Monthly Archives: May 2015

Article 21 of the Charter of Fundamental Rights vs the national public interest in prohibiting age discrimination (Directive 2000/78): Hütter and Schmitzer cases


Article 21 of the Charter of Fundamental Rights (CFR) on “Non-discrimination” embraces a positive task for the Member States to eliminate anything which produces unlawful distinctions in society or concrete hurdles towards achieving equality. [1] In 2009, after the entry into force of the Lisbon Treaty, the Charter became a legally binding catalogue of fundamental rights within the EU legal order.[2] The Preamble of Directive 2000/78, at point 6, cites the Charter as a legitimating source for combating discrimination against elderly people. Thus, the relationship between the Charter and Directive 2000/78 on “Equal Treatment in Employment and Occupation” has been understood as a link between ‘legitimacy’ and ‘potency’[3], and it became particularly relevant by virtue of the Charter’s new legal status.

The equality approach embedded in article 21 CFR, which prohibited any discrimination on the basis of the listed grounds, is recalled in article 2 of Directive 2000/78, which defines how the “principle of equal treatment” needs to be interpreted within the boundaries of the Directive and particularly in accordance with article 1.[4] The Directive, however, at article 6 incorporates a contradiction. In fact, article 6 allows certain age discriminations, by considering ‘lawful’ both direct discrimination (when one person is treated less favourably than the other in a comparable situation) and indirect discrimination (an apparently neutral practice which can create disadvantages). According to article 6, such differences can be objectively justified only by a legitimate aim and the means of achieving that aim needs to be appropriate and necessary. Thus, while Article 21 provides a broad but unequivocal legal framework for prohibiting discriminations, articles 2 and 6 of the Directive 2000/78 respectively provide  both the grounds on which discrimination is prohibited and the grounds on which age discrimination can be justified.  Such duality means, Member States often face the uncertainty of what can objectively justify age discrimination.

Two notable Austrian cases, decided by the European Court of Justice (hereinafter: the Court), demonstrate how article 21 CFR and article 6 of Directive 2000/78 should be mitigate by the principle of proportionality, which requires an adequate balance between a rights provision and a state or public interest. The cases are: David Hütter v Technische Universität Graz[5] and Schmitzer v Bundesministerin für Inneres.[6]

Case law

1) The Hütter case and article 6 of Directive 2000/78

According to article 6 of Directive 2000/78, a justification for difference of treatment must be “objective”. This means that it should be supported by a legitimate aim within the context of national law and the means to achieve such legitimate aim must be “appropriate and necessary”. The legitimate aims listed under Article 6 include: legitimate employment policies, labour market and vocational training objectives. Indeed, under article 6, differences of treatment may include “minimum conditions of age… for access to employment or to certain advantages linked to employment”.

Mr Hütter, who worked as a public servant under Austrian law, was entitled to be paid in accordance with the length of his service. However, the law prescribed that the time he had spent working or training before the age of 18 was not to be included in the calculus. Consequently when, Mr Hütter, completed a period of apprenticeship as a laboratory technician with Technische Universität Graz (TUG), he was recruited at a lower incremental pay point compared to a female colleague in materially similar circumstances, but only 22 months older. The age limit imposed by Austrian law (Vertragsbedienstetengesetz ‘the VBG’) determined an unlawful direct discrimination. The TUG argued that the discrimination was justified by legitimate aims: to ensure that those who had pursued a general secondary education would not be treated less favourably than those who had pursued vocational qualifications; and to promote entry into the labour market for young people.

Mr Hütter brought a claim before the Landesgericht für Zivilrechtssachen Graz (Graz Regional Court for Civil Matters). He sought the payment of compensation equivalent to the difference in treatment he had received due to his age. He considered the difference in treatment to be unjustified and in breach of both Austrian Law and Directive 2000/78. That difference in treatment corresponded to a sum of EUR 69.60.  On the possibility to justify the discrimination suffered by Mr Hütter the ECJ (but he took the claim to Graz) expressed the following opinion:

National legislation which…excludes periods of employment completed before the age of 18 from being taken into account for the purpose of determining the incremental step at which contractual public servants of a Member State are graded, is incompatible with Articles 1, 2 and 6 of Directive 2000/78”.

