1. Introduction
It is too early to speak about ‘the arms race’ between states in the context of autonomous weapons (AWs). However, the largest arms-producing states (United States, United Kingdom, France, Russia, Italy, Japan, Israel, Germany, South Korea, India and China) already assume that ‘robotic technologies will contribute to shaping the future of warfare and that the acquisition of such technologies, particularly unmanned aerial systems (UASs), should be a priority’.Footnote 1 The pioneer here is undoubtedly the United States: it started to work on the employment of artificial intelligence on the battlefield back in the 1980s. It has since gone a long way in the development of sophisticated technologies, including AWs, in its strategic policies. In 2016, the US Deputy Secretary of Defense announced that the ‘technological sauce’ of the Third Offset Strategy ‘is going to advance in Artificial Intelligence (AI) and autonomy’.Footnote 2
Autonomous weapons are considered to have especially high value when used in missions that require speed in decision making, analysis of heterogeneity and volumes of data, when the mission is dangerous, or when persistence and endurance are required.Footnote 3 Whether these functions will be used for defensive or offensive purposes depends on the tasks for which the weapon is used, the nature of their application and their reliability.Footnote 4 The aim of this article is to focus on the application of AWs in defensive systems and, consequently, to assess the conditions of the legality of their employment from the perspective of the right to self-defence. How far may humans exert control over such AWs? Are there any legal constraints in using such weapons for the purpose of self-defence? How does their use fit into the traditional criteria of self-defence? It is the aim of this article to answer these questions.
Before moving on to the merits, it is also important to define the scope of the article. In general, it may be said that AWs ‘select and apply force to targets without human intervention’.Footnote 5 That definition is broad enough to allow ‘consideration of the full range of relevant weapon systems, including existing weapons with autonomy in their critical functions that do not necessarily raise legal issues’.Footnote 6 Thus, this description includes (i) supervised AWs, using which humans oversee all the tasks performed by machines, (ii) semi-autonomous weapons, using which ‘the machine performs a task and then stops and waits for approval from the human operator before continuing’, in addition to (iii) fully autonomous weapons, using which a human operator pre-programmes the machine but does not choose specific targets.Footnote 7 Once the machine is activated, it will detect and engage targets on its own on the battlefield. Human operators are not able to supervise the operation and correct the action of the machine quickly enough in the event of the failure of the system. That is why this type of control is also known as ‘human out of the loop’.Footnote 8
The role of humans in the targeting process may influence the legal acceptability of a particular weapons system;Footnote 9 this is why the aim of this article is to focus on this kind of AW where the use of the weapon has the lowest degree of human involvement. As a result of ever-evolving technology, it is difficult to create a comprehensive definition of an AW; it is rather understood that ‘[p]urely technical characteristics such as physical performance, endurance or sophistication in targeting acquisition and engagement’ are not sufficient to label a weapon as fully autonomous.Footnote 10 ‘Long-term developments regarding autonomous weapons are largely dependent on advances in the field of artificial intelligence’.Footnote 11 There are three types of artificial intelligence: (i) limited artificial intelligence, the one most widely used today; (ii) artificial general intelligence, ‘supposedly on a par with human intelligence’;Footnote 12 and (iii) artificial superintelligence, which ‘surpasses human intelligence’.Footnote 13 Even if some militaries and experts express doubts about whether fully autonomous weapons which use artificial general intelligence and artificial superintelligence already exist today,Footnote 14 they agree that the era of such weapons is quickly approaching.Footnote 15 Conversely, fully autonomous weapons with limited artificial intelligence are currently broadly used – for instance, in systems used for air defence. They include ground- and ship-based installations against missiles, rockets, artillery, mortars, aircraft, unmanned systems and high-speed boats. Examples include the Dutch Goalkeeper Close-in Weapon System, the Israeli Iron Dome, the Russian Kashtan Close-in Weapon System, the German Nächstbereichschutzsystem MANTIS, the US Phalanx Close-in Weapon System, and the Chinese Type 730 and Type 1130 Close-in Weapon Systems.Footnote 16 Such understanding of fully autonomous weapons will be adopted in the latter part of the article.Footnote 17
The article claims that there are no legal grounds to exclude AWs in advance from being employed to exercise the right to self-defence. In general, the legality of the use of AWs depends on how they were pre-programmed by humans and whether they were activated under proper circumstances. Because designers of AWs are not able to envisage all conditions under which the weapons will work, it is possible that the use of AWs will result in breaches of the criteria of necessity and proportionality. Moreover, the vagueness of the concept of anticipatory self-defence and the unpredictability of AWs in action mean that this type of weapon should not be employed for the purposes of the anticipatory strike, for the reasons that it is likely to lead to a violation of international law.
