From Code to Combat: International Legal Challenges of Autonomous Weaponry

The Author of this Blog Article is Mr. Amit Kumar Patra, a law student pursuing B.A.LL.B, from National Law University, Odisha (NLUO).

Abstract

This blog discusses the challenges of protecting AWS under international law and aims at enhancing the understanding of experts of the challenges surrounding the regulation of AWS. It provides a clear understanding of AWS, including their definitions, present developments, prospects as well as benefits and dangers that can be involved. The paper assesses the current LSU legal instruments and points out their failure to sufficiently regulate AWS while

recognising that there is a need for new or revised rules. In this section, some of the main issues arising regarding regulation of AWS are discussed including; responsibility, compliance to humanitarian norms, and rules. The blog also looks at current practice internationals efforts towards the problem, and offers varied perspectives from several countries and non-governmental organizations. At the end of the paper, recommendations and solutions toward bold regulation are presented especially considering the need for cross country harmonization. The conclusion reinstates the notion of what more AWS will mean for warfare and global securities and once again addresses the necessity for active regulation as this field continues to advance.

KEYWORDS: Autonomy, Artificial Intelligence, Machine Learning, Sensor, Decision-

making algorithms

Introduction

Advanced technology, particularly Artificial Intelligence (AI), has significantly impacted military technology, introducing lethal autonomous weapon systems (LAWS) capable of independently identifying and engaging targets. This development raises ethical concerns. Autonomous weapons systems (AWS) are military platforms that select and engage targets based on programmed information, with varying degrees of human control. These range from systems requiring human approval to those operating independently once activated.

The advent of AWS poses new questions about warfare's future and the removal of human judgment from lethal decision-making. As these technologies advance, there's a growing need for international laws governing responsibility, compliance with war laws, and potential arms races. AWS differ from remote-controlled drones, which require constant human operation. This distinction is crucial when considering legal and ethical implications. The varying levels of autonomy in these systems complicate the development of comprehensive legislation.

The impact of AWS extends beyond military applications, touching on human rights, humanitarian law, and ethical AI use. As more countries invest in AWS research, the global community must establish regulatory frameworks balancing innovation with ethical considerations and civilian protection.

Without proper guidelines, AWS deployment could lead to unintended consequences and conflict escalation. Understanding the distinctions between AWS and other weapons systems is vital for developing effective international legal frameworks and addressing unique ethical and operational concerns. It's crucial to comprehend these differences to establish adequate international legislation and consider the ethical and operational peculiarities of AWS appropriately.

Current State of AWS Development and Deployment [1]

The development of autonomous weapons systems (AWS) is advancing swiftly, with various countries and organizations heavily investing in research and development. While fully autonomous weapons that can independently select and engage targets are not yet widely deployed, several precursor systems with varying degrees of autonomy are already in use or nearing deployment. [2]

Examples of existing AWS and their capabilities include:

1. Israel's Harpy drone, a loitering munition that can autonomously detect and attack radar installations.

2. South Korea's SGR-A1 sentry gun, an automated weapon system capable of identifying and engaging targets in the demilitarized zone.

3. The US Navy's Aegis Combat System, a ship-based system that can autonomously track and engage multiple air and surface threats.

4. Russia's Uran-9 unmanned ground vehicle, a remotely operated tank with some autonomous features for target acquisition.

These systems showcase various levels of autonomy, from automated target detection to semi-autonomous engagement capabilities, representing significant steps towards more advanced AWS.

Countries Efforts in Autonomous Weapons [3]

United States: The U. S has contributed significantly in AWS, has been using unmanned systems such as naval ships, and plans for more uncrewed ships. The United States Navy, United States Air Force, and the United States Army are now acquiring drone systems and are carrying out evaluations of operations with mix human-and-robot solution. Aids are embedded in departments of the Pentagon that consolidates the structure that incorporates artificial intelligence in defense management but advocates for human control over systems that contain attributes of lethal autonomy.

China: China is turning to AI to create an “intelligentized” PLA and applying AI technologies in operation support, intelligence collection, and combat. This is an advantage because factories in China are able to produce these self-armed vehicles with relative ease and much of the resources required are Controlled by the central government. The U.S. is seeking to sustain its dominance over China into the sphere of artificial intelligence.

