Brave new world: Neurowarfare and the limits of international humanitarian law

Cornell International Law Journal

Volumn 41, Issue 1, 2008, Pages 177-210

  White, Stephen E ^a  

^a MIT Sloan School of Management

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[No Author keywords available]

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EID: 42349084214     PISSN: 00108812     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (366)

1. See NICHOLAS D. EVANS, MILITARY GADGETS: HOW ADVANCED TECHNOLOGY IS TRANSFORMING TODAY'S BATTLEFIELD . . . AND TOMORROW'S 207-09 (2004).
2. See infra Part II.
3. See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts art. 35.2, June 8, 1977, 1125 U.N.T.S. 3 [hereinafter Additional Protocol I to the Geneva Conventions] ("It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.");
4. see also A. Koplow, Tangled Up in Khaki and Blue: Lethal and Non-Lethal Weapons in Recent Confrontations, 36 GEO. J. INT'L L. 703, 745 (2005).
5. KNUT DORMANN, ELEMENTS OF WAR CRIMES UNDER THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: SOURCES AND COMMENTARY 487-98 (2002).
6. BENJAMIN LIBET, MIND TIME: THE TEMPORAL FACTOR IN CONSCIOUSNESS 122-136 (2004).
7. Antony Duff, Action, the Act Requirement and Criminal Liability, in AGENCY AND ACTION 69, 72 (John Hyman & Helen Steward eds., 2004).
8. See WAYNE R. LAFAVE, CRIMINAL LAW 303-04 (4th ed. 2003).
9. Joshua Greene & Jonathan Cohen, For the Law, Neuroscience Changes Nothing and Everything, in LAW AND THE BRAIN 207, 222-25 (Semir Zeki & Oliver R. Goodenough eds., 2006).
10. DEP'T OF THE ARMY, FIELD MANUAL 27-10: THE LAW OF LAND WARFARE ¶¶ 501, 507(b) (1956).
11. Steve Featherstone, The Coming Robot Army: Introducing America's Future Fighting Machines, HARPER'S MAG, Feb. 2007, at 43, 49.
12. ARTHUR L. NORBERG ET AL. TRANSFORMING COMPUTER TECHNOLOGY: INFORMATION PROCESSING FOR THE PENTAGON: 1962-1986, at 5 (1996).
13. ARPA/DARPA: The History of the Name, http://www.darpa.mil/body/ arpa_darpa.html (last visited Dec. 27, 2007).
14. ALEX ROLAND & PHILIP SHIMAN, STRATEGIC COMPUTING: DARPA AND THE QUEST FOR MACHINE INTELLIGENCE, 1983-1993, at 43 (2002).
15. DARPA Over the Years, http://www.darpa.mil/body/overtheyears.html (last visited Dec. 27, 2007).
16. EVANS, supra note 1, at 149.
17. Richard N. Flint, Independent Research and Development Expenditures: A Study of the Government Contract as an Instrument of Public Policy, 29 LAW & CONTEMP. PROBS. 619 (1964). "Basic or so-called 'blue sky' research is defined as the increasing of knowledge in science generally, but not any practical application thereof."
18. Id.
19. DEFENSE ADVANCED RESEARCH PROJECTS AGENCY, DARPA's STRATEGIC PLAN 7 (2007), available at http://www.darpa.mil/body/pdf/DARPA2007Strategicplanfinal March14.pdf.
20. PAUL DICKSON, SPUTNIK: THE SHOCK OF THE CENTURY 243-44 (Walker & Co. 2007) (2001).
21. See JOHN DAVIDSON, AN INTRODUCTION TO TCP/IP 2-10 (2007).
22. SHARON K. BLACK, TELECOMMUNICATIONS LAW IN THE INTERNET AGE 4 (2002).
23. Id. at 5;
24. see also Nat'l Sci. Found., Fact Sheet: A Brief History of NSF and the Internet (Aug. 13, 2003), http://www.nsf.gov/news/news_summ.jsp?cntn_id- 103050.
25. EVANS, supra note 1, at 207.
26. The impetus for creating the Brain Machine Interface Program was DARPA's creation of "Roborat," a rat with direct neural connections to a wireless brain modem. The movements of the rat could be controlled by remotely stimulating the somatosensory cortical area via the modem so as to mimic sensations to the rat's whiskers and then rewarding the pleasure center of the rat's brain, the medial forebrain bundle, by shocking the rat's brain when it obeyed the operator's control.
27. See ERIC EISENSTADT, BRAIN MACHINE INTERFACE 2 (2002), available at http://www.darpa.gov/ DARPATech2002/presentations/dso_pdf/speeches/EISENSTADT. pdf;
28. see also Duncan Graham-Rowe, Say Hello to the RoboRat, NEW SCIENTIST, May 4, 2002, at 6, 6-7.
29. See John Markoff, Pentagon Redirects its Research Dollars, N.Y. TIMES, Apr. 2, 2005, at C2. DARPA admitted the change in its priorities in April 2005, noting, inter alia, its new direction in advanced weapon system research as opposed to "blue sky" research.
30. Id.
31. DARPA's funding of the Information Awareness Office (IAO), which John Poindexter, the former National Security Advisor convicted for his role in the 1986 Iran-Contra guns-for-hostages deal, ran, provoked outrage from civil libertarians after the New Yorfe Times reported its existence in 2002.
32. See John Markoff, Chief Takes over at Agency to Thwart Attacks on U.S., N.Y. TIMES, Feb. 13, 2002, at A27;
33. see also William Safire, You Are a Suspect, N.Y. TIMES, NOV. 14, 2002, at A35. One of the most controversial projects under IAO was Futures Markets Applied to Prediction (FutureMap), which contained a component called "Policy Analysis Market," a "terrorism futures market" that sought to increase the accuracy of military predictions by creating efficient capital markets in which participants, potentially including the actors themselves, could bet on the likelihood of events such as catastrophic terrorist attacks and political assassinations.
34. See JAMES SUROWIECKI, THE WISDOM OF CROWDS: WHY THE MANY ARE SMARTER THAN THE FEW AND HOW COLLECTIVE WISDOM SHAPES BUSINESS, ECONOMIES, SOCIETIES, AND NATIONS 79-83 (2004) (arguing the potential effectiveness of such a system);
35. see also DEFENSE ADVANCED RESEARCH PROJECTS AGENCY, REPORT TO CONGRESS REGARDING THE TERRORISM INFORMATION AWARENESS PROGRAM B-8-B-9 (2003), available at http://www.eff.org/Privacy/TIA/TIA-report.pdf. Ultimately, Congress ended funding in 2003 for the IAO, subsequently renamed the Terrorism Information Awareness Program, when it passed its defense appropriations bill.
36. See Department of Defense Appropriations Act, Pub. L. No. 108-87, §8131, 117 Stat. 1054, 1102 (2003). Although the Brain-Machine Interface program was not part of IAO, it also lost funding as part of the reevaluation of DARPA's mission.
37. See Gareth Cook, Defending DARPA: The Government's Strangest Research Might Be its Best, BOSTON GLOBE, Aug. 3, 2003, at El (arguing for maintenance of funding on the Brain Machine Interface program by distinguishing it from FutureMap).
38. Human-Assisted Neural Devices, http://www.darpa.mil/dso/thrusts/bio/ restbio_tech/hand/index.htm (last visited Jan. 14, 2008).
