The Soldier as an Autonomous Weapon
Cornell Law Review Online, Forthcoming
12 Pages Posted: 12 Nov 2019 Last revised: 24 Aug 2020
Date Written: November 1, 2019
From a legal perspective, what is the difference between human soldiers and autonomous weapon systems? Eliav Lieblich and Eyal Benvenisti answer that in combat, soldiers are under the legal duty to exercise constant administrative discretion while autonomous weapons cannot exercise such discretion. I argue that in making this argument, Lieblich and Benvenisti fail to understand the concept of an order. Following Joseph Raz’s discussion of orders as exclusionary reasons, I argue that the entire point of an order is to negate the need of soldiers receiving orders to exercise administrative discretion. For this reason, a soldier who commits a crime while obeying an order may avoid criminal liability based on the criminal defense of obedience to superior orders, even if at the time the order was given, it could not withstand the scrutiny of administrative law. Soldiers need to disobey orders only in cases of manifestly unlawful orders. In order to detect manifestly unlawful orders, soldiers are not required to exercise discretion according to administrative law tests. A sound reading of the manifestly unlawful order doctrine shows that the difference between soldiers and autonomous weapons is not to be found in the realm of reason, but in the realm of emotions. The rise of military lawyers’ involvement in scrutinizing orders demonstrates this point. With lawyers’ scrutiny, soldiers are required to obey orders that were legally cleared in terms of administrative law. Hence, according to Lieblich and Benvenisti, in a world in which all orders are cleared by lawyers, the difference between soldiers and autonomous weapons would not exist. Yet it does exist, and it is based on rejection of orders that have been cleared in terms of administrative law yet still pierce the human eye.
Keywords: autonomous weapon, manifestly unlawful orders, law of war, defense of Obedience to Superior Orders
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