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August 27, 2018
Convention on Certain Conventional Weapons (CCW)

REMARKS: Banning ‘Killer Robots’: The Legal Obligations of the Martens Clause

For five years, states have highlighted the host of problems with lethal autonomous weapons systems, including legal, moral, accountability, technical, and security concerns. It is time to move on and take action.


October 2018
By Bonnie Docherty

For five years, states have highlighted the host of problems with lethal autonomous weapons systems, including legal, moral, accountability, technical, and security concerns. It is time to move on and take action.

(Photo courtesy of Bonnie Docherty)Human Rights Watch supports the proposal for a mandate to begin negotiations in 2019 on a legally binding instrument to require meaningful human control over the critical functions of lethal autonomous weapons systems. Such a requirement is effectively the same as a prohibition on weapons that lack such control.

We were pleased to hear so many states—the vast majority of states—express support for a legally binding instrument prohibiting these systems. We hope that high contracting parties set aside significant time in 2019 to fulfill that mandate—at least four weeks, so that the negotiations could be concluded within one year.

Several states have said the Convention on Conventional Weapons (CCW) discussions should focus on the compliance of lethal autonomous weapons systems with international law and particularly international humanitarian law. We agree that compliance with rules of proportionality and distinction is critical, and we question whether this technology could comply.

But another provision of international humanitarian law must also be considered. The Martens clause, which appears in the Geneva Conventions, Additional Protocol I and the preamble of the CCW, creates a legal obligation for states to consider moral implications when assessing new technology. The clause applies when there is no specific existing law on a topic, which is the case with lethal autonomous weapons systems, also called fully autonomous weapons.

The Martens clause requires in particular that emerging technology comply with the principles of humanity and dictates of public conscience. Fully autonomous weapons would fail this test on both counts. The principles of humanity require humane treatment of others and respect for human life and dignity. Weapons that lack meaningful human control over the critical functions would be unable to comply with these principles.

Fully autonomous weapons would lack compassion, which motivates humans to minimize suffering and killing. They also would lack the legal and ethical judgment necessary to determine the best means for protecting civilians on a case-by-case basis in complex and unpredictable combat environments. As inanimate machines, fully autonomous weapons could not appreciate the value of human life and the significance of its loss. They would base life-and-death determinations on algorithms, objectifying their human targets, whether civilians or combatants. They would thus fail to respect human dignity.

The development of weapons without meaningful human control would run counter to the dictates of public conscience. Many states have called for a prohibition on the weapons. Virtually all states speaking at the CCW meeting have stressed the need to maintain human control over the use of force. Collectively, these statements provide evidence that the public conscience favors human control and objects to fully autonomous weapons.

Experts and the general public have reached similar conclusions. Thousands of artificial intelligence and robotics researchers, along with companies and industry representatives, have called for a ban on fully autonomous weapons. Traditional voices of conscience—faith leaders and Nobel Peace Prize laureates—have echoed those calls, expressing moral outrage at the prospect of losing human control over the use of force. Civil society and the International Committee of the Red Cross have emphasized that law and ethics require human control over the critical functions of a weapon.

In conclusion, the rules of law and morality demand the negotiation of a new legally binding instrument on fully autonomous weapons. An assessment under the Martens clause of the technology shows there is a gap in international law that needs to be filled. Concerns related to the principles of humanity and dictates of public conscience show that the new instrument should ensure that meaningful human control over the use of force is maintained and the development, production, and use of fully autonomous weapons are prohibited.


Bonnie Docherty is a senior researcher in the arms division of Human Rights Watch and a lecturer on law at Harvard Law School’s International Human Rights Clinic. This is adapted from her remarks August 29 to the Convention on Conventional Weapons Group of Governmental Experts on Lethal Autonomous Weapons Systems.

 

U.S., Russia Impede Steps to Ban ‘Killer Robots’

The impasse reflects the tensions over advancing technologies for systems capable of autonomously identifying and attacking targets.


October 2018
By Michael Klare

The latest effort toward imposing binding international restrictions on so-called killer robots was thwarted by the United States and Russia, pushing off the divisive issue to a November meeting of states-parties to the Convention on Certain Conventional Weapons (CCW).

Participants at a Geneva meeting in August on lethal autonomous weapons systems, held under the auspices of the Convention on Certain Conventional Weapons, called for future talks after failing to reach consensus on imposing international restrictions. (Photo: United Nations Office at Geneva)For five years, officials representing member-states of the CCW, a 1990 treaty that seeks to outlaw the use of especially injurious or pernicious weapons, have been investigating whether to adopt a ban on lethal autonomous weapons systems. In late August, a group of governmental experts established by the CCW met to assess the issue, but it failed to reach consensus at a Geneva meeting and called instead for further discussions.

The impasse reflects the tensions over an advancing set of technologies, including artificial intelligence and robotics, that will make possible systems capable of identifying targets and attacking them without human intervention.

Opponents insist that such weapons can never be made intelligent enough to comply with the laws of war and international humanitarian law. Advocates say autonomous weapons, as they develop, can play a useful role in warfare without violating those laws.

Concern over the potential battlefield use of fully autonomous weapons systems has been growing rapidly in recent years as the pace of their development has accelerated and the legal and humanitarian consequences of using them in combat have become more apparent. Such systems typically combine advanced sensors and kill mechanisms with unmanned ships, planes, or ground vehicles.

Theoretically, fully autonomous weapons of this sort can be programmed to search within a predesignated area for certain types of threats—tanks, radars, ships, aircraft, and individual combatants—and engage them with onboard guns, bombs, and missiles on their own if communications are lost with their human operators. This prospect has raised the question whether these weapons, if used in a fully autonomous manner, will be able to distinguish between legitimate targets, such as armed combatants, and noncombatant civilians trapped in the zone of battle. Likewise, will they be able to distinguish between enemy combatants still posing a threat and those no longer capable of fighting because of injury or illness?

Humans possess the innate capacity to make such distinctions on a split-second basis, but many analysts doubt that machines can ever be programmed to make such fine distinctions and so should be banned from use.

Under the terms of the CCW, the 120 signatory states, which include China, Russia, and the United States, can negotiate additional protocols prohibiting certain specific classes of weapons. So far, five such protocols have been signed, including measures banning landmines, incendiary weapons, and blinding lasers.

