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Meaningful Human Control in Autonomous Weapons ABSTRACT The research on autonomy in robotic systems is flourishing in many areas, but none is deemed as troubling as the development of lethal autonomous weapon systems (LAWS). It raises various compelling questions, legal and ethical ones. Discussions on the potential challenges posed by these emerging technologies highlighted the desirability of a certain level of human control. The notion of meaningful human control (MHC) over LAWS has gained widespread support. However, the principle itself and its requirements are yet to be defined. To this end, this paper analyses the emerging principle of MHC and explores its elements. It aims to clarify questions such as where the principle stems from and how it should be perceived and integrated into State practice. First, the definition and categorisation of LAWS are shortly addressed to provide an introduction to the topic. Second, it is argued that it is necessary to insist on the requirement of MHC, particularly because of technological limitations of current and future technology, such as object recognition and classification, bias, or unpredictability. The arguments stemming from the rules of international humanitarian law (IHL) on the conduct of hostilities are explored, mainly the rules of distinction,...

International law-making has long been considered the exclusive preserve of States. However, it is increasingly recognized that this traditional view does not fully account for the complexities of international reality. International humanitarian law directly addresses non-state parties to armed conflicts, reflecting that they possess limited international legal personality. This thesis explores whether, and under what circumstances, the consequences of this limited personality extend to the capacity of such armed non-state parties to undertake legally binding acts, by analysing the unilateral declarations, agreements and internal rules and regulations of such groups. The analysis is undertaken using the civil law concept of the juridical act. The research demonstrates the usefulness of this general theory for assessing the legal value of undertakings by non-state actors. As such, this thesis is part of a growing body of international legal scholarship that investigates the boundaries with respect to the creation of international legal obligations.

Discrimination is among the most pressing humanitarian issues that arise in all types of armed conflicts and in different spheres of warfare – be it in the treatment of persons in the power of a Party to an armed conflict or in the conduct of hostilities. International law applicable to such situations, in particular international humanitarian law (IHL) and international human rights law, include important safeguards against such practices. The PhD thesis examines the legal framework to clarify the applicability and scope of relevant rules, as well as their interplay in armed conflict. It also looks at the notions of discrimination, adverse distinction and equality, and their constitutive elements as shaped out by the State practice, jurisprudence of international courts and tribunals and legal scholarship, in order to provide clear legal parameters to draw the line between prohibited discrimination and other differentiations that may be lawful or even required by international law.

Cette thèse de doctorat a pour but de communiquer les résultats des recherches juridiques menées sur les sources du droit international humanitaire. Si le DIH ne s'affranchit complètement ni du système que forme le droit international public, ni de l'approche traditionnelle des sources telle que consignée dans l'article 38 du Statut de la Cour internationale de justice, il possède des caractéristiques affectant la détermination et le développement de ses règles. Ces caractéristiques marquent généralement un accroissement de la protection de la personne humaine et apportent des ajustements nécessaires à l'approche traditionnelle des sources du droit international appliquée au DIH. Elles se manifestent dans les sources non écrites que sont le droit international coutumier et les principes généraux de droit reconnus, et sont nourries par les sources subsidiaires persuasives que sont les décisions judiciaires de la CIJ et du TPIY, ainsi que certains documents juridiques non contraignants produits par le CICR.

This thesis is the first comprehensive analysis of the nexus requirement, a critical yet under-studied condition for the applicability of international humanitarian law (IHL). It explores the idea that IHL does not govern all wartime events, but only those that have a sufficient link to the war. Originating in the law of war crimes, the nexus requirement gained prominence in the field of IHL, notably as a qualifier for expansive interpretations of the geographical reach of IHL. This thesis explains why the nexus is a condition for IHL applicability and argues that there are, in fact, two versions of the nexus requirement. By proposing concrete nexus tests for various factual scenarios, it contributes to refining the applicability of IHL and of the law of war crimes, particularly to events occurring at the periphery of armed conflicts – such as acts of violence committed far from the battlefield, by civilians, or as part of the administration of territories by armed groups.

This Study is an original empirical account of internment practices by States and non-State armed groups in non-international armed conflicts to find evidence of common behavioural patterns by warring parties, irrespective of status. It focuses on particularly complex aspects of conflict-related security detentions – permissible grounds, procedural guarantees and transfer standards, that remain unregulated under international law. Unlike previous research, this Study is based on a large and robust collection of primary and secondary data. It explores normative frameworks that belligerent parties applied to their internment; examines operational practices to find compliance with as well as discrepancies in implementing relevant internal regulations; and intersects these findings to identify legislative commonalities and proposes a normative system that is realistic to impose on warring parties and feasible to implement. This methodological approach is critical to diagnosing the status of lex lata in practice and is central to developing credible projects on lex ferenda.

As one of four commonly accepted dimensions of the scope of application of international humanitarian law (IHL), the geographical scope defines where IHL is applicable. Based on a law of treaties analysis, the thesis examines the law of international armed conflict (IAC) first. It studies the prototypical IAC (i.e. the resort to armed force between states) as well as its variations (i.e. other situations to which the law of IAC applies). It argues that a nexus-based approach constitutes the most convincing approach for the determination of the law of IAC's geographical scope inside and outside the conflict parties' territories. The geographical scope of the law of non-international armed conflict (NIAC) is analysed second. As regards its applicability inside the territory of a state involved in or affected by armed conflict, additional possible approaches specific to the law of NIAC are examined and dismissed in favour of a nexus-based approach. The applicability of the law of NIAC to NIACs with an “extraterritorial element” is analysed last. It is in this context that contentious issues, such as the targeting of “fighters” on the territories of non-adjacent states, are discussed.

This thesis deals with the question of the nature of international humanitarian law (IHL) as a permissive or restrictive regime. It is often said that the primary purpose of IHL is to place restrictions on the actions of parties to armed conflicts, and to impose obligations on them in order to protect the victims thereof. Nevertheless, IHL is also increasingly used to claim the existence of an authority to resort to certain conducts that would be deemed unlawful during peace time. Using deontic logic and the function of public international law, the thesis determines that IHL initially developed as a restrictive regime, which nevertheless contains some rare strong permissions granting States an authorization to act. It also applies this general result to the more specific questions of the existence of an authority to intern and an authority to target persons, during both international and non-international armed conflict.