Autonomous Weapons Systems & Accountability: Rethinking Criminal Responsibility for War Crimes at the ICC

AuthorIan Andrew Barber
5
Autonomous Weapons Systems &
Accountability:
Rethinking Criminal Responsibility for War
Crimes at the ICC
Ian Andrew Barber
The ongoing development and future
deployment of Autonomous Weapons Systems
(AWS) has spurred intense debate within the
international community. Scholars and global
policymakers have recently begun to consider
the various legal and logistical ramifications
of such weapons systems. However, there is
currently no adequate legal framework in
place to attribute individual criminal
responsibility for the conduct of AWS in
armed conflict. The purpose of this research is
to explore the problematic nature of
attributing individual criminal liability for
the actions of AWS, and subsequently
evaluate proposals to provide accountability
when an AWS commits a war crime. An
examination of these proposed accountability
schemes, the relevant jurisprudence, and the
existing scholarship suggests that legal
6 SLJ 7(1)
mechanisms could be established to effectively
attribute criminal responsibility under
international criminal law. Accordingly, this
paper ultimately advocates for an amendment
to the Rome Statute of the International
Criminal Court (ICC) to establish individual
criminal liability for human agents who
deploy AWS that perpetrate war crimes.
Support for this amendment is based
primarily on the ICC’s unique construction as
the world’s first permanent international
criminal tribunal and the success of previous
efforts to amend the Rome Statute.
Introduction
While certain artificial intelligence experts and non-
governmental organisations (NGOs) have advocated against
the development of AWS, other prominent voices highlight
the possible benefits of these new technologies.1 Today,
1. The Future of Life Institute, ‘An Open Letter to the United
Nations Convention on Certain Conventional Weapons,’ (21
August 2017)
open-letter-2017> accessed 28 June 2018; Michael N. Schmitt,
‘Unmanned Combat Aircraft Systems (Armed Drones) and
International Humanitarian Law: Simplifying the Oft Benighted
Debate’ (2012) 30 Boston University International Law Journal
595, 599.
7
countries with advanced technological prowess have already
deployed weapons with autonomous targeting capabilities,
and others are actively developing fully autonomous weapon
systems (AWS).2 Due to this trend, international institutions
such as the United Nations have begun to examine the
impact that AWS will have on international security and the
existing legal framework regulating armed conflicts.3
According to Amandeep Gill, the current chair of the United
Nations’ Convention on Certain Conventional Weapons
(CCW) expert body on autonomous weapons systems, the
most pressing issues relating to these new technologies
include defining and characterising AWS, examining the
level of human involvement when deploying lethal AWS,
and considering options for future regulations under
international law.4 The objective of this research is to
contextualise the aforementioned issues, and then determine
2 UN High Representative for Disarmament Affairs, ‘AI for
Global Good Summit Plenary 1: State of Play’ (7 June 2017)
es/fa5294a2-1c2a-4124-bdc3-
336c23a85428/HR_AI_summit_remarks_June_2017.pdf>
accessed 17 June 2018.
3 CCW ‘Report of the 2014 Informal Meeting of Experts on
Lethal Autonomous Weapons Systems (LAWS)’ (11 June 2014)
UN Doc CCW/MSP/2014/3.
4 Sono Motoyama, ‘Inside the United Nations Effort to Regulate
Autonomous Killer Robots: Meet the UN Diplomat Heading up
the Coming Killer Robot Conference’ The Verge (27 August 2018)
un-autonomous-killer-robots-regulation-conference> accessed 28
August 2018.
8 SLJ 7(1)
how the international community might establish individual
accountability for war crimes committed by AWS.
Chapter 1 introduces the subject of AWS and explores the
often-vague terminology surrounding their characterisation
and classification. In order to provide a more thorough
understanding of these technologies, this section discusses
the importance of examining AWS through the lens of
meaningful human control. The second part of the Chapter
provides a historical overview of AWS’ development, which
centres on technological advances during the past few
decades. It also discusses the reality of fully autonomous
weapons systems and their deployment in future armed
conflicts.
Chapter 2 will analyse the current international legal
framework relevant to the AWS. It unpacks key tenets of
international humanitarian law, such as the principles of
distinction, proportionality, and the obligation to test new
means and methods of warfare. This is followed by a brief
summary of international criminal law, the prosecution of
war crimes, and common criticisms of international tribunals.
Chapter 3 highlights the accountability gap caused by AWS
and focuses on the difficulties of attributing individual
criminal responsibility for the illicit conduct of AWS. It then
transitions to an exploration of proposals made by legal
scholars in an attempt to close this accountability gap. The
Chapter also examines indirect perpetration and command
(or superior) responsibility to demonstrate that modified or
new legal regimes can in fact provide accountability for the
9
conduct of AWS within the existing international legal
framework, and specifically at the ICC level.
Chapter 4 builds on the conclusions drawn in Chapter 3 and
considers how these proposals could be adopted to
effectively prosecute individuals who deploy AWS that
commit war crimes. It advocates for an amendment to the
Rome Statute of the ICC to accomplish such a goal. This
argument, despite its bold nature, is supported by the ICC’s
unique mechanisms and construction as the world’s first
permanent international criminal tribunal, and the success of
the previous efforts to amend the Rome Statute.
I. Autonomous Weapons Systems (AWS)
i. Terminology
As yet, there is no global consensus on how one defines an
AWS, which can be problematic for those who attempt to
discuss their international governance and the related
individual criminal accountability. In 2016, the United
Nations Convention on Certain Conventional Weapons
(CCW) established an open-ended Group of Government
Experts (GGE) to examine the characterisation of these
weapons systems and create a working definition, but they
have yet to provide a universally accepted terminology.5
5 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 (adopted
10 SLJ 7(1)
Countries such as Switzerland are convinced that the GGE
must develop a common understanding and preliminary
working definition of AWS before deciding upon acceptable
or unacceptable systems.6 Others in the GGE delegation
respond to this sentiment, stating that the ‘lack of an
agreement on definitional matters should not hinder progress
on other issues’.7 Nonetheless, the autonomous weapons’
expert Paul Scharre argues that ‘without a common lexicon,
countries can have heated disagreements talking about
completely different things’.8 Other academics, like Rebecca
Crootof, build on this concern believing that a shared legal
definition of autonomy is required in order to allow for a
productive conversation about these emerging technologies.9
In the absence of an internationally accepted definition on
AWS, States and NGOs have taken it upon themselves to
classify these systems. Unfortunately, these classification
schemes are rather problematic and reductionist in nature.
The US Department of Defence has created a three-tiered
10 April 1981, entered into force 2 December 1983) 1342 UNTS
137 (as amended) (CCW); CCW, ‘Report of the 2017 Group of
Government Experts on Lethal Autonomous Weapons Systems’
(22 December 2017) UN Doc CCW/GGE.1/2017/3 1,7.
