18 Pages Posted: 7 Jan 2016 Last revised: 8 Feb 2016
Date Written: January 5, 2016
This short essay seeks to reorient — and broaden — the existing discourse on international humanitarian law (IHL) and autonomous weapons. Written for a conference co-sponsored by the International Committee of the Red Cross, it employs a contextual analysis to pose new questions (and reformulate others) regarding the relationship between IHL and autonomous weapon systems. It asks six questions: (1) Who should IHL regulate in this context? Does IHL only regulate States and individuals, or can it provide rules for autonomous weapon systems themselves? (2) What types of autonomous technology should IHL regulate? Should the current focus on kinetic weapons expand to encompass cyber operations? (3) Where should this discourse occur? How do the trade-offs involved in locating legal discourse in a particular forum impact the elaboration of IHL vis-à-vis autonomous systems? (4) When should IHL regulate autonomous weapons? Should IHL ban autonomous weapons now or allow its regulation to emerge incrementally over time? Can IHL only apply when an autonomous system’s operations constitute an attack, or should IHL’s application reach more broadly? (5) How should IHL regulate autonomous weapon systems? Are prohibitions better or worse than prescriptive authorities? Should IHL regulate via rules, standards, or principles? Finally, (6) why should IHL regulate autonomous weapons? How can IHL best prioritize among its foundations in military necessity, humanitarian values, and the practical reality that the development of such systems now appears inevitable. In asking these questions, my essay offers a critical lens for gauging the current scope (and state) of international legal discourse on this topic. In doing so, it sets the stage for new lines of inquiry that States and other stakeholders will need to address to fully understand the perils — and potential — of increasing autonomy in technology for IHL and the international lawyers who practice it.
Keywords: autonomous weapons, autonomous lethal weapons, lethal autonomous weapons, international humanitarian law, IHL, laws of armed conflict, drones, killer robots, cybersecurity, cyber operations, cyberwar
JEL Classification: K19, K33
Suggested Citation: Suggested Citation
Hollis, Duncan B., Setting the Stage: Autonomous Legal Reasoning in International Humanitarian Law (January 5, 2016). Temple International & Comparative Law Journal, Forthcoming; Temple University Legal Studies Research Paper No. 2016-05. Available at SSRN: https://ssrn.com/abstract=2711304
By Eric Jensen