CYIL vol. 14 (2023)

CYIL 14 (2023) AUTONOMOUS WEAPON SYSTEMS UNDER INTERNATIONAL LAW… suffering within the meaning of Article 35(2) of Additional Protocol No. I. Both rules are considered principles of International Humanitarian Law having a customary character. 25 Furthermore, the rule on the obligation to avoid “associated damage” to the civilian population and civilian objects, which is disproportionate, must be observed. The principle of proportionality , which is expressed in Article 51(5)(b) of the Additional Protocol, which is also considered an expression of customary international law. 26 The International Court of Justice in the Advisory Opinion of the Legality of the threat or use of nuclear weapons 27 from 1996 also referred to the meaning of the so-called Martens Clause, which is expressed in Article 1(2) of Additional Protocol No. I according to which “in cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience”. It clearly stems from international humanitarian law that only combatants , i.e., soldiers (people), who are also responsible for violating the rules of international humanitarian law, can use force in an armed conflict. In the case of the use of autonomous weapon systems, it is thus necessary to stipulate who will be responsible for their use . In practice, clear assignment of the responsibility to specific persons can be problematic. However, from the point of view of international humanitarian law, it cannot be accepted that certain persons would not be held responsible. Opponents of autonomous weapons point out that autonomous weapons violate international law. According to them, it is unclear who is responsible, the machine, or the commander who authorized the use of the weapon, or even the manufacturer. Critics argue that without imposing a sanction on someone, the deterrent function of international law is weakened, and violations become more likely. On the other hand, autonomous weapons exist, they are developed, and their complete ban is not realistic. However, their use must be in accordance with the rules of international humanitarian law. It is therefore necessary to regulate them from the point of view of international humanitarian law. From the perspective of IHL, fully autonomous weapons are a problem. In this regard, commanders must remain responsible for the initial use of autonomous weapons. The commander must give an order for their deployment and set the parameters for their use in a certain area, etc. Any weapon requires human intervention, at least for its activation. Commanders are responsible for the use of these weapons in accordance with international law. 28 If there is remote control by an operator who is a combatant , the situation is clear from an IHL point of view, but if the operator is a civilian, a problem arises. It is likely that many strikes by drones (unmanned aircraft), as well as the use of other new technologies, do not meet the requirements of ius ad bellum . An even bigger problem 25 Customary IHL. Rule 70. Weapons of a Nature to Cause Superfluous Injury or Unnecessary Suffering. In: ICRC IHL Databases. Available at: https://ihl-databases.icrc.org/en/customary-ihl/v1/rule70 [accessed 04. 08. 2023]. 26 Customary IHL. Rule 14. Proportionality in Attack. In: ICRC IHL Databases. Available at: https://ihl-databases. icrc.org/en/customary-ihl/v1/rule14 [accessed 04. 08. 2023]. 27 Legality of the Threat or Use of Nuclear Weapons. I.C.J. Reports 1996, p. 226 (Advisory Opinion). 28 LEWIS, J. The Case fo Regulating Fully Autonomous Weapons. The Yale Law Journal . 2015, p. 1314.

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