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

overcome. 53 Semantics aside, the key point here is that it is not particularly difficult to prove that an armed swarm operates in a continuous manner, or that the individual elements are a form of weapon to which IHL is applicable. Therefore, when the relevant terms are given their ordinary meaning a swarm can quite readily be defined as (at least a form) of bombardment. Having demonstrated how a swarm deployment can be classified as a form of bombardment, it is still important to consider the nature of the deployment. This is because, Article 51(5)(b) does not absolutely prohibit this tactic. Instead, to be considered a violation of IHL, a bombardment must treat ‘as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village…’ 54 Here, it is vitally important to consider the perspective of the individual authorising the drone deployment, who, simply put, will generally deploy a swarm with an instruction such as, target all males of a military age within a pre-defined area. The point here that the decision-maker does not identifying the individual targets. Instead, they merely direct a swarm to a geographical area which is likely to contain several unidentified targets. However, this is clearly another way of stating they are treating several clearly separated and distinct military objectives, that are located in an urban environment, as a single military objective. Consequently, this form of swarm deployment must be considered a violation of Art. 51 (5)(b) API, in that the attack is conducted in an indiscriminate manner. Conclusion Autonomous armed swarms are at the cutting edge of weapons technology. And while they are not yet fully developed, they have the potential to significantly change battlefield operations, despite being relatively cheap to produce. Many are concerned, and perhaps somewhat justifiably, that even where civilians are not made the direct object of attack, the consequences of large-scale urban deployments may still cause great deal of civilian harms - both physical and psychological. As result, there are calls for swarm deployments to be prohibited. An issue, however, is that not all armed swarm deployments will necessarily interfere with the civilian space. Indeed, swarms cannot be demonstrated to be unlawful, per se. It is argued, therefore, that armed swarms should be regulated instead. This paper has demonstrated that Article 51 (5)(b) API can be interpreted to account for this emerging technology, and its particularly novel way of interacting with the environment. To do this, the distinction assessment must simply be made at the point that the military decision-maker authorises a swarm deployment, as opposed to the point of the actual attack. If this is recommendation is implemented, there will be a significant number of instances where a decision-maker will have to refrain from launching an attack or else they would effectively be treating several clearly separated and distinct military objectives as a single military objective, which is prohibited by IHL.

53 ‘Shell’, Oxford Dictionary (n 48). 54 Article 51 (5)(b) API.

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