39. DEP'T OF DEFENSE, RDT&E BUDGET ITEM JUSTIFICATION SHEET (R-2 EXHIBIT) 11 (2005), available at http://www.dtic.mil/descriptivesum/Y2006/DARPA/ 0601101E.pdf.
40. DEP'T OF DEFENSE, RDT&E BUDGET ITEM JUSTIFICATION SHEET (R-2 EXHIBIT) 8-9 (2007), available at http://www.dtic.mil/descriptivesum/Y2008/DARPA/ 0601101E.pdf.
41. Johann Wessberg et al., Real-Time Prediction of Hand Trajectory by Ensembles of Cortical Neurons in Primates, 408 NATURE 361, 361-65 (2000);
42. see also Mikhail A. Lebedev et al. Cortical Ensemble Adaptation to Represent Velocity of an Artificial Actuator Controlled by a Brain-Machine Interface, 25 J. NEUROSO, 4681, 4681-93 (2005);
43. Elizabeth A. Thomson, Monfeey Controls Robot Arm Using Brain Signals Sent Over Internet, MlT TECH TALK, Dec. 6, 2000, at 1.
44. Gregory T. Huang, Mind Machine Merger; Devices that Connect the Brain with Computers Could Lead to Mind-Controlled Robots, Repair Neurological Disorders, and Even Improve Memory, TECH. REV, May/June 2003, at 38, 39.
45. Apparatus for Acquiring and Transmitting Neural Signals and Related Methods, U.S. Patent No. 7,187,968 (filed Oct. 23, 2003) (issued March 6, 2007).
46. Id. at col. 8, 1.36-38.
47. Allison Abbot, Neuroprosthetics: In Search of the Sixth Sense, 442 NATURE 125, 125-26 (2006).
48. Leigh R. Hochberg et al. Neuronal Ensemble Control of Prosthetic Devices by a Human with Tetraplegia, 442 NATURE 164, 164-71 (2006).
49. Cyberkinetics Brain Gate Clinical Trials, http://www.cyberkineticsinc. com/content/clinicaltrials/braingate_trials.jsp (last visited Dec. 27, 2007). Academic researchers are working on direct neural interfaces for speech synthesis software.
50. See Paralyzed Man's Mind is 'Read,' BBC NEWS, NOV. 15, 2007, http://news.bbc.co.uk/2/hi/health/7094526.stm (last visited Dec. 27, 2007) (researchers claiming 80% success rate in decoding sound in paralyzed man's brain). Commercial firms, such as Microsoft, have engaged in related research.
51. See Using Electroencephalograph Signals for Task Classification and Activity Recognition, U.S. Patent No. 20,070,185,697 (filed Feb. 7, 2006).
52. Human-Assisted Neural Devices, http://www.darpa.mil/dso/thrusts/bio/ restbio_tech/hand/index.htm (last visited Jan. 14, 2008).
53. Sixto Ortiz Jr., Brain-Computer Interfaces: Where Human and Machine Meet, COMPUTER, Jan. 2007, at 17, 17.
54. See generally J.CR. Licklider, Man-Computer Symbiosis, HFE-1 IEEE TRANSACTIONS ON HUM. FACTORS IN ELECTRONICS 4, 4-11 (1960).
55. Id. at 4.
56. See id. at 14.
57. Id. at 7.
58. Id. at 2.
59. Id. at 6-7.
60. CHARLES E. BILLINGS, HUMAN-CENTERED AVIATION AUTOMATION: PRINCIPLES AND GUIDELINES 13-14 (1996), available at http://ntrs.nasa.gov/ archive/nasa/casi.ntrs.nasa.gov/19960016374_1996036711.pdf.
61. WILLIAM LANGEWIESCHE, INSIDE THE SKY: A MEDITATION ON FLIGHT 67, 85-87 (1999).
62. See BILLINGS, supra note 43, at 15.
63. CHARLES E. BILLINGS, HUMAN-CENTERED AIRCRAFT AUTOMATION: A CONCEPT AND GUIDELINES 8 (1991), available at http://ntrs.nasa.gov/archive/ nasa/casi.ntrs.nasa.gov/ 19910022821_1991022821.pdf.
64. See id. at 17-21.
65. Id. at 18.
66. See id. at 17-46.
67. See id.
68. See Leslie Lamport et al. The Byzantine Generals Problem, 4 ACM TRANSACTIONS ON PROGRAMMING LANGUAGES & SYSTEMS 382, 382-401 (1982).
69. BILLINGS, supra note 43, at 12.
70. See Mark Stefik, Strategic Computing at DARPA: Overview and Assessment, 28 COMM. ACM 690, 692 (1985).
71. Id.
72. Id.
73. In the mid-1980s, DARPA had a program called "The Pilot's Associate," which was designed to create robotic helpers for pilots.
74. See id. at 692. Much of this technology has been used in DARPA's current "Augmented Cognition" program, which is closely aligned with the HANDP.
75. See Improving Warfighter Information Intake Under Stress (AugCog), http://www.darpa.mil/DSO/thrusts/trainhu/warfighter/index.htm (last visited Jan. 14, 2008);
76. see also Misha Pavel et al. Augmented Cognition: Allocation of Attention, in PROCEEDINGS OF THE 36TH ANNUAL HAWAII INTERNATIONAL CONFERENCE ON SYSTEM SCIENCES (2002).
77. See OFFICE OF SEC'Y OF DEF, UNMANNED AIRCRAFT SYSTEMS ROADMAP: 2005-2030, at i (2005), available at http://www.acq.osd.mil/usd/ Roadmap%20Final2.pdf.
78. Id. at J-8.
79. Control systems for simultaneous control of multiple UAVs are already in testing.
80. See Raytheon Tests Multiple UAV Control System, UNITED PRESS INT'L, Apr. 10, 2006, http://www.upi.com/ Security_Terrorism/Analysis/2006/04/10/raytheon_tests_multiple_uav_ control_system/1509/.
81. See OFFICE OF SEC'Y OF DEF, supra note 57, at D9-10.
82. The Predator UAVs operating in Afghanistan are controlled via satellite from Nellis Air Force Base in Nevada.
83. See Brent Sadler, In the Sights of a Joystick Killing Machine, CNN, June 9, 2006, http://www.cnn.com/2006/WORLD/asiapcf/06/09/ sadler. predator.btsc/index.html (last visited Dec. 27, 2007). The U.S. Air Force flies its Global Hawk UAVs in Iraq from Beale Air Force Base in California.
84. See CNN Sunday Morning (CNN television broadcast Nov. 26, 2006), available at http://transcripts.cnn.com/TRANSCRIPTS/0611/26/sm.01. html.
85. The political fallout from the broadcast of Black Hawk helicopter pilots crashing under hostile fire while supporting the U.N. humanitarian mission, UNOSOM II, in Mogadishu led to the U.S. withdrawal from Somalia.
86. See TAYLOR B. SEYBOLT, HUMANITARIAN MILITARY INTERVENTION: THE CONDITIONS FOR SUCCESS AND FAILURE 156-57 (2007);
87. see also MARK BOWDEN, BLACK HAWK DOWN 379-80 (Signet 2002) (1999).