This declaration motivated a subsequent amendment on Austrian law.

2) The Schmitzer case

The Amending Law apparently solved the incompatibility with Directive 2000/78, by modifying with retroactive effect the wording of Paragraphs 8 and 12 of the GehG (the Law on Salaries of 1956, Gehaltsgesetz) and acknowledging as full work experience the work period before the age of 18. Since then this is now taken into account for the purpose of determining the advancement reference date. Clearly, after the ECJ’s decision in Hütter the financial impact was considerably relevant for the Austrian State. In order to mitigate the financial impact, the Amended Law stated that those who suffered discrimination under the previous system could make an application to switch to the new system. However, in Schmitzer case it was argued that national legislation neutralises the advantage resulting from the inclusion of periods before the age of 18, also placing at a disadvantage only the civil servants disadvantaged by the previous system. In fact, the extension to the periods for the advancement reference date is likely to apply to them alone. Consequently, the adverse effects of the system existing prior to the Amending Law have not ceased entirely for civil servants.

Mr Schmitzer brought an action before the Verwaltungsgerichtshof (Administrative Court), challenging the decision of the Bundesministerin für Inneres which turned down his request for a review of his remuneration status under Paragraph 8 of the GehG, in the version prior to the Amending Law. The Schmitzer case was brought before the ECJ for a Preliminary Ruling which clarified how the “submission of a request by each interested party, as well as those relating to the extension of advancement periods” served “objectives of procedural economy, of respect for acquired rights and of the protection of legitimate expectations”. Mr Schmitzer, had  worked as a civil servant before turning 18,  claimed that the Amending law was still contrary to Directive 2000/78/EC, as it ingrained the effect of the original law. Thus, the ECJ focused on whether this difference in treatment could be justified in the light of article 6.

The Austrian government argued that the legitimate aim pursued by the Amending law was a “budgetary consideration”. The ECJ considered that although budgetary consideration could underpin a social policy of a Member State, it cannot constitute a self-standing legitimate aim within the meaning of article 6. For this reason, such age-based difference in treatment is not objectively justified as appropriate and necessary.


In the Hütter case, the Court recognized Member States’ freedom to determine public measures to promote the integration of young apprentices into the labour market. This freedom is somewhat ambivalent, as it is subjected to the interpretation of the Court. The Austrian policy that did not consider the work experience before the age of 18 was not objectively justified in relation to article 6. The ECJ decision had serious financial consequences for the State, compared to a trivial monetary detriment for Mr Hütter. In the subsequent Schmitzer case, the amendment of Austrian law was still considered to be unlawfully discriminatory as  ‘budgetary considerations’  cannot justify a measure that maintains indefinitely an age-based difference in treatment which was supposed to be eliminated. For this reason, it was not considered “a proportionate means of achieving a legitimate aim”, as required by article 6 of the Directive, although considering “budgetary considerations” as transitional arrangements for age discrimination could instead require a closer consideration by the Court.

[1]     Article 21 of the Charter of Fundamental Rights prohibits any discriminations based on “sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation”, reinforcing in this way the link to fundamental or human rights.

[2]                 Francesca Ferraro, Jesús Carmona, “Fundamental Rights in the European Union. The role of the Charter after the Lisbon Treaty”, (2015) EPRS European Parliamentary Research Service. Available online: < > accessed 21.05.2015

[3]     This is confirmed by the case Kücükdeveci v Swedex GmbH & Co KG [2010] IRLR 346  (concerning employment discrimination) where the Court noted that the Charter have the same legal value as the Treaties, including the horizontal effect

[4]     Article 1 (Purpose) “The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.”; Article 2 (Concept of discrimination) “ 1. For the purposes of this Directive, the ‘principle of equal treatment’ shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1”.

[5]               Hütter v Technische Universität Graz [2009] ECR I- 5325 (C-88/08). Judgment of June 18, 2009

[6]                Leopold Schmitzer v Bundesministerin für Inneres [2014] ECR,  Case C-530/13


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Yuditskaya and others v. Russia at the ECtHR: a direct violation of the right to respect for private and family life and a possible link to the right to a fair trial.