6 CCW, ‘A Compliance-Based Approach to Autonomous
Weapon Systems –Working Paper Submitted by Switzerland’
(10 November 2017) UN Doc CCW/GGE.1/2017/WP.9 6-7.
7 UN Doc CCW/GGE.1/2017/3 (n 5) 2.
8 Paul Scharre, Army of None: Autonomous Weapons and the Future
of War (W.W. Norton & Company 2018) 347.
9 Rebecca Crootof, ‘The Killer Robots Are Here: Legal and Policy
Implications’ (2015) 36 Cardozo Law Review 1837, 1843.
11
classification scheme that specifies “autonomous weapons
systems” as weapon systems that ‘once activated, can select
and engage targets without further intervention by a human
operator’.10 A “human-supervised autonomous weapon
systems” refers to a weapon system ‘that is designed to
provide human operators with the ability to intervene and
terminate engagements’.11 Lastly, a “semi-autonomous
weapon system” is one that is ‘intended to only engage
individual targets or specific target groups that have been
selected by a human operator’.12 On one hand, some argue
these definitions are useful because they include the words
“once activated”, demonstrating that humans are the original
decision makers when deploying AWS.13 Michael N. Schmitt
and Jeffrey S. Thurnher, in their work “Out of the Loop:
Autonomous Weapon Systems and the Law of Armed
Conflict”, maintain that even a fully autonomous weapon
system is not completely human-free because someone, either
an operator or designer, must decide to programme and
deploy that particular weapon system.14 On the other hand,
scholars such as Dan Saxon have criticised the US
10 United States Department of Defence (DoD) Directive 3000.09.
‘Autonomy in Weapon Systems’ (21 November 2012) 13-14
accessed
20 June 2018.
11 ibid 14.
12 ibid 14.
13 Crootof (n 9) 1847.
14 Michael N. Schmitt and Jeffrey S. Thurnher, ‘Out of the Loop:
Autonomous Weapon Systems and the Law of Armed Conflict’
(2013) 4 Harvard National Security Journal 231, 235.
12 SLJ 7(1)
Department of Defence classification scheme because of its
vague construction and lack of focus on human supervisory
control or responsibility.15
Unlike the US Department of Defence, Human Rights Watch
has categorised AWS with a greater focus on their degree of
autonomy, or respective level of human control.16 For
example, “human-in-the-loop” refers to a system where a
human operator must select and attack a target, “human-on-
the-loop” is a system that selects and engages the target with
human oversight, and “human-out-of-the loop” is a system
that can target and attack with no human oversight.17
Unfortunately, this classification system is equally
problematic because the current defensive systems, including
the French Shark or the Dutch Goalkeeper, provide extremely
short windows for operators to terminate an engagement
making it inaccurate to define these systems as truly “human-
in-the-loop”.18 Furthermore, some of these types of weapons
15 Dan Saxon, ‘A Human Touch: Autonomous Weapons, DoD
Directive 3000.09 and the Interpretation of Appropriate Levels of
Human Judgment Over the Use of Force’ in Nehal Bhuta,
Susanne Beck, Robin Geib, Hin-Yan Liu and Claus Kreb (eds),
Autonomous Weapons Systems: Law, Ethics, Policy (Cambridge
University Press 2016) 185, 200-202.
16 Human Rights Watch, Losing Humanity: The Case Against Killer
Robots (19 November 2012)
against-killer-robots> accessed 2 July 2018.
17 ibid.
18 Paul Scharre and Michael C. Horowitz, ‘An Introduction to
Autonomy in Weapon Systems’ CNAS Working Paper (Center
13
systems simply react to triggers, as opposed to selecting
amongst a number of potential targets, and should be
considered “automated” rather than “autonomous”
systems.19 It is for these reasons that scholars like Noel
Sharkey argue that an appropriate classification of AWS
should ‘reframe autonomy in terms of the type and quality of
human control afforded by the different types of
computerised weapons systems’.20 Sharkey is indeed
convinced this would assist in the proper allocation of
responsibility of AWS.21
It is clear that the international legal community has a long
way to go before reaching a universally accepted and
commonly understood classification scheme for AWS.
However, this lack of consensus might also provide the
United Nations with an opportunity to properly characterise
these technologies and ensure they fit within the existing
international legal framework. For the purposes of this paper,
I will utilise the term “autonomous weapons system”, as
adopted by Rebecca Crootof, to signify a weapons’ system
that, ‘based on conclusions derived from gathered
for a New American Security 2015) 12-13.
Working%20Paper_021015_v02.pdf> accessed 1 July 2018.
19 Crootof (n 9) 1855.
20 Noel Sharkey, ‘Staying in the Loop: Human Supervisory
Control of Weapons’ in Nehal Bhuta, Susanne Beck, Robin Geib,
Hin-Yan Liu and Claus Kreb (eds), Autonomous Weapons Systems:
Law, Ethics, Policy (Cambridge University Press 2016) 23, 26.
21 ibid 23.
14 SLJ 7(1)
information and preprogrammed constraints, is capable of
independently selecting and engaging targets’.22 This
definition provides clarity to many of the aforementioned
ambiguities and problematic classification schemes, including
the autonomous vs. automatic distinction. In addition, this
terminology provides a starting point to consider the
ramifications of deploying AWS that commit war crimes and
the problematic nature of attributing individual criminal
liability.
ii. Historical Development of AWS
The means and methods of warfare have undergone a
dramatic transformation within the past few decades. By
tracing the historical development of AWS, one can
confidently claim that these technologies have moved from
the realm of science fiction to become a permanent fixture of
modern armed conflict. It is important to understand the
development of these new technologies to truly appreciate
the impact they will have on battlefields and the related need
to discuss their international governance. According to TY
McCormick, there have been rapid scientific advancements in
the fields of machine learning and robotic warfare since
World War II.23 McCormick further notes how the Cold War
22 Crootof (n 9) 1854.
23 TY McCormick, ‘Lethal Autonomy: A Short History’ Foreign
Policy (24 January 2014)
history/> accessed 4 July 2018.
15
tensions in the 1960s prompted the United States to fund
universities such as the Massachusetts Institute of
Technology with millions of dollars to begin researching
‘machine-aided cognition’.24 In the following decade, the
United States deployed laser guided “smart” missiles and
unmanned aerial surveillance vehicles during the second half
of the Vietnam War.25 By the late 1980s, the United States
introduced to the Middle East the Aegis air-defence, which
could target and engage aircraft on a semi-automatic
setting.26 Remotely operated drone warfare, automatic sentry
systems, and semi-automatic or “on-the-loop” weapon
systems have been commonly employed by a number of
modern militaries since the beginning of the 21st century.27
For instance, South Korea has installed the Samsung Techwin
SGR-A1 weapon system along the border with North Korea,
equipped with autonomous tracking and targeting
capabilities, despite currently requiring human approval.28
In contrast to the aforementioned weapon systems, most
agree that the technology to produce fully autonomous
24 ibid.