Starting in 2014, some member states have sought to initiate negotiations leading to a similar protocol that would ban the development and use of fully autonomous lethal weapons. Others were resistant to moving directly toward negotiations, but agreed to a high-level investigation of the issue. For that purpose, CCW member states established the experts group, comprised largely of officials from those states, to assess the implications of fielding autonomous weapons and whether starting negotiations on a protocol was justified.

In the discussions that followed, several distinctive positions emerged. About two dozen countries, including Argentina, Austria, Brazil, Chile, China, Egypt, and Mexico, advocated for a legally binding prohibition on use of such weapons. A number of civil society organizations, loosely allied through the Campaign to Stop Killer Robots, also urged such a measure.

Another group of states led by France and Germany, while opposing a legally binding measure, support a political declaration stating the necessity of maintaining human control over the use of deadly force.

Wherever they stand on the issue of a binding measure, nearly every country represented in the experts group at the August meeting expressed opposition to the deployment of fully autonomous weapons. Nevertheless, a small group of countries, including Israel, Russia, South Korea, and the United States, rejected a legal prohibition and a political declaration, saying more research and discussion is necessary.

For the United States, the resistance to a declaration or binding measure on autonomous weapons can be read as instinctive hostility toward any international measure that might constrain U.S. freedom of maneuver, a stance visible in the Trump administration’s animosity towardother multilateral agreements, such as the Iran nuclear deal.

Further, U.S. opposition stems from another impulse: many senior U.S. officials believe that leadership in advanced technology, especially artificial intelligence, cyberoperations, hypersonics, and robotics, is essential for ensuring U.S. success in a geopolitical contest with China and Russia. “Long-term strategic competition, not terrorism, is now the primary focus of U.S. national security,” Defense Secretary Jim Mattis told the Senate Armed Services Committee on April 26.

“Our military remains capable, but our competitive edge has eroded in every domain of warfare,” he said. To reclaim that edge, the United States must restore its advantage in all areas of military competency, including through “research into advanced autonomous systems, artificial intelligence, and hypersonics.”

U.S. policy requires that a human operator be “in the loop” when making decisions before a weapons system, such as a missile-carrying drone, fires at a target.

Still, the determination to ensure U.S. dominance in artificial intelligence and robotics virtually guaranteed U.S. opposition to any outcome of the experts group that may hinder progress in developing military applications of machine autonomy. “We believe it is premature to enter into negotiations on a legally binding instrument, a political declaration, a code of conduct, or other similar instrument, and we cannot support a mandate to enter into such negotiations,” Joshua Dorosin, deputy legal adviser at the State Department, said at the experts group meeting Aug. 29.

Because decisions of the group are made by consensus, U.S. opposition, mirrored by Russia and a few other countries, prevented it from reaching any conclusion at its meeting other than a recommendation to keep talking.

Follow-up steps will be determined by CCW states-parties. They are due to meet in Geneva on Nov. 21–23, although it is unlikely they will reach consensus on anything beyond continuing discussions.

Member organizations of the Campaign to Stop Killer Robots are lobbying participating delegations to act more vigorously and to consider a variety of other pathways to banning the development of fully autonomous weapons systems, perhaps outside the CCW framework.

The Inter-American Convention on Transparency in Conventional Weapons Acquisitions (IACTCW) At a Glance

Contact: Jeff Abramson, Nonresident Senior Fellow, [email protected]

Updated: September 2016

On November 21, 2002, the Inter-American Convention on Transparency in Conventional Weapons Acquisitions entered into force. Negotiated by the 35-member Organization of American States (OAS)1 and opened for signature in June 1999, the convention is an unprecedented, regional transparency regime that requires its states-parties to annually report on their weapons exports and imports, as well as make timely notifications of their weapons acquisitions, whether imported or produced domestically. Twenty-one countries, including the United States, have signed the convention and seventeen have ratified or acceded to it. (States-parties are in bold and signatories are in italics in footnote 1.)

Terms of the Convention

Annual Reports: No later than June 15 each year, states-parties will submit to the OAS General Secretariat a report on their exports and imports of battle tanks, armored combat vehicles (ACVs), large-caliber artillery, combat aircraft, attack helicopters, warships, and missiles and missile systems. These seven categories mirror those of the voluntary U.N. Register of Conventional Arms, which calls on all countries to annually submit reports on their import and export of these same weapons to the United Nations. In their annual OAS reports, states-parties must identify the type and quantity of weapons transferred and name the exporting or importing country. Additional information, such as the designation or model of the weapon, may be volunteered.

Notification of Acquisitions: No later than 90 days after incorporation of a weapon system into a state-party's armed forces inventory, a notification must be submitted to the OAS General Secretariat. This notification requirement applies to both imported and domestically manufactured weapons in the same seven categories covered by the annual report. The United States, a leading proponent of the convention, had sought inclusion of a provision for advance notification, but Latin American countries objected. States-parties are free to provide advance notification if they choose to do so.

The OAS General Secretariat will transmit the annual reports and notifications received to all states-parties, though the information will not be made publicly available. States-parties are free to consult with each other on the shared information.

Background

The convention grew out of a June 1997 OAS General Assembly resolution calling on members to consider a legal framework for advance notification of arms acquisitions. Shortly thereafter in August 1997, the Clinton administration dropped a two-decade-old policy of "presumption against" the export of advanced weapons to Latin America. This policy change cleared the way for U.S. arms manufacturers to compete for weapons sales to the region. Former President Jimmy Carter and several Latin American heads of state, both past and those in office at the time, criticized the new Clinton arms transfer policy as one that would divert scarce resources from more important government investments, such as education, and lead to increased regional tensions. Since the U.S. policy change, the United States completed a deal to sell 10 F-16 fighter jets to Chile and offered combat aircraft to Brazil. Citing other economic priorities, Brazil postponed in January 2003 a decision on buying fighter jets.

In comparison with other regions, Latin America is a relatively small arms market. The region's arms imports accounted for roughly two to five percent of the world arms market from 1990-2000.

Note
1. The 35 members of the OAS are Antigua and Barbuda, Argentina, Bahamas, Barbados, Belize, Bolivia, Brazil, Canada, Chile, Colombia, Cuba Costa Rica, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, PeruSt. Kitts and Nevis, St. Lucia, St. Vincent and Grenadines, Suriname, Trinidad and Tobago, United States, Uruguay, and Venezuela. 

