New Technologies in International Law / Tymofeyeva, Crhák et al.

To be considered fully autonomous, a weapon should be capable of carrying out the entire decision-making loop, including, for example, target identification. These are referred to as human-out of-the-loop systems. There is some debate as to whether out of-the-loop weapons systems exist, though arguably, some loitering munitions could be categorised as such. 44 Even here though, if operation is monitored by a human in any way (e.g., being recoverable via an input to abort the mission), a loitering munition would be classified a human-on-the-loop system. While weapons development is shrouded in a veil of secrecy, most armed swarms in development, or in operation today are human-on-the-loop systems. These cannot therefore be considered fully autonomous, a human generally being involved in the decision-making process (e.g., identification of target(s), or mission). Human-out-of the-loop armed swarms are the primary focus of this paper, though semi-autonomous swarms may still be affected if the recommendations made herein are implemented. However, it is the fully autonomous form of targeting based on characteristics that the following recommendation primarily seeks to restrict. 2. Armed Swarms and Bombardment Given it is almost half a century since the Additional Protocols entered into force it is unlikely that its drafters imagined its rules would ever be applied to a technology that replaced human combatants. Nonetheless, AI enabled weapons, even if not yet fully autonomous, have already been deployed, 45 and more advanced systems will almost certainly follow. With that in mind, IHL must arguably be interpreted and applied, in good faith, and in such a way that accounts for such advances. As previously noted, 51(5)(b) API is a provision that could be key to regulating the most controversial of all armed swarm deployments, i.e., those that are capable of selecting and engaging targets based upon pre-defined criteria. This obligation provides, 46 Indiscriminate attacks are prohibited…[a]mong others, the following types of attacks are to be considered as indiscriminate: an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects. To demonstrate how this provision should be used to limit armed swarm deployments, this remainder of this section undertakes a simple interpretive exercise. This begins by considering the ordinary meaning of the term ‘bombardment’, which is the primary focus for this paper. Here, if asked to imagine an act of bombardment, one might be drawn to the carpet-bombing tactics used by the Allied and Nazi forces during 44 See, Rheinmetall, Hero Loitering Munitions. Here Rheinmetall identify that ‘the term loitering munition… is derived from the munition’s ability to remain undetected in the airspace above the target area for an extended period of time and to strike when the right moment arrives.’ See, ‘Hero Loitering Munitions’ ( Rheinmetall ) accessed 1 November 2023.

45 Loitering munitions being an obvious example. 46 When read in conjunction with Art. 51(4) API.

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