CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ RESPONSIBILITY OF STATE AND RESPONSIBILITY OF INDIVIDUAL … humanitarian law. 23 Consequently recognizing its statehood would be equal to recognition of the legal personality and subsequently international responsibility of such a state. But it does not mean that such a state, following recognition, would commence respecting any obligations like protection of human rights. On the contrary, ISIS is not aspiring to be a proper state but a Caliphate governed by religion, not international law. At the moment it refuses to take any international responsibility and implement any international obligations including the protection of IHL. This means that the responsibility could be attributed to such entity beside its refusal to bear such responsibility, but, its enforcement would be impossible. On the other hand, recognition of such an entity would undermine the entire current system based on the Montevideo requirements regardless of how pragmatic this solution might be. Definitely the emergence of such entities as ISIS calls for the further development of the law of international responsibility and demands reconstruction of the responses of international law beyond the realm of statehood. 2.2 Attribution the responsibility to a machine? In international law responsibility can be solely attributed to legal persons. The use of weaponized machines (regardless of the kind of unmanned weapon, whether it be a drone or unmanned robot or other autonomous robotic weapon used in warfare 24 ) during an armed conflict has important legal and policy implications especially in the context of international responsibility for the crimes committed by such machines. 25 During an armed conflict international humanitarian law (IHL) must be applied as it for example determines whether the targeted individual is a legitimate military target and provides the legal standards governing attacks directed against that individual. 26 Further, as Nils Melzer notices: “If the targeted person fails to qualify as a legitimate military target, any direct attack would have to comply with law enforcement standards.” IHL demands application of certain rules as: determination of whether a targeted person represents a legitimate military target (principle of distinction); taking all feasible precautions to avoid erroneous targeting (precautionary measures); proportionality of actions (prohibition of excessive attacks) and the principle of necessity referring to the achievement of a legitimate military purpose. Non-compliance with those rules might in consequence lead to violation of IHL, and further state responsibility. 27 23 See more: VAN ENGELAND, A., Statehood, Proto States and International Law: New Challenges, Looking at the Case of ISIS, in PELLET, A., CRAWFORD, J., KOROMA, A. (eds.), The International Legal Order: Current Needs and Possible Responses: Essays in Honour of Djamchid Momtaz , Brill Nijhoff 2017. In this contribution ISIS is declared a proto-state where a cult organizes every aspect of life, or a quasi-state, a state which refuses to be called a state to avoid taking any responsibilities, see: pp. 79-82. 24 On the differentiation between weapon systems see WAGNER, M., Autonomous Weapon Systems , Max Planck Encyclopedia of Public International Law [MPEPIL], Oxford University Press 2015, also: CROOTOF, R., War Torts: Accountability for Autonomous Weapons, 2016 (164) University of Pennsylvania Law Review , p. 1366 et seq. 25 On the broad use of drones see MELZER, N., Human rights implications of the usage of drones and unmanned robots in warfare , EU Document EXPO / B / DROI / 2012/12, Brussels 2013. 26 See broadly: GRZEBYK, P., Who Can be Killed?: Legal Targets in Non-International Armed Conflicts, in BARELA, S. (ed.), Legitimacy and Drones. Investigating the Legality, Morality and Efficacy of UCAVs , Ashgate 2015, pp. 49-70, also KLAMBERG, M., International Law in the Age of Asymmetrical Warfare, Virtual Cockpits and Autonomous Robots, in EBBESSON, J. et al (eds.), International Law and Changing Perspectives of Security , Brill 2014, p. 163. 27 Broadly about the standard see: MELZER, N., Human rights implications …, ibid. , pp. 23-28.

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