Autonomous Weapons and the Problem of State Accountability

Table of ContentsI. Introduction 654II. Background on Autonomous Weapons Systems 658III. The Accountability Problem 662A. Proposed Options for Individual Accountability 6641. Commanding-officer liability 6642. Designer or manufacturer liability 665B. The Superiority of State Liability 668IV. Autonomous Weapons and International Law 671A. Autonomous Weapons and International Humanitarian Law 672B. Autonomous Weapons and International Human Rights Law 674V. State Accountability for Automated Weapon Systems' Crimes 677A. Accountability in the International Court of Justice 677B. Accountability in Domestic Courts 681VI. Conclusion 685I. IntroductionOn October 24, 2012, a U.S. drone strike killed an elderly woman in front of her grandchildren as she tended her crops in northern Pakistan.1 Absent some legitimate justification,2 the drone strike almost certainly violates international law,3 and the pilots could potentially be held criminally liable.4 In fact, if the pilot deployed the drone's missiles with some illicit motive (to avenge his fallen comrades, for example), he would definitely be guilty of a war crime.5But what happens when the pilot is removed from the equation? What if the drone operated completely on its own (that is, without human oversight) by virtue of highly sophisticated artificial intelligence? If this fully autonomous weapon had killed the Pakistani grandmother without lawful justification, who should be held responsible for the crime?This scenario may seem far-fetched, given that no country currently fields any drones that can operate with this level of autonomy.6 The technology that would enable the deployment of such fully autonomous weapon systems (AWSs), however, may emerge in the near future.7 As these systems will have the capacity to engage targets without human intervention, many scholars believe they could replace drones in future conflicts.8Furthermore, while the technology may seem a bit remote, the issue is already beginning to take center stage among international law scholars and actors. Major human rights organizations and prominent scholars have spoken out against AWSs,9 and the U.N. has begun to consider a preemptive ban on them.10 Indeed, some think that the international community will reach an agreement on these weapons in the next few years."As the potential ban demonstrates, the prospect of removing humans from the combat loop has produced discomfort among some human rights groups.12 One major concern they have raised is the accountability problem outlined above.13 The weapons' artificial intelligence will enable them to analyze information, determine courses of action, and execute responses to differing situations without human involvement.14 Unlike the activities of human-operated drones, an AWS's actions are not easily attributable to a particular person.15 This, in combination with other factors, has led some scholars to question whether the mere use of AWSs inherently violates international law.16 Furthermore, even if such use by itself does not violate international law,17 an individual weapon could certainly produce a violation in a given instance. …