A law for LAWs? On the Cosmopolitan Principle of Humanity and Lethal Autonomous Weapon Systems (LAWs)

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Amsterdam Graduate School of Law September 2018 – July 2019

A law for LAWs? On the Cosmopolitan

Principle of Humanity and Lethal

Autonomous Weapon Systems (LAWs)

Master's Thesis International and European Law: Public International Law Student Name: David de Vries

Student Number: 10704566

Master Track: International and European Law: Public International Law Catalogue Number: 3554S1Q01Y

Thesis Supervisor: Prof. dr. J. E. Nijman Date: 24 July 2019 (Final Version) E-mail: david.devries1@student.uva.nl

Word Count: 13 000, exclusive of cover page, tables of treaties and cases, index, abstract and bibliography, inclusive of footnotes.

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I. A

BSTRACT

The strongest contemporary challenge to international humanitarian law (IHL) is the development of lethal autonomous weapon systems (LAWs). For the sake of argument of this thesis, I define LAWs as weapon systems with autonomy in critical functions (i.e. the acquisition of targets and the attacking and destruction of such targets) without human intervention. A strong discourse around the matter of IHL and LAWs has started to develop. For instance, some authors – and even States – argue that LAWs would actually benefit adherence to IHL, because LAWs do not have to deal with the challenges that humans struggle with, i.e. emotions and tensions under the stress of the battlefield. Others raise ethical and legal concern, such as the advantages of human control or the concern that LAWs may cause excessive injury and destruction to civilian life. This thesis is the report of a teleological research on the cosmopolitan foundations of IHL. Cosmopolitanism is the intellectual tradition that all humans belong to one global community. Because all human beings are part of the same community, they are equal in their moral worth, the life and dignity of each human being is to be respected. From this, cosmopolitanism developed through the ages. Grotius and Pufendorf, scholars on natural law and international law, argued that humans, and humans alone – by contrast to all other species - are endowed with reason, this is called the moral faculty. Later, in the Age of Enlightenment, the intellectual foundations of the modern understanding of human dignity as a cosmopolitan principle were built by Immanuel Kant. He argued that the universal law of cosmopolitanism demands that human life is an end in itself, not a means, and that human dignity is to be respected. In the modern age, the principle of humanity inspired the development of IHL. It provides that belligerents shall at all times be bound by the laws of humanity and the dictates of public conscience. This is particularly cosmopolitan, not only by its wording, but by its implications. Because of the worth of human life, it provides that indiscriminate attacks and excessive injury shall be forbidden. It has even deeper implication. It intends to remind belligerents at all times of their duties to humanity, i.e. to use their conscience and to wage war ‘in a civilized manner’. Because of its deep cosmopolitan origins, the principle of humanity must be interpreted in a cosmopolitan manner. This brings one to the conclusion that LAWs are incompatible with the principle of humanity, because of the lack of human control: LAWs do not feel mercy and honour and are incapable of rendering ethical judgment, as only humans are capable to do so. This means that a teleological analysis of the the principle of humanity precludes the development and use of LAWs, and IHL lege feranda should develop to ban fully autonomous weapons.

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II. T

ABLE OF

C

ASES European Cases

Al-Skeini and Others v United Kingdom (Application No 55721/07) [2011] European Court of

Human Rights ECLI:CE:ECHR:2011:0707JUD005572107

Ergi v Turkey (66/1997/850/1057) [1998] European Court of Human Rights

ECLI:CE:ECHR:1998:0728JUD002381894

Jaloud v Netherlands (Application No 47708/08) [2014] European Court of Human Rights

ECLI:CE:ECHR:2014:1120JUD004770808

Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn (C-36/02) [2004] Court of Justice of the European Union

ECLI:EU:C:2004:614

Pisari v the Republic of Moldova and Russia (Application no 42139/12) [2015] European Court

of Human Rights ECLI:CE:ECHR:2015:0421JUD004213912

Tagayeva and Others v Russia (Application no 26562/07) [2017] European Court of Human

Rights ECLI:CE:ECHR:2017:0413JUD002656207

International Courts and Tribunals

Furundžija [1998] International Criminal Tribunal for the Former Yugoslavia IT-95-17/1 Legality of the Threat or Use of Nuclear Weapons [1996] International Court of Justice

Advisory Opinion, 1996 ICJ Rep 226

United States of America, vs Wilhelm von Leeb, et al, [1948] American Military Tribunal

[Tribunal V] XI. TWC Judgment

Domestic Courts

In re Yamashita [1946] Supreme Court of the United States 327 U.S. 1

Luftsicherheitsgesetz (2 BVF 1/05) [2013] Bundesverfassungsgericht (German Federal

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III. T

ABLE OF

T

REATIES European Treaties

European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14 (adopted 4 November 1950, entry into force: 3 September 1953) 05 ETS 1 (ECHR)

International Treaties

Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 29 July 1899 (Hague Convention II 1899)

Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907, (Hague Convention IV 1907)

International Covenant on Civil and Political Rights, (adopted 16 December 1966, entry into force 23 March 1976), 999 UNTS 171 (ICCPR)

Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 75 UNTS 287 (adopted 12 August 1949, entry into force: 21 October 1950), (Geneva Convention IV)

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, (Adopted 8 June 1977, entry into force 7 December 1978) 1125 UNTS 3 (Protocol I)

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609 (adopted 8 June 1977, entry into force: 7 December 1978) (Protocol II)

Rome Statute of the International Criminal Court, (adopted: 17 July 1998, entry into force: 1 July 2002), 2187 UNTS 38544 (Rome Statute)

Statute of the International Court of Justice, (adopted 26 June 1945, entry into force 18 April 1946), 93 UNTS 933 (ICJ Statute)

Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Resolution 217 A(III)

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IV. L

IST OF

A

BBREVIATIONS

Art Article

CCM Convention Cluster Munitions

CJEU Court of Justice of the European Union

ECHR European Convention on Human Rights and Fundamental Freedoms

EU European Union

GC(s) Geneva Convention(s)

GGE Group of Govermental Experts [on the CCM]

ibid. ibidem

ICCPR International Covenant on Civil and Political Rights ICJ International Court of Justice

ICRC International Committee of the Red Cross

ICTY International Criminal Tribunal for the Former Yugoslavia

IHL International Humanitarian Law

IHRL International Human Rights Law

LAWs Lethal Autonomous Weapon Systems

LOAC Law of Armed Conflict

SCOTUS Supreme Court of the United States UDHR Universal Declaration of Human Rights UNTS United Nations Treaty Series

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1. I

NTRODUCTION 1.1. Problem Statement

More and more, States are working on the development of lethal autonomous weapon systems (LAWs), which are weapon systems with no human control in their critical functions, such as the acquisition of targets.1_{In the discourse surrounding international humanitarian law (IHL)}

or law of armed conflict (LOAC),2_{a significant debate has developed around the question of}

the compatibility of LAWs with the core principles of IHL, inter alia distinction3_and

proportionality.4_{The legal debate is then centred on whether or not LAWs can distinguish}

between lawful targets and protected persons or objects, or perceived from other basic principles of IHL. However, the US government argues that LAWs are beneficiary to the adherence with IHL and thus comply with the core principles, because these weapons have a high precision and accordingly minimize accidental civilian loss of life. Other organizations and individuals point to the risks of LAWs, such as their inability to render ethical judgment.5

