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Foreign Affairs, Defence and Trade References Committee
14/04/2015
Potential Australian Defence Force use of unmanned platforms

BALL, Ms Petra, International Humanitarian Law Officer, Australian Red Cross

McCONNACHIE, Ms Annabel, Volunteer Member, New South Wales International Humanitarian Law Advisory Committee, Australian Red Cross

WYNN-POPE, Dr Phoebe, Director, International Humanitarian Law and Movement Relations, Australian Red Cross

[14:00]

CHAIR: We now welcome representatives from the Australian Red Cross. Would someone or all of you like to make a brief opening statement?

Dr Wynn-Pope : Just me. I would like to thank the Senate committee for inviting Australian Red Cross to attend to provide further information with respect to the submission we made in February this year. We welcome any questions you have with respect to that submission.

Although Australian Red Cross may be known to many of the members of the committee for our work as a leading humanitarian agency and part of the wider international Red Cross and Red Crescent movement, our work is founded on a mandate within the Geneva conventions. These conventions contain rules of armed conflict known as international humanitarian law—which I know you are all very familiar with—which provide protection for people during times of armed conflict and restrict the means and methods that can lawfully be employed by parties to a conflict.

We are bound in all of our work by the fundamental principles of the Red Cross Red Crescent movement, which ensures that we will always act in a neutral and impartial manner. The movement is neutral in order to maintain the confidence of all, and the practical implication of this is that our standard mode of engagement with authorities is usually to enter into private two-way dialogue on issues of humanitarian or international humanitarian law interest and concern. Accordingly, while it is not envisaged, it may be that during the session this afternoon we in fact request the opportunity for private dialogue to address a particular issue raised.

I would like to reiterate that our primary focus with respect to the issue of the potential use of unmanned air, maritime and land platforms by Australian Defence Force has been restricted to commentary on our concerns with respect to the application of international humanitarian law. With this in mind and to ensure compliance with international humanitarian law, Australian Red Cross has submitted three core recommendations.

The first recommendation is that unmanned platform systems must be thoroughly tested as specified within additional protocol 1 to the Geneva conventions to ensure that they are capable of complying with IHL at all times. The second recommendation is that these systems should not be in any way used or operated by individuals, particularly civilians, who are not trained in or thoroughly understanding of the principles of international humanitarian law.

I would like to briefly add here with respect to this second recommendation that the members of the committee may be aware the Australian government has provided support to Australian Red Cross for the purposes of providing dissemination of IHL to the Australian population since the ratification of additional protocol 1 and its enactment into domestic legislation in 1991. This support has enabled Australian Red Cross to establish a team of IHL officers represented in each state and territory to engage in the dissemination of IHL. Throughout this outreach we are able to inform and educate particular sectors of society about obligations and responsibilities contained within IHL. However, further outreach would be required to an entirely new sector if unmanned or semiautonomous weapons were to be used during armed conflict. Those involved may not be apparent or easily identifiable. The Australian government may like to carefully consider whether the current dissemination program offered through Australian Red Cross and the training provided by the Australian Defence Force to their own personnel would be adequate to discharge the government's responsibilities with respect to this dissemination.

Finally, our third recommendation states that, should civilians be involved in any capacity in the use or operation of any of these weapons systems, they will be capable of being held accountable should breaches of international humanitarian law occur.

Further to the third recommendation within our written submission, we would like to echo the remarks of the University of Melbourne, amongst others, regarding the program on the regulation of emerging technologies, which raised the issue of civilian involvement during time of armed conflict with the use, programming or operation of any of the weapons in question. There is concern that any civilian so involved would lose their protected status under international humanitarian law. This would expose that civilian and the premises from which they operate to the risk of being a lawful target for enemy combatants.

In addition, a civilian operator would not be eligible for the combatant privilege which would protect a combatant from prosecution with respect to acts complying with international humanitarian law. The use of civilian operators may potentially render them liable to arrest and prosecution for their actions during an armed conflict at a time after an armed conflict has concluded.

Australian Red Cross urges the Australian government to respect and ensure respect for the Geneva conventions and, to that end; we urge that the ADF only employ unmanned platform systems if respect for IHL can be guaranteed. Thank you. That ends my statement.

CHAIR: Senator McEwen, would you like to begin?

