Criminal Law

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Article
26.1
Battlefield Evidence in the Age of Artificial Intelligence-Enabled Warfare
Winthrop Wells
Senior Manager for Programs and Policy Planning, and Programmatic Unit Officer-in-Charge, the International Institute for Justice and the Rule of Law

The author wishes to thank the editors of the Chicago Journal of International Law for the opportunity to contribute to this symposium and for their diligent work. The views expressed are those of the author alone.

A number of emerging technologies increasingly prevalent on contemporary battlefields—notably unmanned autonomous systems (UAS) and various military applications of artificial intelligence (AI)—are working a sea change in the way that wars are fought. These technological developments also carry major implications for the investigation and prosecution of serious crimes committed in armed conflict, including for an under-examined yet potentially valuable form of evidence: information and material collected or obtained by military forces themselves.
Such “battlefield evidence” poses various legal and practical challenges. Yet it can play an important role in justice and accountability processes, in which it addresses the longstanding obstacle of law enforcement actors’ inability to access the conflict-torn crime scenes. Indeed, military-collected information and material has been critical to prosecutions of international crimes and terrorism offenses in recent years.
The present Article briefly surveys the historical record of battlefield evidence’s use. It demonstrates that previous technological advances—including in remote sensing, communications interception, biometrics, and digital data storage and analysis—not only enlarged and diversified the broader pool of military data but also had similar downstream effects on the (far) smaller subset of information shared and used for law enforcement purposes.
The Article then examines how current evolutions in the means and methods of warfare impact the utility of this increasingly prominent evidentiary tool. Ultimately, it is argued that the technical features of UAS and military AI give rise to significant, although qualified, opportunities for collection and exploitation of battlefield evidence. At the same time, these technologies and their broader impacts on the conduct of warfare risk inhibiting the sharing of such information and complicating its courtroom use.

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Article
16.2
Hybrid Tribunals and the Composition of the Court: In Search of Sociological Legitimacy
Harry Hobbs
Senior Research Officer, Senate Standing Committee on Economics, Parliament of Australia; Sessional Tutor in Public International Law, Australian National University.

Thanks to Joanna Langille, Ryan Liss, André Nollkaemper, Philip Alston, Alison Cole, William Burke-White, Sarah Lulo and participants in the Salzburg Cutler Law Fellows Program at the U.S. Institute of Peace, Washington D.C., 20–21 February 2015. Considerable thanks should also go to the staff of the Journal for their helpful comments and editorial assistance.