25 ibid.
26 ibid.
27 McCormick (n 23).
28 Vincent Boulanin & Maaike Verbruggen, ‘Mapping the
Development of Autonomy in Weapon Systems’ Stockholm
International Peace Research Institute (November 2017) 45 -46
11/siprireport_mapping_the_development_of_autonomy_in_we
apon_systems_1117_1.pdf> accessed 29 July 2018.
16 SLJ 7(1)
weapon systems on the far end of the autonomy continuum
does not yet exist.29 Nevertheless, both critics and proponents
of these weapon systems agree that their development has
already begun.30 According to the Stockholm International
Peace Research Institute, the United States has the ‘most
visible, articulated and perhaps successful military research
and development (R&D) efforts on autonomy’.31 This seems
to have prompted other countries such as Russia and China
to focus their efforts on machine learning and the
development of AWS.32 Many within the field, such as James
Barret, describe the development of artificial intelligence as a
competition with a first-mover advantage.33
The United States Department of Defence Unmanned
Systems Integrated Roadmap FY2011-2036 states that lethal
force will remain under human control in unmanned systems
for the foreseeable future.34 Notwithstanding, this same
document notes that the Department of Defence plans to
29 Tyler D. Evans, ‘At War with the Robots: Autonomous
Weapon Systems and the Martens Clause’ (2013) 41 Hofstra Law
Review 697, 706.
30 ibid 709.
31 Boulanin & Verbruggen (n 28).
32 ibid.
33 James Barrat, Our Final Invention: Artificial Intelligence and the
End of the Human Era (Thomas Dunne Books 2013) 11.
34 United States Department of Defence (DoD), Unmanned
Systems Integrated Roadmap FY2011-2036 (2011) 16-17
accessed 17 June 2018.
17
gradually reduce the degree of human control required.35 In
addition, as indicated by the AWS expert Ted W. Schroder,
the US Secretary of Defence signed the 3000.09 Directive on
autonomy with a sunset clause, dictating that the Directive
and its components will expire in 2022.36 Schmitt and
Thurnher are convinced that the official policy of keeping a
“human-in-the-loop” for the deployment of lethal force will
likely change due to operational realities.37 This is largely due
to the myriad of logistical and political incentives to
introduce increasingly autonomous weapon systems to the
battlefield.38 These weapon systems act as a force multiplier,
which can lead to a more efficient fighting force while
simultaneously reducing causalities by removing human
soldiers from the battlefield.39 In fact, scholars like William H.
Boothy maintain that certain technological advances such as
the invention of precision munitions can be used to address
humanitarian concerns conferring both military and
35 ibid 14.
36 Ted W. Schroeder, Lethal Autonomous Weapon Systems in Future
Conflicts (Schroeder 2017) 59.
37 Schmitt and Thurhner (n 14) 237.
38 Crootof (n 9) 1865-1866.
39 Amitai Etzioni and Oren Etzioni, ‘Pros and Cons of
Autonomous Weapons Systems’ (May-June 2017) Military
Review 72, 73-74
Review/English-Edition-Archives/May-June-2017/Pros-and-
Cons-of-Autonomous-Weapons-Systems/> accessed 17 August
2018.
18 SLJ 7(1)
humanitarian benefits during armed conflict.40 These
technologies represent a paradigm shift that will ultimately
transform our conception of modern warfare. As a result, the
international community must consider the consequences of
this shift and evaluate how AWS will fit into the international
legal framework regulating armed conflict.
II. International Legal Framework
i. International Humanitarian Law &
Compliance
In order to discuss liability for war crimes committed by
AWS, it is necessary first to analyse a number of international
humanitarian law principles, since individual criminal
accountability for war crimes is directly relevant to this field.
International humanitarian law is a body of international law
that seeks to limit the means and methods of warfare and
protect civilians during armed conflict.41 It was established by
the International Committee of the Red Cross in 2014 that
autonomous weapons systems fall within the realm of
international humanitarian law, but that additional
40 William H. Boothy, Weapons and the Law of Armed Conflict (2nd
edn, Oxford University Press 2016) 358-359.
41 Hortensia D. T. Gutierrez Posse, ‘The Relationship between
International Humanitarian Law and International Criminal
Tribunals’ (2006) 88(861) International Review of the Red Cross
65
df> accessed 3 August 2018.
19
codification was required to adequately regulate these new
weapons systems.42 However, the most pressing concern for
the development and deployment of any novel weapon is
whether that technology is inherently unlawful under
international humanitarian law.43 The outcome of this debate
will greatly impact any framework relating to accountability
for the conduct of AWS.
According to the AWS expert Jeffrey S. Thurnher, one can
begin to substantiate the legality of an AWS by determining
whether it is indiscriminate by nature.44 The prohibition on
weapons indiscriminate by nature, as per Article 51(4)(b) of
the Additional Protocol I of the Geneva Convention, forbids
the deployment of a weapon that cannot ensure that an attack
can be directed at a specific military objective as opposed to
civilians or civilian objects.45 Although commentators have
42 International Committee of the Red Cross, ‘Autonomous
Weapon Systems: Technical, Military, Legal, and Humanitarian
Aspects’ Expert Meeting Report Geneva, Switzerland (March
2014) 20-21.
43 Yoram Dinstein, The Conduct of Hostilities under the Law of
International Armed Conflict (3rd edn, Cambridge University Press
2016) 99-100.
44 Jeffrey S. Thurnher, ‘The Law That Applies to Autonomous
Weapons Systems’ (2013) 17(4) ASIL Insights
autonomous-weapon-systems> accessed 2 June 2018.
45 Additional Protocol to the Geneva Conventions of 12 August
1949, and Relating to the Protection of Victims of International
Armed Conflicts (adopted 12 December 1977, entered into force
7 December 1978) 1125 UNTS 3 (Additional Protocol I) Art 51(4).
20 SLJ 7(1)
argued that machine learning is not adequate for this type of
decision making,46 Thurnher states that an AWS would not
be incompatible with this requirement if supplied ‘with
sufficiently reliable and accurate data’.47 Moreover, the AWS
would be precluded from causing unnecessary suffering and
superfluous injury, which Thurhner notes is rooted in
customary international law.48 Accordingly, as evidenced by
Emily Crawford and Alison Pert, most weapons treaties are
based on a principle that forbids means or methods of
warfare that result in ‘injury against combatants greater than
that strictly necessary to achieve the military objectives,
which uselessly aggravate the suffering of wounded
personnel, or otherwise render their death inevitable’.49 Here,
it is important to recognise that this prohibition pertains
solely to what Scharre refers to as ‘the mechanism of injury’,50
suggesting that an AWS would only infringe this principle if
supplied with certain munitions. In order to determine
whether the AWS is compatible with the two regulations
above, a State must engage in a thorough legal review as
mandated by Article 36 of Additional Protocol I.51
46 Peter Asaro, ‘On Banning Autonomous Weapon Systems:
Human Rights, Automation, and the Dehumanization of Lethal
Decision-Making’ (2012) 94 (2012) International Review of the
Red Cross 687, 697-670.
