Autonomous weapon systems: the anatomy of autonomy and the legality of lethality.

• Author: Thomas, Bradan T.

1. INTRODUCTION II. THE TECHNOLOGY OF THE FUTURE A. Definitions B. Modern Weapon Systems III. THE LAW OF THE PRESENT A. Weapons Law B. Targeting Law IV. CONCLUSION [T]he art of war is simple enough; find out where your enemy is, get at him as soon as you can, and strike him as hard as you can, and keep moving on.

   --Ulysses S. Grant (1)

1. INTRODUCTION

   Perhaps warfare of the twenty-first century is not as simple as it was in the throes of the American Civil War. (2) Although the unmanned weapon system can hardly be considered a novel invention--its concept predates even the 1863 Battle of Chancellorsville (3)--the efficacy, use, and repercussions thereof have precipitated intense, contemporary disputation. (4) In the wake of the September 11, 2001 terrorist attacks, there has been a dramatic upsurge in the presence and use of unmanned aerial vehicles, (5) commonly identified by the media and the public as "drones." (6) The drone's rapid combat application not only gave rise to various legal issues and implications, (7) but also set the stage for the development and eventual use of fully autonomous weapon systems. (8) Taking that stage in the latter half of 2013, the international debate on autonomous weapon systems has gained significant momentum in the legal field, as well as a variety of other disciplines. (9) There is presently no indication that the surrounding discussion will lose its impetus, as commentators, scholars, non-governmental organizations, and international groups continue to show great interest in this topic. (10)

   Put generally, the term "autonomous weapon system" refers to a category of weapons that are capable of operating and launching attacks without human input or guidance. (11) Although such weapons do not yet exist in any practicable form, (12) even a cursory glance at the trends and developments in weapons technologies, and in the field of robotics generally, reveals that the concept of fully autonomous weapons is not as farfetched as it might have once seemed. (13) Indeed, several nations currently use technologies that can be considered precursors of fully autonomous weapon systems. (14) As was aptly demonstrated by drones, advancements in modern robotics technology have the potential to redefine the essence and dynamics of modern armed conflicts. (15) Unfortunately, the international laws that govern such hardware and warfare do not yet address or support any legal standards specific to fully autonomous robotic weapons use. (16)

   Although the debate on autonomous weapon systems is in its early stages, opponents and proponents alike have made known the challenges, advantages, values, and dangers of a worldwide trend toward robotic autonomy on the battlefield. (17) Spearheaded by Human Rights Watch and Harvard Law School's International Human Rights Clinic, critics of the development, production, and utilization of autonomous weapon systems called for their preemptive ban in November 2012. (18) Opponents assert that, because they are devoid of certain human qualities that are essential during armed conflict, these so-called "killer robots" would be incapable of complying with core International Humanitarian Law ("IHL") standards. (19) Similarly, the lack of human emotion, cognition, and situational awareness are cited as limitations of autonomous weapon systems. (20) Objectors also note the acute potential that the ease with which wars are declared and waged will increase as humans become increasingly removed from decisions to use lethal force. (21)

   Supporters of fully autonomous weapon systems, which are usually members of or consultants to a nation's military, argue that a preemptive ban would be a shortsighted forfeiture of any potential gains in humanitarian protection that might emerge from such burgeoning technologies. (22) A ban, proponents assert, would also hamper the efficiency and competency of military forces and their operations. (23) Advocates insist that the call for an international ban is premature and unwarranted, asserting that attempts to thwart such technological developments are made by ill-informed parties that conflate and obfuscate the relevant legal issues. (24)

   This Comment is intended to contribute to the medley of voices an additional perspective on the legality and future of fully autonomous weapon systems. It puts forth the argument that a preemptive ban is inapposite and urges the appropriate authorities to develop a modern legal framework that is tailored to embrace these state-of-the-art weapons. Part II offers a brief overview of the technology under consideration by defining, discussing, and providing choice examples of autonomous weapon systems. Part III surveys the current IHL standards applicable to wartime weaponry. It also evaluates the propriety of evaluating autonomous weapon systems by those standards, addresses potential shortcomings of such application, and proffers alternative avenues to refine current weapons laws. The Conclusion offers final thoughts and hopes for the manner in which autonomous weapon systems will be addressed as IHL develops.

