AWS Legal Review Series – Inclusion of Quasi-Legal Considerations

This post appears as part of a series on the legal review of autonomous weapon systems. An introductory post by Professors Rain Liivoja and Sean Watts provides an overview of the series.

At an Expert Meeting on Legal Reviews of Autonomous Weapon Systems, the author was asked to outline New Zealand’s approach to the review of new weapons, means, or methods of warfare in accordance with Article 36 of Additional Protocol I to the Geneva Conventions. Much of what was subsequently outlined was unremarkable and echoed the outlines provided by experts from States such as the United States, United Kingdom, Australia, Sweden, and Brazil. However, what piqued the interest of the experts gathered in Sydney was an understated reference to the review process taking into consideration the dictates of the public conscience.

Stages of Review

In outlining the approach taken by the New Zealand Defence Force (NZDF), mention was made of four stages of review. The first stage is to identify if an object needs a review. This includes identifying the normal and expected use of the weapon, for example, the gathering of information necessary to conduct a review. This will inevitably include technical information about the weapon’s effect, and its operating system, including any artificial intelligence elements and/or autonomous functions. Armed with the appropriate information, the next stage is to consider what, if any, specific international law prohibitions are relevant to the weapon. This stage will necessitate a review of the State’s obligations under treaty law or as a product of customary international law. The third stage is to consider general international law prohibitions and restrictions that might apply to the weapon. As set out, all very familiar and unremarkable.

The final stage of the review process includes consideration of other matters that are relevant to the legality of the weapon. This opens the door to consideration of non-legal matters and policy that is relevant to the weapon. It is at this juncture that the dictates of the public conscience come to the fore.

Martens Clause

For those who have memorized the text, the linkage between public conscience and the Martens Clause will be well-known. For those whose memory is a little hazier, the Martens Clause reads as follows:

Until a more complete code of laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilised nations, from the laws of humanity and the requirements of the public conscience.

As Ruppert Ticehurst sets out, “when determining the full extent of the laws of armed conflict, the Martens Clause provides authority for looking beyond treaty law and custom to consider principles of humanity and the dictates of the public conscience.” The problem, as Ticehurst identifies “is that there is no accepted interpretation of the Martens Clause.” More problematic is a fixed interpretation of the “dictates of the public conscience.” So what does New Zealand mean when it includes the public conscience in its process to review new weapons, means, or methods of warfare?

The Dictates of the Public Conscience

The Advisory Opinion of the International Court of Justice (ICJ) on the Legality of the Threat or Use of Nuclear Weapons included a detailed analysis of the Martens Clause and the dictates of public conscience. In the first instance, and of significant relevance to weapons reviews, the ICJ referred to the Martens Clause as proving “to be an effective means of addressing the rapid evolution of military technology” (para. 78). More specifically, in its submission to the ICJ in the earlier advisory proceedings initiated by World Health Organization, Nauru argued that

when attempting to determine and define . . . the humanitarian rules of armed conflict, this Court is expressly authorized by conventional international law to look beyond the sources of law enumerated in Article 38 of its Statute to legal communications expressed by, or in the name of “the dictates of the public conscience” (p. 68).

Nauru went on to draw the Court’s attention to “a host of draft rules, declarations, resolutions, and other communications expressed by persons and institutions highly qualified to assess the laws of war although having no government affiliations.”

The absence of government affiliations is key. As will be set out later in this post, New Zealand’s approach to gauging the public conscience adopts a similar approach to that described, albeit in a more nuanced and focused manner.

Positivism and Natural Law

Ticehurst describes the Martens Clause as providing “a link between positive norms of international law relating to armed conflict and natural law.” He describes how natural law is “universal, binding all States. It is therefore a non-consensual law based on the prevalence of right and justice.” This sentiment resonates with New Zealanders, who still hold on to a value system based on a “New Zealand way” of action and behaviour with a focus on kindness and tolerance, albeit the value system is unrecorded and may differ from community to community. (The frequent use of the phrase kia kaha (or stay strong, get stuck in, or keep going) is illustrative of the New Zealand value system.)

New Zealand is one of the world’s oldest and most stable liberal democracies. Its constitutional commitment to liberal democracy is long standing and deeply held. However, its voting population, which included Māori men from 1867 and all women from 1893, could not be described as submissive or conformist. Early New Zealand liberalism is described as “not just new liberalism: it was also strongly influenced by radicalism. It was democratic but in the more radical sense of emphasising popular power rather than mere representative government.” This approach was due to the experiences of the predominantly English, Scottish, and Irish immigrants who colonized New Zealand in the early 1800s. Perhaps it is this radicalism that metamorphoses into resistance to what Professor Oscar Schachter describes as the displacement of natural law by positive law in order for States “to give effect to their ‘political wills’ and to act for reasons of power and interest.”

