The Volokh Conspiracy

Via NY Times “The Lede” Blog: In November 2012, Amnesty International tweeted, “Feel enraged by the violence in #Gaza & #Israel? Demand that @netanyahu & @AlqassamBrigade stop attacks on civilians.”

Egyptian activist Mona Seif responded in a tweet, “@amnesty you don’t ask an occupied nation to stop their ‘Resistance’ to end violence!!! SHAME ON YOU!”

Human Rights Director Kenneth Roth, responding to a controversy over the fact that Seif is a finalist for a human rights award for which he is one of the judges, told the N.Y. Times’s “The Lede” blog that “I haven’t seen anything indicating that by ‘resistance’ Mona means attacking civilians.”

Sigh. Now, Seif claims, rather implausibly, that her tweet apparently referring to attacks on Israeli civilians as “Resistance,” coupled with her longstanding public support for Palestinian resistance, did not actually reflect support for attacks on Israeli civilians. But even if you are credulous enough to believe her, you would still have to admit that the tweet itself is “something” that “indicates” “that by resistances Mona means attacking civilians,” and can’t simply be ignored as if the charge against Seif is a figment of the Zionist imagination. If Roth had said, “Mona used intemperate language, but she has now made it clear that she opposes attacks on civilians [she hasn't; instead, in a very lawyerly statement, she said that "I have never called for nor celebrated attacks on civilians," which is hardly the same as opposing such attacks] then I wouldn’t give Roth a hard time. Of if Roth had acknowledged that Seif supports attacks on Israeli civilians, but claimed that her true importance is her work on human rights in Egypt, then at least we’d have an honest, debatable position. Instead, we have Roth’s unwillingness to acknowledge the obvious, which is unfortunately of a piece with his and his organization’s general hostile approach to Israel.

In fact, I doubt that Roth actually fails to comprehend that purported human rights hero Seif has supported attacks on Israeli civilians. It’s just that he doesn’t care. [UPDATE: Perhaps I should clarify that I am not drawing an inference that Roth doesn't care from this particular statement. Rather, I'm drawing it from both a long history of his own often egregiously dishonest statements about Israel and Judaism, and from his stewardship of Human Rights Watch, whose Mideast division is run, with Roth's enthusiastic consent, by individuals who had a known record of hostility to and activism against Israel before they were hired, and have acted in accordance with that record at HRW. Roth has even, in a weak moment, acknowledged that HRW focused its resources disproportionately on Israel, something HRW spokesmen usually deny. I've documented this and more in detail on this blog, and if you're interested you can google bernstein volokh and "human rights watch." But in short, while it's usually wise to give people the benefit of the doubt, Roth has long since forfeited any presumption in his favor; quite the reverse.]

(And: thanks to Instapundit for linking to the new policy essay by Matthew Waxman and me from the Hoover Institution, referenced at the end of this post, Law and Ethics for Autonomous Weapon Systems – thanks Glenn!)

Last November, two documents appeared within a few days of each other, each addressing the emerging legal and policy issues of autonomous weapon systems – and taking strongly incompatible, indeed opposite, approaches.  One was from Human Rights Watch, whose report, Losing Our Humanity: The Case Against Killer Robots, made a sweeping, preemptive, provocative call for an international treaty ban on the use, production, and development of what it defined as “fully autonomous weapons” and dubbed “Killer Robots.”  Human Rights Watch has followed that up with a public campaign for signatures on a petition supporting a ban, as well as a number of publicity initiatives that (I think I can say pretty neutrally) seem as much drawn from sci-fi and pop culture as anything.  It plans to launch this global campaign at an event at the House of Commons in London later in April.

The other was the Department of Defense Directive, “Autonomy in Weapon Systems” (3000.09, November 21, 2012).  The Directive establishes DOD policy and “assigns responsibilities for the development and use of autonomous and semi-autonomous functions in weapon systems … [and] establishes guidelines designed to minimize the probability and consequences of failures in autonomous and semi-autonomous weapon systems.”