2. THE TECHNOLOGY OF THE FUTURE

   In discussing the legal implications of autonomous weapon system usage on the battlefield, it is indispensable to have a rudimentary knowledge of at least some of the technology at issue. The term "autonomy" is a nebulous concept to neophytes, a fact that can all too easily transform well-intentioned discussions into misguided contretemps. (25) Even a broad, foundational understanding of key terms and technologies will infuse with coherency and reason the important considerations at hand. It is thus appropriate to consider broadly applicable principles and currently existing technologies before turning to the law that governs.

   1. Definitions

      In order to enunciate the legal issues that underlie the use of autonomous weapon systems, the relevant technology must first be discussed. (26) A weapon system can be defined broadly as a weapon and all related materiel and personnel required for its employment. (27) The term "robots" refers to manmade machines that can sense, think, and act. (28) The level of independence a robot has with respect to the initiation and execution of actions falls somewhere within a spectrum of autonomy. (29) At one end of this spectrum lie "automated" robots, which possess some level of independence but ultimately are not self-directed, do not possess decision-making capabilities, and may require human participation. (30) The General Atomics Aeronautical Systems MQ-1 Predator drone is an often-cited example of an automated weapon system. (31) While the Predator is unmanned, it is remotely controlled by a pilot on the ground and therefore remains under human control. (32)

      At the opposite end of the spectrum of autonomy are fully "autonomous" robots. (33) While a simple definition of the term might seem appropriate to the uninitiated, the term "autonomy" is rather ambiguous. (34) On November 21, 2012, the U.S. Department of Defense released Directive Number 3000.09 ("Directive"), entitled "Autonomy in Weapon Systems." (35) The Directive establishes and expounds on the United States' policy and framework for the development, testing, international sale and transfer, and employment of the gamut of autonomous weapon systems. (36) The Directive defines an "autonomous weapon system" as:

      A weapon system that, once activated, can select and engage targets without further intervention by a human operator. This includes human-supervised autonomous weapon systems that are designed to allow human operators to override operation of the weapon system, but can select and engage targets without further human input after activation. (37) Thus, autonomous weapon systems are those capable of independently initiating and executing an attack, without being prompted by a human operator. (38)

      It is important to note that autonomous robots, whether weaponized or not, do not require human-operator input, nor do they preclude such input. (39) Additionally, full autonomy does not represent the strict notion that a human will never be involved in a robot's functioning. (40) Indeed, a human necessarily will be involved in the production and programming of even the most autonomous weapon system. (41)

      Just two days before the Department of Defense released the Directive, Human Rights Watch released Losing Humanity: The Case against Killer Robots. (42) In discussing the dangers and predicted unlawfulness of autonomous weapon systems, Losing Humanity separates unmanned robotic weapons into three tiers of autonomy: "human-in-the-loop weapons," "human-on-theloop weapons," and "human-out-of-the-loop weapons." (43) In this context, the "loop" is a reference to the OODA loop. (44) Under the OODA loop concept, combatants seek to reduce processing and decision-making speeds so as to gain an advantage over their foes. (45) An increase in the autonomy a robot has with respect to the decision-making process reduces the input required from human operators. (46) Such a result could quicken the pace and efficiency of battle. (47)

      Losing Humanity defines human-in-the-loop weapons as robotic weapons capable of targeting and striking solely as a result of human directive. (48) Human-on-the-loop weapons are those that are capable of independently targeting and delivering force while under the supervision of a human operator who is armed with override capabilities. (49) Finally, human-out-of-the-loop weapons are defined as "[r]obots that are capable of selecting targets and delivering force without any human input or interaction." (50) Both human-on-the-loop and human-out-of-the-loop weapons fit the description of what is typically considered an autonomous weapon system, (51) as both are capable of wholly independent functioning. (52)

   2. Modern Weapon Systems

      The United States' policy on autonomous weapon systems was the first announced by any government in the world. (53) As detailed...