There has been an immense development in unmanned aircraft technology in the past three decades or so. The percentage of unmanned versus manned aircraft in combat operations is only predicted to grow in the future. The public’s aversion to risk and the endurance facilitated by modern unmanned systems have both played important roles in the growth of unmanned aircraft in modern warfare. Increasingly complex warfare scenarios call for increasingly complex weapons systems, and autonomous aircraft are predicted to play a crucial role in meeting tomorrow’s operational challenges. The article argues that even though autonomous systems will be able to make tactical decisions by themselves, these decisions will not be acted upon in a vacuum – even autonomous machines will be a part of the military and political chain-of-command. Operational concepts such as ‘loyal wingman’, Manned-Unmanned Teaming, motherships and swarming are the beginning of a new autonomous way of warfare. It is important that we tailor our autonomous machines to operate inside the realm of military and political control. It is thus crucial to have a broad debate among policy makers, technology developers, scholars and civil society in order to decide how the weapons of the future will be programmed and the place and scope that human control should play therein.
Autonomous weapon systems have been widely debated throughout recent years. This article deals with autonomous weapon systems and the Law of Armed Conflict. Autonomous weapon systems are neither defined by international law, nor subject to specific regulation. The use of autonomous weapon systems must be in accordance with existing rules governing the conduct of hostilities. Among these rules are the principles of distinction and proportionality and the duty to take feasible precautions in attack. The assessment under these rules is subject to the discretion of the reasonable military commander. Somewhere in the decision cycle, the law requires a human assessment, which in turn can be labelled reasonable. The pending issue appears to be where in the decision cycle a human touch must be performed.
In this article, I argue that autonomous weapon systems remain weapons and that they do not become humans, although we use human-like characteristics to describe them. Furthermore, I argue that because we call these weapon systems autonomous, we attribute them with human-like behaviour that they are not likely to possess in the near future, and subsequently that this attribution of human-like behaviour is not beneficial for our relationship to the machines or to the assessment of legality.
Ensuring accountability for violations of international law is arguably one of the most important challenges posed by autonomous weapons systems (AWS). This article examines ways in which violations committed through the use of AWS could challenge the rights of victims to reparation for harm suffered. It finds that their use would pose problems in securing the rights of victims under domestic Norwegian law outside the scope of human rights law, where the standard of negligence for State liability apply. The article argues that the existing legal framework could be interpreted in a way as to secure strict liability for reparation in cases of violations of international humanitarian law. Furthermore, the use of AWS would introduce new challenges in proving the facts of the violation. It is argued that the duty to investigate alleged violations of human rights law provide a workable general framework to address these concerns.
Oslo Law Review
2-2018, volume 5
Oslo Law Review was established in 2014, and publishes research articles from all areas of legal scholarship, as well as interdisciplinary articles or articles that engage with law from the perspective of other related disciplines (e.g. political science, anthropology, sociology, linguistics and philosophy).
Professor Lee A. Bygrave, Department of Private Law, University of Oslo
Professor Vibeke Blaker Strand, Department of Public and International Law, University of Oslo
Brendan J. Nixon, Lawyer, Sparke Helmore Lawyers, Australia
Professor Vidar Halvorsen, Department of Criminology and Sociology of Law, University of Oslo
Doctoral Research Fellow Anders Narvestad, Department of Public and International Law, University of Oslo
Professor Alla Pozdnakova, Scandinavian Institute of Maritime Law, University of Oslo
Professor Shaheen Sardar Ali, University of Warwick
Professor Bert Jaap Koops, University of Tilburg
Professor Elise Poillot, University of Luxembourg
Professor Giovanni Sartor, European University Institute/University of Bologna
Professor Emeritus Carsten Smith, University of Oslo
Professor Lawrence Solum, Georgetown University
Design and typesetting: Type-it AS, Trondheim
Cover design: Scandinavian University Press, Sissel Tjernstad
ISSN online: 2387-3299
The journal is published by Scandinavian University Press (Universitetsforlaget) on behalf of the Faculty of Law at the University of Oslo.