Bombing, burning, and killer robots: report from the 2015 CCW meeting of high contracting parties

At the 2015 Meeting of High Contracting Parties to the Convention on Certain Conventional Weapons (CCW), which met in Geneva from 12–13 November, states and civil society groups discussed a variety of weapons posing grave humanitarian threats. Autonomous weapons, incendiary weapons, mines other than anti-personnel mines, and the use of explosive weapons in populated areas dominated the meeting’s general debate. While participants expressed widely divergent views on all of these issues, the meeting did decide to hold a third experts meeting on lethal autonomous weapon systems from 11–15 April 2016, with Ambassador Michal Biontino of Germany once again serving as chair. States also agreed to hold the next CCW Review Conference from 12–16 December 2016. A Preparatory Committee will meet from 31 August–2 September 2016. Ambassador Ms. Tehmina Janjua of Pakistan was appointed president-designate.

Lethal autonomous weapon systems (LAWS)

During general debate and during a specific session on LAWS, delegations highlighted their concerns and perspectives on ways forward, covering issues such as meaningful human control, possible prohibitions and restrictions, and article 36 reviews of new weapons. They also debated the mandate for the next round of CCW discussions on LAWS, agreeing in the end to hold an informal experts meeting in Geneva from 11–15 April 2016 with a chair’s summary as an outcome. As noted by the Campaign to Stop Killer Robots, the new mandate for work is essentially the same as for the last two years. The only new aspect is language stating that the 2016 meeting “may agree by consensus on recommendations for further work for consideration by the 2016 Fifth Review Conference.” The Campaign sees this an improvement, as it implies the experts group is working toward a concrete outcome and that work will continue after the Review Conference. However, the mandate falls short of the more ambitious mandate necessary at this point in time.

Meaningful human control

Support for the concept of meaningful human control over weapon systems began to take shape during the two rounds of informal CCW expert meetings on LAWS in May 2014 and April 2015. At the end of the second experts meeting, it was clear that the majority of delegations believed that the use of any weapon requires meaningful human control and rejected the idea that matters of life and death should be delegated to machines.

This trend continued at the meeting of high contracting parties, with Croatia, Germany, Ireland, South Africa, and others describing meaningful human control over all weapons and over life and death decisions as being fundamentally necessary. Belgium, Colombia, Sweden, and the International Committee of the Red Cross (ICRC) highlighted the importance of humans being in control of such decisions, while Zimbabwe called for “human control in accordance with IHL”. Sierra Leone emphasised that lives of humans should not be entirely entrusted to machines and Sri Lanka said it is convinced that machines cannot replace humans in making decisions about life and death, as they cannot be programmed to be ethical or accountable. The Netherlands and Poland expressed interest in exploring this concept further, noting that it could advance the debate on LAWS and have important practical implications for moving forward with technological developments. Russia welcomed the 2015 experts meeting, noting that it “reaffirmed the importance of upholding meaningful human control” over weapons.

On the other hand, the United States argued that the concept of meaningful human control is “too narrow” and is tantamount to a ban on autonomous weapons. It prefers to talk about the need for “human judgment”. Israel also argued the concept is too “vague”. However, as UK-based NGO Article 36 noted, these states also say that weapons will always be under human control. “If states are to be able to assert with any credibility that there is human control over their weapons,” said Article 36, they should be able to explain how they ensure this control and what level of control they require. This process of explanation “will help define the limits to acceptable and desirable autonomy in the critical functions of weapons systems,” which in turn will help with efforts to develop an international instrument prohibiting LAWS, which by definition are those weapons operating without meaningful human control.

Prohibition, restrictions, and weapons reviews

This direct connection between meaningful human control and prohibition on LAWS is understood by those both for and against such a prohibition. Most delegations speaking about LAWS highlighted the ethical and legal challenges posed by the potential development of such weapons. Responses to these challenges varied, with some states, such as Sri Lanka, desiring preemptive action and others, such as Russia, arguing that any action would be “premature”.

