Pre-deployment Common Law Duty of Care and Article 36 Obligations in relation to Autonomous Weapons: Interface between Domestic Law and International Humanitarian Law?

In an age of high-tech and remotely controlled warfare new weapons are being developed to operate autonomously (i.e. without human input or oversight) in relation to critical functions of acquiring, tracking, selecting, and attacking targets. While debates continue as to whether autonomous weapons are ethical or legal, pre-deployment obligations in relation to their use exist in both domestic law and international humanitarian law. First, in Smith and Others v MOD (2013) the UK Supreme Court held that combat immunity does not apply in circumstances where military operations or acts take place before actual deployment or active combat. This raises interesting questions about types of pre-deployment activities which may be subject to a duty of care on the part of States towards members of their own armed forces and potentially others. Would Government decisions in the development, testing, and procurement of autonomous weapons attract a duty of care and fall outside the doctrine of combat immunity? Could this duty of care extend to civilians injured as a result of inadequate pre-deployment due diligence of autonomous weapons? Second, Article 36 of Additional Protocol I to the Geneva Conventions (API) provides a pre-deployment review procedure for new weapons. At the pre-deployment stage where a new weapon is being developed and tested, Article 36 requires continuous assessment of whether normal or expected use of the weapon is prohibited by API or any other rule of international law, including principles of legitimate targeting, proportionality and unnecessary suffering. Could this be a duty of due diligence? What does it entail? How is it to be enforced? This paper explores the interface between a pre-deployment common law duty of care and Article 36 pre-deployment review procedure in relation to autonomous weapons. It considers whether State and private actors (e.g. manufacturers of autonomous weapons; and telecommunications companies) involved in pre-deployment activities may owe a duty of care to combatants and civilians. Part II examines the UK Supreme Court’s judgment in Smith and Others v MOD to identify the basis upon which a pre-deployment common law duty of care can be established and extended to pre-deployment activities relating to autonomous weapons. Part III attempts to map out the nature of a pre-deployment duty of care in relation to autonomous weapons and the content of specific duties. Part IV then moves on to examine the nature of the pre-deployment review procedure under Article 36 API, and the extent to which it establishes a legally enforceable obligation in relation to autonomous weapons. Although Article 36 does not provide for international supervision it does require domestic implementation of the obligation to review. Consideration is given as to whether it can be enforced at the domestic level by combatants and civilians