That point is at the heart of the position I will adopt in this debate. I will base myself upon the cosmopolitan tradition in the theory of international law, and the notions of human dignity and morality that subsequently developed. In so doing, I will develop a cosmopolitan interpretation of the principle of humanity. I will analyse LAWs that through that cosmopolitan lens, whereby the principle of humanity is a cosmopolitan principle of international (humanitarian) law. This principle has been the guiding force behind all Conventions of IHL. It was first enshrined in 1899 and 1907 Hague Conventions, whereby "[U]ntil a more complete code of the laws of war is issued, […] populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience’’.6_{It has not}

only been a guiding force, but relevant standards also flow from the historical background and contemporary scholarship of the principle of humanity. This thesis will look at how the

1_{Markus Wagner, ‘The Dehumanization of International Humanitarian Law: Legal, Ethical, and Political} Implications of Autonomous Weapon Systems’ (2014) 47 Vand. J. Transnat’l L. 1371.

2_{Both terms may be used interchangeably; as both refer to the same law.}

3_{The belligerent parties to the conflict must at all times distinguish between civilians and combatants:} Jean-Marie Henckaerts and others, Customary International Humanitarian Law Volume 1. Rules (Cambridge University Press 2005) rule 1.

4_{“[…] [t]o launch an attack which [might] cause excess loss of civilian life or injure civilians, [or] (…) damage} to civilian objects in relation (…) anticipated concrete military advantage is prohibted’’: ibid rule 14.; Protocol I, art 57.

5_{Daan Kayser, Alice Beck and PAX, Crunch Time: European Positions on Lethal Autonomous Weapon} Systems : Update 2018 (PAX 2018).

6_{Hague Convention II 1899, preamble, Hague Convention IV 1907, preamble; also reflected in: Protocol I, art} 1(2), Protocol II, preamble.

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principle of humanity has taken shape in the cosmopolitan development of international law, and IHL in particular, and if LAWs can comply with this cosmopolitan principle of humanity.

1.2. Research Question

Which standards derive from the principle of humanity in international humanitarian law (IHL) in a cosmopolitan tradition in international law, and can lethal autonomous weapons system (LAWs) ever be compliant with international humanitarian law, in particular, the principle of humanity?

1.3. Sub-Questions

1. What is the cosmopolitan tradition in international law?

2. What is the meaning of the cosmopolitan principle of humanity in international humanitarian law?

3. How has the compatibility with IHL been assessed so far?

4. Can LAWs be compatible with international humanitarian law in light of the (cosmopolitan) principle of humanity in international humanitarian law and is there a need for new rules of law?

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1.4. Methodology

1.4.1. Legal Methodology

This thesis is a legal-philosophical one, which can be defined as ‘[a]sk[ing] philosophical questions about the law’.7_{Rijpkema argues that from an external perspective, the researcher}

looks at ‘the legal rules within a society’ or the ‘functioning of a particular legal practice’.8

Whereas for the internal perspective, the researcher looks at the persons for whom the law creates rights and duties from authority.9_{The proposed research looks at the functioning of and}

the development of international humanitarian law in respect of certain technological and societal challenges and is accordingly conducted from an external perspective. Rijpkema then distinguishes between positive and critical morality. Positive morality means the standards ‘that underlie our legal system’10_{whereas critical morality means the standards that ought to underlie}

our legal system, based on a moral theory independent from the legal system.11_{The research}

for this thesis is a legal-philosophical in nature, whereby a legal-ethical perspective is built through a cosmopolitan interpretation of the principle of humanity. This thesis will argue that the cosmopolitan principle of humanity should underlie the future development of IHL.

1.4.2. Coherence Between Research Question and Sub-Questions

The most teleological approach to the principle of humanity is a cosmopolitan one, because of its strong focus on the worth of human beings and cosmopolitanism has already strongly influenced the development of contemporary IHL.12_{The first section of the research question,}

cosmopolitanism and the principle of humanity, will be analyzing on in chapter 2. I will answer the first question by elaborating generally accepted scholarship on the meaning of cosmopolitanism in international law. I will make use of articles and research handbooks, which will yield a precise definition of cosmopolitanism in international law. For the principle of humanity, the primary source is the Martens clause. According to the ICJ Statute, international law can be interpreted through the case law of judicial bodies.13_{A further interpretation is to be}

7_{Ian Sumner and others, Onderzoeksvaardigheden: instructie voor Juristen = Research skills ; instruction for} lawyers (Eerste druk, Ars Aequi Libri 2010) 6.

8_{Peter Rijpkema, ‘Methodology of Legal Research’ (University of Amsterdam, Faculty of Law) 5} <www.canvas.uva.nl>.

9_ibid. 10_{ibid 7.} 11_ibid.

12_{‘The Concept of Armed Conflict’, in Jonathan Crowe and Kylie Weston-Scheuber, Principles of International} Humanitarian Law (Edward Elgar Publishing 2013) 7,23.

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derived from scholarship on the principle of humanity, who have investigated the background of the principle of humanity. This will show that the principle of humanity has deeper implications than simply – what has been argued – the guiding force of the further development of IHL. To to position myself in the IHL debate, I will shed my light on several journal articles in IHL literature on LAWs. This will show that the main debate has focussed on compliance with basic principles of IHL. However, this thesis has already built a legal-ethical framework through a cosmopolitan interpretation of the principle of humanity. I will argue that this teleology of IHL has been insufficiently analysed. That will answer question 3: how has the compatibility of LAWs with IHL been assessed so far and will show a divergent discourse. I will conduct the teleological analysis myself in chapter 4, by arguing that LAWs are incapable to meet the demands of the principle of humanity because LAWs cannot take into account factors such as honour and compassion. From this flows that IHL lege feranda should prohibit LAWs in so far as they are not subject to human control. This will answer the research question that LAWs are incompatible with IHL’s chief, cosmopolitan principle of humanity.

1.5. Structure of Argument

Chapter 2 will argue that the cosmopolitan tradition in international law has to a great extent been fed by the thoughts of the moral worth of each human being, and subsequently has given rise to the idea of human dignity. In this tradition fits the principle of humanity, which prohibits indiscriminate attacks and unnecessary suffering and demands soldiers to use ethical judgment to obey the law. Chapter 3 will then show that the main focus so far has been on the compliance of LAWs with basic principles of IHL rather than the presentation of teleological arguments. Chapter 4 will go further than existing IHL and present a teleological argument through the principle of humanity, that IHL demands human control, which renders LAWs incompatible with the principle of humanity.