This article is divided into three parts. The first (Section 2) discusses how human control over AWs affects the legality of their use. Secondly, the article analyses (in Section 3) the criteria of necessity and proportionality during the exercise of the right to self-defence in the context of the employment of AWs. Finally, the use of AWs for anticipatory, pre-emptive, or preventive self-defence is investigated (Section 4).
2. The impact of human control over the development, deployment and operation of AWs
The acceptability of the legality of the use of AWs depends, mostly, on the degree of human control that is exercised over them in the course of three different stages: the development, deployment, and operational phases.Footnote 18 It is the aim of this section to analyse these phases from the perspective of the human and machine interactions that occur during each of these steps and relate them to requirements set by jus ad bellum.
2.1. Human control during the development phase
During the first phase, humans carry out ‘an extensive planning … in which they set the overall goals, gather intelligence, select and develop targets, identify the most suitable weapon, and decide in what circumstances and under what preconditions to employ a particular weapon’.Footnote 19 In short, this phase consists of pre-programming the AW.
It seems that it is this phase, rather than the operational phase, that is critical for the legality of the employment of AWs.Footnote 20 Against some myths spread by opponents of AWs, the machine does not take decisions discretionally; its actions are the consequence of the decisions taken by humans in the development phase.Footnote 21 For instance, it is sometimes submitted that AWs ‘select’ their targets, while it would be more precise to state that they only ‘detect’ them. They are equipped with a target-identification library and various sensor capabilities. Only when their sensors recognise the target as matching the predefined criteria may they fire upon it.Footnote 22 In the same vein, AWs do not ‘apply legal norms’ but ‘they are simply implementing a process that human commanders anticipate in their assessment of the legality of a planned attack’.Footnote 23 What is obviously non-programmable ‘is conscience, common sense, intuition, and other essential human qualities’.Footnote 24 However, some claim that AWs may be much stricter in complying with international law than humans. This is because they are deprived of emotions and other mental and cognitive constraints characteristic of people.Footnote 25
Thus, during the development process, humans should ensure that the machine will operate in compliance with both jus ad bellum and jus in bello requirements. Subsequently, an AW should be tested in a realistic environment in order to ascertain how the machine acts in varying circumstances and the risks that are connected with its deployment.Footnote 26 The conclusions obtained during the tests will be of utmost importance for the human operators of the AW in the next phase.
2.2. Human control during the deployment phase
In the second phase, the human operator decides on the activation of the AW. This phase is burdened with particular responsibility as, after activation, a human will no longer be able to intervene in the functioning of the AW. Thus, the time, location and circumstances of the activation of the weapon may be crucial for both combatants and the civilian population. For this reason, any activation of an AW should be preceded by a carefully planned scheme that allows for the avoidance of collateral damage.Footnote 27
The human operator who activates an AW needs to be ‘well trained and have a good understanding of the system and how it interacts with the environment in which it is deployed’.Footnote 28 This operator should be aware of the technical and other limitations of a particular AW. Moreover, the operator needs to be able ‘to foresee what might happen without being able to predict precisely what will happen’.Footnote 29 Obviously, the predictability of the given weapon also performs a huge role as it allows the human operator to assess the advantages and disadvantages of the deployment of an AW in the given environment. A combination of training, an understanding of the predictability of the weapon, in addition to the analysis of all available information, should allow a human operator to decide whether a specific case of the use of an AW would not violate international law.Footnote 30
2.3. Human control in the operational phase
It is predominantly the third phase that decides about the full autonomy of a weapon: that is, a weapon is fully autonomous when there is minimal or no direct human control at this stage. It means that humans have pre-programmed the weapon and decided when to launch it but the weapons system autonomously decides every time whether to use force against a specific target.Footnote 31
Some experts and organisations promote the term ‘meaningful human control’.Footnote 32 As explained by Tim McFarland and Jai Galliott:Footnote 33
The idea is that some form of human control over the use of force is required, and that human control cannot be merely a token or a formality; human influence over acts of violence by a weapon system must be sufficient to ensure that those acts are done only in accordance with human designs and, implicitly, in accordance with legal and ethical constraints.
