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Many people question whether the decision to kill a human being should be left to a machine. There are also grave doubts that fully autonomous weapons would ever be able to replicate human judgment and comply with the legal requirement to distinguish civilian from military targets.
Other potential threats include the prospect of an arms race and proliferation to armed forces with little regard for the law. These concerns are compounded by the obstacles to accountability that would exist for unlawful harm caused by fully autonomous weapons. This report analyzes in depth the hurdles to holding anyone responsible for the actions of this type of weapon.
It also shows that even if a case succeeded in assigning liability, the nature of the accountability that resulted might not realize the aims of deterring future harm and providing retributive justice to victims.
Fully autonomous weapons themselves cannot substitute for responsible humans as defendants in any legal proceeding that seeks to achieve deterrence and retribution. Furthermore, a variety of legal obstacles make it likely that humans associated with the use or production of these weapons—notably operators and commanders, programmers and manufacturers—would escape liability for the suffering caused by fully autonomous weapons.
Neither criminal law nor civil law guarantees adequate accountability for individuals directly or indirectly involved in the use of fully autonomous weapons. The need for personal accountability derives from the goals of criminal law and the specific duties that international humanitarian and human rights law impose. Regarding goals, punishment of past unlawful acts aims to deter the commission of future ones by both perpetrators and observers aware of the consequences.
In addition, holding a perpetrator responsible serves a retributive function. It gives victims the satisfaction that a guilty party was condemned and punished for the harm they suffered and helps avoid collective blame and promote reconciliation.
Regarding duties, international humanitarian law mandates personal accountability for grave breaches, also known as war crimes. Existing mechanisms for legal accountability are ill suited and inadequate to address the unlawful harms fully autonomous weapons might cause.
These weapons have the potential to commit criminal acts—unlawful acts that would constitute a crime if done with intent—for which no one could be held responsible. Human commanders or operators could not be assigned direct responsibility for the wrongful actions of a fully autonomous weapon, except in rare circumstances when those people could be shown to have possessed the specific intention and capability to commit criminal acts through the misuse of fully autonomous weapons.
The autonomous nature of killer robots would make them legally analogous to human soldiers in some ways, and thus it could trigger the doctrine of indirect responsibility, or command responsibility. A commander would nevertheless still escape liability in most cases. These criteria set a high bar for accountability for the actions of a fully autonomous weapon. Command responsibility deals with prevention of a crime, and since robots could not have the mental state to commit an underlying crime, command responsibility would never be available in situations involving these weapons.
If that issue were set aside, however, given that the weapons are designed to operate independently, a commander would not always have sufficient reason or technological knowledge to anticipate the robot would commit a specific unlawful act. Even if he or she knew of a possible unlawful act, the commander would often be unable to prevent the act, for example, if communications had broken down, the robot acted too fast to be stopped, or reprogramming was too difficult for all but specialists.
In the end, fully autonomous weapons would not fit well into the scheme of criminal liability designed for humans, and their use would create the risk of unlawful acts and significant civilian harm for which no one could be held criminally responsible.
An alternative approach would be to hold a commander or a programmer liable for negligence if, for example, the unlawful acts brought about by robots were reasonably foreseeable, even if not intended. Such civil liability can be a useful tool for providing compensation for victims and provides a degree of deterrence and some sense of justice for those harmed.
It imposes lesser penalties than criminal law, however, and thus does not achieve the same level of social condemnation associated with punishment of a crime. Regardless of the nature of the penalties, attempts to use civil liability mechanisms to establish accountability for harm caused by fully autonomous weapons would be equally unlikely to succeed.
On a practical level, even in a functional legal system, most victims would find suing a user or manufacturer difficult because their lawsuits would likely be expensive, time consuming, and dependent on the assistance of experts who could deal with the complex legal and technical issues implicated by the use of fully autonomous weapons.