  • Introduction

On 12 February 2015, the First Section of the European Court of Human Rights (ECtHR) issued  its judgment in the case of Yuditskaya and others v. Russia. The case originated in five applications against the Russian Federation, and it presents the opportunity to evaluate the interpretation of Article 8 of the European Convention on Human Rights (ECHR), that is, the protection of the “[r]ight to respect for private and family life”. This post aims to examine the Court’s reasoning with regard to the application of Article 8 and the higher standard of protection it affords in cases that involve searches in lawyers’ premises because of the indirect implications on Article 6, namely, the right to a fair trial.

  • Factual background

The relevant circumstances of the case can be summarised as follows: in the context of an investigation related to a bribery case involving the director of a State unitary enterprise and a bailiff, the Leninskiy District Court of Perm issued a warrant authorising a search in a law firm. The search was aimed at collecting documents which were supposed to be relevant as evidence in criminal proceedings. This decision was justified on the basis of the prosecution’s allegations that one of the lawyers, Counsel I.T., who was brother of the allegedly corrupt bailiff, had provided a fictitious contract in order to cover up the illegal bribery between the enterprise and the bailiff.

The ECtHR followed the usual three-stage test in evaluating the complaint and, ultimately, concluded that there had been a violation of Article 8 ECHR.

  • First stage test: whether the complaint falls within the scope of one of the rights protected by Article 8 and whether there has been an interference with them.

First, the Court had to clarify whether the complaint fell within the scope of one of the rights protected by Article 8 and whether there had been an interference with them. In this sense, the first step consists of verifying whether the actions of the authorities affected the “home” and “private life” as defined by the Court.

Article 8 protects the home and correspondence as inviolable. Those terms have been interpreted broadly by the Court as including professional premises and any activities or premises forming part of a lawyer’s daily life. In the case of Niemietz v. Germany,[1], the Court held as follows:

« [I]t is not always possible to distinguish clearly which of an individual’s activities form part of his professional or business life and which do not. Thus, especially in the case of a person exercising a liberal profession, his work in that context may form part and parcel of his life to such a degree that it becomes impossible to know in what capacity he is acting at a given moment of time.

  1. More generally, to interpret the words “private life” and “home” as including certain professional or business activities or premises would be consonant with the essential object and purpose of Article 8 (art. 8), namely to protect the individual against arbitrary interference by the public authorities».


This interpretation has been used by the ECtHR in several cases dealing with similar issues. In the most recent Yuditskaya case, the Court concluded that there had been a violation of Article 8. The reasons were twofold: the first relates to the right to the private and family life of Counsel I.T. Indeed, in addition to documents allegedly connected to the lawyer involved in criminal investigations, the search also included privileged material of other clients, whose cases were completely unrelated with the charge at issue. The second concerns the involvement of his colleagues’ computers, folders and any other material which were basically unrelated to the investigation.

  • Second stage test: whether the interference is justified pursuant to Article 8 para. 2: lawfulness and legitimacy of aims in the light of public interest grounds.

The second step considers whether the interference committed by the public authority was justified under the terms of Article 8 para. 2, which requires that every exceptional interference must be carried out in accordance with the law, justified by the public interest, and necessary in a democratic society.

With regard to compliance with the law, the Court found that the search in the law firm had been authorised by a judicial decision, in accordance with the domestic code of criminal procedure: this, in itself, was enough to affirm the lawfulness of the act and the legitimacy of its aims.[2] However, as subsequently highlighted by the Court, the search warrant had been issued in very broad terms and this had probably resulted in such an unrestrained search by the investigators.[3] In fact, the vagueness of the decision in relation to the scope of the search warrant should have been considered, itself, as a ground for the unlawfulness of the act, especially in the light of the interpretation given to the domestic Code of Criminal Procedure (CCP) and the Advocates Act by the Constitutional Court of Russian Federation, requiring that the scope of the search should be defined in similar cases.[4]

  • Final stage test: the proportionality of the measure and its necessity in a democratic society.

