Médecins Sans Frontières launches the online Practical Guide to Humanitarian Law

International law practitioners, academics and students alike will benefit from the recent release by Médecins Sans Frontières (MSF) of the updated Practical Guide to Humanitarian Law in an online format. The online release comes at the launch of the second updated edition of the Practical Guide, originally authored in 1998 by MSF Legal Director, Françoise Bouchet-Saulnier.

MSF is a humanitarian organisation that delivers aid to people affected by armed conflict and health disasters and globally advocates for the proper implementation of international humanitarian law. The Practical Guide was originally launched in order to comprehensively present the terms and rules of international humanitarian law accessibly to a global audience, such that a uniform interpretation could be established with a due focus on victims’ rights.

The 2015 update recognises the new dilemmas that have been posed to international humanitarian law since 1998. These include the ambiguities arising from the ‘global war on terror’, the rise of non-state armed groups and the increasing use of asymmetrical warfare. Amidst such changes, the Practical Guide considers how international humanitarian law can remain relevant, and for what purpose it exists in the 21st century. The answer that is ultimately put is that humanitarian law remains a crucial means of tempering power and warfare, despite its imperfections as a body of law.

The online Practical Guide includes a variety of alphabetically-arranged entries that cover humanitarian law issues from aggression to military necessity to right of access.

ILA Event – Sydney – End of Year Function

On Wednesday, 9 December 2015, the ILA (Australian Branch) is hosting an end of year function in Sydney. The event will feature presentations on the work of various international committees and study groups, as well as a talk by Dr Ralph Wilde entitled ‘Dilemmas Promoting Global Economic Justice through Human Rights Law’.

Drinks and canapes will be provided. For details of this event, see this flyer. If you wish to attend, please register by email to secretary@ila.org.au.

International criminal law and autonomous weapons: a challenge less considered — Sarah Ahern

As early as 1950, computer scientists such as Alan Turing were considering whether a machine might ever be capable of thought and, if so, what the implications of this might be for humankind. Turing opined that

I believe that at the end of the century the use of words and general educated opinion will have altered so much that one will be able to speak of machines thinking without expecting to be contradicted. (Alan Turing, ‘Computing Machinery and Intelligence’ (1950) 49 Mind 433, 442)

The dawn of the twenty-first century has proven Turing’s quote more or less prophetic in substance. The development of automated, autonomous and artificially intelligent machines has the capacity to revolutionise the human existence. In particular, the rise of these machines has enormous implications for the conduct of warfare.

An autonomous weapons system (AWS) is one that is capable of operating, to a greater or lesser extent, without human intervention. Autonomous machines must be distinguished from automatic machines: whereas as automatic machine can be left to carry out a defined task under strict parameters with predictable results, an autonomous machine can comprehend and respond to varied situations without human input.

The question of whether AWS could ever be in compliance with international humanitarian law (IHL) has been thoroughly discussed, with conclusions ranging from adamant rejection to more favourable and nuanced critiques. Human Rights Watch, for example, published the dramatically titled report ‘Losing Humanity: The Case Against Killer Robots’, which called for a complete ban on AWS on the premise ‘that fully autonomous weapons would not only be unable to meet legal standards but would also undermine essential non-legal safeguards for civilians.’ Professor Mike Schmitt, on the other hand, points out that autonomous weapons may be (though will not necessarily be) more compliant with the laws of armed conflict than traditional military systems (Michael N Schmitt, Autonomous Weapons Systems and International Humanitarian Law: A Reply to the Critics).

These discussions, though crucial to the development of the law regulating AWS, overshadow an equally important but much less-considered challenge: the question of how international criminal law (ICL), the system of enforcement developed to promote accountability for violations of IHL, can be applied to crimes involving machines as perpetrators.

The most intuitive response to this question seems to be that the programmer ought to be liable. After all, one might assume that it is the programmer who designs the parameters that dictate the machine’s behavior. This, however, is an overly simplistic approach to what will likely be, in the coming decades, a complicated area of law. An AWS, rather than having one programmer and one user to whom liability may be clearly attributed, is likely to have been programmed by an entire team of developers and to be operated by a team of users (See, eg, General Atomics Aeronautical, Predator UAS (2014)). Moreover, it is likely to operate alongside human peers and commanders in a combat setting.

This raises several challenging questions. First, can a machine ever be liable for a crime in its own right? Secondly, in any event, how can we create accountability for any humans directly involved in a crime alongside an AWS? Finally, can that accountability extend along the chain of command?

These issues have been discussed at length elsewhere — individually by other authors, some of whom are cited in this work; and cohesively by this author in an undergraduate dissertation from which this work is adapted. The following discussion attempts to introduce the issues and frame what is likely to be a significant legal debate as AWS technology develops and becomes more widespread.

Can a machine commit a war crime?

Can a machine ever satisfy the mental elements of a criminal law that has evolved over centuries to moderate and punish human behaviour?

Questions like this tend to spark debates about whether the human capacity for logical, emotional and moral reasoning can ever be replicated in a machine. However, this debate is misplaced in an exploration of mens rea and machine liability because it conflates questions of law with existential questions of sentience, morality, and reason. IHL is silent as to ethical or moral reasoning. Decisions are either lawful or not lawful; within the scope of what is lawful, the law offers no moral guidance or judgment (See generally Dale Stephens, ‘The Role of Law in Military Decision-Making: Lawfare or Law Fair’ (SJD Thesis, Harvard University, 2014) ch 1). A person can be criminally liable for a breach of the laws of armed conflict regardless of their motives, their morality or their ethical reasoning.

The exact definitions and requirements of mens rea vary between jurisdictions and offences and have been discussed at length elsewhere. For the purposes of this discussion, intent is taken to require knowledge and volition: knowledge of the relevant act or omission and the circumstances or results, and volitional action to engage in the act and bring about the contemplated result (or at least volitional acceptance of the risk of the result) (See Prosecutor v Bemba (Pre-Trial Decision) [357]–[359], cited in Johan van der Vyver, ‘Prosecutor v Jean-Pierre Bemba Gombo’ (2010) 104 American Journal of International Law 241).

