Jens Ohlin

The question of whether new rules or regulations are required to govern, restrict, or even prohibit the use of autonomous weapon systems has been the subject of debate for the better part of a decade. Despite the claims of advocacy groups, the way ahead remains unclear since the international community has yet to agree on a specific definition of Lethal Autonomous Weapon Systems and the great powers have largely refused to support an effective ban. In this vacuum, the public has been presented with a heavily one-sided view of Killer Robots. This interdisciplinary volume presents a more nuanced approach to autonomous weapon systems that recognizes the need to progress beyond a discourse framed by the Terminator and HAL 9000. Re-shaping the discussion around this emerging military innovation requires a new line of thought and a willingness to challenge the orthodoxy. Lethal Autonomous Weapons focuses on exploring the moral and legal issues associated with the design, development and deployment of lethal autonomous weapons. The volume brings together some of the most prominent academics and academic-practitioners in the lethal autonomous weapons space and seeks to return some balance to the debate. As part of this effort, it recognizes that society needs to invest in hard conversations that tackle the ethics, morality, and law of these new digital technologies and understand the human role in their creation and operation.

Election interference is one of the most widely discussed international phenomena of the last five years. Russian covert interference in the 2016 U.S. Presidential Election elevated the topic into a national priority, but that experience was far from an isolated one. Evidence of election interference by foreign states or their proxies has become a regular feature of national elections and is likely to get worse in the near future. Information and communication technologies afford those who would interfere with new tools that can operate in ways previously unimaginable: Twitter bots, Facebook advertisements, closed social media platforms, algorithms that prioritize extreme views, disinformation, misinformation, and malware that steals secret campaign communications. Defending Democracies examines the problem through an interdisciplinary lens and focuses on: defining the problem of foreign election interference, exploring the solutions that international law might bring to bear, and considering alternative regulatory frameworks for understanding and addressing the problem. The result is a deeply urgent examination of an old problem on social media steroids, one that implicates the most central institution of liberal democracy: elections. The volume seeks to bring domestic and international perspectives on elections and election law into conversation with other disciplinary frameworks, escaping the typical biases of lawyers who prefer international legal solutions for issues of international relations. Taken together, the chapters in this volume represent a more faithful representation of the broad array of solutions that might be deployed, including international and domestic, legal and extra-legal, ambitious and cautious.

This essay explores the ethical and legal implications of prioritizing the militarization of cyberspace as part of a roundtable on “Competing Visions for Cyberspace.” Our essay uses an ideal type—a world that accepts warfighting as the prime directive for the construction and use of cyberspace—and examines the ethical and legal consequences that follow for who will have authority to regulate cyberspace; what vehicles they will most likely use to do so; and what the rules of behavior for states and stakeholders will be. We envision a world where states would take on a greater role in governance but remain constrained by law, includingjus ad bellumandjus in bellocriteria, but also sovereignty, nonintervention, and self-determination. We ask if the net result would mean states causing less harm than they do in kinetic conflicts. Ultimately, our essay takes no position on whether cyberspace should be a militarized domain. Rather, our goal is to situate a warfighting cyber domain within the reality of a pluralist cyberspace, where ethical imperatives compete or coalesce to support specific governance mechanisms.

This chapter discusses how jus in bello necessity can and should be balanced against the principle of humanity. In many ways, the principle of humanity covers much of the same ground as human rights principles, except in this case the principle is already internal to jus in bello. So this chapter explains how some human rights principles—under the guise of the principle of humanity—have a proper role to play in checking the inherent permissiveness of jus in bello necessity. To accomplish this task, the chapter examines how the principle of humanity and necessity work in both legal and philosophical arguments about just conduct during warfare.

This chapter extends the analysis of the previous chapter but shifts from philosophical inquiry to legal analysis. The goal is to determine how much of our philosophical understanding of necessity maps onto the current legal landscape, and whether this book’s philosophical position suggests that legal doctrines should be revised or maintained without alteration. To the extent that necessity remains a salient category in today’s scholarly debates about military action, the question is how it should be applied to factual scenarios that could not have been imagined by the natural law theorists or even Francis Lieber. This chapter starts by analyzing the definition of jus in bello necessity offered by the International Committee of the Red Cross and explains how contemporary explanations of necessity owe much to Lieber and his historical antecedents. It then provides a normative defense of Lieber’s version of jus in bello necessity.

