Automating the right stuff? The hidden ramifications of ensuring autonomous aerial weapon systems comply with international humanitarian law.

• Date: 22 December 2014
• Author: DeSon, Jason S.

1. INTRODUCTION II. "THE NEED FOR SPEED!" WHO WILL THE ROBOTIC "MAVERICK" BE? A. Autonomous Weapon Systems: Defining the Robot Pilot B. The Role of Fighter Pilots 1. Counter air Missions 2. Counterland Missions C. The Role of the Robot Pilot 1. Performing Counterair and Counterland Without Getting Tired or Task-Saturated 2. Performing Counterair and Counterland Faster Than the Human Pilot III. "SHALL WE PLAY A GAME?" TEACHING IHL TO THE ROBOT PILOT A. How Will the Robot Pilot Learn? B. What Will the Robot Pilot Learn? 1. Legal Principles When Attacking Military Objectives on the Ground (a) Pre-Planned Attacks on Ground Targets: Robots and Deliberative Targeting (b) Immediate Attacks on Ground Targets: Robots and Dynamic Targeting 2. Legal Principles When Attacking Military Objectives in the Air IV. "YOU ARE TERMINATED!" LEGAL PROBLEMS WITH THE ROBOT PILOT ENGAGING TARGETS A. Perfecting Proportionality? The Robot Pilot and Precision Engagement 1. The Predator Pilot, The Rocket Man, and the Old Man 2. Policy Becoming Law 3. The Robot Pilot Engages the Rocket Man B. Perfecting Discrimination? The Robot Pilot and Target Identification 1. The Robot Pilot and the Civilian Airliner 2. The Robot Pilot and BVR Engagements C. Automating the Rendulic Rule? The Robot Pilot and Reasonableness V. "WHAT DO YOU THINK YOU'RE DOING, DAVE?" THE ROBOT PILOT AND SELF DEFENSE A. The Standing Rules of Engagement and the Inherent Right to Self-Defense B. Robot Self-Defense in Air-to-Air Engagements C. Robot Self Defense in Air-to-Ground Engagements VI. CONCLUSION Persons who authorize the use of, direct the use of or operate autonomous and semi-autonomous weapon systems must do so with appropriate care and in accordance with the law of war, applicable treaties, weapon system safety rules, and applicable rules of engagement (ROE). (1)

   When the showdown came--and the showdowns always came--not all the wealth in the world or all the sophisticated nuclear weapons and radar and missile systems it could buy would take the place of those who had the uncritical willingness to face danger, those who, in short, had the right stuff. (2)

1. INTRODUCTION

   [W]e're not against high tech. What we're really against is unsuitable complexity or technology that doesn't suit the mission. (3)

   On July 10, 2013, the U.S. Navy's X-47B Unmanned Combat Air System (UCAS) successfully landed on the aircraft carrier USS George H. W. Bush off the coast of Virginia. (4) The fact that an aircraft landed on a ship may not sound that impressive in and of itself, but no human was in control of this particular aircraft. The drone landed all by itself, which may represent the first small step toward fully autonomous aerial weapon systems. The giant leap to an aircraft that can engage targets on its own could be right around the corner. The idea of robots fighting our wars for us has long since been the stuff of science fiction. Indeed, no such fully autonomous weapon systems capable of complex warfighting decision making like those seen in the films Terminator or Stealth are known to exist at this time. (5) However, it is quite possible that with the recent performance of the X-47B, their development and employment is in the not-so-distant future. Indeed, the X-47B is already equipped with a (4,500) pound twin internal weapons bay. (6)

   In 2013, two high-profile documents called for either a moratorium on the development or an outright ban of autonomous weapons before they can be developed. (7) Interestingly, the International Committee of the Red Cross (ICRC) has not joined this call yet. (8) The focus of the criticism contained in these writings is that such autonomous weapon systems cannot comply with International Humanitarian Law (IHL). (9) In May 2014, a Meeting of Experts on Lethal Autonomous Weapons Systems (LAWS) took place under the auspices of the Convention on Certain Conventional Weapons (CCW) to discuss "the questions related to emerging technologies in the area of lethal autonomous weapons systems." (10) At this meeting, the International Committee of the Red Cross (ICRC) asked the following in its prepared statement: "How can the development and deployment of the weapon system be lawful if there is no guarantee that it will perform in accordance with IHL?" (11) While this is an important issue to address, the greater concern posited in this article is not whether humans can develop such weapon systems that guarantee compliance with IHL, but rather if humans should develop such weapon systems that guarantee compliance with IHL. The danger being the increased reliance on machines to do the fighting and an unnecessary restriction of IHL principles to the point where humans may not be able to fully comply with them. What happens when human compliance with IHL cannot be guaranteed?

