The Attributability of Combatant Status to Military AI Technologies under International Humanitarian Law

Abstract

The concepts of means of warfare and combatants are not comparable or on the same scale in IHL. Yet the human-like performances of AI technologies, such as independent decision-making, may blur the line between these two concepts. This may also lead one to compare the technology with a human combatant rather than with other means of warfare. In this context, this paper questions the attributability of combatant status to military AI technologies by concentrating on the scope of the combatant concept. Contrary to some existing studies that found combatant status insufficient for machines based on ethics or behavioural human-machine differences, this study examines why combatant status is unsuitable for military AI technologies from a legal conceptual perspective, even in their most intelligent and independent forms by visiting terms—membership to armed forces, armed forces and prisoners of war (POW)—that are relevant to disclose the scope of the term combatant.