Fast forward to today and the ethnic mix of New Zealand is very different. But the sense of exercising popular power over the authority of a representative government remains strong. Be it the protests about the 1981 South African Springbok rugby tour of New Zealand or the anti-COVID mandate protests that occupied the grounds of Parliament for three weeks in 2022, New Zealanders have a keen sense of right and justice (even if there are different interpretations of what is right and just).

In his conclusion, Ticehurst refers to the dominant philosophy of international law being positivist. That by “refusing to ratify treaties or to consent to the development of corresponding customary norms, the powerful States can control the content of the laws of armed conflict.” That leaves other States “helpless to prohibit certain technology possessed by the powerful military States.”

New Zealand, despite its inclusion in the Five Eyes community, is a State that, while not necessarily helpless, is limited in its ability to influence the prohibition of certain technology including automated weapon systems. New Zealand does not have the same levers to pull as the United States or the People’s Republic of China. However, in such circumstances, the application of the Martens Clause is of particular relevance. Rather than dismiss morality or “natural reasons,” New Zealand has embraced the philosophies, and integrated the considerations of public conscience into policy development and the review of emerging technologies and weapon systems.

The Importance of Māori Culture

For many non-New Zealanders, and indeed certain communities in New Zealand, the idea of including the public conscience in decision making is an anathema to the exercise of power. However, as mentioned above, modern day Aotearoa New Zealand is a very different beast to the New Zealand of the early 1800s. It is rediscovering and embracing the culture of its indigenous people, the Māori, and popular power is increasingly being synergized and expressed through Māori customs and traditions.

For Māori, listening to the views and opinions of others, especially those with mana (or status), is nothing new. To engage in whakawā (or vigorous discussion) is how major decisions are made that impact upon the iwi or hapū (iwi meaning tribe or people and hapū meaning clan or descent groups. The hapū of an iwi might sometimes fight each other but would unite to defend the territory of the iwi against another iwi). In addition, the customary practice of tikanga (tika meaning that which is right or correct) is gaining prominence and is increasingly being incorporated into decision making.

Hence New Zealand Inc is at ease when it comes to engaging the public with respect to policy development. The process is not necessarily driven by morality or “natural reasons.” Instead, by engaging, for example, with public interest groups, there is a whakawā that ensures utu (or the maintenance of balance and harmony in society).

An illustration of the connection between Māori culture and the application of international humanitarian law (IHL) in the context of a weapon’s review is the importance given to kaitiakitanga. In the Māori world view there is a deep kinship between humans and the natural world. This includes the sky, the sea and the land. Kaitiakitanga encapsulates guardianship and protection of the natural environment. It is included in domestic legislation regarding the management of land and the environment. In IHL, and particularly weapon reviews, kaitiakitanga is synonymous with the protection of the environment from the effects of armed conflict. When considering whether a weapon or munition will, for example, cause a widespread, long-term or severe damage to the environment, the reviewer assumes the role of Kaitiakitanga Taiao, or environmental guardian.

Engagement with Public Interest Groups

As an example, the Ministry of Foreign Affairs and Trade (MFAT), supported by Defence, participate in an Autonomous Weapons Systems Working Group, which is made up of academics, members of non-governmental organizations, pacifists, and interested members of the public. The group is provided with updates on the progress of the Group of Governmental Experts (GGE) and draft policy papers. Members are asked to comment or raise concerns or make suggestions about the development of policy to be presented to the GGE. They are also provided with briefs by subject matter experts on autonomous weapon systems and invited to comment as they see fit.

The Working Group could be viewed as a sop to the public conscience. However, the calibre of the people involved and the detail of the comments and suggestions provided, together with the candour expressed by all, results in a genuine whakawā. From each consultation the MFAT team can adapt policy documents so they better represent New Zealand’s concerns and sentiments with respect to emerging technology and weapons systems. By being involved in the Working Group, Defence is able to gauge the public conscience and apply those quasi-legal considerations to the weapons review process. This includes the possibility that a prohibition on a particular weapon, means or methods of warfare might occur in the future.

Conclusion

In a society where the indigenous people place a profound importance on kinship and Pākehā (or white New Zealanders) have, traditionally, a radical political focus and are resistant to Government authority, it should come as less of a surprise that the dictates of public conscience are afforded emphasis in policy development and weapons reviews. It is sufficiently settled in the NZDF’s approach to reviews that the linkage to the Martens Clause is almost a given. Nevertheless, the Martens Clause provides a foundation to exercise elements of natural law in the review process and to ensure that the public conscience is heard and acted upon in developing policy in relation to new weapons, means, or methods of warfare.

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Group Captain Tim Wood is Provost Marshal of Te Ope Kātua o Aotearoa—New Zealand Defence Force. His previous posting was as Deputy Director (Operations Law) of Defence Legal Services.

Photo credit: New Zealand Defence Force