88. For information on the jurisdictional reach of the International Criminal Court (ICC) generally, see Rome Statute of the International Criminal Court pt. 2, July 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute]. Despite U.S. opposition to having its servicemen prosecuted before the ICC, culminating in the American Servicemembers' Protection Act, Pub. L. No. 107-206, 116 Stat. 899 (2002), the ICC still would have jurisdiction over Americans alleged to have committed war crimes in two cases. First, if the territorial state in which the crime occurred has ratified the Rome Statute, ICC jurisdiction would ensue.
89. See Johan D. van der Vyver, Personal and Territorial Jurisdiction of the International Criminal Court, 14 EMORY INT'L L. REV. 1, 37 (2000). Second, if the territorial state has not ratified the Statute, the state could make a declaration under Article 12(3) granting jurisdiction for that specific incident.
90. See id.;
91. see also Lilian V. Faulhaber, American Servicemembers' Protection Act of 2002, 40 HARV. J. ON LEGIS. 537, 545-46 (2003). The International Committee of the Red Cross maintains that permissible universal jurisdiction governs all war crimes and that under the principle pacta sunt servanda, state parties to the Geneva Conventions and Additional Protocol I must exercise compulsory jurisdiction for "grave breaches" that constitute war crimes.
92. See DÖRMANN, supra note 4, at 128-29;
93. Isabelle Daoust et al. New Wars, New Weapons? The Obligation of States to Assess the Legality of Means and Methods of Warfare, INT'L REV. RED CROSS, June 2002, at 345, 347.
94. Such a technology exchange occurred, for instance, in April 2001, when a U.S. spy plane collided with a Chinese military jet and the crew of the downed U.S. plane could not destroy the classified technology before making an emergency landing. Eric Eckholm, Collision with China: Beijing; U.S. Envoy Meets Chinese Foreign Minister as Negotiations on Plane's Crew Continue, N.Y. TIMES, Apr. 6, 2001, at A10.
95. RICHARD H. VAN ATTA ET AL. TRANSFORMATION AND TRANSITION: DARPA'S ROLE IN FOSTERING AN EMERGING REVOLUTION IN MILITARY AFFAIRS S-5 (2003), available at http://web-ext2.darpa.mil/body/pdf/P- 3698_Vol_1_final.pdf.
96. Id. at 59.
97. Id. at 23. Although the media characterized weapons equipped with Global Position Systems (GPS) deployed in Desert Storm as "smart bombs," these weapons did not select their targets, like the smart weapons that DARPA developed.
98. See William J. Broad, War in the Gulf: High Tech; War Hero Status Possible for the Computer Chip, N.Y. TIMES, Jan. 21, 1991, at A8;
99. see also VAN ATTA ET AL., supra note 65, at 23.
100. VAN ATTA ET AL., supra note 65, at 23. Recent developments at DARPA have produced such autonomous UAVs.
101. See, e.g., Erik Sofge, Top 3 Robots Coming Soon to the Battkfield: Live @ DARPATech, POPULAR MECHANICS, Aug. 8, 2007, http://www.popularmechanics.com/science/robotics/4220197.html.
102. OFFICE OF SEC'Y OF DEF, supra note 57, at D9-10. The U.S. military has used remotely piloted drones in Vietnam, Bosnia, Kosovo, Afghanistan, and Iraq.
103. See James Dao & Andrew C. Revkin, A Revolution in Warfare, N.Y. TIMES, Apr. 16, 2002, at Fl.
104. OFFICE OF SEC'Y OF DEF, supra note 57, at 52.
105. See generally JEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK, CUSTOMARY INTERNATIONAL HUMANITARIAN LAW 237-96 (2005) (discussing the types of weapons that customary international law prohibits).
106. See MARCO SASSOLI & ANTOINE A. BOUVIER, HOW DOES LAW PROTECT IN WAR? CASES, DOCUMENTS AND TEACHING MATERIALS ON CONTEMPORARY PRACTICE IN INTERNATIONAL HUMANITARIAN LAW 175, 175-80 (1999).
107. St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, Dec. 11, 1868, 1 AM. J. INT'L. L. (SUPP.) 95 (1907), reprinted in DOCUMENTS ON THE LAWS OF WAR 53 (Adam Roberts & Richard Guelff eds., 3d. ed. 2000).
108. Hague Declaration (IV, 2) Concerning Asphyxiating Gases, July 29,1899, 1 AM. J. INT'L. L. (SUPP.) 157, 157-59 (1907), reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 73, at 60-61 [hereinafter Hague Declaration Concerning Asphyxiating Gases].
109. Hague Declaration (IV, 3) Concerning Expanding Bullets, July 29, 1899, 1 AM. J. INT'L. L. (SUPP.) 157, 157-59 (1907), reprinted in Documents on the Laws of War, supra note 73, at 63-66.
110. See, e.g., Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III) art. 2, Oct. 10, 1980, 1342 U.N.T.S. 171.
111. See, e.g., Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II), as amended May 3, 1996, 2048 U.N.T.S. 133 [hereinafter CCW Protocol II].
112. See, e.g., Protocol on Non-Detectable Fragments (Protocol 1), Oct. 10, 1980, 1342 U.N.T.S. 168 [hereinafter CCW Protocol I].
113. See, e.g., Protocol on Blinding Laser Weapons (Protocol IV), Oct. 13, 1995, 35 I.L.M. 1218 (1996) [hereinafter CCW Protocol IV].
114. U.S. DEP'T OF DEF, THE DEFENSE ACQUISITION SYSTEM ¶ El.1.15 (2003), available at http://www.at.hpc.mil/Docs/d50001p.pdf. For additional information on the legal vetting process implemented by the United States, see Daoust et al., supra note 63, at 356-57.
115. The United States is currently a party to the following weapons conventions: 1) Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 U.S.T. 571, 94 L.N.T.S. 65, 2) Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxic Weapons and on their Destruction, Apr. 10, 1972, 26 U.S.T. 583, 1015 U.N.T.S. 63, 3) Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, Oct. 10, 1980, 1342 U.N.T.S. 137, 19 I.L.M. 1523 [hereinafter Conventional Weapons Convention], 4) CCW Protocol 1, supra note 78, 5) CCW Protocol II, supra note 77, and 6) CCW Protocol on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons, Jan. 13, 1993, 1015 U.N.T.S. 163.
116. See DORMANN, supra note 4, at 281 -96. The Rome Statute recognizes the prohibition of poison; asphyxiating, poisonous or chemical gases; and expanding bullets in Article 8(2)(b)(xvii), Article 8(2)(b)(xviii), and Article 8(2)(b)(xix) respectively.
117. Id.
118. Hague Convention IV Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2227, 1 Bevans 631 [hereinafter Hague Convention IV]. The United States is a signatory to this Hague Convention. DOCUMENTS ON THE LAWS OF WAR, supra note 73, at 77. This Hague Convention attained the status of customary international law when the International Military Tribunal at Nürnberg tried Nazi war criminals after World War II.
119. Id. at 68.
120. The UN Secretary General confirmed the Hague Convention's status as customary international law in his statements regarding the establishment of the International Criminal Tribunal for the former Yugoslavia. The Secretary-General, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, 11 41-44, delivered to the General Assembly, U.N. Doc. S/25704 (May 3, 1993).
