“To fight has always been the man’s habit, not the woman’s. Law and practice have developed that difference, whether innate or accidental”

– Virginia Woolf, Three Guineas,1938.

International law has developed on the basis of patriarchal structures. Indeed, this can be clearly seen within International Humanitarian Law (IHL), which can be understood as a “masculine form of domination”. IHL is used to regulate armed conflicts which have, for centuries, been fought by men. As a result, a gender bias has developed, in which masculinity is equated with the status of a warrior and femininity with innocence. This bias is specifically contained within the principle of distinction in IHL, under the Geneva Conventions Protocol I, Article 48. This states that parties to the armed conflict must distinguish between combatants and civilians, and only attack the former.

The question is whether the future use of Autonomous Weapons Systems (AWS) will serve to perpetuate this bias or whether they will disrupt the patriarchal military structure. AWS are defined as any weapon system with autonomy in its critical functions. These weapons are yet to be developed, but pre-cursors are seen in weapons such as South Korea’s semi-autonomous SGR-A1. The use of AWS has the potential to change gender dynamics upon the battlefield.

Gender as a social construct and the binary of sex difference embedded within gender identity has been translated into many areas of international law and IHL is not exempt from this critique. It is a regime that predominantly prioritises men, relegating women to the status of victims and child-bearers. This discrimination and bias can be seen especially in the principle of distinction.

Masculinity in war is associated with a natural ‘protector’ dynamic; the combatants embodying the image of chivalric, just warriors as a direct result of patriarchal norms within society. Women are regularly placed in the same group as children when their experiences within war is considered. In turn, this analogises women with the perceived vulnerability and innocence that children bear in society. It is therefore expected from men’s gendered roles that their duty is to fight in wars to protect women and children. This hegemonic masculinity sustains the patriarchal military structure.

The reality is that many women do act as combatants in armed conflicts, defying the gendered narratives of war. However, their role as combatants is often over-looked by many participants. The generalisation of women as civilians also serves to ignore their unique experiences of war as victims of gender-based violence, perpetrated in armed conflict to ensure maintenance of the subordination of women.

The use of AWS may present an opportunity to rid the gender bias embedded within the principle of distinction; the phrase “robots do not rape” is one that has been used in arguments that propose the use of AWS. Their use presents an opportunity to eliminate gender-based violence as a way of upholding the patriarchal military structure. Rather than viewing women as innocent subordinates, AWS warfare could result in the emancipation of the traditional gender roles prescribed to men and women during wartime. The protector and protected dyad would cease to continue, as all genders would be protected during war by AWS.

There is still a possibility that the use of AWS will continue to perpetuate gender bias, rather than displace it. Many feminist organisations have called for a ban of AWS, on the basis that States may easily utilise these types of weapons in ways against women both as civilians and as combatants. The development of these weapons and the algorithms that will allow them to function autonomously will most likely be completed in the Global North and by males, due to the continued exclusion of women within technology. Artificial Intelligence is vulnerable to bias and therefore, there is a risk that those developing the weapons could enable it to function with gendered biases, resulting in an AWS that could not be considered gender neutral. The AWS would create target profiles for whom they are permitted to attack,  and would therefore be more likely to identify males as combatants. This would result in the AWS continuing to perpetuate the protector and protected dyad. The crux of the issue of gender bias within IHL is that war has been characterised as ‘masculine’, and the use of AWS may only serve to “essentialise both men and women and their characteristics”. The use of AWS could result in a “hyper-masculine” military structure, and the gendered bias within IHL would continue.

Strong claims for the use of AWS derive from arguments made in posthuman feminism. Indeed, it may be time to recognise the importance of technology within warfare and make changes to the discourse of IHL that can both support the use of AWS and reconstruct the patriarchal military structure in order to remove the gender bias. Posthuman feminism “uses technology to question what it means to be human, deconstructing the very notion of what the human is”. Donna Haraway’s vision of a world of ‘cyborgs’ that blur the distinction between human and technology would lead to a conceptual disruption of gender within armed conflict. Viewed in a posthuman world, distinctions between species and culture will dissolve, and AWS would not be able to perform the principle of distinction in a gendered way. Indeed, the principle of distinction as it is performed on battlefields today may even cease to exist, and a ‘posthumanitarian’ law could take IHL’s place. Legal frameworks that regulate AWS would work to create a feminist world, diffusing patriarchal structures within international law.

Posthuman feminism proposes ways in which the use of machines can displace the gender bias. Deconstructing the human norm, which lies at the heart of the majority of debates on the use of AWS, also presents an opportunity to deconstructed gender roles in armed conflict. A posthuman world is one that can benefit both men and women and ensure that the use of AWS will not continue to perpetuate the gender bias within the principle of distinction.