Senator McEWEN: Thanks, Chair. Thank you, Dr Wynn-Pope, for that opening statement. You mentioned in your recommendations that all persons involved, including civilian contractors and functionaries within Defence, would need to have the IHL training, and you said that you would not necessarily be able to identify all of them. Why is that? What is the hurdle to finding out who these people are and whether they need training?

Dr Wynn-Pope : With respect to that aspect of our submission, we are thinking along a broad spectrum of people involved in the use and application of unmanned platforms—going right back to the very beginning. For example, looking at whether computer programmers need to have some sort of awareness of the requirements of IHL. If we are looking at fully autonomous weapons down the track that are choosing their own targets, are they able to identify 'surrender'? Are they able to identify the protective emblems of the Red Cross, Red Crescent, and Red Crystal? There are a whole lot of things that may need to be included in any sort of computer program that would be making these determinations.

Senator McEWEN: Obviously, the developmental stage of any kind of technology that has a military application involves civilians; are we capturing them now? Or is the problem at the end point of the autonomous unmanned platform?

Dr Wynn-Pope : I think we see that there are risks at the end point with the fully autonomous weapons and platforms because of the nature of those—the programming that goes into those platforms that would help them to identify targets. At present, compliance mechanisms—that are put in place through article 36 reviews of existing weapons systems and what-have-you and all the other systems that the ADF puts in place—address that.

Senator McEWEN: Are there any relevant treaties or conventions that Australia has not signed or entered into that you think Australia should enter into? I do not know; I am just curious.

Ms Ball : There are no specific treaties that currently ban or regulate the use of autonomous weapons. Currently there is discussion about the potential to do so under the auspices of the Convention on Certain Conventional Weapons, and I would imagine Australia would be interested in those talks. But currently it is within international humanitarian law treaties to which we are party and for which many of the articles and obligations have customary law status—so they are binding on states that do not actually have ratification status—that we would be urging the government to ensure respect for international humanitarian law and the use of unmanned platforms.

Senator McEWEN: Are there moves afoot internationally to come up with treaties to specifically deal with the autonomous unmanned platforms?

Dr Wynn-Pope : Not that I am aware of. I am happy to take that question on notice and get back to the committee specifically.

Senator McEWEN: Okay, thank you. Do you have any examples of civilian contractors who have not been adequately trained in the implications of IHL? I am talking about current defence platforms. Are there any examples?

Dr Wynn-Pope : We do not have any specific examples at Australian Red Cross, no.

CHAIR: Basically Australia is complying with IHL now. There are no examples of us historically not complying?

Dr Wynn-Pope : I think Australia has a very good standing record on—

CHAIR: What makes this particular weapon different? I can go back and say, 'Look, I can fire a piece of artillery 40 kilometres up the road.' I cannot see 40 kilometres up the road and I do not know whether I am going to hit the right target or not. This is actually better than that and you actually get an analysis of square metres to the ground.

Dr Wynn-Pope : I think in some instances that is the case. Our primary concern as Australian Red Cross, with all new weapons systems, is that they are compliant with international humanitarian law and that there are social accountability mechanisms around those weapons systems. The nature of the unmanned platforms, I think, raises a lot of complexities that more conventional weapons do not raise in terms of engagement accountability, how those systems are used and—particularly if there are civilians directly participating in hostilities and using these weapons—how those accountability mechanisms are put in place.

CHAIR: I do not quite get your logic. I have actually seen a drone in operation, streaming photos back to a screen, and people on the ground identifying this as a place of interest and that as a place of interest, and that person as being 13 years old. From what I saw, they are getting the most complete and concise information possible—which is not possible from dropping a bomb, firing a piece of artillery or throwing a hand grenade. It is actually dissected in minute and careful detail. I think it lends itself to making more compliance and better targeting in the event that you have to use lethal force.

Dr Wynn-Pope : Yes, I think in many circumstances that is the case. I think there are some areas of concern, again when we are moving more into the autonomous area. If you are in the battlefield, so to speak, there is a whole lot of intent that you may be able to perceive. So, for example, can autonomous weapons adequately identify surrender. That is one example: can autonomous weapons adequately identify—

CHAIR: If someone waves the white flag it does not see it.

