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CCW Review Conference: Autonomous Weapons Discussion to Continue But Regulation Remains Unlikely

The most significant outcome from last week’s CCW Review Conference was the decision to create a UN Group of Governmental Experts (GGE), which will meet for 10 days in 2017 to discuss emerging technologies in the area of lethal autonomous weapon systems (LAWS). Described as “killer robots” by those who oppose their use, LAWS are weapons that can operate autonomously, although as I’ll discuss later, the degree to which they’re autonomous is often confused. Some countries would like to see such weapons banned altogether, while other powers continue to develop them. The establishment of the GGE indicates countries are at least willing to continue the LAWS conversation for another year. Importantly, India — and its ambassador to the UN Conference on Disarmament, Amandeep Singh Gill – will chair the GGE.

The details for the 2017 meetings were also hammered out last week. The GGE will hold its first session from April 24 to 28 or from August 21 to 25 (depending on available funding), and its second session from November 13 to 17 in Geneva.

Significance of Establishing a GGE
 As previously discussed, establishing the GGE is a change from the status quo. The last three years saw informal meetings mostly devoted to outside expert presentations, while the GGE will involve formal meetings and focus on CCW States Parties discussion and input. Basically, the GGE elevates how and when the international community will continue to talk about LAWS in 2017. The meetings will hopefully lead to a better and shared understanding on a number of aspects of LAWS, for example how to think of meaningful human control or appropriate human judgment. But those looking for the GGE to produce an instrument that will regulate the future use of LAWS will likely be disappointed.

As the Review Conference decision stated, the GGE will adhere to agreed recommendations from CCW/CONF.V/2, the outcome document from the April 2016 experts meeting. What that means is the mandate of the GGE is to “explore and agree on possible recommendations on options related to emerging technologies in the area of LAWS.” While exploring “possible recommendations on options” may mean any number of things, the GGE mandate language could have, but does not include references to negotiating an instrument regulating or banning LAWS.

By way of comparison, the last CCW Protocol — Protocol V on Explosive Remnants of War — was adopted in 2006 as the result of a GGE, but a GGE with a much stronger mandate, including the authority to negotiate. That is not the case with LAWS, at least not yet, so expectations for 2017 should be tempered accordingly.

The outcome of the 2017 GGE will be a report on those “possible recommendations on options” for which there is consensus. But based on last week’s review conference, there does not appear to be consensus on anything regarding LAWS beyond the need for continued, albeit now formal, discussions. And even establishing a GGE with an amorphous/non-negotiating mandate was in doubt until Friday afternoon. Throughout the week, Russia in particular expressed concerns about the LAWS discussion formalizing. In the end, the only reason States Parties reached consensus on the GGE decision was that Russia abstained.

The significance of the decision to establish a GGE can also be measured in the time allocated. Dedicating two weeks in 2017 is a step up from the previous one-week a year, which was the schedule from 2014 to 2016. Still, the Campaign to Stop Killer Robots labeled the two weeks “the bare minimum required to demonstrate credible progress.” And whether the first week of the GGE will be in April or August will depend on whether all of the UN’s finance and budgetary conditions have been met. The two weeks of GGE meetings are estimated to cost roughly $277,000.

Current Status of CCW LAWS Discussion
Last week also saw five more CCW States Parties (Argentina, Guatemala, Panama, Peru and Venezuela) join the call for a ban on LAWS. That brings the total to 16 (or 13 percent) of the 121 CCW States Parties that have indicated support for a ban, which raises the question: Why hasn’t the movement to ban LAWS through a new CCW protocol drawn more CCW States Party support?

The answer may lie in how the issue has been framed. Lethal autonomous weapons systems are at CCW largely through the lobbying efforts of non-governmental organizations (like Human Rights Watch) seeking a ban. And at the UN, LAWS are most often discussed in terms of being fully autonomous. There are several reasons why this framing has been useful to ban proponents. But that utility was destined to be transitory, and the framing has contributed to the circular nature of the LAWS conversations to date. Pulling back the curtain on the fully autonomous framing also helps explain the lack of CCW States Party support for a ban.

