Brooklyn Journal of International Law

First Page



The development and well-established principles of Internationla Humanitarian Law have been progressively establishing limits to the means and methods of warfare. Those principles and rules are necessarily applicable to future autonomous weapon systems (AWS), but questions regarding liability for violations of IHL caused by AWS have been looming the international debate. This article has two parts. The first part aims to identify a technical dimension of AWS that has been neglected by international lawyers: States responsibility for IHL violations caused by errors in AWS’ software. This article argues that “errors” can neither be identified with “malfunctions” nor attributed to human fault and, therefore, they should be attributed to the deploying State. The second part of the article looks at the obligations of AWS deploying State, namely the obligations of due diligence enshrined in Common Article 1 of the 1949 Geneva Conventions and to Article 36 API. However, as the articles concludes, although the deploying States have the duty to “respect and ensure respect” for the laws of war, and to conduct legal reviews of new weapons, the reality is that state practice shows that States tend to fall silent about their obligations in matters of weaponry. The complex reality of State practice may well lead, as far as AWS are concerned, to an “accountability trap”: the reality of AWS is not taken seriously and IHL violations will be left unaccountable.