The Technical Nature of LAWS ‘Discretion’. First, ‘discretion’ is not used here to refer to anything like human-level intelligence, deliberative reasoning or true free will, these all presupposing certain human traits that machines inherently lack.75 The software-based controllers of a LAWS will essentially be deterministic tools running on special-purpose computers that, however 72 Xxxxxx Xxxxxxxxxxxxx, ‘Assessing the Sense and Scope of ‘Autonomy’ in Emerging Military Weapon Systems’, TLI Think! Paper 76/2017 (2017), 15 <xxxxx://xxxx.xxx/abstract=3027540> accessed 10 May 2018. 73 This is not a legal term, but is used in this thesis to denote an attack on preselected targets that have been developed through a human-led targeting process. See 5.2.5.1 74 See also 2.4.3 on systems with lower levels of autonomy, which contradistinguish LAWS. 75 See Chapter 3, especially 3.2.2 on the absence of human qualities in machines. sophisticated, remain founded on the ‘stored program’ concept.76 Namely, LAWS will be ‘calculating machines’, where “instructions entered by a human programmer are stored in the machine’s memory and drawn upon to govern its operation”.77 Thus, ‘discretion’ is used here in a technical sense, in that the weapon system’s controllers will a) collect (input) data, b) process it, and c) in accordance with that data and pre- programmed instructions, select one or more (output) options from a range of possible outcomes78 that may or may not have been foreseeable to deploying commanders. The option chosen will always be a logical consequence of ex ante programming and sensed data, and this remains true even when machine learning comes into play.79 Yet, as the opacity and learning ability of algorithms rise, and as the complexity of the battlefield increases – hence, the range of sensed data become less predictable – there may be the appearance of machine discretion. Certainly, autonomous systems will undertake stochastic (probability-based) reasoning,80 which introduces greater uncertainty over their precise actions in a dynamic battlefield.81 This is significant for those deploying LAWS, in that they may need to take stronger, additional and earlier precautions before any deployment, to safeguard against the risk of unintended engagements.82
