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.


Introduction
Artificial intelligence (AI) is defined by Oxford Dictionary as "the theory and development of computer systems able to perform tasks normally requiring human intelligence, such as visual perception, speech recognition, decision-making and translation between languages" (Knowles 2006, 21).This may sound-and it is to some extent-scary and lead to seeing AI as an alternative to humans.The appearance of such technology endowed with human-like abilities may easily remind us of science-fiction movies about robots or non-humans taking over the world, particularly in the military context.Yet, from a realistic perspective, all the tools invented from the beginning of humankind, in fact, took over the tasks that are normally done by humans.People used their hands to kill first.They later discovered that they could use sharp objects.
Firearms and all kinds of technological products were invented with the scientific studies that followed.But none of them is compared with humans.In fact, many of the tools developed are more skilful than humans in certain subjects.Vehicles are faster and can carry tons of weight, firearms can hit targets hundreds of metres away with nearperfect accuracy, and submarines can stay underwater for days.Then why is AI different, if at all?
The vehicles mentioned above and other conventional weapons have the ability to perform physical actions under human control that humans themselves cannot accomplish.Whereas, when we go back to the definition of AI provided by the Oxford Dictionary, we see that AI has a cognitive power rather than a physical one and that it has or may possess some features that distinguish humans from other living things, such as decisionmaking and perception.In other words, AI technology in the military is the symbol of the revolution transferring the cognitive, administrative and analytical features of humans to machines.Similar to how humans have transferred their physical abilities to certain military instruments in the past, the cognitive abilities of humans are transferred to AI today.
From more of an operational perspective, the strength of AI in the military does not stem from possessing explosive materials but from its human-like abilities, such as intelligence, surveillance and reconnaissance (ISR) (Bayley 2018;Smagh 2020), command and control (Frisoni 2020;Haga and Crosby 2020), processing and analysing data (Daly 2017;Zelaya and Keeley 2020), recognition and selection of targets based on available information (Facial Recognition: Abadicio 2020; Speech Recognition: Davis 2020; Target Recognition: US Deputy Secretary of Defense 2017), and learning (Hagström 2019).These are abilities of AI technologies related to targeting and decision-making processes either as a computer programme or in a robotic form if the AI software is endowed with an artificial body.Yet these are not the only functions that AI can undertake in the military context.Other tasks may appear in the cybersecurity 1 (Lyle 2016;Rosenberg 2017), logistics and transportation (Abadicio 2019;Sayler 2020;A. Stone 2017;Weisgerber 2017), battlefield healthcare (Heydenburg 2019), combat simulation and training (Fawkes 2017;Sentient Digital Inc. 2020), and legal or operational advice (advisory AI) 2 (Schubert et al. 2018;Van den Bosch and Bronkhorst 2018).Regardless of whether they are deployed in the targeting and decision-making phases-or any other operational phases-AI takes over the tasks normally conducted by (human) combatants.This may lead one to compare AI technology with a human rather than with other means of warfare.It is because AI is a technology developed based on or inspired by human characteristics 3 (Russell and Norvig 2010, 2).
The contention of which category a subject or object belongs to or how it should be conceptualised in a certain legal regime generally occurs amongst concepts of the same 1 Michael Rogers, who is the commander of US Cyber Command and director of the National Security Agency, stated regarding the use of AI in cyber defence at the 3rd Annual Intelligence and National Security Summit that If you can't get to some level of AI or machine learning with the volume of activity that you're trying to understand when you're [defending] networks from the activity of concern if you can't get to scale, you are always behind the power curve-it's got to be some combination of the two. 2 Advisory AI refers to, for instance, AI-based Decision Support Systems (DSS) as well as software that is designed to assist military activities. 3There are different approaches to developing AI and its relation to human behaviour.Although rational approaches to AI do not aim to copy and paste human acts and thoughts, ideally, human intelligence is the basis for developing and enhancing AI technology both for classical and rational approaches.
