRC truly is, as Maurer describes it, simply to “support the multilateral discussion and help States move forward towards identifying possible avenues of convergence,” the CCW framework is perfectly suited to support this goal. By stepping outside of the CCW and initiating an advocacy campaign directed at the court of public global opinion, the ICRC is signaling a new course on autonomous weapons – and it is one that has proven to be a mistake in the past.

Calling Ottawa and Oslo

Despite what some would characterize as “frustration over the lack of progress in diplomatic talks” at the CCW, the tactic of initiating a widespread public awareness campaign to jumpstart and support a parallel effort to advance the case for a ban treaty outside of the CCW framework is by now all too familiar. Starting in the mid-1990’s, for example, the ICRC launched a “world-wide campaign” intended “as a contribution towards a much needed change in the law” to achieve a ban on landmines.

This campaign that was “aimed at raising awareness, among governments and the public, of the devastating human consequences of the indiscriminate use of landmines” (emphasis added) was initiated after a perceived lack of progress toward a meaningful landmine ban through the CCW framework.

Of course, the CCW process already permitted the ICRC to raise awareness of the consequences of using landmines among governments. The innovation of this global information campaign is that it was directed at public opinion – as a way to generate domestic political pressure among governments to achieve “progress” after diplomatic efforts through the CCW failed to achieve a landmine ban.

The concerted global information campaign was a success – if the goal was to adopt an international treaty mandating that states party would refrain from using landmines. As the ICRC has touted, the concerted “public advocacy campaigns […] culminated in 1997 in the adoption of a new international treaty outlawing anti-personnel mines.” That treaty, of course, is commonly referred to as the Ottawa Convention, which at current count has 164 states party.

While the characterization that the Ottawa Convention functionally “outlawed” anti-personnel landmines is a common refrain among humanitarian advocates, this portrayal misrepresents the most basic tenets of international law. Although statistically “over 80% of the world’s countries” have ratified or acceded to the Ottawa Convention, only these countries are prohibited from using (or stockpiling, transferring, etc.) landmines.

This is not sufficient for a “ban” to achieve customary status – that is, extensive and virtually uniform state practice that is engaged out of a sense of legal obligation – such that the Ottawa Convention has truly “outlawed” anti-personnel landmines. What started as a concerted global information campaign that was launched after a perceived lack of progress through the CCW framework has procured a widely ratified multilateral treaty, but the desired endstate of “outlawing” landmines has been an enduring failure.

The landmine treaty, of course, does not represent the only failure to achieve a weapons ban following a perceived lack of progress through the CCW framework. Humanitarian advocacy groups, including the ICRC, adopted essentially the same playbook in the quest to “outlaw” cluster munitions. In 2000, the ICRC began calling on states “to stop using” cluster munitions “and to urgently negotiate a legally binding instrument to address the widespread human suffering caused by these weapons.”

As the ICRC notes, “Following calls by international and non-governmental organizations,” a “two track” approach was implemented in 2007. Advocacy through the CCW framework was one track, but this avenue failed to achieve a protocol specifically addressing cluster munitions. The alternate track, which become known as the “Oslo Process,” ultimately produced a multilateral treaty commonly known now as the Oslo Convention.

While the ICRC “played an important role in the process that led to the adoption of the” Convention on Cluster Munitions in 2008, at current count the treaty has 110 states party. Like the Ottawa Convention before it, the provisions of the Oslo Convention do not constitute extensive and virtually uniform state practice (with an accompanying opinio juris). As such, both endeavors have failed to outlaw the relevant category of weapons.

Although the ICRC has lobbied for states to “address concerns raised by autonomous weapons” through the CCW framework for several years, that process has resulted in anenduring impasseto date. The public statement last week by ICRC President Peter Maurer that was directed at the global public is a signal that the venerable organization is dusting off a familiar playbook that has been widely implemented at least twice before.