121. Theodor Meron, The Time Has Come for the United States to Ratify the Geneva Protocol 1, 88 AM. J. INT'L. L. 678, 681 (1994) (quoting U.S. DEP'T OF DEF, CONDUCT OF THE PERSIAN GULF WAR: FINAL REPORT TO CONGRESS, PURSUANT TO TITLE V OF THE PERSIAN GULF CONFLICT SUPPLEMENTAL AUTHORIZATION AND PERSONAL BENEFITS ACT OF 1991 App. O, 0-13 (1992)).
122. Additional Protocol I to the Geneva Conventions, supra note 3.
123. Id.;
124. see also Daoust et al, supra note 63, at 347-54.
125. Article 8(2)(b)(xx) of the Rome Statute prohibits weapons "which are of a nature to cause superfluous injury or unnecessary suffering" or "which are inherently indiscriminate in violation of the international law of armed conflict" if the weapons fall within inclusive regulations forbidding their use and are listed in the annex to the Statute. DÖRMANN, supra note 4, at 297-313.
126. See U.S. DEP'T OF DEF, supra note 84.
127. Hague Convention IV, supra note 83, at 70.
128. KRIANGSAK KITTICHAISAREE, INTERNATIONAL CRIMINAL LAW 85 (2002).
129. Stefan Oeter, Methods and Means of Combat, in THE HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICT 105, 105-06 (Dieter Fleck ed, 1995).
130. Grotius secularized the concept of just war, which writers such as Maimonides and Aquinas first proposed. MICHAEL WALZER, JUST AND UNJUST WARS: A MORAL ARGUMENT WITH HISTORICAL ILLUSTRATIONS 168 (Basic Books 2d ed. 1977). He defined three cases that justified war: for defense, for repossessing stolen property, and for retribution. JUDITH GARDAM, NECESSITY, PROPORTIONALITY AND THE USE OF FORCE BY STATES 32-37 (2004);
131. see also WALZER, supra, at 21-47.
132. Military theorists have proposed such factors as "legitimacy (just cause), immediacy (imminent danger), indispensability (no practical alternative), discrimination (respect for the principle of noncombatant immunity), proportionality (damage must not exceed the importance of the objective), and responsibility (the decision must be made by a competent authority who is accountable to judicial review)." HOWARD M. HENSEL, THE LAW OF ARMED CONFLICT: CONSTRAINTS ON THE CONTEMPORARY USE OF MILITARY FORCE 8 (2005);
133. see also GARDAM, supra note 92, at 36. For a discussion of the development of the relatively recent doctrine of proportionality, see HENSEL, supra, at 8-19.
134. Dale Stephens, Human Rights and Armed Conflict: The Advisory Opinion of the International Court of Justice in the Nuclear Weapons Case, 4 YALE HUM. RTS. & DEV. L.J. 1, 12-13 (2001).
135. Rupert Ticehurst, The Martens Clause and the Laws of Armed Conflict, INT'L REV. RED CROSS, Apr. 30, 1997, at 125, 125-34.
136. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 227-29 (July 8).
137. Article 1, paragraph 2 of Protocol I to the Geneva Conventions explicitly states: "[i]n cases not covered by this Protocol or other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience." Additional Protocol I to the Geneva Convention, supra note 3, art. 1(2). The Russian Federation position, however, is that "today the 'Martens Clause' may formally be considered inapplicable." Written Statement and Comments of the Russian Federation on the Issue of the Legality of the Threat or Use of Nuclear Weapons 13 (Jun. 16, 1995).
138. Letter from the Legal Advisor to the Foreign Commonwealth Office of the United Kingdom of Great Britain and Northern Ireland, together with the Written Statement of the Government of the United Kingdom (Jun. 16, 1995);
139. see generally Ticehurst, supra note 95.
140. HENCKAERTS & DOSWALD-BECK, supra note 71, at 237-96.
141. Id.
142. Id. at 244.
143. See David Turns, Weapons in the ICRC Study on Customary International Humanitarian Law, 11 J. CONFLICT & SECURITY L. 201, 205-11 (2006).
144. Id. at 214-15.
145. Id.
146. Id. at 223-24.
147. Hague Convention IV, supra note 83, art. 22.
148. See, e.g., Additional Protocol I to the Geneva Conventions, supra note 3, art. 51(4).
149. See OFFICE OF SEC'Y OF DEF, supra note 57, at 74.
150. See GEOFFREY PERRET, WINGED VICTORY: THE ARMY AIR FORCES IN WORLD WAR II 88 (1993).
151. The United States employed significant numbers of non-lethal UAVs during the Vietnam War as part of the "McNamara Line." Known at the time as Remotely Piloted Vehicles, such weapons as the Teledyne Ryan reconnaissance UAV and its higher-altitude successors provided imagery of North Vietnamese positions.
152. See JEFFREY A. DREZNER, INNOVATIVE MANAGEMENT IN THE DARPA HIGH ALTITUDE ENDURANCE UNMANNED AERIAL VEHICLE PROGRAM: PHASE 11 EXPERIENCE 4 (1999). Unmanned QU-22B Pave Eagle planes circled over combat positions and relayed information from ground sensors to the Infiltration Surveillance Center at the U.S. Air Force Base in Thailand.
153. See WILLIAM ROSENAU, SPECIAL OPERATIONS FORCES AND ENEMY GROUND TARGETS: LESSONS FROM VIETNAM AND THE PERSIAN GULF WAR 12 (2001);
154. Russ Mitchell, The Pilot, Gone; The Market, Huge, N.Y. TIMES, Mar. 31, 2002, at Cl.
155. See OFFICE OF THE SEC'Y OF DEF, supra note 57, at 74.
156. Susan H.H. Young, Gallery of USAF Weapons, AIR FORCE MAG, May 2007, at 135, 142-44.
157. James Dao, A Nation Challenged: The Air War; The New Air War: Fewer Pilots, More Hits and Scarcer Targets, N.Y. TIMES, Nov. 29, 2001, at B1.
158. Id. (relating reports of civilian casualties due to the weapons).
159. Crisis in the Balkans: Drone Planes En Route, N.Y. TIMES, Mar. 30, 1999, at A10. These UAVs, however, did not have the capacity to fire missiles.
160. Caitlin Harrington, Global Hawks Fly Homeland Defence Missions over US, JANE'S DEFENCE WKLY, NOV. 29, 2006, at 8.
161. THE HAGUE CONVENTIONS AND DECLARATIONS OF 1899 AND 1907, at 220-24 (James Brown Scott ed, 1918) (comparing the 1899 Hague Declaration I and the 1907 Hague Declaration XIV Prohibiting the Discharge of Projectiles and Explosives from Balloons);
162. see Javier Guisábdez Gómez, The Law of Air Warfare, INT'L REV. RED CROSS, June 30, 1998, at 347.
163. Hague Draft Rules of Aerial Warfare 1923,17 AM. J. INT'L. L. (SUPP.) 245, 245-60 (1923), reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 73, at 141-53.
164. Documents on the Laws of War, supra note 73, at 139-41.
165. Chris af Jochnick & Roger Normand, The Legitimation of Violence: A Critical History of the Laws of War, 35 HARV. INT'L. L.J. 49, 91 (1994).
166. See YORAM DINSTEIN, THE CONDUCT OF HOSTILITIES UNDER THE LAW OF INTERNATIONAL ARMED CONFLICT 24 (2004) (observing the overlap between non-derogable human rights and IHL).