scale.For instance, whether the target is a military objective or a civilian object or whether a person is a civilian or combatant, or whether an instrument is a weapon, means, or methods of warfare are prevalent discussions that occur in IHL.However, the human-like performances of AI technology and its use in the military have the potential to drag this practice to a different dimension, if not already.While weapon analogy for humans or combatants is not new and has rarely been the subject of discussions, such as in the context of human enhancement in the military (Lin 2013;Puscas 2018), it is quite a novel question whether a non-human entity (AI) may become a combatant.In this context, some authors considered autonomous and AI technologies that are independent in decision-making as combatant (Roff 2015) or put forward the view that AI blurs the line between means of warfare and combatant concepts (Heyns 2013, 28).Some others refraining from conceptualising dehumanised technologies as either a combatant or a weapon under IHL argued that there is a need for a new category to regulate such technologies and emphasised the insufficiency of existing law.Liu (2012, 629), for instance, argued that even though the functioning of an Autonomous Weapon System (AWS) is closer to what we know as a combatant, it is not possible to attribute combatant status to AWS because "the humanitarian protections afforded to the category of combatant imply the exclusion of machines".Crootof (2018, 70-73) also found the combatant analogy for AWS unsatisfactory for reasons such as the inadequacy of training that is required for human soldiers and the existing accountability problem.Moreover, both acknowledged that no terminology in IHL can cover AWS.From another perspective, although McFarland (2020, 74) accepted that AWS might lead to the question of whether it may be considered a combatant due to its humanlike performances, he further argued that what is called independent-decision making in the operation of AWS is, in fact, coded and embedded into a system by humans.He also found legal definitions vague to understand whether AWS can be considered a combatant and claimed that the most appropriate category is weapons for such technologies (McFarland 2020).Other commentators also embraced the weapon analogy for AWS without elaborating much on their conceptualisation under IHL (Anderson, Reisner, and Waxman 2014;Sassoli 2014;Schmitt 2013).
In the literature, the attributability of combatant status to machines that can take decisions without human intervention is not a prevalent approach.However, the deficiency at this point derives from making (positive or negative) combatant analysis based on the human-likeness of AI in a practical and behavioural context rather than the boundaries of legal concepts at stake.A detailed legal analysis of the scope of combatant status and its definition to identify whether such status is attributable to machines is lacking in the literature.Many approaches, instead, focus on behavioural human-AI similarities to assess whether combatant status can be attributed to AI.Yet, the combatant is a legal term defined under Article 43(2) of Additional Protocol I to the Geneva Conventions and has certain operational boundaries despite its ambiguousness. 4Therefore, this paper, aiming to fill this gap, concentrates on the legal definitions and stresses that existing law provides sufficient content to answer whether combatant status is attributable to military AI technologies.
The significance of conducting a conceptual analysis of military AI technologies, in particular, questioning whether those technologies can be considered combatant, is that it exposes the rules that are applicable to the employment of military AI technologies under IHL.Since the law governing means and methods of warfare and rules applicable to combatants are different, a clarification on one side would help eliminate the wrongful implementation of IHL.Although the intent of the paper is not to spell out the individual rules of IHL to be applied, the conclusion reached by the paper will provide theoretical guidance in this direction.
It is also important to emphasise that the provisions applicable to means and methods of warfare and combatant differ under IHL.Therefore, drawing the line between means and methods of warfare and combatant concepts in the context of military AI technologies is crucial in determining the applicable norms of IHL.For instance, the designation of such military AI technologies as a combatant or claiming that there is no status that is suitable for military AI technologies under existing law would invalidate the applicability of Article 36 of the Additional Protocol I, which provides a legal review mechanism over the means and methods of warfare as well as Articles 35, 51(4)(b) and 51(4)(c) of the Additional Protocol I.However, such a scenario would entail devastating consequences and arbitrary development of the AI sector in the military.
