At War with the Robots: Autonomous Weapon Systems and the Martens Clause

Abstract

This Note examines arguments for preemptively prohibiting the development and use of autonomous weapon systems under the Martens Clause. This Note identifies the Martens Clause as a tenuous but discernible threat to such systems under the Law of Armed Conflict because the Clause's "dictates of the public conscience," interpreted broadly, could provide the grounds upon which to prohibit autonomous weapon systems before such systems even exist -- unlike the more traditional pillars of the Law of Armed Conflict, such as distinction and proportionality, which would require, at the very least, an analysis of the weapon systems' use and effects to invalidate any particular weapon.

Having analyzed the various interpretations of the Martens Clause, this Note suggests how states seeking to develop autonomous weapon systems might proceed in order to protect their interests.

Keywords: autonomous weapon systems, lethal robots, law of armed conflict, international law, law of war, martens clause, demartens clause, dictates of public conscience, principles of humanity, lethal autonomous robot, losing humanity, weapons law, military robots, autonomous weapons, Hofstra Law Review