Chapter 5
Legal issues
Introduction
5.1
This chapter will consider several of the legal issues raised regarding ADF
use of unmanned platforms. These included:
-
the applicability of the law of armed conflict (LOAC),
international humanitarian law (IHL) and international human rights law (IHRL);
-
civilian operation of unmanned platforms;
-
autonomous weapons systems; and
-
other legal and regulatory issues.
Law of armed conflict, international humanitarian law and human rights
5.2
Contributors to the inquiry agreed that any use of unmanned platforms by
the ADF must comply with Australia's international law obligations, including
the LOAC IHL, and IHRL. These obligations arise from customary international
law as well as the treaty commitments made by the Australian Government. In
particular, appropriately abiding by the principles applicable to the use of
force in armed conflict (distinction, proportionality and precaution) was emphasised.
For example, the Programme on the Regulation of Emerging Military Technology
(PREMT) commented that the fact that 'a platform is controlled by a remote
operator rather than an on‐board
pilot does not reduce the applicability of existing international or domestic
law to the operations of the ADF':[1]
The key IHL rules pertaining to the conduct of hostilities
require attacks to be directed only against military personnel and objects
(principle of distinction), prohibit launching attacks against legitimate
targets where incidental damage to civilians would be disproportionate to the military
advantage anticipated (principle of proportionality), and demand that constant
care be taken to spare the civilian population (principle of precaution).[2]
5.3
A number of legal issues were raised regarding the use of unmanned
platforms, particular if they were armed. Frequently, these issues were in the
context of the use of armed unmanned platforms as part of operations conducted
by other countries. For example, Professor Ben Saul noted that the UN General
Assembly had urged States in countering terrorism:
To ensure that any measures taken or means employed to
counter terrorism, including the use of remotely piloted aircraft, comply with
their obligations under international law, including the Charter of the United
Nations, human rights law and international humanitarian law, in particular the
principles of distinction and proportionality[3]
5.4
The Human Rights Law Centre (HRLC) considered that 'weaponised drones
open up a Pandora's box of legal and ethical considerations'. It noted that
while the use of drones is not per se illegal under international law 'the use
of drones is subject to the rule of law, in particular [IHL] and [IHRL]':
Both of these systems of law require the protection of human
life. The right to life requires that lethal force only be used where strictly
necessary and proportionate, whilst the humanitarian law strives to protect the
life of civilians in armed conflict.[4]
5.5
The HRLC drew the committee's attention to two significant studies undertaken
by UN officials to develop state legal and accountability standards in relation
to 'drones'. These were conducted by the UN Special Rapporteur on the promotion
and protection of human rights and fundamental freedoms while countering
terrorism, Mr Ben Emmerson, and the UN Special Rapporteur on extrajudicial,
summary or arbitrary executions, Mr Christof Heyns. The HRLC stated:
In short, these two experts have explained that:
- all States need to comply with international law
when using, or involved in the use of, drones;
- the targeted killing of individuals by drones will be lawful
only in very limited circumstances;
- use or involvement with drones should be transparent
so that there is accountability to the people and international community;
- where there have been, or appear to have been, civilian
casualties that were not anticipated when a drone attack was planned, a prompt,
independent and impartial fact-finding inquiry should be conducted and a public
and detailed explanation of the results provided; and
- victims of a violation of international law caused by
drones should be provided with an effective remedy.[5]
5.6
One of the HRLC's key recommendations was that the 'Australian
government not procure armed drones unless it has a system of transparency and
accountability for their use that is consistent with Australia's legal
obligations, including under international human rights law and international
humanitarian law'.[6]
5.7
However, others did not consider the expanded use of unmanned platforms
(including armed UAVs) would have significant legal ramifications for Australia.