The ‘meaningful human control’ is of special significance for the operational phase, after the AW is activated. As the proponents of this concept claim, human control is indispensable additionally over the process of the use of force by AWs, to ensure full compliance of machine actions with international law. However, it is hard to explain how the exercise of ‘meaningful human control’ could be helpful in cases where the violation of international law is the result of an intentional human act or a malfunction, or when the unavoidable collateral damage occurs. Importantly, none of these wrongs is unique for AWs, as the same kind of violation may occur when a human operator is using a fully controllable weapon.Footnote 34
2.4. Conclusions
The degree of human control over AWs at different stages of their usage determines both the scope of the autonomy of these weapons, as well as the acceptance of the legality of their deployment. Needless to say, human involvement in the development phase is indispensable. In general, the data pre-programmed into the AW at this stage and the decision to activate the weapon under given circumstances resolve the issue of whether the use of force by the machine will comply with international law. The action of the machine in the operational phase is purely the consequence of the human choices made in the two previous stages. Thus, it is not the involvement of the human in the operational stage that decides on the legality of the AW employment, and it can hardly mitigate the wrongful decisions made earlier.
3. The application of the criteria of necessity and proportionality in cases of the use of autonomous weapons
Although Article 51 of the UN CharterFootnote 35 does not mention that ‘[t]he submission of the exercise of the right of self-defence to the conditions of necessity and proportionality is a rule of customary international law’,Footnote 36 the two criteria are inseparably linked, partially overlap, and cannot be reviewed separately.Footnote 37 This is so for the reasons that, ultimately, they have a joint objective: ‘that defensive action should be constrained to the halting and repelling of an attack, and exceptionally … to the preventing of their reoccurrence’.Footnote 38
In general terms, one may say that the principle of necessity responds to the question whether a specific measure is necessary to achieve a legitimate purpose of self-defence, whereas the principle of proportionality answers the question how far a specific measure may go in order to achieve such a purpose.Footnote 39
However, to examine how the criteria of necessity and proportionality are applicable to the case of AWs, in-depth analysis is indispensable.
3.1. Necessity and proportionality – general remarks
3.1.1. Necessity
Starting from the characteristics of necessity, one has to observe that, to comply with this criterion, self-defence has to be the ultima ratio. To put it differently, there must be ‘no choice of means’;Footnote 40 a state must have no other means of halting an attack other than recourse to armed force.Footnote 41 Thus, this condition is not fulfilled and, consequently, the self-defence is illegal if a state could halt an attack by using peaceful measures such as an admonition, protest or diplomatic representation, could offer arbitration, or use the procedure of settling disputes provided by an international organisation to which it belongs.Footnote 42
Obviously, one has to agree with Oscar Schachter when he writes that ‘[t]here is no legal rule that a state must turn the other cheek because of its obligation under Article 2 (3) to seek peaceful settlement’.Footnote 43 It may be the case that an armed response is the only viable option to repel an armed attack, and there is ‘no reasonable prospect of the efficacy of peaceful measures of settlement’.Footnote 44
The second component is the requirement of ‘immediacy’,Footnote 45 which refers to the time when a state, responding to an attack, launches its action of deterrence. ‘[T]he longer the period between the armed attack and the response, the more pressure there will be on the State concerned to resolve the matter by peaceful means’.Footnote 46 Moreover, the more time that elapses between the armed attack and the response to it, the harder it will become to distinguish between self-defence and illegal reprisals if the state still decides to react militarily.Footnote 47
Thirdly, there is the criterion of exclusive purpose: the measures undertaken must be of a genuinely defensive character, ‘that is, designed to put an end to an armed attack’.Footnote 48 One may bind this criterion with the requirement to choose an appropriate target to repel an armed attack.Footnote 49 States, when deciding on self-defence actions in smoke-filled rooms, sometimes choose to attack not the immediate source of an armed attack against the state but objects on the territory of the adversary that are especially sensitive or valuable to that state.Footnote 50 However, the use of force for a purpose other than that of a defensive response amounts to a violation of international law. For this reason, this criterion also needs to be carefully obeyed.