The legal barriers to civil accountability are even more imposing than the practical barriers. They are exemplified by the limitations of the civil liability system of the United States, a country which is generally friendly to litigation and a leader in the development of autonomous technology. Immunity for the US military and its defense contractors presents an almost insurmountable hurdle to civil accountability for users or producers of fully autonomous weapons.
The military is immune from lawsuits related to: Manufacturers contracted by the military are similarly immune from suit when they design a weapon in accordance with government specifications and without deliberately misleading the military. These same manufacturers are also immune from civil claims relating to acts committed during wartime.
Even without these rules of immunity, a plaintiff would find it challenging to establish that a fully autonomous weapon was legally defective for the purposes of a product liability suit. The fact that a fully autonomous weapon killed civilians would also not necessarily indicate a manufacturing defect: A system of providing compensation without establishing fault has been proposed for other autonomous technologies.
Under such a scheme, victims would have to provide only proof that they had been harmed, not proof that the product was defective.
This approach would not, however, fill the accountability gap that would exist were fully autonomous weapons used.
No-fault compensation is not the same as accountability, and victims of fully autonomous weapons are entitled to a system that punishes those responsible for grave harm, deters further harm, and shows that justice has been done. Some proponents of fully autonomous weapons argue that the use of the weapons would be acceptable in limited circumstances, but once they are developed and deployed, it would be difficult to restrict them to such situations.
Proponents also note that a programmer or operator could be held accountable in certain cases, such as when criminal intent is proven. As explained in this report, however, there are many other foreseeable cases involving fully autonomous weapons where criminal and civil liability would not succeed. Even if the law adopted a strict liability regime that allowed for compensation to victims, it would not serve the purposes of deterrence and retribution that international humanitarian and human rights law seek to achieve.
This report argues that states should eliminate this accountability gap by adopting an international ban on fully autonomous weapons. Fully autonomous weapons are weapons systems that would select and engage targets without meaningful human control. They are also known as killer robots or lethal autonomous weapons systems. Fully autonomous weapons do not yet exist, but technology is moving in their direction, and precursors are already in use or development.
For example, many countries use weapons defense systems—such as the Israeli Iron Dome and the US Phalanx and C-RAM—that are programmed to respond automatically to threats from incoming munitions. In addition, prototypes exist for planes that could autonomously fly on intercontinental missions UK Taranis or take off and land on an aircraft carrier US XB. The lack of meaningful human control places fully autonomous weapons in an ambiguous and troubling position.
On the one hand, while traditional weapons are tools in the hands of human beings, fully autonomous weapons, once deployed, would make their own determinations about the use of lethal force. They would thus challenge long-standing notions of the role of arms in armed conflict, and for some legal analyses, they would be more akin to a human soldier than to an inanimate weapon.
On the other hand, fully autonomous weapons would fall far short of being human. Indeed, they would resemble other machines in their lack of certain human characteristics, such as judgment, compassion, and intentionality.
This quality underlies many of the objections that have been raised in response to the prospect of fully autonomous weapons. This report analyzes one of the most important of these objections: While proponents of fully autonomous weapons tout such military advantages as faster-than-human reaction times and enhanced protection of friendly forces, opponents, including Human Rights Watch and IHRC, believe the cumulative risks outweigh any benefits.
In addition, although fully autonomous weapons would not be swayed by fear or anger, they would lack compassion, a key safeguard against the killing of civilians. Because these weapons would revolutionize warfare, they could also trigger an arms race; if one state obtained such weapons, other states might feel compelled to acquire them too.
Once developed, fully autonomous weapons would likely proliferate to irresponsible states or non-state armed groups, giving them machines that could be programmed to indiscriminately kill their own civilians or enemy populations. Some critics also argue that the use of robots could make it easier for political leaders to resort to force because using such robots would lower the risk to their own soldiers; this dynamic would likely shift the burden of armed conflict from combatants to civilians.
Finally, fully autonomous weapons would face significant challenges in complying with international law. They would lack human characteristics generally required to adhere during armed conflict to foundational rules of international humanitarian law, such as the rules of distinction and proportionality.