Some argued the concerns raised by 'drone strikes' conducted by other countries
were not applicable to the use of unmanned platforms by the ADF due to
differing legal regimes for the use of force. For example, the Intelligence
Services Act 2001 prohibits the Australian Security Intelligence Service
from paramilitary activities, violence against the person or the use of
weapons.[7]
Dr Andrew Davies from ASPI observed that 'the use of armed drones by [Australian]
civilian agencies would be a dramatic departure from current practice requiring
legislative change'.[8]
5.8
Others considered that existing legal frameworks were sufficiently
applicable to unmanned platforms. For example, Northrop Grumman thought that
unmanned platforms would bring few new international legal considerations 'into
play'. It commented that 'most defence and "warlike" capabilities are
already governed by the laws of war and the conventions of conflict, such as:
just cause; proportionality of response; minimisation of collateral damage;
avoidance of civilian casualties'.[9]
Similarly, Dr Ian Henderson argued the 'resort to the use of force
and the regulation of particular instances of the use of force is
comprehensively addressed in international law'. He cautioned:
Great care should be taken before identifying limitations or
restrictions on the employment and use of unmanned systems. This is because any
such limitation or restriction would prima facie apply equally to manned
systems as there is no legally significant difference between the two.[10]
5.9
Professor Tim McCormack from PREMT at Melbourne Law School emphasised that,
while the applicable legal frameworks will depend on the operational context, 'the
law is adequate and capable of regulating the dramatically increasing use of [unmanned
platforms]'.[11]
He stated:
The existing law is adequate to deal with the existing ADF
assets which are used not only for intelligence gathering, surveillance and
reconnaissance but also for remotely piloted, armed unmanned vehicle systems.
It just has to be applied...[W]e have a track record of compliance with the law.
It is something we should be really proud about and eternally vigilant to
ensure it continues to be the case.[12]
5.10
An argument was also made that unmanned systems might potentially
facilitate greater compliance with legal requirements in armed conflict. For
example, Dr Henderson argued 'the greater intelligence, surveillance and
reconnaissance persistence that can be provided by current unmanned systems can
facilitate better target discrimination and lead to less incidental injury to
civilians and damage to civilian property'. He also argued that remote
operators of unmanned platforms 'may be less likely (when compared to operators
who are personally at risk) "to resort to greater force to address
threats"'.[13]
Along the same lines, the Defence submission argued that the 'heightened level
of situational awareness of the environment and threat warning, with the
ability to further discriminate between combatants, non-combatants and friendly
forces' provided by unmanned platforms 'promotes adherence to the Law of Armed
Conflict (LOAC)'.[14]
5.11
Defence stated that the ADF's use of unmanned platforms and systems
satisfies domestic and international legal obligations, in particular, under
the Geneva Conventions and the Law of Armed Conflict (LOAC). It emphasised:
Unmanned ADF air, maritime and land platforms and their control
systems, are subject to, and employed under the same legal framework as manned ADF
platforms. Specifically, these platforms and associated systems are subject to
the same legal considerations and constraints under LOAC as manned ADF
platforms.[15]
5.12
Further, Rear Admiral Peter Quinn stated that the use of any unmanned
platform in the application of force would be subject to the same robust
targeting procedures applicable to manned platforms.[16]
Shared intelligence
5.13
The Centre for Military and Security Law (CMSL) highlighted that multinational
military operations, such as those conducted in Afghanistan and Iraq, often
involved the sharing and pooling of intelligence with operational partners.
This could mean that intelligence generated by an ADF unmanned platform may 'then
be used by an operational partner to, for example, facilitate a specific
targeting operation'. It stated:
This possibility raises two specifically legal issues for
Australia and the ADF: (1) the international law issue of Australia's state
responsibility for the outcome perpetrated by the operational partner using ADF
[unmanned platform] generated intelligence as a component or enabler of that operation;
and (2) the Australian domestic criminal law issue of individual criminal responsibility
of ADF personnel for aiding or abetting that outcome (complicity).[17]
5.14
The CMSL, after considering potential scenarios in relation to shared
intelligence, recommended 'the development of a clear policy establishing the
parameters for ADF [unmanned platform] operations which contribute intelligence
to a shared operational pool...'.[18]
Review
5.15
The Australian Red Cross urged that unmanned platforms only be deployed
if respect for international humanitarian law (IHL) can be guaranteed. It made
several recommendations including that 'unmanned platform systems as either
weapons, means, or method of warfare must be thoroughly tested to ensure that
they are capable of complying with IHL at all times'.[19]
At the April hearing, Rear Admiral Quinn stated that ADF air, maritime and land
unmanned platforms are subject to the same legal considerations and constraints
under the LOAC as manned ADF platforms. This included review to determine
whether the employment of the unmanned platforms would, in some or all
circumstances, be prohibited or restricted by international law or any other
rule of international law applicable to Australia.[20]
Training
5.16
