Abstract:
Unlike conventional weapons or remotely-operated drones, autonomous weapons can independently select and engage targets. As a result, they may take actions that look like war crimes — the sinking of a cruise ship, the destruction of a village, the downing of a passenger jet — without anyone acting intentionally or recklessly. Absent such willful action, no one can be held criminally liable under existing law.
In reaction to this accountability gap, some insist that autonomous weapon systems must be banned altogether; others are confident that international humanitarian law will evolve to address the issue. But a complete ban is unlikely to be effective, and the legal patches suggested thus far threaten to undermine the legal regimes, humanitarian protections, and accountability mechanisms they are intended to augment.
International criminal law is grounded in individual liability, which aims to evaluate who is guilty for willful and blameworthy actions. What is needed here, however, is a complementary legal regime that creates liability for unintended injurious wrongs. Although largely ignored in international law, tort law was specifically designed to solve this exact problem. Just as the Industrial Revolution fostered the development of modern tort law, autonomous weapon systems may result in the recognition of international ‘war torts’.
Crootof, Rebecca, War Torts: Accountability for Autonomous Weapons (September 8, 2015). University of Pennsylvania Law Review, forthcoming.
First posted 2015-09-11 05:14:44
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