AAU-IHL Clinic Means and Methods of Warfare, Rules of Warfare

The Call to Ban Lethal Autonomous Weapons: Where Do African Nations Stand?

Author: Swaleh Hemed Wengo 

Photo credit: US Department of Defense / Sgt. Cory D. Payne, Public Domain

The rapid development of artificial intelligence (AI) and autonomous technologies is raising alarm bells globally about their potential use in lethal autonomous weapons systems (LAWS). LAWS, also known as “killer robots”, refer to weapons that can identify, target, and deploy lethal force against human beings without meaningful human control.[1] The idea of machines making life-and-death decisions on the battlefield has spurred an international movement calling for a total preemptive ban on fully autonomous weapons.[2] African nations have an important voice in this debate, but their perspectives remain underrepresented. 

Opposition to Killer Robots

Much of the opposition to autonomous weapons stems from grave humanitarian, legal, and ethical risks they pose.

  1. Humanitarian Opposition

It has been argued that, lethal autonomous weapon system would struggle to comply with humanitarian principles requiring humane treatment and respect for human life and dignity, as they lack emotion, compassion, ethical judgment and understanding of the value of life.[3] Humans make considered decisions about harm and killing by weighing context, impacts and alternatives, but autonomous weapons rely on pre-programmed algorithms unfit for complex scenarios.[4]While algorithms may enable adequate protection of life, lethal autonomous weapon systems could not appreciate the meaning and significance of life and death.[5] By treating targets as objects in lethal decision-making processes devoid of empathy, judgment and innate resistance to taking life, fully autonomous weapons would fail to respect human dignity and violate the principles of humanity.

  1. Ethical & Moral Opposition

There is also growing public outrage over fully autonomous weapons, implying these weapons violate the moral dictates of conscience laid out in the Martens Clause. Numerous stakeholders like individuals, experts and NGOs have voiced strong ethical objections using terms like “unconscionable” and “abhorrent.”[6] Surveys also show majority public opposition to autonomous weapons. Government statements cite compliance with the Martens Clause and moral deficiencies as concerns.[7] Over 120 nations support new law addressing lethal autonomous weapons and stress retaining human control in use of force decisions, equivalent to banning fully autonomous weapons lacking such control.[8] This emerging consensus against allowing fully autonomous weapons demonstrates they run counter to the dictates of public conscience requiring guidelines for what is morally right, as enshrined in the Martens Clause.

  1. Legal Opposition

Core principles of international humanitarian law require militaries to reliably distinguish between combatants and civilians, while avoiding disproportionate civilian harm.[9] However, LAWS may struggle with the complex judgments involved in differentiating combatants, assessing proportionality amidst uncertainty, and recognizing attempts to surrender or individuals rendered hors de combat.[10] For example, parts of Kenya and South Sudan use firearms for cattle herding. LAWS programmed to engage persons carrying firearms could fail to distinguish active participants in hostilities from herders following cultural practices. Their sensors and algorithms would need to accurately interpret such ambiguous environments and behaviors lacking contextual understanding. The unpredictability of AI systems utilizing machine learning also defies easy verification that LAWS will operate lawfully. In effect, doubts persist about the ability of LAWS to exercise discretion and restraint or demonstrate the accountability necessary to ensure adherence to norms guarding civilian lives or other protections endowed by ethics and law. 

In response to these concerns, the UN Convention on Certain Conventional Weapons (CCW) has held extensive discussions on regulating lethal autonomous weapons. A broad international coalition of NGOs known as the Stop Killer Robots has specifically called for a preemptive ban on the development, production, and use of fully autonomous weapons. The campaign has gained support from over 30 nations.[11] Outside the CCW, the European Parliament passed a resolution calling for an international ban in 2018. However, consensus remains elusive due to objections from nations investing heavily in autonomous weapons programs, such as Israel, Russia and the US, although the US believes LAWS with increasing autonomy can be developed and used responsibly under human oversight to improve compliance with international law. 

The African Stand

African nations have actively participated in CCW talks, underscoring concerns about LAWS fundamentally conflicting with human rights and dignity.  Countries such as Libya and South Africa illustrate Africa’s existing and potential connections to development of these technologies. Libya has seen autonomous weapons like the STM Kargu-2 deployed on its soil already. As an advanced arms producer on the continent, South Africa also has interests in the research and production side of autonomous weapons. Hence understanding LAWS’ impacts and asserting African perspectives in regulatory debates is critical.