In this context, this paper argues that combatant is not an innate concept for the human being instead is a legal concept and a status given in certain circumstances.In order to identify whether the combatant status is attributable to military AI technologies or, in a more general sense, explore whether the human is the only possible subject of the combatant status, it is necessary to interpret the provisions of IHL defining the combatant and describing these specific circumstances.Although the definition of combatant is provided only in Article 43(2) of the Additional Protocol I, Article 43(1) of the Additional Protocol I, where the armed forces are defined, and Article 4 of the Geneva Conventions III, lists the categories entitled to prisoners of war (POW) status are also relevant to the definition of the combatant.Furthermore, the definition of civilian enshrined under Article 50 of the Additional Protocol I is also relevant due to the reference to the definitions of combatant and POW status.Hence, the analysis of whether the combatant status is attributable to military AI technologies will be conducted through the concepts of combatant/membership to the armed forces, armed forces and POW status and definition of the civilian.Lastly, the paper questions whether the term "person" may cover military AI technologies, regardless of how independent and intelligent they are in the context of IHL.

Scope of the Research
The general scope of this research is limited to discussing the attributability of combatant status to military AI technologies in light of the legal boundaries of the combatant concept under IHL.It interprets relevant existing norms of IHL consistently with Article 31 of the Vienna Convention on the Law of Treaties related to treaty interpretation.Given that combatant status only exists in international armed conflicts, armed conflicts with a non-international character are not included in the scope of this research (Henckaerts and Doswald-Beck 2005, I:12-13).
The term military AI technologies refer to the application of all AI systems in the military context.Having said that, those systems take over the tasks that are normally conducted by (human) combatants, regardless of whether they are deployed in the targeting and decision-making phases or in any other operational phases.The reason for choosing such an inclusive concept is that this paper does not question the legality of the application of military AI technologies in the context of the means and methods of warfare; instead, it makes a conceptual analysis and only concentrates on the question of whether the combatant concept is attributable to those technologies.
Furthermore, many commentators concentrate on weapons systems that are independent in decision-making and involved in the targeting process and exclude systems that are not relevant to the targeting process and those where a human is part of the decisionmaking while analysing whether combatant status is attributable to such systems (Crootof 2018;Liu 2012;McFarland 2020).Yet, if the attributability of combatant status to AI is to be examined, one should bear in mind that combatant is not a status that is given only to those involved in fighting and targeting on the battlefield.As stated in the International Committee of the Red Cross (ICRC) Commentary on the Additional Protocols, "there are numerous important categories of soldiers whose foremost or normal task has little to do with firing weapons.These include auxiliary services, administrative services, the military legal service and others" (Sandoz, Swinarski, andZimmermann 1987, par. 1677).Considering that all members of the armed forces, except religious and medical personnel, are combatants, including those not involved in firing weapons, it is necessary to expand the scope when assessing the attributability of combatant status to military AI technologies.However, although the concept is as comprehensive as possible, all different functions of AI will not be dealt with separately in the paper.This is because the varied forms of military AI applications do not make any difference within the scope of the combatant concept.

Combatant & Membership in the Armed Forces
Article 43(2) of the Additional Protocol I defines combatant as status that comprises all members of the armed forces that are a party to an armed conflict,5 excluding only medical personnel and chaplains.The definition of combatant also has a customary nature merely in international armed conflicts (Henckaerts and Doswald-Beck 2005, I:11 Rule 3).In contrast, neither a treaty rule nor an established customary norm requiring the applicability of the combatant status in non-international armed conflicts exists (Henckaerts and Doswald-Beck 2005, I:12-13).Yet state armed forces may be regarded as combatants for the purposes of the distinction principle (Henckaerts and Doswald-Beck 2005, I:11-12).6Therefore, only those meeting the criteria of being a member of an armed forces party to an armed conflict and other categories7 enshrined under Article 4 of the Geneva Convention III are entitled to have a combatant status.