In a technical sense, knowledge is ‘the sensory reception of factual data and the understanding of that data.’ (Gabriel Hallevy, ‘Virtual Criminal Responsibility’ (2010) Original Law Review, citing William James, The Principles of Psychology (1890) and Hermann von Helmholtz, The Facts of Perception (1878). Although Hallevy applies the term ‘artificial intelligence’ to systems already in use, including in industry, medicine and gaming. His general discussion of machine liability is therefore applicable to the immediate future development of machines in warfare as well as many machines already in use). There are machines in operation today that possess knowledge in this sense. GPS units, fingerprint scanners, facial recognition technologies and medical sensors all use a combination of input devices and contextual information to receive, store and process knowledge in a similar fashion to the human brain.

Volition is another matter, and depends on the sophistication of the machine’s programming and its independence from human operators. A distinction must be drawn between a machine carrying out the task for which it was programmed, and a more sophisticated machine which was not programmed for a particular task, but was instead programmed with learning capabilities and the capacity to make autonomous decisions. In the former case, the intention does not belong to the machine, but to its human operator. Even in the latter case, it is difficult to draw a line between what the programmer designs a machine to do, and what the machine does of its own volition.

Clearly, there are significant questions about whether a machine could form mens rea. These questions might only be answered as the technology develops. In order to create accountability in the meantime, it is necessary to consider AWS in a broader context.

A gun, a soldier, or an innocent agent?

The ambiguity of machine intelligence means at least three legal options must be considered. The first is another intuitive response: why discuss the liability of machines at all? Under this approach, an AWS is no more than a gun or other weapon in the hands of a human operator. This makes sense when considering, for example, remotely-piloted Predator drones.

Equating an AWS with a gun makes less sense, however, where humans are the supervisors rather than the operators of the machines. Setting aside questions of use and command restrictions, the key feature of an AWS is autonomy; an AWS by its very definition has the capacity to perform functions independently of human input. It is this feature that places AWS in a fundamentally different class than an AK-47 (which requires contemporaneous human input) and an antipersonnel mine (which requires non-contemporaneous human input).

AWS and perpetration by another

That being the case, two options remain for situating the AWS in the framework of ICL. One is to treat the programmer or the human user of the AWS as a perpetrator-by-another (Hallevy, above, 11-13). In this approach, the machine is deemed capable of perpetrating the actus reus or physical elements of the offense, but incapable of forming the requisite mens rea or mental elements. This is more or less equivalent to the indirect perpetration model in article 25(3)(a) of the Rome Statute. The AWS is treated the same way as an infant or a mentally incompetent adult.

AWS and group criminal liability

The problem with this model is that, as discussed above, it is more simplistic than the real-world environment in which AWS are likely to operate. It is necessary to consider how the indirect perpetration model might work alongside group modes of liability. Fortunately, this is not a novel concept in ICL: the Pre-Trial Chamber of the International Criminal Court accepted in Katanga that group liability can apply to cases of indirect perpetration (Prosecutor v Katanga (Decision on Confirmation of Charges) cited in Jernej Letnar Cernic, ‘Shaping the Spiderweb: Towards the Concept of Joint Commission Through Another Person under the Rome Statute and Jurisprudence of the International Criminal Court’ (2011) 22 Criminal Law Forum 539).

AWS as perpetrators

Finally, AWS may be viewed as perpetrators in their own right (Hallevy, above, 10). This approach initially seems outlandish in light of today’s widespread technology. However, in the not-entirely-futuristic event that an AWS is programmed with machine learning capabilities and makes a decision that was not specifically dictated by a programmer or user, this might be the most rational approach.

In this last approach, the problem becomes one of accountability. A human can be fined, jailed, or even sentenced to death for a crime; these punishments are unlikely to have any impact on machines. Hallevy argues that as with corporate criminal responsibility, the punishment ought to be adapted to the perpetrator: corporations, for example, cannot be jailed but can be fined (Hallevy, above, 22-6). The difference, however, between corporations and machines is that when a corporation is punished, ultimately its human owners suffer. The same cannot necessarily be said of machines, and this is an area that warrants significant further consideration.

AWS and command responsibility

What liability for the commander of an AWS? Schmitt argues that under the ICL doctrine of command responsibility, the ultimate responsibility for a war crime committed by an AWS would lie with the military commander responsible for deploying the machine into the circumstances in which the crime was committed (Schmitt, above). The concept of holding a superior responsible for crimes committed by subordinates is an accepted principle of customary international law (See, eg, Prosecutor v Delalic et al (Appeal Judgment), Prosecutor v Limaj et al (Trial Judgment))

However, command responsibility is not vicarious liability (See generally Ilias Bantekas, International Criminal Law (Hart Publishing, 4th ed, 2010)), and the application of the doctrine in the context of AWS raises some important questions. The first is whether a commander can be held liable for a crime committed by a machine despite general doubt as to whether a machine can ever possess the requisite mental elements of a crime. The second concerns the nature and degree of understanding required before a commander can be said to have had ‘reason to know’ that a crime was about to be committed. The third is what would constitute ‘punishment’ in the context of a crime committed by an AWS.

With regards to the first question, if the law is reluctant to find that a machine is capable of forming mens rea, then it cannot be said that a crime has been made out for which the commander might be liable. The law as it stands therefore creates a significant gap in accountability for commanders of AWS.

The second question arises because as the algorithms used in AWS become increasingly complicated, it becomes increasingly less likely that a commander without extensive specialist training will understand the AWS in enough detail to have knowledge that a crime is about to be committed. It could be argued that a commander with even basic training regarding the AWS ought to have known, but this ventures dangerously close to presuming knowledge, an approach rejected by the ICTY in the Limaj trial. Again, this creates a gap in accountability.

Finally, as to the third question, it might be sufficient that a commander conduct ‘an effective investigation with a view to establishing the facts’ (Limaj Trial, above, [529]). This point is unsettled, though, and warrants further consideration. Moreover, it is not likely to be a politically palatable option in light of strong public sentiment against AWS.

Conclusion

AWS are no longer the realm of science fiction, and the international legal community (led by countries with advanced militaries including Australia and its allies) must seriously consider the implications of this. To date, almost all of this consideration has been dedicated to the compliance of AWS with IHL. The aim of this discussion has been to introduce some of the questions that will arise in the event that AWS, in design or eventuality, are not so compliant. While we are yet to discover whether such systems will actually be deployed, the research being undertaken to this end means that blanket denial is no longer helpful and the challenge must be acknowledged.