Conventional Arms Issues

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Convention on Certain Conventional Weapons (CCW) At a Glance

September 2017

Contact: Jeff AbramsonNon-Resident Senior Fellow for Arms Control and Conventional Arms Transfers, [email protected]

Updated: September 2017

Seeking to restrict or outlaw specific types of weapons used in armed conflict, 51 states negotiated the Convention on Certain Conventional Weapons (CCW) in 1980. The agreement is formally known as the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects. It is also sometimes referred to as the Inhumane Weapons Convention. The convention aims to protect military troops from inhumane injuries and prevent noncombatants from accidentally being wounded or killed by certain types of arms. When it entered into force in December 1983, the treaty applied to incendiary weapons, mines and booby-traps, and weapons designed to injure through very small fragments. Since then, treaty states-parties—numbering 120 total as of August 2017—have added provisions to ban blinding laser weapons and address lingering dangers posed by unexploded munitions leftover after combat ends.

The Convention

The operative provisions of the CCW are contained in several protocols annexed to the convention. States that become CCW members must sign on to at least two of the convention’s protocols, but do not have to become party to all of them. Currently, there are five protocols in force (see below). All states-parties must agree to the addition of a new protocol. Each protocol is only binding on those states-parties that ratify it. 

Initially, the scope of the convention covered only international armed conflicts. However, states-parties amended a single protocol in 1996 to apply to intrastate conflicts and in 2001 elected to extend that modification to the entire convention. Still, the change only applies to those states-parties ratifying the amendment, and it does not automatically extend to new protocols. Henceforth, states-parties must specify whether new protocols they ratify cover intrastate conflicts in addition to interstate wars.

The convention lacks verification and enforcement mechanisms and spells out no formal process for resolving compliance concerns.

A state-party can refute its commitment to the convention or any of the protocols, but it will remain legally bound until one year after notifying the treaty depositary, the UN Secretary-General, of its intent to be free of its obligations.

Protocols to the Convention

Protocol I: Non-detectable Fragments

Protocol I prohibits the use of any weapon designed to wound or kill with small fragments that cannot be detected by x-rays. Conventional x-ray imaging cannot locate small pieces of glass, plastic, or wood lodged in human tissue. This makes it prohibitively difficult for doctors to remove the fragments, effectively preventing victims from receiving necessary treatment.

Amended Protocol II: Landmines, Booby-Traps, and Other Devices

Protocol II, which was amended in May 1996, regulates but does not ban the use of landmines and booby-traps. Anti-personnel landmines (APLs) must be kept in clearly marked and protected minefields or be equipped with self-destruct and self-deactivation mechanisms that disarm and render the mine unusable after a certain period of time. Mines dropped from aircraft or delivered by artillery or missiles must be outfitted with self-destruct and self-deactivation mechanisms. All APLs must further be detectable using common mine detection equipment to enable them to be located and safely removed after a conflict ends. The responsibility for clearing any mines is on the government controlling the territory where the mines are located.

Amended Protocol II entered into force in 1998. The 102 countries bound by the protocol include most of the world’s major current or past landmine producers—China, India, Israel, Pakistan, Russia, and the United States—which have refused to join the Ottawa Convention banning anti-personnel landmines.

Protocol III: Incendiary Weapons

Protocol III regulates the use of weapons designed to set fire to or burn their target. The protocol proscribes targeting civilians with incendiary weapons and restricts the use of air-delivered incendiary weapons against military targets in close proximity to concentrations of noncombatants. It also prohibits parties from targeting forests or other plant cover unless the vegetation is being used to conceal military forces. The protocol only covers weapons created intentionally to set fire or burn, such as flamethrowers. Weapons that ignite fires or burn as a side effect are not subject to the protocol.

Protocol IV: Blinding Lasers

Added in 1996, this protocol prohibits the use of lasers specifically designed to cause permanent blindness. It further obliges states-parties to make every effort to avoid causing permanent blindness through the use of other lasers. While prohibiting the use of blinding lasers, the convention does not rule out their development or stockpiling. However, it does outlaw any trade in such arms.

Protocol V: Explosive Remnants of War

In November 2003, states-parties approved this protocol to deal with unexploded and abandoned ordnance left over after fighting ends—so-called explosive remnants of war (ERW). The protocol, which entered into force Nov. 12, 2006, covers munitions, such as artillery shells, grenades, and gravity bombs, that fail to explode as intended, and any unused explosives left behind and uncontrolled by armed forces. Such weapons pose severe threats to civilians because they could explode without cause or accidentally be triggered to detonate. Like the landmines protocol, the government controlling an area with explosive remnants of war is responsible for clearing such munitions. However, that government may ask for technical or financial assistance from others, including any party responsible for putting the munitions in place originally, to complete the task. No state-party is obligated to render assistance.

Other Issues

CCW states-parties have been unable to reach consensus on starting negotiations on several other matters, including adding a compliance mechanism to better ensure that states-parties live up to their commitments and a provision to ban small-caliber bullets because they can cause major internal injuries by ricocheting or tumbling around inside a body. One controversial issue is whether the body should negotiate on limiting the use of anti-vehicle mines, including requirements that such mines be equipped with self-destruct and self-deactivation mechanisms. Some countries, such as China and Russia, have objected to this proposal.

Frustrated with the CCW process, some treaty members led by Norway in February 2007 launched negotiations outside the CCW to ban cluster munitions “that cause unacceptable harm to civilians.” The Cluster Munitions Convention was adopted in May 2008 and has 102 states-parties as of August 1, 2017. See Cluster Munitions at a Glance for more information. 

Conventional Arms Issues

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Time to Ban Cluster Munitions Transfers, Rethink Approach to Treaty

Sections:

Description: 

How should the United States exercise responsibility in arms deals with Saudi Arabia and other states that fail to adequately guard against civilian casualties in conflict?

Body: 

Volume 8, Issue 3, July 13, 2016

The raging civil war in Syria, the conflict in eastern Ukraine, the ongoing fighting in Yemen have led to massive civilian casualties. The belligerents target civilian population centers and use certain types of weapons, including cluster munitions, that indiscriminately harm civilians. The situation has led many responsible policy makers to call for adjustments in U.S. policy that would reduce access to these weapons—which the United States has not used this decade—and to hold those who would use them accountable.