As can be seen from the definition, the conventional description of combatant provided in Article 43(2) of the Additional Protocol I does not explicitly refer to a human in order to be qualified as a combatant; instead, it sets a standard of being a member of the armed forces party to an armed conflict.Yet, in national practice, there are examples where the term person replaced the term "members of the armed forces" while defining combatant in the military manuals of some states.For instance, the German Military Manual defined combatants as " … persons who may take a direct part in hostilities … " (Germany 1992, 301).Likewise, the US Naval Handbook states that the combatant term "embraces those persons who have the right under international law to participate directly in armed conflict during hostilities" (United States 1995, 5.3).However, the majority of the states agreed on the wording of the provision defining the combatant and recognised that the subject of the combatant term is "members of the armed forces".
In that perspective, no determination or definition is provided regarding membership in the armed forces in IHL.It is mostly defined as what is required to be a member of the armed forces in the domestic law of the states (Melzer 2016, 84).At this point, an exemplary issue regarding the status of military dogs appeared in the US.A legislative proposal has been submitted to the US Congress discussing the status of military working dogs (Blumenthal 2012;Jones 2012).The proposal named US Canine Members of the Armed Forces Act deprecated to consider military working dogs as equipment and suggested a novel status as canine members of the armed forces (Blumenthal 2012;Jones 2012).Yet, the legislation did not pass in the US Congress, and military working dogs are still classified as military equipment (Cruse 2014; US Headquarters, Department of the Army 2005).
Nonetheless, the ICRC Commentary of the Additional Protocol I stresses that the expression 'armed forces' means 'members of the armed forces', i.e. persons, as explicitly stated in paragraph 2. 8 In itself, it, therefore, does not allow, for example, the use of animals, trained to attack, who are incapable of distinguishing between an able-bodied enemy and an enemy who is hors de combat.(Sandoz, Swinarski, andZimmermann 1987, par. 1672) Here the Commentary assumes that the concept of (members of the) armed forces may only refer to persons as of its nature.In other words, it assumes9 that nothing other than persons has the ability to make an appropriate distinction and accordingly concludes that the article indicates persons.
Although the Commentary claims that members of the armed forces may only refer to persons, 10 the wording of Article 43(2) does neither identify or exemplify who can be members of the armed forces nor include any reference to the term person explicitly.Nevertheless, a backward reading of the Commentary's interpretation leaves the question of whether non-human actors that are capable of discernment and trained to respect the principles of the law of war can be seen as members of the armed forces open.
Lastly, it is worth mentioning that ICRC argued that the "participation" word in the "direct participation in hostilities" phrase refers to the individual involvement of a person in armed conflicts (Melzer 2009, 43).The argument is relevant to the definition of combatant since Article 43(2) of the Additional Protocol I describes combatants as those who "have the right to participate directly in hostilities".Yet the author of this paper considers it difficult to conclude from the mere term "participation" that Article 43(2) establishes the requirement of being a person to have combatant status.Therefore, the answer to the question of whether non-human actors can be considered combatant is not embedded in Article 43(2) and remain ambiguous within the context of "members of the armed forces" and "combatant" concepts.

Armed Forces and POW Status
Article 43(1) of the Additional Protocol I serves as the definition for the concept of armed forces.The rule is also recognised as a norm of customary international law (Henckaerts and Doswald-Beck 2005, I:14 Rule 4) applicable in international armed conflicts by state practice, including by states not party-or not at the time-to the Additional Protocol I (United Kingdom 1958, 89;1981, 3;United States 1995, 5.3).Article 43(1) supplements Article 4 of the Geneva Convention III, which defines the POW, by aiming to identify who are the members of the armed forces (Sandoz, Swinarski, andZimmermann 1987, par. 1676).Another relation between the provisions is that while combatant status can only be attained by being a member of the armed forces11 , POW status is a privilege given-but not limited to-the combatants.12Therefore, it is necessary to read these two provisions in conjunction to ascertain the boundaries of the combatant concept.
On the one hand, Article 43 of the Additional Protocol I defines all armed forces by introducing the following requirements; organisation, command responsibility, and the existence of an internal disciplinary system to enforce respect to the rules of IHL, and does not differentiate regular armed forces from other armed groups and units.Article 4(A2) of the Geneva Convention III, on the other hand, presents six categories that the definition of POW covers and particularly requires irregular armed forces to fulfil the following conditions; command responsibility, having a fixed distinctive sign, carrying arms openly, and acting in accordance with the laws of war to be considered combatant entitled to POW status.