The final test aimed to verify whether the balance between individual rights and the public interest had been achieved through the correct application of the principle of proportionality, pursuant to the values of democratic society.[5]

As underlined by the applicants and confirmed by the Court, the reason why the search against Biznes i Pravo lacks proportionality is twofold: it was conducted across the entire office despite the fact that the applicants had voluntarily handed over all the relevant documents to the investigators;[6] no special safeguard was adopted to prevent interference with professional secrecy and other delicate issues linked to the privileged material found in the law firm.

The Court also reaffirmed the central role of lawyers in the administration of justice, by recalling the precedent established in Elci and Others v. Turkey[7], where the Court held as follows:

«The Court would emphasise the central role of the legal profession in the administration of justice and the maintenance of the rule of law. The freedom of lawyers to practise their profession without undue hindrance is an essential component of a democratic society and a necessary prerequisite for the effective enforcement of the provisions of the Convention, in particular the guarantees of fair trial and the right to personal security. Persecution or harassment of members of the legal profession thus strikes at the very heart of the Convention system. For this reason, allegations of such persecution in whatever form, but particularly large scale arrests and detention of lawyers and searching of lawyers’ offices, will be subject to especially strict scrutiny by the Court».[8]

In the Yuditskaya and others it seems that the Court took a similar, strict approach in evaluating whether there had been a lack of proportionality and, therefore, gross arbitrary abuse in violation of Article 8 because of the involvement of a group of lawyers in the search. This is a correct application of the threshold of proportionality, reflecting the one adopted in similar cases[9] where it was determined that two core principles must be in balanced: on the one hand, the protection of the public interest in the prevention of crime and, on the other hand, the respect for the proper administration of justice, in accordance with the principles of the fair trial.

  • The search warrant against lawyers issued in violation of Article 8 and its indirect consequences on the general application of Article 6.

It is interesting to observe that, following the reasoning adopted in Niemitz v. Germany, Elci and others v. Turkey and Smirnov v. Russia, the Court reiterated that[10]:

«Having regard to the materials that were inspected and seized, the Court finds that the search impinged on professional secrecy to an extent that was disproportionate to whatever legitimate aim was pursed. The Court reiterates in this connection that, where a lawyer is involved, an encroachment on professional secrecy may have repercussions on the proper administration of justice and hence on the rights guaranteed by Article 6 of the Convention (see Niemietz, cited above, pp. 35-36, § 37)»[11].

As mentioned above, the absence of proportionality found by the Court is based on the contrast between the manner in which the search was carried out and the level of guarantees that lawyers operating in a democratic society should expect in similar cases.

The case presents a violation of Article 8 for the reasons cited above and, simultaneously, highlights the risk of a violation of Article 6 where an act could also have an effect on the right to a fair trial, because of the central role of the category of person concerned by the search.

Therefore, it is remarkable that, although the violation of Article 6 was not among the allegations put forward by the applicants, the Court considered, as it did in its previous case law, the effects that the violation of Article 8 could have in relation to the right to a fair trial. This consistent approach leads to the conclusion that there could be a very close link between the observance of Article 8 and the administration of justice – as guaranteed by Article 6 – when a fundamental category of judicial operators (i.e. lawyers) is involved.

In other words, since lawyers have a core responsibility of handling sensitive situations and information issues in the performance of their duties, the standard of guarantees applied to them in cases such as Yuditskaya should be established in the light of the public interest for a proper administration of justice.

[1]             Niemetz v. Germany, 16 December 1992, pp. 9 – 11.

[2]             Yuditskaya and Others v. Russia, 12 February 2015, p. 5.

[3]             ibidem, para. 29, p. 6.

[4]             ibidem, p. 3.

[5]             For a deeper, interesting  analysis about this point please see Ursula Kilkelly, The right to respect

                for private and family life, A guide to the implementation of Article 8 of the European Convention on Human Rights, Human rights handbooks, No. 1, Directorate General of Human Rights Council of Europe, 2001.

[6]             Yuditskaya and Others v. Russia, 12 February 2015, p. 3.

[7]             Elci and Others v. Turkey, 13 November 2003 – 24 March 2004.

[8]             ibidem, para. 669, p. 108.

[9]             See Niemetz v. Germany, 16 December 1992, Elci and Others v. Turkey,13 November 2003 – 24 March 2004, Smirnov v. Russia, 7 June – 11 November 2007.

