The obligation to exercise discretion in warfare: why autonomous weapons systems are unlawful

Abstract

This Chapter analyzes the current discourse on the legality of autonomous weapons (‘killer robots’) under international law, and seeks to offer a novel prism through which to discuss the challenges that such systems pose: namely, we advance the view that modern warfare is an exercise of executive power by states against individuals and should thus be subject to basic notions of administrative law, chiefly the obligation to exercise proper administrative discretion. When autonomous weapons are deployed, state power is exercised against individuals through a computerized proxy. When the power to make ‘decisions’ that affect basic rights is transferred to computer systems such as autonomous weapons, the duty to exercise proper administrative discretion is compromised. Chiefly, this is because at least in the foreseeable future, such machines would be incapable of exercising ‘true’ administrative discretion. This problem is especially acute when autonomous weapons are deployed in asymmetric settings, where civilians are put at risk, but also, arguably, when deployed against enemy combatants.