47 Thurhner (n 44).
48 ibid.
49 Emily Crawford & Alison Pert, International Humanitarian Law
(Cambridge University Press 2015) 45.
50 Scharre (n 8) 258.
51 Thurhner. (n 44); Additional Protocol I (n 45) Art 36.
21
If an AWS is able to satisfy the aforementioned criteria, it will
still face challenges in terms of targeting. The cardinal
principles of international humanitarian law relevant to AWS
targeting are those of distinction and proportionality.52 The
principle of distinction requires militaries to differentiate
between combatants and civilians; it forbids the intentional
targeting of the latter and requires attacks to only be made
against military objects and objectives.53 A pressing issue for
AWS deployment is whether they can be programmed to
properly make such distinction, as artificial intelligence can
fall victim to ‘fooling image’ attacks that occur when
legitimate military targets attempt to blend into their
environment.54 Moreover, the principle of proportionality
also presents problems for AWS, as a violation of this
principle takes place when ‘an attack which may be expected
to cause incidental loss of civilian life, injury to civilians,
damage to civilian objects, or a combination thereof, which
would be excessive in relation to the concrete and direct
military advantage anticipated’.55 This principle allows for
some collateral civilian causalities and is only violated when
this collateral or incidental damage outweighs the specific
military advantage.56 This balancing is not an exact science
and will involve what Pablo Kalmanovitz refers to as ‘hard,
52 International Committee of the Red Cross (n 42) 21-22.
53 Crawford and Pert (n 49) 42; Additional Protocol I (n 45) Art
48.
54 Scharre (n 8) 253.
55 Protocol I (n 45) Art 51(5)b.
56 Crawford and Pert (n 49) 45.
22 SLJ 7(1)
indeed incalculable, choices’.57 Paul Scharre acknowledges
that an AWS might comply with this principle if deployed in
remote areas with few citizens, but the reality of modern
combat would likely require the AWS to engage in a
‘complex moral reasoning’ that would be difficult to program
and automate.58
ii. International Criminal Law & War Crime
Prosecution
Many in the field, especially those from military backgrounds
such as P.W. Singer, are convinced that AWS will eventually
be introduced in armed conflicts.59 Moreover, nearly all
experts agree that there will not be a ban on AWS and that
existing law will be utilised in order to regulate their usage.60
Taking that into consideration, this paper focuses not solely
on the possible prohibition of AWS under international
humanitarian law, but instead speculates on the ramifications
of the legal consequences for individuals who commit
57 Pablo Kalmanovitz, ‘Judgment, Liability and the Risks of
Riskless Warfare’ in Nehal Bhuta, Susanne Beck, Robin Geib,
Hin-Yan Liu and Claus Kreb (eds), Autonomous Weapons Systems:
Law, Ethics, Policy (Cambridge University Press 2016) 145, 149.
58 Scharre (n 8) 256.
59 P.W. Singer, ‘Special Report: Autonomous Weapons are a
Game-Changer’ The Economist (25 January 2018)
report/2018/01/25/autonomous-weapons-are-a-game-changer>
accessed 22 June 2018.
60 Boothy (n 40) 252.
23
international crimes through the deployment of AWS that are
not illegal per se.
States or international criminal tribunals may prosecute
individuals if they commit what are considered grave
breaches of international humanitarian law.61 International
criminal law is a unique branch of public international law,
closely intertwined with international human rights law and
international humanitarian law.62 It deals with the individual
criminal responsibility of those who have committed such
serious violations, often referred to as international crimes.63
There is no universal definition of “international crime”,
instead, four core crimes have been identified within
international law.64 These are commonly designated to be
genocide, war crimes, crimes against humanity, and the
crime of aggression.65 War crimes, which will be the singular
focus of this research, are serious violations of the law of
armed conflict.66 They are identified in either customary
international law or international instruments such as the
Geneva Conventions.67 There has been significant effort to
61 Gutierrez Posse (n 41) 65.
62 Roger O’Keefe, International Criminal Law (1st edn, Oxford
University Press 2015) 49.
63 ibid.
64 ibid 47.
65 ibid 62-63.
66 ibid 62.
67 Geneva Convention Relative to the Protection of Civilian
Persons in Time of War (adopted 12 1949, entered into force 21
October 1950) 75 UNTS 973 (Geneva IV); International
Committee of the Red Cross, ‘War Crimes Under the Rome
24 SLJ 7(1)
define and codify these crimes since the Nuremberg Trials
following World War II.68 Originally, Article 6(b) of the 1945
Charter of the International Military Tribunal, also known as
the London Charter, specified a number of acts to constitute
war crimes, including murder and the killing of hostages.69
Yoram Dinstein notes that the Nuremberg Judgment of the
International Military Tribunal would also recognise more
war crimes under international law, adding that the
violations enumerated in Article 6(b) did not represent a
comprehensive list of crimes.70 The most modern war crime
definition is referenced in Article 8(2) of the Rome Statute of
the International Criminal Court.71 The Rome Statute,
enforced in 2002, represents the first successful establishment
of a permanent international tribunal that has the ability to
prosecute individuals who have committed serious
international crimes.72
Statute of the International Criminal Court and their Source in
International Humanitarian Law –Table’ Legal Factsheet (31
October 2012).
68 Dinstein (n 43) 298-299.
69 Charter of the International Military Tribunal Annex to the
Agreement for the Prosecution and Punishment of the Major
War Criminals of the European Axis Art (adopted 8 August
1945, entered into force 8 August 1945) 82 UNTS 279 (London
Charter) Art 6(b).
70 Dinstein (n 43) 299; Judgment of the Nuremberg International
Military Tribunal 1946, (1947), 41 AJIL 172, 218.
71 Rome Statute of the International Criminal Court (adopted 17
July 1998, entered into force 1 July 2002) 2187 UNTS 3 (Rome
Statute) Art 8(2).