[10]           Smirnov v. Russia,7 June – 11 November 2007.

[11]           Smirnov v. Russia, 7 June – 11 November 2007, p. 10.

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Detention of asylum-seekers in the UK: a continuous violation of human rights


Immigration detention is the detention of migrants who are seeking entry to a territory, or awaiting deportation, removal, or return from a territory.1 It might affect, inter alia, asylum-seekers; for this reason, EU law and international law have developed standards of protection for the human rights involved, with a special focus on applicants for international protection.

In the UK, immigration detention concerns, in the majority of cases, persons who have sought asylum at some stage during their immigration processes.2 The present post explores how the UK legal system deals with their detention and concludes that the current UK regime infringes the standards of protection set out by EU law and international law on many grounds, and it is in urgent need of reformation.

EU law

The main instruments of EU law regulating the detention of third-country nationals (TCN) applying for international protection are the Reception Conditions Directives3 and the recast Reception Conditions Directives.4 The recast Directives provide detailed rules, allowing for the detention of asylum-seekers only in a limited number of case,5 and only when other, less coercive measures cannot be effectively applied instead.6 They impose specific procedural guarantees on the decision to detain,7 and they require detention to be applied ‘only for as short a period as possible’.8 The UK has not opted in: thus, it is only bound by the less detailed regime provided by the Reception Directives.

Under the Reception Directives, TCNs applying for international protection cannot be considered as ‘illegally staying’ in the EU.9 Limitation to their freedom of movement is allowed only in exceptional circumstances.10 Member States have the duty to provide them with living conditions that are ‘adequate for the health of applicants and capable of ensuring their subsistence’.11 They must also ensure that applicants receive the necessary health care,12 and that persons who have been subjected to torture, rape or other serious acts of violence are granted the necessary treatment.13

It is to be noted that, in implementing EU directives, member states should be guided by the relevant principles enshrined in the Charter of Fundamental Rights.14 The Charter acknowledges the right to asylum:15 however, the European Court of Justice has not pronounced itself, yet, on the implications of this right.

International law

The most important international instrument regulating asylum is the UN Convention relating to the Status of Refugee (RC).16 The Convention precludes the imposition of penalties against refugees coming directly from a territory where their life or freedom was threatened, on the mere account of their illegal entry or presence in the State Party.17 More generally, international law is inspired by the principle that ‘seeking asylum is not an unlawful act’.18 Accordingly, the restriction of asylum-seekers’ right to liberty cannot be arbitrary, and must have a ‘legitimate purpose’ (namely: protection of public order, public health, and national security).19 The decision to detain must be taken on a case-by-case basis, with an assessment of whether it is necessary, reasonable in all the circumstances and proportionate to the purpose.20 Furthermore, national laws must establish a temporal limit for detention.21

In terms of regional Human Rights law applicable to the UK, it is noteworthy that the right to asylum is not enshrined in the European Convention on Human Rights and Fundamental Freedoms (ECHR)22or its Protocols, and no specific provision regulates the detention of asylum seekers.23 However, even if States Parties have the ‘right to control the entry, residence and expulsion of aliens’,24 they must still exercise this right in compliance with their human rights obligations.25 This includes Article 3 ECHR, which provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment.26 When assessing which conditions of detention amount to ill-treatment, the European Court of Human Rights (ECtHR) generally applies greater protection to ‘extremely vulnerable’ persons (such as asylum-seekers).27 Thus, applicants for international protection benefit from additional guarantees under the ECHR system.