Dr Wynn-Pope : Yes. I think there are issues that are separate and different from more conventional—

Senator FAWCETT: Just to follow up on that point: I think it is fairly clear that Australia has no capacity at the moment and certainly no intention to go to a complete autonomous system that actually selects, identifies and then chooses to engage a target. All the systems we potentially are looking at—and in fact all the systems that are used by our allies—still have a person in the loop who assesses information and says, 'Yes, even if the final firing is essentially conducted by a system, the decision to engage is still a human decision.' As the chair has indicated, often that targeting information is far more accurate. Even in manned systems the bulk of targeting now is done through the sensors on displays. The difference is you are sitting on a stable piece of ground in an air-conditioned hut as opposed to strapped into a seat that is vibrating or manoeuvring under fire somewhere. So the potential for that operator to make a more informed and accurate decision is actually better with unmanned systems. At this point I do not think anyone is talking about a completely autonomous system where the decision to engage is done by a computer. I just wanted to clarify that because a lot of your comments are sort of indicating that you think we are talking about a system that will completely autonomously choose to engage.

Ms Ball : I think that is correct—that the standard understanding is that those fully autonomous systems are something that may happen some time in the future. I think it would be reasonable to say, however, that there is increasing autonomy in those critical functions and it is possible that the Australian Defence Force is also interested in those increasing loops of sensory data that comes in where humans are still in the loop, still making the decision to prosecute an attack. The International Committee of the Red Cross in their reports on this have identified the potential for a human operator to be having to manage the data coming in on a number of different systems and the potential there is overload. We have heard reference to swarms, for example, this morning—multiple unmanned vehicles, unmanned platforms—being used in a combat zone. I think there is the potential for difficulty in making assessments. With increasing sensory capacity and increasing autonomy in making those decisions then we need to be mindful that today's combat zones are highly changing positions, highly variable places where qualitative assessments of people on the ground do save lives as well.

Senator FAWCETT: So you are aware that the reality is manned platforms now are far more into this distributed sensor shooter model where one person sitting in a cockpit may well be looking at a sensor from someone else and firing a weapon from somebody else so the same issue of sensory overload is there for manned platforms but the reality is if you remove the stress of being at risk and the stress of being airborne you are actually going to get a better decision cycle out of the person if they are sitting on the ground. Where I would like to go with the question is the concern you have about liability and coverage under the various conventions of a civilian involved. I would like to explore a little how far down the chain you see that goes. You talk at the design level about a computer programmer needing to understand IHL but let us remove that completely autonomous system for the moment and look at a system where there is definitely a person in the loop. If you had a civilian operator who was actually controlling where the platform went but a military person analysing the data and making the decision to engage or not engage, do you have concern that that civilian operator could face liability issues?

Dr Wynn-Pope : The short answer is yes because the civilian operator would be seen as directly participating in hostilities and at that point you lose your protective status as a civilian.

Senator FAWCETT: So how far back do we wind that, because the UAV would not have taken off if the civilian contractor had not put AVTUR into it, had not serviced it or had not delivered it to the field of operation? How far back do you take that concern about liability?

Ms Ball : I think the Australian Red Cross would be hesitant to draw a line in the sand but would be keen to raise that as an issue of consideration for the committee. I think that would be a fair response. While a civilian is responding to a military command to fire a button then, clearly, there is direct control, but it does get greyer the further back you go.

Senator BACK: Thank you for your submission and comments. I think I heard you say that we have no specific concerns with the ADF, at the moment, in relation to your three recommendations. Is that correct?

Dr Wynn-Pope : That is correct.

Senator BACK: Who reasonably would we expect to monitor the performance, as you outlined it in those three recommendations? Is that a role for the ADF itself or is it a role for an external party? Are your officers in the field equipped to provide feedback on, let us call it, compliance with those three recommendations?

Witnesses conferring—

Senator BACK: How can we be satisfied that we know our personnel are compliant?

Witnesses conferring—

Senator BACK: Is it an unreasonable question or do you not understand the question?

Dr Wynn-Pope : There are a lot of elements to the question. The first thing is that the state is responsible to ensure that its armed forces are compliant with international humanitarian law. That is a state responsibility. The armed forces have responsibility to report and investigate any possible breaches of international humanitarian law; that is a responsibility of the defence forces. The responsibility, ultimately, for compliance of the defence forces lies with the state but the obligation is within the defence forces to ensure that they are complying in an ongoing manner.

