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A Functional Approach to the Legal Review of Autonomous Weapon Systems de Damian Copeland

A Functional Approach to the Legal Review of Autonomous Weapon Systems: International Humanitarian Law Series, cartea 72

Autor Damian Copeland
en Limba Engleză Hardback – 31 oct 2024
Autonomous Weapon Systems (AWS) are no longer limited to science fiction. Conflicts in the Ukraine and Gaza demonstrate an increased trend toward the use of autonomy in the use of force in armed conflict. This book analyses the art 36 legal review obligation and assesses how states can determine the legality of AWS. It proposes a new ‘functional’ approach to legal review that considers both weapons law and targeting rules engaged by the autonomous functionality.
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Specificații

ISBN-13: 9789004707030
ISBN-10: 9004707034
Pagini: 255
Dimensiuni: 155 x 235 mm
Greutate: 0 kg
Editura: Brill
Colecția Brill | Nijhoff
Seria International Humanitarian Law Series

Notă biografică

Damian Copeland, Ph.D. (2023), Australian National University, is the Director of Operations and International Law in the Australian Department of Defence. He is responsible for conducting Article 36 legal reviews for the Australian Defence Force.

Cuprins

Foreword

Acknowledgements

List of Tables

Table of Abbreviations

Glossary

Part 1
Is the Traditional Approach to Legal Reviews Sufficient to Determine the Legality of Autonomous Weapon Systems?
Introduction to Part 1

1Introduction
1 Aim

2 Methodology and Scope

3 Why Is This Important?

4 Conclusions and Findings


2A Survey of Academic Discourse on Legal Reviews
1 The icrc Period (1987–2006)

2 The laws Period (2012–2017)

3 The ccw gge Period (2018 to Present)


3How Does International Law Regulate aws?
1 The Objectives of Weapons Law

2 Sources and Development of Weapons Law
2.1Geneva Law and Hague Law


3 Specific and General Weapons Law
3.1Specific Weapons Law Prohibitions

3.2General Weapons Law Prohibitions


4 Martens Clause
4.1Are Ethics Relevant to the Legal Review of aws?

4.2Martens Clause as an Avenue for Considering Soft Law and National Governance Frameworks during a Legal review


5 Conclusions


4Sources and Scope of the Legal Review Obligation and Application to aws
1 Origins of the Legal Review Obligation
1.1Obligation of Good Faith

1.2Treaty Law – Article 36 of ap 1


2 Analysing the Article 36 Operative Terms
2.1‘Study, Development, Acquisition or Adoption’

2.2‘[N]‌ew’ Weapon, Means or Method of Warfare

2.3‘Weapon, Means or Method of Warfare’

2.4Meaning of ‘In Some or All Circumstances’

2.5Meaning of ‘Prohibited by This Protocol or by Any Other Rule of International Law’


3 Conclusions Concerning the Art 36 Operative Terms


5Identifying the Traditional Legal Review Process
1 Limited State Practice

2 Traditional Legal Review Process
2.1Evidence of State Practice

2.2icj – Nuclear Weapons Advisory Opinion

2.3icrc Guide

2.4Article 36 Legal Review and the National Defence Acquisition Process


3 Common Steps of the Traditional Legal Review Methodology Applied to aws
3.1Preliminary Step – Determine Preliminary Questions

3.2Step 1 – Analyse Specific Weapons Law Prohibitions and Restrictions

3.3Step 2 – Apply General Prohibitions

3.4Step 3 – Other Considerations, Including National Policy


4 Outcomes of the Traditional Legal Review Process
4.1Use of the Weapon in Its Normal or Expected Use Is Lawful

4.2The Use of the Weapon Is Lawful, but Limitations Are Required on Its Method of Use

4.3The Weapon Is Unlawful in All Circumstances

4.4Legal Review Outcomes Applied to aws


5 Traditional Legal Review Dichotomy between Weapons Law and Targeting Law
5.1Applying Targeting Law in the Legal Review of an aws


6 Conclusions


Part 2
How Can a State Determine the Legality of an aws?
Introduction to Part 2

6Interpretive and Methodological Questions in the Legal Review of aws
1 Article 36’s Interpretive Questions Arising from Autonomy in Weapons
1.1Can the Legal Reviewer Presume an aws Will Be Used Lawfully?

1.2Does the Legal Review of an aws Need to Identify Lines of Human Responsibility?

1.3What Standards of ihl Compliance Are Required to Pass a Legal Review?


2 Methodological Questions
2.1Should a Legal Review of aws Occur before and after the ‘Study, Development, Acquisition or Adoption’?

2.2Should States Inform Industry of Their Legal Review Requirements?

2.3Should a Legal Review Continue during an aws’ In-Service Life?


3 Conclusions Arising from the Interpretive and Methodological Questions


7An Additional ‘Functional’ Legal Review Step to Address Autonomy in Weapons
1 Adding a Functional Review Step to the Traditional Legal Review Methodology

2 Describing the Elements of the ‘Functional Review’ Step
2.1Functional Review (Element 1/8) – Identifying the ihl Rules Governing the aws’ Normal or Expected Use

2.2Function Review (Element 2/8) – Identify the Standards of Legal Compliance Required to Determine Legality for that Function

2.3Functional Review (Element 3/8) – Identify the Operational Context in Which the aws Will Perform the Function

2.4Functional Review (Element 4/8) – Obtain aws Functional, Technical and Performance Information

2.5Functional Review (Element 5/8) – Conduct a Legal Risk Analysis of Each aws Function Governed by ihl

2.6Functional Review (Element 6/8) – Determine the Appropriate Level of Human Control

2.7Functional Review (Element 7/8) – Identify Lines of Human Responsibility

2.8Functional Review (Element 8/8) – Trust from Reliability, Predictability and Explainability


3 Conclusion


8Proposal to Expand the Legal Review throughout the aws’ Lifecycle
1 Stage 1 – Informative Stage
1.1Early Legal Review Self-assessment


2 Stage 2 – Determinative Stage
2.1Test and Evaluation during the Determinative Stage


3 Stage 3 – Governance Stage
3.1Relationship between Article 36 and Article 82 of ap 1

3.2Environmental and Operational Certification

3.3Functional Re-review


4 Conclusion


9Conclusions and Findings


Bibliography

Index