UK law

In the UK, the detention of an asylum-seeker can be either criminal or administrative in nature. Under Section 24 of the Immigration Act 1971, any foreigner who ‘knowingly enters the United Kingdom in breach of a deportation order or without leave’ has committed a criminal offence. The Immigration Act also gives immigration authorities the discretional power to decide whether to detain migrants pending an examination of their qualification for entry or their removal or departure from the UK.28

The wide discretionary powers conferred upon UK administrative authorities on immigration detention are partly limited by the ‘Hardial Singh’ common law principles.29 However, there are still other issues, such as the absence of a fixed limit on the time that a person (even an asylum-seeker) may be held in immigration detention.30 In the absence of such a limit, the High Court has found that detention for a significant number of years was not unlawful.31 Moreover, there is no automatic or independent review of the appropriateness, lawfulness, or length of detention,32 and migrants subjected to administrative detention are not automatically brought to court with the opportunity to apply for bail.33

After the 1990s, successive Governments have applied a restrictive immigration regime.34 In the 2000s, the Labour Government expressly declared its intention to ‘introduce a new asylum process, detaining more people’,35 and launched the use of a ‘detained fast-track’ for asylum procedures, targeting ‘failed’ asylum seekers.36 The fast track procedure has now been extended to all claimants for asylum whenever ‘it appears that a quick decision is possible’.37 Obviously, this has radically increased the number of detention cases. 38 Indeed, since this extension, the UK has detained more asylum seekers and for longer periods than any other European State, except Greece.39

UK law and EU/international standards

Although the UK is the European country with the highest number of claimants for asylum protection, its legal system does not comply with many obligations under EU law and international law.

The first issue is the qualification of illegal entry as a criminal offence: all migrants, including applicants for international protection, can be held criminally responsible simply for entering the UK without leave. This provision clearly violates the UN Refugee Convention, which prohibits the imposition of penalties against asylum-seekers on the mere account of their illegal entry or presence in a State Party.40 It also runs counter to EU law, under which applicants for international protection cannot be considered as illegally staying in the territory of the EU, until the end of the procedure examining their application.41

The second issue is the indiscriminate detention of all illegal migrants under the immigration authorities’ wide discretionary powers. The ECtHR has held that the UK policy of assimilating the detention of asylum-seekers to the detention of all other migrants does not, per se, constitute a violation of their right to liberty and security.42 Furthermore, since the UK has not opted in to the recast Reception Directives, it is not bound by the EU provisions requiring Member States to use immigration detention only as a measure of ‘last resort’.43 However, the indiscriminate detention of asylum-seekers under the ‘fast-track’ procedure runs counter to the EU provisions requiring Member States to provide asylum-seekers with adequate living conditions.44 It also violates international law, under which the decision to detain should always be made on a case-by-case basis, with an assessment of whether it is necessary, reasonable in all the circumstances and proportionate to the purpose.45 In fact, the Council of Europe Commissioner for Human Rights has condemned the UK practice of approving detention for the sole purpose of processing asylum applications.46

A third issue relates to the conditions of detention, which are suspected of being degrading and inappropriate.47 International and domestic NGOs have reported that, at the time of being detained, migrants were not told whether there was judicial scrutiny of their detention48 and were not given adequate access to legal representation or funding.49 Additionally, the use of gender-mixed accommodation puts women at risk of sexual violence, and creates distinct problems for children. 50

A fourth issue is that in the UK there is no fixed limit to the time a person may be held in immigration detention. The United Nations Committee Against Torture has urged the UK to ‘introduce a limit for immigration detention and take all necessary steps to prevent cases of de facto indefinite detention’.51 However, no limit has been introduced, either in statute or in case law.


The current UK regime on the detention of asylum-seekers is very poor. Despite clear European and international standards, there is an absence of minimum procedural and substantive safeguards for asylum-seekers. In addition, the State’s unwillingness to opt in to the recast Reception Directives allows situations which, in most EU member states, would be regarded as violations of EU law.

This year, a cross party-group of MPs has ‘called for an end to the indefinite detention of migrants, warning that too many people are being unnecessarily detained, under a system they deemed to be “expensive, ineffective and unjust”’.52 One cannot but share this opinion and hope that future UK governments will work concretely to guarantee better compliance with EU and international obligations. At the same time, the UK should opt in the recast Reception Directives, and bring its regime in line with current EU standards.

