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Post-Human Humanitarian Law: The Law of War in the Age of Robotic Weapons

Post-Human Humanitarian Law: The Law of War in the Age of Robotic Weapons

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Published by CPLJ
Post-Human Humanitarian Law by Prof. Vik Kanwar (JGLS).
A review of recent books on robotic warfare. to be published in the Indian Yearbook of International Law and Policy.
Post-Human Humanitarian Law by Prof. Vik Kanwar (JGLS).
A review of recent books on robotic warfare. to be published in the Indian Yearbook of International Law and Policy.

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Categories:Types, Research, Law
Published by: CPLJ on Jun 02, 2010
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INDIAN YEARBOOK OF INTERNATIONAL LAW AND POLICY2010
POST-HUMAN HUMANITARIAN LAW:THE LAW OF WAR IN THE AGE OF ROBOTIC WEAPONS
Vik Kanwar 
*
 
R
EVIEW
E
SSAY
 
P.W.
 
S
INGER
,
 
 IRED FOR
 AR
:
 
 HE 
 R
OBOTICS
 R
 EVOLUTION AND
ONFLICT IN THE 
21
ST 
 ENTURY 
,
 
P
ENGUIN
P
RESS
(2009)R
ONALD
A
RKIN
,
 
G
OVERNING
 L
 ETHAL
 B
 EHAVIOR IN 
 A
UTONOMOUS
 R
OBOTS
,
 
C
HAPMAN
&
 
H
ALL
(2009)W
ILLIAM
H.
 
B
OOTHBY
,
 
 EAPONS AND THE 
 L
 AW OF 
 A
 RMED
ONFLICT 
,
 
O
XFORD
U
NIVERSITY
P
RESS
(2009)A
RMIN
K
RISHNAN
,
 
 ILLER
 R
OBOTS
:
 
 HE 
 L
 EGALITY AND
 E 
THICALITY OF 
 A
UTONOMOUS
 EAPONS
,
 
A
SHGATE
P
RESS
(2009)
I.
 
I
NTRODUCTION
 The literature on robotic warfare has grown substantially over the past year as the use of 
―warbots‖ (also called
robotic weapons, drones, unmanned combat vehicles [UCVs], orunmanned aerial vehicles [UAVs]) has increased and become visible in combat zones includingIraq, Pakistan, and Afghanistan.
1
The regulation of these weapons
 — 
once a topic for obscureacademic theses
2
 — 
has become a topic of mainstream media attention.
3
Among four titles
*
Assistant Professor, Jindal Global Law School (JGLS). O.P. Jindal Global University, Sonipat, Haryana, NationalCapital Region of Delhi, India. Assistant Director, Centre on Public Law and Jurisprudence (CPLJ). LL.M. NewYork University School of Law (2001); J.D., Northeastern University School of Law (2000). The author is amember of the New York Bar, and has served as an expert-consultant to the Control Arms campaign and to theProgram on Humanitarian Law and Policy Research at Harvard University. The author would like to thank hiscolleagues Professors Priya S. Gupta and Prabhakar Singh (JGLS) and research assistants Gaurav Mukherjee(NALSAR) and Deepaloke Chatterjee (NUJS) for valuable comments.
1
The United States has been the foremost user of these weapons. For the U.S. government‘s defense of the use of 
these weapons under IHL and the law of self-defense, see Harold Hongju Koh, Legal Adviser, U.S. Department of State, Remarks: The Obama Administration and International Law, Annual Meeting of the American Society of International Law Washington, DC (March 25, 2010). Available at:http://www.state.gov/s/l/releases/remarks/139119.htm.(Last checked April 15, 2010).
2
Earlier works on this topic have been largely confined to specialty journals and unpublished theses: See John. J.Klein,
The Problematic Nexus: Where Unmanned Combat Air Vehicles and the Law of Armed Conflict Meet 
, Airand Space Power Journal, July 2003. Erin A. McDaniel,
 Robot Wars: Legal and Ethical Dilemmas of UsingUnmanned Robotic Systems in 21st Century Warfare and Beyond 
, M.M.A.S. Thesis (Faculty of the U.S. ArmyCommand and General Staff College, Fort Leavenworth, Kansas), 2008.
3
See, e.g.,
John Barry and Evan Thomas,
 Military: The UAV Revolution -- Up in the Sky, An Unblinking Eye
,N
EWSWEEK
, June 9, 2008. BBC News, US warned on deadly drone attacks, October 28, 2009. Peter Bergen andKatherine Tiedemann,
 Revenge of the Drones: An Analysis of Drone Strikes in Pakistan
, (New America Foundation)
 
