Author:Mull, Nicholas W.
  1. INTRODUCTION II. BACKGROUND A. Historical Development of Weapons Law B. LAWS Defined and Contemporary Examples of Autonomy in Weapon Systems 1. Definition of LAWS and Taxonomy of Autonomy 2. Current Weapon Systems with Autonomous Features C. Contemporary Efforts in the LAWS Debate III. ANALYSIS A. Legal Reviews of New Weapons and Weapon Systems 1. Military Necessity 2. Unnecessary Suffering 3. Distinction B. Proportionality C. The Responsibility Gap: Fact or Fiction? D. Threshold to Resort to Force E. Martens Clause and Related Concerns of Honor, Ethics, and Morality 1. Martens Clause 2. Honor 3. Ethics 4. Morality IV. CONCLUDING REMARKS I. INTRODUCTION

    "It has become appallingly obvious that our technology has exceeded our humanity."

    Albert Einstein (1)

    Whether Einstein was correct is certainly debatable amongst reasonable minds, but regardless of its truth, especially in an era where at one extreme intellectual debate has been reduced to 140-character quips on Twitter regarding matters of life and death to the other where persons a world away can bear live witness on YouTube to atrocities in warfare, we owe it to our species to always question whether emerging technology serves as a point of evolution or de-evolution. Is it bringing us closer as humanity? Or, is it further increasing the emotional, moral, and psychological distance between individuals and societies? The answers to these questions are of great significance to the progression of human civilization. They may shape the formation of new laws and policies or, as will be discussed later, may form the basis for determining the existence of legal rules of a natural law variant through the application of foundational principles.

    While these questions are of general applicability, this paper will focus on the most contentious issue in emerging weapons technology today: lethal autonomous weapon systems (LAWS). Although definitions are varied, LAWS are weapon systems that are capable--at a base minimum--of detecting, identifying, selecting, and lethally engaging human targets in war without direct human supervision or control. (2)

    Like debates over submarines and military aviation a century ago, this new debate has been highly contentious. (3) Some of the arguments made against using submarines and aircraft in warfare--such as those based in martial honor, or the intuitive moral dilemma of killing in combat with little to no physical risk--are now being made with respect to LAWS. (4) Other arguments are informed by the vast development of human rights law and a deeper understanding of the dignity of the person and concept of humanity within the realm of law. These arguments include, for example, the need to maintain moral agency over life and death decisions. (5)

    A disappointment in the debate thus far has been the highly partisan literature from lawyers in the field that does not seek to discover the current status of the law but merely puts forth circular arguments to fulfill their predetermined conclusions of the law.

    By no means is it the only example, but a spearhead in the movement to pre-emptively ban LAWS has been Human Rights Watch (HRW), which founded a campaign to stop the "Killer Robots." (6) Even the language that is used in many of these arguments is unnecessarily hyperbolic, seeking to invoke Hollywood science-fiction images of the post-apocalyptic world of the Terminator franchise where the machines took over the world. In its 2012 report, Losing Humanity: The Case Against "Killer Robots,"HRW noted that "killer robots" could be developed within 20-30 years and began its argument with a premise that "Hull autonomy would strip civilians of protections from the effects of war that are guaranteed under the law." (7) Human Rights Watch said its primary concern is the impact of LAWS on the protection of civilians in time of war, but this argument seems disingenuous in that the organization calls for a full international ban to the research, development, stockpiling, and use of LAWS regardless of whether the technology may actually enhance the protection of civilians in war. (8) Further, the presence of new weapons technology on the battlefield has no effect on the legal prohibition against intentionally attacking civilians and civilian objects. (9)

    Hyperbole and immovable political positions hinder informed debate that should help determine the lex lata, or as it may be, the lex ferenda. (10) With great respect to the general nature of the work done by non-governmental organizations (NGO), states should not he bullied by lobbying groups promoting a highly isolated agenda without regard to second--and third-order effects, and in light of the awesome responsibility of exercising sovereign authority that requires a delicate balance of many interests and concerns. This is not to say that they are fully incorrect, but merely that some of the arguments put forth are circular and hyperbolic propaganda, which takes away from the persuasiveness of legitimate concerns of the increased roboticization (11) of the most complex manifestation of the human relationship--war.

