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Adapting the law of armed conflict to autonomous weapon systems

The post heading is the title of a new paper, just up in draft version at SSRN (free, easy download), by me, Daniel Reisner, and Matthew Waxman.  The paper argues that autonomous weapon systems are quite capable of being evaluated through the existing body of the law of armed conflict, and sweeping, radical proposals in the international NGO community to ban the whole category of AWS preemptively are a very bad idea.  I will be posting over the next while on various aspects of the topic generally, but for now, here is the abstract to this new paper.

As increasingly automated – and in some cases fully autonomous – weapon systems enter the battlefield or become possible, it is important that international norms to regulate them head down a path that is coherent and practical. Contrary to the claims of some advocates, autonomous weapon systems are not inherently illegal or unethical. The technologies involved potentially hold promise for making armed conflict more discriminating and causing less harm on the battlefield. They do pose important challenges, however, with regard to law of armed conflict rules regulating the use of weapons. Those challenges demand international attention and special processes for adapting existing law to meet those challenges.

Rather than seeking to impose, up front, a new set of prohibitory rules or seeking to suspend development of autonomous weapon systems pending a comprehensive agreement on rules to govern them, international regulation of autonomous weapons systems should begin with the premise that the law of armed conflict provides an appropriate general framework. States should work to build on that framework through continually-improving interpretive standards and agreed-upon best practices. We propose a three-tiered approach to emerging automation and autonomous weapon technologies: (i) an international agreement that makes clear the applicability of baseline law of armed conflict rules and that codifies standards, practices, and interpretations that states have converged upon over a long period of actual development of systems, in tandem with discussion among states informally, and informed by sufficiently transparent and open sharing of relevant information; (ii) state-level development and inter-state discussion of weapon review practices, tailored to these specific weapons and their battlefield environments; and (iii) close coordination among weapons designers, developers, manufacturers, and military end-users of these systems, with lawyers responsible for legal weapons review, at each granular stage of design, development, and testing. The integration of these three levels can assist to appropriately and realistically shape advancing military technologies while improving adherence to core law of armed conflict principles.

The paper will appear in the International Legal Studies journal of the US Naval War College later this year in finalized form.  Matt Waxman and I have been frequent co-authors on the topic of autonomous weapon systems (AWS), and we are joined in this paper by a former senior law of war lawyer for the government of Israel, Daniel Reisner, now a partner in national security and national security technology law, among other things, at a leading Tel Aviv law firm.  The paper arises out of a conference on AWS held at the Naval War College last year, organized by the indefatigable and extraordinarily knowledgeable faculty of the international law department, particularly professors Col. Tim Kelly and Michael Schmitt.

Kenneth Anderson teaches law at Washington College of Law, American University; he is also a non-resident senior fellow of the Brookings Institution, member of the Hoover Institution Task Force on National Security and Law, and senior fellow of the Rift Valley Institute.

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