India: India is still rather tiptoeing around with AWS, but AI is a critical element for national security, especially with relations to China’s military might. While India abstained from supporting the controlling of autonomous weapons in the UNGA, it is in the process of adopting AI system in defense systems. However, India has admitted that it is still second to the US and China when it comes to its utilization in military solutions.

What are the Military Advantages?

1. Increased efficiency: AWS can process information and react faster than humans, enhancing military effectiveness.

2. Reduced human casualties: AWS could lower military casualties by removing soldiers from dangerous situations.

3. Persistent operations: Autonomous systems can operate continuously without fatigue.

4. Precision: Advanced sensors and algorithms could reduce collateral damage through more accurate targeting.

Ethical and Legal Concerns:

1. Accountability: Assigning responsibility for actions taken by autonomous systems is challenging.

2. Proportionality: Ensuring AWS can balance military necessity against potential civilian harm is complex.

3. Distinction: The ability of AWS to differentiate between combatants and civilians in complex environments is critical.

4. Lowered conflict threshold: Reduced risk to personnel might make it easier for states to engage in armed conflicts.

5. Proliferation and stability: Spread of AWS technology could lead to arms races and destabilize international relations.

6. Ethical decision-making: Concerns exist about machines making ethical judgments in complex situations typically requiring human discretion.

Existing International Legal Frameworks

1. Geneva Conventions and Additional Protocols: These are the fundamental principles of IHL that sets out the conduct of armed conflict and civilians protection.

2. Martens Clause: This principle also forms part of several IHL treaties and provides that where the rules of law applicable to specific situations have not been laid down in international agreements and conventions, the provisions of the principles of international law as found in conventions and customs, principles of humanity and the principles of public conscience will apply to combatants and civilians.

3. UN Convention on Certain Conventional Weapons (CCW): They want to ban or limit the employment of certain kinds of weapons, which are believed to inflict unnecessary or excessive suffering on the fighters or to harm non-combatant populations unavoidably.

4. Rome Statute of the International Criminal Court: This sets up personnal criminal accountability when it comes to war crimes, crimes against humanity and genocide.

5. International human rights law: Every other treaty and convention that seeks to protect basic individual rights and freedoms; including the right to life and the right to human dignity. Applicability and limitations of current legal frameworks to AWS: [4]

The existing legal frameworks provide some guidance for the development and use of AWS,

particularly in terms of the fundamental principles of IHL:

• Difference between civil people and war fighters

• Proportionality in attack

• Military necessity

• Outlawing of the unjustified suffering of an animal

However, these frameworks have significant limitations when applied to AWS:

1. Lack of specific regulations: Existing laws were not designed with AWS in mind and may not adequately address the unique challenges they present.

2. Accountability gaps: Current frameworks assume human decision-makers, making it difficult to assign responsibility for actions taken by autonomous systems.

3. Technological complexity: The rapid advancement of AI and robotics outpaces the development of legal frameworks, creating potential regulatory gaps.

4. State interpretation: Different states may interpret the applicability of existing laws to AWS differently, potentially leading to inconsistent standards.

Challenges in Regulating AWS under International Law [5]

Currently, over one hundred countries support a legally-binding instrument on lethal autonomous weapons systems (LAWS), with more than two-thirds of the world’s nations backing this measure. This includes all Latin American countries, thirty-one from Africa, sixteen from the Caribbean, fifteen from Asia, thirteen from Europe, eight from the Middle East, and two from Oceania. As a result, countries opposing the idea of a treaty on autonomous weapons are gradually becoming a minority. During consultations at the Convention on Certain Conventional Weapons (CCW) in Geneva, many states agreed on a "two-track" approach to ban and control AWS after nearly a decade of protracted talks. This strategy aims to outlaw systems whose consequences cannot be sufficiently foreseen, understood, or explained, while regulating others to ensure sufficient human control. This control could encompass the type, timing, area, and scale of targets used in specific methods, aiming to govern these elements to maintain human oversight. Since February this year, there have been additional conferences outside the CCW where nations discuss AWS. These

regional meetings are a stepping stone towards a treaty, as they allow countries to engage in discussions without the obstructive effects of the CCW's consensus principle, which has slowed progress. These forums enable more countries, including those not on the CCW member list, to participate in the discourse on autonomous weapons systems.