Sarah Ahern is a member of teaching staff at Adelaide Law School where she tutors International Law and International Humanitarian Law. This post is adapted from her undergraduate dissertation ‘The Limits of International Criminal Law in Creating Accountability for War Crimes Committed by Autonomous Machines’. You can contact Sarah at sarah.ahern@adelaide.edu.au or on Twitter @SarahKAhern.

The Good Citizen of Australia: Human Rights and Citizenship in the Twenty-First Century – An Address by Hilary Charlesworth

Introduction

On Thursday, 12 November 2015, Professor Hilary Charlesworth delivered the annual Nelson Mandela Lecture at the University of South Australia. The podcast can be accessed by clicking here.

Charlesworth’s lecture focused on proposals to amend the Australian Citizenship Act 2007 (Cth) to use the revocation of citizenship as a tool to deter terrorism. These proposals were first put before the House of Representatives in June 2015 in the form of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (Bill), and were reintroduced in an amended form on 12 November 2015. This article canvasses Charlesworth’s examination of the amended Bill, with a particular focus on her discussion of the compatibility of the Bill with international human rights law.

Overview of the Proposals

Charlesworth commenced the lecture by highlighting that the Bill envisages two distinct bases for the revocation of citizenship of dual nationals, being persons who are citizens of Australia and one other country. Under the first basis, citizenship automatically ceases upon engagement in specified conduct, such as performing a terrorist act, assisting or financing terrorists (proposed s 33AA) and fighting for a ‘declared organisation’ (proposed s 35). Under these provisions, citizenship ceases immediately upon the person engaging in the specified conduct, and the Minister for Immigration and Border Protection (Minister) is simply required to give notice that the person’s citizenship has been revoked (ss 33AA(10), (11), 35(2)). However, immediately following the issuance of the notice, the Bill requires that the Minister consider whether to rescind the notice and exempt the person from the operation of the provision (ss 33A(15), 35(9)). In deciding whether to do this, the Minister is to have regard to factors including the severity of the matters that were the basis of the notice and the degree of threat posed by the person.

Under the second of the basis, the Minister may make a determination in writing that a person ceases to be an Australian citizen if they have been convicted of a specified offence. As with the first basis, the Minister is required to give notice of the revocation of citizenship (s 35A(5)).

However, under both bases for the revocation of citizenship, the Minister is not required to give notice of the revocation of citizenship if the Minister is satisfied that ‘giving notice could prejudice the security, defence or international relations of Australia, or Australian law enforcement operations’ (ss 33A(13), 35(7), 35A(7)).

Compatibility with International Human Rights Law

Charlesworth highlighted that, while the amended Bill reflects a significant improvement to the initial proposals, particularly in relation to how the Bill safeguards the rights of children, substantial tensions remain between the terms of the Bill and international human rights law.

 Right to a Fair Trial

 The right to a fair trial is enshrined in Art 14 of the International Covenant on Civil and Political Rights (‘ICCPR’). This right requires that a person be informed of the case against them, have the opportunity to test the evidence against them and to testify. Under proposed ss 33AA and 35, renunciation of citizenship occurs without warning or any form of judicial scrutiny of the evidence of the conduct that is deemed to be inconsistent with the person’s allegiance to Australia. While the Minister is required to consider whether to exempt the person from the operation of the laws, in doing so, the Minister is not required to have regard to any submissions by the person whose citizenship has been revoked. Under proposed s 35A, the person whose citizenship is to be revoked similarly lacks any right to be heard in relation to the revocation. The intention to subvert the right to be heard is made explicit by provisions that state that the rules of natural justice do not apply to the Minister’s exercise of power under the provisions (ss 33AA(17), 35(11), 35A(11)).

Double Punishment

The right to protection against double punishment is provided for in Art 14(7) of the ICCPR. As discussed in the report by the Joint Parliamentary Committee on Human Rights, ‘An individual subjected to both the automatic loss of citizenship and a criminal conviction and punishment for the same conduct will effectively suffer double punishment’. Charlesworth said that this result would be in clear violation of Art 14(7).

Rights of Children

The initial version of the Bill was plainly inconsistent with Australia’s obligation under Art 3 of the Convention on the Rights of the Child to ensure that, in all actions concerning children, the best interests of the child is a primary consideration. Charlesworth acknowledged that many of these inconsistencies have been addressed in the amended Bill. For example, while the provisions in the initial proposals applied to persons of all ages, proposed ss 33A and 35 only apply to persons aged 14 or over, meaning that the citizenship of children under 14 years of age cannot be automatically revoked. Further, if the person is under the age of 18, the Minister is required to consider whether to exempt the person with regard to the best interests of the child as a primary consideration, being a factor that the Minister was not required to have regard to under the version of the Bill initially put before House of Representatives.  However, proposed s 35A applies to persons of all ages.

Does the Bill Satisfy Established Criteria?

 Charlesworth then moved on to explore whether the Bill satisfies the criteria proposed by former United Nations High Commissioner for Human Rights, Mary Robinson, to help build human rights into measures dealing with terrorism. These criteria include that the measures use precise terms, conform to the principles of proportionality and non-discrimination, be compatible with human rights treaties and be necessary in a democratic society. Charlesworth considered that the Bill ‘comes up short’ with regard to all of these criteria.

The Human Rights Compatibility Statement put before the House of Representatives states that ‘the Government considers that the measures in the Bill are appropriate and proportionate in light of the existing and emerged threats to national security’. However, Charlesworth deemed the analysis in the Statement to be ‘cursory and unsatisfactory’. Charlesworth highlighted that, as it currently stands, the Bill could capture religious charities training people with community skills, such as public speaking or accounting practices, that could later be put to use in support of terrorist activities, indicating that the Bill may not conform to the principle of proportionality. In addition, the Bill fails to conform to the principle of non-discrimination due to its application to dual nationals only, and contains ‘contested and vague terms’.  For example, the purpose of the Bill in s 4 suggests that commitment to the ‘shared values of the Australian community’ is a prerequisite for citizenship. Section 4 of the Bill provides that the Bill’s purpose is to provide for the revocation of Australian citizenship on grounds of conduct that is ‘incompatible with the shared values of the Australian community’.  Using value-based language, which could be deployed as an interpretive aid by a court, could have unintended consequences.

