Law of War and Armed Conflict

Online
Article
CJIL Online 2.2
Technologically Enabled Surrender Under the Law of Armed Conflict
David A. Wallace
Brigadier General (ret.) David A. Wallace previously served as the Professor and Head, Department of Law, United States Military Academy, West Point, New York, and has been designated a Professor Emeritus. He is currently the United States Naval Academy Class of 1971 Distinguished Military Professor of Law & Leadership.

The views expressed in this work are those of the authors. They do not necessarily reflect the official policy or position of the United States Naval Academy, United States Military Academy, the Department of the Navy, the Department of the Army, or the Department of Defense.

Shane R. Reeves
Brigadier General Shane R. Reeves is the 15th Dean of the Academic Board of the United States Military Academy, West Point.

The views expressed in this work are those of the authors. They do not necessarily reflect the official policy or position of the United States Naval Academy, United States Military Academy, the Department of the Navy, the Department of the Army, or the Department of Defense.

Christopher J. Hart
Lieutenant Commander Christopher J. Hart is a submarine officer stationed at the United States Naval Academy as a senior instructor in the Leadership, Ethics, and Law Department.

The views expressed in this work are those of the authors. They do not necessarily reflect the official policy or position of the United States Naval Academy, United States Military Academy, the Department of the Navy, the Department of the Army, or the Department of Defense.

This Article discusses the development of the modern legal consequences of surrender under the law of armed conflict and explores how technologically enabled surrender is being used in Ukraine. It concludes with an analysis of the impact of these technologies on the surrender process and presents an adaptive interpretation of existing norms, leading to three overarching themes.

Law of War and Armed Conflict
Print
Article
26.1
The Law of Armed Conflict – in the Dark
Laurie R. Blank
Clinical Professor of Law and Director, International Humanitarian Law Clinic, Emory University School of Law.

With thanks to The U.S. Army Judge Advocate General’s Legal Center and School and the Military Law Review, this Essay builds on my remarks for the Sixteenth Annual Waldemar A. Solf and Marc L. Warren Chair Lecture in National Security Law in March 2023 (published as an edited transcript at 231 Mil. L. Rev. 147 (2023)).

I. Introduction

Law of War and Armed Conflict
Print
Article
26.1
Distinction, Proportionality, and Precautions in Attacks at Sea in the New Era of the Law of Naval Warfare
James Kraska
James Kraska is the Charles H. Stockton Chair of International Maritime Law at the United States Naval War College and Visiting Professor of Law and John Harvey Gregory Lecturer on World Organization at Harvard Law School.

I am grateful to Michael N. Schmitt, Wolff Heintschel von Heinegg, Raul (Pete) Pedrozo, and Nick Kadlec for their generous peer review comments.  

I. Introduction

Law of War and Armed Conflict
Print
Article
26.1
Technology and the Law of Jus Ante Bellum
Asaf Lubin
Dr. Asaf Lubin is an Associate Professor of Law at Indiana University Maurer School of Law and a Faculty Affiliate of the Hamilton Lugar School of Global and International Studies. He is additionally an Affiliated Fellow at Yale Law School’s Information Society Project, a Faculty Associate at the Berkman Klein Center for Internet and Society at Harvard University, and a Research Associate at the Hebrew University of Jerusalem Federmann Cyber Security Research Center.

I am grateful to Rebecca Crootof for the in-depth discussions we had at the outset of this project, which were instrumental in refining my thinking on the subject. I am also grateful to the participants of the Saint Louis University Law Journal Symposium titled “Contemporary Challenges in International Humanitarian Law: Is there Hope for the International Order?” for offering excellent feedback on an earlier draft. In particular I wish to thank Adi Gal, Eric Talbot Jensen, Marco Roscini, Afonso Seixas-Nunes, SJ, and Jennifer Trahan for their valuable insights. I also extend my deep appreciation to the Board of the Chicago Journal of International Law for the opportunity to contribute to this symposium and for their thoughtful feedback and editing. Finally, this symposium has brought together some of the kindest people and sharpest minds currently working at the intersection of international law and technology. It is an incredible privilege to be included among them, and I look forward to engaging with their ideas and contributions in the years to come.

I. Introduction

Humanitarian/Human Rights Law Law of War and Armed Conflict
Print
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.

Criminal Law Law of War and Armed Conflict
Print
Article
17.1
Closing Impunity Gaps for the Crime of Aggression
Jocelyn Getgen Kestenbaum

The author would like to thank Benjamin B. Ferencz for his comments and feedback in writing this article. His inspiring and unwavering sense of justice toward ending aggressive war is second to none. The author would also like to thank Professors Carolyn Patty Blum, Gabor Rona, Deborah Pearlstein, Eda Katherine Tinto, Binny Miller, and Warren Binford, as well as Federica D’Alessandra and the NYU Writer’s Workshop participants for their invaluable comments on earlier drafts. Additionally, the author thanks the CJIL student editors for their thoughtful and excellent editing.

I. Introduction

Law of War and Armed Conflict

Volumes