Examining the jus ad bellum - jus in bello-human rights law dichotomy from an African freedom values perspective: Towards comprehensive governance of autonomous weapon systems

Abstract

Since 2013, following a presentation of the first report on lethal autonomous weapon systems
(AWS) at the United Nations (UN) Human Rights Council (HRC) by the late Prof. Christof
Heyns of the University of Pretoria in South Africa, states have been gathering at the UN to
discuss challenges that are raised by AWS. One of the main objectives of the UN meetings on
AWS is to map out how the international community can comprehensively respond to AWS. At
the heart of the UN AWS debate is which legal regime or normative framework should guide
the discussions or formulation of policy on AWS. The battle of which legal regime should take
precedent in the AWS discussions often manifest itself in questions about which UN or
international fora should states debate the challenges posed by AWS. While the discussions on
AWS may have started in 2013 in the UN HRC, some states quickly argued for the discussions
to be moved from the HRC – an international human rights law-focussed framework – to the
UN Convention on Conventional Weapons (CCW) – a jus in bello or international
humanitarian law-focussed framework. Many states and scholars have forcefully argued that
the UN CCW is the appropriate forum within which AWS should be discussed. For the past
years that the AWS discussion has been in the CCW, a number of states have repeatedly insisted
on the jus in bello – jus ad bellum – international human rights law (IHRL) dichotomy, arguing
that it is jus in bello or international humanitarian law (IHL) that should determine the
acceptability or otherwise of AWS. Indeed, in the recent meeting of the UN Group of
Governmental Experts (UNGGE) on AWS held from 2 to 8 December 2021, a number of states
objected to the inclusion of IHRL in the report of the UNGGE on AWS, reminding other states
that the UN CCW is an IHL-focussed framework whose mandate is limited to situations of
armed conflict. Towards the international community’s goal of a comprehensive governance
framework on AWS, this paper considers, from an African freedom ethics perspective, whether,
when considering the acceptability of AWS, and in the interest of diversity of values, ethics and
interests, it is correct to insist on the dichotomy between jus in bello, jus ad bellum and IHRL.