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Killer Robots: The future of Lethal Autonomous Weapons Systems

The exponential advancement in technology since the second part of the 20th Century has had a significant impact on warfare. One of the most notable developments has been the increasing autonomy of weapon functions. To date, a variety of weapons with some autonomous functions have been developed, but these largely operate within fairly restricted temporal and spatial contexts. Moreover, they are often used for defensive purposes.[1]  As the technology continues to advance, however, further autonomy could lead to the continued development of a “class of systems capable of selecting targets and initiating the use of potentially lethal force without the deliberate and specific consideration of humans”, known as Lethal Autonomous Weapons Systems (LAWS).[2]

While the use of autonomous robots in war has notable strategic, operational and tactical military advantages, it can have profound consequences on international peace and security, the nature of warfare and the protection of human lives. Between 13th and 17th April 2015, a group of States, civil society members, and experts convened at the second informal meeting on LAWS that was held under the auspices of the Convention on Certain Conventional Weapons (CCW). The meeting addressed some of the most serious legal, technical, security and ethical concerns relating to the use of LAWS, including the implications for international humanitarian law (IHL) and international human rights law (IHRL).

While, currently, States express a clear preference for maintaining humans-in-the-loop, increased research in the field has sparked concerns about the development and future use of LAWS. In the meantime, there is a strong call from parts of civil society to pre-emptively ban Killer Robots due to concerns about their incompatibility with international law and their potential impact on global peace and security. Opponents of a ban, however, argue that it is too early to rule out the possibility that future technological advancements might not only overcome these problems, but could also limit the extent of civilian casualties in conflict. They hold that the existing international legal framework provides adequate safeguards to ensure that weapons systems that would breach international law do not make it onto the battlefield.

In relation to IHL, one of the main questions is whether the use of LAWS could ever comply with the principles of distinction, proportionality, and necessity. The application of IHL on the battlefield is so complex, and the decision-making process so nuanced and situation-dependent, that it would be very difficult for the machines to comply with the law, particularly based upon an algorithm that is necessarily programmed ex-ante.

The difficulty stems from the fact that IHL rules are “unlike the rules of chess in that they require a great deal of interpretative judgement in order to be applied appropriately.” Therefore, for instance, the principle of proportionality “requires a distinctively human judgement (“common sense”, “reasonable military commander standard)”; the realities of a rapidly-changing situation render weighing up military advantages against collateral harm complex. LAWS “lack discrimination, empathy, and the capacity to make the proportional judgments necessary”. The same applies to the assessment on necessity.

Similarly, in relation to the principle of distinction, while “[w]e might like to believe that the principle […] is like a sorting rule […] however complex, that can definitively sort each individual into one category or the other”, in practice, determining whether a person is actively participating in hostilities, thereby rendering them a legitimate target, is far from straightforward. Delegating this assessment to a machine is difficult, if not impossible.

Nevertheless, supporters of continued research into LAWS suggest that future technological advancements might lead to the development of weapons systems capable of compliance with IHL and, additionally, of offering superior civilian protection by relying upon: the advanced technical and sensory capabilities of machines; speed in decision making and action; and clarity of judgment that is not swayed by emotions such as fear or anger. For instance, roboticist Prof. Ronald Arkin argues that “being human is the weakest point in the kill chain, i.e., our biology works against us in complying with IHL”. Subject to future technological advancements, Prof. Eric Talbon Jensen has illustrated the following possible scenario:

Instead of putting a soldier on the ground, subject to emotions and limited by human perceptions, we can put an autonomous weapon which […] tied to multiple layers of sensors [is] able to determine which civilian in the crowd has a metal object that might be a weapon, able to sense an increased pulse and breathing rate amongst the many civilians in the crowd, able to have a 360 degree view of the situation, able to process all that data in milliseconds, detect who the shooter is, and take the appropriate action based on pre-programmed algorithms that would invariably include contacting some human if the potential response to the attack was not sufficiently clear.

Despite the potential benefits that future technologies may bring, however, they are still hypothetical. As the International Committee of the Red Cross (ICRC) has observed, “[b]ased on current and foreseeable robotics technology, it is clear that compliance with the core rules of IHL poses a formidable technological challenge […] there are serious doubts about the ability […] to comply with IHL in all but the narrowest of scenarios and the simplest of environments”. Therefore, while the utopian prospect of LAWS that operate in the best interests of civilians is a possibility, it is by no means a certainty. What is certain is the development of weapons systems with very concerning autonomous functions.