This chapter evaluates how necessity works as a central element of jus ad bellum legal arguments. In particular, it notes that the concept of necessity works differently depending on whether it is asserted as an independent excuse in international relations or whether it is one component of a self-defense analysis. In the former case it is invoked as an exception to general rules of conduct, whereas in the latter case necessity functions as a constraint on the application of a general justification. Although both examples share structural similarities, the former is more dangerous, and for that reason international lawyers have generally placed external constraints on the application of the necessity doctrine.

This chapter contrasts jus in bello necessity with necessity as the concept is used in human rights thinking. The task here is to explain what is distinctive about jus in bello necessity and to explain why conceptions of necessity that reign in other areas of international law cannot be automatically grafted onto the laws of war without reflection and deliberation. Indeed, any attempt to transplant a more restrictive version of necessity will result in a substantial alteration of the legal architecture of jus in bello. Although this is not necessarily a bad thing, it can only be accomplished if one offers a separate normative defense for that alteration. It cannot be presumed.

This chapter examines the use of necessity as an excuse in criminal law and notes that in this context necessity functions as a general exception to preestablished rules; in this area necessity is potentially at its most dangerous. It examines the various constraints—both ad hoc and principled —that international criminal law deploys to restrict the application of the necessity defense so as to mitigate its over-permissiveness. It considers the most aggressive containment strategy—a wider prohibition on the necessity defense for principled reasons. The chapter concludes that the principled constraints have several normative advantages over the ad hoc constraints.

The first section examines how jus in bello necessity was understood in the work of the sixteenth and seventeenth century philosophers. In the second section we show how a revised understanding of necessity fits into the kind of considerations that are involved in the principle of humanitarian treatment. Based on that analysis, the chapter concludes that the principle of necessity creates a very small class of cases that may be treated in an exceptional way. In the third section we discuss the problem that occurs when considerations of jus in bello necessity seem to involve the irrelevant factor of luck. The fourth section relates necessity to the philosophical concept of practical necessity. The final section spells out how the principles of necessity and proportionality relate to each other: proportionality puts a restraint on the principle of necessity, so the two must be understood in tandem.

This chapter examines how the concept of necessity is used in Just War theory as a principle of last resort—a criterion that must be satisfied before the recourse to force can be justified. It reassesses the doctrine of anticipatory self-defense, and the larger question of the justifiability of preemptive and preventive war, from the Just War perspective. The second and third sections rehearse an important debate between Alberico Gentili and Hugo Grotius. It then looks at “first strikes” and then at “last resorts” to see what, if anything, is to be said for these as markers of aggressive or defensive war. These sections address directly the justifiability of preemptive war with reference to the principle of necessity in jus ad bellum debates in Just War theory.

This chapter asks a similar set of questions regarding necessity and the duty to capture, that is, whether necessity requires an attacking force to attempt capture prior to initiating a lethal strike. There is no such duty codified in existing legal obligations, at least not where jus in bello is concerned. However, restrictions on the use of overwhelming force might be found in a reinvigorated jus ad bellum obligation on the part of attacking forces to cease an attack when the necessity giving rise to the armed conflict has evaporated because the enemy nation has been so decimated that they are incapable of constituting a national threat anymore. Finally, this chapter also asks whether it would be morally advisable to amend the codified rules of jus in bello to require non-lethal attacks in limited and carefully circumscribed contexts.

This chapter asks whether necessity permits attacking forces to kill rather than disable first. Section I begins by considering the specific prohibitions of the laws of war, and concludes these specific prohibitions do not add up to a more general duty to refrain from using lethal force against enemy combatants. Section II then looks at the legal prohibition regarding killing soldiers who are hors de combat, and concludes that it provides no support for a general requirement to use non-lethal force first in all situations. Section III then examines the travaux preparatoires for the Additional Protocols to the Geneva Conventions and concludes that the least-harmful-means test, though by all means a subject of discussion at the Geneva conferences, was not codified into the Additional Protocols. Finally, Section IV considers the question from the perspective of normative theory and asks whether principles of moral philosophy require a change in the law.