A man passes by the remains of an Uragan rocket lying in front of a burning house in Donetsk, Ukraine, on October 5. Uragan rockets can be used to deliver cluster munitions. (John Macdougall/AFP/Getty Images)In June, the U.S. House of Representatives narrowly voted down an amendment to the fiscal year 2017 defense appropriations act that would have barred the use of funds to authorize or transfer cluster munitions to Saudi Arabia. The congressional action came after Foreign Policy reported just before the Memorial Day holiday that the Obama administration had suspended such transfers, following evidence of civilian casualties from cluster munitions attacks in Yemen. These actions again drew cluster munitions into the U.S. public spotlight, highlighting both the stigma on these weapons and controversy over U.S. military support for Riyadh’s ongoing war in Yemen.

As the end of the Obama administration approaches, it is time for the United States to put in place a policy that would permanently cease transfers of cluster munitions, move fully toward ratifying the international treaty banning these weapons, and exercise greater responsibility for arms deals with Saudi Arabia and other states that fail to adequately guard against civilian casualties in conflict.

Weapons No Longer Used by the United States

Cluster munitions are bombs, rockets, and artillery shells that disperse explosive submunitions over wide areas. Many submunitions fail to detonate as designed, leaving explosive remnants that later injure or kill civilians. In the 20th century, the United States was a leading user, manufacturer, and provider of the weapons, directly using cluster munitions in at least a dozen countries and supplying them to some 30 more. In Laos alone Washington still spends millions of dollars a year—with much more needed—to assist in the cleanup of cluster munitions it dropped more than 40 years ago.

Despite official policy that cluster munitions have military utility, the reality is that Washington is no longer using the weapons. The United States last used them in significant numbers in Afghanistan (2001-2002) and Iraq (2003) and evidence shows that Washington employed as many as five Tomahawk cruise missiles armed with cluster munitions during a December 2009 strike in Yemen. Perhaps due to stigma or the use of other weapons (such as armed drones) no evidence exists of U.S. use of cluster munitions in this decade.

According to the Cluster Munition Monitor, the United States last budgeted funds for U.S. production of new cluster munitions in 2007, but has since sold them to India, Saudi Arabia, South Korea, Taiwan, and the United Arab Emirates. 

U.S. Cluster Munitions Policy Essentially Unchanged Under Obama

In a questionnaire for Arms Control Today in 2008, then presidential candidate Barack Obama recognized U.S. “forces have been moving away from using cluster munitions and anti-personnel landmines ourselves,” and said “these trends can be accelerated.” 

The Obama administration made significant progress on landmines in 2014 by setting U.S. policy to eventually accede to the Mine Ban Treaty and prohibiting U.S. antipersonnel landmines except on the Korean Peninsula. The Korea exception must be overcome, however, before the United States can fully comply with the ban on antipersonnel mines.

The administration has not however changed its general approach on cluster munitions. The United States continues to follow a 2008 policy that bars the transfer of cluster munitions that fail to operate as intended more than 1 percent of the time, resulting in unexploded ordnance. Until 2018 the policy only allows U.S. use of weapons not meeting that criteria if approved by a combatant commander. After 2018, the United States will no longer use, manufacture, or transfer cluster munitions that fail to meet the 1 percent or less unexploded ordnance standard.

The stigma against cluster munitions has grown considerably since the 2008 policy was announced by then-Secretary of Defense Robert Gates. In recent years, senior U.S. officials have criticized others for using cluster munitions in Syria, Ukraine, and elsewhere. Washington has voted in favor of UN General Assembly resolutions expressing outrage at the continued use of cluster munitions in Syria, most recently in December 2015. It has also supported UN Security Council resolutions and called on the OSCE to investigate and report cluster munitions use allegations. 

Today, the 2008 Convention on Cluster Munitions, which bans the weapons, has 100 states-parties and an additional 19 signatories. Twenty-one of NATO’s 28 members are states-parties to the treaty, including Canada, France, and the United Kingdom. So too are traditional U.S. military allies such as Australia and Japan. U.S.-led efforts to negotiate a new protocol on cluster munitions at the Convention on Conventional Weapons failed in 2011. This leaves the 2008 ban treaty as the sole international instrument dedicated to addressing the suffering caused by cluster munitions.

Yet Washington stubbornly continues to ignore the treaty. It abstained on a nonbinding UN General Assembly resolution on the convention in December. Unlike its allies and the majority of the world’s nations, it does not participate in any meetings associated with the Convention on Cluster Munitions.

Recent Use by Saudi-led Coalition Highlights Need for New Thinking

In March 2015, a Saudi-led coalition of countries began an air campaign against Houthi forces in Yemen, seeking to return former president Abd Rabbuh Mansour Hadi to power in Sanaa. Almost immediately after the coalition began its airstrikes, reports emerged about the use of American-made cluster munitions, including in civilian areas in contravention of U.S. imposed end-use conditions. Many of the cluster munitions used in Yemen were supplied in the 20th century. 

However, the more modern CBU-105 Sensor Fuzed Weapons manufactured by Textron, the only cluster munitions that meet U.S. export criteria, where also discovered and reported by Human Rights Watch field researchers. They have documented multiple examples of submunitions or “skeet” from a BLU-108 canister failing to disperse or detonate. The failure of these last cluster munitions and their misuse should lead policymakers to permanently end U.S. transfers of cluster munitions. 

More broadly, the Saudi-led coalition’s actions and as well as those of the Houthi have resulted in thousands of civilian deaths and contributed to massive suffering and displacement. Saudi actions, including use of cluster munitions, have been widely condemned and are leading to growing censure of arms sales to Riyadh. On Feb. 25, the European Parliament approved a nonbinding resolution finding that European supplies of weapons to Saudi Arabia violate EU arms transfer rules and seeking an embargo on such transfers due to Saudi behavior in the humanitarian crisis in Yemen. 

On March 18, Zeid Ra’ad Al Hussein, UN high commissioner for human rights, more widely addressed the conflict and said: “It would appear to be the case that the distinction between legitimate military targets and civilian ones—which are protected under international law—is at best woefully inadequate…. And at worst, we are possibly looking at the commission of international crimes by members of the [Saudi-led] Coalition.” Civil rights groups in late June called for Saudi Arabia to be removed from the UN Human Rights Council.