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2. C

ONCEPTUALIZING THE

P

RINCIPLE OF

H

UMANITY AS A COSMOPOLITAN TRADITION IN INTERNATIONAL LAW

This chapter will build the theoretical framework for this thesis, dealing first with cosmopolitanism as such (§2.1.), then with human dignity (§2.3.), then the development of cosmopolitanism (§2.3.), then with the principle of humanity (§2.4.), concluding with relevant standards (§2.5.), a working definition of LAWs (§2.6.), and an intermediate conclusion (§2.7.).

2.1. Cosmopolitanism by Contrast to Other Perspectives

Preluding to this chapter and indeed to this thesis, I want to argue that cosmopolitanism is the best lens in order to assess the compatibility of LAWs. The strongest antipode of cosmopolitanism is realism. Realism - voiced by inter alia Hobbes, Vattel, and in the 20th

century Morgenthau - argues that the international system is centred around the individual states and that power and politics is key to international law and legal obligations.14_{In the context of}

human rights, Goldsmith and Posner phrase it that it is not about the sharing of universal values, rather, it is the sharing of interests that makes international law.15_{This is by contrast to}

cosmopolitanism, which argues that all human beings on the globe form a (political) community, and because they are a member of the same global community, they are also bound by the same universal law.16_{In the context of international humanitarian law (IHL), the whole}

‘project' of this field of law is a very cosmopolitan one: it all combatants across the globe to abide by the rules of IHL.17_{Central to this thesis will be the principle of humanity, which}

prohibits the infliction of unnecessary suffering and – as this chapter will show – also requires soldiers to take into account ethical considerations. Because morality is at the heart of cosmopolitanism and its historical development, I will build a cosmopolitan interpretation of the principle of humanity in this chapter, and I will assess LAWs through that interpretation in chapter 4.

14_{Stephen D Krasner, ‘Realist Views of International Law’, Proceedings of the ASIL Annual Meeting} (Cambridge University Press 2002) 265.

15_{Jack L Goldsmith and Eric A Posner, The Limits of International Law (Oxford University Press 2005) 10–13.} 16_{Roland Pierik and Wouter Werner, ‘Cosmopolitanism in Context: An Introduction’, Cosmopolitanism in} context: perspectives from international law and political theory (Cambridge University Press 2010) 1. 17_{Frédéric Mégret, ‘Cross-Cutting Issues and Common Provisions, D The Geneva Conventions in Context,} Ch.33 The Universality of the Geneva Conventions’ in Andrew Clapham and others (eds), The 1949 Geneva Conventions: a commentary (First edition, Oxford University Press 2015) 684.

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2.2. Human Dignity and Cosmopolitanism

The International Criminal Tribunal for the Former Yugoslavia (ICTY) described this principle as follows:

‘‘[T]he essence of the whole corpus of international humanitarian law as well as human rights law lies in the protection of the human dignity of every person, whatever his or her gender. The general principle of respect for human dignity is the

basic underpinning and indeed the very raison d’être of international humanitarian law and human rights law(…)’’18_{(emphasis author)}

As the ICTY has held that human dignity underpins both IHL and international human rights law, I will first argue the cosmopolitan element of this principle and how it arose in the history of international law. IHRL and IHL accordingly share one source, namely the protection of human dignity, which in turn arose from cosmopolitanism. This means that the principle of humanity, the key principle in this thesis, must be interpreted in a cosmopolitan manner. I will now examine and analyse the development of cosmopolitanism.

2.1.1. Starting Point of Cosmopolitanism: From Cicero to Kant and Beyond

Cosmopolitanism is the notion in philosophy with a reflection in international law, that all individuals are members of one global community, and because they share membership of one global community, they are bound by the same ‘universal and egalitarian law’.19_{The roots of}

cosmopolitanism lie in the classical age, i.e. the Greek Cynic Diogenes, who wrote: “I am not just a citizen of the city (polis) but of the entire world (kosmopolis).20_{Diogenes said this in a}

very specific context because he was asked to exclusively serve the city and citizens of Sinope.21

He denied this, by responding that he is a citizen of the entire world. The Cynic way of life is that high virtue is reached by living in accordance with the laws of nature.22_{The legal}

implications are however to be found in the Stoic age.23_{In a legal context, the roots within one}

of the works of the Roman jurist and politician Cicero, who wrote that true law is right reason and no external interpretation is required.24

The quintessence of cosmopolitanism is accordingly that the cosmopolitan law, a body

18_{Furundžija [1998] International Criminal Tribunal for the Former Yugoslavia IT-95-17/1 [183].} 19_{Pierik and Werner (n 16) 1.}

20_{Pauline Kleingeld and Eric Brown, ‘Cosmopolitanism’ in Edward N Zalta (ed), The Stanford Encyclopedia of} Philosophy (Fall 2014, Metaphysics Research Lab, Stanford University 2014) para 1.1

<https://plato.stanford.edu/archives/fall2014/entries/cosmopolitanism/> accessed 13 June 2019.

21_{Pauline Kleingeld and Eric Brown, ‘Cosmopolitanism’ in Edward N Zalta (ed), The Stanford Encyclopedia of} Philosophy (Fall 2014, Metaphysics Research Lab, Stanford University 2014) para 1.1.

<https://plato.stanford.edu/archives/fall2014/entries/cosmopolitanism/> accessed 6 July 2019. 22_ibid.

23_ibid.

24_{Marcus Tullius Cicero, Republic (De Republica): The Laws, 59-47 BC.}

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of rights and obligations, which is shared all over the globe (cosmos). Because every member of the kosmopolis is equal, the worth of individuals is equal.25_{This has inspired the principle}

of human dignity: that the dignity of human beings is to be respected universally, and has inspired Kant and – as we will see – contemporary human rights doctrine and law.26_{In order to}

understand the maturation of cosmopolitanism, I first need to address its development in the Early Enlightenment.

Significant development of cosmopolitanism started in the Early Enlightenment. Erasmus of Rotterdam drew on early cosmopolitanism for his idea that mankind is united - although they are divided by people and States - by the will to ‘live sociable and to live in harmony with others’.27_{However, other early modern theorists disputed this, by stating that all}

individuals still strive towards self-preservation.28 _{A similar argument is made by Hobbes and}

Vattel. Hobbes argued that the penultimate goal of the State are only those influenced by self-interest.29_{Vattel would as well argue that the State’s main prerogative - sovereignty – bars that}

a State could be bound by anything other than the State’s own free will, religious or cosmopolitan ideas do not bind the State.30_{The middle pole is Grotius. He argued that law is}

derived from nature and custom, by self-preservation and social connection.31_{It is pivotal to}

note that Grotius distinguishes between law of nature and law of ‘authorative will’, what is accepted between States as law.32

Grotius continued on Cicero, that natural law is in itself a product of ‘right reason’ as dictated by God.33_{With regards to human dignity, it must be noted that Grotius already wrote}

a treatise on the laws of war – what we now know in IHL – is that it is lawful to attack an enemy, regardless whether or not he is engaged in just war.34 _{In this notion, Grotius disputed}

25_{Martha Craven Nussbaum, The Cosmopolitan Tradition: A Noble but Flawed Ideal (The Belknap Press of} Harvard University Press 2019) 64.

