Lessons from the past for weapons of the future

Abstract

One of the key postulates of modern law of armed conflict or international humanitarian law (IHL) is that the choice of weapons by fighting parties is not unlimited. Thus, in order to ensure excessive harm is not inflicted, certain weapons are prohibited or their use is restricted. Although every case is quite unique, limitations related to weapons attest to the fact that effects of ordinary use of those weapons were deemed incompatible with the requirements of IHL. This article examines the potential for regulation of lethal autonomous weapons, while at the same time drawing upon lessons from the past. The analysis covers various ways how IHL restricts the choice of means of warfare – formal regulation, application of customary rules and principles to a weapon, and legal weapons review – all of which offer valuable insights on how to accommodate rising legal uncertainty over autonomous weapons. In this respect, the ‘headliner’ of World War II, the nuclear weapon, serves as an exceptional example that some weapons bring about unparalleled regulatory challenges. Like atom bomb, lethal autonomous weapons mark revolutionary changes in warfare. Yet, this article is to confirm applicability and adaptability of IHL to any new weapon, including an autonomous one.