By contrast to the sweeping, preemptive treaty ban approach embraced by HRW, the DOD Directive calls for a review and regulatory process – in part an administrative expansion of the existing legal weapons review process within DOD, but reaching back to the very beginning of the research and development process.  In part it aims to ensure that whatever level of autonomy a weapon system might have, and in whatever component, the autonomous function is intentional and not inadvertent, and has been subjected to design, operational, and legal review to ensure that it both complies with the laws of war in the operational environment for which it is intended – and will actually work in that operational environment as advertised.  (The DOD Directive is not very long, and makes the most sense, if you are looking for an introduction into DOD’s conceptual approach, read against the background of a briefing paper issued earlier, in July 2012, by DOD’s Defense Science Board, The Role of Autonomy in DOD Systems.)

In essence, HRW seeks to ban autonomous weapon systems, rooting a ban on autonomous lethal targeting by machine per se in its interpretation of existing IHL, while calling for new affirmative treaty law specifically to codify it. By contrast, DOD adopts a regulatory approach grounded in existing processes and law of weapons and weapons reviews.  Michael Schmitt and Jeffrey Thurnher offer the basic legal position underlying DOD’s approach in a new article forthcoming in Harvard National Security Journal, “‘Out of the Loop’: Autonomous Weapon Systems and the Law of Armed Conflict.” They say that autonomous weapon systems are not per se illegal under the law of weapons, and that their legality or restriction on their lawful use in any particular operational environment depends upon the usual principles of targeting law. There will be machine systems that will never be lawful for use in some operational environments or even in any operational environment – but maybe some that will.

II

I think Schmitt and Thurnher have it right as a legal matter – and quite clearly so – but there are important dissenting voices.  A different view is offered by University of Miami’s Markus Wagner in, for example,“Autonomy in the Battlespace: Independently Operating Weapon Systems and the Law of Armed Conflict” (chapter in International Humanitarian Law and the Changing Technology of War, 2012).   New School for Social Research professor Peter Asaro has offered a reading of Protocol I and other laws of armed conflict treaties aiming to show that human beings are assumed to be present as moral agents engaged in targeting in these texts (forthcoming special section of the International Review of the Red Cross). Asaro is careful to hold out only that this interpretation is implicit, rather than explicit – a thoughtful and creative reading, though not finally one that persuades the hard-hearted lex lata lawyer in me.  (Asaro is not a lawyer, but a “philosopher of technology,” thus establishing himself as having the Coolest of Jobs, and also co-founder of an organization that has been calling for a ban for several years; Peter and I have cordially disagreed at several academic discussions, most recently at the outstanding WeRobot 2013 conference at Stanford Law School earlier this week.)

A debate over autonomous weapon systems is thus underway in academic law and policy – and in the Real World.  It promises to heat up considerably. Much of the debate (as Peter’s and my exchange at the WeRobot 2013 conference suggests) goes to what one believes is the bedrock moral principle (and which, if true, ought to be embraced as law) for targeting and weapons.  Is it per se immoral for a human being ever to be targeted autonomously by a machine that (as “full autonomy” is defined by DOD) has no human being “in” or “on” the loop, either in target selection or engagement with the target?  Is a human being essential to those two actions – target selection and target engagement – and is the absence of a human being fatal to its morality, irrespective of how good or how bad the machine does at targeting only what it ought to and minimizing collateral harms? Peter takes the position that the human being is essential; my position is that the bottom-level moral principle at issue here is not whether it is a human or not a human, but whether whatever does the targeting is able to comply with the requirements of the laws of war.  The “package” is simple an incident of nature, contingent, and not morally controlling.

Peter’s position, not mine, is the one taken by a number of very smart ethicists and philosophers, including, for example, Wendell Wallach, who describes a machine taking such a lethal decision “mala in se.“ University of Sheffield computer science professor Noel Sharkey (the well-known public commentator on these issues, with whom I’ve had the pleasure of friendly disagreement before and no doubt will again) also takes this position, though he also takes others that are factual in nature.  But on this moral argument, the requirement of a human being is the end of the moral chain, so to speak.  I don’t agree with it, but I understand the arguments driving it.  HRW’s report, by contrast, launches into quite a different kind of argument, and a much more problematic one.  Though it appears to accept the buck-stopping moral position, it also and mostly argues strenuously for two factual claims.

