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The latest revolutionary technology has, more often than not, being developed for security and defence applications to augment the effectiveness of military systems and operations, prior to becoming available for civilian use or for being utilised for democratic purposes. The research and development of both the Internet and mobile phone technology was conducted within the scope of the military sphere, before becoming ubiquitous, as they are today. In fact, the former was initially funded by the US Department of defence to facilitate secure communications between military personnel. [1]

There has always been an uneasy relationship between the steady march forward of technology – catalysed in its development by geopolitical tensions and the ‘spheres of influence’ between nations jostling for power on the international stage – and humanitarian international law, or, the laws of war. With each push forward in the progress of the art of warfare there has been an equal push back through the means of emerging legality and norms – a plank of the Geneva Protocol (later the Convention), established in 1925, dealt, after all, with the insidious use of chemical weapons such as mustard gas during the first world war.[2]

The question is then, can international law, specifically the laws of war, keep up with the rapid evolution of technology? The emergence onto the scene of Artificial Intelligence (AI), to counter ever-mutating menaces such as cyber warfare, promises to widen the theatre of war. In fact, its potential to expand and enhance military capabilities threatens to enlarge the terrain of potential devastation wreaked by armed conflict, and in the words of one AI journalist, lead to the ‘escalation of open warfare’ at the ‘cost of innocent lives’.[3]

The ongoing symbiosis between war and law is now entering a new phase. Vladimir Putin recently lauded AI in somewhat apocalyptic terms: “whoever becomes the leader in this sphere will become the ruler of the world,” he told a group of Russian students.[4] On a domestic front, AI is informing the UK’s national defence and security strategy: the Ministry of Defence is providing £4 million worth of funding to projects and start ups to devise AI and machine learning tools for the British Navy. While some of this technology could perhaps be for relatively benign ends and automated devices such as drones have been a staple of military operations for sometime, a new era in which robotic systems can make the decisions over life or death in conflict scenarios is drawing closer and closer according to many AI commentators.

In response to the danger that ethic decisions could be assumed by AI in the not too distant future, the Pentagon have emphasised that the US Defence Department has always incorporated the laws of war into the strategic application of new technologies in warfare scenarios through meticulous planning (although a range of abuses over the years suggested this has not always been practised on the ground). However, the cyber security expert Herbert Lin makes a thought provoking point.[5] The laws of war have always been restrictions placed on warring parties to limit as far as possible the suffering of innocent non-combatants and the disproportionate use of force. These rules have routinely been violated to obtain military advantage in live conflict scenarios. A case in point is the sinking of merchant ships carrying vital supplies by enemy submarines during WW2. A 1930 naval convention was in force forbidding the sinking of these ships without first giving due warning to personnel on board, in order to allow them the opportunity to escape to safety. The German commanders guilty of these violations had these waived during the Nuremberg trials, due to the rationale that the Allies had been equally culpable in flouting the same set of conventions.

Violations will no doubt continue enabled by AI and the potential it possesses to revolutionise the art of war. It is law, however, and the constraining hand of ethics, that we need in order to keep pace with these developments, lest humanity is the ship that is ultimately sunk.

[1] See, for example, The History Channel, Who invented the Internet? Evan Andrews, 28 October, 2019
[2] United Nations, The Geneva Protocol: https://www.un.org/disarmament/wmd/bio/1925-geneva-protocol/
[3] Forbes, How Artificial Intelligence Will Make Decisions In Tomorrow’s WarsHow Artificial Intelligence Will Make Decisions In Tomorrow’s Wars, Simon Chandler, 21 January 2020
[4] Foreign Policy, Whoever Predicts the Future Will Win the AI Arms Race, Adrian Pecotic, 5 March 2019
[5] Bulletin of the Atomic Scientists, Will artificially intelligent weapons kill the laws of war? Herbert Lin, September 18, 2017

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