The first main difference between those two provisions is that while Article 43 of the Additional Protocol I provides a general definition of armed forces and combatant concept, Article 4 of the Geneva Convention III identifies the issue from an individual perspective by questioning in what forms of armed forces a fighter can be entitled to POW status.Second, visibility requirements in Article 4, namely, having a distinctive sign and carrying arms openly, are absent in Article 43 of the Additional Protocol I as these are criteria more relevant to the entitlement of POW status rather than constituting armed forces.Therefore, such issues are regulated under Article 44 of the Additional Protocol I, entitled combatants and prisoners of war.In spite of the relative difference in content between those two provisions of IHL, in essence, both describe combatants as those members of a state armed forces or volunteer corps or militias fighting on behalf of a party of a conflict as long as they meet the structural criterion introduced.
Neither the procedural aspect of membership to an armed force enshrined in Article 43 of the Additional Protocol I set a standard of being human nor the scope of armed forces excludes non-human actors explicitly.Merely the POW is defined as " … persons belonging to one of the following categories, who have fallen into the power of the enemy … " in the chapeau of Article 4 of the Geneva Convention III.Although Article 4 describes POWs as persons, it would be difficult to argue that the term "persons" qualifies the categories with combatant status (Article 4 (A1), (A2), (A3), (A6)) listed under Article 4. The reason why it would be difficult to infer that the combatant is defined as "persons" only departing from the reference to "persons" in the chapeau of Article 4 will be further exemplified comparatively in the following section.
13 Additionally, Article 4 also refers to persons in its sub-paragraph A4, for civilians who are authorised to accompany the armed forces.Sub-paragraph A6 uses the term "inhabitants" for the participants in a levée en masse to identify who is entitled to POW status. 14onsidering that sub-paragraph A4 regulates civilians who are not members of the armed forces; it has no impact on the assessment of whether non-human actors have combatant status.
Nevertheless, in sub-paragraph A6, the term "inhabitants" used-instead of persons refers to the participants in a levée en masse, which are exceptionally (Arman et al. 2020, 950) considered combatants in IHL.However, it is questionable whether inhabitants imply only human beings.Nor is it defined under international law.Linguistically, the Cambridge Dictionary defines the notion of inhabitant as "a person or animal that lives in a particular place" (Cambridge Dictionary), while the Merriam-Webster Dictionary describes it as "one that occupies a particular place regularly, routinely, or for a period of time" (Merriam-Webster.comDictionary).Regardless of the uncertainty, even if it is assumed that Article 4(A6) of the Geneva Convention explicitly refers to humans-or even implies it, the applicability of the article would be limited to participants in a levée en masse since it is a specific regulation and does not define combatant status generally.In other words, the combatant status would not be attributable to non-human actors who participate in a levée en masse if it was deemed that the provision refers to humans.Still, in any case, it does not affect the other categories of combatant listed in the same article.
To sum up, it is evident to say that provisions defining combatant status and members of the armed forces do not expressly refer to a human (or a person).Yet, whether the members of the armed forces imply humans remains ambiguous due to the lack of detailed description.The only possible references to humans may be derived from the chapeau of Article 4 and Article 4(A6), whose applicability is limited due to the use of the terms "person" and "inhabitants".However, this paper argues that neither the word "person" qualify categories of combatant in the chapeau of Article 4, nor is it easy to come to a conclusion from the use of the term "inhabitants" that combatants are described as a person. 15Moreover, to what extent does the explicit reference to person imply human is questionable and will be dealt with in Section 6.
Article 43 of the Additional Protocol I and Article 4 of the Geneva Conventions make clear in what circumstances combatant status is born for the members of armed forces and in what sort of armed conflict.Moreover, while Article 43 of the Additional Protocol I indicate the requirements of forming an armed group, Article 4 of the Geneva Convention III explains under what circumstances irregular armed forces may become part of an armed forces party to an armed conflict and can be entitled to both combatant and POW status.Article 43(2) nonetheless indicates who will be exempted from the status of combatant despite their membership in the armed forces and introduces rights derived from the combatant status.