Conclusion

Professor Charlesworth concluded her lecture by reflecting on the true worth of laws such as the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, which are oppressive or appear discriminatory, in combating terrorism. According to Charlesworth, research reveals that alienation and humiliation play a large part in the decision to engage in terrorism, and ‘true security depends on broadening respect for human rights rather than treating human rights as dispensable when the going gets tough’.

Whaling Case Revisited: Japan Rejects ICJ Jurisdiction Over Scientific Whaling Program

October 2015 has seen the flaring of tensions once more in the ongoing whaling dispute between Japan and Australia. On 6 October, Japan filed a special reservation to its declaration recognising the compulsory jurisdiction of the International Court of Justice (ICJ). The special reservation, filed with the United Nations, excludes ICJ jurisdiction over:

any dispute arising out of, concerning, or relating to research on, or conservation, management or exploitation of, living resources of the sea.

In effect, Japan’s reservation seeks to prevent a future legal challenge being brought internationally against its whaling activities. Japan’s scientific whaling program has been the subject of a longstanding dispute between Australia and Japan that, in 2010, led Australia to institute legal proceedings against Japan at the ICJ. This was after the exhaustion of bilateral negotiations and discussions at the International Whaling Commission.

The Whaling in the Antarctic (Australia v Japan) case considered whether Japan, in undertaking the Japan Whale Research Program Under Special Permit in the Antarctic II (JARPA-II), had breached the 1946 International Convention for the Regulation of Whaling (ICRW) by killing whales in the Southern Ocean. Australia argued that Japan was in breach of a moratorium on commercial whaling effectively imposed from 1986 onwards by the adoption of paragraph 10(e) of the ICRW Schedule (which provided for zero catch limits) and Japan’s further obligation under paragraph 10(d) to observe the moratorium. Japan argued that its program fell under the limited exception to the moratorium provided in article VIII of the ICRW, allowing nations to give special permits to its nationals to kill whales ‘for purposes of scientific research’.

On 31 March 2014, the ICJ handed down its judgment, holding that JARPA-II did not fall within the scope of article VIII and determining that Japan was in contravention of the ICRW. The ICJ ordered that Japan revoke any JARPA II permits and refrain from granting any further permits under the program.

While the judgment was widely celebrated at the time as a successful instance of legal dispute resolution and a triumph for the global anti-whaling coalition, Japan has since signalled preparations for a new scientific whaling program, NEWREP-A.

Japan’s filing of a special reservation this month seemingly flouts the scope and power of the ICJ and limits Australia’s options to challenge NEWREP-A on grounds of international law. The Australian government has since announced it is seeking legal advice.

International Law and ASEAN Approach on Transboundary Haze Pollution: Litigating Environmental Disputes — Laely Nurhidayah

Introduction – the 2015 haze pollution crisis

Haze pollution from Indonesian forest fires is an annual environmental disaster in the Southeast Asian region. This year, haze pollution hit the region severely, to an extent far worse than the previous 2013 haze pollution. The Pollutant Standard Index (PSI) in Central Kalimantan reached far above the minimum hazard threshold (350 mg/m3) on 3 October 2015.

The haze pollution this year has not only affected Singapore and Malaysia, who experience it annually, but also reached Thailand. Most of the fires were deliberately caused by human activity to clear peat land for plantation and agriculture. However, El Niño has exacerbated the forest fires, prolonging them for months since the outbreak in August 2015. The El Niño is predicted to continue until November or December 2015.

Poor air quality standards, caused by the fires, have negatively impacted upon peoples’ health across Indonesia and in neighbouring countries.   Children, the elderly and people with asthma are the most vulnerable groups, as they are disproportionately affected. Schools are closed due to poor air quality, and the increasing PSI in the Indonesian cities of Kalimantan and Sumatera has recently forced the government to conduct emergency action evacuation plans for these vulnerable groups. Economic activities in the region have been disrupted, with the aviation industry directly affected with many cancellations of flights to the haze-affected areas.

Litigating transboundary environmental disputes in ASEAN

In response to the haze pollution, Singapore has launched legal action against five Indonesian companies, who it blames for starting fires in farm and plantation areas. These companies, including the multinational corporation Asia Pulp and Paper (APP), have been served with preventive measures notices. Last year, Singapore passed Transboundary Haze Pollution Act No 18/2014. This act has extra-territorial application, which allows Singapore’s government to prosecute the external conduct of an entity that causes or contributes to domestic haze pollution. Offenders can be subject to a fine not exceeding AUD$100,000 for each day that there is haze pollution in Singapore. The act was passed in response to frustration at the inability of the Indonesian government to enforce its own laws against corporations responsible for the fires. On another level, it is a response to the inability of the ASEAN Agreement on Transboundary Haze Pollution to address annual and consistently repeated haze pollution. Implementation of the customary international law principle of state responsibility within ASEAN is problematic, because state sovereignty is strongly embedded in the ASEAN Charter. A further complication is the ‘ASEAN Way’, a term describing the approach taken by ASEAN states to avoid interfering in each other’s domestic affairs and to use consensus planning and cooperative programs paired with national implementation, rather than relying on a strong region-wide agency or bureaucracy. Under the international law regarding transboundary pollution, the main obligation is that a state should not cause harm to other territories. The Stockholm and Rio Declarations stated that states have, in accordance with the UN Charter and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies. However, they also bear responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states. Breach of this obligation of environmental protection may make a state responsible for an internationally wrongful act and liable to make reparations for the injury caused under customary international law, as codified in the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts.

The Singapore Government’s response to haze pollution problem has shifted from state responsibility towards a civil liability regime for transboundary environmental pollution — as adopted in the Transbounday Haze Pollution Bill — and it has its precedents. This approach is in keeping with the work of the International Law Commission on the codification of state responsibility for environmental damage. During the forest fires disaster of 1997–98, Singapore tried to hold the Indonesian Government accountable its failure to control the fires that precipitated a transboundary haze crisis (Tan, 1999). However, insurmountable geo-political resistance to bringing an action against Indonesia under international law meant that this legal action did not materialise (Tan, 2015). Since then, Singapore has launched legal action against Indonesian companies.