   Assuming that such weapon systems are not outright banned, this article exposes the hidden legal dangers of guaranteeing compliance with IHL by focusing on the practical legal consequences of replacing the human pilot with a robot pilot. As the number of U.S. Air Force drones (the Air Force currently prefers the term, "remotely piloted aircraft" or "RPA") grows, human pilots are disappearing from the planes they fly, but not completely from the controls (hence the preference for the "RPA" label). This has generated a separate debate over the ethicality and legality of current RPA strikes. (12) What happens when those pilots are completely removed from the controls? This article will attempt to answer that question by identifying at least three dangers of replacing the human pilot with a robot pilot. The first involves how the robot pilot will be programmed to fully comply with IHL. Flow exactly will this done? Can IHL principles be converted into formulas for the machine? Will excessive casualties be limited to a certain number so the machine knows when to engage or not? The second danger is an increased restriction on IHL principles themselves. Just as current drone warfare has arguably led to the demand for more precise engagements and a heightened restriction on the IHL principle of proportionality, the use of robot pilots may result in even higher standards for perfection in air-to-air and air-to-ground engagements with zero tolerance of collateral damage and possibly an end to the Rendulic Rule itself. (13) Third and finally, the law governing the use of force itself may be fundamentally altered.

   Ultimately, the practical effort to make robot pilots fully comply with IHL may not only unnecessarily restrict the current IHL as it applies to aerial warfare, but also restrict the commander's ability to accomplish the mission. The quotation at the start of this introduction from the legendary Colonel Robert Boyd, one of America's greatest fighter pilots, may best describe the true danger of the robot pilot; it will simply be a high-tech weapon that will be too unsuitably complex to adequately comply with IHL and as a result it will not fit the mission.

2. "THE NEED FOR SPEED!" WHO WILL THE ROBOTIC "MAVERICK" BE?

   Fighter pilot is an attitude. It is cockiness. It is aggressiveness. It is self-confidence. It is a streak of rebelliousness, and it is competitiveness. (14) In the film Top Gun, the character Maverick makes the following remark during a post-hop debrief, "You don't have time to think up there. If you think, you're dead." (15) When he said this, Maverick not only highlighted a very real fact of life for fighter pilots, but he may also have identified the single most important limitation on human pilots that a robot pilot can possibly overcome. A fighter pilot must constantly maintain "situational awareness" (16) to track and engage targets and they must do it while "zipping around at rifle-bullet speeds." (17) This section defines autonomous weapons systems, outlines the role of fighter pilots, and the anticipated role of robot pilots; as those roles are described, it becomes clear that "[i]t takes more than just fancy flying." (18)

   A. Autonomous Weapon Systems: Defining the Robot Pilot

   It may take longer than the visionaries think, but the pilot in the cockpit is already an endangered species. (19) The Department of Defense (DoD) defines an autonomous weapon system as:

   A weapon system that, once activated, can select and engage targets without further intervention by a human operator. This includes human-supervised autonomous weapon systems that are designed to allow human operators to override operation of the weapon system, but can select and engage targets without further human input after activation. (20) The key element of this definition, and the focus of this article, is the ability of the robot pilot to not only fly a plane, but also its ability to select and engage targets on its own. Currently, the armed RPAs in the U.S. Air Force arsenal still rely on human operators to select and engage targets. (21) These operators are pilots and many formerly occupied the cockpits of manned aircraft like the F-16 Viper (officially the Fighting Falcon) or the F-15 Eagle. (22) The next section will focus on the role fighter pilots currently perform in air operations. Arguably, it is these roles that the robot pilot of the future might be called upon to replicate. The focus will then turn to how robot pilots might perform those functions as good as or better than human pilots.

   B. The Role of Fighter Pilots

   [W]e experienced the fundamental realization that we, the pilots, were the weapons. The success or failure of fighter operations lay with the pilot. This was one of the many things that made a fighter pilot different from other types of military aviators. The jet was the horse to get us to the fight, but the fighting was up to us. (23) So what exactly do fighter pilots do and what would we be calling on robot pilots to do in their place? There are several missions that U.S. Air Force fighter pilots perform. A full exploration of all those...