The KARGU®️ – a portable, rotary wing attack drone designed to provide tactical ISR and precision strike capabilies for ground troops https://www.stm.com.tr/en/kargu-autonomous-tactical-multi-rotor-attack-uav

Several African countries have taken clear positions calling for a prohibition on the development and production of lethal autonomous weapons systems (LAWS). South Africa stated, “there is a necessity for human control in the selection of targets to enforce accountability.”[12] Egypt cited the need to preemptively ban LAWS before they proliferate citing the example of banning of blinding lasers. Algeria, Djibouti, Egypt, Ghana, Morocco, Namibia, Uganda and Zimbabwe are among over 30 countries seeking a comprehensive ban.[13] Additionally, African nations have actively participated in UN meetings examining potential legal instruments to govern LAWS. The Group of Governmental Experts (GGE) on LAWS was created under CCW to assess emerging technologies and issues around autonomous weapons in light of international law. Multiple African countries across various roles in the convention have contributed to these discussions.

African countries have provided substantive written inputs to inform GGE deliberations.[14] Mauritius advocated for a treaty instituting transparency requirements around LAWS programs and use. South Africa held that GGE principles adopted so far are only intended to guide the group’s work rather than national policies. Looking ahead, African members of blocs like the Non-Aligned Movement have underscored the urgent need to pursue legally binding prohibitions and restrictions to contend with humanitarian and security threats of LAWS. They have pushed for expanding GGE’s mandate to expressly focus on drafting robust international law covering development of these weapons.

Ghanian Chiefs urged to support ‘Campaign to Stop Killer Robots’ https://www.ghanaweb.com/GhanaHomePage/NewsArchive/Chiefs-urged-to-support-Campaign-to-Stop-Killer-Robots-1311715?gallery=1

Beyond CCW, the African Commission on Human and Peoples’ Right (ACHPR) adopted and published Resolution 473 on AI technologies  bearing in mind the statement to the United Nations Group of Governmental Experts (GGE) on Lethal Autonomous Weapon Systems  (LAWS) by the African Group of States on Disarmament on the notion of dignity and humanity and emphasized how this notion is the foundation of human rights in governing the conducts of human beings including their inventions. The African Commission’s Resolution 473 demonstrates broader concern across African institutions over retaining human control and judgment in weapon systems to uphold dignity and rights. The resolution took careful note of the statement by the African Group of States on Disarmament to the UN Group of Governmental Experts (GGE), which stressed how the concepts of dignity and humanity underpin all human rights and must govern human conduct including technological inventions.

By underscoring this statement, the resolution connects development of emerging AI and algorithmic technologies, including potential weapon systems, with longstanding African values around communal ties, ethics and our shared humanity. It suggests autonomous systems that remove human discretion over life-and-death decisions could violate these cherished principles. The resolution implied protecting dignity and human rights in the age of intelligent machines will require conscious constraints around handing over core human judgments with moral and social consequences to automated data processing.[15]

Seen together with African nations’ calls for legally binding instruments to prohibit fully autonomous weapons, the African Commission’s stance signals deep concerns that unchecked AI development poses risks of dehumanization and rights violations. Embedding moral perspectives into research guidance and governance of autonomous technologies is deemed essential to uphold existing obligations around protecting sacred human life and dignity.

However, Africa remains divided. The Continent lacks a unified stance banning killer robots. Some states, such as Guinea and Mali, have so far opposed a prohibition on LAWS or enhancing international law on the issue.[16] Defense ties with countries developing autonomous weapons drive some African nations’ positions. Financial and technical limitations also constrain independent assessment of autonomous weapons’ risks and benefits. Furthermore, inadequate basic digital infrastructure hinders many African states from crafting regulations on LAWS and on new technologies such as AI in general. Nonetheless, international momentum for curtailing autonomous weapons is escalating. As diplomatic talks continue, consolidating African perspectives on prohibiting development and use of fully autonomous weapons will be critical. More capacity building, international technical assistance, and knowledge sharing partnerships focused on responsible AI governance can help overcome these hurdles. Initiatives to expand African expertise in robotics ethics, data governance, and assessing autonomous systems safety are urgently needed. With global public opinion increasingly opposed to handing over life-and-death decisions to machines, African nations have the chance to lead in forging a legally binding international ban on lethal autonomous weapons. By asserting shared human values and rejecting the dehumanizing prospect of automated killing, Africa can make a profoundly important contribution to preventing an automated arms race and upholding international humanitarian law. The world needs African moral leadership in drawing a clear legal line against fully autonomous weapons before proliferation makes it impossible to stop the march of technology towards fundamentally inhuman ends.

References:

[1] DoD Directive 3000.09 on autonomous weapon systems, November 21, 2012.

