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Military artificial intelligence (AI)-enabled technology might still be in the relatively fledgling stages but the debate on how to regulate its use is already in full swing. Much of the discussion revolves around autonomous weapons systems (AWS) and the ‘responsibility gap’ they would ostensibly produce. This contribution argues that while some military AI technologies may indeed cause a range of conceptual hurdles in the realm of individual responsibility, they do not raise any unique issues under the law of state responsibility. The following analysis considers the latter regime and maps out crucial junctions in applying it to potential violations of the cornerstone of international humanitarian law (IHL) – the principle of distinction – resulting from the use of AI-enabled military technologies. It reveals that any challenges in ascribing responsibility in cases involving AWS would not be caused by the incorporation of AI, but stem from pre-existing systemic shortcomings of IHL and the unclear reverberations of mistakes thereunder. The article reiterates that state responsibility for the effects of AWS deployment is always retained through the commander's ultimate responsibility to authorise weapon deployment in accordance with IHL. It is proposed, however, that should the so-called fully autonomous weapon systems – that is, machine learning-based lethal systems that are capable of changing their own rules of operation beyond a predetermined framework – ever be fielded, it might be fairer to attribute their conduct to the fielding state, by conceptualising them as state agents, and treat them akin to state organs.
This article focuses on the application of autonomous weapons (AWs) in defensive systems and, consequently, assesses the conditions of the legality of employing such weapons from the perspective of the right to self-defence. How far may humans exert control over AWs? Are there any legal constraints in using AWs for the purpose of self-defence? How does their use fit into the traditional criteria of self-defence? The article claims that there are no legal grounds to exclude AWs in advance from being employed to exercise the right to self-defence. In general, the legality of their use depends on how they were pre-programmed by humans and whether they were activated under proper circumstances. The article is divided into three parts. The first discusses how human control over AWs affects the legality of their use. Secondly, the article analyses the criteria of necessity and proportionality during the exercise of the right to self-defence in the context of the employment of AWs. Finally, the use of AWs for anticipatory, pre-emptive or preventive self-defence is investigated.
This article tackles the question of the legality of section 5B of the Civil Wrongs (Liability of the State) Law, which precludes the Palestinian residents of the Gaza Strip, members of terrorist organisations and their agents from obtaining compensation for injuries suffered as a result of the negligent conduct of Israeli security forces. The question is examined through the lens of Israel's tort law, comparative law, the law of occupation, and international human rights law.
A special focus is given to the amendments made in the said section and its interpretation by Israeli courts, while addressing the state's tort liability towards nationals of enemy states and members of terrorist organisations. In order to emphasise the legal difficulties arising from the Law and the need for its re-examination, the 2018 protests near the Israel-Gaza border are used as a case study. The article concludes by offering to revoke the legal identification as enemy state nationals of Gaza's residents for the purposes of applying state liability in tort. In addition, it recommends the adoption of an individual examination mechanism in relation to members of terrorist organisations. These suggestions are expected to better fulfil the purposes underlying the state's tort liability exemptions, while increasing Israel's compliance with its legal obligations.
Traditionally, international human rights adjudication relied on the paradigm of extraterritoriality on the rare occasions when it was confronted with cross-border cases. This paradigm recognises only limited circumstances in which states bear extraterritorial human rights obligations. However, with globalisation, transboundary human rights cases have multiplied. This emerging litigation increasingly reveals that the paradigm of extraterritoriality is no longer fit to address global crises. Extraterritoriality demands effective control over a territory, or authority and control over a person, for a state to exercise jurisdiction outside its territory. Thus, several cases of cross-border human rights abuses are inevitably barred on jurisdictional grounds. This is particularly true for obligations of a global character, which are, by their very nature, completely unrelated to the control that states exercise over territories or people. It is therefore necessary to look beyond extraterritoriality. This article analyses the competing paradigms of universality and transnationality as they have been adopted by domestic courts. It argues that international human rights adjudication should reconceptualise extraterritoriality against the background of universality and transnationality to address global crises.
In January 2021 the Human Rights Committee determined that Italy and Malta had both failed to protect the right to life of more than 200 migrants who perished in a shipwreck in 2013. The Committee tackled for the first time the question of extraterritorial application of the International Covenant on Civil and Political Rights to persons in distress at sea. While finding the decision against Malta to be inadmissible, the Committee engaged in a significant analysis of the concept of jurisdiction in both decisions. This article analyses how the decisions interpret the concept of ‘jurisdiction’ and juxtaposes this analysis against the approaches taken in other international legal regimes. The article then theorises on the impact of these two decisions in helping to crystallise a new ‘right to be rescued at sea’.