3.1.2. Proportionality
The function of proportionality ‘is to serve as a constraint on the scale and effects of defensive action’.Footnote 51 However, one may approach the question of the scale and effects of self-defence in two ways. The first position holds that ‘there must be some sort of equation between the gravity of the armed attack and the defensive response, in terms of relative casualties, damage caused and weapons used’ (quantitative approach).Footnote 52 The other view is that ‘proportionality must be evaluated by reference to the aim of the defensive action’ (functional approach).Footnote 53 Tom Ruys suggests, however, that the most appropriate position would be that ‘any defensive action must be reasonably proportionate in scale and nature to the armed attack that provoked it’.Footnote 54 Any deviation from this line of reasoning needs to be justified by the specific objective of the defensive action.Footnote 55 That is the approach that will be adopted in this article.
What should be taken into account in assessing proportionality? Firstly, it concerns the choice of methods of warfare.Footnote 56 Importantly, proportionality does not mean that the victim of an armed attack must respond with exactly the same weapon that the attacker used in order to satisfy this criterion. On the contrary, in theory there are no constraints preventing the victim from moving ‘to a higher mode of weaponry and to a greater degree of firepower’.Footnote 57 Moreover, no type of weapon that the victim could use to defend itself is categorically excluded in advance.Footnote 58 The International Court of Justice (ICJ) ruled that the proportionality principle does not even exclude the use of nuclear weapons in self-defence.Footnote 59 However, when choosing the measures of self-defence, a state must take into consideration the fact that the weapon it wishes to use cannot prompt a scale of destruction disproportionate to the attack, in addition to the fact that the state is not allowed to ‘employ its more destructive weaponry if it can achieve the legitimate objectives of self-defence with the lesser weapons available to it’.Footnote 60
Secondly, the choice of targets also influences the assessment of proportionality. A state, in using force in self-defence, must take into account the ‘anticipated overall scale of civilian casualties, the level of destruction of enemy forces, and finally damage to the territory, the infrastructure of the target state and the environment generally’.Footnote 61 One example of a disproportionate response to an armed attack can be found in the Oil Platforms judgment. The ICJ observed that ‘the destruction of two Iranian frigates and a number of other naval vessels and aircraft … [a]s a response to the mining, by an unidentified agency, of a single United States warship, which was severely damaged but not sunk’ cannot be regarded ‘as a proportionate use of force in self-defence’.Footnote 62 Also, in Military and Paramilitary Activities in and against Nicaragua the ICJ found that the US activities ‘relating to the mining of the Nicaraguan ports and the attacks on ports, oil installations, etc’ were not a proportionate reaction to ‘the aid received by the Salvadorian armed opposition from Nicaragua’, even if the scale of that aid was uncertain.Footnote 63
3.2. Necessity and proportionality in the context of deployment of autonomous weapons
The doctrine of law and military experts are not unanimous on whether AWs may satisfy the criteria of necessity and proportionality,Footnote 64 including proper evaluation of the involvement of humans, and distinguishing civilian and military objects when determining the target of the attack.Footnote 65 The fundamental question is whether an AW is able, to the same extent as a human being, to consider all the factors that contribute to the fulfilment of these requirements. It not only refers to the development phase – that is, it is not only a technical problem of pre-programming the criteria of necessity and proportionality into AWs – it is also a question of whether, even if equipped with all the necessary sensors and data, AWs would be able to assess a specific situation properly according to the criteria of necessity and proportionality.