Senator BACK: I understand that. You mentioned, when you referred to the second recommendation, technologies not being used, controlled, programmed or operated by individuals not fully conversant. You then went on to say that the government in 1991 had provided funding to the Red Cross to, effectively, extend knowledge on international humanitarian law to the wider community. Again, I ask you: how do we know how successful that campaign has been? Has anyone ever surveyed members of the wider community to find out what our general understanding is?

Dr Wynn-Pope : That is a terrific question, because we are just about to undertake such a survey. In the meantime, some of the indicators we have from our IHL program are things like, in Australia, the International review of the Red Cross, which is an IHL journal. It is downloaded and purchased more in Australia than in any country of the world, and that is not at the per capita figure; that is a figure just in pure numbers, which is quite an extraordinary level of interest in IHL across a wide range. The number of law schools teaching IHL has increased exponentially. I think there are 43 law schools now, across the country, that are teaching IHL.

We see a big engagement that we have—over 7½ thousand people who we communicate with regularly through our program. We reach about 10,000 people directly, through specific events, every year. We have seen, over the last 10 years, significant growth in IHL awareness in the community. We also do a lot of work, the Australian Red Cross, around the emblems and work very closely with the Department of Defence in the protection of the emblems.

Senator BACK: Could you now expand beyond the military context, to the civilian context, with these unmanned aerial vehicles? Concern is being expressed that there are privacy impacts, now, increasingly, as they become cheaper and apparently are able to be purchased and operated without a licence and without any central control. Does international humanitarian law apply in the privacy space as well for citizens?

Ms Ball : International humanitarian law does not offer anything in terms of privacy. I would imagine that we are talking international human rights law if we are talking possible infringements of privacy.

Senator BACK: Then, in the context of that very interesting information you provided about the level of interest by Australians, if we take the UK, of which our previous witnesses spoke with some experience, what is the UK experience in terms of the interest by the wider community in the UK about exactly the same topic?

Dr Wynn-Pope : I am sorry; I would have to take that question on notice and get back to you. I know that the British Red Cross has an international humanitarian law dissemination program. I do not think it is as extensive as our own. But I can get that information for you—

Senator BACK: They do use armed UAVs in the UK. Thank you very much. Thank you, Chair.

CHAIR: Senator McEwen.

Senator McEWEN: This is probably not so much a question of IHL, but I was just curious: given that you are a humanitarian organisation, have you thought about the positive use of unmanned platforms in delivering humanitarian assistance, or identifying, in the aftermath of a natural disaster or even a military disaster or something like that, where people are and how you can target Red Cross's humanitarian aid?

Dr Wynn-Pope : I am not sure. That would come under our international programs department. I know that there is a lot of work being done in the international community at large around the use of new technologies, including unmanned platforms, for delivery of aid and assessment in disasters and emergencies. As to the extent to which the movement is engaged in that debate, again I am not sure.

Senator McEWEN: Perhaps you could take this on notice: if military platforms were deployed for civilian humanitarian purposes, are there any potential problems or conflicts in the law there? I am sure there would not be, because military equipment is already used for humanitarian purposes in many situations.

Dr Wynn-Pope : I would definitely take that on notice. There is a huge amount of work that is done around the civil-military engagement in response to emergencies and disasters and how that engagement should take place and how that interaction should work. Obviously, in complex emergencies it is a much more difficult question around humanitarian engagement with the military. Generally speaking, certainly in complex emergencies, it is a relationship that humanitarian agencies like to keep separate. But, in terms of the law and the engagement of military unmanned platforms for disaster relief, I would have to get back to you on that and will very happily do so.

Senator McEWEN: All right. Thank you.

CHAIR: Thanks very much, Senator McEwen; I think you hit the nail right on the head there, because that sort of question is what this inquiry is about. There is such a broad use for these unmanned vehicles that it is important that we do not get siloed into one particular aspect of autonomous weaponed unmanned platforms versus delivering aid, which I am sure will be a feature of the future. And let us hope we get some decision on whether civilians can fly them or not. Thank you very much for your submission.