Having outlined the potential sources and bodies of international law which can apply to AWS, the thesis now considers the application of the legal regime applicable to weapons. The phrase ‘weapons law’ is generally used to refer to the LoAC rules applicable to weapons, this thesis also includes applicable IHRL rules. Although it may sound counterintuitive, AWS must first be defined in terms of the weapons law regime in LoAC in order to apply them. Then, the very nature of AWS must be considered to determine if it makes them unlawful per se. Following this discussion, the challenge of applying legal rules normally applied to fighters is discussed.
4.1. Classification of AWS
As we saw in the discussion of different AWS definitions in the last Chapter, the autonomous nature of these systems in the selection and engagement of targets is their major defining aspect. 200
Such critical functions have always been a task carried out by fighters. Some authors wrongly suggest that AWS could, therefore, be classed as a combatant due to misunderstanding the performance of human-like activities as actually approaching being a human and therefore a combatant.201
199 Eliav Lieblich and Eyal Benvenisti, ‘The obligation to exercise discretion in warfare: why autonomous
weapons systems are unlawful’ in Nehal Bhuta, et al. (eds), Autonomous Weapons Systems (CUP, 2016) 245- 283.
200 Anja Dahlman, 'Towards A Regulation Of Autonomous Weapons – A Task For The EU?'
(Europeanleadershipnetwork.org, 2019)
Archived:<https://web.archive.org/web/20190917160943/https://www.europeanleadershipnetwork.org/com mentary/towards-a-regulation-of-autonomous-weapons-a-task-for-the-eu/>.
201 David Akerson ‘The Illegality of Offensive Lethal Autonomy’ in Dan Saxon (ed.), International Humanitarian
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Aside from these metaphysical issues, AWS cannot be defined as combatants under international law. Article 43 of API defines combatants as members of the armed forces202 who are
under a responsible command and are subject to an ‘internal disciplinary system.’203 Whilst AWS could
certainly be used under a responsible command, they cannot be subject to discipline, as they are just machines and so cannot be combatants according to LoAC.
In addition to engaging in the roles formerly exclusive to fighters, AWS are, fundamentally, artefacts used for conducting attacks. In order for the legal rules regulating weapons to apply to AWS, they must be defined as such under LoAC. This thesis is mostly focussed upon physical systems that will create a kinetic effect in the same vein as the Taranis and nEUROn UAVs currently in development (see Chapter 2). As such, whilst some so-called ‘cyber-weapons’ could be AWS, they are not the focus here.204
Autonomous UAVs firing munitions would be instruments intended to cause damage within an armed conflict, and so would be a ‘means’ of warfare. This is a broad category encompassing equipment including platforms, weapons, and weapon systems.205 The following paragraphs discuss
which type of means is most appropriate for AWS. Means of warfare are contrasted by ‘methods’ of warfare. These are the tactical ways in which military capabilities are employed to harm the enemy.206
One could see UAVs as a ‘platform’ delivering munitions to the target rather than an offensive technology in and of itself. A platform is generally seen to be equipment from which an activity is carried out by sub-systems, for example carrying surveillance cameras or missiles.207 The execution of
Autonomous Weapon Systems The Subject Of Article 36 Of Additional Protocol I To The Geneva Conventions?' (2016) 23 U.C. Davis Journal of International Law & Policy, 65, 77-81.
202 Art.43(2), API 203 Art.43(1), API
204 See Tallinn Manual (n.52) Rule 103 and accompanying commentary
205 Humanitarian Policy and Conflict Research, Commentary On The HPCR Manual On International Law
Applicable To Air And Missile Warfare (Harvard University, 2010) (Hereafter: AMW Commentary), Rule 1(t); (ff)(3).
206 One could argue that an autonomous attack is a method of warfare, see Boothby 2012 (n.93) 282. 207 AMW Commentary (n.205) Rule 1(b); (ff).
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various tasks and application of algorithms in combat, however, makes AWS qualitatively different from other simple platforms.208
As AWS play a significant role in creating military violence, they could be considered as weapons. There is no universal definition of ‘weapon’ in LoAC.209 However, the commentary of the Air
and Missile Warfare Manual states: ‘“Weapon” means a means of warfare used in combat operations, including a gun, missile, bomb or other munitions, that is capable of causing either (i) injury to, or death of, persons; or (ii) damage to, or destruction of, objects.’210 As it is the munitions that an AWS would
actually fire that impart injury and damage, an AWS is more than just a weapon.
A ‘weapon system’ is defined as: ‘A combination of one or more weapons with all related equipment, materials, services, personnel, and means of delivery and deployment.’211 Thus, as an AWS
will be a combination of munitions, and everything else it needs to be deployed, the term weapon system is most appropriate. As AWS can be categorised as weapon systems, and a means of warfare, for the purposes of international law, this means that the relevant weapons law rules are applicable to them.
4.2. Weapons law, weapons reviews, and whether AWS are unlawful per se
The weapons law regime is applied during weapons reviews and regulates the development of weapons by assessing their ability to comply with international law during their study, development, and use.212 This is done because the right of parties to conflicts to choose different
208 Paul Scharre, Army Of None (WW Norton & Company, 2018) 27-28.
209 Geneva Academy of International Humanitarian Law and Human Rights, 'Weapons System’, Weapons Law
Encyclopedia (Weapons Law, 2013).
210 AMW Commentary (n.205) Rule 1(ff).
211 US Department of Defense, DOD Dictionary Of Military And Associated Terms (US DOD, 2018) see ‘weapon
system’.