Fully autonomous weapon systems don’t yet, and may never, exist. Framing the CCW discussion by describing weapons that are fully autonomous has enabled ban proponents to employ moral panic, casting into the indeterminate yet looming future and projecting visions of “killer robots.” Additionally, full autonomy facilitates ignoring the reality that if weapons system autonomy was thought of in terms of the critical functions of selecting and engaging targets, the resulting discussion would have to acknowledge that since 1980, roughly 30 countries have manufactured and/or employed weapons that are capable of autonomously selecting and engaging targets. In essence, LAWS aren’t coming, they’re here, and they’ve been here.  As the International Committee of the Red Cross noted in 2014, “there are already some weapon systems in use today that have autonomy in their ‘critical functions’ of identifying and attacking targets.”

The usefulness of framing the discussion around fully autonomous weapons was inevitably temporary. That’s because while the CCW LAWS discussions can claim to be about future, not yet developed, weapons, it is difficult to explain why those weapons would be much different from at least some current systems that can already autonomously select and engage targets. And the CCW States Parties (US and Russia, for example) that make, sell, and use current LAWS, and have done so for decades, have, for the most part, been reluctant to agree to much more than continuing the discussion.

Framing the discussion around full autonomy has proven a challenging foundation upon which to base a constructive dialogue. We don’t know what full autonomy means or if its even reachable and if so, when. As previously mentioned, some systems today can already autonomously select and engage targets. Future weapons systems may add autonomy in other areas, but would this be relevant to the Convention on Certain Conventional Weapons (CCW)? The purpose of CCW is “to ban or restrict the use of specific types of weapons that are considered to cause unnecessary or unjustifiable suffering to combatants or to affect civilians indiscriminately.” Why does autonomy other than in selection and engagement of targets matter, at least within the CCW construct?

For the GGE to bring clarity about the kinds and types of LAWS that are and are not concerning, and why, will be challenging, and in part because of how the issue has been framed thus far. But if the GGE does so, it may restore confidence in CCW and its consensus process.

What to Look for in 2017
In a statement to the UN in Geneva last week, the Indian delegation indicated that LAWS “will be a test case of whether the CCW can meaningfully respond to evolving new technologies as applicable to armed conflict in this century.” What constitutes a meaningful response undoubtedly varies depending on one’s perspective, but 2017 will be significant, for the GGE, for CCW and the LAWS discussion writ large.

The GGE will meet and submit its report on possible recommendations on options related to LAWS. Their report will hopefully provide a better and shared understanding on a number of aspects of LAWS. But recognizing the consensus requirement, and absent some catastrophic event(s) involving an autonomous system (weapon or otherwise), the report is unlikely to recommend that the CCW States Parties re-designate the GGE with a negotiation mandate. More likely is that CCW States Parties re-designate the GGE for additional meetings in 2018.

Throughout 2017, ban proponents will continue their efforts working within CCW. One question is whether they will modify their hardline stance on a ban? Modifying the call for a ban to one of regulation could take a number of forms, focusing on LAWS primarily designed to target personnel or offensive LAWS, to name just two.

As mentioned above, States Parties adopted the last CCW Protocol in 2006. Inability to work through the CCW process led to the Ottawa Convention/Mine Ban Treaty in 1997 and the Cluster Munitions Convention in 2008 being concluded separate and apart from CCW. Another question, which won’t manifest until the GGE results are in, is at what point will LAWS ban proponents shift their focus from working within the CCW system to looking for an instrument outside of it to make more progress? Based on the last three years, more countries will join the call for a ban in 2017, but how many and which ones isn’t clear. Of the 16 CCW States Parties currently supporting a ban, 12 are in Central/South America, so perhaps there could be the Mexico City or Rio Conventions on LAWS?

2017 will provide some LAWS answers and almost certainly generate more questions.

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About the Author

is an assistant professor at the SMU Dedman School of Law. He previously served in the United States Army for over twenty years, including as the Chief of the Army’s International Law Branch in the Pentagon. Follow him on Twitter (@ChrisJenks_SMU).