PRINCIPIOS BÁSICOS DE DISEÑO DE SISTEMAS DE CONTROL

systems (UAS), 2011, available at

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/337 11/20110505JDN_211_UAS_v2U.pdf, accessed on 30 April 2014, paragraph 510.

87 _{Singer, (See note 7) page125.}

88 _{Chu, Vivian S. And Manuel, Kate M., Torts Suits Against Federal Contractors:}

An Overview of the legal issues, Congressional Research Report R41755, 2011, (herein after called Chu) page 12

89_{Boyle Personal Representative of the Heirs and Estate of Boyle v. United}

39 equipment conformed to those specifications; and [(3)] the supplier warned the United States about dangers in the use of the equipment that were known to the supplier but not to the United States."'90 This means that the notion would apply for all claims brought against manufactures and programmers of AWSes under US law.

The United States has another specific exception in its tort law relating to combat activities. The exception, in rule 28 U.S.C. § 2680(a)91

, excludes tort liability for contractors in claims arising out of combatant activates of the military forces during times of war.92

. This was the case with the liability of Varian Associates Inc, who was the manufacturer of the Aegis Air Defense System. The manufacturer was excluded liability for the alleged design flaws in the system, USS Vincennes, which shot down an Iranian civilian aircraft, thereby killing 290 civilians.93

4.2.3.2 Criminal liability for corporations

Corporations in general cannot be prosecuted before an international court, as a rule of international law; neither can current international criminal law impose criminal liability on corporations. Article 25 of the Rome Statute recognizes individual criminal responsibility and defines it as follows: “(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;”94 All the same, corporations cannot be criminally liable for unlawful actions under international law.

90 _{Boyle v. United Technologies Corp. and the Government Contractor Defense: An}

Analysis Based on the Current Circuit Split Regarding the Scope of the Defense, Sean Watts, William and Mary Law Review, Volume 40 | Issue 2 Article 9, 1999, page 689.  

91_{Information available at http://www.law.cornell.edu/uscode/text/28/2680,}

accessed on 25 April 2014.

92 _{Chu, (See note 87), pages 13-14.}

93 _{Bentzlin v Hughes Aircraft Co, 833 F. Supp 1486 (C.D. Cal. 1993)}

94 _{Rome Statue of the International Criminal Court, adopted in Rome 17 July 1988,}

4.2.3.2.1 The Alien tort statute

The Alien Tort Statute ("ATS") is a law first adopted in 1789, which grants jurisdiction to federal district courts for “all causes where an alien sues for a tort only in violation of the law of a nation or of a treaty of the United States”. Broadly speaking, this is a law that grants universal jurisdiction to federal district courts to hear lawsuits filed by non-US citizens on violations of international law.95 It has also been used as a tool to sue transnational corporations for violations of international law in countries other than the United States. The territorial presence required for the Court to have jurisdiction is minimal; for example, it can be enough to have an office in the United States.96 Nevertheless, the Supreme Court’s decision in the case of Kiobel v. Royal Dutch Petroleum, Co.97 _{(Shell) has rejected this}

embedded understanding of the ATS as a worldwide cause of action. The judgment specified that claims without some significant connection to the United States are not unlawful under the ATS, and therefore dismissed the Kiobel plaintiffs’ claims against foreign defendants.

4.2.4 The robot

The idea that the robot itself should be held accountable has been brought up a few times. Krishnan writes;

“At the moment, it would obviously be nonsensical to do this, since any robot that exists today, or that will be built in the next 10-20 years, is too ignorant to possess anything like intentionality or real capacity for agency. However, this might

95 _{Information about the Alien Tort Statue is taken from}

http://www.law.cornell.edu/wex/alien_tort_statute, accessed on 21 May 2013.

96_{Branson, Douglas M., Holding Multinational Corporations Accountable –}

Achilles' Heels in Alien Tort Claims Act Litigation, vol. 1, issue 8, Santa Clara Journal of International Law, 2011, (herein after called Branson) page 227, available at

http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals /scjil9&div=12&id=&page=, accessed on 30 May 2013.

97_{Kiobel, Individually and on the behalf of her late husband Kiobel, et al. v. Royal} Dutch Petroleum, Co. et al., No. 10–1491, U.S: SUPREME COURT 17 April 2013

41 change in a more distant future once robots become more sophisticated and intelligent.”98

It is important to accentuate that when mentioning the robot as a plausible candidate, the focus is then on the fully autonomous AWS. Ronald Arkin is a scholar that has argued that the robot could easily meet legal standards. “The application of lethal force as a response must be constrained by LOW [law of war] and ROE [rules of engagements] before it can be employed by autonomous systems.”99 He argues further that this can be achieved through an ethical governor. This would entail the weapon system following a two- step program.

The first step is that the fully AWS must evaluate the information it senses and has processed in order to determine whether a launch of an attack is lawful under international law and ROE. If the attack in question is lawful under international law and ROE, the system can then proceed with the launch if the attack is under military operational orders.100 The second step is that the fully AWS must then evaluate the attack under the principle of proportionality101. The “ethical governor” will calculate a variety of criteria, such as the risk of injury to civilians or civilian objects, or the likelihood of a military effective attack, all this based on technical data. It will later use an algorithm that will combine the “incoming perceptual information” with the statistical data. The weapon system can only launch an attack if the target “satisfies all ethical constraints and minimizes collateral damage in relation to the military necessity of the target”.102

98 _{Krishnan, (See note 23) page 105.}

99 _{Arkin, Ronald C., Governing Lethal Behavior in Autonomous Robots, CRC}

Press, 2009, (herein after called Arkin) page 69.

100 _{Ibid., pages 183-184.} 101 _{See chapter 3.2}

Nevertheless, as a machine, an AWS cannot be held accountable for violations or be prosecuted if IHL is violated.103 However, let’s assume that an AWS would be capable of carrying out military attacks without any human intervention in the process. It will then by itself have the capacity to carry out the decision-making, to first identify a military target and later carry out the attack on this military target. What if something goes wrong? Can the AWS be held responsible?

At the present time, we may conclude that an AWS will not have an independent wish to kill civilians.104 Furthermore, an AWS’s decision- making could be as simple as: IF object on right - THEN turn to the left, IF object is running THEN launch an attack, ELSE continue. The robot will therefore be incompetent to be held accountable for crimes under international humanitarian or criminal law.105

103 _{International Committee of the Red Cross, Autonomous weapons: states must}

address major humanitarian, ethical challenges, 2013, available at http://www.icrc.org/eng/resources/documents/faq/q-and-a-autonomous- weapons.htm, accessed on 1 May 2014.

104 _{Singer, (See note 7) page 388.} 105 _{Cryer, (See note 83) pages762-764.}

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5 New and existing forms of