Category Archives: Vol. 11 No. 2

Command Responsibility: A Model for Defining Meaningful Human Control

In the relatively near future, the United States and other countries are likely to develop varying levels of artificial intelligence (AI) and integrate it into autonomous weapons. There are significant voices, spearheaded by The Campaign to Ban Killer Robots, advocating for a preemptive ban on these weapons.

The opponents of lethal autonomous weapon systems (LAWS) argue that it is unethical to allow a machine to decide when to kill and that AI will never be able to adhere to International Humanitarian Law (IHL) obligations. These opposition campaigns have led to discussions in the international community about developing a legal framework for LAWS. While a requirement for meaningful human control (MHC) has gained traction within certain UN bodies, the United States has objected to the use of the standard, arguing that such an ambiguous standard would further obscure the challenges posed by LAWS.

Maj. Matthew Miller’s article seeks to provide a solution to the ambiguity of MHC and provide a workable definition of the standard. Miller reviews the ways humans can interact with autonomous systems, examining the ways humans are placed in a system’s decision loop, and relevant provisions of IHL to LAWS. Miller ultimately uses the lens of command responsibility to demonstrate how MHC can be applied to the design and use of LAWS, ultimately concluding that this method can address concerns that the use of LAWS will prevent accountability for IHL violations.

Cybercrime vs. Cyberwar: Paradigms for Addressing Malicious Cyber Activity

Although acts of cybercrime and cyberwar are different, the lines between the two have been become blurred over time. The nature of cyberspace has complicated the pre-existing doctrine for armed attacks, yet they are still being applied. Furthermore, the United States historically has responded to malicious cyber activity through a militarized lens.

This tendency to lean towards and emphasize a militarized approach has displaced the domestic law enforcement approach and left it inadequately trained, inadequately resourced, and inadequately supported to identify, deter, and punish offenders. Discussions currently neglect other existing frameworks and the development of new ones to address malicious cyber activity

Without a comprehensive international legal framework governing malicious cyber activity, Mieke Eoyang and Chimène Keitner seek to encourage greater awareness of the consequences of viewing malicious cyber activity through only an armed conflict lens.

The Militia Clauses and the Original War Powers

Today, writes Ben Daus-Haberle, the Militia Clauses of the Constitution lead a curious double life. The Second Amendment’s preamble stars in gun rights debates, but when the conversation shifts to the War Powers, these Clauses drop almost entirely from view. The result is a War Powers literature strikingly silent about the Militia Clauses. Yet the founders regarded the militia as a key military resource. To them, the militia was the “great Bulwark of our Liberties and independence,” and they structured the Constitution with this bulwark in mind.

This paper returns the Militia Clauses to view to explore how they shaped the War Powers. While scholars have occasionally considered the clauses in isolation, the full dimensions of this regime only become visible when the clauses are examined intratextually—that is, in dialogue with each other and the rest of the constitutional text.

Doing so both illuminates the original functioning of the War Powers and prevents misunderstandings that can arise when individual clauses are considered in isolation.