The dehumanization of international humanitarian law: legal, ethical, and political implications of autonomous weapon systems.

• Author: Wagner, Markus
• Position: Abstract through III. Legal Challenges to Autonomous Weapon Systems C. The Principle of Proportionality, p. 1371-1399

ABSTRACT

In the future, a growing number of combat operations will be carried out by autonomous weapon systems (AWS). At the operational level, AWS would not rely on direct human input. Taking humans out of the loop will raise questions of the compatibility of AWS with the fundamental requirements of international humanitarian law (IHL), such as the principles of distinction and proportionality, as well as complicate allocation of responsibility for war crimes and crimes against humanity.

This Article addresses the development toward greater autonomy in military technology along three dimensions: legal, ethical, and political concerns. First, it analyzes the potential dehumanizing effect of AWS with respect to the principles of distinction and proportionality and criminal responsibility.

Second, this Article explores, from an ethical perspective, the advantages and disadvantages of the deployment of AWS independent of legal considerations. Authors from various fields have weighed in on this debate, but oftentimes without linking their discourse to legal questions. This Article fills this gap by bridging these disparate discourses and suggests that there are important ethical reasons that militate against the use of AWS.

Third, this Article argues that the introduction of AWS alters the risk calculus of whether to engage in or prolong an armed conflict. This alteration is likely to make that decision politically more palatable and less risky for the political decision makers.

TABLE OF CONTENTS I. INTRODUCTION II. THE ROAD TO AND DEGREES OF AUTONOMY A. Historical Development B. Remote Control and Automation as Stepping-Stones Toward Autonomy III. LEGAL CHALLENGES TO AUTONOMOUS WEAPON SYSTEMS A. Introduction B. The Principle of Distinction C. The Principle of Proportionality D. AWS and Individual Responsibility IV. ETHICAL CHALLENGES TO AUTONOMOUS WEAPON SYSTEMS A. Dehumanization Through Removal of Individual from the Battlefield? B. Ethical Robots? V. POLITICAL CHALLENGES TO AUTONOMOUS WEAPON SYSTEMS VI. CONCLUSION I. INTRODUCTION

In a seminal article in 2000, Theodor Meron, the former President of the International Criminal Tribunal for the former Yugoslavia, expressed his hope that the direction of international humanitarian law could undergo a development toward conducting combat in a more humane fashion. (1) This assessment was based on the inroads that were made--maybe only apparently--in the aftermath of the human rights tragedies in Rwanda and the former Yugoslavia. Particularly, Meron's hope was based on the installation of international criminal tribunals in the 1990s. Since the publication of Meron's article, numerous new conflicts have broken out. The assumptions underlying warfare have been put into question. The face of modern conflict has undergone considerable change, best evidenced by the rise of "asymmetric warfare." (2)

The technology used in armed conflict has developed significantly, increasingly allowing certain types of combat operations to be carried out from a distance. This is certainly true for the much-debated use of unmanned aerial vehicles (UAVs), commonly referred to as drones. UAVs have taken on a variety of roles in the military: their use ranges from carrying out reconnaissance missions, to carrying out armed attacks. (3) The operators for these missions are very often located thousands of miles away and conduct these missions via remote control. (4) Militaries around the world use or develop these capabilities not only with respect to UAVs, but also with respect to sea and land warfare. Regardless of whether such systems operate in the air or outer space, at sea, or on the ground, current versions of unmanned systems (UMS) share one characteristic: they operate with direct human input and human operators make the very large majority of tactical decisions.

More fundamental changes are underway with the current generation of UAVs, and these changes represent a stepping-stone toward higher degrees of autonomy. A recent report by the U.S. Department of Defense (DoD) specifically states that "the level of autonomy should continue to progress from today's fairly high level of human control/intervention to a high level of autonomous tactical behavior that enables more timely and informed human oversight." (5) This means that, unlike current systems that operate in an automated manner, future systems will not only follow predetermined routes or hit a pre-programmed target, but will also operate in a manner that allows the systems to select and acquire a target, choose a route to reach the target area, decide whether to deploy weapons, and, if so, decide which weapon system to deploy. (6) Thus, AWS7 are designed to carry out missions with considerably less human input than is the case today.

If and when these technological developments will come to fruition is a matter of debate among technologists and experts from other fields, and is crucial to this Article. There are several reasons supporting the prediction that autonomy will increase in a number of areas beyond the military realm, in such disparate fields as transportation, logistics, medicine, as well as the care of children and the elderly. Factors enabling the development of autonomous systems include the establishment of an industry devoted to conducting research and development, a push by investors within this industry, and a proliferation of ideas for how to put autonomous systems to use. (8) This will likely be an incremental development, rather than a sudden appearance of AWS in tomorrow's battle space. (9) Whether it is "inevitable and relatively imminent" (10) remains to be seen.

These developments have the potential to change the assumptions on which IHL is based and alter fundamentally the perceptions of armed conflict. (11) Part II of this Article retraces the development toward AWS and differentiates future generations of AWS from systems that are currently deployed. Part III analyzes the compatibility of AWS with some fundamental principles of IHL, namely the principle of distinction, the principle of proportionality, and personal responsibility. Part III then argues from a legal perspective that, given current technology, AWS could be employed in only a very narrow set of situations Parts. IV and V provide context to the legal consideration and deal with the ethical (12) and political (13) ramifications of the deployment of AWS, respectively. Through widespread use of AWS, personal responsibility may be diluted to the point that deterrent effects--with respect to not only individual decisions over a particular mission but also the decision whether to engage in armed conflict--may be significantly reduced. Part VI contains concluding observations and recommends that fully autonomous systems not be deployed until the country developing a particular system has ascertained that the legal requirements under international law have been met and that the ethical and political issues have been satisfactorily answered in ways that would generally be supported by the international community.

2. THE ROAD TO AND DEGREES OF AUTONOMY

   1. Historical Development

      The end of the nineteenth century saw the first efforts to develop UMS. Among the first to develop UMS was Nikola Tesla, who patented and built the first remotely operated boat capable of carrying an ordinance. (14) Tesla's invention was ahead of its time by almost a century and was never put into service. (15) Subsequent developments included the so-called Kettering Bug, a pilotless biplane that was capable of carrying explosives and was developed in the aftermath of World War I (16) and Goliath, a cable-operated tracked vehicle carrying an explosive ordinance that was deployed by the German military in WW II. (17) It became clear at the time that UMS would be developed for more widespread use in future combat operations. According to U.S. Army Air Corps General Henry "Hap" Arnold, while World War II was characterized by "heroes flying around in planes," future combat operations "may be fought by airplanes with no men in them at all." (18)

      Arnold's vision would not come to fruition for another half century. In the interim, innovations such as the Global Positioning System (GPS) in the area of telecommunication made possible the development of devices that are operated from increasing distances. This led to the development and subsequent widespread use of UMS--first as airborne vehicles, followed by land-based and naval devices. (19) The modern incarnations of UAVs were first used in combat operations in the 1980s. During operations in Lebanon's Bekaa Valley in 1982, the Israel Defense Forces deployed UAVs in two distinct roles: for intelligence purposes, and...