Yet the Malaysian Government is refraining from legal action on the basis that it needs to consider potential jurisdictional restrictions under international law. The Malaysian Government can wait and see whether the Singaporean Government succeeds against the offenders. Evidence beyond reasonable doubt is required to prove that the defendant was responsible for causing haze pollution in specific area. Although, current technology can identify the location of forest fire ‘hot spots’, it cannot identify the actor responsible. The primary difficulty is that there is not any one-map policy in Indonesia for identification of concession holders and oil palm companies. Furthermore, land tenure is often disputed in Indonesia. In addition, to obtain remedies, the damage should be quantifiable, the polluters identifiable and there must be clear causation. As a result, civil liability is not a suitable instrument for dealing with pollution of a widespread, diffuse character, where it is impossible to link negative environmental effects with either an act or failure to act by specific actors. In this regard, Singapore’s Government will face difficulties in its suits: Indonesia’s Coordinating Ministry of Political, Legal and Security Affairs has stated that it would not share with Singapore the data of companies who conduct burning activities. Indonesia’s Government argue that domestic law prohibits public disclosure of this information. Yet Article 17 of the Freedom of Information Act No 14/2008 states that there is an exception, as the Government is obliged to inform the public if such information assists the maintenance of natural resources in Indonesia.

Taking legal action against companies in other jurisdictions is challenging, as formal dispute mechanisms can be slow and costly. Alan Tan states that extraterritorial legislation against individuals or companies engaged in transboundary pollution is rare. The first international air pollution case was the Trail Smelter Arbitration 1941. Two states, the United States of America and Canada, were involved in this dispute regarding transboundary fumes causing damage to the property of apple growers in Washington, USA. A dispute between two private parties quickly escalated to the an international-level dispute between states. Obstacles prevented the national courts from exercising jurisdiction during the original Trail Smelter dispute, as the American courts faced difficulties with personal jurisdiction, extraterritorial application of law and the extraterritorial enforcement of its decision — a Canadian Court would not have been able to enforce an American decision.

Additionally, international mechanisms do not provide a useful forum for private parties to resolve Trail Smelter-type disputes, according to Kerkhof. In recent years, there have been a number of multilateral and bilateral initiatives to improve the ease with which as court can be accessed to address transboundary pollution issues. One of these initiatives is the OECD’s recommendation on the Implementation of a Regime of Equal Right of Access and Non-Discrimination in relation to Transfrontier Pollution, but it is not binding. In the USA, the most recent and successful step towards access for justice in cases of transboundary pollution is the Uniform Transboundary Pollution Reciprocal Access Act.

It seems unlikely that ASEAN will establish a liability regime to protect the environment within its own legal framework. ASEAN has a stronger emphasis on prevention and cooperation (rather than determination of liability) when responding to haze pollution or environmental issues. Therefore, Singapore’s legal suits are an important indicator for the future, as success would be a breakthrough for the development of liability regimes in international law and ASEAN.

Conclusion

Litigating environmental disputes is one solution to obtain compensation and deter offenders. However, in seeking compensation or remedies in the environmental sphere, initial barriers lie in proving causation, identifying the polluters and evaluating the claim for the damages. In the case of long distance transboundary pollution, such as air pollution, it is often difficult to identify the sources of the pollution and the polluters themselves. There is also a problem of scientific uncertainty, particularly given the complexity of environmental problems. Even though Transboundary Haze Pollution Act has limited implementation, it represents robust development in ASEAN’s legal framework for haze pollution.

One solution would be to deal with land and forest fires in accordance with international environmental principles and changing attitudes on the ‘ASEAN Way’. However, to ignore the ‘ASEAN Way’ is not legally possible, as those principles are part of the ASEAN Charter. Improving transnational cooperation is an alternative option, particularly by increasing capacity building efforts for local people.

Where international action fails, other solutions exist, such as reform to peatland management and law enforcement in Indonesia. Another solution to deal with land/forest fires is to change attitudes at local level, particularly amongst the companies and local communities who use burning practices. Strengthening community based fire management and activating and revitalising adat, or local customary law, institutions are key to addressing haze pollution and improving environmental protection.

Dr. Laely Nurhidayah, Researcher Indonesian Institute of Sciences (LIPI) (Macquarie University Graduate)

The Act of Killing: Human Control of Weapon Systems and the Future of Warfare — Aneta Peretko

The future of warfare lies not in drones that are remotely controlled by a pilot, but in unmanned weapon systems that can independently acquire, track and engage targets.

In fact, this future has been a reality since at least the 1980s, in one respect or another. Weapon systems such as the Phalanx Close-In Weapon System, the Aegis Weapon System and the Iron Dome Weapon System detect incoming threats and react to them without requiring a human to pull the trigger.

But there is a difference between these types of mechanised responses and autonomous weapon systems that are able to select and analyse a target, and decide whether or not to attack it.

The latter are the subject of this article, which proceeds in three parts to explain what autonomous weapons are, what issues they raise at international law, and what they may mean for the future of war.

What are autonomous weapon systems?

In 2013, as part of a test mission, an Air Force B-1 bomber deployed a Long Range Anti-Ship Missile (LRASM) over Point Mugu, off the coast of California. Although pilots initially directed the LRASM, the weapon entered its autonomous mode half way through its voyage. Without any further human intervention, it analysed three possible ships before selecting one to attack.

Weapon systems with some level of autonomy are already being used, and may be considered for deployment by Australia by the mid-2020s (Defence White Paper at 2.81). Autonomy is a matter of degree, but the LRASM evidently displays a high level of it. It is different from the defensive systems described above, which react on the basis of pre-programmed rules to intercept incoming threats. We know precisely what the Iron Dome will do to an incoming missile. Autonomous weapon systems, on the other hand, behave in a way that is not exactly predictable.

What else we know about autonomous weapon systems is mostly hypothetical. Their use for lethal force is banned by the US Department of Defense up to 2022 (US Department of Defense, Directive Number 3000.09: Autonomy in Weapons Systems at [4.c.(3)] albeit with some exceptions [4.d.]). But we do know that they will not be silver screen, silver-boned killer robots from the future. A definition offered by the US (Directive Number 3000.09, Part II: Definitions) explains that these are systems that ‘once activated can select and engage targets without further intervention by a human operator [emphasis added].’ There is necessarily some human interference.

