Beyond Skynet : reconciling increased autonomy in computer-based weapons systems with the laws of war
Christopher M. Kovach
Host item entries:
The air force law review, Vol. 71, 2014, p. 231-277
Autonomous cyberweapons differ from traditional semi-autonomous weapons, such as “fire and forget” weapons that rely upon technology to acquire, track, and engage human-selected targets because in those cases, “human control is retained over the decision to select individual targets and specific target groups for engagement.” In the case of autonomous cyberweapons, this human control is, at best, shared between the programmer and the operator; and in some cases, the operator might exercise almost no control whatsoever. This Article explores how LOAC applies to these autonomous cyberweapons, or software used to launch attacks in the domain of cyberspace. Part I examines whether the laws of war permit the deployment of autonomous cyberweapons. It begins by assessing how the principles of proportionality and distinction apply. Next, since LOAC prohibits any attack that might cause excessive collateral damage when compared to the military advantage gained, this section critically examines the important case of dual-use facilities, meaning the infrastructure jointly used by the military and civilians. Finally, it concludes by exploring what mechanisms are needed to ensure these weapons respect the laws of war. Part II analyzes the composition of non-uniformed DoD personnel in cyberweapons’ design phases and how LOAC impacts theirstatus as combatants. Involving non-uniformed personnel, such as civilians and contractors, in the design of autonomous cyberweapons could place them within the reach of LOAC for possible violations of the laws of war. Part III considers DoD’s process for formally reviewing an autonomous cyberweapon’s compliance with LOAC. With current guidance, there exists a real risk that legal advisors providing on-demand advice during a cyberweapon’s operation knows little about the weapon or its capabilities. This section explores the current legal review process for cyberweapons and identifies potential shortfalls. It also offers suggestions for improving the process, grounded in the assumption that, while even the untrained can readily grasp the effects of most conventional weapons, cyberweapons are different.