Functional Approach to the Legal Review of Autonomous Weapon Systems

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.

• ForewordAcknowledgementsList of TablesTable of AbbreviationsGlossaryPart 1Is the Traditional Approach to Legal Reviews Sufficient to Determine the Legality of Autonomous Weapon Systems?Introduction to Part 11 Introduction1 Aim2 Methodology and Scope3 Why Is This Important?4 Conclusions and Findings2 A Survey of Academic Discourse on Legal Reviews1 The icrc Period (1987–2006)2 The laws Period (2012–2017)3 The ccw gge Period (2018 to Present)3 How Does International Law Regulate aws?1 The Objectives of Weapons Law2 Sources and Development of Weapons Law2.1 Geneva Law and Hague Law3 Specific and General Weapons Law3.1 Specific Weapons Law Prohibitions3.2 General Weapons Law Prohibitions4 Martens Clause4.1 Are Ethics Relevant to the Legal Review of aws?4.2 Martens Clause as an Avenue for Considering Soft Law and National Governance Frameworks during a Legal review5 Conclusions4 Sources and Scope of the Legal Review Obligation and Application to aws1 Origins of the Legal Review Obligation1.1 Obligation of Good Faith1.2 Treaty Law – Article 36 of ap 12 Analysing the Article 36 Operative Terms2.1 ‘Study, Development, Acquisition or Adoption’2.2 ‘[N]‌ew’ Weapon, Means or Method of Warfare2.3 ‘Weapon, Means or Method of Warfare’2.4 Meaning of ‘In Some or All Circumstances’2.5 Meaning of ‘Prohibited by This Protocol or by Any Other Rule of International Law’3 Conclusions Concerning the Art 36 Operative Terms5 Identifying the Traditional Legal Review Process1 Limited State Practice2 Traditional Legal Review Process2.1 Evidence of State Practice2.2 icj – Nuclear Weapons Advisory Opinion2.3 icrc Guide2.4 Article 36 Legal Review and the National Defence Acquisition Process3 Common Steps of the Traditional Legal Review Methodology Applied to aws3.1 Preliminary Step – Determine Preliminary Questions3.2 Step 1 – Analyse Specific Weapons Law Prohibitions and Restrictions3.3 Step 2 – Apply General Prohibitions3.4 Step 3 – Other Considerations, Including National Policy4 Outcomes of the Traditional Legal Review Process4.1 Use of the Weapon in Its Normal or Expected Use Is Lawful4.2 The Use of the Weapon Is Lawful, but Limitations Are Required on Its Method of Use4.3 The Weapon Is Unlawful in All Circumstances4.4 Legal Review Outcomes Applied to aws5 Traditional Legal Review Dichotomy between Weapons Law and Targeting Law5.1 Applying Targeting Law in the Legal Review of an aws6 ConclusionsPart 2How Can a State Determine the Legality of an aws?Introduction to Part 26 Interpretive and Methodological Questions in the Legal Review of aws1 Article 36’s Interpretive Questions Arising from Autonomy in Weapons1.1 Can the Legal Reviewer Presume an aws Will Be Used Lawfully?1.2 Does the Legal Review of an aws Need to Identify Lines of Human Responsibility?1.3 What Standards of ihl Compliance Are Required to Pass a Legal Review?2 Methodological Questions2.1 Should a Legal Review of aws Occur before and after the ‘Study, Development, Acquisition or Adoption’?2.2 Should States Inform Industry of Their Legal Review Requirements?2.3 Should a Legal Review Continue during an aws’ In-Service Life?3 Conclusions Arising from the Interpretive and Methodological Questions7 An Additional ‘Functional’ Legal Review Step to Address Autonomy in Weapons1 Adding a Functional Review Step to the Traditional Legal Review Methodology2 Describing the Elements of the ‘Functional Review’ Step2.1 Functional Review (Element 1/8) – Identifying the ihl Rules Governing the aws’ Normal or Expected Use2.2 Function Review (Element 2/8) – Identify the Standards of Legal Compliance Required to Determine Legality for that Function2.3 Functional Review (Element 3/8) – Identify the Operational Context in Which the aws Will Perform the Function2.4 Functional Review (Element 4/8) – Obtain aws Functional, Technical and Performance Information2.5 Functional Review (Element 5/8) – Conduct a Legal Risk Analysis of Each aws Function Governed by ihl2.6 Functional Review (Element 6/8) – Determine the Appropriate Level of Human Control2.7 Functional Review (Element 7/8) – Identify Lines of Human Responsibility2.8 Functional Review (Element 8/8) – Trust from Reliability, Predictability and Explainability3 Conclusion8 Proposal to Expand the Legal Review throughout the aws’ Lifecycle1 Stage 1 – Informative Stage1.1 Early Legal Review Self-assessment2 Stage 2 – Determinative Stage2.1 Test and Evaluation during the Determinative Stage3 Stage 3 – Governance Stage3.1 Relationship between Article 36 and Article 82 of ap 13.2 Environmental and Operational Certification3.3 Functional Re-review4 Conclusion9 Conclusions and FindingsBibliographyIndex