455 Cesáreo Gutiérrez Espada Autonomous weapons systems, drones and international law artificial intelligence experts, if the robot’s IT program orders it to identify and destroy enemy tanks, can the device anticipate not doing so if the tank is purposely located next to a school or a mosque?) In view of these circumstances, experts such as Kastan believe that whatever technological advances may come about, the relevant analysis and assessment of the principle of proportionality will have to be left to human beings initially and not to robots28. At least, that is, until these weapons ensure compliance with the three laws that Isaac Asimov demands of his science-fiction robots29. Thus, there can today be no assurance that these so-called lethal autonomous robots may be adjusted to certain key IHL provisions, yet neither that it will prove impossible, with technological progress, to incorporate the “ethical governor” into the IT systems of these devices that is required for them to act in conformity with IHL or IHRL at all times. On the basis of a conclusion that seems unquestionable to us, namely that if autonomous weapons systems are not in a position to comply with IHL -or if applicable, IHRL- requirements then they should be prohibited30, the most basic sense of caution would counsel calm reflection and fostering a discussion that would lead to some basic principles to regulate these terrible weapons (vid. infra section 3 of this text). 2.2. Autonomous weapons systems and allocation of responsibility If an autonomous robot carries out a strike in violation of IHL or IHRL, who should be held responsible? The implicit conduct constituting the internationally wrongful act is not the work of a human being. In principle, it thus seems problematic to apply rules on the responsibility attributable to a state provided for in international law for the actions of human beings (states are held responsible for conduct constituting a breach of an international obligation that they are bound by that is committed by their organs, the organs of another state or of an international organisation placed at their disposal, of persons who follow governmental instructions or who are under their control when they commit the unlawful act, and, if relevant, when the state adopts the unlawful act 28 KASTAN, Benjamin: “Autonomous Weapons Systems: A coming legal ‘singularity’”, Journal of Law, Technology & Policy, 2013, No. 1, pp. 45-82, pp. 61-62 (electronic version may be consulted at http://ssrn.com/abstract=2037808, accessed Monday 9 September 2013). 29 “First Law: A robot may not injure a human being or, through inaction, allow a human being to come to harm. Second Law: A robot must obey the orders given to it by human beings, except where such orders would conflict with the First Law. Third Law: A robot must protect its own existence as long as such protection does not conflict with the First or Second Law.” 30 In the same context, Report of the Special Rapporteur... Christof Heyns cit., p. 13, paragraph 63.
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