In one respect the fact that AWs in the operational phase take decisions without human interference may have a number of advantages. AWs, being connected to systems that provide them with a significant number of different kinds of data, may collect and process information in a much shorter time than humans can; thus, when a decision needs to be taken within fractions of seconds, machines will respond more quickly.Footnote 66 Under this time pressure, AWs may also choose the targets more effectively. For example, ‘the algorithm might recommend that the defending state target a particular command centre rather than a particular missile installation’.Footnote 67 As mentioned above, the fact that AWs are deprived of human emotions may also be a huge asset. ‘A robot cannot hate, cannot fear, cannot be hungry or tired and has no survival instinct’.Footnote 68 Moreover, in contrast to humans, a robot cannot deliberately choose not to comply with international law. Thus, it is more probable that the AW would abide by legal rules, including humanitarian principles.Footnote 69
Conversely, however, many experts claim that AWs are unable to properly assess the criteria of necessity and proportionality; these objections seem to come at two levels. Firstly, it is doubtful whether it is possible to pre-programme AWs so they could comply with these conditions. To achieve that, it would mean that the designers of such a weapon would have to predict every single scenario in which the machine may be deployed. It is important to be aware of the fact that the fulfilment of the criteria of ‘proportionality [and necessity] of any particular attack depend … on conditions at the time of the attack, and not at the moment of design or deployment of a weapon’.Footnote 70 Secondly, AWs are not only deprived of human emotions but also of other abilities that may turn out to be crucial for the proportionality and necessity of an attack. The algorithms that are prepared for the AW are not able to accommodate information inherent to the life and professional experience of a military commander. AWs may provide perfect calculations based on objective information and statistical data; the results, however, may be different from human judgement of the situation.Footnote 71 Machines will not use the life-long experience or intuition that human commanders have;Footnote 72 they do not have ‘clear understanding of personal and organizational values’,Footnote 73 and are not capable of subjecting interpreted information to thorough reflection.Footnote 74
When it comes specifically to proportionality, it is doubtful whether an AW could balance different values,Footnote 75 such as human life and the security of the state. The AW would have to adjust to the threat of the scale of force used. The question, however, is whether it can aptly recognize a threat; what if the nervous conduct of a frightened civilian is interpreted by the AW as a potential threat?Footnote 76
To address necessity, AWs would have to be ‘able to judge the degree to which life was at risk, and be able to select and implement alternatives to lethal force, such as negotiation and capture’.Footnote 77 Moreover, some experts claim that the deployment of AWs could contravene some fundamental human rights, including the right to life. Additionally, this is also because AWs lack empathy and compassion, which are important human inhibitors to the taking of human lives.Footnote 78
3.3. Conclusions
The criteria of necessity and proportionality determine the legality of the use of force in self-defence. To fulfil these criteria, it is necessary not only to respond with similar force and strength. Proper application of necessity and proportionality requires the examination of many factors and not just simple, quantitative analysis. While it is true that AWs may analyse a huge amount of information within a short time and take decisions more effectively than humans, properly fulfilling the criteria of necessity and proportionality may, on occasion, also require human judgement of the situation, composed of experience, emotions and morality, something that AWs will possibly never be able to acquire.
4. Deployment of autonomous weapons for anticipatory, pre-emptive or preventive self-defence
Article 51 of the UN Charter states: ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations’. In line with the explicit reading of Article 51, a number of authors claim that self-defence is legal only after an armed attack has taken place.Footnote 79 To refer this scenario to the deployment of AWs would mean that the weapons should be programmed in such a way as to make a decision about a strike only after the state is attacked.
However, apart from this straightforward scenario, other options are possible. One variable covers situations when an armed attack is considered to have started, even if the material (kinetic) effects of the attack have not yet occurred in the territory of the attacked state. An example may be a situation when a ballistic missile, launched by one state against the other, has not yet reached the target. An armed attack has nevertheless started or, in the words of Yoram Dinstein, ‘once a button is pressed, or a trigger is pulled, the act is complete (while impact is a mere technicality)’.Footnote 80 Thus, the attacked state is allowed to resort to interceptive self-defence.