Deservedly, Washington’s arms sales to Riyadh are drawing more scrutiny. The United States has long been a top weapons supplier to Saudi Arabia, a country that is the leading developing world arms purchaser (according to a recent Congressional Research Service report), and one which increased its arms imports by 275 percent during 2011-2015 as compared to the previous five years (according to the Stockholm International Peace Research Institute-SIPRI). 

In April, Sens. Chris Murphy (D-Conn.) and Rand Paul (R-Ky.) proposed legislation that would require that U.S. sales of weapons to Saudi Arabia be subject to a certification process guaranteeing that the Saudis are targeting terrorists and not civilians in Yemen. 

In their review of a November 2015 notification of a potential $1.3 billion sale of advanced air-to-ground weapons to Riyadh, Senate Foreign Relations Committee Chairman Bob Corker (R-Tenn.) and ranking member Ben Cardin (D-Md.) invoked a new authority that requires the State Department to notify Congress at least 30 days prior to the delivery of an arms shipment. Such pre-delivery notifications, which were written into the Arms Export Control Act in December 2014 with the Middle East in mind, have not been invoked previously. 

Peace activists demonstrated in front of Textron’s world headquarters in April for its role in supplying cluster bombs to Saudi Arabia. (Photo: RiFuture.org/@SteveAhlquist)In March 2015, the U.S. wing of the Cluster Munition Coalition requested that President Obama review the 2008 policy, including the exception allowing for cluster munitions that may result in less than one percent unexploded ordnance, and commit the United States to accede to the Convention on Cluster Munitions.

More recently, attention has been focused on the manufacturer itself, Textron, via public protests outside its facilities in Massachusetts and Rhode Island denouncing its production of cluster munitions after reports of civilian harm from the Saudi Arabia-led coalition’s use of these weapons. American banks and financial institutions have also been listed in the “Hall of Shame” by the global Stop Explosive Investments campaign and its June 2016 report detailing institutions that fund companies producing cluster munitions.

Given how out of step U.S. policy on cluster munitions now stands, with the U.S. allowing export of weapons it no longer uses and which its allies condemn, now is the time to end transfers and more seriously consider accession to the Convention on Cluster Munitions. At the same time, the president and Congress can take steps to be much more circumspect in their arms transfers to Saudi Arabia, refusing to allow new supplies until the country shows more responsibility in its military activities to protect civilians and live up to international humanitarian and human rights law.

—JEFF ABRAMSON, non-resident senior fellow with the Arms Control Association, and program manager of Landmine and Cluster Munition Monitor for the International Campaign to Ban Landmines-Cluster Munition Coalition

Debate on Autonomous Weapons Resumes

May 2015

By Jefferson Morley

Experts convene in Geneva for an April 14 session of the week-long meeting on lethal autonomous weapons systems. (UN Geneva)Representatives of 88 countries discussed the specter of robotic warfare at an April 13-17 meeting in Geneva, finding widespread agreement on the importance of controlling weapons that can automatically target and kill people without human control but failing to reach consensus on how to do that. 

The informal experts meeting, called by the parties to the Convention on Certain Conventional Weapons (CCW) last November, was the second multinational conference held on the lethal autonomous weapons systems. The first meeting was held in Geneva last May. (See ACT, June 2014.)

A small group of states, including Cuba, Ecuador, the Holy See, and Pakistan continued to call for a ban on the autonomous systems that civil society groups have dubbed “killer robots.” In a statement to the gathering, Irfan Mahmood Bokhari of Pakistan said further development and use of such weapons systems “must be pre-emptively banned through a dedicated protocol of the CCW.” 

Other countries called for action short of a ban. 

“As a step forward at this stage,” Sweden’s delegation said in its opening statement, “we would encourage transparency and propose information-sharing measures among interested states.” A representative of Poland said, “It would seem at least advisable to...prevent transfers of such systems and their components to undesirable end users.” 

But Michael Meier, the State Department official who headed the U.S. delegation, urged the meeting to “focus on increasing our understanding versus trying to decide possible outcomes.”

Six civil society groups (Article 36, Human Rights Watch, International Committee for Robot Arm Control, Mines Action Canada, PAX, and Women’s International League for Peace and Freedom) called for the prohibition of lethal autonomous systems. 

The multinational debate on lethal autonomous weapons was triggered by a May 2013 report, written by Christof Heyns, a South African jurist who serves as UN special rapporteur on extrajudicial, summary, or arbitrary executions. The report called for a moratorium on the building of such weapons. In a speech to last month’s conference, Heyns welcomed what he called “an emerging consensus that the notion of meaningful human control presents a guide to distinguish acceptable forms” of autonomous weapons. 

In his draft final report on the meeting, chairman Michael Biontino of Germany said that “there was a general understanding that the debate needs further deepening. Delegations supported the idea that the CCW was the right forum for a continuation of the discussions, with some delegations indicating that other fora could complement the CCW debate.” 

The parties to the CCW will meet in Geneva in November.

Kahl Tapped as Biden Aide

Vice President Joe Biden announced on Sept. 26 the appointment of Colin Kahl as his new national security adviser.

November 2014

By Kingston Reif

Vice President Joe Biden announced on Sept. 26 the appointment of Colin Kahl as his new national security adviser.

Prior to joining Biden’s office, Kahl was associate professor in the Security Studies Program in the Edmund A. Walsh School of Foreign Service at Georgetown University and a senior fellow at the Center for a New American Security. While at the center, Kahl authored numerous articles on Iran’s nuclear program, including “The Danger of New Iran Sanctions” in The National Interest in December 2013 and “Still Not Time to Attack Iran” in Foreign Affairs in January 2014.

Colin Kahl, who was recently named national security adviser to Vice President Joe Biden, participates in a panel discussion on Iran’s nuclear program on Capitol Hill on February 21, 2012. (Chip Somodevilla/Getty Images)From 2009 to 2011, Kahl served as deputy assistant secretary of defense for the Middle East.
“As both a scholar and experienced public servant, Colin has a unique perspective on a number of national security issues that our country faces today, particularly in the Middle East,” said Biden in a statement announcing the appointment.