26_{ibid 70.}

27_{Kleingeld and Brown (n 20) para 1.2.} 28_{Kleingeld and Brown (n 21) para 1.2.}

29_{David Dyzenhaus, ‘Hobbes on the International Rule of Law’ (2014) 28 Ethics & International Affairs 53, 53.} 30_{Randall Lesaffer, ‘Chapter XVI. A Schoolmaster Abolishing Homework? Vattel on Peacemaking and Peace} Treaties’, Vattel’s International Law from a XXIst Century Perspective/Le Droit International de Vattel vu du XXIe Siècle (Brill Nijhoff 2011) 4; Emer De Vattel and Joseph Chitty, The Law of Nations: Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns (PH Nicklin & T Johnson 1835) 4–5.

31_{‘Grotius, Hugo | Internet Encyclopedia of Philosophy’ para 4(a) <https://www.iep.utm.edu/grotius/> accessed} 6 July 2019.

32_ibid.

33_{Hugo Grotius, De Jure Belli Ac Pacis = The Rights of War and Peace (2005 Ed.) Vol. 1 (Book I) [1625]} (Richard Tuck and Jean Barbeyrac eds, The Liberty Fund 2005) ch X.1. <https://oll.libertyfund.org/titles/grotius-the-rights-of-war-and-peace-2005-ed-vol-1-book-i>.

34_{Hugo Grotius, ‘On the Law of War and Peace.[1625]’ [2001] Transl. AC Campbell: De jure belii ac pacis).} Botoche: Ontario 283.

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that no law applies in wartime,35 _{by contrast to the “inter arma silent leges’’ (when arms speak,}

the laws are silent) of Cicero.36_{With regards to human dignity, recourse can be taken to the}

works of Pufendorf, who wrote an extensive treatise on the principle of natural equality. Whereas Hobbes argued that the principle of natural equality only entailed that human beings are naturally tempted to compete, or even to kill one and other,37_{Pufendorf acknowledged that}

human beings are indeed tempted to kill one and other in competition for survival, but argued that human beings are also gifted with moral ‘faculties’ or properties, such as obligation, authority, right and esteem.38_{These serve as ‘building blocks’ for each person, from all ranks}

and layers of the society to which that individual belongs.39_{These building blocks make that}

man – other than other animals – are able to recognize duties imposed by nature, and act accordingly. The actions of man are tempered by these principles of law.40_{Like Grotius,}

Pufendorf argued that these characteristics come from God and was given to humankind.41

The line of Grotius and Pufendorf is thus that humans are by nature endowed with moral faculties, other than other animals. Pufendorf also established human dignity. According to the analysis of the work of Pufendorf, the ‘very word man’ already entails a certain dignity.42_The

early notions of human dignity were further devised by Immanuel Kant.

Gordon and Werner make a significant choice to confine their analysis of cosmopolitanism to liberal cosmopolitanism, whereby cosmopolitanism is centred around individual human rights and equality of humans.43_{Werner and Gordon describe four tensions}

in the works of Kant, three of which are relevant to discuss here. First of all, in Kant's work, there is a tension between free will and moral ends. The international order oscillates between ‘particularism' and ‘universalism'. A state may have only particular, subjective, interests in advancing the welfare of the state, but the universal morality compels it to act in accordance

35_{ibid 284.}

36_{Lee Epstein and others, ‘The Supreme Court during Crisis: How War Affects Only Non-War Cases’ (2005) 80} NYUL rev. 1, 2–3.

37_{Kari Saastamoinen, ‘Pufendorf on Natural Equality, Human Dignity, and Self-Esteem’ (2010) 71 Journal of} the History of Ideas 39, 45.

38_ibid. 39_ibid. 40_ibid. 41_ibid. 42_{ibid 48.}

43_{Wouter G Werner and Geoff Gordon, ‘Part II Approaches, Ch.25 Kant, Cosmopolitanism, and International} Law’ in Anne Orford and Florian Hoffmann (eds), The Oxford Handbook of the Theory of International Law, vol 1 (Oxford University Press 2016) 506

<http://opil.ouplaw.com/view/10.1093/law/9780198701958.001.0001/law-9780198701958-chapter-26> accessed 30 March 2019.

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with universal rules.44_{However “through the free will of States, an international order of justice}

and stability can be achieved’’.45_{Kant seeks reconciliation in the second tension in his work:}

cosmopolitanism and ‘interstatism’,46 _{which implies that states can only co-exist rather than}

operate in a harmonious community.47

Kant argues that all people enjoy a right to the enjoyment of the land on earth and that humans are accordingly obliged to tolerate one and other.48_{In the third tension, between a past}

of war and an optimistic look to the future, Kant argues that present or previous conflicts justify a future harmony.49 _{This is relevant for the principle of humanity, because these tensions and}

the solution Kant offers, also inspire Kant in his notion of human dignity. Kant argues that the highest political organizations in the world – the states – form a global community which together forms ‘order, justice and stability'.50_{All citizens of these states, by virtue that they are}

a citizen of a state which is a member of the global community, also form one community, and are bound by the obligations of the global community.51

From this, it emanates that all these citizens are equal in their rights and worth.52

Accordingly, every individual must in all his or her deeds act according to the categorical imperative. This categorical imperative is threefold. The categorical imperative entails that firstly that one should only act in accordance with which that you want at the same time to become a universal will. Secondly, this entails that a human individual is never a ‘means’ in itself.53 _{Third, the categorical imperative means that every individual is capable of acting in}

accordance with the universal law, because our own free will allows us to do so.54

Werner and Gordon advise in this regard that although this notion of human dignity has inspired modern human rights (and as I have argued, also humanitarian law) thought, it primarily binds human beings as moral agents, rather than legal obligations.55_{It is pivotal to}

realize that at this point in intellectual history, Kant established as a matter of universal law, the equality and moral worth of human beings in the sense that they can never be used as means. 44_{ibid 506–507.} 45_{ibid 507.} 46_{ibid 508.} 47_ibid. 48_{ibid 507.} 49_{ibid 508.} 50_{ibid 507.} 51_{ibid 509–510.} 52_ibid.

53_{Werner and Gordon (n 47) 510–511.}

54_{Richard McCarty, ‘The Formula of Autonomy’ (About the Groundwork, 6 September 2014)} <http://myweb.ecu.edu/mccartyr/GW/FormulaOfAutonomy.asp> accessed 7 July 2019. 55_{Werner and Gordon (n 47) 510.}

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Petersen notices here the distinction Kant draws between things having a price and a value or dignity. A price is something that can be replaced (for example, if a vase breaks, it can usually be replaced by buying a new one), and mostly persons that have irreplaceable value. Because human beings can never be replaced, they can never be means in themselves.56 _{To see}

how human dignity further found its way to positive international law and legal obligations, I turn to the next paragraphs.