The Australian Red Cross recommended that 'unmanned platform systems
should not be used, controlled, programmed or operated by individuals who are
not fully conversant with and understand the principles of IHL'[21]
Further, Dr Phoebe Wynn-Pope observed:
[T]he Australian government has provided support to
Australian Red Cross for the purposes of providing dissemination of IHL to the
Australian population since the ratification of additional protocol 1 and its
enactment into domestic legislation in 1991...However, further outreach would be
required to an entirely new sector if unmanned or semiautonomous weapons were
to be used during armed conflict. Those involved may not be apparent or easily
identifiable. The Australian government may like to carefully consider whether
the current dissemination program offered through Australian Red Cross and the
training provided by the Australian Defence Force to their own personnel would
be adequate to discharge the government's responsibilities with respect to this
dissemination.[22]
5.17
At the April hearing, Air Commodore Chris Hanna told the committee all
ADF personnel would receive training on the basic laws of armed conflict and
international humanitarian law. If ADF personnel were to be deployed overseas,
this would be supplemented by predeployment training and specific training on
the rules of engagement which would take into account the LOAC and IHL.[23]
Civilian operation of unmanned platforms
5.18
Civilian operation of military unmanned platforms was an area of policy
where there were conflicting views expressed during the inquiry. Dr Davies from
ASPI observed that the ADF had already accepted civilian contractors, even in
front-end support roles and considered that 'the ADF could not do what it does
if it were not for civilian contract support'. However he distinguished between
a civilian supporting an unmanned platform and 'commanding it and controlling
it'.[24]
He stated:
If they are demonstrably in support of military operations
and there is a military chain of command responsible for the targeting
decisions, I suspect that there is not a problem if there are civilians
actually flying the drones or dealing with some of the intelligence feeds that
come from them. That would be my anticipation—that it is how they are used, not
the workforce that employs them...[25]
5.19
However, the CMSL identified civilian involvement in the operation of
unmanned platforms as a 'potential area of concern'. It stated:
Civilian involvement in warfare is not prohibited under
international law; however, those who directly participate in hostilities will
be deprived of the legal protection that is accorded to them as civilians and
can lawfully be targeted. This is regardless of whether the civilian is
operating as a member of a government organisation such as a civilian
intelligence organisation or as a civilian contractor.[26]
5.20
Dr Rain Liivoja from the PREMT explained there was no established test
for when a civilian was considered to be taking part in hostilities:
There is still a grey area between the clear situation where
a civilian is directly participating in hostilities—say, for instance,
launching a Hellfire missile from an unmanned system—to the point where it is a
civilian who, say, in Australia is providing basic maintenance for an unmanned
platform. The test is unclear, but there are circumstances where civilians have
been used as drone operators and where they have clearly crossed the line into
direct participation in hostilities.[27]
5.21
The CMSL recommended the ADF, in cooperation with other relevant
government departments and agencies, develop comprehensive guidelines on
civilian engagement in the operation of unmanned platforms for military
purposes.[28]
Similarly, PREMT commented:
[C]are should be taken when assigning civilians – for
example, contractors or civilian staff members of government agencies – to
operate [unmanned platforms] in armed conflict. While international law does
not prohibit such practice, the operators run the risk of taking a direct part
in hostilities, which makes them legitimate military targets and renders them
liable to arrest and prosecution if, for example, travelling abroad after the
end of the conflict. Also, facilities from which UVs are operated may become
targetable as lawful military objectives.[29]
5.22
Similarly, the Australian Red Cross also recommended that 'unmanned
platform systems should not be used, controlled, programmed or operated by
individuals whose accountability lies outside military mechanisms of control in
relation to potential breaches of IHL'.[30]
Autonomous weapons systems and unmanned platforms
5.23
Many military, civilian and recreational unmanned platforms currently available
have a degree of automated functionality designed to reduce operator workload
or errors. These functionalities could include automated take-off and landing,
height keeping, and route following/planning. However, Mr Ken Crowe from
Northrop Grumman observed that in terms of true autonomy 'unmanned systems
still have a long way to go':
The aircraft, the
ground systems and the underwater systems follow various pre-programmed rules
either to repatriate themselves to an area of safety and land or to avoid
impacting adversely on their environment. So true autonomy I do not think has
arrived in unmanned systems, but they exhibit elements of autonomy. To the
untrained observer it may look as if the systems are thinking for themselves,
but of course they are not. There are acting under pre-programmed rules and
they are following the direction of their pilots or mission commanders back at
base.[31]
5.24
Fully autonomous unmanned platforms capable of using lethal force do not
currently exist. However, so-called autonomous weapons systems (AWS) are being
developed. For example, there are a number of air defence systems which have