167. Id. at 10-11 (noting that the impetus for the creation of the Red Cross was to protect wounded soldiers and that the first Geneva Convention applied to the wounded armies in the field and the second to prisoners of war).
168. Jochnick & Normand, supra note 120, at 91.
169. Howard S. Levie notes that because of the secrecy of weapons development and the proportionally greater secrecy protecting them as they become more dangerous, "it is extremely doubtful that" Article 36 of Additional Protocol I to the Geneva Conventions, which limits the types of weapons that state parties may develop, "represents anything more than a pious wish of the few accepted by the many with tongue in cheek." THE CODE OF ARMED CONFLICT §32.1 (1986).
170. United States War Crimes Act of 1996 §2401, 18 U.S.C §2401 (1996).
171. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field art. 50, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 85 (willful killing of protected persons wounded or sick on land); Geneva Convention Rela-tive to the Treatment of Prisoners of War art. 51, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 287 (willful killing of protected persons wounded, sick or shipwrecked at sea);
172. id. art. 130 (willful killing of prisoners of war); Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 147, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 (willful killing of civilians).
173. Hague Convention IV, supra note 83, art. 23-27.
174. Id. art. 1.
175. Rome Statute, supra note 63, art. 8(2)(a)(i). Servicemen piloting missiles or drones using brain-machine interface weapons potentially may be liable under other provisions of the ICC, such as Article 8(2)(a)(iii) (willfully causing great suffering, or serious injury to body or health), Article 8(2)(b)(i) (intentionally directing attacks against civilians), Article 8(2)(b)(iii) (intentionally directing attacks against humanitarian aid workers or UN peacekeeping forces), Article 8(2)(b)(iv) (intentionally launching an attack with the knowledge of the incidental loss of life or injury to civilians or long-term and severe damage to the environment when the harm engendered is disproportionate to the military utility of the offensive), Article 8(2)(b)(v) (attacking or bombarding undefended property lacking a military purpose), Article 8(2)(b)(vi) (killing or wounding combatants who have surrendered), and Article 8(2)(b)(ix) (intentionally attacking non-military targets such as hospitals and monuments).
176. DÖRMANN, supra note 4, at 38-43.
177. Violations of these ICC articles would also constitute breaches of the Geneva Conventions. Id. This Note, however, limits itself to a discussion of the war crime of unlawful willful killing.
178. See HENCKAERTS & DOSWALD-BECK, supra note 71, at 573-74.
179. Charter of the International Military Tribunal art. 6(b), Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279.
180. See HENCKAERTS & DOSWALD-BECK, supra note 71, at 311.
181. Prosecutor v. Kordic, Case No. 1T-95-14/2-T, Judgment, 1 233 (Feb. 26, 2001); Prosecutor v. Delalic (The Celibici case), Case No. IT-96-21-T, Appeal Chamber Judgment, 11 422-23 (Feb. 20, 2001).
182. DINSTEIN, supra note 121, at 23-24.
183. See, e.g., International Covenant on Civil and Political Rights art. 6, Dec. 19, 1966, S. Exec. Doc. No. 95-2, 999 U.N.T.S. 171; Organization of American States, American Convention on Human Rights arts. 31-51, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123;
184. see also W.P. Gormley, The Right to Life and the Rule of Non-Derogability: Peremptory Norms of Jus Cogens, in THE RIGHT TO LIFE 120, 138 (Bertrand G. Ramcharan ed., 1985).
185. But see David Weissbrodt & Beth Andrus, The Right to Life During Armed Conflict: Disabled Peoples' International v. United States, 29 HARV. INT'L L.J. 59 n.39 (1988) (noting the lack of any provision regarding the "derogation from the right to life during war" in the ICCPR in contradistinction to the ACHR).
186. Relevant provisions include, inter alia, the first paragraph of the Third Geneva Convention art. 99; the Fourth Geneva Convention art. 67, Additional Protocol I art. 75(4)(c); Additional Protocol II art. 6(2)(c); and the Rome Statute arts. 22(1), 24(1)-(2). HENCKAERTS & DOSWALD- BECK, supra note 71, at 371. Under Rome Statute art. 22(2), the ICC does not have the power to reason by analogy to enlarge the scope of the crime by broadening the definition of the crime.
187. Id.
188. See Preparatory Comm'n for the Int'l Criminal Court, Report of the Preparatory Commission for the International Criminal Court, Addendum: Finalized Draft Text of the Elements of Crimes 18-19, UN Doc. PCNICC/2000/INF/3/Add.2 (July 6, 2000).
189. Id. at 18.
190. See, e.g., Prosecutor v. Delali et al. Case No. IT-96-21-T, Judgement, ¶¶ 326-27 (Nov. 16, 1998) (defining the requisite actus reus and mens rea of crimes before the International Criminal Tribunal for Yugoslavia);
191. see also Prosecutor v. Akayesu, Case No. ICTR-96-4, Judgment, 1 589 (Sept. 2, 1997) (defining the elements of murder as a crime against humanity as including, inter alia, an unlawful act or omission and an intent).
192. The actus reus requirement, however, must be construed from the statute since it is not directly a constituent element of the crime in Article 8(2)(a)(i).
193. See Rome Statute, supra note 63, arts. 8(2)(a)(i), 30(2)(a), 31(1)(a). Article 31(1)(a), however, arguably only exonerates a defendant if he or she suffers from an organic brain defect.
194. See id. art. 31(1)(a).
195. Id. art. 31.
196. Preparatory Comm'n for the Int'l Criminal Court, Working Group on Elements of Crimes, Request from the Governments of Belgium, Finland, Hungary, Mexico, the Republic of Korea and South Africa and the Permanent Observer Mission of Switzerland to the United Nations Regarding the Text Prepared by the International Committee of the Red Cross on the Mental Element in the Common Law and Civil Law Systems and on the Concepts of Mistake of Fact and Mistafee of Law in National and International Law, annex, U.N. Doc. PCNICC/1999/WGEC/INF.2/Add.4 (Dec. 15, 1999) [hereinafter ICC Report].
197. See Rome Statute, supra note 63, art. 66.
198. Recent international tribunal case law does little to clarify how the actus reus requirement might function in the context of brain-machine interface issues.
199. See, e.g., Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgment, 1 679 (May 7, 1997) (stating that "participation in the commission of the crime does not require an actual physical presence or physical assistance" but also that "mere presence at the scene of the crime without intent is not enough").
200. Id. 11 678-710.
201. See Michael Corrado, Is There an Act Requirement in the Criminal Law?, 142 U. PA. L. REV. 1539, 1544 (1994).
202. Id. at 1546 (describing the position of Michael Moore);
203. see generally, MICHAEL MOORE, ACT AND CRIME: THE PHILOSOPHY OF ACTION AND ITS IMPLICATIONS FOR CRIMINAL LAW (1993).
