Can Robocop Serve and Protectt within the Confines of Law Enforcement Rules?

Abstract

The debate on whether AWS are consistent with international law has largely focussed on International Humanitarian Law. This is so because AWS are considered military weapons - therefore, meant to be used in armed conflict where international humanitarian law is the applicable regime. However, other scholars emphasise that international human rights law is equally relevant in the AWS debate. When the UN Special Rapporteur on extrajudicial executions first presented his report on AWS to the UN Human Rights Council in 2013, there was a number of states who felt that the issue of AWS is not within the mandate of the Human Rights Council because it concerns military weapons, a subject that is governed by International Humanitarian Law and belonging to the disarmament forum. In this paper, I consider the relevance of International Human Rights Law to the AWS debate and the question whether AWS are consistent with human rights norms that seek to protect important rights such as the right to life and dignity.In summary, the arguments I make in this paper are that International Human Rights Law is relevant to the AWS debate and discussions should occur both in disarmament and human rights fora. This precisely because of three major points: firstly, when assessing the legality of new weapons, the Martens Clause specifically provides that principles of international law – of which human rights are part – must be taken into consideration. Secondly, International Human Rights Law continues to apply in armed conflict. Thirdly and finally, in most cases weapons that are initially made to be used only in the context of armed conflict always find their way to law enforcement situations because of their utility. In view of human rights standards, I argue that AWS, if used in law enforcement situations, may be incapable of complying with the right to life, dignity, remedy and due process rights. With regards to the right to life, the argument is that AWS may not comply with the ‘protect life principle’ which is a high standard as far as the protection of the right to life is concerned.As for the right to dignity, the argument is that just in as much as soldiers in armed conflict are entitled to dignity, so are suspected criminals and other people who may be caught up in a situation where law enforcement officials use force. Dignity to this end, may not allow that the decision to take life and the legal calculations to comply with the high standard of the ‘protect life principle’ or other norms pertaining the use of force against humans be taken by machines. I also argue that if AWS are used in law enforcement scenarios, they are unlikely to comply with due process rights that should be accorded to suspects. Furthermore, the protection of human rights is dependent on accountability of violations. Now that AWS pose problems to responsibility mechanisms in international law, their use threatens victims’ right to remedy.I also discuss the use of AWS across state borders and how it is likely to raise the issue of extraterritorial application of human rights in the case of armed drones. Similarly, I observe that the use of AWS is likely to be met with lack of transparency as has been the case with armed drones.