The human element in decisions about the use of force

INTRODUCTION

Since governments began expert meetings on lethal autonomous weapons systems (LAWS) in the context of the Convention on Certain Conventional Weapons in 2014, maintaining control over emerging technologies in the area of LAWS has been one of the main shared objectives. States have suggested maintaining human control over weapons, the critical functions of weapons, attacks, the targeting process, and (final) decisions to use force. Although most agree that human control should be more meaningful than the mere possibility of aborting an attack at the final moment, the international community is struggling to determine how the human role in the use of (lethal) force should be defined and implemented. This infographic offers a framework of the human role in military decision-making – at the strategic, operational and tactical levels – that may guide deeper discussion on the military and legal aspects of human control within the LAWS debate. The purpose of this infographic is two-fold: 1) it demonstrates how critical decisions about the use of force are taken at various levels and how they may influence one another; 2) it provides some key legal considerations for decision-makers at various stages in the process.

LEVELS OF COMMAND

While the terminology used in this infographic is, to an extent, derived from Western military doctrines, the underlying concepts can be applied to military decision-making more broadly. Most major military forces agree that there are three main levels of command: • Strategic command, which translates the political aim into military objectives. • Operational command, which translates broad strategiclevel objectives and guidance into concrete tasks for tactical forces. • Tactical command, which directs the specific use of military forces in operations to implement the operational-level plan. Tactical command involves the deployment of units, platforms, individual personnel and weapons systems that may come into direct contact with the parties to the conflict. These levels guide military decision-making in contemporary operations and can be used as a framework to map the different steps of the targeting process.

LEGAL CONSIDERATIONS

This infographic illustrates which specific legal considerations should be taken into account at different stages of decisionmaking. Generally, decisions at the political and strategic level must comply with customary international law including the UN Charter prohibition against the use of force amongst States other than in self-defense and other principles of jus ad bellum. At the strategic, operational and tactical levels, all guidance, objectives, targets and decisions to use force must comply with the mandate or other authorization, the rules of engagement and international law including international humanitarian law and the principles of jus in bello: military necessity, distinction, proportionality and precautions (referred to in the infographic as the applicable law).

HUMANS IN DECISION-MAKING

The decision-making process that leads to the use of force in military operations is complex and involves different types of actors. Between the political leadership that makes the decision that a military intervention is required and the operator or system that carries out an attack, the military command structure is responsible for determining the rules, conditions and parameters that shape an operation or mission. In ensuring that all decisions are made in respect of political guidance, legal obligations and other factors, specialist advisers can be involved throughout the military decision-making process at all levels. For example, Article 82 of the First Additional Protocol to the Geneva Conventions provides that “The High Contracting Parties at all times, and the Parties to the conflict in time of armed conflict, shall ensure that legal advisers are available, when necessary, to advise military commanders at the appropriate level on the application of the Conventions and this Protocol and on the appropriate instruction to be given to the armed forces on this subject.” In practice, the role of legal and other advisers in military operations will depend on several factors, including the adviser’s training, the nature and type of the operation, the structure of the State’s military, and the military culture.

DELIBERATE AND DYNAMIC TARGETING

This infographic concerns both deliberate and dynamic targeting. While both types of targeting are guided by processes that largely consist of the same steps, there are some important differences. Dynamic targeting is compressed in time. It is a process typically used to prosecute targets that are identified too late to go through the deliberate targeting process. Dynamic targeting provides the opportunity to act in a responsive and timely manner to evolving situations, providing the opportunity to exploit enemy vulnerability that may be of limited duration. Deliberate targeting, in contrast, allows forces to think more strategically; because there is more time available, deliberate targeting may allow for more rigorous analysis of information.

CONTEXTUAL FACTORS

The contexts relevant for discussions about human control extend beyond the differences between deliberate and dynamic targeting. They include differences between types of mission (e.g. close air support, time-sensitive targeting), environments (e.g. urban, naval) and circumstances (e.g. weather conditions, time constraints, contested battlespace). All these contextual factors may prevent, limit or otherwise influence targeting activities at all levels of decision-making.

COMBAT ENGAGEMENT AND DEFENSIVE FIRES

This infographic focuses on military conduct and decisionmaking within the context of targeting operations. As such, it does not consider situations that may be referred to as combat engagement or self-defence. These situations could be described as “direct contact” (e.g. between enemy forces) and involve targets that emerge during the conduct of an operation. All engagements should comply with relevant international law and rules of engagement.

HOW TO READ THE INFOGRAPHIC

This infographic provides a simplified overview of military and legal considerations that are prominent in contemporary targeting practice and illustrates the decision-making process that leads to the use of force. The analogy of the iceberg, both conceptually and visually, helps to illustrate that critical decisions exist well in advance the moment a weapon system, autonomous or otherwise, is deployed (and becomes ‘visible’). The infographic should be read as follows: all decisions, tasks and actions that lead to the use of force are listed in order inside the iceberg, starting with the higher political level at the bottom; for each decision/task/action, on the left side the infographic provides a narrative explanation of their military implications and significance while, on the right side, applicable legal considerations.