human supervised autonomous modes which detect, track and guide weapons to
destroy targets such as the Israeli Iron Dome system or the Aegis Combat System
which will be operated on the RAN Air Warfare Destroyers. Active protection
systems are also being deployed on armoured vehicles which can autonomously
detect and intercept incoming munitions.[32]
5.25
Recent research and development has included a focus on increasing the
level of autonomy of unmanned platforms for both civilian and military
applications. The International Committee of the Red Cross (ICRC) noted that 'a
truly autonomous system capable of operating in a dynamic environment against a
range of targets has not yet been developed...[h]owever, there is considerable
interest in (and funding of) relevant research'.[33]
For example, the US Defense Advanced Research Projects Agency (DARPA) Collaborative
Operations in Denied Environment (CODE) project aims at developing improvements
in collaborative autonomy of unmanned platforms, including the capability for
groups of UAVs to work together under limited human supervision. The program
manager for the CODE project stated:
Just as wolves hunt in coordinated packs with minimal
communication, multiple CODE-enabled unmanned aircraft would collaborate to
find, track, identify and engage targets, all under the command of a single
human mission supervisor.[34]
5.26
Concerns were raised regarding the legal implications of unmanned
platforms capable of autonomously using lethal force. There were doubts that an
AWS would be capable of adequately complying with the fundamental principles of
IHL such as proportionality. Uncertainties were also highlighted in relation to
the accountability for acts performed by AWS which amounted to violations of
IHL including individual criminal responsibility or State responsibility.
5.27
Dr Brendan Gogarty from the University of Tasmania urged the committee
to consider the issue of full autonomy of unmanned platforms as a long term
concern requiring 'immediate and wide ranging action':
A computer without
human restraints will always be faster than one with some form of human control
and therefore, realistically, once one nation has fully autonomous weaponised
[unmanned platforms] the others will follow. That situation may be fifty years
away, or it may be five, but ultimately, now is the best time to have the
debate about whether the community is willing to accept such a future. If it is
determined that full weapons autonomy is not an acceptable path then Australia
will have to participate in, or even lead, international dialogue towards
effective regulation and restriction of such technology.[35]
5.28
The moral and ethical issues regarding the use of AWS were also raised
with the committee. The ICRC commented:
Even if technology could one day allow an autonomous weapon
system to be fully compliant with IHL in a dynamic environment, there remain
some fundamental questions...Additional Protocol I of the Geneva Conventions
provides that the acceptability of such systems should be examined according to
the principles of humanity and the dictates of public conscience.
Would the dictates of public conscience be prepared to yield
to a machine the decision to take human life on a battlefield? And if it is
agreed that some human control or oversight is required in such life and death
situations, what kind and degree of human control would be meaningful?[36]
5.29
Dr Christian Enemark identified the critical issue as 'whether or how
technology can overcome ethical shortcomings in the use of force while
preserving the moral influence of human responsibility'. He considered that 'there
is little scope for optimism that robotics engineers could program autonomous
drones to exercise better ethical judgement than on-board pilots or
ground-based operators, and a more serious concern is that these machines might
be deployed before achieving even a roughly equal standard'.[37]
5.30
On 27 February 2014, the European Parliament adopted a non-binding resolution
on the use of armed drones that included support for a ban on 'the development,
production and use of fully autonomous weapons which enable strikes to be
carried out without human intervention'.[38] Several human rights and
other civil society groups have also commenced a campaign for international action
against the development of AWS. The Campaign to Stop Killer Robots has called
for a comprehensive, pre-emptive prohibition on the development, production and
use of fully autonomous weapons achieved through an international treaty, as
well as through national laws and other measures. It has also urged all countries
to consider and publicly elaborate their policy on fully autonomous weapons.[39]
A range of other possible measures have been suggested to regulate AWS,
including controls to slow the proliferation, requirements they be defensive in
nature, limitations on their firepower or compulsory neutralising mechanisms.[40]
5.31
The Australian Red Cross outlined that State Parties to the Convention
on Certain Conventional Weapons (CCW) have convened a number of meetings to
discuss issues surrounding AWS together with observer States, UN agencies, the
ICRC, NGOs and subject matter experts.[41]
Australia, as a signatory to the CCW, has participated in these discussions. At
the first informal meeting of experts, the Australian representative, former
Ambassador Mr Peter Woolcott stated:
For us, this topic has raised many more questions than
answers. Consistent with Australia's approach to other emerging technologies,
like in the cyber context, Lethal Autonomous Weapon Systems, if they are to be
used, should only be used in accordance with existing international law. How
international law, including the use of force, international humanitarian law
and international human rights law, applies to Lethal Autonomous Weapon Systems
will need to be addressed as the technology continues to develop...