The application of AWs in self-defence in such cases does not raise substantial doubts. A number of AWs are designed specifically to intercept missiles. This is the case with the Iron Dome in Israel, which is ‘a type of counter-rocket, artillery and mortar weapon system capable of intercepting multiple targets at short range’.Footnote 81 It is also the function of Terminal High-Altitude Area Defence, which ‘detects and tracks an incoming missile, calculates its trajectory and then attacks it with an interceptor missile’.Footnote 82 Similar functions are performed by the SeaRAM Close-in Weapon System, a ship-based system. Other, autonomous systems which can detect incoming missiles and fire blast, munition or interceptor missiles include the German Advanced Modular Armour Protection Active Defence System, Russian Arena, South African LEDS-150, the United States’ Quick Kill, Israeli Trophy, and Ukrainian Zaslon.Footnote 83 Because all these weapons react to the ongoing armed attack against the state and are not designed to strike first, their legality is indisputable.
Despite the explicit reading of the UN Charter, several scholars suggest that self-defence is legal not only when an armed attack has occurred, but that international law also allows the use of force in self-defence when there is only the threat of an armed attack.Footnote 84 Self-defence before an armed attack takes place may be understood in very different ways; this type is mirrored by terms used to describe such self-defence.
The notion of anticipatory self-defence is usually used to discuss ‘a use of force against an imminent threat of armed attack’.Footnote 85 After Daniel Webster's formula, one can repeat that imminence takes place when the threat is ‘instant, overwhelming, leaving no choice of means, and no moment for deliberation’.Footnote 86 However, states tend to interpret ‘imminence’ in varying ways, including when an armed attack is not ‘about to happen very soon’.Footnote 87 For this reason, it is currently postulated that imminence ‘cannot be construed by reference to a temporal criterion only, but must reflect the wider circumstances of the threat’.Footnote 88 Those who wish to restrict the possible abuses of the right to self-defence but who, concurrently, agree that states are not forced to wait until they are attacked in order to defend themselves, link the criterion of imminence with the requirement of necessity ‘inasmuch as it requires that there be no time to pursue non-forcible measures with a reasonable chance of averting or stopping the attack’.Footnote 89
Conversely, supporters of the right to pre-emptive or preventive self-defence claim that states have the ‘right to respond to threats which have not yet crystallized but which might materialise at some time in the future’.Footnote 90 It is often claimed that the most striking example of this approach is the so-called Bush doctrine – views on the imminence of threats and legality of the use of force presented in the US National Security Strategy of 2002. The US declared, inter alia, that:Footnote 91
[we] can no longer solely rely on a reactive posture as we have in the past. The inability to deter a potential attacker, the immediacy of today's threats, and the magnitude of potential harm that could be caused by our adversaries’ choice of weapons, do not permit that option. We cannot let our enemies strike first. … Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat—most often a visible mobilization of armies, navies, and air forces preparing to attack. We must adapt the concept of imminent threat to the capabilities and objectives of today's adversaries. … The United States has long maintained the option of preemptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction – and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy's attack.
Taking all of this information into consideration, one has to observe that the legality of anticipatory or pre-emptive/preventive self-defence raises considerable doubts. This is because of the vague formulation of these doctrines and the imprecise criteria that allow for the use of force in self-defence. This statement is valid regardless of which method of warfare is chosen by the state claiming the right to self-defence, whether AWs are at risk or not.
The deployment of AWs would raise considerably more doubts about the legality of anticipatory, pre-emptive or preventive self-defence. Firstly, before programming and allowing AWs to strike in anticipatory, pre-emptive or preventive self-defence, a state would have to make decisions about the parameters and boundaries of such self-defence. A number of the seminal questions to be answered are as follows:
• What is ‘anticipatory’, ‘pre-emptive’ or ‘preventive’?
• When does a threat to state security require the anticipatory, pre-emptive or preventive strike?
• What kind of data should AWs analyse before deciding on the anticipatory, pre-emptive or preventive strike?
• How should AWs decide when to conduct an anticipatory, pre-emptive or preventive strike?
• If there was no armed attack, how should an AW choose the target and assess the proportionality of the attack?
• How are AWs supposed to decide that the use of force is ultima ratio?
Secondly, it was mentioned earlier that humans exert control over fully autonomous weapons in the development and deployment phases: when they are establishing their objectives and deciding on their activation. However, if it is impossible to pre-programme AWs with all the possible scenarios of the use of force in self-defence after an armed attack occurs, it is yet more problematic to come up with all the possible circumstances of an anticipatory, pre-emptive or preventive strike; this would make AWs yet more unpredictable than ever.