212 Art.36, API; See reference to different reviews (or ‘gates’) taking place during the development of weapons:
UK Ministry of Defence, UK Weapons Reviews (Development, Concepts and Doctrine Centre, 2016) 4; Australian UNOG Delegation, 'The Australian Article 36 Review Process’ 2018 Group of Governmental Experts on Lethal Autonomous Weapons Systems (Geneva, 30 August 2018) UN Doc. CCW/GGE.2/2018/WP.6, 4.
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means and methods of warfare is not unlimited.213 International law does not specify how weapons
should be assessed. But, states have developed weapons review frameworks to apply the legal rules relevant to means of warfare.214
Some authors have argued that AWS will be so complex that current methods of review are inadequate, and the lawfulness of an AWS could not be guaranteed.215 Yet, testing of complex systems
can take place against simulations or physical facsimiles of the battlespace that the AWS will be used in to give reviewers an understanding of how the complexities of the system will act on operations such that they should be able to make determinations as to its compliance with legal rules.216
Weapons reviews have not proliferated to all states, however. The vast majority of states who are required by treaty217 to perform legal reviews of weapons do not.218 This is indeed a problem for
legal regulation of weapons as countries without a review process, or one that is inadequate, could be fielding weapons that would have been prohibited in states which respect international law with more seriousness. However, this thesis is concerned with the sufficiency of current international law, rather than the inadequacy of some weapons reviews. So, in the next Chapter, the relevant rules are applied to AWS to determine whether they are unlawful as a type of weapon. But, at this point, it is important to determine whether AWS are outright unlawful.
The lawfulness of weapons is dependent upon the absence of a prohibition rather than a need for authorisation.219 As such, a weapon is unlawful per se if it is either specifically prohibited or cannot
be used in conformity with the rules regulating the development and use of weapons.220 As the next
213 Art.35(1), API.
214 See, for example, US Manual, para.6.2; UK Ministry of Defence, UK Weapons Reviews (Development,
Concepts and Doctrine Centre, 2016).
215 Sharkey 2017 (n.225) 178-181; Sharkey 2010 (n.225) 378-381. 216 For more on this, see Chapter 4, Section 5.5.2.
217 Art.36, API.
218 Vincent Boulanin, 'Implementing Article 36 Weapon Reviews In The Light Of Increasing Autonomy In
Weapon Systems' (SIPRI, 2015).
219 US Manual, paras. 1.3.3.1, 6.2.1; Nuclear Weapons Opinion (n.76) para. 52.
220 Nuclear Weapons Opinion (n.76) paras.64-74; Justin McClelland, 'The Review Of Weapons In Accordance
With Article 36 Of Additional Protocol I' (2003) 85 International Review of the Red Cross, 397, which refers to a ‘two-pronged’ approach.
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Chapter notes, there are several weapons with autonomy that are prohibited, but there is no rule of international law that specifically prohibits AWS.
In terms of regulatory rules which all means of warfare must be built in accordance with, weapons which are of a nature to cause superfluous injury or unnecessary suffering,221 or are
inherently indiscriminate222 are always unlawful. At this point, it can be said that whether an AWS
causes a prohibited level of harm is related to the munitions used by the system rather than the autonomous nature of the system itself. Further, as with other advanced weapons, AWS are likely to be highly accurate and therefore capable of being used discriminately.223 As such, AWS are unlikely to
be per se unlawful.
But, AWS could still be used in unlawful ways. This is the same for any other lawful weapon. For example, whilst a rifle could be used to carry out an unlawful massacre, it could also be used to carry out lawful attacks.224 This is an important distinction to make, as conclusions about the
lawfulness of a weapon per se based upon a potential unlawful use of a weapon225 simply obfuscate
the debate226 and go beyond what the law requires. Indeed, the ‘Campaign to Stop Killer Robots’ is
221 Declaration Renouncing The Use, In Time Of War, Of Certain Explosive Projectile (adopted11 December
1868, entered into force 11 December 1868); ICRC Study, Rule 70.
222 ICRC Study, Rule 71.
223 William H Boothby, Weapons And The Law Of Armed Conflict (2nd edn, OUP, 2016) 69; Michael W. Meier,
'Lethal Autonomous Weapon Systems (LAWS): Conducting A Comprehensive Review' (2016) 30 Temple International and Comparative Law Journal, 119, 129; see also P.W. Singer, Wired For War (Penguin Press, 2009) 31.
224 Schmitt and Thurnher (n.2) 243-244.
225 HRW 2012 (n.227) 30; Noel Sharkey, 'Why Robots Should Not Be Delegated With The Decision To Kill' (2017)
29 Connection Science, 177, 178-181; Noel Sharkey, 'Saying ‘No!’ To Lethal Autonomous Targeting' (2010) 9 Journal of Military Ethics, 369, 378-381; Peter Asaro, 'On Banning Autonomous Weapon Systems: Human Rights, Automation, And The Dehumanization Of Lethal Decision-Making' (2012) 94 International Review of the Red Cross, 687, 696-699; Chengeta Article 36 (n.201) 91, 98.
226 Michael N. Schmitt, 'Autonomous Weapon Systems And International Humanitarian Law: A Reply To The
Critics' (2013) Harvard National Security Journal Features
Archived:<https://web.archive.org/web/20190917164404/https://harvardnsj.org/wp-
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arguing for an international prohibition on AWS,227 despite them not being unlawful per se. A weapon
cannot be considered unlawful per se simply because it is ‘novel or employs new technology’.228