Despite the abundance of provisions related to combatant, both Article 43 of the Additional Protocol I and Article 4 of the Geneva Convention III use the term members of the armed forces as the subject of combatant status, yet fail to explain who is eligible to be considered as a member of the armed forces or whether the term members of the armed forces implies human.It is, thus, still unlikely to come to a conclusion whether the combatant status is attributable solely to humans based on both Article 43 of the Additional Protocol I and Article 4 of the Geneva Convention III.

Relevance of the Definition of Civilian
The definition of civilian is provided by Article 50 of the Additional Protocol I and is also considered a customary norm in international armed conflicts (Henckaerts and Doswald-Beck 2005, I:17-18 Rule 5).It has a negative character (Melzer 2009, 20-21); that is, it describes the subject through the combatant concept, which represents the opposite concept of civilian under IHL.Despite its negative character, this paper emphasises that it yields positive outcomes by shedding light on the definition of combatant and whether the "members of the armed forces" imply "person".
In this context, this paper claims that the definition of civilian is relevant to the identification of combatant status from two aspects.First, the definition of civilian is structured on the basis of combatant by encompassing all persons other than combatants.What removes the uncertainty and complements the full picture of the definition of combatant is embedded in the definition of the civilian.Article 50 of the Additional Protocol I unravels what the members of the armed force are by stating, "A civilian is any person who does not belong to one of the categories of persons referred to in Article 4 A1), 2), 3) and 6) of the Third Convention, and in Article 43 of this Protocol".It explicitly establishes that the members of the armed forces and inhabitant terms imply "person" by referring to each relevant subparagraph of Article 4 of the Geneva Convention III, where the categories of combatants are introduced.Therefore as discussed above, while the chapeau of Article 4 of the Geneva Convention III introduces POWs as persons, it does not specify whether the categories of combatants are also qualified as persons.Yet, Article 50 of the definition of civilian uses the term "person" twice to qualify civilians, categories listed under Article 4 of the Geneva Convention III and in Article 43 of the Additional Protocol I.
Second, civilian and combatant are two opposite concepts; therefore, those who cannot be considered combatant are protected under civilian status in armed conflicts.IHL bifurcates the personhood categories as civilian and combatant in international armed conflicts16 (Dinstein 2016, 41;Henckaerts and Doswald-Beck 2005, I:3, 17), and there is no third category of person defined neither in the 1949 Geneva Conventions nor in its Additional Protocols.Yet, in doctrine, unlawful combatant and unprivileged combatant terms appeared as possible categories.17(Dörmann 2003, 45-74;H. F. Stone 1942).None of these concepts constitutes a new category in terms of personhood pursuant to the primary sources of IHL, nor are they relevant for the purpose of this part of the research-in particular on the identification of whether the subject of combatant refers solely to humans.Those concepts, however, are relevant when it comes to gaining or losing privileges deriving from combatant and civilian statuses.In spite of the fact that some circumstances-such as civilian participation in hostilities as laid down in Article 51(3) of the Additional Protocol I, lead to deprivation of privileges provided by either civilian or combatant statuses, those circumstances do not completely eliminate the status itself.
It follows from the foregoing that, in an assumption where the definition of combatant does not imply a person-disregarding the first argument presented above18 -the analysis of whether a particular subject may be considered a combatant depends on fulfilling the requirements of being a civilian enshrined under Article 50 of the Additional Protocol I due to the bifurcation of personhood under IHL as combatant and civilian. 19In other words, the particular subject in question, then, should have the capacity to be considered civilian in order to be able to obtain combatant status.Considering that Article 50 explicitly defines civilians as persons, it is possible to argue that being a person can still be a condition to be considered a combatant even in a scenario where the definition of civilian would not have explicitly introduced combatants as persons.