[2] Human Rights Watch, Stopping Killer Robots Country Positions on Banning Fully Autonomous Weapons and Retaining Human Control,https://www.hrw.org/sites/default/files/media_2021/04/arms0820_web_1.pdf

[3] Human Rights Watch, Heed the Call: A Moral and Legal Imperative to Ban Killer Robots, August 2018, https://www.hrw.org/sites/default/files/report_pdf/arms0818_web.pdf

[4] What are autonomous weapons systems?, https://autonomousweapons.org/

[5] Future of Life, An introduction to the issue of Lethal Autonomous Weapons, https://futureoflife.org/aws/an-introduction-to-the-issue-of-lethal-autonomous-weapons/

[6] Human Rights Watch, Heed the Call: A Moral and Legal Imperative to Ban Killer Robots, 2018, https://www.hrw.org/report/2018/08/21/heed-call/moral-and-legal-imperative-ban-killer-robots

[7] Arms Control Association, Ethics and Autonomous Weapon Systems: An Ethical Basis for Human Control?, 2018, https://www.armscontrol.org/act/2018-07/features/document-ethics-autonomous-weapon-systems-ethical-basis-human-control

[8] Human Rights Watch, Heed the Call: A Moral and Legal Imperative to Ban Killer Robots, 2018, https://www.hrw.org/report/2018/08/21/heed-call/moral-and-legal-imperative-ban-killer-robots

[9] Additional Protocol I (1977), Articles 48, 51, and 52; ICRC, Study on Customary International Humanitarian Law, 2005, Rules 1 and 7.

[10] Dr Vincent Boulanin, Netta Goussac and Laura Bruun, Autonomous Weapon Systems and International Humanitarian Law: Identifying Limits and the Required Type and Degree of Human–Machine Interaction, SIPRI, 2021, Available at https://www.sipri.org/publications/2021/policy-reports/autonomous-weapon-systems-and-international-humanitarian-law-identifying-limits-and-required-type

[11] Stop Killer Robots, Report on Activities Convention on Conventional Weapons Group of Governmental Experts meeting on lethal autonomous weapons systems, United Nations, Geneva, 9-13 April 2018, https://www.stopkillerrobots.org/wp-content/uploads/2018/07/KRC_ReportCCWX_Apr2018_UPLOADED.pdf

[12] CCW Statement by South Africa at the Meeting of Experts on Lethal Autonomous Weapons Systems (LAWS) Geneva, Switzerland, April 2016, https://perma.cc/YHH2-H2QE

[13] Diplo, Africa’s participation in international processes related to AI, https://www.diplomacy.edu/resource/report-stronger-digital-voices-from-africa/africa-participation-international-processes-ai/#:~:text=Algeria%2C%20Djibouti%2C%20Egypt%2C%20Ghana,concerning%20Lethal%20Autonomous%20Weapon%20Systems. 

[14] Group of Governmental Experts on Emerging Technologies in the Area of Lethal Autonomous Weapons Systems. (2019). Report of the 2019 session. 

[15] Resolution on the need to undertake a Study on human and peoples’ rights and artificial intelligence (AI), robotics and other new and emerging technologies in Africa – ACHPR/Res. 473 (EXT.OS/ XXXI) 2021

[16] Votes against the First Committee of the UN General Assembly resolution on autonomous weapons, https://www.stopkillerrobots.org/news/164-states-vote-against-the-machine/

Author’s Bio

Swaleh Hemed Wengo is a Law Lecturer at Prince Sultan University (Saudi Arabia). He holds an LLM from Koc University (Turkey) and an LLB from Kampala International University (Uganda). He is also the Assistant Director of Programs at Firdaous Centre for Academic Excellence. His research Interests Include Public International Law, International Humanitarian Law & Human Right, Artificial Intelligence and Investment Law & Arbitration.

Email: swengo@psu.edu.sa

Linkedin: Swaleh Hemed

Twitter: @HemedSwaleh 

AAU-IHL Clinic Rules of Warfare, Traditional Values in Warfare

Does International Humanitarian Law reflect African customs and traditions? A spotlight on the ICRC’s Tool on African values in war

Autor: Sarah Jean Mabeza

Image Credit: The IHL Customary Law Tool, ICRC

Is International Humanitarian Law (IHL) a Western concept?  This is a question that causes me, as an African IHL practitioner, great cause for concern, as I am convinced of the universality of this body of law.  But I must admit that while my answer to the question would be an adamant “no”, I do not blame those who ask it.  I recall the experience of a colleague who, attempting to convince a Chief in the Pacific Ocean Islands to ratify the 1949 Geneva Conventions, was asked by the Chief “but where is Geneva?” and “what is a convention?”.[1]  This story has always perturbed me, and as an African, I have wondered about the level of ownership over this important body of law from my own continent.

This lack of ownership could, to a certain extent, be understood.  Firstly, the codification of IHL was led by a select few States and centred in the West.[2]  Secondly, African States rarely benefited from the application of principles of IHL, both during the wars of colonization and decolonization on the continent.[3]  And yet despite this, reasons for increased African ownership of IHL exist. The aim of this contribution to is highlight just one of those reasons – the historical relationship that exists between Africa and the law of war.  Indeed, many African cultures have for decades, if not centuries, contained practices that share humanitarian values with modern day IHL provisions. 