Attribution and Accountability [6]

1. Determining Responsibility: When AWS make autonomous decisions, pinpointing who is responsible for their actions becomes complex.

2. Command Responsibility: The doctrine of command responsibility may need revision to address the unique decision-making processes of AWS.

3. State Responsibility: Clarifying how states can be held accountable for the actions of AWS they deploy is crucial.

4. Manufacturer Liability: The roles and potential liabilities of AWS manufacturers and programmers need clear definition.

Potential Solutions

- Develop new legal frameworks specifically tailored to AWS.

- Establish international bodies for AWS oversight and verification.

- Create transparency and confidence-building measures among states.

- Invest in technical means to ensure AWS compliance with international humanitarian law.

An ‘Oppenheimer’ moment? [7]

The minister of foreign affairs of Austria, Alexander Schallenberg opened the conference by facetiously comparing the current threatening situation associated with AI and atomic bomb development in the 40s referring to it as ‘this generation ‘s Oppenheimer moment, focused on the adverse outcomes of autonomous weapons systems similar to nuclear attacks where around 200226 thousand non-combatants lost their lives.

The AWS are gradually metamorphosing and being deployed in the contemporary global conflicts while there is no clear coherent set of international laws that can effectively regulate the use of AWS, their transfer or protect the civilians. This lack of legislative regulation coincides with a serious problem, to put it mildly.

The first ever United Nations General Assembly Resolution concerning Lethal Autonomous Weapon Systems was passed in the year 2023 with the reference number A/RES/78/241. This resolution was an acknowledgment of the overwhelming majority of UN Member States on attempts to combat unique threats from these weapons.

Adding more pressure to the issue, the New Agenda for Peace from the United Nations Secretary-General encouraged specific by 2026 established a technical understanding of murderous suasive apparatuses and an indefinite percentage on lethal AWS. Nonetheless, it is on national level and its citizens for the given momentum created by the UNGA Resolution to press for a range of legislative provisions for the cryptocurrencies and related products.

This is a key moment for urging regulation in the fight against the possible dangers of AWS where innovation in the technical aspects of warfare is rapidly withering our capacity to control the levels of harm it might bring.

Efforts to Address AWS within the International Community [8]

The international community has initiated various efforts to address the challenges posed by autonomous weapons systems (AWS). These discussions aim to develop a shared understanding and potential regulatory frameworks.

At the United Nations level, the Group of Governmental Experts on Lethal Autonomous Weapons Systems, established under the Convention on Certain Conventional Weapons, meets regularly to discuss technological, legal, and ethical aspects of AWS. The UN Secretary-General has called for new international laws and human control over the use of force, while the UN Institute for Disarmament Research provides technical expertise to support policy discussions.

Perspectives on AWS regulation vary widely among states and non-governmental organizations. Some countries, like Austria and Brazil, advocate for a preemptive ban on fully autonomous weapons, supported by NGOs like the Campaign to Stop Killer Robots. Others, such as the United States and United Kingdom, argue for applying existing laws to AWS while ensuring meaningful human control. Russia and Israel emphasize the potential benefits of AWS and oppose bans.

Middle-ground positions, proposed by countries like France and Germany, focus on specific use cases rather than blanket bans. Non-governmental organizations, including Human Rights Watch and IEEE, actively campaign for AWS prohibition or work on ethical guidelines for AI in autonomous systems.

These diverse perspectives highlight the complexity of the AWS debate. While there's growing recognition of the need to address AWS within international law, achieving consensus on specific regulatory approaches remains challenging. Ongoing discussions in international forums play a crucial role in shaping the global response to AWS.

Proposed Solutions and Recommendations [9]

On this, there is consensus that AWS must be governed by the IHRL and human rights law, although in what manner is still in debate. Concerning the efficiency of managing AWS, it remains unclear whether the current legislation is sufficient or if new legislation specifically targeting the management of cloud technologies must be developed.