72 O’Keefe (n 62) 529.
25
However, the prosecution of international crimes such as war
crimes is not a simple endeavour; this is especially true for
the prosecution of war crimes before the International
Criminal Court and the ad hoc tribunals such as the
International Criminal Tribunal for Yugoslavia (ICTY) and
the International Criminal Tribunal for Rwanda (ICTR).73 In
fact, these tribunals have all been criticised as expensive,
inefficient, and marred by political bias.74 For example, ad
hoc tribunals have consistently gone beyond their timelines
and required hundreds of millions of dollars to initially
establish and continue to operate.75 The ICC alone has costed
over 1 billion dollars during its first 12 years of operation,
and resulted in only two convictions.76 The ICTR and ICTY
have seen similar issues in that they have only been able to
prosecute a few individuals.77 This is largely because war
73 Sandra L. Hodgkinson, ‘Are Ad Hoc Tribunals an Effective
Tool for Prosecuting International Terrorism Cases’ (2010) 24
Emory International Law Review 515.
74 ibid 521.
75 UN International Residual Mechanism for Criminal Tribunals,
‘The Cost of Justice’ ICTY (2016)
of-justice>
accessed 23 August 2018.
76 David Davenport, ‘International Criminal Court: 12 Years, $1
Billion, 2 Convictions’ Forbes (12 March 2014)
national-criminal-court-12-years-1-billion-2-convictions-
2/#3b256ef24053> accessed 3 July 2018.
77 Richard Dicker and Elise Keppler, ‘Beyond the Hague:
Challenges of International Justice’ in Human Rights Watch
2004, 9-10
26 SLJ 7(1)
crimes are collective in nature and often involve a gr eat deal
of convoluted evidence that needs to be organised and put
into a coherent strategy by the prosecutorial team.78
Moreover, these trials are conducted far away from the crime
scene and gathering evidence can be complicated by political
pressures.79
III. Proposals for Individual Accountability
i. The Accountability Gap
The attribution of individual criminal responsibility and the
prosecution of war crimes under international criminal law
becomes increasingly convoluted when AWS are introduced
to the equation. The UN Special Rapporteur Christof Heyns
has acknowledged that a vast number of individuals could
possibly be held legally responsible for the illicit conduct of
an AWS, including those who sell the hardware or the
political leaders that authorise deployment.80 However, he
also acknowledges that ‘if everyone is responsible, then no
one is’, and claims that this uncertainty may ultimately
accessed 4 June 2018.
78 ibid.
79 ibid.
80 OHCHR, ‘Report of the Special Rapporteur Christof Heyns on
extrajudicial, summary or arbitrary executions’ (2013) UN Doc.
A/HRC/23/47, para 77
27
widen the accountability gap.81 Moreover, a myriad of
organisations, such as Human Rights Watch and the Harvard
Law School’s International Human Rights Clinic, are
convinced that AWS ‘would create an accountability gap
because it would be difficult to hold anyone responsible for
the unforeseen harm caused by an autonomous robot’.82 In
their 2012 report “Losing Humanity: Case Against Killer
Robots”, Human Rights Watch cites the arguments made by
Robert Sparrow to dismantle the possibility of establishing
responsibility primarily because autonomous weapons
systems act ‘autonomously’ and therefore qualify as moral
agents.83 Thus, neither the commander, the programmer, nor
the manufacturer of the AWS could be assigned legal
responsibility for the unlawful acts committed by the AWS in
a fair and effective way. 84 Human Rights Watch followed this
report with a 2015 publication entitled “Mind the Gap” that
builds on its previous assertions to claim that ‘existing
mechanisms for legal accountability are ill suited and
inadequate to address the unlawful harms fully autonomous
81 Christof Heyns, ‘Autonomous Weapons Systems: Living a
Dignified Life and Dying a Dignified Death’ in Nehal Bhuta,
Susanne Beck, Robin Geib, Hin-Yan Liu and Claus Kreb (eds),
Autonomous Weapons Systems: Law, Ethics, Policy (Cambridge
University Press 2016) 3, 13
82 Human Rights Watch, Heed the Call: A Moral and Legal
Imperative to Ban Killer Robots (21 August 2018)
legal-imperative-ban-killer-robots> accessed 2 September 2018
83 Human Rights Watch, Losing Humanity: (n 16)
84 ibid.
28 SLJ 7(1)
weapons might commit’.85 In addition, the organisation is
convinced that entirely new legal regimes would not be able
to ensure accountability as enshrined by international
humanitarian law and international human rights law.86
In response to these arguments, a variety of scholars and
AWS experts have come to challenge Human Rights Watch
and reframe the debate on accountability. For instance,
Schmitt and Thurnher criticise the assertions made in “Losing
Humanity” by noting that humans can remain accountable
for the conduct of an AWS even as these technologies become
increasingly autonomous; because the legal responsibility for
their use will remain with those who decide to deploy such
systems as enshrined by the law of armed conflict.87 They
follow by stating that ‘any recklessness or criminal misuse
will result in accountability through the same war crimes
mechanisms that already exist’,88 but refuse to mention the
current inefficiencies of existing mechanisms or inherent
unpredictability of such weapons systems. Others such as
Dunlap have gone on to criticise the “Mind the Gap” report
as an unproductive effort to establish something inherent
about AWS that frustrates accountability for their actions
85 Human Rights Watch, Mind the Gap: The Lack of Accountability
for Killer Robots (9 April 2015)
accountability-killer-robots> accessed 6 July 2018.
86 ibid.
87 Schmitt and Thurhner (n 14) 280.
88 ibid.
29
described by the author to be ‘simply untrue’.89 Dunlap
points to particular elements of the report, including its
assertion that criminal liability would only apply where
humans had the blatant intention of utilising an AWS to
commit international crimes, and dismantles them by
presenting evidence of criminal liability imposed in the
absence of intention, with particular reference to US Military
law.90
Although some have criticised Human Rights Watch for
discussing AWS in an overly alarmist or imprecise manner,
even these critics note the importance of discussing
accountability for AWS in the absence of blatant
intentionality.91 The debate and discussions surrounding
AWS are relatively new; yet there are a number of legal
scholars who have directly challenged the notion that new or
modified legal regimes would be unable to ensure
accountability. Through their respective scholarship, Nena
Jain, Peter Margulies, and Jens David imagine new
frameworks for individual responsibility and examine how
traditional doctrines and legal mechanisms can be adapted to
close the theoretical accountability gap.
89 Charles J. Dunlap Jr., ‘Accountability and Autonomous
Weapons: Much Ado About Nothing?’ (2016) 30 Temple
International & Comparative Law Journal 63, 75-76.
90 ibid 71-73.