204. Powell v. Texas, 392 U.S. 514, 542-44 (Black, J., concurring)
205. LEO KATZ, BAD ACTS AND GUILTY MINDS: CONUNDRUMS OF THE CRIMINAL LAW 153 (1987).
206. LEO KATZ ET AL., FOUNDATIONS OF CRIMINAL LAW 325 (1995).
207. KATZ, supra note 148, at 152-63.
208. IMMANUEL KANT, THE METAPHYSICS OF MORALS 145-47 (Mary J. Gregor ed. & trans., Cambridge Univ. Press 1996) (1785).
209. Id. at 150-51.
210. See KATZ, supra note 148, at 156, 164.
211. See LAFAVE, supra note 7, at 303.
212. See LAFAVE, supra note 7, 302-03 nn. 16-17 (referring to particular cases).
213. See CATHERINE ELLIOTT, FRENCH CRIMINAL LAW 59 (2001).
214. See id.
215. See MATTHEW LIPPMAN ET AL. ISLAMIC CRIMINAL LAW AND PROCEDURE: AN INTRODUCTION 50-51 (1988).
216. See LAFAVE, supra note 7, at 302-07 (describing the necessity of an act and the voluntary nature of an act in criminal law).
217. See id. at 303-04 (highlighting the necessity for an act in criminal law.)
218. See LAFAVE, supra note 7, at 302-07 (noting the necessity of an act as well as its voluntary nature in the criminal law context); Stefik, supra note 53, at 692 (describing a scenario in which a mechanized pilot assistant would take over the controls and maneuver a plane after the pilot became unconscious).
219. See PATRICIA S. CHURCHLAND, NEUROPHILOSOPHY: TOWARD A UNIFIED SCIENCE OF THE MIND-BRAIN 35-36 (1989). Scientists like Kalanit Grill-Spector and Nancy Kanwisher contend that recognition and classification are simultaneous.
220. See Kalanit Grill-Spector & Nancy Kanwisher, Visual Recognition: As Soon As You Know It Is There, You Know What It Is, 16 PSYCHOLOGICAL SCI. 152, 152-58 (2005). On the other hand, Marios G. Philiastides and Paul Sajda conclude that they are sequential.
221. See Marios G. Philiastides & Paul Sajda, Temporal Characterization of the Neural Correlates of Perceptual Decision Making in the Human Brain, 16 CEREBRAL CORTEX 509, 509-17 (2006).
222. See, e.g., CHURCHLAND, supra note 162, at 35-36.
223. See Adam D. Gerson et al., Cortically Coupled Computer Vision for Rapid Image Search, in IEEE TRANSACTIONS ON NEURAL SYSTEMS & REHABILITATION ENGINEERING 174, 177-79 (2006).
224. A DARPA-funded study to investigate how brain-interface devices could be used to harness the image recognition capabilities of humans to triage satellite data for computer processing found that non-invasive electrodes registered activity in the subjects' brains in the bilateral occipital area 150 milliseconds after seeing an image for five milliseconds, frontal activity 250 milliseconds later in the areas associated with motor control, and activity over parietal electrodes starting at 350 milliseconds and extending to about 350 milliseconds after the initial stimulus. Id. at 174-78.
225. Thus, a computer hooked up to the brain could recognize accurate targeting data before the subject even pressed a button. Id. at 177-79. Honeywell recently announced its collaboration with DARPA to create an "Image Triage System" that will operate up to six times faster than current computers by attaching sensors to evaluate signals from the human brain. Press Release, Honeywell, Honeywell Technology to Help U.S. Military Rapidly Analyze Intelligence and Keep Troops Out of Harm's Way (Nov. 15, 2007), available at http://online.wsj.com/public/article/PR-CO-20071115-903208, html?mod-crnews.
226. See Adam Zeman, Consciousness, 124 BRAIN 1263, 1276 (2001).
227. See id. at 1276-77.
228. Id. at 1276.
229. See id. at 1276-77.
230. Curiously, the human brain recognizes faces faster than objects. If an object such as a face is ambiguous, however, the usual 170 milliseconds recognition time is delayed.
231. See Topi Tanskanen et al. Face Recognition and Cortical Responses Show Similar Sensitivity to Noise Spatial Frequency, 15 CEREBRAL CORTEX 526, 532-33 (2005). This may prove problematic in the IHL context because brain-machine interface pilots must distinguish between faces of combatants and protected persons. If the targeting device is calibrated to target based on the initial recognition, a plausible fact given that one pilot may guide several UAVs and, therefore, latency between thought and action must be minimized to maintain operational control, the device may lead to indiscriminate attacks.
232. See Stefik, supra note 53, at 12.
233. See Tanskanen et al., supra note 169, at 526, 529-33 (analyzing cortical correlates of face recognition and examining responses of subjects in an experiment);
234. see also Stefik, supra note 53 (discussing developments in technology).
235. See LIBET, supra note 5, at 140, 144-45.
236. For a detailed discussion of various approaches to decoding these types of neural activities for brain-machine interfaces, see Lakshminarayan Srinivasan et al., General-Purpose Filter Design for Neural Prosthetic Devices, 98 J. NEUROPHYSIOLOGY 2456 (2007).
237. See John-Dylan Haynes et al., Reading Hidden Intentions in the Human Brain, 17 CURRENT BIOLOGY 323, 324 (2007).
238. In some instances, IHL may sanction moving along the continuum of machine autonomy. For instance, if the brain-interface component revealed that the pilot was highly stressed, having a computer make the final targeting decision arguably could diminish indiscriminate attacks.
239. Zeman, supra note 165, at 1268.
240. In other words, if brain activity occurs at a time at which a computer can calculate that the activity will result in a volitional motor activity at time t+1, then the computer can begin making its calculations at time t rather than at t+1. The design of neural prosthetic devices relies on estimating users' intentions based on Baysian probabilities.
241. See Srinivasan et al., supra note 172, at 2470.
242. WILLIAM A. SCHABAS, AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT 87 (2001).
243. Id.
244. See id. (providing additional citations to the relevant provisions of the Report of the Ad Hoc Committee on the Establishment of an International Court and the Reports of the Preparatory Committees). The manner in which the ICC resolves the definitional ambiguity of actus reus will likely prove pivotal in cases involving attempt liability under Article 25(3)(f) of the Rome Statute.
245. Id.
246. Id.
247. Id.
248. Duff, supra note 6, at 72-73.
249. Rome Statute, supra note 63, art. 8(2)(a)(i).
250. DORMANN, supra note 4, at 39.
251. Id. (noting that the ICC drafters discussed the discrepancy but did not come to a resolution).
252. Rome Statute, supra note 63, art. 30(2).
253. DÖRMANN, supra note 4, at 41.
254. Id. at 41 n.16.
255. Id. at 42 n.19.
256. Id. at 43 n.22.
257. See Rome Statute, supra note 63, arts. 21(1)(b)-(c).
258. ICC Report, supra note 141.
259. Id.
260. Id.
261. Id.
262. OFFICE OF THE SEC'Y OF DEF., supra note 57, at 65.
263. See Stefik, supra note 53, at 692.
264. See Ortiz, supra note 36, at 18-21.
265. See id.;
266. see also OFFICE OF THE SEC'Y OF DEF., supra note 57, at 65.
267. SUSAN BLACKMORE, CONSCIOUSNESS: A VERY SHORT INTRODUCTION 87 (2d. ed, 2005).
268. Id.
269. Id. at 33.
270. See id.
271. Id. at 33-34.
272. Id. at 34.
273. Id.;
274. see also BENJAMIN LIBET, Neuronal vs. Subjective Timing for Conscious Sensory Experience, in NEUROPHYSIOLOGY OF CONSCIOUSNESS: SELECTED PAPERS OF BENIAMIN LIBET 66, 79-80 (1993).