This paper already argued that the definition of civilian describes combatant as a person by referring to each relevant provision despite the lack of explicit reference in the definition of combatant.However, the second argument of this paper claims that even in a scenario where Article 50 does not introduce combatant as a person and merely defines civilians as persons, it is still possible to argue that being a person is a condition to be a combatant due to the bifurcation of personhood under IHL as combatant and civilian.
While this research has come to the conclusion that being a person is a prerequisite to having combatant status, it is now necessary to analyse how the term "person" is characterised under IHL and whether military AI technologies have the capability to be considered a person.

The Personhood of Military AI Technologies
Both arguments presented above entail concluding that it is required to be a person in order to have a combatant status, and both combatant and civilian statuses do not fit the non-human actors in the sense of IHL unless the non-human actors covered by the term person 20 (Weller 2017).
In this context, as the last step, the issue of whether non-human actors may be considered as a person within the meaning of provisions regulating the combatants and civilians should be scrutinised from the perspective of IHL to conclude whether the nonhuman actors are eligible to be considered a combatant.Although there is no authoritative definition of a person in the context of IHL, the term is mostly defined in the domestic law of states.Technically, when a country allows non-humans, such as robots and animals, to be included in their definition of a person, this may lead to complicated situations.For instance, legal citizenship has already been given to a robot named "Sophia" by Saudi Arabia (Weller 2017).Sophia was also awarded as the first innovation champion by the United Nations Development Program (UNDP) 21 in Asia and the Pacific (Xia 2017).Although giving a robot legal citizenship was a contentious issue and raised contrasting voices worldwide, there may be a possibility that an AI-based robot may also be recognised as a person in the future.Accordingly, such a situation may trigger to discuss whether those non-human actors become a member of the armed forces, combatants or civilians in times of armed conflict.At this point, this paper stresses that it is necessary to elaborate on what "person" means and how it is characterised under IHL.
In spite of the lack of explicit human attribution in the definitions of combatant and civilian, as further explained above, both definitions refer to a person and the term person is used to imply a human according to the general spirit of the Geneva Conventions and, in particular, regulations preserving civilians.The instances of expressions of Geneva Conventions related to the term person and words used in combination with the person are; sick and aged person, 22 personal right to have correspondence with the family in armed conflict, 23 respect to the honour, family rights, religious convictions, and practices, and manners and customs of persons, 24 treatment of persons according to their state of health, age, sex. 25 In this context, albeit an AI-based robot may become a citizen of a country legally, it never becomes a person within the context of IHL taking into account human-based implications while referring to the notion of "person" such as family, religious beliefs, and gender.As such, neither animal can be included in the scope of the term person 26 despite greater relevance with the 20 Such reservation should be emphasised, in particular, taking into account granting legal citizenship to a robot. 21Sophia is also the first non-human champion of the programme. 22Article 14(1), Geneva Convention IV 23 Article 25(1), Geneva Convention IV 24 Article 27(1), Geneva Convention IV 25 Article 27(3), Geneva Convention IV 26 Animals have also families and gender differences like humans.However, the protections as a whole provided for civilians hamper including animals to the scope of the person concept while referring to correspondence with the family, religious convictions, and age standards.
aforementioned characterisations compared to robots.Those are only a handful of examples that illustrate that when the Geneva Convention IV uses the term "person", it is actually alluding to the human being.Additionally, considering the notions such as man, woman, child, and special protections provided to them, particularly women and children, such categorisations would inherently be invalid for machines both from combatant and civilian perspectives.To illustrate, regulations such as; the separation of dormitories according to the sex of the prisoners, 27 same-sex supervision for women and their confinement in separate quarters, 28 are not in nature adaptable to non-human actors under the Convention relating to the treatment of prisoners of war.Moreover, the special protection provided to women to preserve them from rape, enforced prostitution and indecent assault, 29 preservation of pregnant women and mothers of a child under seven years, 30 protection of children under fifteen years old by establishing (if needed) hospitals and safety zones in occupied areas, 31 measures related to child welfare, 32 evacuations of children from besieged or encircled areas, 33 protection of children in the occupied territory, 34 including the provision of education to children by the occupying power 35 are the few instances that are not written in nature to cover non-human actors under the Convention related to the protection of civilian persons.