2.1.2. In the Modern Age: After the Age of Enlightenment

Petersen also argues that human dignity is one of the cornerstones of the contemporary ‘international order’, since it is one of the key guiding thoughts of modern international human rights law.57_{The development of this concept into positive international law was mainly caused}

by the horrors of the Second World War.58_{McCrudden further elaborates on the notion of}

human dignity and how it became visible in the age after the Enlightenment, i.e. the 19th_and

the 20th_{century. In Latin America, Simon Bolivar used the notion of human dignity to abolish}

slavery, precisely because slavery is a violation of human dignity, which was on the same grounds also abolished in France in 1848.59_{The Catholic Church would eventually sharpen the}

notion of human dignity, referring to the biblical idea of imago Dei: that all men are created to the image of God. Maritain, a catholic philosopher conceptualized the catholic notion of human dignity in the context of human rights and international relations. His understanding of human dignity was that human dignity was not just a matter of individualism, but that it is a matter of the common good if human dignity is protected.60_{This thought is now reflected in modern}

international human rights law and thought, which I will analyse further on in §2.3.

56_{Niels Petersen, ‘Human Dignity, International Protection’, Max Planck Encyclopedia of Public International} Law [MPEPIL] (Oxford University Press 2012) pt B5

<https://opil-ouplaw- com.proxy.uba.uva.nl:2443/view/10.1093/law:epil/9780199231690/law-9780199231690-e809?rskey=6LhJLo&result=1&prd=OPIL>. 57_{ibid A1.} 58_{ibid A1–A2.} 59_{ibid 656.} 60_{ibid 662.}

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2.3. The Contemporary Meaning of Human Dignity

This paragraph will pick up where the previous ended, namely the Age of Enlightenment, this chapter will analyse the contemporary meaning of the principle of human dignity, which is conceptually the most important section.

2.3.1. The Development of the Principle of Human Dignity in International Law

The starting point of the transposition of human dignity into positive law, was the development of international human rights law – in the form of a significant body of international human rights conventions – after the Second World War, whereby it was drawn on Kantian philosophy, which I elaborated on in §2.2.1., that each human being, and in particular flowing from that: his dignity, is to be protected, because a human being cannot be replaced.61_{Rosen elaborates}

further on this. He refers to French domestic practice, whereby the game of throwing dwarfs was declared unconstitutional because this was an ‘affront to human dignity'.62_{In his view, the}

principle of human dignity precludes treatment that is degrading, insulting or an expression of contempt towards human dignity.63_{This is indeed what has been the guiding force behind}

international law and human dignity. Carozzo bases himself on Article 22 of the Universal Declaration of Human Rights,64_{and argues that human dignity is the foundation of the rights}

in that declaration: the moral worth of every individual and that it has normative implications, being equality of men and women as well as to the right to realization of social and material needs.65_{The focus on the equality of human beings – both in their status and moral worth – is}

a strong connection to the Kantian philosophy I described before.

2.3.2. Relevant Standards of Human Dignity and Arbitrary Deprivation of Human Life

In particular relevant to this thesis is the Omega Spielhallen judgment of the European Court of Justice (CJEU). The German government denied Omega Spielhallen a permit to employ a laser game whereby laser players would shoot at one and other with laser devices against laser sensors. The government did so because this strengthened and awakened an attitude in the players “denying the fundamental right of each person to be acknowledged and respected’’.66

61_{Samantha Besson, ‘Justifications’ in Daniel Moeckli and others (eds), International human rights law (Third} edition, Oxford University Press 2018) 35.

62_{Michael Rosen, Dignity: Its History and Meaning (2012) 63–64.} 63_{ibid 129.}

64_{Art 22 UDHR: “Everyone, as a member of society, has the right to social security and is entitled to realization,} (…) in accordance with the organization and resources of each State, (…) the economic, social and cultural rights indispensable for his dignity (…).’’

65_{Paolo Carozza, ‘Ch 14 Human Dignity’ in Dinah Shelton (ed), The Oxford handbook of international human} rights law (First edition, Oxford University Press 2013) 347.

66_{Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn} (C-36/02) [2004] Court of Justice of the European Union ECLI:EU:C:2004:614 [1,12].

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The CJEU upheld the German decision, qualifying the game as ‘an affront' to human dignity.67

Accordingly, the key question is whether any action is an ‘affront to human dignity’. Although there does not appear to be a right to human dignity, States have a negative obligation to refrain from actions that offend human dignity.68_{This is the best expression of human dignity in the}

context of weapons: that the dignity of a person has to be acknowledged. In terms of positive law, Rodley argues that the principle of humanity underpins the UDHR and, in turn, other Conventions, such as the International Covenant on Civil and Political Rights (ICCPR).69_The

right to life is a direct normative consequence of the principle of human dignity: the right to life must not be arbitrarily deprived.70_{The right to life is enshrined into several international}

instruments, such as the ICCPR and the European Convention on Human Rights and Fundamental Freedoms.71_{In guiding case law, the European Court of Human Rights has}

considered that weapons which carry unwarranted consequences are contrary to Article 2 ECHR. In Ergi v. Turkey, the Strasbourg Court held that Article 2 ECHR "may also be engaged where they fail to take all feasible precautions in the choice of means and methods of a security operation mounted against an opposing group with a view to avoiding and, in any event, to minimising, incidental loss of civilian life.''

When LAWs would make no distinction between a civilian or another person or other object not being a lawful objective and a legitimate objective, the State would violate Article 2 ECHR.72_{It is incumbent upon such forces to use lethal or potential force only to save human}

life.73

67_{ibid 41.}

68_{Besson (n 67) 35.}

69_{International Covenant on Civil and Political Rights, (adopted 16 December 1966, entry into force 23 March} 1976), 999 UNTS 171 (ICCPR).

70_{Nigel S Rodley, ‘Integrity of the Person’ in Daniel Moeckli and others (eds), International human rights law} (Third edition, Oxford University Press 2018) 165.

71_{European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by} Protocols Nos. 11 and 14 (adopted 4 November 1950, entry into force: 3 September 1953) 05 ETS 1 (ECHR) 72_{Ergi v Turkey (66/1997/850/1057) [1998] European Court of Human Rights}

ECLI:CE:ECHR:1998:0728JUD002381894 [79]. 73_{Rodley (n 79) 177.}

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2.4. The Principle of Humanity

This paragraph will deal with the historical development of the principle of humanity and why it fits in the cosmopolitan tradition, like human dignity, which will be discussed in §2.4.1. and what its implications are, in particular for the development of new arms, in §2.4.2.

2.4.1. The Principle of Humanity: Historic Development in Cosmopolitan Tradition

As shown in the previous paragraphs, cosmopolitanism is a tradition that strongly entails that humans are more than just animals, they are bestowed with reason and conscience. The principle of humanity not only inspired the development of other principles but – as this paragraph will show – also demands honourable conduct and moral behaviour in armed conflict, stressing – just like the cosmopolitan tradition – the moral ‘faculty' of the human being. Brollowski ends her chapter on the principle of humanity and “military robots’’ with the conclusion that the implications of the principle of humanity is to a great extent undefined in international legal scholarship, and accordingly, she invites other scholars to engage more into the meaning of the principle of humanity.74_{However, meaning can be given to the principle of}

humanity to the Martens clause and how this particular provision came into being. Martens was the Russian delegate to the 1899 and 1907 Hague Peace Conferences,75_{and devised the clause}

on the laws of humanity, which is where the principle of humanity is most poignantly visible cited in the Preamble of the 1899 and 1907 Hague Conventions. It reads:

“[U]ntil a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.’’76 (emphasis by author).

