Peter Margulies

Making Autonomous Weapons Accountable: Command Responsibility for Computer-Guided Lethal Force in Armed Conflicts

Autonomous weapons systems, in which a computer makes targeting decisions without specific human authorization, pose challenges for international humanitarian law (IHL). The most salient challenge is accountability for autonomous IHL violations. An autonomous weapons system (AWS) that violates IHL cannot be a defendant in a war crimes trial or a subject of military discipline. Moreover, accountability for IHL violations would be ill-served by human combatants who shrugged off their own role in an AWS’s IHL violations, lamely claiming to be “outside the loop” of the computer’s autonomous decisions. To fill the AWS accountability gap, this paper relies on the doctrine of command responsibility. A human in command should have responsibility for autonomous decisions, just as a commander is currently held responsible for an unreasonable failure to prevent a subordinate’s IHL violations. Holding commanders responsible for an AWS is a logical refinement of current law, since it imposes liability on an individual with power and access to information who benefits most concretely from the AWS’s capabilities in war-fighting.Accountability requires what I call dynamic diligence, a three-pronged approach entailing a flexible human/machine interface, periodic assessment, and parameters tailored to IHL compliance. The model features a dedicated AWS command, staffed by officers familiar with the capabilities of autonomous weapons. A dynamic human/machine interface will not require human authorization or real-time monitoring of targeting, but must enable humans to override an AWS’s decisions. Dynamic assessment should include regular reviews of the AWS’s learning process, to ensure that an AWS in the field does not learn behavior that violates IHL. Dynamic parameters encourage interpretability of AWS targeting decisions: a substantive, verbal explanation, rather than hidden layers of computer calculations, will facilitate effective review. Constrained by dynamic diligence, a commander can harness an AWS’s freedom from flawed human emotions, while furnishing “meaningful human control” to ensure fidelity to IHL principles.

Crossing Borders to Target Al-Qaeda and Its Affiliates: Defining Networks as Organized Armed Groups in Non-International Armed Conflicts

Al-Qaeda’s dispersal and the rise of regional terrorist groups such as Al-Shabaab in Somalia have raised the stakes for defining an “organized armed group” (OAG). If an entity fails the OAG test, a state may use only traditional law enforcement methods in responding to the entity’s violence. Both case law and social science literature support a broadly pragmatic reading of the OAG definition. While the International Criminal Tribunal for the former Yugoslavia (ICTY) has cited factors such as existence of a headquarters and imposition of discipline, ICTY decisions have found organization when evidence was at best equivocal. Moreover, terrorist organizations reveal surprisingly robust indicia of organization. Illustrating this organizational turn, a transnational network like Al-Qaeda operates in a synergistic fashion with regional groups. Moreover, recent news reports have suggested that current Al-Qaeda leader Dr. Ayman al-Zawahiri has attempted to assert operational control over the specific targeting decisions of Al-Qaeda affiliates, although that effort has not been uniformly successful. Furthermore, while Al-Qaeda does not micromanage most individual operations, it exercises strategic influence, e.g., through a focus on targeting Western interests. When such strategic influence can be shown, the definition of OAG is sufficiently flexible to permit targeting across borders. In addition, the doctrine of co-belligerency, borrowed from neutrality law, provides a basis for targeting that is not confined by state boundaries. Even when these indicia are absent, individuals within non-Al-Qaeda groups may be targetable if they engage in coordinated activity with Al-Qaeda.

Interpretations of IHL in Tribunals of the United States

Tribunals of the United States have been interpreting IHL ever since the nation was founded. Even before the enactment of the US Constitution, several Founding Fathers believed that membership in the community of nations should be a fundamental aim of the new republic. In the more than two centuries since the Constitution’s enactment, US policy and practice have typically remained within the membership conception. This chapter has describes both how the membership conception has influenced US judicial interpretations of IHL and how these interpretations have in turn influenced the international conception of that body of law. US departures from the membership conception of IHL have usually involved measures taken by the executive branch. US tribunals have responded to these departures in a variety of ways. Sometimes they have accepted these initiatives, but often they have rejected them or tailored the measures to IHL principles. This pattern emerged after the Civil War, when the US Supreme Court held in Ex parte Milligan that a military commission could not try a non-belligerent for acts committed outside the theater of war. In In re Yamashita, the Supreme Court upheld a military commission conviction based on a then-novel theory of command responsibility. That doctrine went on to become a key building block for international tribunals.The September 11 attacks provide the latest illustration of the membership argument. After the executive branch responded to the attacks with efforts to change IHL rules on interrogation, detention, and the jurisdiction of military commissions courts pushed back. These responses were often effective, although the Supreme Court’s decision in Hamdan v. Rumsfeld classifying the struggle with al Qaeda as a NIAC may have raised more questions than it answered. With regard to detention courts have applied IHL principles to determine membership in armed groups and the US has begun to implement administrative reviews based on the Fourth Geneva Convention. As of the writing of this chapter, issues regarding military commission jurisdiction are still working their way through US courts. However, the D.C. Circuit’s decision in Hamdan v. United States vacating a conviction for material support of terrorism in the absence of evidence that the defendant had committed an established war crime reaffirmed the US Constitution’s commitment to international law.