Most states have not yet declared their preferred option for addressing LAWS, though a number of countries, including China, Cuba, Pakistan, Zambia, and Zimbabwe, called for a ban on LAWS. Sierra Leone indicated support for an “international framework”. A handful of states, on the other hand, have already declared that a prohibition would be “inappropriate”. The United Kingdom, for example, said it is not convinced about the need to create additional laws or guidelines for LAWS, arguing that IHL is “appropriate and sufficient”. Israel said it does not support a ban but, in a suggestion reminiscent of the nuclear-armed states’ preferred approach to nuclear disarmament, called for an “incremental, step-by-step approach”.

The United States said it is premature to decide where discussions might or should ultimately lead. It noted that its own current position neither encourages nor prohibits the further development of LAWS. Similarly, Russia argued that the prospects of future development of the LAWS issue is “raw and rather controversial”.

Whilst refraining from suggesting any particular path forward at this time, many delegations highlighted the application of existing international humanitarian law (IHL) to the development and use of new weapons systems, including LAWS. New Zealand emphasised the importance of ensuring compliance with IHL and of ensuring “that command and control arrangements maintain clear legal accountability.” Ireland and others agreed that development of new weapons must not be contrary to IHL, noting the challenges of LAWS and also armed drones in this context.

China expressed concern about saying that IHL should apply to all weapons, arguing that this could imply legitimacy for some weapons that should not exist at all. Ecuador, Mexico, and Pakistan argued that LAWS would not be able to comply with IHL, and furthermore are “at odds with moral considerations”. Mexico highlighted potential violations of human rights, including the right to life and human dignity. Switzerland also called on states to look beyond ensuring compliance with IHL to ethical concerns.

A number of countries, including Belgium, Ireland, Netherlands, Poland, Russia, Sierra Leone, Switzerland, United Kingdom, and United States raised the possible application of weapons reviews under article 36 of Additional Protocol I of the 1977 Geneva Conventions. However, as the ICRC noted, LAWS raise profound questions about the role of humans in the use of force and the taking of human life, questions which cannot be left to national weapons reviews alone. The NGO Article 36 likewise cautioned that national reviews might make it more difficult to achieve a multilateral agreement in relation to LAWS, especially since there is no evidence that legal reviews have prevented the development of specific weapon systems.

Next steps on LAWS

The majority of delegations agreed that discussions should continue on LAWS within the CCW. A number of states—including Austria, China, Croatia, Holy See, Ireland, Mexico, Netherlands, Poland, Sierra Leone, Sri Lanka, and Switzerland—called for the establishment of more formal discussions, such as the through an open-ended Group of Governmental Experts, in advance of the CCW Review Conference in 2016. Others, such as New Zealand and the Republic of Korea, called for a strengthened mandate for further work, without specifying a format.

The European Union, Algeria, Colombia, Croatia, Cuba, Belgium, Brazil, Bulgaria, France, India, Iraq, Ireland, Japan, Kazakhstan, Mexico, Peru, Republic of Korea, Spain, Sweden, Turkey, US, Zimbabwe, and others also called for discussions to continue. Sri Lanka suggested that while a GGE is good, states need to move beyond experts meetings. It also highlighted the importance of encouraging participation in these discussions of states from the global south.

Russia, while supporting further discussions, argued it is “premature to step up the mandate and to discuss this issue in an official format because for the time being we deal with virtual technology that does not have any operating models.”

Some states suggested specific topics for further discussion. France, Israel, Italy, Spain, and the United States suggested that continued discussions should focus on developing definitions or common understandings of LAWS. France also called for discussion on characteristics of autonomy, suggesting that full autonomy would mean a total absence of human oversight. Netherlands indicated support for deepening states’ understanding of meaningful human control.

Ireland also said it is troubled by potential use of autonomous weapons outside of armed conflict, such as in law enforcement, and suggested the Human Rights Council should discuss this aspect. Brazil and Mexico, along with a variety of civil society groups that are part of the Campaign to Stop Killer Robots, agreed that considerations of LAWS should not merely be restricted to the CCW because of their implications for human rights and global peace and stability.

