Autonomous Weapon Systems
9 Harv. Nat'l Sec. J. 51 (2018)
Most imagine autonomous weapon systems as more independent versions of weapons already in use or as some kind of humanoid robotic soldier. But every analogy is false in some way, and all potential analogies for autonomous weapon systems—weapon, combatant, child solider, animal—misrepresent legally-salient traits and limit our ability to think imaginatively about this technology and anticipate how it might further develop, impeding our ability to properly regulate it. As is often the case when law by analogy cannot justifiably stretch extant law to address novel legal questions, new law is needed. The sooner we escape the confines of these insufficient analogies, the sooner we can create appropriate and effective regulations for autonomous weapon systems.
An Opportunity to Change the Conversation on Autonomous Weapon Systems
Lawfare (June 15, 2017) (with Frauke Renz)
164 U. Pa. L. Rev. 1347 (2016)
Unlike conventional weapons or remotely operated drones, autonomous weapon systems can independently select and engage targets. As a result, they may take actions that look like war crimes without any individual acting intentionally or recklessly. Absent such willful action, no one can be held criminally liable under existing international law.
Criminal law aims to prohibit certain actions, and individual criminal liability allows for the evaluation of whether someone is guilty of a moral wrong. Given that a successful ban on autonomous weapon systems is unlikely (and possibly even detrimental), what is needed is a complementary legal regime that holds states accountable for the injurious wrongs that are the side effects of employing these uniquely effective but inherently unpredictable and dangerous weapons. Just as the Industrial Revolution fostered the development of modern tort law, autonomous weapon systems highlight the need for “war torts”: serious violations of international humanitarian law that give rise to state responsibility.
Just Security (Sep. 6, 2016)
30 Temple Int’l & Comp. L.J. 53 (2016) (invited workshop contribution)
The broad support for “meaningful human control” of autonomous weapon systems comes at a familiar legislative cost: there is no consensus as to what this principle requires. This paper describes attempts to define the concept; discusses benefits of retaining imprecision in a standard intended to regulate new technology through international consensus; and argues for an interpretative floor grounded on existing humanitarian protections.
36 Cardozo L. Rev. 1837 (2015)
Notwithstanding increasing state interest in the issue, no one has yet put forward a coherent legal definition of autonomy in weapon systems, resulting in a confusing conflation of legal, ethical, policy, and political arguments. This article proposes that an “autonomous weapon system” be defined as “a weapon system that, based on conclusions derived from gathered information and preprogrammed constraints, is capable of independently selecting and engaging targets.” Contrary to the general consensus, such systems are not weapons of the future: they exist and are in use today.
This fact has two main implications: it undermines almost all legal arguments for a ban, as they are based on the false assumption that such weaponry could never be lawfully employed; and it significantly reduces the likelihood that a successful ban will be negotiated, as states will be reluctant to voluntarily relinquish otherwise lawful and uniquely effective weaponry. Accordingly, this article discusses how best to create successful international regulations.
40 N.C. J. Int’l L. 909 (2015) (invited symposium contribution)
Although many are concerned that autonomous weapon systems may make war “too easy,” no one has discussed how their use may affect the constitutional war power. When conventional weaponry required boots on the ground, popular outrage at the loss of American lives incentivized Congress to check presidential warmongering. But as human troops are augmented and supplanted by robotic ones, it will be politically easier to justify using force, especially for short-term military engagements. Like drones and cyber operations, autonomous weapon systems will contribute to the growing concentration of the war power in the hands of the Executive, with implications for the doctrine of humanitarian intervention.
in NATO Allied Command Transformation, Autonomous Systems: Issues for Defence Policy Makers (Andrew P. Williams & Paul D. Scharre, eds., 2015)
What law governs autonomous weapon systems? Those who have addressed this subject tend to focus on the law of armed conflict. But the international laws applicable to the development or use of autonomous weapon systems are hardly limited to rules regarding the conduct of hostilities. Other legal regimes—including international human rights law, the law of the sea, space law, and the law of state responsibility—may also be relevant to how states may lawfully create or employ autonomous weapon systems, resulting in a complex and evolving web of international governance.
Völkerrechtsblog (Apr. 15, 2015)