What human interference does not do, however, is the legally significant act of selecting and engaging a target. Where that act is not subject to meaningful human control, including where there is an override function but the response happens so quickly that it would be impossible for a human operator to keep up, the weapon may be considered autonomous.

How to regulate autonomous weapons systems?

According to a report by the Special Rapporteur on Extrajudicial, Summary and Arbitrary Execution to the UN Human Rights Council, such weapons should meet international standards before even considering them for deployment (Christof Heyns, Report of the Special Rapporteur on Extrajudicial, Summary & Arbitrary Execution).  As yet, there are no specific treaties dealing with autonomous weapon systems, but per Article 2(b) of the Additional Protocol I to the Geneva Conventions (API), generally recognised principles and international humanitarian law (IHL) continue to apply.

Article 36 of the API requires states to determine whether new weapons are prohibited under international law. That determination requires consideration of two further API articles: article 35(2), which prohibits weapons causing unnecessary suffering or superfluous injury, and article 51(4)(b), which prohibits inherently indiscriminate weapons (for a more in-depth look at how these provisions affect autonomous weapons, see Kenneth Anderson & Matthew C. Waxman, ‘Law and Ethics for Autonomous Weapon Systems: Why A Ban Won’t Work and How the Laws of War Can’, Stanford University, The Hoover Institution (Jean Perkins Task Force on National Security and Law Essay Series), 2013). Autonomous weapon systems tend to offer a new method of delivering existing weaponry, including bombs and bullets, so they are unlikely to be the subject of a blanket ban in this regard. However, the use of such weapons may still contravene IHL if the weapons are incapable of exercising the principles of proportionality and distinction (International Committee of the Red Cross, Autonomous Weapon Systems: Technical, Military, Legal and Humanitarian Aspects 75).

Proportionality demands the balancing of military advantage against civilian injury. Assessment of a target’s worth is typically carried out on-scene by a commander who makes a judgment call. It does not adhere to a system of precedent, or a rigid ratio, so programming a weapon to make such an assessment may be difficult, particularly as that assessment may change from minute to minute based on new intelligence.

Distinction forbids the targeting of persons who are not directly taking part in the hostilities, and although autonomous weapon systems can be fitted with advanced sensors to process biometric data, they may not be able to account for the difficult and fluid line between civilians and combatants (Peter Asaro, ‘On Banning Autonomous Weapon Systems‘; the International Committee of the Red Cross has released an entire guide to interpreting what direct participation in hostilities means, see Nils Mezler, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law). Civilians can become legal targets if they take up arms, which sensory equipment may be able to process, but also if they perform acts to assist military operations without actually carrying a weapon. Likewise, combatants may or may not become illegal targets if they are hors de combat due to injury, but that depends on the severity of the injury.

Are automated weapon systems capable of following the law? In fact, some argue that a properly programmed weapon system will follow the law perfectly (Marco Sassoli, ‘Autonomous Weapons: Potential Advantages for the Respect of International Humanitarian Law’). It will not react in anger or panic, seek revenge or withhold information concerning its own conduct. Human soldiers do not always exercise complete compliance with IHL. Can machines do so perfectly? And if they cannot, and can only comply to the same imperfect level as humans, is that good enough?

And what if programming fails? Assigning liability is a challenge. A machine cannot be convicted of war crimes. The prosecution of developers and manufacturers is unlikely – as a preliminary bar, IHL only applies once hostilities have begun. Weapons developed in the lead up to war, or during peace, fall outside of the temporal coincidence required (Tim McFarland and Tim McCormack, ‘Mind the Gap: Can Developers of Autonomous Weapons Systems be Liable for War Crimes?’ 372). Those who procured the weapon may face the same challenge. Even if they did not, should they really hold legal responsibility? It would also be difficult under modes of liability to implicate a commander – if the weapon is autonomous to a degree that it selects and engages its own target, the commander may not have the requisite knowledge of pending criminal acts (Jack M. Beard, ‘Autonomous Weapons and Human Responsibilities’ (2014) 45 Georgetown Journal of International Law 647, 658). For command responsibility to apply, the principle would have to be modified. But is that level of culpability appropriate if the weapon behaved autonomously?

Why regulate autonomous weapons systems?

The real conceptual difficulty with autonomous weapon systems is not one for lawyers, but one for ethicists. Article 1(2) of the API, the so-called Martens Clause, states that in the absence of other agreements, we must be guided by the principles of humanity and public conscience. Does that humanity-guided decision-making involve moral and intuitive paths that are not algorithmic in nature?

Consider Mark Bowden’s widely read 2013 article in The Atlantic, ‘The Killing Machines’, which recounts the experience of a 19-year old drone operator. In 2013, when a truck began shooting at a patrol of marines in Afghanistan, he fired a Hellfire missile at the vehicle and destroyed it. Those marines were at war in Afghanistan. The drone operator was at an office building in the US. Months later, he was still bothered by delivering a ‘deathblow without having been in any danger’.

Of course, for militaries around the world, this is one of the most significant benefits of autonomous weapon systems. True, machines are faster than humans in collecting, processing and acting upon information. They are also more accurate in firing at their selected targets and thus reduce civilian casualties (Avery Plaw, Matthew S. Fricker & Brian Glyn Williams, ‘Practice Makes Perfect?: The Changing Civilian Toll of CIA Drone Strikes in Pakistan’), and are not subject to fatigue or emotional responses. These are military advantages. But there is also an ethical advantage. The machine assumes the risk of war (Ronald Arkin, ‘Lethal Autonomous Systems and the Plight of the Non-Combatant’, ASIB Quarterly, No. 137, 2013). For every unmanned weapon system deployed in a battlefield, at least one human soldier does not have to face that risk.

Autonomous weapon systems will never be bothered by a lack of mutual risk. The use of highly autonomous systems may remove the culpability of the human in the act of killing, an act to which humans face a psychological barrier (see, eg, David Grossman, On Killing: The Psychological Cost of Learning to Kill in War and Society (Little, Brown & Co, Boston, 1995)). But does the decreased personal responsibility in this area make it easier to ethically disassociate from the costs of war?

Aneta Peretko is a solicitor and the Chair of the South Australian International Humanitarian Law Collective, a group of young people who share an interest in the law of armed conflict. The views expressed in this article are solely her own.