275. Daniel C. Dennett & Marcel Kinsbourne, Time and the Observer: The Where and When of Consciousness in the Brain, 15 BEHAV. & BRAIN SCI. 183, 196 (1992).
276. Id.
277. See id. at 183-96.
278. Benjamin Libet et al., Time of Conscious Intention to Act in Relation to Onset of Cerebral Activity (Readiness-Potential): The Unconscious Initiation of a Freely Voluntary Act, 106 BRAIN 623, 624-25 (1983).
279. Id. at 625.
280. Id.
281. Id.
282. See LIBET, supra note 5, at 137.
283. See BLACKMORE, supra note 200, at 88; LIBET, supra note 5, at 144-45.
284. Hakwan C. Lau et al. Manipulating the Experienced Onset of Intention After Action Execution. 19 J. OF COG. NEUROSCI. 81, 89 (2007).
285. See Jeffery Rosen, The Brain on the Stand, N.Y. TIMES MAG., Mar. 11, 2007, at 5-6, 9.
286. See Stephen J. Morse, Brain Overclaim Syndrome and Criminal Responsibility: A Diagnostic Note, 3 OHIO ST. J. CRIM. L. 397, 400 (2006).
287. Id. at 397. Morse, however, does note two cases where neuroscience evidence may prove relevant: (1) to show "appearances are deceptive," i.e. that the defendant who appeared to act "consciously was in fact unconscious or in an automatic state," and (2) to provide probative evidence when evidence with respect to the defendant's behavior is in doubt, i.e. to show that blunt force trauma to the defendant that occurred prior to the crime affected his or her capacity to possess the mens rea necessary for the criminal charge.
288. Id. at 400-01.
289. Id. at 400.
290. See Greene & Cohen, supra note 8, at 224 (asserting that "advances in neuroscience are likely to change the way people think about human action and criminal responsibility").
291. See BLACKMORE, supra note 200, at 88.
292. See Greene & Cohen, supra note 8, at 221-22.
293. See LIBET, supra note 5, at 145 (noting that "what we are sure of is the ability of the conscious will to block or veto the volitional process and prevent the appearance of any motor act" and that "conscious free will could control the outcome of an unconsciously initiated process.").
294. See BLACKMORE, supra note 200, at 89.
295. See DANIEL C. DENNETT, FREEDOM EVOLVES 236-37 (2003) (urging an alternative explanation for Libet's results: "Libet tacitly presupposes that you can't start thinking seriously about whether to veto something until you're conscious of what it is that you might want to veto, and you have to wait 300 milliseconds or more for this, which gives you only 100 milliseconds in which to 'act'").
296. See LIBET, supra note 5, at 111-12.
297. See generally Shaun Gallagher, Where's the Action? Epiphenomenalism and the Problem of Free Will, in DOES CONSCIOUSNESS CAUSE BEHAVIOR? 109, 114 (Susan Pockett et al. eds., 2006) (explaining that Libet's findings indicate that initiation of a voluntary act begins unconsciously and uncontrollably, before the person knows he wants to act).
298. See Richard Preston, An Error in the Code, NEW YORKER, Aug. 13, 2007, at 30.
299. See FRANCISCO F. MARTIN ET AL., INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN LAW: TREATIES, CASES, AND ANALYSIS 36 (2006) (arguing that the right to privacy is not a jus-cogens norm).
300. But see George E. Edwards, International Human Rights Law Challenges to the New International Criminal Court: The Search and Right to Privacy, 26 YALE J. INT'L L. 323, 329-30. In the United States, the issue of whether the defendant could be compelled to offer his or her brain scans in this context is unclear, although the Supreme Court has ruled for the admissibility of arguably similar evidence. For instance, it held that the introduction of some types of physically intrusive evidence, such as a blood sample obtained against the defendant's wishes after an automobile accident, does not violate the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 770-71 (1966). The Court has noted, however, that evidence involving "intrusions into the human body" would require a balancing test in which "the individual's interest in privacy and security are weighed against society's interest in conducting the procedure." Winston v. Lee, 470 U.S. 753, 760 (1985). Furthermore, the Court held that courts would have to factor in "the extent of the intrusion upon the individual's dignitary interests in personal property and bodily integrity."
301. Id. at 761. Plaintiffs may find this last factor insuperable, thereby precluding them from compelling the defendant to turn over his brain scans in this particular context.
302. Id.
303. See, e.g., International Covenant on Civil and Political Rights, supra note 134, art. 17.
304. Rome Statute, supra note 63, art. 21(1)(b)-(c).
305. Id. art. 67(1)(g).
306. See generally Sean Kevin Thompson, Note, The Legality of the Use of Psychiatric Neuroimaging in Intelligence Interrogation, 90 CORNELL L. REV. 1601 (2005) (examining the use of functional Magnetic Resonance Imaging technology in the interrogation of foreign detainees).
307. See id. at 1608-09 (quoting Tatia M.C. Lee et al. Lie Detection by Functional Magnetic Resonance Imaging, 15 HUM. BRAIN MAPPING 157, 158 (2002)
308. See discussion infra pp. 204-05.
309. The Presidency of the International Criminal Court proposed a draft Code of Professional Conduct for Counsel before the International Criminal Court.
310. See Presidency of the Int'l Criminal Court, Proposal for a Draft Code of Professional Conduct for Counsel before the International Criminal Court, U.N. Doc. ICC-ASP/3/11/Rev.1 (2004).
311. Lonnie T. Brown, Jr., Foreword: Ethics 2000 and Beyond: Reform or Professional Responsibility as Usual, 2003 U. ILL. L. REV. 1173, 1174 (2003).
312. See MODEL RULES OF PROF'L CONDUCT R. 3.3 (2003).
313. Id. at 3.3(a)(1).
314. Id. at 3.3(a)(3).
315. Rome Statute, supra note 63, art. 70(1)(b).
316. See MODEL RULES OF PROF'L CONDUCT R. 1.16(b)(2) (2003) ("[A] lawyer may withdraw from representing a client if... the client persists in a course of action that the lawyer reasonably believes is criminal or fraudulent.");
317. Id. R. 3.3(a)(1) (2003) ("A lawyer shall not knowingly . . . make a false statement of fact... to a tribunal or fail to correct a false statement of material fact or law . . . ."
318. See Russell G. Pearce, Lawyers as America's Governing Class: The Formation and Dissolution of the Original Understanding of the American Lawyer's Role, 8 U. CHI. L. SCH. ROUNDTABLE 291 (2001) ("The criminal defendant [is] always entitled to zealous representation in order to vindicate the defendant's basic constitutional rights.").
319. See Rome Statute, supra note 63, art. 67(1)(d) (defendant possesses the right to legal assistance of his choosing).
320. See discussion supra pp. 194-201.
321. See Joseph P. "Dutch" Bialke, Al-Qaeda & Taliban Unlawful Combatant Detainees, Unlawful Belligerency, and the International Laws of Armed Conflict, 55 A.F. L. REV. 1, 9-10 (2004) (stating that international laws of armed conflict protect citizens by providing "positive incentive[s] to constrain their behavior as well as the potential for future punishment for failing to do so").