In circumventing the CCW framework and initiating an information campaign that is directed at the global public, the ICRC appears to be laying the groundwork for a second track of advocacy in hopes of achieving more favorable results outside of the CCW. If past experience is a suitable gauge for future performance, any parallel process that follows may inspire a multilateral treaty – but truly outlawing autonomous weapons is not a likely outcome.

Global Information Campaign Centered on the Wrong Side of the Equation

A full assessment of the multitudinous reasons such global information campaigns directed outside of the CCW are unlikely to “outlaw” the relevant category of weapons could stand alone as a work of scholarship.

For present purposes, though, it is sufficient to emphasize that delegates of states that participate in negotiations at the CCW are focused on different objectives than are humanitarian advocacy groups such as the ICRC. This disconnect often generates a sense of frustration among advocacy groups with the “progress” of such negotiations – and this eventual disillusionment with the CCW framework can inspire tactics designed to circumvent the process altogether.

The divergence in perspectives is perhaps best illustrated by competing expressions related to the foundational purpose of the law of armed conflict. For the ICRC, LOAC can be described as “a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict.” (emphasis in original)

As an example of a competing perspective, the U.S. DoD Law of War Manual observes that “military necessity underlies” central aspects of the law of war, and that military necessity, in turn, may be defined as “the principle that justifies the use of all measures needed to defeat the enemy as quickly and efficiently as possible that are not prohibited by the law of war.” (emphasis in original)

For delegates that negotiate on behalf of states in fora such as the CCW, then, the focus is on preserving the combat effectiveness of their respective militaries while supporting only those limitations that, as the Manual describes, can be characterized as “militarily unnecessary per se.”

From this perspective, the primary purpose of the law of armed conflict is not to develop rules that “seek, for humanitarian reasons, to limit the effects of armed conflict” as is the case, for example, for the ICRC. This conceptual incongruence related to the foundational purpose of LOAC informs, among many other things, the goals during negotiations at fora such as the CCW.

The ICRC recommendation announced by Peter Maurer, for example, that “the use of autonomous weapons to target human beings should be ruled out” seems quite reasonable if the starting position is that the goal of the law of armed conflict is to limit the effects of armed conflict.

If the purpose of LOAC is instead informed by military necessity, which in turn “justifies the use of all measures needed to defeat the enemy as quickly and efficiently as possible,” it is quite reasonable to seek to develop and employ autonomous weapons that may substantially increase lethality while permitting enhanced stand off and thereby improving the survivability of a country’s armed forces.

Neither of these competing perspectives is inherently right or wrong necessarily, but they occupy disparate conceptual spaces that play out in practice during negotiations at fora such as the CCW. This conceptual divergence means that while the competing combatant and humanitarian protection perspectives use the same terminology, those engaged in discussions are often speaking different languages.

As but one example of the phenomenon of competing perspectives using the same terminology but speaking different languages, consider the articulation of the LOAC proportionality rule articulated by the ICRC to support the campaign to “ban” cluster munitions. In explaining “why we need a treaty,” the ICRC asserted that the proportionality rule “requires that the incidental effects of the attack on civilians and civilian objects not be excessive in relation to the concrete and direct military advantage anticipated.” (emphasis added)

This recharacterization of the basic LOAC proportionality rule, which actually prohibits attacks that may be expected to cause incidental damage that is excessive in relation to the concrete and direct military advantage anticipated, is focused on the expectations of the attacker before the attack – not on the “incidental effects” that result after the attack.

The seemingly subtle shift in terminology results in an entirely different legal standard – one that better supports an advocacy campaign seeking to limit the effects of a category of weapons on the civilian population by outlawing the weapon in question.

While such an endeavor to shape existing international law in favor of an advocated outcome may not be aptly characterized truly as “lawfare” as the term is traditionally understood given that humanitarian advocacy groups are not themselves directly engaged in asymmetrical warfare, the tactics and desired outcomes of humanitarian organizations are strikingly similar to those that are utilized in lawfare campaigns.

For such endeavors, perhaps “lawscaping” would be a more fitting term – that is, the endeavor to shape relevant provisions of the law to support an advocated outcome that is not necessarily implemented as a method of warfare.

