New technologies and the interplay between certainty and reasonableness
Complex battlespaces : the law of armed conflict and the dynamics of modern warfare
New York : Oxford University Press, 2019
Underlying ongoing and intensive efforts to understand how the law of armed conflict (LOAC) does, could, and should apply to the use of new technologies is an equally comprehensive effort to understand precisely what these new weapons are and how they work. Many new technologies introduce unique questions for human understanding, often driven and exacerbated by the fact that the technology is out of sight or out of reach of human senses, making actual concrete understanding of how it works challenging and elusive. Effective legal analysis and guidance for the use of any weapon rests on an accurate understanding of how that weapon works. This uncertainty and quest for more determinative information about the nature of certain new technologies has the potential for unintended and possibly untoward effects on the very implementation and application of the law itself—in effect, it has the potential to change the law. As in many other legal regimes, critical components of legal analysis and interpretation in LOAC involve reasonableness: that is, whether the actions of a commander were reasonable in the circumstances prevailing at the time. In contrast, the need to understand how a new technology works and what it might do in a given situation, particularly with regard to autonomy, is not an inquiry resting on reasonableness, but rather on the desire for as much certainty as possible. This chapter examines how the development and use of new technologies in weapons may impact the balance between reasonableness and certainty in LOAC, in particular whether a quest for certainty will bleed over into the application and interpretation of the law and, over time, affect the development and understanding of the law itself.