The first is that, no matter how much time goes by, as a matter of fact, machine intelligence will never be adequate to the moral decision-making that lethal targeting requires.  To which, of course, the proper response is, fifty years?  A hundred years? Two hundred years?  Maybe HRW is right.  But how does it know and what gives being a human rights monitor any special ability to see the future of technology – and tell us what to ban and not ban today, in order to ensure that a future that it purports to see does not come about?  Not all of us are quite as certain about where technology might go and what it might yield – and we are quite unwilling, on HRW’s say-so, to give up the possible future social gains (including reducing harm on the battlefield) that such technologies might produce along the way because HRW foresees a future somewhere between a Philip K. Dick novel and Terminator.  (Or as a friend put it, knowing Ken co-blogs with Ilya, “So who sailed from the Grey Havens and gave HRW a palantir? -ed.)

The second is that, no matter what technological developments take place, machines could never offer the affective and emotional qualities that targeting decisions in war do and properly should require on the battlefield – sympathy, empathy, compassion. Again, this is a factual claim about the future of machine intelligence – a prediction extending into the future, forever – that leaves one to ask, how does HRW claim to know any such thing?  And it’s a particularly peculiar claim coming from a human rights monitor whose bread and butter in armed conflict reporting not infrequently involves things soldiers did on the battlefield because of fear, desire for vengeance, simple bad judgment from cold and hunger, and the limits of human cognition in the fog of war – a conspicuous, yet all-too-human, absence of empathy and compassion.  One wonders why HRW didn’t just as easily focus on those less praise-worthy human emotions and at least entertain the possibility that a machine that has no emotions either way, but which might be programmed to behave in ways that respect the humanity of non-combatants and, further, might be programmed to simply sacrifice itself in order to spare non-combatants, might after all said and done be a very good thing.

III

In conversations with HRW, I’ve been told, and encouraged to note publicly, that it does not want its report and call for a ban to be understood in extreme ways.  I’m happy to do that, with one caveat.  So, for example, it does not mean everything one might read its call for a ban on “development” of fully autonomous weapons to say.  It also appears to want to find a way not to be interpreted as declaring the future history of technology, though that appears more difficult, given the language of the report.  My (genuine) advice to HRW on this point (though not my view, of course) is to say that it’s not predicting where technology will and won’t go, as a matter of necessity.  Instead, it’s saying that, in its judgment, it is overwhelmingly likely that all these bad scenarios would emerge over the long run – and that these scenarios are sufficiently bad to justify banning all these many things today. Continue reading ‘The Debate About to Heat Up Over HRW’s Call to Ban “Killer Robots,” AKA Autonomous Weapon Systems’ »

Human Rights Watch has just released a report on Israel’s recent “Pillar of Defense” operation to suppress rocket fire from Gaza. The report concludes that 18 airstrikes violated international law by not being properly targeted. I do not know if 18 is a little or a lot for an operation of this scale, as there an no good comparative data (though the report is released as Afghanistan says yet another NATO airstrike hit a house with innocent women and children inside.)

The report, by its description of its methods, appears to be a hit piece. Here is what the report said about the group’s investigative method (emphasis added):

Human Rights Watch sent detailed information about the cases to the Israel Defense Forces (IDF) on January 14, 2013, requesting further information. At a meeting on January 24 and in subsequent phone conversations, the military spokesperson’s office told Human Rights Watch that the military chief of staff had ordered a general (aluf) to conduct an “operational debriefing” (tahkir mivtza’i) concerning “dozens” of Israeli attacks during the conflict, including the cases Human Rights Watch investigated, which would be completed by late February.

Because previous Israeli “operational debriefings” involving attacks were not conducted by trained military police investigators or dedicated to investigating alleged laws-of-war violations, Human Rights Watch has decided to publish its findings rather than wait for their results.

In other words, HRW received high-level and consistent cooperation. A meeting between HRW and the IDF took place on Jan 24 (just 10 days after HRW asked for further information), and were told that the IDF would have a more detailed response by late February after its own investigations were over. One month is not a long time to wait, certainly not covering an incident that occurred months ago.

It is completely baffling why HRW, would rush to publish their report a mere two weeks before they could hear in full Israel’s response to their allegations. Furthermore, HRW’s explanation why they chose not to wait lacks any coherence. What is so special about designated military police as opposed to toeher investigators? And even if the IDF investigations were not conducted by trained military police, it is unquestionable that the IDF investigators would have access to sources HRW does not. One would expect that an organization whose influence is completely based on their reputation for objectivity and thoroughness would wish to have all the facts before rushing to publish.