Kahl succeeds Jake Sullivan, who left Biden’s staff in August to teach at Yale Law School. Sullivan remains a senior advisor on talks with Iran on its nuclear program.

The administration recently filled other senior positions dealing with nuclear weapons and nonproliferation policy.

Elizabeth Sherwood-Randall was sworn in Oct. 5 as deputy energy secretary. Sherwood-Randall, who was confirmed by the Senate on Sept. 18, previously served as White House coordinator for defense policy, countering weapons of mass destruction, and arms control.

Adam Scheinman, also confirmed by the Senate on Sept. 18, was sworn in Sept. 22 as President Barack Obama’s special representative for nuclear nonproliferation. In that role, he will represent the United States at the 2015 Nuclear Nonproliferation Treaty Review Conference.

Robert Wood was sworn in Oct. 2 as U.S. representative to the Conference on Disarmament. He had been confirmed by the Senate on July 15.

The administration is still seeking confirmation of Frank Rose to be assistant secretary of state for arms control, verification, and compliance. He was nominated for the position on July 18, 2013. Rose is currently deputy assistant secretary of state for space and defense policy.

Autonomous Weapons Stir Geneva Debate

The first UN meeting on robotic weapons triggers widespread interest and growing debate about technologies that could kill without human control.

Jefferson Morley

The first multinational conference dedicated exclusively to robotic warfare took place May 13-16 at the UN Office at Geneva as governments around the world confront the emerging technologies that policymakers call “lethal autonomous weapons systems” and headline writers have dubbed “killer robots.”

The three-day meeting featured diplomats, scholars, and activists debating the implications of new weapons that could automatically target and kill people without human control. Although few such weapons exist now, revolutionary developments in sensors and robotics have stoked fears in some quarters that these weapons systems could make warfare less risky for the attacker and therefore more indiscriminate, but raised hopes in others that they might reduce civilian casualties.

“Delegations underlined the fact that this meeting had contributed to forming common understandings, but that questions still remained,” Jean-Hugues Simon-Michel of France, who chaired the meeting, said in his report. “Many delegations expressed the view that the process should be continued.”

Representatives from 87 countries and a dozen civil society groups attended the conclave amid high media interest. Multiple news outlets reported on the meeting of the parties to the Convention on Certain Conventional Weapons (CCW), which bans weapons such as blinding lasers.

The result of the Geneva meeting was a mixture of urgency and uncertainty among the 100-plus attendees.

“All too often, international law only responds to atrocities and suffering” after they have happened, Michael Møller, acting director-general of the UN Office, said in welcoming the conference participants, “You have the opportunity to take pre-emptive action and ensure that the decision to end life remains firmly under human control.”

Five states—Cuba, Ecuador, Egypt, Pakistan, and the Vatican—submitted statements calling for a ban on the lethal autonomous systems. “Experiences have shown that it is best to ban a weapon system that is deemed excessively injurious or has an indiscriminate effect before it is being deployed [rather] than afterwards,” said Walid Abdelnasser, head of the Egyptian delegation, in Egypt’s statement.

That call was echoed by most of the civil society organizations in attendance, including the Nobel Women’s Initiative, which submitted an open letter signed by 20 Nobel Peace Prize winners endorsing a ban.

U.S. officials said talk of a ban or any other specific policy measure was “premature” and often based on an inaccurate conception of the weapons involved.

“Too often the phrase [‘lethal autonomous weapons systems’] appears still to evoke the idea of a humanoid machine independently selecting targets for engagement and operating in a dynamic and complex urban environment,” Stephen Townley, the State Department official who headed the eight-person U.S. delegation, said in his opening statement. “But that is a far cry from what we should be focusing on, which is the likely trajectory of technological development, not images from popular culture.”

Mary Cummings, director of the Humans and Autonomy Lab at Duke University, also called for “a debate based on facts, not fear.” In a May 21 interview, she emphasized the need for a “much better understanding of the technology.”

‘Meaningful Human Control’

“We are beginning to develop a shared understanding internationally regarding the issues surrounding this new class of weapons,” said Ron Arkin, a roboticist from the Georgia Institute of Technology, in a May 19 e-mail. Nevertheless, he said, “[t]here remains a long way to go even in terms of shared definitions and terminology regarding autonomy and ‘meaningful human control,’” a concept endorsed by many delegations as a prerequisite for any lethal weapon.

In two sessions on international law, experts debated whether existing legal instruments could control new kinds of weapons.

“Many states recognized that existing international law, including international humanitarian law, already provides a robust framework for dealing with new weapon technologies, even if autonomous weapons—like many new technologies—pose some challenges,” Matthew Waxman, an official in the George W. Bush administration, said in a May 19 e-mail. Waxman, a law professor at Columbia University, spoke at the Geneva meeting.

Christof Heyns, a South African jurist who serves as UN special rapporteur on extrajudicial, summary, or arbitrary executions, argued that new legal concepts will be necessary. Heyns’ April 2013 report to the United Nations on lethal autonomous weapons called for a moratorium on such weapons, after which civil society groups urged the parties to the CCW to convene the informal experts meeting in Geneva.

“I think there was a lot of interest at the meeting in the notion that it will be necessary to ensure that humans retain meaningful human control over each attack, and this concept—in addition to other concepts—has to be developed further,” Heyns said in a May 21 e-mail.

Stephen Goose, director of Human Rights Watch’s arms division, welcomed the emphasis on meaningful human control, saying in a May 20 interview that it represented a step toward expanding the CCW to cover lethal autonomous systems. But in a May 21 e-mail, a U.S. official countered, “It is premature to consider where the discussions may be leading.”

The debate about robotic weapons will continue in November when the parties to the CCW will decide at their annual meeting in Geneva whether to renew the mandate to study the issue in 2015.

“The interest shown in Geneva shows that killer robots need to go to top of the arms control and disarmament agenda,” Goose said.

UN to Probe Syria Chemical Arms Claims

Responding to a request from the Syrian government, UN Secretary-General Ban Ki-moon is preparing to conduct an investigation into claims of chemical weapons use in Syria.

Daniel Horner

Responding to a request from the Syrian government, UN Secretary-General Ban Ki-moon is preparing to conduct an investigation into claims of chemical weapons use in Syria.