322. See Andrew T. Guzman, Saving Customary International Law, 27 MICH. J. INT'L L. 115, 167 (2005) (analyzing the cost-benefit analysis states engage in when considering an action that would violate customary international law).
323. M. Cherif Bassiouni, Searching for Peace and Justice: The Need for Accountability, 59 LAW & CONTEMP. PROBS. 9, 23-24 (1996).
324. See Dakota S. Rudesill, Note, Precision War and Responsibility: Transformational Military Technology and the Duty of Care Under the Laws of War, 32 YALE J. INT'L L. 517, 531-33 (2007) (arguing that the heightened ability to control high-technology military weapons entails a heightened responsibility for the effects of their use).
325. Many of the current drone pilots may possess less understanding of the risks attendant with their planes than traditional pilots, who presumably have an incentive to know the limits of their crafts out of an instinct for self-preservation.
326. See Dan Kois, How to Fly a Drone: Just Pretend Like You're Playing Playstation, SLATE, Aug. 9, 2006, http://www.slate.com/id/ 2147400. Drone pilots also have less specialized training than ordinary pilots because remote-controlled planes are simpler to fly and do not cost as much to replace as advanced military jets.
327. See id. The selection process for drone pilots currently favors those who have demonstrated analogous skills playing video games.
328. Id. One of the top Army UAV pilots is in fact normally a cook.
329. Id.
330. Mathematical proofs establish that the coupling of distributive computing systems increases the likelihood of system failures due to low-probability events, thus limiting the theoretical reliability of any such system.
331. See Lamport et al., supra note 51, at 382-401.
332. See Jack Beusmans & Karen Wieckert, Computing, Research, and War: If Knowledge is Power, Where is Responsibility?, 32 COMM. ACM 939, 942-46 (1989) (arguing that "responsibility for using an autonomous weapon rests not only with the commanding officer who orders the use of a weapon and the operator who decides to use it, but also with the weapon designers who encapsulate knowledge of real targets and how to locate them"). Under IHL, private individuals who work on development of such weapons could find themselves liable for war crimes under the precedent established in the Nürnberg cases. For instance, in the Zyklon B Case, the suppliers of the rat poison Zyklon B were found guilty of war crimes because they had knowledge that the gas was being used to kill humans and because the deaths would not have occurred but for the presence of the gas.
333. See United Kingdom v. Tesch et al. (Zkylon B Case), 1 I.L.R. 93 (1946); YUSUF AKSAR, IMPLEMENTING INTERNATIONAL HUMANITARIAN LAW: FROM THE AD HOC TRIBUNALS TO A PERMANENT INTERNATIONAL CRIMINAL COURT 86-87 (2004);
334. see also DÖRMANN, supra note 4, at 35-36 (describing the liability of private actors for war crimes and the continuum of guilt found in the Zyklon B Case).
335. See Beusmans & Wieckert, supra note 253, at 943.
336. See Jan Hoekema, Third Session: Panel Discussion on "Revisiting Humanitarian Law" (Dec. 8, 2000), in PROTECTING CIVILIANS IN 21ST CENTURY WARFARE 91, 102-03 (2001) (proposing that "with the development of modern high-tech, remote control warfare, the need has arisen for new forms of humanitarian law to protect civilians" and noting the difficulties in apportioning guilt in situations involving system failures, such as when NATO forced bombed a Chinese embassy in Belgrade).
337. Recent research in neuroscience reveals that focal bilateral damage to the ventromedial prefrontal cortex, a brain area involved in processing emotions, creates idiosyncratic moral reasoning. Although this type of brain abnormality leads to utilitarian moral judgments that may produce pilots more likely to make decisions in accordance with IHL, other types of hidden brain damage may lead to very different results.
338. See Michael Koenigs et al. Damage to the Prefrontal Cortex Increases Utilitarian Moral Judgments, 446 NATURE 908, 908-11 (2007).
339. A soldier before the ICC would likely assert the superior orders' defense by claiming that he or she was under a legal obligation to obey his or her superior officer, he or she did not know the order was unlawful, and the order was not "manifestly unlawful."
340. See Rome Statute, supra note 63, art. 33. The validity of the defense of superior orders in IHL is unclear.
341. See JOHN R.W.D. JONES & STEVEN POWLES, INTERNATIONAL CRIMINAL PRACTICE 443-44 (comparing the position of the ICTY and ICTR, which do not recognize the defense, with the position of the ICC).
342. Civil law is grappling with similar issues arising from system errors, many of which result from both human and machine errors. A well-known case concerned the Therac-25, a computer-controlled radiotherapy machine, which delivered fatal doses of radiation to several cancer patients due to errors in the underlying software and operators overriding protective shutdowns.
343. See NANCY G. LEVESON, SAFEWARE: SYSTEM SAFETY AND COMPUTERS 515-55 (1995);
344. see also Robert D. Sprague, At What Point Does Liability Hit Home?, IEEE SOFTWARE, July 1995, at 93, 93-94.
345. See JONES & POWLES, supra note 257, at 443-60 (citations omitted).
346. Id. at 426 (citing In re Yamashita, 327 U.S 1, 43 (1946)).
347. Id.
348. Id.
349. Additional Protocol I of the 1977 Geneva Conventions of 1949 delineates the liability of commanders for failing to act in Article 86 and the scope of the duty to act imposed upon military commanders in Article 87.
350. See JONES & POWLES, supra note 257, at 429;
351. see also HENCKAERTS & DOSWALD-BECK, supra note 71, at 556 n.27.
352. See, e.g., JONES & POWLES, supra note 257, at 432 (citing Prosecutor v. Dilali, Case No. IT-96-21-T, Judgement, 1 333 (Nov. 16, 1998)).
353. Id. at 429.
354. Id. at 430.
355. Id.
356. Id.
357. See DENNIS PISZKIEWICZ, WERNHER VON BRAUN: THE MAN WHO SOLD THE MOON 49-52 (1998) (noting that the U.S. Army refused to let Wernher von Braun return to Germany to testify for the defense in United States v. Andrae, even though some of the defendants faced death sentences, because of fears that von Braun would incriminate himself).
358. STEPHEN ENDICOTT & EDWARD HAGERMAN, THE UNITED STATES AND BIOLOGICAL WARFARE: SECRETS FROM EARLY COLD WAR AND KOREA 37-38 (1998).
359. Id.
360. The ICJ has held that foreign ministers, prime ministers, and heads of state enjoy immunity from universal jurisdiction under customary international law. Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J 121 (Feb. 14).
361. But see AMNESTY INT'L, Universal Jurisdiction: Belgian Court Has Jurisdiction in Sharon Case to Investigate 1982 Sabra and Chatila Killings 5-13 (2002), available at http://web.amnesty.org/ library/pdf/IOR530012002ENGLISH/$File/IOR5300102.pdf.
362. Anne-Sophie Massa, NATO's Intervention in Kosovo and the Decision of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia Not to Investigate: An Abusive Exercise of Prosecutorial Discretion?, 24 BERKELEY J. INT'L L., 610, 611-12 (2006).
363. Legality of the Threat or Use of Nuclear Weapons, supra note 96, at 256-57.
364. Mark Osiel, Obeying Orders: Atrocity, Military Discipline, and the Law of War, 86 CAL. L. REV. 939, 992 n.199 (1998).
365. CCW Protocol IV, supra note 79.
366. Osiel, supra note 275, at 992 n.199.