91 Schmitt and Thurnher (n 14) 276-277.
30 SLJ 7(1)
ii. Indirect Perpetration
International criminal law has numerous modes of liability
that could provide adequate accountability for the conduct of
AWS. However, one of the most convincing arguments for
providing accountability is that an individual could be liable
through the doctrine of indirect perpetration. Professor Jens
David Ohlin expands upon this proposition in his work “The
Combatant’s Stance: Autonomous Weapons on the
Battlefield”, where he argues that indirect perpetration
enables military commanders to ‘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’.92 According to Ohlin, the relevant framework for
AWS liability was first articulated at the Nuremberg Trials
when international criminal law involved modes of liability
‘designed for convicting those who indirectly perpetrate war
crimes through a machine or organised apparatus of
power’.93 Ohlin references the Israel Supreme Court’s
conviction of Adolf Eichmann to demonstrate how a
commander was prosecuted for war crimes through the
deployment of massive bureaucratic or social machinery; he
then points to the development of the Organisationsherrschaft
doctrine, known as indirect perpetration through an
92 Jens David Ohlin, ‘The Combatant’s Stance: Autonomous
Weapons on the Battlefield’ (2016) 92 International Law Studies
1, 3.
93 ibid 2-3.
31
organised apparatus of power, to effectively draw a parallel
to the assignment of responsibility for AWS.94
As articulated by Neha Jain, indirect perpetration involves
the recognition of various instances in criminal law ‘where
the immediate agent who most directly realises the elements
of the offence is “autonomous” in the material sense, but for
whose conduct another (human agent) can still be held
responsible’.95 In essence, one can be held criminally
responsible by acting through another person or, in this case,
through a system as the chain of causation and the mens rea
element of the offence is traced back to a final human agent.96
Article 25(3)a of the Rome Statute outlines varying modes of
assigning individual criminal liability, specifying that a
person shall be criminally responsible and liable when they
commit a crime ‘whether as an individual, jointly with
another or through another person, regardless of whether
that other person is criminally responsible’.97 Accordingly,
the current conception of acting through a “person”, as
specified by Article 25(3)a of the Rome Statute, would need to
94 ibid 8; Attorney General of the Government of Israel v Adolf
Eichmann, 36 International Law Reports 1968, 331-334.
95 Neha Jain, ‘Autonomous Weapons Systems: New Frameworks
for Individual Responsibility’ in Nehal Bhuta, Susanne Beck,
Robin Geib, Hin-Yan Liu and Claus Kreb (eds), Autonomous
Weapons Systems: Law, Ethics, Policy (Cambridge University Press
2016) 303, 307-308.
96 ibid 307-309.
97 Rome Statute, (n 71) Art 25(3)a.
32 SLJ 7(1)
be expanded to include AWS for the proper application of
this doctrine.98
iii. Command & Superior Responsibility
A second proposal to provide accountability for war crimes
committed by AWS is the doctrine of command or superior
responsibility. It stipulates that a person in command is
responsible for the crimes committed by subordinates,
pending the presence of certain conditions.99 There is a dual
nature to this doctrine as the person in command is both
directly responsible for not exercising control of their forces
and failing to prevent the commission of a crime, and
indirectly liable for the actual crime committed by the
subordinate.100 Due to this construction, command or
superior responsibility is often represented as both a mode of
liability or a separate offence in and of itself.101 Regardless of
the characterisation, the doctrine requires the existence of a
superior-subordinate relationship with control, sufficient
98 Ohlin (n 92); Jain (n 95).
99 Peter Margulies, ‘Making Autonomous Weapons Accountable:
Command Responsibility for Computer-Guided Lethal Force in
Armed Conflict’ in Jens David Ohlin (eds), Research Handbook on
Remote Warfare (Edward Elgar Press 2016) 405.
100 Kai Ambos, ‘Joint Criminal Enterprise and Command
Responsibility’ (2007) 5 Journal of International Criminal Law
159, 176.
101 Elies van Sliedregt, ‘Article 28 of the ICC Statute: Mode of
Liability and/or Separate Offense?’ (2009) 12 New Criminal Law
Review 420.
33
mens rea, and an omission on the part of the commander.102
As seen in the ICC’s Prosecutor v Jean-Pierre Bemba Gombo
case,103 international law recognises that the accused must
exercise control over the crime, which is evaluated on a case-
by-case basis.104
This proposal of utilising command responsibility for AWS
has received considerable attention amongst academics as
command responsibility would target those most responsible
for sanctioning the use of such weapons.105 Professor Peter
Margulies, in his work Making Autonomous Weapons
Accountable: Command Responsibility for Computer-
Guided Lethal Force in Armed Conflicts”, argues that the
doctrine of command responsibility can be used to fill the
AWS accountability gap.106 He states that ‘a human in
command should have responsibility for autonomous
decisions, just as a commander is currently held responsible
for an unreasonable failure to prevent a subordinate’s IHL
102 Jain (n 95) 310-311.
103 Prosecutor v. Jean Pierre Bemba Gombo (Bemba), case no. ICC-
01/05-01/08, Decision pursuant to Article 61(7)(a) and (b) of the
Rome Statute on the charges of the prosecutor against Jean-
Pierre Bemba Gombo (Pre-Trial Chamber II, 15 June 2009).
104 O’Keefe (n 62) 180-181; Jain, (n 95) 311; Prosecutor v. Jean-Pierre
Gemba Gomba ICC-01/05-01/08, Judgment pursuant to Article 74
of the Statute (ICC Trial Chamber, 26 March 2016), para 183, 188 -
189.
105 Stephen E. White, ‘Brave New World: Neurowarfare and the
Limits of International Humanitarian Law’ (2008) 41(1) Cornell
International Law Journal 177, 209-210.
106 Margulies (n 99) 406-408.
34 SLJ 7(1)
violations’.107 In essence, the author suggests that an AWS
should be considered as a subordinate soldier, who the
commander would have effective control over irrespective of
whether the respective military command structure embraces
what Margulies calls ‘dynamic diligence’.108 Margulies argues
that the doctrine, if modified, could assist in the prosecution
of war crimes because ‘one could interpret command
responsibility as making the interpretability of an AWS’s
outputs or the presence of a dynamic temporal parameter
substantive components of the commander’s duties’.109 In
other words, while the prosecution would ultimately bear the
burden of proof, an international tribunal could consider a
commander’s failure to provide ‘interpretable and
transparent’ information on the AWS as evidence of a
violation.110
As indirect perpetration is immune from the confusion
caused by varying conceptions of human agency and robot
autonomy,111 command or superior responsibility enables one
to effectively resolve the issue of control over AWS and their
unpredictability. Human Rights Watch contends that AWS
are inherently unpredictable and that ‘a commander would
not always have the sufficient reason or technological
knowledge’ to either anticipate or prevent an unlawful act.112
107 ibid.
108 ibid.
109 Margulies (n 99) 437-440.
110 ibid.