Understanding the USS Lassen Move

Last week the USS Lassen, a United States guided-missile destroyer, sailed within 12 nautical miles of a series of artificial islands built by China in the South China Sea. In response, China reportedly summoned the US Ambassador, with a state-run newspaper claiming that China was not afraid of fighting a war. China’s naval commander warned that the move was ‘dangerous and provocative’, and policy makers, officials and journalists on all sides of the dispute have debated the wisdom, or otherwise, of these actions by the US.

The latest move by the US comes in the wake of China’s actions in the previously uninhabited Spratly Island group. In late 2014, China began reclaiming land on a series of reefs, some of which were only partially exposed at low tide. In 2015, satellite images showed significant construction beginning on the reefs/islands. China based its claim over the reef/islands on the so-called ‘Nine-Dash Line’, a 1947 map drawn up by Chiang Kai-shek’s nationalist government. It has been used as the basis, once in 1958, and in 2009 before the UN, in order to substantiate China’s claims.

China’s claim has not gone uncontested. Both Vietnam and the Philippines lay claim to the Spratly Island group, and some of the islands fall within the Exclusive Economic Zone of Malaysia and Brunei under the United Nations Convention on the Law of the Sea (UNCLOS). The Philippines has brought a case challenging the validity of China’s claims before an arbitral tribunal under UNCLOS. Despite China’s argument that the is over competing sovereignty claims, and so outside the remit of the arbitral body, last week the Permanent Court of Arbitration rejected this argument and will consider the case under UNCLOS (see Lea Christopher’s piece on the ILA Reporter on 5 November 2015 summarising the tribunal’s decision). However, China has pre-empted any finding, stating that it will not comply with any unfavourable ruling.

The legal issues associated with the South China Sea are complicated. There is a distinction to be made between claims that are covered by customary law and claims that are covered by the international law of the sea (predominantly contained within UNCLOS). The case of the USS Lassen is to be distinguished on this basis as well, and Shannon Tiezzi’s Diplomat analysis is instructive on the point. The recent US patrol was not concerned with challenging China’s claim to sovereignty over the islands, but rather asserting freedom of navigation, a point which the author claims has been lost among much of the news coverage.

Under UNCLOS, territorial sea extends 12 nautical miles from the shore (article 3). Within it, any ship enjoys the right of innocent passage (article 19). The circumstances that will generate territorial sea is central to the current disputes. A key provision is article 13, regarding low-tide elevations (LTEs):

Where a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no territorial sea of its own.

Article 60 then states that artificial islands do not have any territorial sea of their own and are only entitled to at most a 500 metre ‘safety zone’. This means that under UNCLOS, any artificial structures built by China on LTEs have no territorial sea. Whilst some of China’s construction has occurred on land not considered LTEs, the US has only conducted patrols within 12 nm of Mischief and Subi reefs, artificial islands that were previously LTEs, and so understood by the US not to have a territorial sea. By asserting their right to freedom of navigation past such structures, Tiezzi suggests the US ‘is not challenging China’s sovereignty over the Spratly features; it is challenging the status of those features under international law‘.

With many other LTEs in the region, this stand on freedom of navigation past the Spratly chain is an important test. Understanding how patrols, such as the USS Lassen’s, challenge China under the international law of the sea will be central in understanding the broader geopolitical developments in the region.

 

ILA Event – Canberra & Sydney – Work of Hague Conference on Private International Law

The ILA is pleased to announce presentations in Canberra and Sydney by Mr Philippe Lortie, First Secretary of the Hague Conference on Private International Law. The Hague Conference is a global inter-governmental organisation that works to achieve cross border co-operation in civil and commercial matters.

Mr Lortie will speak about the current work of the Hague Conference as well as the Peter Nygh Hague Conference Internship, which is awarded each year to a graduate or post graduate student of an Australian law school by the ILA (AB) and the Australian Institute of International Affairs.

Canberra event

12.30 pm on 16 November 2015 at the offices of the Attorney-General’s Department, 4 National Circuit, Barton ACT.

Lunch will be provided.

Please RSVP to the Secretary of the ILA at secretary@ila.org.au by Thursday, 12 November 2015.

The event flyer is available here.

Sydney event

6.00 pm for a 6.15 pm start on 19 November 2015 at Baker & McKenzie, Level 27, AMP Centre, 50 Bridge Street, Sydney NSW.

Please RSVP to Patricia Kam (patricia.kam@bakermckenzie.com) by Monday 16 November 2015.

The event flyer is available here.

Philippines v China: Tribunal rules favourably on jurisdiction in South China Sea Arbitration – Lea Christopher

On 29 October 2015, an Arbitral Tribunal (Tribunal) issued its award on the questions of jurisdiction and admissibility in the arbitration between the Republic of Philippines and the People’s Republic of China concerning the South China Sea.  In brief, the Tribunal found that it had jurisdiction to decide seven of the Philippines’ 15 substantive claims.  As to the Philippines’ remaining claims, the Tribunal decided that the question of its jurisdiction needed to be deferred for further consideration in conjunction with its hearing of the merits of the claims.

The Philippines’ substantive claims were summarised in my previous article of 22 July 2015. To recap, its 15 claims can be broadly distilled as follows:

  1. China’s maritime entitlements or ‘historic rights’ over the waters, seabed and subsoil in the South China Sea do not extend beyond the limits of its entitlements under the United Nations Convention on the Law of the Sea (UNCLOS). The corollary is that China’s nine-dash line, insofar as it purports to define the limits of China’s ‘historic rights’ in the South China Sea, is not supported by UNCLOS or another source of international law;
  2. The various features relied upon by China to assert its maritime claims in the South China Sea are not islands (as China claims) but are properly characterised as either ‘rocks’ or ‘low tide elevations’ or are permanently submerged.  China’s construction activities on particular maritime features cannot change their nature in law. This claim is critical to the arbitration because, under UNCLOS, the characterisation of these features determines the maritime entitlements they are capable of generating for a state (namely, an exclusive economic zone (EEZ) and/or continental shelf);
  3. China’s construction and occupation activities in relation to particular maritime features in the South China Sea constitute attempted appropriation of such features in violation of UNCLOS. Further, these activities, as well as China’s fishing and law enforcement activities, have interfered with the Philippines’ ability to freely navigate in its EEZ and the exercise of its sovereign rights in relation to the resources falling within its EEZ and continental shelf; and
  4. China has violated UNCLOS by engaging in fishing and construction activities that damage the marine environment in the South China Sea.