This makes natural law-like norms tangible in the modern age: ‘it is an objective means for the determination of natural law’ and this is to be done through the dictates of public conscience.77

The principle of humanity has inspired and continues to guide the development of IHL, rather than that it is a substantive rule of law.78_{The principle of humanity prohibits unnecessary}

74_{ibid 35.}

75_{Rupert Ticehurst, ‘The Martens Clause and the Laws of Armed Conflict’ (1997) 37 International Review of} the Red Cross Archive 125, 125.

76_{Preamble, 1899 Hague Convention, 1907 Hague Convention.} 77_{Ticehurst (n 84) 133.}

78_{Giovanni Distefano and Etienne Henry, ‘Final Provisions, Including the Martens Clause’ in Andrew Clapham} and others (eds), The 1949 Geneva Conventions: a commentary (First edition, Oxford University Press 2015) 183.

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suffering and indiscriminate attacks and has in so doing, inspired other principles.79_{The first}

main function is that the principle has inspired the most and cardinal principles of IHL, such as the principle of distinction, which in turn obliges belligerents to distinguish between combatants and non-combatants and otherwise protected persons or objects.80_{Its second main function is}

that it fills legal gaps, when gaps arise created by new technologies in weaponry when there no (specific) rule of IHL has yet entered into force.81_{Humanity is accordingly a principle which}

inspires the development of the law and fills lacunas when the development of the law is not yet fully completed.

2.3.2. Delineating the Principle of Humanity: Its Implications

Meron notes that the Martens Clause, which states the principle of humanity expressis verbis, has been ‘reiterated’ in many Conventions relating to the method and weapons of warfare.82

For example, many arms conventions, banning certain weapons – such as landmines – have been forbidden by these arms conventions. However, the principle of humanity goes further and has deeper implications. To that end, I will rather argue that the principle of humanity deeper implications than a restatement of the principle of distinction. For example, one could imagine an algorithm that complies with the principle of distinction. However, the principle of humanity is an incorporation of theories of perhaps natural justice, which in a general legal debate very questionable whether natural justice is tantamount to positive law, but for the principle of humanity it is crucial that IHL came into being because of very clear philosophical arguments: it no longer serves a purpose to attack a civilian, who is inherently unable to defend him or herself.83_{Humanity stems from the code of chivalry, as rules of conduct for knights in}

the medieval age. The ‘treatment of other combatants, quarter and mercy, all based on loyalty, honour, justice and courage’.84_{The implication of this notion is that combatants must act in an}

honourable way, whereby e.g. an enemy who asks for mercy is to be spared.85_{Blank and Noone}

refer in this regard to several high-ranking US military leaders, who hold that there is more than just rules for the conduct of soldiers. Because they are themselves human beings, they are also

79_{Gary D Solis, The Law of Armed Conflict: International Humanitarian Law in War (Second edition,} Cambridge University Press 2016) 306.

80_{Nikolaos K Tsagourias and Alasdair Morrison, International Humanitarian Law: Cases, Materials and} Commentary (Cambridge University Press 2018) 41, 47.

81_{Distefano and Henry (n 87) 184.}

82_{Theodor Meron, ‘The Martens Clause, Principles of Humanity, and Dictates of Public Conscience’ (2000) 94} The American Journal of International Law 78, 78.

83_{Laurie R Blank and Gregory P Noone, International Law and Armed Conflict: Fundamental Principles and} Contemporary Challenges in the Law of War (Wolters Kluwer Law & Business 2013) 41.

84_{ibid 42–43.} 85_{ibid 42.}

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to be guided by their sense of honour.86_{Meron defines chivalry as an enduring legacy which}

has survived over the centuries, which demands soldiers to wage wars in a civilized manner.87

This notion has survived through the centuries and has now found its way into the Martens Clause.88_{Coupland argues in this respect that there is a relation, rather than that humanity is an}

independent principle, between international law and humanity. Coupland argues however that humanity has inspired large segments of international law, including the use of force, the deployment of armed violence by State agents and health law.89_{According to him, the focus}

must be placed on the well-being of the people in situations of armed violence, that the rights of the victims must be secured at all times.90_{Sassoli and Brouvier argue in this regard that it is}

not easy to find an interpretation of the elements of the Martens clause (dictates of public

conscience and laws of humanity) due to the enormous amount of cultural and religious

diversity in the world. In their view, the principle of humanity can only give a direction.91_Greig

argues in this respect however that the principle expressly forbids conduct that is to be classified as inhumane or degrading, linking it thus strongly with human dignity (see supra §2.3 et seq.). Greig argues that the implications of the Martens Clause and the laws of humanity are wider than the simple inspiration of the other principles of IHL.92_{In any case, this entails that a State}

cannot ‘escape’ IHL by arguing that there is no specific convention in place. The State is in such cases bound by general principles of international law.93_{The principle of humanity goes}

further according to Greig, who argues that the principle of humanity also demands moral conduct, that the belligerent parties should also take into account what would be considered humanely or moral at that time.94_{This influence is best to be allocated in the tradition of}

chivalry and honour, which I mentioned before. Chivalry includes the notion that the ‘humanness’ of the opposing party95_{(and also the civilians involved) should be included at all}

times. Further, IHL has it roots in chivalry, because of ‘chivalric ideals of good life and

86_ibid.

87_{Theodor Meron, Bloody Constraint: War and Chivalry in Shakespeare (Oxford University Press 1998) 118.} 88_{Blank and Noone (n 83) 42.}

89_{Robin Coupland, ‘Humanity: What Is It and How Does It Influence International Law?’ (2001) 83} International Review of the Red Cross 969, 978, 980, 988.

90_{ibid 980.}

91_{Bouvier, Antoine and Sassoli, Marco, ‘Ch 4: Part III: General Principles’ in Sassoli, Marco, Bouvier, Antoine} and Quintin, Anne (eds), How does Law Protect in War? 11 <www.icrc.org>.

92_{DW Greig, ‘The Underlying Principles of International Humanitarian Law Part II: Humanitarian Law and} Human Rights’ (1980) 9 Australian Year Book of International Law 46, 45.

93_{ibid 50.} 94_{ibid 52.}

95_{Rain Liivoja, ‘Chivalry without a Horse: Military Honour and the Modern Law of Armed Conflict’ [2012]} KVÜÕA toimetised 75, 93.

