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One of the most intriguing and important discussions in international law is the potential impact of emerging technologies on the law of armed conflict (LOAC), including weapons that incorporate machine learning and/or artificial intelligence. Because one of the likely characteristics of these advanced weapons would be the ability to make decisions implicating life and death on the battlefield, these discussions have highlighted a fundamental question concerning the LOAC: Does the law regulating armed conflict require human input in selecting and engaging targets or can that decision be made without human input? This article analyzes views expressed by scholars and NGOs, but focuses on views expressed by States, many of which have been publicized as part of the discussions of States Parties to the Convention on Certain Conventional Weapons. These differing State views make clear that States have not yet come to a consensus on the legal requirement of human decision making for LOAC compliance. Given that lack of consensus, one can only conclude that the law does not currently require a human decision for selecting and engaging targets. Indeed, though the international community may come to such a decision, it has not yet done so. Accordingly, States should continue to research and develop weapons that incorporate machine learning and artificial intelligence because such weapons offer the promise of not only greater LOAC compliance, but also increased opportunities to provide new and creative protections.

Already a controversial topic, legal debate and broader discussions concerning the amount of human control required in the employment of autonomous weapons—including autonomous cyber capabilities—continues. These discussions, particularly those taking place among States that are Parties to the 1980 Certain Conventional Weapons Convention, reveal a complete lack of consensus on the requirement of human control and serve to distract from the more important question with respect to autonomy in armed conflict: under what conditions could autonomous weapons "select" and "attack" targets in a manner that complies with the law of armed conflict (LOAC). This article analyzes the specific LOAC rules on precautions in attack, as codified in Article 57 of Additional Protocol I, and asserts that these rules do not require human judgment in targeting decisions. Rather, these rules prescribe a particular analysis that must be completed by those who plan or decide upon an attack prior to exercising force, including decisions made by autonomous systems without meaningful human control. To the extent that autonomous weapons and weapons systems using autonomous functions can be designed and employed in such a way to comply with all required precautions, they would not violate the LOAC. A key feature of determining the ability of autonomous weapons and weapons systems using autonomous functions to meet these requirements must be a rigorous weapons review process.

AbstractThe conduct of hostilities in urban areas is inherently difficult, particularly with respect to the protection of civilians. International humanitarian law places restraints on both attackers and defenders. While much is written about the obligations of attackers with respect to protecting civilians, much less attention has been paid to the defender's obligations. These obligations are routinely referred to as "passive precautions" or "precautions against the effects of attacks" and are codified in Article 58 of Additional Protocol I to the 1949 Geneva Conventions. Article 58 requires parties, "to the maximum extent feasible", to remove civilians and civilian objects from the vicinity of military objectives, to avoid locating military objectives within or near densely populated areas, and to take other necessary precautions to protect civilians and civilian objects from the dangers resulting from military operations.Even though they are limited by only requiring those actions which are feasible, the obligations placed on the defender are far from trivial and, if applied in good faith, would certainly provide much needed protections to civilians in armed conflict, particularly in times of urban conflict. However, this ever-increasing urbanization is creating significant pressure on the doctrine of precautions in defence, stretching the "feasibility" standard beyond its capacity to adequately protect civilians. On the other hand, the emergence of advanced technology provides a mechanism for defenders to more easily and more fully comply with their obligations to segregate or protect the civilian population.For the customary obligation of "precautions against the effects of attacks" to maintain its effectiveness, particularly in urban areas of conflict, the understanding of feasibility and what is "practicable" in current urbanized armed conflicts will have to expand, increasing the practical responsibilities on the defender, including through the use of modern technology. Moreover, imposing criminal responsibility when appropriate and feasible precautions are not taken will rectify the perceived imbalance between the responsibilities of the attacker and those of the defender.