The obstacles to compliance, which are elaborated on below, not only endanger civilians, but also increase the need for an effective system of legal accountability to respond to any violations that might occur. Fully autonomous weapons would face great, if not insurmountable, difficulties in reliably distinguishing between lawful and unlawful targets as required by international humanitarian law.
The weapons would lack human qualities that facilitate making such determinations, particularly on contemporary battlefields where combatants often seek to conceal their identities. Distinguishing an active combatant from a civilian or injured or surrendering soldier requires more than the deep sensory and processing capabilities that might be developed. It also depends on the qualitative ability to gauge human intention, which involves interpreting subtle, context-dependent clues, such as tone of voice, facial expressions, or body language.
Humans possess the unique capacity to identify with other human beings and are thus equipped to understand the nuances of unforeseen behavior in ways in which machines—which must be programmed in advance—simply are not.
The obstacles presented by the principle of distinction are compounded when it comes to proportionality, which prohibits attacks in which expected civilian harm outweighs anticipated military advantage. Because proportionality relies heavily on a multitude of contextual factors, the lawful response to a situation could change considerably by slightly altering the facts.
Fully autonomous weapons have the potential to contravene the right to life, which is the bedrock of international human rights law. Each of these prerequisites for lawful force involves qualitative assessments of specific situations. Due to the infinite number of possible scenarios, robots could not be pre-programmed to handle every specific circumstance.
In addition, when encountering unforeseen situations, fully autonomous weapons would be prone to carrying out arbitrary killings because they would face challenges in meeting the three requirements for the use of force. According to many roboticists, it is highly unlikely in the foreseeable future that robots could be developed to have certain human qualities, such as judgment and the ability to identify with humans, that facilitate compliance with the three criteria.
The concept of human dignity also lies at the heart of international human rights law. As inanimate machines, they could comprehend neither the value of individual human life nor the significance of its loss.
Therefore, on top of putting civilians at risk, allowing fully autonomous weapons to make determinations to take life away would conflict with the principle of dignity. Some proponents of fully autonomous weapons argue that the answer to the legal concerns discussed above is to limit the circumstances in which the weapons are used. They contend that there are some potential uses, no matter how limited or unlikely, where fully autonomous weapons would be both militarily valuable and capable of conforming to the requirements of international humanitarian law.
The regulatory approach does not eliminate all the risks of fully autonomous weapons. It is difficult to restrict use of weapons to narrowly constructed scenarios. Once fully autonomous weapons came into being under a regulatory regime, they would be vulnerable to misuse. Even if regulations restricted use of fully autonomous weapons to certain locations or specific purposes, after the weapons entered national arsenals countries that usually respect international humanitarian law could be tempted in the heat of battle or in dire circumstances to use the weapons in ways that increased the risk of laws of war violations.
For example, before adoption of the Convention on Cluster Munitions, proponents of cluster munitions often maintained that the weapons could be lawfully launched on a military target alone in an otherwise unpopulated desert. Even generally responsible militaries, however, made widespread use of cluster munitions in populated areas. Such theoretical possibilities should not be used to legitimize weapons, including fully autonomous ones, that pose significant humanitarian risks when used in less exceptional situations.
They could use the weapons in intentional or indiscriminate attacks against their own people or civilians in other countries with horrific consequences. An absolute, legally binding ban on fully autonomous weapons would provide several distinct advantages over formal or informal constraints. It would maximize protection for civilians in conflict because it would be more comprehensive than regulation. It would be more effective as it would prohibit the existence of the weapons and be easier to enforce.
Finally, it would obviate other problems with fully autonomous weapon, such as moral objections and the potential for an arms race. A ban would also minimize the problems of accountability that come with regulation.
By legalizing limited use of fully autonomous weapons, regulation would open the door to situations where accountability challenges arise. If the weapons were developed and deployed, there would be a need to hold persons responsible for violations of international law involving the use of these weapons. The rest of this report elaborates on the hurdles to ensuring accountability for unlawful acts committed by fully autonomous weapons that meets these goals.