2 |
KANWAR
 
tracking these developments over the past year, the most popular and influential has been P.W.
Singer‘s book 
Wired for War: the Robotics Revolution and Conflict in the 21st Century
.
4
 
Singer‘s book limits explicit discussion of 
International Humanitarian Law (IHL) issues to asingle short chapter, but this gap can be filled by recent academic works on weapons law. The
application of IHL to robotic weapons is discussed generally in William H. Boothby‘s
Weaponsand the Law of Armed Conflict 
5
and in more detail in Arm
in Krishnan‘s
Killer Robots: Legalityand Ethicality of Autonomous Weapons
 
(2009) and Ronald Arkin‘s
Governing Lethal Behavior in Autonomous Robots
(2009).Taken together, the four books highlight the tensions between of autonomy and accountability inrobotic warfare and suggest an original account of fundamental changes taking place in the fieldof IHL. This Review Essay argues that from the point of view of IHL the concern is not theintroduction of robots into the battlefield, but the gradual removal of humans. In this way theissue of weapon autonomy marks a paradigmatic shift from the so-
called ―humanization‖ of 
IHL.
6
 
―Humanization‖ already conflates two senses
 
of ―humanity‖ noted by
Henri Meyrowitz:(1) humanity understood as the
defining characteristic of the human race
(
menschheit 
), , butalso by humanity understood as
a feeling of compassion towards other human beings
 (
menschlichkeit 
), by virtue of human (rights), humane treatement. that in humanitarian lawhumanity
 – 
 
menschheit 
is safeguarded through humanity
 – 
menschlichkeit 
.
7
If the role of human
combatant recedes, is the era of the ―humanization‖ of International Humanitarian Law (IHL)
effectively over? Which, if any of these will persist when robots take over combat functions?What will IHL accomplish in a post-human context?II.
 
W
IRED FOR
W
AR
 In
Wired for War 
, P.W. Singer describes how robotic weapons have been developed, anticipatedor reflected in the realms of popular culture, ethics, science fiction, technology, futurism,military strategy, economics, politics, and law. Unlike his earlier book 
Corporate Warriors
, anacademic study of private military companies,
Wired for War 
is interview-based and written in astyle accessible to a non-academic audience. But in keeping with his previous work, Singer givesa balanced treatment of controversial developments. He manages to avoid raising alarm at themere fact of professional soldiers being supplanted by proxies (robots or contractors), though heacknowledges popular anxieties of 
losing control.
While owing his enthusiasm for the topic to
October 19, 2009. EJIL: Talk! (Blog),
The United States' Use of Drones in Pakistan
, September 2009. Jane Mayer,
The Predator War: What are the risks of the C.I.A.'s cover drone program?
T
HE
N
EW
Y
ORKER
, October 26, 2009.
4
P.W.
 
S
INGER
,
 
W
IRED FOR
W
AR
:
 
T
HE
R
OBOTICS
R
EVOLUTION AND
C
ONFLICT IN THE
21
ST
C
ENTURY
, Penguin Press(2009)
5
W
ILLIAM
H.
 
B
OOTHBY
,
 
W
EAPONS AND THE
L
AW OF
A
RMED
C
ONFLICT
(2009)
6
 
Theodor Meron,
The Humanization of Humanitarian Law
,
 
94
 
A
M
.
 
