Making the Cyber Mercenary – Autonomous Weapons Systems and Common Article 1 of the Geneva Conventions

Common Article 1 of the Geneva Conventions requires that states ‘respect and ensure respect for’ the Geneva Conventions ‘in all circumstances’. In the new 2016 Commentary to the Convention, the existence of not only a negative obligation, but also a positive obligation of third countries to a conflict to prevent violations was confirmed. Hence, third countries must do everything ‘reasonably in their power to prevent and bring such violations to an end’.The use of autonomous weapons systems (AWS) is imminent in the future, as demonstrated by the Pentagon committing to spend $2 billion on research, with similar research programmes taking place in other countries. The buying and selling of these AWS is an equally impending part of the future. Consequently, inevitably a state that is buying or being supplied with AWS will use them in a conflict. Therefore, suppliers of such systems will have to comply with the aforementioned positive obligation.This paper will examine the positive obligation’s impact on the state supplying AWS to a conflict. This includes the question of whether it will be their responsibility at the manufacturing stage to ensure that the system cannot violate the Geneva Conventions and – because autonomous systems are somewhat uncontrollable and unpredictable as they will also learn rather than only carrying out pre-programmed commands – whether the supplying state will be obligated to maintain a permanent tether to the supplied AWS to monitor them. The implications of tethering the supplied AWS may go well beyond ensuring compliance with international humanitarian law (IHL), and may include multiplying the leverage of the supplying state by turning the systems into ‘cyber mercenaries’.