Incendiary weapons

With recent reports of use of incendiary weapons in Syria and Ukraine and allegations of use in Libya and Yemen, several states and NGOs raised concerns about legal loopholes in the CCW on this weapon. Protocol III of the CCW regulates incendiary weapons, most notably by restricting their use in concentrations of civilians. But, as Human Rights Watch explains, it has two key shortcomings:

First, it defines incendiary weapons as being ‘primarily designed’ to burn, and thus it arguably excludes some munitions with incendiary effects—munitions that have been used for their incendiary effect—such as those containing white phosphorus. Adoption of a definition based on the effects, rather than the design, of the weapons would close this loophole. Second, Protocol III has weaker restrictions for ground-launched incendiary weapons than for air-dropped ones. At a minimum, it should be amended to ban use of all incendiary weapons in concentrations of civilians. An absolute ban on the use of incendiary weapons would have the greatest humanitarian impact.

NGOs Article 36 and WILPF agree incendiary weapons should be prohibited. A number of delegations expressed concerns about the use of incendiary weapons, including Austria, Costa Rica, Croatia, Ecuador, Holy See, Montenegro, Slovenia, and Zambia. These countries supported a review of protocol III to strengthen its rules and close loopholes around use. Other countries that said they were open to reviewing the protocol included Colombia, India, and Switzerland. The ICRC agreed that protocol III should be reviewed, urging states to also discuss measures to avoid foreseeable harm of weapons with incendiary effects, such as white phosphorous, even if they are excluded from the current scope of protocol III.

France condemned the use of incendiary weapons in Syria and called on Syria to join protocol III. The United States noted that it has seen concerning reports of use of incendiary weapons in an indiscriminate manner. Russia acknowledged concerns from NGOs on the issue of incendiary weapons, and not from states. It said it believes the solution to the use of these weapons “depends on faithful observation of current principles and norms of international humanitarian law” and that revisiting protocol III “would be counterproductive and could even weaken the compliance with the Convention itself.” However, more states spoke out about incendiary weapons than at the past two meetings of states parties, including at least six new states. The final report of the meeting referred to states’ concerns about incendiary weapons for the fifth year in a row.

Explosive weapons in populated areas

Several delegations, including the European Union, Bulgaria, Colombia, France, Israel, Italy, Philippines, Russia, Turkey, Ukraine, and United States raised concerns with the use of improvised explosive devices (IEDs), especially by illegal armed groups or ‘terrorists’. Colombia, Iraq, and Ukraine raised these concerns in the context of their ongoing conflicts. Colombia called for concrete measures to combat this challenge, including sharing national best practices and creating victim assistance mechanisms.

While these countries called for further work on this issue, Russia warned that the CCW has a “rather limited mandate … on this issue,” and therefore while it supports further work on the issue, such work must “fully comply with the subject and objectives of the Convention.”

The use of IEDs is, of course, part of a much bigger problem. As Austria noted, it reflects the broader humanitarian challenge posed by the use of explosive weapons in populated areas. The UN Secretary-General has called on states to avoid such practices, and Austria recently brought a group of states together in Vienna to consider the development of an international political commitment to prevent humanitarian harm from the use of explosive weapons with wide area effects in populated areas.

Germany, Holy See, Ireland and New Zealand also raised concerns with the humanitarian harm caused by this problem. Germany highlighted the impacts also on civilian infrastructure, which as Austria noted is lending to the mass displacement of refugees from conflicts now. Ireland and New Zealand welcomed the Vienna meeting and looked forward to future work on this issue, with Ireland calling for “maximum compliance with IHL” and further discussions about how to reduce civilian harm. The ICRC highlighted this issue in its statement, noting the humanitarian devastation called from the practice of using explosive weapons in populated areas. Members of the International Network on Explosive Weapons present at the meeting, including Article 36 and WILPF, called for states recognising this humanitarian problem to take action to prevent harm through the development of new policies and practices.

Mines other than anti-personnel mines

The discussion of mines other than anti-personnel mines (MOTAPM), in particular anti-vehicle mines (AVM), has since 2001 been discussed under Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices. Whilst recognising the severe humanitarian and developmental impacts of “misuse” of MOTAPM, the majority of delegations addressing MOTAPM called for “balance” between humanitarian and military concerns.