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honour’.96_{O’Connell makes clear that IHL is rooted in chivalry, meaning that war, although a}

pinnacle of barbarism in itself, should be constrained by human moral and conscience as well as the laws of humanity.97_{Soldiers must be guided at all times by their conscience and these}

principles of humanity.98_{A corollary is that human control can never be discarded from}

weapons, which is also reflected in other sections of international humanitarian law. Article 57 deals with precautions to be taken in attack and constitutes several obligations to become incumbent upon the parties to the conflict, which are all of high relevance to the compatibility of LAWs to the principle of humanity. In the authoritative commentary to the Additional Protocol I, it becomes clear that Article 57 Protocol I is an elaboration of the basic duty incumbent upon the parties to the conflict, namely to always distinguish between lawful and unlawful objectives. The development made by Article 57(2) Protocol I, which I cite above, is that it narrows down to the precise identification of the targets pursued.99_{As identification of a}

rule of customary international law by the ICRC, established Rule 15. A person in authority to abort or continue attacks should always make sure that ‘incidental loss [or injury] of civilian life (…) or [incidental] damage to civilian objects’ is prevented or minimized.100_{This provision}

of the Protocol speaks especially of “those who plan’’ the attack. It is more likely that the drafters of Article 57(2) Protocol I always envisaged a human in the loop. The commentators to Article 57(2) Protocol I explicitly write about the duty of individuals, whereby they base themselves on the majority of the conference that adopted Protocol I. In this historical analysis, the drafters intended Article 57(2) Protocol I to be implemented in the entire chain of military command. During this conference, it was stressed that even individuals with a (lower) military rank will have to make important decisions on life and death. Accordingly, the higher sections of the military chain of command are obliged to instruct lower-ranked military personnel to follow the rules of IHL.101

As the drafters explicitly envisaged a system of human control over the deployment of weapons, it appears prima facie that conducting hostilities without any human control whatsoever is contrary to Article 57(2). The principle of precautions in attack is even considered

96_{ibid 93–94.}

97_{O’Connell, Mary Ellen, ‘Historical Development and Legal Basis’ in Dieter Fleck and Michael Bothe (eds),} The handbook of international humanitarian law (Third edition, Oxford University Press 2013) 18–22. 98_{ibid 39.}

99_{Claude Pilloud and others, Commentary on the Additional Protocols: Of 8 June 1977 to the Geneva} Conventions of 12 August 1949 (Martinus Nijhoff Publishers 1987) 680–681.

100_{Jean-Marie Henckaerts and others (eds), Customary International Humanitarian Law (Cambridge University} Press 2005) l 15.

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to be a core principle of IHL.102_{This notion still doesn’t solve the objections raised against}

LAWs from the viewing point of Article 57(2) Protocol I. As Boothby argues in the Law of

Targeting, the Belligerent Parties are under a constant obligation to spare the civilians in attack.

The evaluation of the conditions on the ground in attack must be done again if these circumstances should change.103_{In fact, the persons in control are supposed to use technological}

developments to aid in the selection of targets.104_{From this point of view, Article 57(2) Protocol}

I obliges the Belligerent Parties to conduct an evaluation of the question to what extent civilians could be (accidentally) hit, and they cannot outsource this to an autonomous weapon system. Article 57(2) Protocol I precludes LAWs as well, in so far as they are beyond each form of human control.

102_{Solis (n 79) 521.}

103_{William H Boothby, The Law of Targeting (First edition, Oxford University Press 2012) 72.} 104_ibid.

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2.5. Relevant standards

The standards that flow from the principle of humanity are difficult to phrase into criteria as an international tribunal would, as this chapter has shown that the principle of humanity primarily demands soldiers to act according to their conscience. In terms of weapons law, this appears

prima facie that it is impossible to outsource any conscience to a computer or otherwise

non-human apparatus. Combatants are not only to apply the law, but they also have to make use of their moral judgment as well. The principle of human dignity demands respect for human life and forbids arbitrary deprivation of human life.

2.6. Working Definition of LAWs

For the sake of argument, I will only look at LAWs which operate without any human control whatsoever. One definition is provided by Davison, who defines LAWs as:

“[A]ny weapon system with autonomy in its critical functions—that is, a weapon system that can select (search for, detect, identify, track or select) and attack (use force against, neutralize, damage or destroy) targets without human intervention.’’105

I adopt this definition as a working definition since it has been recognized by other scholars. In any case, it is important to note that LAWs do not necessarily equal to robots, but in any case dispense human control at significant stages, such as when to or not to kill.106_{As this chapter}

has shown, the principle of humanity demands that humans should be in the loop at all times, because of the capabilities of humans to render ethical judgment.

105_{Neil Davison, A Legal Perspective: Autonomous Weapon Systems under International Humanitarian Law} (UNODA New York 2017) 5.

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2.7. Intermediate Conclusion

Cosmopolitanism is the normative ideal that all human beings on earth constitute one universal and moral community (cosmopolis). A common thread is that all human beings are bound - by their membership of the cosmopolis – by basic universal rules, without prejudice to municipal law. In a later development, this included the Kantian idea of human dignity, that because no human being can be replaced as such, human life is a goal in itself and should not be used as means in itself, and human life as such should be protected and respected. In international law, we find this notion through human rights conventions, and indeed through IHL. IHL tries to save lives by imposing basic rules in armed conflict.

Key in that regard is the principle of humanity. This principle is most poignantly visible as the guiding principle in the Martens Clause. However, it is understood to impose upon soldiers the duty to wage war ethically, by using their conscience, because only humans can experience feelings such as mercy and honour. As such, positive international law prohibits arms without human control.

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3. T

ECHNOLOGICAL

D

EVELOPMENTS OF

LAW

S SO FAR AND

POSITION IN BROADER

IHL

SCHOLARSHIP

This chapter situates this thesis in the IHL debate, it deals with arguments in favour and against LAWs.

3.1. Position in IHL Scholarship

The principle of humanity has inspired other principles of IHL, such as distinction and proportionality. Perhaps in excess: the principle of distinction entails that the parties to the conflict shall at all times distinguish between civilians and combatants.107_{Proportionality}

forbids attacks which are expected to cause excessive ‘incidental loss of civilian life, injury of civilian life, damage to objects or a combination thereof' to the expected concrete military advantage.108_{This chapter will elaborate on both arguments in favour of LAWs as well as those}

against LAWs. For the sake of clarity, arguments in favour will be discussed in paragraph 3.1.1. and those against in paragraph 3.1.2.

3.1.1. Scholarship in favour of LAWs

Sassoli argues that LAWs have favours of IHL rather than very detrimental advantages. He refers to his own experience of armed conflicts, whereby many ‘atrocities’ were committed by human beings. Accordingly, LAWs cannot commit atrocities because they are not subjected to feelings of fear and hate in the fashion humans are.109_{As he poignantly puts it: “robots cannot}

rape’’.110_{Another advantage of LAWs is according to Sassoli that they can process information}

on the ground faster than a human being would be able to do. 111_{Also, human beings often kill}

others to avoid being killed themselves. Because a robot does not have to kill others in self-preservation (as a robot can be easily replaced), LAWs do not need to kill others and thus – potentially – violate IHL. 112_{Sassoli also argues that LAWs should always be subject to some}

form of human control, and that value decisions (i.e. whether it is both moral and legal to kill someone) must always be taken by human beings.113_{However, Sassoli rejects the position that}

IHL demands weapon systems should be able to express emotion, as IHL is based upon

107_{Henckaerts and others (n 3) 3.} 108_{ibid 46.}

109_{Marco Sassoli, ‘Autonomous Weapons and International Humanitarian Law: Advantages, Open Technical} Questions and Legal Issues to Be Clarified’ (2014) 90 Int’l L. Stud. Ser. US Naval War Col. i, 310.