lawpubPublic International LawlawphiPhilosophy of LawNecessity is quite possibly the most powerful concept in the law. It has the almost mystical power to transform what would otherwise be illegal or immoral into a justified or excused act, all because the action was “necessary.” Herein lays its utter dangerousness. Whether the inquiry is individual self-defense in domestic criminal law, national self-defense under international law, or killing during armed conflict, the concept of necessity is often the key element that drives the outcome of the analysis. If the action is necessary, then it is often permitted; if the action is not necessary, it is often forbidden. But what does “necessary” really mean in these debates? And does it mean the same thing in each context, or does its meaning and function depend on the nature of the inquiry at hand? Is necessity a universal moral and legal concept, or is its meaning fundamentally context-dependent?...

This chapter addresses force protection and the degree to which necessity permits attacking forces to prioritize the lives of their own soldiers over the lives of enemy civilians. This is a difficult problem of application; although everyone agrees that the lives of enemy civilians must be safeguarded, the question is how much must be risked in order to safeguard them. The chapter discusses the case of the Israeli Defense Forces, in which great emphasis is placed on preventing the abduction of Israeli troops and on facilitating their rescue, even at the cost of other lives. This chapter concludes by articulating a standard of reasonable force protection that is neither too restrictive nor too permissive.

lawpubPublic International LawlawphiPhilosophy of LawIn this book we have tried to offer more than just a descriptive survey of the various ways that the concept of necessity is used in international law. We have offered a normative account that suggests how and when necessity should be deployed as a powerful concept to justify and excuse State action in various domains. However, that normative task could only be accomplished once a coherent descriptive mapping was performed. We considered the different and unique elements of necessity in international law with the hope of elucidating a deeper structure for the concept. We identified at least three different senses of necessity: as a state of exception to generally applicable laws, as a constraint on government action, and as a license to engage in conduct that is otherwise consistent with generally applicable laws. Using these conceptual distinctions, we analyzed and ultimately criticized how necessity functions in diverse areas of international law. Although the same term is used in...

This chapter examines the dividing line between combatants and civilians during contemporary asymmetric conflicts against nonstate actors, the preeminent type of military conflict in this age of global terrorism. Although the dividing line between combatant and civilian is well explored in both the legal and philosophical literatures, this chapter examines the subject explicitly through the lens of necessity. In particular it conentrates on the difficulty of sorting out civilians from combatants when an individual may cross the line at will, and may be involved in exercises such as serving as a human shield. The chapter concludes that the fundamental element of status, which is the foundation for status-based targeting and status-based detention, is starting to break down in contemporary asymmetric conflicts.

Necessity is a notoriously dangerous and slippery concept-dangerous because it contemplates virtually unrestrained killing in warfare and slippery when used in conflicting ways in different areas of international law. Jens David Ohlin and Larry May untangle these confusing strands and perform a descriptive mapping of the ways that necessity operates in legal and philosophical arguments in jus ad bellum, jus in bello, human rights, and criminal law. Although the term "necessity" is ever-present in discussions regarding the law and ethics of killing, its meaning changes subtly depending on the context. It is sometimes an exception, at other times a constraint on government action, and most frequently a broad license in war that countenances the wholesale killing of enemy soldiers in battle. Is this legal status quo in war morally acceptable? Ohlin and May offer a normative and philosophical critique of international law's prevailing notion of jus in bello necessity and suggest ways that killing in warfare could be made more humane-not just against civilians but soldiers as well. Along the way, the authors apply their analysis to modern asymmetric conflicts with non-state actors and the military techniques most likely to be used against them. Presenting a rich tapestry of arguments from both contemporary and historical Just War theory, Necessity in International Law is the first full-length study of necessity as a legal and philosophical concept in international affairs.

