Artificial Intelligence and International Humanitarian Law

Author: Dr. Garima Tiwari

Artificial intelligence has led to an emerging need for regulation of weaponry that is now being developed for deployment in conflict zones. This post will raise and re-iterate the issues relating to the International Humanitarian Law and Artificial Intelligence.

Issac Asimov gave the following famous Three Laws of Robotics in his science fiction “Runaround”  [i] and then added a “Zeroth Law,” to supersede them which said: “A robot may not harm humanity, or, by inaction, allow humanity to come to harm.”[ii] This was 1942 and today in 2018 fiction does seem far from reality.  Technology has advanced and law is following up. Yet, these new mechanized agents of war based on AI have led to a a new need for assessment of technology in light of the existing  international humanitarian law (IHL).

International Committee of the Red Cross (ICRC) defines an autonomous weapons system (AWS) as: “any weapon system with autonomy in its critical functions. That is, a weapon system that can select (i.e. search for or detect, identify, track, select) and attack (i.e. use force against, neutralize, damage or destroy) targets without human intervention”.[iii]

The main concern here emerges from the autonomous nature of these weapons being “without human intervention”. The very decision to “kill” using AI invokes an analysis under IHL as to the “lawfulness of use of force”. This burden of deciding who is responsible ultimately lies on humans[iv] and may raise issues of superior/command responsibility.  Already, such weapons have caused civilian collateral harm is different regions.[v] What would be the impact if these were fully autonomous weapons? What happens if an autonomous weapon system commits a grave breach of international humanitarian law? Who would be liable? Further, would states be comfortable in deploying their troops before AWS? While programming may initially comply with IHL principles, but in the era of super-intelligence and machines with learning capabilities, this would essentially require exceptions and deeper probe.

Discussions are being conducted under Convention on Certain Conventional Weapons (CCW) to help regulate AI based weapons. [vi]  Following three principles of IHL have to be seen here:

  1. Principle of distinction: civilian versus combatants and even civilian versus civilian who participates in hostilities. [Person and Property]
  2. Principle of Proportionality: This means that the anticipated loss of civilian life and damage to property incidental to attacks must not be excessive in relation to the anticipated military advantage.
  3. Principle of military necessity: This means that the target must be necessary and essential for securing the submission of the other party and there should not be any illegality in attacking it.

Geneva Conventions and Additional Protocols prevent harm to civilians and only combatants are considered to be the legitimate target of an armed attack.  Further, IHL requires that the attack should have a valid purpose and must be necessitated for the military needs.  Unless the target qualifies as a “military objective” and the commanding officer(s) assesses the overall collateral damage versus advantage ratio, a target may not be attacked.[vii] The question therefore is, can an AWS -even though initially programmed by a human—understand the nature and urgency of attacking the targets and distinguish between civilian and military entities in conflict?[viii] ICRC analysed the civilians who engage in conflict situations and suggested that it may be difficult to differentiate them from those who do not participate in hostilities. [ix]  Machines may not be able to actually differentiate  varying situations being subjective in nature.

Human Rights Watch, in “Losing Humanity-The Case of Killer Robots” [x] asks for, “a pre-emptive prohibition on their development and use.” The report asserted that AI weaponry would lead to higher risk in wars. Another view is given by Prof. Schmitt who vehemently asserts that AI weapons may follow the IHL more and that, “International humanitarian law’s restrictions on the use of weapons would nevertheless limit their employment in certain circumstances. This is true of every weapon, from a rock to a rocket.” [xi]

Each new AWS will have to be tested on their compliance to IHL principles. Changing modes of warfare, may require adaptable means of regulation. Who can produce and use AWS may be a starting point. This means a greater burden lies on those working on policy and designing of the systems based on AI so that they comply with IHL principles. The fiction is no more a fiction and law has to urgently find solutions that are futuristic, adaptable and not redundant when it comes to fast changing technology.

[i] Read Three Laws of Robotics (1942) at https://www.ttu.ee/public/m/mart-murdvee/Techno-Psy/Isaac_Asimov_-_I_Robot.pdf

[ii] Technology Review, “Do we need Asimov’s Laws, MIT Technology Review”, [May 16, 2014] at https://www.technologyreview.com/s/527336/do-we-need-asimovs-laws/

[iii] International Committee of the Red Cross (ICRC), Views of the ICRC on Autonomous Weapon Systems, 11 April 2016, p. 1, at https://www.icrc.org/en/document/views-icrc-autonomous-weapon-system.

[iv] See Interview with Paul Scharre, Senior Fellow and Director, Future of Warfare Initiative, Center for New American Security, [Washington, D.C. , Jan. 29, 2016].

