LEGAL THEORY WORKSHOP SERIES
presents
Jens David Ohlin
Cornell Law School
The Combatant's Stance
12:30 - 2:00
Friday, March 4, 2016
Solarium (room FA2) – Falconer Hall
84 Queen's Park
Effective international criminal regulation of Autonomous Weapons Systems (AWS) faces two conceptual obstacles. The first is deeply philosophical: when might an autonomous system be sufficiently self-aware that it could be held criminally liable as a morally responsible agent? The second issue is far more urgent: when could a military commander be held criminally responsible for violations of IHL perpetrated by an Autonomous Weapons System? I argue in this paper that the answer to the second question is logically independent from the first. As to the first question, I argue in this paper that combatants on the battlefield are required by the demands of behavior interpretation to approach a sophisticated AWS with what I call the “combatant’s stance”—the ascription of mental states required to understand the system’s strategic behavior on the battlefield. However, military commanders can and should be held responsible for perpetrating war crimes through an AWS regardless of the moral status of the AWS as a culpable or non-culpable agent. In other words, a military commander can be liable for the acts of the machine independent of what conclusions we draw from the fact that combatants—even artificial ones—must approach each other with the combatant’s stance. Although the literature on AWS is new, the basic framework for AWS liability was outlined, in nascent form, at Nuremberg and its aftermath. Although this sounds unlikely, a close reading of international criminal law’s infancy shows that modes of liability were designed for convicting those who indirectly perpetrate war crimes through a “machine” or organized “apparatus” of power. Indeed, the whole narrative of post-Nuremberg international criminal law involves individuals who were mere “cogs in a machine.” Although this language was once deployed as a metaphor to refer to human “machine-like” organizations, the technical requirements for liability under these legal doctrines map on surprisingly well to the indirect perpetration of war crimes through an AWS. In particular, international criminal law, following several domestic systems, abandoned the “innocent instrumentality rule,” thus paving the way for prosecuting individuals for indirectly perpetrating an international crime even if the “instrument” of their criminality is also a morally culpable agent. However, there is still one jurisprudential area where international criminal law is ill suited to prosecuting AWS cases, and that involves the mental state of recklessness. The majority of AWS cases will involve commanders who are reckless in deploying an AWS that launches attacks that violate the core prohibitions of IHL. Unfortunately, international criminal law’s treatment of crimes of recklessness remains wholly inadequate, mostly because there is no international equivalent to manslaughter or a similar crime that meets any reasonable standard of fair labeling.
Professor Ohlin specializes in international law and all aspects of criminal law, including domestic, comparative, and international criminal law. His latest book, The Assault on International Law, from Oxford University Press, challenges the prevailing American hostility towards international law, and offers a novel theory of rationality to explain why nations should comply with international law. Ohlin’s research also focuses on the laws of war, in particular the impact of new technology on the regulation of warfare, including remotely piloted drones and the strategy of targeted killings, cyber-warfare, and the role of non-state actors in armed conflicts..
A light lunch will be served.
For more information about this workshop, please contact Nadia Gulezko at n.gulezko@utoronto.ca.