The project takes as its starting point our conflicting intuitions about personal identity exposed by Bernard Williams' thought experiment involving the switching of bodies in "The Self and the Future." The conflicted intuitions are identified as animalist and psychologist and correspond roughly with the two major approaches to personal identity. The traditional strategy to resolve the conflict---thought experiments---is critically examined and the project concludes that proper thought experiments will reveal the conflict but are unlikely to resolve it. A new reading of the conflict is proposed. The concept of the person is a cluster concept with distinct components: biological human beings, rational agency and psychological continuity, where the latter is construed as the temporal analog of phenomenological unity at a time. The project then suggests that moral theory is best pursued not by a naturalist conception of persons that unites the components of the cluster, but by a novel conception that separates them. This can be accomplished best by eliminating the concept of the person altogether. Objections that the concept of the person is ineliminable are considered and rejected, as are objections that the nature of conflict is not reason enough to abandon the concept. Personhood's centrality for value theory is questioned and the eliminativist strategy is defended on the grounds that responsibility, self-concern and moral rights are best analyzed with the component concepts instead of the cluster concept. Eliminativism is therefore preferable to competing accounts of personal identity because the former is better suited for moral theory. Among the advantages are the ability to: attribute responsibility to group agents without calling them persons, make sense of our conflicting demonstrations of self-concern without taking them as evidence for conflicting theories of personal identity, and attribute moral rights to entities who fail to meet traditional criteria for personhood but who are nonetheless entitled to moral respect

The following Review Essay, inspired by Tracy Isaacs’ new book, Moral Responsibility in Collective Contexts, connects the philosophical literature on group agency with recent trends in international criminal law. Part I of the Essay sketches out the relevant philosophical positions, including collectivist and individualist accounts of group agency. Particular attention is paid to Kornhauser and Sager’s development of the doctrinal paradox, Philip Pettit’s deployment of the paradox towards a general argument for group rationality, and Michael Bratman’s account of shared or joint intentions. Part II then analyzes, with cautious support, Isaacs’ two-level solution, which entails both individual and collective moral responsibility. Under this view, collective moral agency is a real phenomenon, though the existence of the collective neither obviates nor eliminates the moral responsibility of the individuals from which it is composed. My own evaluation of the proposed solution concentrates on Davidson’s Principle of Charity and whether behavior interpretation requires viewing such agents in particular ways so as to maximize rationality. By analogy to the distinctive rationality of long-term plans, where the rationality of an individual act can only be understood relative to its place in the rationally justified long-term plan of a single individual, I also consider the rationality of individual acts whose rationality can only be understood relative to the group endeavors of which they are a part. Finally, Part III traces some implications of the two-level solution for legal doctrine, in particular the role of collective organizations in the recent jurisprudence of the International Criminal Court. For example, I note that the ICC has recently become more and more focused on the role played by goal-oriented collectives, especially with regard to the plan or policy requirement for crimes against humanity and, in the context of modes of liability, indirect liability for crimes committed through an organization

Although vicarious liability for the acts of co-conspirators is firmly entrenched in federal courts, no adequate theory explains how the act and intention of one conspirator can be attributed to another, simply by virtue of their criminal agreement. This Article argues that the most promising avenue for solving the Pinkerton paradox is an appeal to the collective intention of the conspiratorial group to commit the crime. Unfortunately, misplaced skepticism about the notion of a group will has prevented criminal scholars from embracing the notion of a conspiracy's collective intention to commit a crime. However, positing group intentions requires only that the criminal law recognize the rational relationships between individuals who decide to collectivize reason to pursue a common criminal goal; no burdensome theory of corporate animals with unified minds is required. After exploring the different rational structures that a conspiracy can have, the Article outlines the circumstances when vicarious liability could be justified. Specifically, liability must be limited to participants in tightly knit conspiracies who engage in the kind of common deliberation that is capable of yielding collective intentions. A further consequence of this theory is that liability must be restricted to acts that fall within the scope of the criminal plan, not just acts that should have been reasonably foreseeable to members of the conspiracy.

The concept of the person is widely assumed to be indispensable for making a rights claim. But a survey of the concept's appearance in legal discourse reveals that the concept is stretched to the breaking point. Personhood stands at the center of debates as diverse as the legal status of embryos and animals to the rights and responsibilities of corporations and nations. This Note argues that personhood is a cluster concept with distinct components: the biological concept of the human being, the notion of a rational agent, and unity of consciousness. Use of these component concepts (in lieu of the concept of the person) in legal reasoning would promote greater systematicity and coherence.