From another perspective, the prohibition of starvation of civilians regulated under Article 54 of the Additional Protocol I can only be applicable for living species for obvious reasons and would not include AI-driven robots since they do not starve (Henckaerts and Doswald-Beck 2005, I:186). 36Furthermore, considering that suffering is a sentiment peculiar to living species, Article 35(2) of the Additional Protocol I, prohibiting attacks that cause unnecessary suffering, would not have an effect on non-living beings either, at least in the sense of IHL.In this context, it is possible to conclude at this point that the examples presented above show that the term "person" is used to refer to "human" under IHL.Consequently, it would not be possible to discuss military AI technologies-or any other non-human subjects-within the context of combatant and civilian concepts.

Concluding Remarks
found that it is problematic to conceptualise military AI technologies as a combatant under IHL.
All in all, the short response to the question of whether military AI technologies are able to be entitled to combatant status would be no.Though, the answer cannot be found in the provisions defining the combatant.The definition of civilian contributes to interpreting that the subject (members of the armed forces) used while defining combatant in Article 4 of the Geneva Convention III and Article 43 of the Additional Protocol I refers to a person.Although Article 4 explicitly refers to the term person as well while defining POW, it does not explicitly introduce the categories as the categories of person as it is clarified in the definition of the civilian.Hence the deficiency of both provisions to identify whether the members of the armed forces imply person, eliminated by the definition of the civilian.Then, the answer to the final question of whether the term person implies human can be found through the analysis of how the term person is characterised in the language of the Geneva Conventions.In light of the aforementioned instances, it is crystal clear that the essence of the Geneva Conventions and its Additional Protocol I and its particular regulations protecting civilians aims to allude to humans by attributing human-based characteristics and sentiments such as correspondence with family, religious faith, gender, starvation,37 and suffering38 (Sandoz, Swinarski, andZimmermann 1987, par. 1434) while using the term "person"-or making characterisations only attributable to the person.
Combatant status has a limited scope of application and is only applicable in international armed conflicts, and merely members of the armed forces party to an armed conflict can be considered combatant (Henckaerts and Doswald-Beck 2005, I:12-13).Ultimately, international armed conflict is not the only sort of conflict.In fact, many armed conflicts have a non-international character in the contemporary world due to the rise of non-state armed groups and terrorist organisations, where the combatant status is not applicable.Furthermore, although IHL limits the right to directly participate in hostilities to combatants, it does not prohibit anyone from participating in hostilities (Melzer 2016).Those who participate in hostilities without any status have no special protection or privileges and are still required to comply with the rules of the laws of war.Otherwise, non-international armed conflicts, as well as the engagement of dissident armed groups, 39 mercenaries, 40 private contractors 41 and civilians participating in hostilities 42 in international armed conflict, would have been prohibited under IHL.Consequently, the incompatibility of the non-human actors to combatant status does not prevent, for instance, the use of military AI technologies on the battlefield.Yet, it only restrains to attribute some special protections and statuses to them.Conceptually, they may well become the subject of an armed conflict as means or methods of warfare and fit those definitions, depending on their role and capabilities and be governed by rules regulating means and methods of warfare.
This paper specifically concentrated on the combatant status and its attributability to military AI technologies from a legal perspective.Although the analysis does not go beyond the scope of combatant status, this paper opines that the means and methods of warfare concept is large enough to cover many AI-based applications in the military context.Yet the elaboration of how revolutionised forms of war through AI technology can be governed by rules applicable to means and methods of warfare is the subject of another study.
It is inevitable that the novel form of technologies emerging as tools for realising military goals and objectives will continue to appear, or existing ones will evolve into other shapes and dimensions.In this context, it is essential to understand such transformation and make a contemporary interpretation within the scope of existing law before asking for new regulations in order to make the law as effective and responsive as possible.