In summary, the Tribunal determined that it has jurisdiction over the second and fourth categories of claims (deferring consideration of the remaining first and third categories). In so finding, the Tribunal addressed each of the following issues in relation to the question of jurisdiction.

Did the Philippines’ claims raise a dispute concerning the interpretation and application of UNCLOS?

According to China’s Position Paper, the dispute could be characterised in two ways, both of which excluded the Tribunal’s jurisdiction. First, China characterised the dispute as concerning territorial sovereignty-related questions over features in the South China Sea. On that basis, China contended that the dispute did not concern the ‘interpretation and application of UNCLOS’, being the threshold requirement for the Tribunal’s jurisdiction under article 288 of UNCLOS.

The Tribunal rejected this characterisation, finding that, while a dispute between the parties did exist concerning land sovereignty over certain features, the Philippines’ claims did not require the Tribunal to make determinations on questions of sovereignty. The Tribunal found that each of the Philippines’ claims concerned the interpretation and application of UNCLOS.

Secondly, China contended that the dispute was properly characterised as relating to maritime boundary delimitation which, for the reasons given below, was excluded from the Tribunal’s jurisdiction by an exclusionary provision in the UNCLOS that China had activated in 2006.

In rejecting this contention, the Tribunal distinguished between a dispute concerning the existence of an entitlement to maritime zones (the present matter), and a dispute concerning the delimitation of those zones where parties’ entitlements overlap. The Tribunal also emphasised that, while it would determine the nature of particular maritime features in dispute, insofar as this resulted in overlapping entitlements between the parties the Tribunal’s determination would not go so far as to delimit boundaries.

Did any of the claims fall within the exceptions to jurisdiction in Part XV of UNCLOS?

As noted above, in 2006 China opted out of the Tribunal’s jurisdiction over particular categories of disputes, including those concerning:

  1. sea boundary delimitations;
  2. historic bays and titles;
  3. law enforcement activities; and
  4. military activities.

This action was taken in accordance with article 298 of UNCLOS, which entitles a party to opt out of compulsory dispute settlement procedures for specific types of disputes when signing or ratifying UNCLOS.

Considering each of the claims in turn, the Tribunal found that none of the exceptions to jurisdiction applied to the Philippines’ second and fourth category of claims. Consequently, it had jurisdiction to determine those claims.

As to the first and third categories, the Tribunal noted that the applicability of the above exceptions depended on merits of the claims and, as such, the possible jurisdictional objections did not possess an exclusively preliminary character. For that reason, the Tribunal reserved a decision on jurisdiction for consideration in conjunction with its determination of the merits of the claims. The Tribunal’s key considerations can be broadly summarised as follows:

  1. The Tribunal’s jurisdiction over the first category of claims (ie, the effect of any historic rights claimed by China) is dependent on whether the claims are caught by the exclusion for ‘historic bays and titles’ in article 298 of UNCLOS. This requires a determination as to the nature and effect of China’s claimed historic rights and their interaction with UNCLOS (ie, a merits determination);
  2. The Tribunal’s jurisdiction over the third category of claims (ie, concerning China’s various construction/interference activities) is dependent on the status of certain maritime features claimed by China and whether any such features generate maritime entitlements for China. Insofar as they generate entitlements for China and result in overlapping entitlements to maritime zones between the parties, the exclusion from ‘sea boundary delimitations’ in article 298 would prevent the Tribunal from addressing some of the Philippines’ claims. That is, such claims would first require a delimitation of the overlapping zones, which the Tribunal is not empowered to do; and
  3. The specifics of China’s activities in particular areas and whether they are military in nature (and therefore fall within the exclusion in article 298) are best assessed in conjunction with the merits.

Were the preconditions to the Tribunal’s jurisdiction met?

Relying on articles 281 and 282 of UNCLOS, China contended that state parties had agreed on a peaceful dispute resolution mechanism of their own choice, precluding recourse to the compulsory dispute settlement procedures under UNCLOS. The articles essentially prevent a state from resorting to the compulsory procedures in the event that they have already agreed on another means of dispute resolution.  In this regard, China pointed to a series of joint statements by state parties starting in the mid-1990s that referred to the resolution of their dispute by negotiation, as well as the Treaty of Amity and Cooperation in South East Asia.

Having regard to these statements and instrument, the Tribunal concluded that they did not prevent the Philippines from resorting to arbitration under the compulsory dispute resolution provisions.

The Tribunal also found that the Philippines had satisfied the precondition for resorting to arbitration, namely, that the parties had an ‘exchange of views’ regarding settlement of the dispute (article 283). In so finding, the Tribunal relied upon diplomatic communications by the Philippines to affected parties in which it proposed multilateral negotiations to resolve the dispute. China insisted on bilateral talks only and the parties ultimately failed to identify a mutually agreeable mode of settlement.

The Tribunal also noted that it was not deprived of jurisdiction by either China’s non-participation in the arbitration to date or the absence of other states with claims to features in the South China Sea (such as Vietnam).

Next steps

The dispute will now proceed to a substantive hearing to enable the Tribunal to determine the merits of the Philippines’ claims alongside the outstanding jurisdictional questions.

However, China has reiterated its position of non-acceptance of (and non-participation in) the arbitration. Its Vice Foreign Minister recently claimed that the outcome of the arbitration ‘will not impact China’s sovereignty, rights or jurisdiction over the South China Sea under historical facts and international law’. Without any power to enforce its rulings, the Tribunal could end up being entirely ignored by China insofar as the outcome is not in its favour.  The proceeding could even prompt China to withdraw from UNCLOS altogether.

While the Philippines has acknowledged this risk, it hopes that an outcome unfavourable to China will encourage other states to defend their respective claims in the region and will result in sufficient diplomatic pressure to dissuade China from further construction activities in the South China Sea. In the meantime, the US has presented its most significant challenge yet to China’s claims in the South China Sea, sending a guided missile destroyer into waters within 12 nautical miles of one of the reefs in dispute days before the Tribunal published its award.

Lea Christopher is a lawyer at Clayton Utz in Canberra. The views expressed in this article are solely her own.