New Technologies and the Interplay between Certainty and Reasonableness

Abstract

Underlying ongoing and intensive efforts to understand how the law of armed conflict 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. Difficult questions about quantifying reasonableness and certainty for purposes of assigning criminal responsibility for actions taken during military operations have already emerged as international criminal justice has brought military operations into the courtroom. At the same time, the development of hi-tech weapons introduces enormous challenges for understanding how such weapons work and how to assign responsibility when things go wrong.  Demands for greater certainty are likely to increase, in turn, to help humans understand how to judge these weapons and the decisions involved in their programming and deployment. As certainty becomes an overarching need and consideration, an important question is whether that 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.

Keywords: law of armed conflict, new technologies, drones, cyber, autonomous weapons, international humanitarian law, certainty, reasonableness, distinction, proportionality, precautions