Most debates on AWS has taken place under the framework of the Convention on Certain Conventional Weapons (CCW). The CCW created the Group of Governmental Experts on Lethal Autonomous Weapons Systems in 2017 and the group has no time limit. However, a major problem has been in its sluggish progress as a result of its limited membership and decision-making by consensus.

In a way, it can be stated that the international legislation remained stagnant with no breakthrough at the November 2023 Meeting of High Contracting Parties to the CCW, even though the UN Secretary-General urged to continue to reinvent the association. Because of this no major advancement, suggestions have been made to push the discussion in other forums like the United Nations General Assembly.

Knowing that one does not have to have consensus to form international agreements paved the way for other achievements such as the Arms Trade Treaty. It may help eliminate a stalemate in the regulation of AWS.

As the debate continues, key issues include determining the appropriate forum for negotiations, balancing the interests of various stakeholders, and addressing the complex technical and ethical challenges posed by AWS. The international community faces the task of developing a regulatory framework that can effectively govern the development and use of these emerging technologies while upholding humanitarian principles and international law.

Future Implications and Conclusion

The systems signal a transformative shift in warfare and global security. These systems could significantly change military operations by reducing human casualties and increasing efficiency, but they also introduce complex ethical and legal challenges. AWS could destabilize international relations, potentially triggering new arms races and changing the balance of power between nations. The fast-paced and unpredictable nature of conflicts involving AWS heightens the risk of accidental escalation and new forms of asymmetric warfare. To address these challenges, it's crucial to develop comprehensive legal frameworks

and maintain continuous international dialogue, adapting regulations as technology evolves. Collaboration among legal experts, ethicists, technologists, and policymakers is essential for effective governance, while public engagement ensures informed decision-making and societal acceptance. The international community must act swiftly to establish robust regulatory frameworks that ensure the responsible development and use of AWS. Through international cooperation, transparency, and prioritizing ethical considerations, we can harness the potential of AWS while mitigating their risks, shaping a future that respects human rights, upholds international law, and preserves human dignity. The time for action is now to build a safer, more stable world for future generations.

References:

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2. Sugeng Riyanto & Muhammad M. Iberahim, AUTONOMOUS WEAPONS SYSTEM (AWS): WEAPON REVOLUTIONARY OR WEAPON OF MASS DESTRUCTION?, 24 IJPR 1210 (2020).

3. IF11294.pdf, https://crsreports.congress.gov/product/pdf/IF/IF11294 (last visited Jun 24, 2024).

4. Who’s regulating the autonomous weapons systems that are changing the nature of warfare?, DIVISION OF RESEARCH, https://research.northeastern.edu/autonomous-weapons-systems-the-utilize-artificial-intelligence- are-changing-the-nature-of-warfare-but-theres-a-problem-2/ (last visited Jun 24, 2024).

5. Countries demand law to control killer robots, AMNESTY INTERNATIONAL (2023), https://www.amnesty.org/en/latest/news/2023/02/more-than-30-countries-call-for-international-legal- controls-on-killer-robots/ (last visited Jun 24, 2024).

6. First Committee Approves New Resolution on Lethal Autonomous Weapons, as Speaker Warns ‘An Algorithm Must Not Be in Full Control of Decisions Involving Killing’ | Meetings Coverage and Press Releases, https://press.un.org/en/2023/gadis3731.doc.htm (last visited Jun 24, 2024).

7. Control AI, AI Is Facing Its “Oppenheimer Moment,” CONTROL AI (May 2, 2024), https://ctrlai.substack.com/p/ai-is-facing-its-oppenheimer-moment?utm_medium=reader2 (last visited Jun 24, 2024).

8. UN to Address Autonomous Weapons Systems | Arms Control Association, https://www.armscontrol.org/act/2023-12/news/un-address-autonomous-weapons-systems (last visited Jun 24, 2024).

9. Autonomous weapons: ICRC submits recommendations to UN Secretary-General | ICRC, https://www.icrc.org/en/document/autonomous-weapons-icrc-submits-recommendations-un-secretary- general (last visited Jun 24, 2024).