111 Jain (n 95) 307-309.
112 Human Rights Watch, Mind the Gap (n 85).
35
Nonetheless, the new interpretation of command
responsibility as articulated by Margulies allows militaries to
establish ‘effective control’ as required under international
law.113 This is because dynamic diligence requires
commanders to be conversant with all aspects of an AWS,
mandates constant testing, and provides for the
reprogramming or decommission of an AWS.114 Dynamic
diligence is a standard that requires constant adjustments to
the AWS machine-human interface, periodic assessments and
the regular updating of the weapon systems to ensure
compliance with international law, and ‘a presumption
favouring interpretability of the AWS’s outputs’.115 Other
scholars, such as Neha Jain, have supported this theory
despite noting that this modification represents ‘a departure
from the temporal coincidence of the commander’s control
and the criminal conduct of the human subordinate normally
required by the doctrine’.116 Margulies defends this departure
from a historical point of view as he highlights how weapons
systems previously introduced to armed conflicts, such as
cyber weapons, have also required a high degree of
specialisation and modification to the existing command
doctrine.117 Ultimately, the control element can be
theoretically satisfied by shifting the focus of control from the
respective violation to the original decision-making by the
commander, and subsequently embracing a modified
113 Rome Statute (n 71) Art 28.
114 Margulies (n 99) 406-408.
115 ibid.
116 Jain (n 95) 314.
117 Margulies (n 99) 432-434.
36 SLJ 7(1)
understanding of prevention and form of punishment
relevant to a non-human subordinates.
iv. Recklessness
Even if international criminal law may feasibly adopt the
doctrine of indirect perpetration to prosecute commanders
for the illegal conduct of AWS as instruments of criminality,
one must equally consider the arguments raised by Human
Rights Watch claiming that ‘a commander would
nevertheless still escape liability in most cases’ since they can
only be accountable if the requisite mens rea is proven.118
According to Article 30 of the Rome Statute, a person can
only be held liable for punishment if the Actus reus is
committed with intent or knowledge.119 Therefore, to hold a
commander liable as an indirect perpetrator for intentionally
deploying an AWS that committed a war crime at the ICC,
the prosecutor would have to demonstrate that the
commander either meant to engage in the conduct and to
cause the consequences or was aware that such consequences
would occur in the ordinary course of events.120 To effectively
prosecute on the mental element of “knowledge”, the
prosecutor would have to prove that the commander had
awareness that a circumstance existed or a consequence
would occur in the ordinary course of events.121 Even the
critics of Human Rights Watch concede that the
118 Human Rights Watch, Mind the Gap (n 85).
119 Rome Statute (n 71) Art 30.
120 ibid Art 30(2).
121 ibid Art 30(3).
37
aforementioned requirement is unlikely to be satisfied when
applied to unintentional situations.122 It is therefore essential
that international criminal law recognises other forms of
mental culpability to close the accountability gap and
effectively provide accountability.
Command or superior responsibility could provide
accountability even in absence of any intentionality since it
requires a lower level of mental culpability. Article 28(a) of
the Rome Statute specifies that a military commander is liable
when they either knew or should have known the crime was
to occur, and Article 28(b) requires knowledge or the
conscious disregarding of information for a civilian
superior.123 Neha Jain discusses this contrast, claiming that
the “should have known” requirement for a military
commander could suggest a negligence standard for
prosecution, as affirmed by the Bemba decision,124 and the
conscious disregarding of information can be interpreted as a
recklessness standard for a civilian superior.125 He then states
that criminal law generally ‘favours purpose, knowledge or
at least some form of recklessness as the minimum standard
for culpability’.126 Nevertheless, the existing support for
lowering the mens rea requirements in the case of
international crimes is controversial. Some lawyers advocate
122 Schmitt and Thurnher (n 14) 278.
123 Rome Statute (n 71) Art 28.
124 Prosecutor v. Jean Pierre Bemba Gombo (Bemba) (n 103) para
420-433.
125 Jain (n 95) 311.
126 ibid 324.
38 SLJ 7(1)
the prosecution of war crimes based on a recklessness
standard, and argue that this level of culpability is supported
in customary international law as evidenced in the
Nuremberg Trials and the ICTY Prosecutor v. Blaskic case.127
On the other hand, Neha Jain Ohlin claims that ‘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 labelling’.128 Ohlin then suggests
that one way to bring about accountability for AWS is with
the codification of a new criminal offence for recklessly
perpetrating an international crime, enabling a commander
who recklessly deployed an AWS to be found guilty of a
specific offence.129 This idea is not exactly novel as Nathan
Reitinger had already noted that a court can convict in the
absence of knowledge specifically as seen in the ICTY and
ICTR trials where commanders were held liable without full
knowledge of the actions of subordinates.130 If this concept
127 Alex Whiting, ‘Recklessness, War Crimes, and the Kunduz
Hospital Bombing’ (2 May 2016) Just Security at New York
University School of Law
kunduz-hospital-bombing/> accessed 6 September 2018;
Prosecutor v. Blaskic (Judgement) ICTY 95-14-T (3 March 2000)
para 152.
128 Ohlin (n 92) 3.
129 ibid 28.
130 Nathan Reitinger, ‘Algorithmic Choice and Superior
Responsibility: Closing the Gap Between Liability and Lethal
Autonomy by Defining the Line Between Actors and Tools’
(2015) 51(1) Gonzaga Law Review 79, 117.
39
was to be applied to AWS, the prosecutorial burden would
be low enough to capture crimes committed in the absence of
blatant purpose as is likely to occur with the future
deployment of such complex weapons systems.
IV. Policy Considerations for an Amendment to the
Rome Statute
Despite all the attention given to the AWS accountability gap,
there are still legal scholars such as Ohlin who argue that ‘the
basic structure of international criminal law is already well-
suited to prosecuting military commanders for deployment
of an AWS that commits a war crime’.131 As outlined in the
previous Chapter, there are various conceivable frameworks
that can be established or modified to provide individual
accountability for the conduct of AWS. In addition, the
biggest obstacles to attributing individual accountability,
such as control and mens rea, exist independently of AWS.
The most pressing issue for the international community now
is to identify universally accepted legal standards, and
subsequently raise political capital for the codification of
respective regulations. The final section of this paper
proposes one means of accomplishing this goal through an
amendment to the Rome Statute of the International Criminal
Court.