[v] J.G. Castel and Matthew E. Castel, “The Road to Artificial Super-intelligence: Has International Law a Role to Play?”, Canadian Journal of Law and Technology Vol 14, No 1 (2016)

[vi] Campaign to Stop Killer Robots, Support Grows for New International Law on Killer Robots, 17 November 2017, https://www.stopkillerrobots.org/?p=6579.

[vii] For an excellent analysis on the issue read Alan Schuller, “At the Crossroads of Control: The Intersection of Artificial Intelligence in Autonomous Weapon Systems with International Humanitarian Law” [May 30, 2017]. 8 Harvard National Security Journal 379 at  https://ssrn.com/abstract=2978141.

[viii] Herbert Lin, “Will artificially intelligent weapons kill the laws of war?” [18 September 2017] at https://thebulletin.org/will-artificially-intelligent-weapons-kill-laws-war11124

[ix] N. Melzer, “Interpretive guidance on the notion of direct participation in hostilities under the international humanitarian law”, Geneva [21 December 2010] at https://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf

[x] Human Rights Watch, “Losing Humanity-The Case of Killer Robots”, [November 19, 2012] at https://www.hrw.org/report/2012/11/19/losing-humanity/case-against-killer-robots

[xi] Michael N. Schmitt, “Autonomous Weapon Systems and IHL: A Reply to the Critics”, Harvard National Security Journal Features [2013] at http://harvardnsj.org/wp-content/uploads/2013/02/Schmitt-Autonomous-Weapon-Systems-and-IHL-Final.pdf

Rape as a Crime versus Rape as a Punishment: What is going on in India?

Written By Garima Tiwari

Indian village council orders sisters to be raped and paraded naked after their brother elopes with married woman.[i]

This recent news and few other similar incidents evoke a number of sentiments. Of course, it is an illegal order with no statutory backing, yet it is an order of the “members of the society” or as are called “Kangaroo Courts” . And it raises pertinent issues about the perception of women in India within a complex web of Caste, Culture, Religion and a family –community system still very patriarchal. While the Nirbhaya Delhi Gang rape case is still sore and the Government’s “security regime” -in place, headlines of “sentencing to rape”, create a mismatch in legal and societal standards. This post loosely  puts forth ideas on how the simple formula of merely punishing the offender does not even look like a step forward in acknowledging the deep seated problem in a complex society like India. Continue reading

Israeli-Palestinian Conflict: Civilians And The Rome Statute

Written by Garima Tiwari

 

More than 2,000 Palestinians were killed in the 50-day conflict in July and August, about 70 percent of them civilians, according to the U.N. Seventy-one Israeli soldiers and civilians were killed in combat and in rocket and mortar strikes. [i]The chief Palestinian Authority negotiator, Saeb Erekat, claimed that 96 percent of Gazans killed in the summer’s Israel-Hamas conflict were civilians, reiterated PA President Mahmoud Abbas’s charge of Israeli “genocide,” and accused Israel of seeking to impose apartheid on the Palestinians.[ii] Continue reading

LGBT Rights: Colonisation and International Human Rights Standards

Written by Garima Tiwari

While 18 countries, home to more than 10 percent of the world’s population, now recognize same-sex marriage, 77 countries still outlaw sodomy.[i]  In seven of these countries, same-sex acts are punishable by death! Just recently, the Supreme Court of India reinstated a sodomy law recriminalizing same-sex relationships in a country home to 1.2 billion people. [ii] Max Fisher says that, “That’s more than the combined populations of the next 20 most-populous countries where same-sex acts are criminalized. If we assume that rates of homosexuality are consistent worldwide, then the number of gay men and women who can be jailed for their sexuality may well have just doubled.”[iii] Continue reading

Child Soldiers in Syria

Written by Garima Tiwari

“If the men are gone, our children are present.”[i]

Syria

After the death of his mother and his father’s disappearance 5 years ago, Shaaban Abdullah Hamid, aged 12 years, spent several years in the streets or doing casual jobs at a plastic factory. An uncle of Shaaban presented the boy with a handgun and offering him a job as a soldier for the Islamist group Afhad al-Rasul. The training lasted one month, after which the boy spent the following two months sniping at people walking or driving on an Aleppo bridge. Killing a civilian brought him $2.5, and killing a government soldier, $5. Working an 8-hour shift, he killed a total of 13 civilians and 10 soldiers. His firing position stayed warm round the clock, because two other boys worked the remaining two shifts. Shaaban also executed delinquent or offending rebels several times, doing so on orders from his uncle. In the end, his father got word of him and took him to a Red Crescent refugee camp in Hama. From there, both moved to Tartus to take up farming jobs. Asked about any emotions in connection with his sniping, he said he had none. [ii]  Continue reading