    On the other side of the debate are the realists that view LAWS as nothing more than an additional tool to vindicate state interests in an amoral worldview of warfare. (12) To them, moral agency should have no bearing on a state's decisions. (13) Legal positivists (often one and the same) simply state there is no treaty law or specific rule of customary international law (CIL) banning LAWS, so they can only be judged by standards set forth for other weapons. That is, if certain persons can be legally targeted and killed in war because of their status or their actions, it is irrelevant whether such lawful killing is conducted by a human agent or machine agent. They "do not accept that a machine-made lethal decision is always and necessarily mala in se." (14) All that matters is whether a human or machine can regularly comply with the jus in bello. (15)

    This side of the debate is often no less open to exploring the possibility of a different outcome. Its position ignores two of the three foundational principles of the law of war: honor and humanity. This author has previously argued in another work for the necessity to recognize honor as the progenitor principle of the law of war, and it is of special relevance in any discussion regarding weapons law. (16) Martial honor commands the soul of the professional warrior. (17) It reinforces notions of mercy toward the defeated enemy, protection of the weak, sacrifice, and mutual respect, and it is the shame associated with dishonor that is the most powerful prophylactic enforcement of the law of war.

    Lawyers in a post-honor Western world who are not a part of the unique culture of various warrior organizations ignore this reality, not because of malicious intent, but simply due to a lack of awareness. They often overemphasize the importance of international criminal law as a deterrent as well as the need for highly specific textual rules to regulate conduct in warfare as opposed to encouraging application of broader principles that form an integral part of the warrior culture that is contemporaneously aligned with the law.

    Instead of recognizing notions of natural law as manifested through general principles, the realists and legal positivists maintain that the foundational principles of the law of war, especially as it relates to the invocation of the Martens Clause, have no independent legal effect. (18)

    This is a position that the author finds untenable. To recognize general principles of law is to recognize that its codified or specific rules must tend toward the achievement of the objectives of the general principles, and in the absence of codified law or specific CIL, the general still operates to constrain, or in some cases, license behavior. In the domain of the law of war, this pertains to the balancing of military necessity with humanity while preserving the honor of the warriors engaged in conflict. This is done in part, but not exclusively, through application of the operational principles of distinction and proportionality (including precautions in attack). (19)

    Further, the Martens Clause is clear in its construct, and the historical development of the law of war is likewise clear that the law of war is based in natural law considerations, as opposed to what has become the default legal positivist approach in the contemporary world. (20) As the author has argued in his previous work regarding honor as the progenitor principle of the law of war, human civilization has regulated the conduct of humans through three concepts: honor, morality, and law. (21) While these concepts can and often do have distinction, the ideal scenario, and one in which the greatest compliance is found, is when all three concepts align. (22) Admittedly, alignment has not been true of all bodies of law, but as stated, the law of war did not develop as an amoral civil legal system; rather, it emerged as a system of honor among warriors, and later from morality as well, as propagated through Just War Theory. (23)

    Legal positivists do not argue that all LAWS are lawful but that merely as a category LAWS cannot be said to be unlawful. (24) Mostly, they take a "wait and see" pragmatic approach to the development of LAWS as follows. (25) First, LAWS is too expansive of a category to state that all should be banned because autonomy is merely a feature of a weapon system, but not the weapon itself. (26) Seeking to ban LAWS as a category would be similar to saying that all weapon systems that use radar technology should be banned despite the wide multitude of weapons that utilize radar as a component of their operations. Thus, each LAWS must be judged on a case-by-case basis through the traditional legal review process. (27) Second, we should focus more on the quantitative goal of reducing casualties in war, of civilians as well as combatants, and if...

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