Thirdly, if there is the assumption that an AW could take the decision to strike first on the basis of a potential threat on the part of another state, the consequences of such a solution for jus in bello must be considered. The strike itself may amount to the launch of an armed conflict between a state that could be potentially threatened and the state that potentially may constitute a threat. However, does it matter that an AW took the decision about the strike, independently and without human intervention? To put it differently, ‘can it really be said that the nation has gone to war?’Footnote 92 Can such action by an AW be considered a manifestation of the intention of a state to start an armed conflict?Footnote 93 No such case has yet occurred. However, it is important to find clear answers to these questions. It seems that if the conduct of an AW may be assigned to a state, then the actions taken by the AW should be understood as state actions; in this case an AW strike should be understood as the manifestation of the intention of the state to start the conflict. Consequently, all state obligations deriving from jus in bello would follow after the decision taken by the AW. Only a fatal mistake or the unforeseen collapse of the system providing the data for the AW may excuse the state from such responsibility.
Thus, it is highly improbable that any state would decide to activate an AW and allow it to strike first immediately following the AW assessment that the future threat requires the use of force. A more conceivable scenario is that humans could use AWs, or systems connected with them, to evaluate whether there is a threat that requires the anticipatory use of force.Footnote 94 However, ultimately it would be a human who would have to authorise the anticipatory action of the AW.
5. Conclusions
The employment of AWs to respond to an armed attack would appear to be one of the most effective ways of using this kind of weapon. An attacked state does not have to engage human soldiers in potentially life-threatening conflicts; also the reaction of the victim state may be more rapid and precise than that calibrated only by humans.
While it is true that the deployment of AWs is both a lawful and powerful method of warfare, the constraints that derive from their employment should be noted. AWs are able to react properly and in a predictable manner only to pre-programmed scenarios; thus, the fulfilment of the criteria of necessity and proportionality can be assured only in this limited number of cases. For the same reasons, their autonomous functions should not be exploited to conduct anticipatory, pre-emptive or preventive strikes. It does not mean that the deployment of AWs must always violate international law. On the contrary, aptly pre-programmed, AWs potentially could abide by legal norms more effectively than a human. However, the legality of the use of force consists often of considerably more than just strict compliance with norms. It also requires conscious judgement, previous experience and moral compass – clearly, traits that AWs could never have.
If AWs are weapons of the future and the era of ever-more sophisticated machines is inevitably approaching, maybe it is high time to revise some traditional concepts, such as those connected with self-defence? ‘We must adjust to changing times and still hold to unchanging principles’.Footnote 95 This phrase, once said by a former US president in the context of human rights, holds a universal truth that also perfectly addresses the relationship between ever-advancing technology and the core principles of international law. The deployment of AWs, despite being a huge military asset, may, on occasion, violate the criteria of necessity and proportionality. It is also difficult to devise a way in which AWs could legally exercise anticipatory, pre-emptive or preventive self-defence (if to assume that such a form of self-defence is legal at all). Does it mean that the international community should resign from the core international legal principles in order to allow the employment of new technology: a weapon? Even if these principles seem strict or even outdated, their aim is to keep the entire international legal community safe, and not only those states that can afford the production and use of AWs. The revision of international law, which would allow the application of new weapons, could be opening a Pandora's Box: in the future, inventors would care only about the effectiveness of weapons and not their legality, because they would be aware that the international legal framework may be adjusted in any case. Thus, as long as states are allowed to seek ways of countering new threats to their security, they need to comply with core legal principles, for the sake of international peace and security.
Acknowledgements
The author is grateful to Ido Rosenzweig, Director of Cyber, Belligerencies and Terrorism Research of the Minerva Center for the Study of Law under Extreme Conditions; to Yahli Shereshevsky, who served as respondent to this article during the 4th Young Researchers Workshop on Terrorism and Belligerency Human Enhancement and Advanced Technologies in Terrorism and Belligerencies, as well as to all other participants in the Conference who took part in the discussion over this article.
Funding statement
Not applicable.
Competing interests
The author declares none.
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