110_ibid. 111_ibid. 112_ibid. 113_{ibid 315.}

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objective criteria.114_{Van den Boogaard adopts a more moderate approach in this regard: he}

argues that there are certain factors, i.e. strategic and political ones, that LAWs cannot take into account, and a commander would do. Accordingly, a human commander will have to be in control.115_{Also, IHL demands the cessation of an operation when the expected civilian loss of}

life would be too high.116_{He proposes that LAWs and human soldiers should operate in}

squadrons, whereby both humans and LAWs operate together. Humans can make difficult computations, such as expected civilian loss of life, and LAWs may subsequently perform the operation.117_{Crootof argues that there are several answers to the question whether a LAW can}

comply with basic principles of IHL, because one could imagine software complying with IHL and one that does not. However, arms bans have not worked in her view.118_{For example, the}

cross bow was initially banned, but later proved to effective to be completely banned.119

3.1.2. Scholarship against LAWs

O’Connell rejects the position adopted by Sassoli: she argues that human beings have had training and are accordingly further equipped with a moral and legal framework.120_{Also from}

the perspective of accountability, LAWs are incompatible with moral and legal principles in armed conflict. Human beings can be held accountable and, in turn, explain their decisions, autonomous weapons systems cannot.121_{Wagner refers in this regard to the complexity of on}

the ground battlefield factual circumstances: although software might be able to detect civilians, it still leaves ample contextual information that has to be processed where it comes to the principle of proportionality.122_{It is hard to imagine that LAWs would be able to make that}

assessment properly.123_{Davison notes, the idea of “[placing] the use of force beyond human}

control” is uncomfortable. In arriving at that conclusion, Davison refers to several conferences on weapon systems and international law, and that the discomfort of placing the use of force beyond human control contravenes the dictates of public conscience under the Martens

114_{ibid 318.}

115_{JC Van den Boogaard, ‘Proportionality and Autonomous Weapons Systems’ [2015] Journal of International} Humanitarian Legal Studies 247, 275.

116_{ibid 271.} 117_{ibid 282–283.}

118_{Rebecca Crootof, ‘The Killer Robots Are Here: Legal and Policy Implications’ (2014) 36 Cardozo L. Rev.} 1837, 1903.

119_{ibid 1905.}

120_{Mary Ellen O’Connell, ‘Banning Autonomous Killing’ in Matthew Evangelista and Henry Shue (eds), The} American way of bombing: changing ethical and legal norms, from flying fortresses to drones (2014) 230–233. 121_{ibid 232.}

122_{Markus Wagner, ‘Taking Humans Out of the Loop: Implications for International Humanitarian Law’ (2011)} 21 Journal of Law, Information and Science 155, 165.

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Clause.124_{Egeland argues that IHL requires ‘personhood’ in any case when the decision to}

target objects or individuals is being made,125_{because LAWs cannot be held accountable in any}

way and IHL requires combatants to take account for their actions on the battlefield.

3.2. Intermediate Conclusion

This chapter has shown that there are arguments that LAWs may comply with IHL, in terms of further principle, i.e. distinction and proportionality. However, although all authors are well aware of the implications of not having these principles (the atrocities that would follow), some have not shied away from favouring LAWs. One argues that subjective notions, such as mercy, are not to be taken into account, as IHL only poses objective criteria. In response, other authors have argued that conscience is what make us human, and that humans can because of this, never be taken out of the control of military operations. I will argue along that strand in the next chapter: in the cosmopolitan tradition of international law, it has become clear that moral is what makes us human and what distinguishes us from other species. My position will be that LAWs lack conscience and are incompatible with the principle of humanity.

124_ibid.

125_{Kjølv Egeland, ‘Lethal Autonomous Weapon Systems under International Humanitarian Law’ (2016) 85} Nordic Journal of International Law 89, 117–118.

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4. A

SSESSMENT OF

LAW

S IN

L

IGHT OF THE

C

OSMOPOLITAN TRADITION OF THE

P

RINCIPLE OF

H

UMANITY

Having unpacked the principle of humanity, this chapter will assess LAWs in light of the cosmopolitan interpretation of the principle of humanity, dealing with first morality, then human dignity and then closing off with a final analysis of the principle of humanity.

4.1. Cosmopolitan Tradition: Morality as a Faculty of the Human Being

Grotius and Pufendorf argued that human beings distinguish themselves from other animals by their ability to reason and to have a conscience.126_{Pufendorf argued for example that humans}

have the moral faculty, which was endowed upon humans by God, and ultimately, this enables humans – and only humans - to render moral judgment.127_{This ability is the only power that}

can lead to a just world in the tradition of Pufendorf: only humans can strive for a world based on justice rather than the prevalence of economic and political powers.128_{In the history of IHL,}

the key principles such as humanity and – emanating from that principle – distinction, were enacted precisely because humans are capable of rendering moral judgment, and accordingly, can act according to the laws enacted.129_{An important case is the Yamashita trial.}

In this post-Second World War war crimes trial, the SCOTUS affirmed that it is the responsibility of the commander to control his forces and to prevent “uncontrolled soldiery’’ and that he is to be charged in a criminal procedure, should his troops fail to adhere to the laws of war.130_{The term “uncontrolled soldiery’’ is not coined in any of the Geneva Conventions or}

other instrument of IHL. Although this makes clear that commanders (and indeed soldiers too) have an obligation to adhere to the laws of war, and in doing so, must always act responsibly in the conduct of hostilities. I will turn to the work of Meron, who refers to several declarations appertaining to standards of humanity in armed conflict or in situations where the threshold of armed conflict has not been met.131_{However, in spite of many attempts by the ICTY and the}

International Committee of the Red Cross (ICRC), these declarations have still not become binding.132_{Rather, he refers to notions of chivalry and fair play in armed conflict.}133_Before

126_{See supra §2.1.1.}

127_{Saastamoinen (n 40) 50–51.}

128_{CL Carr and MJ Seidler, ‘Pufendorf, Sociality and the Modern State’ [1996] History of political thought 354,} 360–361.

129_{O’Connell, Mary Ellen (n 97) 32.} 130_{ibid 14–15.}

131_{Theodor Meron, ‘The Humanization of Humanitarian Law’ [2000] American journal of international law 239,} 274.

132_{ibid 275.} 133_{ibid 240.}

A law for LAWs? On the Cosmopolitan Principle of Humanity and Lethal Autonomous Weapon Systems (LAWs)