Concurrent Application and Artificially Intelligent Target Selection

Grimal, Francis and Pollard, Michael James (2024) Concurrent Application and Artificially Intelligent Target Selection. Journal on the Use of Force and International Law, n/a (n/a). pp. 1-22. ISSN 2053-1702 / 2053-1710

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Abstract

The authors wish to utilise the recent novel (though arguably controversial) use of the targeting artificial intelligence (AI) system, codenamed “Lavender” by Israel, as a way of framing a much broader and much needed research question. As readers of this Journal will no doubt be familiar, the use of Lavender by Israel is cantered firmly within the in bello realm in relation to target selection. The purpose of this Article is not to assess the poignant sensitivities of the on-going conflicts in Gaza or Ukraine. Rather, it is to transpose and pose the crucial question as to how a system like Lavender (if operating in the ad bellum realm) would need to be designed for it to comply with both the ad bellum and in bello legal tapestry. More specifically, the authors are uniquely examining how an artificially intelligent system might operate within both realms. And in doing so, the authors provide a greater granular appraisal of the concept of concurrent application (a simultaneous implementation of ad bellum and in bello principles in regards to target selection) which remains a highly topical area in need of further scrutiny. The article presents that in order to correctly vet and appraise from the in bello perspective (in terms of the sine qua non requirements of proportionality and military necessity) there is a natural intersect with ad bellum proportionality and necessity assessments in relation to Article 51 UN Charter and customary requirements re the lawfulness of a state’s inherent right of self-defence. It is certainly true that the concept of concurrent application is not typically one that appears front and centre of most discussions relating to the lawfulness of a state’s recourse to force. However, and in no uncertain terms, the authors suggest that it should. Moreover, they consider that it is an absolute must for a system such as Lavender—that is deployed in the in bello realm (where a state is acting in self-defence) to be programmed with concurrency (and the factoring in of the ad bellum). Undeniably, it is not always readily apparent when the ad bellum ends, and / or where the in bello commences. Where there is ambiguity the authors’ default position is to maintain that the prerequisite of concurrency is non-negotiable.

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