Most states expressed a need to further discuss MOTAPM in the framework of CCW, but China, Pakistan, and Russia opposed a renewal discussions on MOTAPMs. Brazil, Bulgaria, and Pakistan argued, as in the past, that AVMs are “legitimate defence weapons”. Turkey, while “respecting work to mitigate humanitarian harm” from MOTAPM, argued that such weapons serve “important military functions”. Russia refused to acknowledge the humanitarian risk from MOTAPM altogether, arguing that “the so-called humanitarian issue of the use of these weapons is irrelevant and prejudged.”

Ecuador, in contrast, encouraged further discussion on MOTAPM, arguing that it is clear that such weapons are being used extensively, posing a growing risk to populations in communities living close to the roads being mined. Sweden emphasised the importance of protection of civilians in this connection while Ireland described confronting the use of MOTAPM as an urgent humanitarian issue, citing the social and economic harm caused on a daily basis in a number of states. Austria also called for further work on MOTAPM to prevent humanitarian harm and facilitate the delivery of humanitarian aid.

Australia, Croatia, Peru, South Africa, Switzerland, United States called for further work on MOTAPM, citing humanitarian concerns. Israel indicated MOTAPM may require further discussion, noting that they can be a “legitimate” weapon in warfare but pose a humanitarian threat if used “inappropriately”.

The ICRC expressed deep concern with the humanitarian consequences of MOTAPM, arguing that new rules are needed to limit the indiscriminate effects in particular of AVMs. It urged states to consider work on this issue in the framework of the CCW Review Conference. Ireland called for a new protocol to regulate use of MOTAPM. However Brazil, which defended the use of MOTAPM, warned that any new obligations must not entail additional financial costs or technological requirements, particularly in terms of detectability and active life span of MOTAPM.

Conclusion

CCW always takes place against stark and devastating examples of the use of the weapons it was established to prohibit or restrict. Incendiary weapons, explosive weapons, mines, cluster bombs, and armed drones have wreaked humanitarian harm around the world, yet, as the Holy See noted, a “globalisation of indifference” persists. Several states emphasised the importance of the Convention for protecting human beings through the limitation of the means and methods of warfare, yet it often appears that states are more concerned with their narrow perceptions of “military necessity” than with protecting life, dignity, or international security.

In WILPF’s statement to the meeting, we critiqued the culture of militarism and patriarchy that perpetuate a sense of entitlement of some states to produce, use, and sell weapons however and wherever they wish. “This entitlement extends to the development of new destructive technologies that challenge our existing framework of international law as well as ethics and morality,” we noted, expressing concern with the use of explosive weapons in populated areas, armed drones, and the development of autonomous weapons. It is also rooted in gendered constructions of peace and war, disarmament and armament—constructions which are facilitated by framings of women as vulnerable, weak, and inherently innocent and need of protection on the one hand and men as powerful, strong, and inherently militant and expendable on the other. “Gender perspectives in disarmament, peace, and security must be about exposing and challenging this state of affairs, not simply about including more women in the existing systems of structural inequalities and violent masculinities,” we argued.

The existing systems and cultures need to be challenged, and civil society is vital to this process. If the CCW and other disarmament and arms control instruments are to be truly effective in preventing humanitarian harm, civil society’s voice must be reflected in all levels of discussion. Fortunately, a diplomatic error by the UK government to ask for NGOs to be excluded from an informal consultation was recognised as not being a precedent. The long-standing practice of the CCW has been to include NGOs in formal and informal meetings unless specifically indicated as closed. Mexico explicitly indicated this from the floor and there was no support for the UK’s misplaced decision to exclude NGOs from the informal consultations.

While the Campaign to Stop Killer Robots is pleased that the meeting agreed to hold another week-long diplomatic meeting on LAWS next year, it is also disappointed that the mandate “lacks ambition, reflects no sense of urgency, and reflects the usual CCW ‘go slow and aim low’ approach.” The Campaign has been calling on states to agree to a more formal and substantive process, with multiple weeks of work, to address the many different technical, legal, ethical, and other concerns that have been raised by states and NGOs over the past few years. “Treading water is no solution as technology advances towards ever-increasing autonomy in weapons systems,” warned the Campaign.

This report was written by Ray Acheson with thanks to Bonnie Doherty, Mia Gandenberger, Thomas Nash, and Matilda Wölkert.