In mid-2021 the ICRC launched a Tool to highlight the link between African traditions and customs and modern-day IHL – the ‘African Values in War Tool on Traditional Customs and IHL’.[4]  The tool is the product of a number of years of research into the values underpinning African customs concerning warfare, and is unique in that it collates practices from across the continent that reflect some of the fundamental principles of IHL.  According to one of the legal advisors who worked on the Tool, its purpose is “firstly to contribute to current debates on relevance of IHL to Africa; and secondly to increase understanding and acceptance of IHL rules on the African continent”.[5]  Overall, the ICRC hopes that this Tool may contribute to increased awareness of IHL and improved compliance with the body of law, which may then in turn ultimately contribute towards the reduction of suffering during times of armed conflict.    To illustrate its value, listed below are four of the collected traditions and customs that are geographically representative of the continent:

  • The Tallensi tribe in Ghana considered attacking, looting and pillaging of civilian property a violation of their dignity and a dishonourable act to be avoided; and the traditional rule which regulated the behavior of the Kamajors of Sierra Leone in warfare included the prohibition on looting villages.  These customs reflect the modern-day principle of IHL which states that pillage is prohibited.[6]
  • In the Oronn district in Nigeria when one town decided to go to war against another, two men were sent to lay a plantain leaf upon the road entering the town, signaling an official declaration of war and warning civilians of impending hostilities.  This practice reflects the modern-day principle of IHL which states that effective advanced warning of attacks which may affect the civilian population shall be given, unless circumstances do not permit.[7]
  • In Somalia it was strictly forbidden to desecrate the bodies of the enemy dead or take their possessions for personal gain.  This tradition reflects the modern-day principles of IHL which state that each party to the armed conflict must take all possible measures to prevent the dead from being despoiled, and that mutilation of dead bodies is to be prohibited.[8]
  • As a final example, Maasai warriors in Kenya wore distinctive armbands to distinguish themselves from the civilian population.  This reflects the modern day principle of IHL which states that in order to promote the protection of the civilian population from the effects of hostilities, combatants are urged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack.[9]

Despite the clear links between the traditional practices mentioned above and contemporary principles of IHL, there is not always a direct correlation between the two.  For example, many of the traditional customs collected come from contexts of non-international armed conflicts, whereas some of the IHL principles referenced apply only in international armed conflicts.  Yet the value of the Tool lies in the fact that it provides clarity and confirmation that the rules contained in modern IHL are not foreign concepts in Africa.  

Does IHL reflect African customs and traditions?  To a certain extent, yes.  The Tool will need to be extended and updated in order to answer that question clearly, but for now, it certainly points to the existence of African values in war, which are reflective of contemporary principles of IHL.  As an African IHL practitioner, this gives me hope.

Image Credit: The IHL Customary Law Tool, ICRC

[1] Email exchange with Helen Durham, International Law and Policy Director, International Committee of the Red Cross; 17.08.2021.

[2] To illustrate, all of the 12 countries that signed the 1864 Geneva Convention at the conclusion of its negotiation were European.  See https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_viewStates=XPages_NORMStatesParties&xp_treatySelected=120 (accessed 17.08.21).

[3] This contribution will not focus on the above-mentioned criticisms of IHL in Africa.  For more analysis on that topic, see G Waschefort, “Africa and international humanitarian law: The more things change, the more they stay the same”, International Review of the Red Cross, 2016, 98 (2), p. 603.

[4] ‘African values in war: A Tool on traditional customs and IHL’, https://www.icrc.org/en/document/african-customs-tool-traditional-customs-and-ihl (accessed 16.08.21).

[5] Interview with Tamalin Bolus, Legal Advisor, Pretoria Delegation, International Committee of the Red Cross; 12.08.2021; Pretoria, South Africa.

[6] See GC IV Art. 33(2); AP II Art. (4)(2)(g) and CIHL Rule 52. 

[7] See AP 1 Art. 57(2)(c) & CIHL Rule 20.  

[8] See for example GC I Art. 15(1); GC II Art. 18(1); GC IV Art. 16(2); AP I Art. 34(1); AP II Art. 8 & CIHL Rule 113.  

[9] See AP I Art. 44(3) & CIHL Rule 106. 

Author’s Bio

Sarah J Mabeza, ICRC Regional Legal Advisor, Pretoria Delegation, International Committee of the Red Cross; LLB (UKZN), LLM, Human Rights and Democratisation in Africa (CHR, UP); sarah.mabeza@outlook.com.  

The views expressed are those of the author and do not necessarily represent those of the ICRC.