CYIL vol. 8 (2017)

KAROLINA WIERCZYŃSKA CYIL 8 ȍ2017Ȏ At the current moment the actions of any unmanned weapons are wholly dependent on the decision of man and remain under the control of a human operator (there are not entirely independent unmanned weapon systems which are always in some way controlled or supervised by man). Any operational armed system/drone/robot itself is not able to distinguish between civilian persons and legitimate military targets, or to proportionally assess civilian damage or harm, or finally to take the necessary precautions to avoid wrong targeting. Therefore unlawful targeting, causing extensive civilian harm leading to the breach of international law will/shall be attributed to the person (and/or consequently to the state if exercised under its command or control), not the machine. States remain legally accountable for their unlawful use of armed drones or armed robots during an armed conflict. The ILC noted: “[T]he State as a subject of international law is held responsible for the conduct of all the organs, instrumentalities and officials which form part of its organization and act in that capacity, whether or not they have separate legal personality under its internal law”. 28 Therefore a state will be accountable for actions of its organs exercising “legislative, executive, judicial or any other functions”, including for example local authorities or army. 29 Actions of drones and other machines as controlled by state organs (article 4 ) or other entities exercising the powers of governmental authority (article 5) will be perceived as actions of states. Responsibility is not however connected only with exercising those functions or powers but also depends on the fact of acting on the instructions of, or under the direction or control of, that State in carrying out the conduct (art. 8 of Draft Articles). It seems that any military action (including using drones or other unmanned weapon) could be attributed to the state if such an action was the result of the exercising of state’s powers or if the actions of any actor were conducted on behalf of state’s instructions or while exercising of effective control by that state. As mentioned, the attribution of a breach to the responsible state is followed by the legal consequences, according to art. 30 and 31 of the Draft Articles. The responsible state should cease the wrongful act and offer appropriate assurances and guarantees of non-repetition, for example by way of satisfaction. The state is obliged to make full reparation for the injury caused by the internationally wrongful act, which can take the form of restitution (restitution the status quo ante ), compensation, or satisfaction, and these types of reparation can be implemented separately or jointly. Wiping out the consequences of the breach or, in other words, full reparation often requires the use of different forms of reparations jointly. The situation is more complicated in the context of non-state actors, specifically such as ISIS – an entity not recognized as a legal person. The Draft Articles refer only to the responsibility of states 30 and neither this document nor the commentary published by the ILC refer literally to such an entity as ISIS; however the commentary does not seem to ignore the fact that there are certain entities which lack legitimacy but could bear international responsibility. The ILC noted: “[F]rom the standpoint of the formulation of rules ,of law governing State responsibility, it is unnecessary and undesirable to exonerate a new Government or a new State from responsibility for the conduct of its personnel by reference to considerations of legitimacy or illegitimacy of its origin. Rather, the focus must be on 28 Article 4 of the Draft Articles, also ILC Commentary on the Draft Articles on Responsibility of States …, p. 39. 29 Ibidem. 30 See General commentary p. 32, letter d, and commentary to arts. 57, 57, pp. 141-143, ILC Commentary on the Draft Articles on Responsibility of States…, ibid.

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