Regulating armed drone swarms under international law

Pollard, Mike

Abstract

One of the most controversial military systems currently under development today are autonomous weapons systems (AWS). Indeed, many states are urging the United Nations to prohibit AWS by way of a specific treaty. The term AWS is, nevertheless, somewhat ambiguous given it is not applied to a particular form of weapon, but rather a weapon’s ability to utilise artificial intelligence (AI) in support of its own decision-making processes. An AWS is, simply put, any weapon that can make its own decisions about who lives and who dies on a battlefield.
For some, the most troubling form of AWS is armed swarming drones. This technology is still in its developmental infancy. However, swarms are typically designed to mimic the dense collections of insects found in nature. Armed swarms are therefore a collection of identical elements, which are typically envisaged as non-recoverable munitions. One grave concern is that once fully developed, large swarms could be deployed onto the contemporary urbanised battlefield with little regard of the civilian population located within it.
When deployed in armed conflict, into an environment that has a concentration of civilians or civilian objects, an armed swarm must be capable of adhering with the obligations stemming from International Humanitarian Law (IHL). This includes, not least, the principle of distinction. To do this a swarm could be programmed to target only enemy tanks. Then, utilizing sensors (e.g., RADAR and LIDAR) and cameras, the AI could distinguish between such tanks and, for example, a civilian pick-up truck carrying a scaffold bar. If technology did allow for the swarm to operate in this manner, and the AI could instruct the swarm to only attack the former, the principle of distinction could, at least on the face of it, be adhered to.
A key concern, however, is that an armed swarm might also be authorised to engage individuals based upon certain pre-defined characteristics. An example of this might be where a swarm was deployed into an urban environment with the instruction to target all males of a military age. This form of instruction raises a variety of issues, not least those of an ethical nature. Questions must be also asked about the physical and physiological well-being of a civilian population where the swarm is deployed. Adherence to the IHL principle of distinction is also questionable, given this requires a wider assessment as to whether any potential target is participating in the conflict (or whether they are legally protected against direct attack being a civilian or person hors du combat).
In this paper the author argues that if IHL is interpreted in good faith, with the ordinary meaning given to the terms contained within Additional Protocol I (API) (as is required by Article 31 Vienna Convention on the Law of Treaties), a swarm can be considered a bombardment. And in doing so there will be many instances in which armed swarm deployments would be unlawful under Article 51(5)(b) API Article 51. Consequently, while this proposal could not be used to support an absolute prohibition on armed swarm deployments, it could help to significantly restrict them.

Citation

Pollard, M. (2023, November). Regulating armed drone swarms under international law. Paper presented at New Technologies and International Law, Charles University, Prague, Czech Republic

• Presentation Conference Type: Conference Paper (unpublished)
• Conference Name: New Technologies and International Law
• Conference Location: Charles University, Prague, Czech Republic
• Start Date: Nov 23, 2023
• End Date: Nov 24, 2023
• Deposit Date: Dec 1, 2023
• Publicly Available Date: Dec 5, 2023
• Public URL: https://uwe-repository.worktribe.com/output/11470793
• Publisher URL: https://www.prf.cuni.cz/aktuality/new-technologies-international-law-23-24-november-2023