New Technologies in International Law / Tymofeyeva, Crhák et al.

due to the fact that an armed swarm may have negative impact upon both the physical and psychological health of a civilian population, merely by way of it operating within an urban environment. This is especially pertinent given the increasing urbanisation of warfare. 31 The purpose of this paper, however, is to demonstrate that Article 51(5)(b) API is key to restricting such deployments. To date 51(5)(b) API has been somewhat overlooked in the debate regarding swarms. Nonetheless, it is argued that if this provision is interpreted in good faith, with the ordinary meaning given to the terms contained within (as is required by Article 31 Vienna Convention on the Law of Treaties), 32 a swarm could, and arguably should, be classified a bombardment. In doing so, and by using the military decision makers authorisation to deploy the swarm as a point of reference, many armed swarm deployments would be considered unlawful. This is due to the fact that the military decision maker can be seen to be treating a number of clearly separated and distinct military objectives as a single military objective, which in short means they would in effect be authorising an indiscriminate attack. 1. Defining Autonomous Armed Swarms The term armed swarm could be applied to various similar, but subtly different weapons technologies. Developmental programmes such as the loyal wingman currently being tested by Boeing, 33 for example, is a swarm of sorts given that it is comprised of individual platforms. However, this can be distinguished from the subject matter of this paper because this type of system is merely a collection of combat drones. Indeed, they are even similar in appearance to remotely piloted weapons such as Predator 34 or Reaper Systems. 35 The point here is, a system cannot be considered fully autonomous, even if it has certain autonomous features, where there is a direct link to a human operator (as is the case with the three systems identified in the previous paragraph). As previously noted, the form of swarms that is intended to be the focus of this paper are those that are, or at least 31 Perhaps the most pertinent recent example being the conflict in the Gaza Strip, and area of territory 41km long and 10km wide, and home to 2.2 million people, making it one of the most densely populated areas on the planet. See, e.g., BBC World News, ‘Gaza Strip in maps: Life in Gaza under siege’ ( BBC News , 8 November 2023) accessed 1 November 2023. Note also that such deployments may have the effect of spreading terror among the civilian population (noting if an armed swarm deployment was authorised with the primary objective to spread terror among the civilian population the deployment would be prohibited by IHL, see in particular see, Art. 51(2) API, and ICRC Customary Rule 2, available at, accessed 1 November 2023. In addition, certain deployments may arguably violate human rights obligations such as the right to liberty and security of persons as contained within Art. 9 33 Boeing, ‘Loyal Wingman: Uncrewed but not alone’ ( Boeing , 23 November 2023) accessed 1 November 2023. 34 See, United States Air Force, ‘Factsheet: MQ-1B Predator’ accessed 1 November 2023. 35 See, General Atomics Aeronautical Systems, ‘MQ-9A “Reaper”’ accessed 1 November 2023. ICCPR and, for example, Art. 5 European Convention on Human Rights (ECHR). 32 Art. 31 Vienna Convention on the Law of Treaties, UNTS, vol. 1155, p. 33.

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