Even in the event of significant technological advancements, delegating life and death decisions to an autonomous machine can create a serious criminal and civil accountability gap.[3]  This would run counter to the preventative and retributive functions of criminal justice; breach the right to an effective remedy; and, in the light of the very serious crimes that can be perpetrated by the machines, it would, arguably, be immoral. It has been aptly observed that  “[t]he least we owe our enemies is allowing that their lives are of sufficient worth that someone should accept responsibility for their deaths”. This poignant reflection holds equally true in relation to civilians and friendly casualties.

For these reasons, there has been a strong drive towards regulating the further development and eventual use of these machines.  Some are advocating a ban on killer robots while others, like the ICRC, are “urging States to consider the fundamental legal and ethical issues raised by autonomy in the ‘critical functions’ of weapon systems before these weapons are further developed or deployed”.

Still, opponents of a ban deem it unnecessary since IHL is “sufficiently robust to safeguard humanitarian values during the use of autonomous weapon systems”.  They argue, for instance that an adequate safeguard against the use of weapons that violate IHL is contained in Article 36 of Additional Protocol I (API) of the 1949 Geneva Conventions which obliges States to determine in the “study, development, acquisition or adoption of a new weapon, means or method of warfare… whether its employment would in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable”.

However, proponents of the ban have argued that this is insufficient. Some have suggested that opinion regarding whether Article 36 assessments form part of customary international law may still be divided. Other experts, however, disagree. They argue that customary international law does indeed create an obligation upon all states to carry out the assessment  in relation to new means of warfare acquired, and that a question mainly arises in relation to new methods of warfare. Therefore, they maintain that weapons reviews provide sufficient protection. In any case, it has been argued that an assessment is a corollary of the obligation to ensure compliance with IHL; if the machines cannot comply, they will inevitably breach other provisions of the law when they are deployed .

Nevertheless, from a practical perspective, it is questionable whether Article 36 reviews, which depend on the transparency, openness, and uniform application of IHL to LAWS in such a nebulous context, are sufficient. Moreover, as computer scientist and robotics expert Prof. Noel Sharkey notes, there are serious questions about future consequences on IHL if LAWS continue to be developed while efforts at making them compliant with the laws of war fail.

Furthermore, Article 36 does not sufficiently consider the IHRL implications of LAWS.  In particular, the use of LAWS might lead to a violation of IHRL norms including: the right to life; the prohibition of torture and other cruel, inhuman or degrading treatment or punishment; the right to security of person; and, in view of the fact that a weapons review will not necessarily close the accountability gap, the right to an adequate legal remedy. Finally, proponents of the ban argue that delegating life and death decisions to a machine, effectively “death by algorithm”, violates the basic tenets of human dignity, the principle of humanity and the dictates of public consciousness, therefore, contrary to the Martens Clause.[4]

Discussions on the way forward have centered round the possibility of necessitating ‘meaningful human control’ over the operation of weapons systems.   However, as William Boothby has observed, a machine requiring meaningful human control is not fully autonomous; while useful from a policy perspective, he advised refraining from elevating the concept to ‘some sort of legal criterion’ and suggested focusing on Article 36 weapons reviews. Conversely, supporters of the ban have argued that it is precisely because ‘meaningful human control’ implies that machines are not fully autonomous, and in light of the significant State support for maintaining  such control, that a ban is the most obvious course of action.

At this stage, a consolidated way forward needs to be established before States and private contractors invest too much public and private money, time and energy, in the further development of LAWS, thereby rendering future regulation much more complex. Time is of the essence; the “opportunity will disappear […] as soon as many arms manufacturers and countries perceive short-term advantages that could accrue to them from a robot arms race”. The consequences on civilians, combatants, and international peace and security generally, could be devastating.

[1] For an overview see this 2012 Human Rights Watch report and P.W. Singer’s Wired for War

[2] Although a precise definition of LAWS has not yet been agreed upon, see here and here for their general characteristics

[3] see Human Rights Watch and Harvard Law School’s International Human Rights Clinic’s report Mind the Gap: The Lack of Accountability for Killer Robots

[4] See here for a discussion on some of the challenges  T-1


Filed under Human Rights, International Criminal Law, Public International Law