Well-meaning observers are often puzzled why Israel sometimes does not cooperate with the multitudinous foreign investigations into its military operations. The minimal lack of procedural fairness investigations such as HRW’s is surely one reason for their reluctance.

Hat tip: Gidon Shaviv

Media in Australia and Israel are abuzz with news about a detainee in an Israeli prison, a dual Australian and Israeli citizen named Ben Zygier working for the Mossad who committed suicide in late 2010 after being held in solitary confinement for unknown security offenses.  I don’t have anything to add to the basics of the story, but I was struck when I saw the following in the original report from Australia’s ABC service:

Bill van Esveld, a Jerusalem-based advocate for Human Rights Watch, has described the secret imprisonment of Prisoner X as “inexcusable”. “It’s called a disappearance, and a disappearance is not only a violation of that person’s due process rights – that’s a crime,” he told Foreign Correspondent. “Under international law, the people responsible for that kind of treatment actually need to be criminally prosecuted themselves...”

Mr van Esveld says it is inexcusable for the Australian Government not to be notified.”The obligation of one country to notify another when the other citizen has been arrested, detained, especially if they die – that is so basic. It is called customary law,” he said. “Which means that even if Israel didn’t ratify a treaty saying it has to notify the other country, it still has to do so because that is such a basic norm of interstate relations.”

It seemed to me that van Esveld was jumping to a lot of conclusions based on whatever information the reporter fed to him.  As it turns out, subsequent media reports have confirmed that (a) the Australian government was informed of Zygier’s arrest back in February 2010, months before his suicide, and was informed of his death the day after it happened; and (b) Zygier was represented by counsel through his entire ordeal, and indeed saw one of his attorneys just a few days before his suicide.

So, Zygier was hardly a “disappeared.”  I’m sure we can expect forthwith a profound apology from Mr. Van Esveld and HRW, in line with all of their other apologies for their misreporting on Israel over the years.

UPDATE: NGO Monitor has much more.

The “Law and Robotics Conference” will take place on April 8-9, 2013, at Stanford Law School (it follows on the highly successful law and robotics conference that took place at University of Miami last year).  Conference organizers are seeking proposals to present conference papers – I should have posted this a while ago – and paper proposals are due by this Friday, January 18.  Matthew Waxman and I plan to submit a proposal on comparing self-driving cars and autonomous weapon systems (I’ve been exploring some of these ideas, brainstorming for the paper, here at Volokh), and I am 100% certain the conference will be terrific with outstanding papers and great discussions.  Here is the link if you’re interested.

Meanwhile, over at Lawfare, Human Rights Watch’s Tom Malinowski, Benjamin Wittes, Matthew Waxman, and I have been debating the recent HRW report calling for a ban on “Killer Robots.”  Tom’s latest response – though mostly a serious discussion, well worth reading though it does not succeed in persuading me – has a video at the end that I will always, always fondly treasure.  It’s great.   (It’s in Hindi, and though I didn’t know Tom knew Hindi, I’m going to trust his subtitles.)

It’s fascinating to listen again to this talk by HRW Middle East and North Africa director Sarah Leah Whitson (starting at 16:53) from the Summer of 2009. The topic was “Human Rights in the Middle East.” Syria and Libya get barely a mention. Yemen isn’t mentioned at all. Israel gets by far the most negative attention, followed by Egypt and Jordan–apparently singled out because they are U.S. allies and have peaceful relations with Israel. The Palestinian Authority comes in for some criticism for “not representing all the Palestinians,” i.e., not being anti-Israel enough. While Israel is accused of engaging in “apartheid” and routinely violating international humanitarian law, such that the U.S. should rethink its support of its government, Hamas is referred to as the “elected government” in Gaza, which the U.S. shouldn’t try to undermine.

The weirdest moment in the talk, though, is when Whitson points out that no Arab country allows freedom of speech, the cornerstone of a free society. What one example, of all possible examples, does she use to illustrate the lack of freedom of speech? That Arab governments tried to prevent their populations from protesting Israel’s actions in Gaza in the war against Hamas in late 2008/early 2009. Just, WOW!

NGO Monitor comments on now HRW’s obsession with Israel left it unprepared to deal with the emerging events in the Arab world here.