467 Cesáreo Gutiérrez Espada Autonomous weapons systems, drones and international law It seems more difficult, given the current state of the art, for wholly autonomous devices to respect this principle. As a means of compensating for this potential inability, some have proposed that the robots deployed only fire at machines (and not at human beings)69, but this also brings its own complexities. For instance, what would happen if one attempted to fire at a tank located in the middle of an inhabited area, or any other environment where the civilian population is present? b) Moreover, drones must respect the principle of proportionality, both in international armed conflicts (Additional Protocol I to the Geneva Conventions, Articles 51.5.b and 57.2) and in internal ones (under customary international law), according to which the damage caused by the attack must not be greater than the expected military advantage. Assessing this requirement will not always be straight-forward task for soldiers, let alone for drones70. The Tribunal for the Former Yugoslavia (ICTY), for example, estimates that determining what is proportionate depends on the criterion of “reasonable person”, that is to say, “whether a reasonably well-informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack”71. Would a robot not controlled by any human being be able to do this? At any rate, in such situations of doubt, “the interests of the civilian population should prevail”72 and there are examples in practice of scenarios where flagrant violations of the principle of proportionality occur73. C) Outside the framework of an internal or international armed conflict (Afghanistan), it is IHRL that is applicable to the use of drones (as in Pakistan or Yemen). This calls for, first and foremost, respect for the right to life of every human being (enshrined in the legality of Israel’s actions during the Second Intifada. The Supreme Court understood that this could be seen to be an international armed conflict and civilians who had not participated directly in hostilities were therefore protected (paragraph 39 of the ruling), but that the permanent members of terrorist groups or those who participated directly in a terrorist act lost this condition. 69 In fact, this is what, for example, the Phalanx system does. It has been designed to fire at missile warheads when targeting a vessel in the middle of the ocean. 70 “Studies have shown that disconnecting a person, especially by means of distance (be it physical or emotional) from a potential adversary makes targeting easier and abuses more likely” as well as a lack of full compliance with the principle of proportionality (as recognised by the ICRC in its report from October 2011: International Humanitarian Law and the challenges of contemporary armed conflicts. cit., p. 39). 71 Prosecutor v. Galic., Judgement, ICTY-98-29 (5 December 2003). 72 SANDOZ, Yves; SWINARSKI, Christophe and ZIMMERMANN, Bruno (Edts): Commentary on the Additional Protocols, Geneva: ICRC, 1987, paragraphs 1979-1980. 73 See the example mentioned by CaseY-maSlen, Stuart: “Pandora’s box?...” cit., p. 613.
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