The version of the law involving armed conflict that is developed by advocacy organizations to support various humanitarian agendas such as weapons bans often utilizes the same terminology as representatives of states engaged in negotiating multilateral treaties, but the two competing perspectives are often speaking different languages.

The fact that the CCW is a forum for states to explore and negotiate potential legal limitations on selected types or categories of weapons suggests that humanitarian advocacy organizations such as the ICRC are not likely to achieve the outcomes of limiting the effects of armed conflict they seek in fora such as the CCW.

The predictable result, as prior experience demonstrates, is to pursue “progress” outside of the seemingly frustrating framework of the CCW. However, there is good reason for requiring consensus in the CCW framework.

Negotiations and any resulting limitations that are generated through the CCW are the product of the perspectives of states – and it is states, rather than humanitarian advocacy organizations such as the ICRC, that actually engage in hostilities on the battlefield.

As such, consensus achieved through the CCW is far more likely to generate meaningful restrictions in practice than, as a leading alternative, a multilateral treaty created outside of the CCW that does not represent the consensus view of states.

The Way Ahead for Endeavors to Ban Autonomous Weapons

Perhaps the goal of Peter Maurer’s announcement last week truly is simply to present “updated and refined recommendations to States on both the form and substance” of legal limitations related to emerging autonomous weapons.

However, the very public announcement that “the ICRC stands ready to support all initiatives aimed at effectively addressing concerns raised by autonomous weapons in a timely manner” signals a change in approach since state delegates are already well aware of endeavors by the ICRC to “support” such initiatives.

The president of the ICRC is absolutely correct to observe that “[t]here is of course much work to be done to build shared understandings” involving the development and implementation of autonomous weapons. At present, neither discussions at the CCW nor academic and technical studies have yielded widely-recognized and effective definitions regarding what autonomous weapons truly are – let alone meaningful limitations on their development and eventual use.

Achieving even this most basic degree of consensus is a necessary step in support of any potential future meaningful limitations, and this is an endeavor in which I and many other scholars, practitioners, technicians, engineers, advocates, and delegates will be actively engaged for the foreseeable future. Thus far, meaningful limitations related to autonomous weapons have been elusive – but this does suggest that discussions to date have been fruitless.

As the global public information campaign takes shape, as Peter Maurer described last week “to support the multilateral discussion and help States move forward towards identifying possible avenues of convergence,” states would be well-advised to remain committed to the existing CCW framework rather than acquiescing to any impending calls to explore these “avenues of convergence” in a parallel track. As the failures of the past demonstrate today, truly meaningful limitations can only be achieved by consensus through the CCW process.

Alternatives to consensus through the existing CCW framework are ultimately not likely to “outlaw” autonomous weapons – no matter how alluring or persuasive global information campaigns that are developed in support of such alternative tracks may seem.

About the author: 

Brian L. Cox is an adjunct professor of law at Cornell Law School and a visiting scholar at Queen’s Law in Ontario. Brian retired in 2018 from the U.S. Army after 22 years of military service. He served as an airborne infantry soldier, combat camera operator, airborne infantry officer, and for seven years as a military legal advisor. His combat deployments include Iraq from 2003-2004 as a combat camera operator and Afghanistan from 2013-2014 as the chief of international and operational law for Regional Command-East in Afghanistan.

Brian also served as a military prosecutor, federal prosecutor, brigade judge advocate, and military magistrate while he was a military legal advisor. His military awards, decorations, and qualifications include the Ranger Tab, Senior Parachutist Badge, Pathfinder Badge, Air Assault Badge, Bronze Star Medal, Meritorious Service Medal, Basic and Advanced Collateral Damage Estimation Certification, and Joint Firepower Certification. Brian holds an LL.M. from Queen’s Law and a B.A. (International Relations) and J.D. from the University of North Carolina.

The views expressed by guest authors do not necessarily reflect the views of the Center on Law, Ethics and National Security, or Duke University.

Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!

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