The government of Syrian President Bashar al-Assad made the request after a March 19 incident in which about 25 people reportedly were killed and dozens more injured in the village of Khan al-Assal, near Aleppo. The Assad regime claims that Syrian opposition forces used chemical weapons in the fighting there.

In a March 21 press conference at the United Nations, Ban said that, in undertaking the investigation, he would insist on “unfettered access.” The two-year-old uprising in Syria has prompted widespread concern that Assad would use Syria’s reportedly large stockpile of chemical weapons against the rebels or transfer control of them to other states or to subnational groups. (See ACT, September 2012.)

Syrian opposition forces claim the Khan al-Assal attack was launched by the Assad regime. France and the United Kingdom have asked Ban to broaden his investigation to cover other sites where the rebels have said the Assad regime used chemical weapons. In announcing his acceptance of the Syrian request, Ban said, “I am, of course, aware that there are other allegations of similar cases involving the reported use of chemical weapons.”

Although Ban and his aides have indicated that the probe would not necessarily be restricted to responding to the Syrian government’s request, they have said it will be circumscribed. At a March 27 briefing, Ban spokesman Martin Nesirky said the goal is to determine “whether chemical weapons were used, and not by whom.” It is not “a criminal investigation” or an attempt “to apportion responsibility or blame,” he said.

In his March 21 remarks, Ban said he would carry out the probe in conjunction with the Organisation for the Prohibition of Chemical Weapons (OPCW) and the World Health Organization. He later named Swedish scientist Åke Sellström to head the team. Sellström was an adviser to two UN bodies that carried out inspections in Iraq.

In a March 26 interview with UN Radio, Sellström said the investigation staff would come from international organizations. In a March 28 e-mail to Arms Control Today, OPCW spokesman Michael Luhan said that “[m]ost or all of the inspectors” will be from the OPCW. He declined to provide further details.

In the radio interview, Sellström indicated the probe would start in early April.

At the March 21 press conference, Ban cited a 1987 UN General Assembly resolution that gives the secretary-general the authority to carry out such investigations. In a March 28 interview, Ralf Trapp, a former senior OPCW official who now is a consultant on biological and chemical weapons issues, said the authority has been applied in the past but that Ban’s investigation would be the first since the 1997 entry into force of the Chemical Weapons Convention (CWC), which established the OPCW.

Language in the CWC and in a 2000 agreement between the UN and the OPCW establishes the terms for cooperation between the two organizations.

Syria is not a party to the CWC.

The UN probe has the “unequivocal support” of the OPCW Executive Council, the council chair, Bhaswati Mukherjee of India, said in a statement issued after a March 27 meeting in The Hague.

The announcement of plans for the Syria investigation comes just weeks before the CWC parties are scheduled to hold their review conference April 8-19 in The Hague. It is not clear what impact the investigation request or the larger question of chemical weapons use in Syria is going to have on the conference, for which the OPCW and the treaty parties have been preparing for months. The conference is held once every five years.

Trapp said the state of affairs in Syria can be expected to figure in discussions of the need to achieve universality for the treaty. In addition to Syria, seven countries—Angola, Egypt, Israel, Myanmar, North Korea, Somalia, and South Sudan—are not parties to the CWC.

The conference participants also might discuss Syria in the context of determining the degree of readiness the OPCW should maintain for investigations into alleged chemical weapons use and the provision of assistance to the victims of chemical attacks, Trapp said.

Cluster Munitions Protocol Fails

Unable to bridge their differences over a cluster munitions protocol, states-parties to the Convention on Certain Conventional Weapons (CCW) did not adopt the controversial provision and ended their Nov. 14-25 review conference badly divided over it.

Farrah Zughni

Unable to bridge their differences over a cluster munitions protocol, states-parties to the Convention on Certain Conventional Weapons (CCW) did not adopt the controversial provision and ended their Nov. 14-25 review conference badly divided over it.

At the Geneva conference, states that produce cluster bombs were willing to agree to some new restrictions on use of the weapons but argued that the bombs still serve important military purposes, while nonproducers cited humanitarian concerns in pushing for broader restrictions.

The opportunity to pass the proposal, which would affect the world’s largest producers of the weapons, is unlikely to re-emerge for years to come, according to sources involved in the debate. More than 50 of the CCW’s 114 parties voiced opposition to the proposal on the last day of the conference. The 1980 treaty, which limits the use of conventional weapons “deemed to be excessively injurious or have indiscriminate effects,” requires consensus on any additions to the treaty; a new protocol is binding only on countries that ratify it.

Cluster munitions are bombs, rockets, or artillery shells that disperse smaller submunitions over broad areas. Some of these submunitions fail to explode on impact and pose a risk to civilians decades after they are deployed.

A draft protocol, submitted by the chair of the review conference’s preparatory sessions, Jesus S. Domingo of the Philippines, served as the basis for negotiations. (See ACT, October 2011.) Several revised versions of the text were issued by Eric Danon of France, who led one of the conference’s main committees. The final text would have prohibited the use, development, production, acquisition, and retention of cluster bombs produced prior to Jan. 1, 1980, and set restrictions on cluster munitions manufactured on or after that date.

The draft received at least tacit support from most major cluster munitions producers, including China, India, Israel, Russia, and South Korea. The United States, a leading producer, strongly backed the measure and said it was “deeply disappointed” by the review conference’s outcome.

The cluster munitions protocol offered “the only chance of bringing the world’s major cluster munitions users and producers…into a legally binding set of prohibitions and regulations,” said Phillip Spector, the head of the U.S. delegation to the CCW, in a Nov 14. opening statement.

Spector said the protocol’s ban on cluster munitions made prior to 1980 alone would prohibit the use of more than 2 million such weapons in the U.S. stockpile. Russia and Ukraine also announced that the 1980 rule would prohibit the use of large amounts of their stocks.

According to a July 2008 Department of Defense press release following the most recent update of U.S. policy on the issue, the United States views cluster munitions as “legitimate weapons with clear military utility in combat…[that] provide distinct advantages against a range of targets…[and] reduce unintended harm to civilians during combat, by producing less collateral damage to civilians and civilian infrastructure” than weapons that do not contain submunitions.