Like any other weapon, Australia notes that a Lethal
Autonomous Weapon System might be employed in a defensive mode or an offensive
mode. As such, Australia would like to eventually see a definition of a Lethal
Autonomous Weapon System which identifies its key distinguishing aspects to
enable further discussion on this topic.[42]
5.32
Australia did not make a statement at the next meeting of experts held
in Geneva on 13-17 April 2015. Many countries and organisations participating at
that meeting identified the concept of 'meaningful human control' as important
to potential future regulation of AWS.[43]
However, others countries urged caution, highlighted definitional issues and
argued that it was premature to consider specific action to regulate AWS. For
example, the UK stated:
To legislate now, without a clear understanding of the
potential opportunities as well as the dangers of a technology that we cannot
fully appreciate, would risk leading to the use of generalised and unclear
language which would be counterproductive. IHL has successfully accommodated
previous evolutions of military technology...There is no reason to believe that
IHL will not be capable of dealing with an evolution in automation.[44]
5.33
In 2012, the US Department of Defence (US DoD) issued a policy statement
on autonomy in weapons systems. The directive appeared to be the first policy
statement by any country on AWS. In particular, the directive states it is US
DoD policy that '[a]utonomous and semi-autonomous weapon systems shall be
designed to allow commanders and operators to exercise appropriate levels of
human judgment over the use of force'.[45]
The US delegation to the informal meeting of experts on AWS in April 2015
described the framework established by the directive:
The framework establishes a deliberative approval process by
senior officials, sets out the technical criteria that would need to be
satisfied in order to develop autonomous weapon systems, and then assigns
responsibility within our Defense Department for overseeing the development of
autonomous weapons systems. The Directive imposes additional requirements
beyond what is normally required during our weapons acquisition process. These
additional requirements are designed to minimize the probability and
consequences of failure in autonomous and semi-autonomous weapons systems that
could lead to unintended engagements and ensure appropriate levels of human
judgment over the use of force.[46]
5.34
Defence stated that its approach was that 'where lethal force is
involved a trained operator will remain responsible for the application of that
force'.[47]
It noted:
It is theoretically possible that an unmanned system with
sufficient processing power and a library of threat signatures could be armed
and programmed to apply lethal force autonomously. The ADF will embrace
semi-autonomous systems where that capacity can save lives or reduce exposure ‑
for example by replacing truck drivers in some vehicles of a resupply convoy
with autonomous systems that can follow the vehicle ahead – but where lethal
force is involved a trained operator will remain responsible for the application
of that force.[48]
5.35
At the April hearing, Rear Admiral Peter Quinn stated:
Australian unmanned systems retain a human in the loop,
meaning that, while some basic functions are conducted autonomously, ultimate
control is retained by a system operator. This will remain the case if in the
future the ADF asks the government to consider the benefits of arming unmanned
systems.[49]
Other legal and regulatory issues
5.36
A broad range other legal issues were raised in relation to the use of
unmanned platforms. The majority of these issues were also applicable to
civilian or government use of unmanned platforms. These included negligent use,
traffic regulation considerations, use of evidence gathered, privacy
regulations and regulation of no-fly zones.[50]
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