J.
OF
I
NT
L
.
 
L. 239 (2000).
7
 
R
ENE
P
ROVOST
,
 
I
NTERNATIONAL
H
UMAN
R
IGHTS AND
H
UMANITARIAN
L
AW
. Cambridge University Press (2002) at5-
6; quoting Henri Meyrowitz, ‗
 R´eflexions sur le fondement du droit de la guerre’ 
, in C
HRISTOPHE
S
WINARSKI ED
.,
 
S
TUDIES AND
E
SSAYS ON
I
NTERNATIONAL
H
UMANITARIAN
L
AW AND
R
ED
C
ROSS
P
RINCIPLES IN
H
ONOUR OF
J
EAN
P
ICTET
(G
ENEVA
 /T
HE
H
AGUE
:
 
ICRC/N
IJHOFF
,
 
1984)
 
at 419, 426
 – 
31.
 
3 |
KANWAR
 
fictional precursors, Singer is measured and careful to describe the terrain of robotics as itactually exists, drawing his informants from industry, the military, academia, and politics. In the journey from science fiction space operas to the facts on the ground, the reader is reminded, forexample, that the very real presence of warbots on the battlefield does not promise theexcitement of Hollywood versions (e.g.,
Star Wars
, the
Terminator 
, or
 Iron Man
). Instead, theyare more often relegated to work that is overly dirty and dull, and not only dangerous. In closedetail, most robots perform repetitive tasks, earning the name
s ―drone‖ or ―drudgery‖ which wasthe original meaning of ―robot.‖
Yet, the most recent phase of robotic warfare has added thedimension of lethality, placing robotic technology squarely in the category of weapons (meansand methods of warfare) and raising the possibility that IHL provides an appropriate framework to regulate it.In the first half of the book Singer walks us through the science, production, economics, andpolitics of this technology, and we become aware of the state of its development its currentcapabilities, and potential uses. Throughout these encounters, Singer and his informants freelyspeculate on advantages and drawbacks of the technology. Can they work? Can they becontrolled? If they improve the efficiency of killing, is it a good thing? What if they make killingenemy targets more reliable, while saving civilian lives? Would such advantage totechnologically superior forces be considered a violation of honorable combat in the sense thatpredates IHL? Will the technological benefits extend to other kinds of humanitarian activity,such as increasing the protection of civilians by robots sweeping an area for landmines, orperforming defensive functions? In the second half of the book the panoply of voices give way to
Singer‘s own and
the questions begin to gather around a steady theme: the increasing
―autonomy‖ of robots, or what
S
inger calls ―taking humans out of the loop.‖ Automation of 
warfare does not yet mean complete
―autonomy‖ of robotics (we will discuss this distinction in
detail below), but the concern is that life and death decisions will be made on the battlefield
without direct input from humans. What is referred to as ―autonomy‖ is not artificial intelligence
capable of supplanting human responsibility; instead it is an increase in time and distancebetween human actions and their results. In particular, there is an anthropomorphic fallacy,interesting thought, experiments and speculative fiction assumption that agency or responsibilityshould be distributed as though robots are combatants rather than weapons in the meaning of IHL. For now, robots must be treated as means and methods of warfare, roughly equivalent tothe principles being articulated in instruments regulating land mines. Singer sometimes confusesthings by taking an anthropomorphic view of autonomy, treating Warbots as the most irregular
of ―combatants‖
but rather than muddling this distinction or even being added to artificialpersons (states, corporations, and other actors) they more clearly belong to the category of 
weapons, whose use is considered an extension of human action, as ―means and methods‖ of 
combat. Just as a knife extends the reach and lethality of a hand, sophisticated weapons likewarbots can be considered extensions of human action, and the primary difference is the increasein time and distance intervening between the action and result.
8
Technology has already put
8
M
ARSHALL
M
C
L
UHAN
,
 
U
NDERSTANDING
M
EDIA
:
 
T
HE
E
XTENSIONS OF
M
AN
. New York: McGraw-Hill, 1964 at152. (Cultural theorist McLuhan argues that technology in general is a prosthetic extension of the human body:
―Thetool extends the fist, the nails, the teeth, the arm...‖
). This is true of weapons in particular though agency is obscuredwith the loss of proximity.

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