Defending the Boundary: Constraints and Requirements on the Use of Autonomous Weapon Systems Under International Humanitarian and Human Rights Law

Geneva Academy Briefing no 9 (2017)

37 Pages Posted: 24 May 2017

See all articles by Maya Brehm

Maya Brehm

Article 36; Geneva Academy of International Humanitarian Law and Human Rights

Date Written: May 1, 2017

Abstract

The focus of scholarly inquiry into the legality of autonomous weapon systems (AWS) has been on compliance with IHL rules on the conduct of hostilities. Comparably little attention has been given to the impact of AWS on human rights protection. This paper aims to close this gap and to support multilateral policy discussions on AWS. It examines the requirements and constraints that IHRL places on the use of force by means of an AWS, both in relation to the conduct of hostilities and for law enforcement purposes, in times of peace as well as during armed conflicts. The use of a ‘sentry-AWS’ to control a boundary, secure a perimeter or deny access to an area, for example along an international border – a possible application envisaged by proponents of AWS – forms the backdrop to the legal discussion.

The paper finds that, although AWS tend to be portrayed as ‘weapons of war’, IHL would never be the sole, and in many instances, it would not be the primary legal frame of reference to assess the legality of their use. Consideration of IHRL requirements and constraints on the use of AWS must therefore be a part of the debate on AWS, including in the framework of the 1980 Convention on Certain Conventional Weapons (CCW).

Where IHL permits the ‘categorical’ targeting of security measures, including the use of force, there is scope for the lawful use of an AWS. However, due to procedural requirements and the need to individuate the use of force, this scope is extremely limited under IHRL. IHRL requirements and constraints apply to the use of an AWS in an armed conflict in so far as they are not displaced by IHL.

To safeguard human dignity and human rights, human agents must remain involved in algorithmic targeting processes in a manner that enables them to explain the reasoning underlying algorithmic decisions in concrete circumstances. This is essential to ensuring the availability of an effective remedy, accountability for the use of force and for maintaining public confidence in states’ adherence to the rule of law, in times of peace as well as war.

Keywords: Autonomous weapon system, International humanitarian law, International human rights law, Arms control

Suggested Citation

Brehm, Maya, Defending the Boundary: Constraints and Requirements on the Use of Autonomous Weapon Systems Under International Humanitarian and Human Rights Law (May 1, 2017). Geneva Academy Briefing no 9 (2017), Available at SSRN: https://ssrn.com/abstract=2972071 or http://dx.doi.org/10.2139/ssrn.2972071

Maya Brehm (Contact Author)

Article 36 ( email )

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London, EC2A 3AY
United Kingdom

Geneva Academy of International Humanitarian Law and Human Rights ( email )

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