Category Archives: Laws of War

The Citizenship Hook: Obligations to British and French Foreign Fighters Under the European Convention on Human Rights

The rise of ISIS was characterized by unprecedented numbers of Western citizens traveling across the globe to fight for the “caliphate.” Their capture created a humanitarian crisis in the region: what to do with those citizens who were captured by the Iraqi and Syrian governments? European governments, the UK and France in particular, have been less than enthusiastic about repatriating their citizens to face trial at home.

Nicole Molinaro examines the situation of British and French nationals who are currently facing trial or have already been convicted as ISIS foreign fighters in Iraqi courts. She discusses domestic legal and policy regimes established by the UK and France to deal with nationals accused of engaging in terrorism, the ECHR’s substantive protections and whether they are violated, the extraterritorial scope of the ECHR, and proposes an additional basis for European countries expanding extraterritorial jurisdiction: Citizenship.

Molinaro ultimately concludes that the ECHR has jurisdiction over the individuals and that the UK and France violate articles 2 and 3 by refusing to take custody of their citizen foreign fighters.

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.

Deterrence as the MacGuffin: The Case for Arms Control in Outer Space

This article examines the theory and practice of two partially contrasting policy approaches to US national security and global stability: deterrence, which has long been regarded as virtually the “Holy Grail” of post-World War II US strategy, and arms control, which offers alternative goals, procedures, and structures.

In the realm of nuclear weapons, both approaches have been regularly employed: the United States has developed and deployed a diverse array of weapons, devoting time and treasure to assembling the tools of deterrence, but it has also simultaneously pursued successive generations of SALT, START, and other diplomatic initiatives to limit and reduce those inventories. In contrast, when it comes to outer space—where there is currently a widely-shared perception of starkly rising security threats from Russia, China, and elsewhere—it is deterrence, and deterrence alone, that has been marshaled. Arms control, even relatively modest, preliminary, and non-legally binding variants, has consistently been categorically ruled off the table, by Republican and Democratic leadership alike.

David A. Koplow posits that this exclusive American reliance upon deterrence for ameliorating the security problems of space is misguided. This is because deterrence in all its assorted forms and variations is systematically less applicable to the special circumstances of exoatmospheric competition, and arms control in outer space would be particularly valuable and successful in that milieu. Koplow therefore concludes that US national policy should be promptly re-aligned, to draw strategically upon both concepts for resisting the further degradation of the security and sustainability of critical space operations.

From Protecting Lives to Protecting States: Use of Force Across the Threat Continuum

Retired Brigadier General Kenneth Watkin’s new book, Fighting at the Legal Boundaries: Controlling the Use of Force in Contemporary Conflict, helps address some of the issues with the increasingly blurred line between international humanitarian law and human rights law. Professor Mitt Regan’s review addresses the trends that Watkin regards as posing novel challenges for states accustomed to traditional concepts of the use of force and discusses Watkin’s concepts that are especially relevant to the question of how much the traditional categories of law enforcement guided by human rights principles and armed conflict governed by international humanitarian law should continue to frame thinking about the use of force. Regan also critiques Watkin’s use of the binary framework of law enforcement and armed conflict to guide analysis.

Machine Learning, Artificial Intelligence, and the Use of Force by States

Taking an international law perspective, Ashley Deeks, Noam Lubell, and Daragh Murray highlight the potential legal, policy, and ethical challenges that will arise as governments inevitably begin to employ artificial intelligence and machine learning algorithms to inform their use of force decisions. The authors identify critical questions states should contemplate before developing such algorithms, underscoring that machine learning algorithms could both improve the accuracy of use of force decision making and present negative consequences for states, and recommend prophylactic measures for states as they develop and eventually deploy these tools.