Consensus over the protocol, even among producers, remained uncertain throughout the negotiation process. In a Nov. 15 statement, Pakistan, a producer of cluster bombs, objected to the 1980 cutoff, calling it an “arbitrary” deadline that was “discriminatory in nature.” India also expressed some reservations with the text.

The most significant opposition to the chair’s text came from a number of nonproducing countries that are signatories to the most comprehensive international treaty on cluster bombs―the 2008 Convention on Cluster Munitions (CCM). The International Committee of the Red Cross, the UN High Commission for Human Rights, and many international nongovernmental organizations (NGOs) also criticized the chair’s text at the review conference. The CCM prohibits a much wider array of cluster munitions than the CCW. Major producers of cluster munitions have not signed the CCM, but are party to the CCW.

Fundamental Differences

Negotiations over the protocol “failed ultimately because two fundamentally different concepts on how the [cluster munitions] issue should be addressed could not be reconciled,” Alexander Kmentt, director of arms control, disarmament, and nonproliferation at the Austrian Federal Ministry for European and International Affairs, said in a Nov. 25 e-mail to Arms Control Today. “One is the CCM focus on victims and the effects of [cluster munitions], and the other is a security policy and arms control focus that was the foundation of the draft by the chair.”

Although parties opposed to the chair’s text welcomed the provision requiring destruction of producers’ older stockpiles, they objected to language permitting newer models of cluster bombs, currently in use, which are prohibited by the CCM.

“This is a matter of lives, limbs, and principles,” Steffen Kongstad, the head of the Norwegian delegation, said Nov. 14. “We cannot support a new protocol on cluster munitions in the CCW that in fact perpetuate[s], rather than prevent[s], the civilian suffering caused by cluster munitions.”

“Humanitarian values basically overcame a process that was designed to achieve just the opposite,” Juan José Gómez Camacho, Mexico’s ambassador to the UN office in Geneva, said of the outcome during a phone interview shortly after the conference ended.

During a Nov. 16 press briefing, U.S. Deputy Assistant Secretary of Defense for Rule of Law and Detainee Policy William Lietzau argued that the CCM does not, in fact, ban all cluster munitions, citing as examples the German SMArt 155 and the French/Swedish BONUS. In a Nov. 21 interview, Stephen Greene, vice president of communications at Textron Systems, made a similar point. U.S.-based Textron produces the CBU-97 cluster bomb.

A few CCM states, including Australia and Germany, expressed willingness to work with the chair’s text even though its requirements fell short of the CCM.

Opponents of the chair’s text said they never consented to the draft as a basis for negotiation, let alone a final protocol, and maintained that their objections were ignored for years during the negotiating process.

The chair’s text appears to be “a non-negotiated and static text that through several meetings…has not been changed according to the many concerns and suggestions that have been presented,” said Kongstad. “This is not an acceptable way of negotiating.’”

After repeated attempts in preliminary sessions to have their concerns incorporated in the text, Austria, Mexico, and Norway submitted an alternative draft protocol on July 20. The alternative proposal lacks many of the legally binding aspects of the chair’s text and does not contain a definition of cluster munitions. Its proponents claim such ambiguity is necessary to accommodate otherwise irreconcilable views.

Some countries referred to this draft during the review conference, but the alternative protocol itself was not actively debated in the forum. Still, despite several revisions submitted by Danon and a last-minute amendment proposed by the U.S. delegation, opponents maintained that their objections continued to be ignored.

“Only a limited number of High Contracting Parties and observer States have had their views and concerns reflected in this text,” said the Costa Rican delegation in a Nov. 23 statement. “It can thus come as no surprise that the text does not enjoy agreement of all High Contracting Parties and does not command the consensus of this room.”

Pre-1980 Munitions

Many CCM parties found the text’s 1980 deadline objectionable on the grounds that it reflected no improvement in terms of the weapons’ indiscriminate effects.

During his speech to the forum, Kongstad said that findings from UN field organizations and international NGOs showed that 90 percent of cluster munitions victims were civilians, “regardless of the production year of the weapon.”

Responding to Spector’s assertion that the 1980 deadline would remove millions of munitions and that this action alone would have a humanitarian impact, a diplomatic source from a CCM state said in a Nov. 16 interview that “[t]he humanitarian argument only works if you have an actual intention of using these weapons,” which the source said was a doubtful prospect given their age.

In exchange for the offer, the draft protocol asked CCM states-parties for a “seal of approval for continued use” of cluster munitions, Kmentt said in the Nov. 25 e-mail.

Several meeting participants and observers noted that U.S. policy already is in compliance with or, in some cases, exceeds requirements in the chair’s text. The 2008 Defense Department policy prohibits the use of cluster munitions with a failure rate higher than 1 percent after 2018. Prior to the deadline, use of cluster bombs with a higher failure rate must be approved by a combat commander; a similar stipulation is made in the chair’s text.

Under an appropriations act signed by President Barack Obama on Dec. 15, 2009, the United States no longer provides military assistance, sales, or technology transfers involving cluster munitions unless the weapons have a failure rate of less than 1 percent and the recipient agrees not to deploy the weapons “where civilians are known to be present.”

In a Nov. 1 letter, Sens. Jon Kyl (R-Ariz.) and Richard Lugar (R-Ind.) urged Secretary of State Hillary Rodham Clinton to resist pressure to accept the alternative protocol. The senators said the CCM employed “arbitrary” and “unscientific” metrics in distinguishing permitted weapons from prohibited ones. Kyl and Lugar also defended the 1 percent-failure-rate standard, calling it “the most accurate measurement of humanitarian impact.”

Opponents of the chair’s text also took issue with its deferral clause, which allows countries to extend their use of post-1980 cluster munitions that do not meet safety requirements for an additional 12 years after ratification.

Cluster munitions producers, however, say that destruction of large quantities of munitions requires a great deal of money and time. The cost to producers of complying with the chair’s text would be “billions, not millions, of U.S. dollars,” Vladimir Yermakov, deputy head of the Russian delegation, said Nov. 14.

At the Nov. 16 press briefing, Lietzau defended the deferral clause as necessary to comply with the “very high standards” of the protocol. “[G]etting our munitions…and our operations to comply is something that you can’t just do with a switch,” he said.

In a Nov. 25 statement, the U.S. delegation said the country would “continue to implement its own voluntary policy” and encouraged other countries to take similar steps.

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