131 Ohlin (n 92) 3.
40 SLJ 7(1)
i. Advantages of Existing Mechanisms
Support for an amendment to the Rome Statute as a means of
providing accountability for AWS is based primarily on the
ICC’s unique construction as the world’s first permanent
international criminal tribunal. With binding obligations on
139 State Parties already in place,132 there is arguably no need
for a new international instrument to cover war crimes
perpetrated by AWS. A future amendment would simply
reinforce existing duties on State Parties, as outlined in the
Preamble of the Rome Statute whereby States must ‘exercise
its criminal jurisdiction over those responsible for
international crimes’ and ensure effective prosecution by
‘taking measures at the national level and by enhancing
international cooperation’.133 Olympia Bekou, in her work
“Building National Capacity for the ICC,” describes how the
establishment of the ICC marked the creation of an
international system of justice that is centred on the principle
of complementarity, ‘which gives priority to national courts
provided they are both willing and able genuinely t o deal
with a case’.134 Complementarity is referenced in Article 1 of
132 Rome Statute, (n 71); Assembly of State Parties, ‘State Parties
to the Rome Statute-Chronological List’ International Criminal
Court
cpi.int/en_menus/asp/states%20parties/pages/the%20states%20p
arties%20to%20the%20rome%20statute.aspx> accessed 3
September 2018.
133 Rome Statute, (n 71) Preamble.
134 Olympia Bekou, ‘Building National Capacity for the ICC:
Prospects and Challenges’ in Triestino Mariniello (eds), The
41
the Statute and contributes to the idea of the ICC as a court of
‘last resort’.135 Critics often address the inefficient or flawed
nature of the ICC as a stand-alone institution, but do not
properly address how this court instead forms the centre of a
global effort for accountability that is inherently dependent
on the support of State Parties.136
First, the unique construction of the ICC as complementary
system is beneficial for the prosecution of war crimes
committed by AWS as these international crimes may occur
in countries that do not have the capacity to effectively
prosecute the accused, nor the ability to properly support
victims. In fact, the World Health Organization states that
one-third of countries with low human development are in
conflict, with the impact spilling across borders into
neighbouring regions’.137 Moreover, those countries which
International Criminal Court in Search of its Purpose and Identity
(Routledge 2015) 133.
135 Rome Statute, (n 71) Art 1; Paul Seils, ‘What is
Complementarity: National Courts, the ICC, and the Struggle
Against Impunity’ (2016) International Center for Transitional
Justice
complementarity> accessed 4 September 2018.
136 William W. Burke-White, ‘Proactive Complementarity: The
International Criminal Court and National Courts in the Rome
System of International Justice’ (2008) 49 Harvard International
Law Journal 53, 60-62.
137 Peter S Hill, Ghulam Farooq Mansoor, and Fernanda Claudio,
‘Conflict in Least-Developed Countries: Challenging the
Millennium Development Goals’ (2010) 88(8) Bulletin of the
World Health Organization 561, 562.
42 SLJ 7(1)
are more likely to deploy AWS in future armed conflicts,
including the United States and the Russian Federation, are
also the most involved in protracted military conflicts in the
developing world.138 It is then perhaps unsurprising how
most of the countries calling for a ban or restrictions on fully
autonomous weapons are either developing nations or those
in the Non-Aligned Movement.139 Post-conflict societies face a
myriad of problems when prosecuting international crimes as
they often lack a high level of legal expertise, financial
resources, or political will to effectively carry out said
prosecution.140 This would be further complicated with the
introduction of AWS, and would likely require assistance
from the ICC to conduct such technical investigations or
complex prosecutions.
138 Sergey Karaganov, ‘Global Challenges and Russia’s Foreign
Policy’ (2016) 40 Strategic Analysis 461
accessed 1
September 2018; Andrew S. Bowen, ‘What Recent Taliban
Advances Reveal About the State of Afghanistan’s Military’
World Politics Review (4 September 2018)
recent-taliban-advances-reveal-about-the-state-of-afghanistan-s-
military> accessed 6 September 2018.
139 UNDP, ‘2016 Human Development Report’ (2016) 198-200
nt_report.pdf> accessed 3 August 2018; Campaign to Stop Killer
Robots, ‘Country Views on Killer Robots’ (13 April 2018) 1 -2
content/uploads/2018/04/KRC_CountryViews_13Apr2018.pdf>
accessed 4 August 2018.
140 Bekou, (n 134) 137.
43
Second, the Rome Statue already allows for the prosecution
of high-level officials and provides numerous measures to
support and protect victims and witnesses.141 This is vital for
the safe and effective prosecution of individuals who deploy
AWS that commit war crimes. AWS will presumably involve
vast military command structures,142 and as articulated by US
Deputy Defence Secretary Robert Work, authoritarian
regimes might utilise these AWS as a means of consolidating
power amongst a few individuals.143 The ICC is therefore
uniquely situated to provide sufficient protection to those
who fall victim to AWS, especially when the deployment of
the AWS originated from a dangerous individual or regime.
Third, the Rome Statute, as originally constructed, allows the
ICC to expand its jurisdictional reach and investigate crimes
perpetrated by nationals who are not State Parties as
provided by Article 12(2)(a).144 This is imperative to provide
accountability for the illicit conduct of AWS because the
commanders of these advanced weapons systems are likely
to come from nations that are not State Parties to the Rome
141 O’Keefe, (n 62) 533-534; Rome Statute (n 71) Art 27(1),63,68,75.
142 Kalmanovitz, (n 57) 158.
143 Dan Lamothe, ‘The Killer Robot Threat: Pentagon Examining
How Enemy Nations Could Empower Machines’ The Washington
Post (30 March 2016)
3/30/the-killer-robot-threat-pentagon-examining-how-enemy-
nations-could-empower-
machines/?noredirect=on&utm_term=.b138fe207c45> accessed 11
June 2018.
144 Rome Statute (n 71) Art 12(2).
44 SLJ 7(1)
Statute, particularly the United States, Russian Federation,
and China.145 Jurisdictional mechanisms and the principle of
complementarity were originally conceived and built into the
Rome Statute due to concerns over State sovereignty by
certain parties in the negotiations.146 Today, one could argue
that they are instead utilised as a tool to counter State
sovereignty as a means of covering up international crimes,
and this practice subsequently would extend to those
international crimes perpetrated through the deployment of
autonomous weapons systems. This is substantiated through
an examination of the ongoing general efforts at the ICC to
address war crimes in Afghanistan, which acceded to the
Rome Statute of the International Criminal Court on the 10th
of February 2003.147 Ascending to the treaty gave the ICC
jurisdiction over international crimes on the Afghan territory
or by Afghanistan nationals from that date onwards.148
According to human rights organisations such as Amnesty
International, there is evidence that United States military
forces and their NATO allies committed war crimes in
Afghanistan during military operations between 2009 and
2013.149 Amnesty International’s report, titled “Left in the
145 Assembly of State Parties (n 132).
146 John T. Holmes, ‘The Principle of Complementarity’ in Roy S.
Lee (eds), The International Criminal Court: The making of the Rome
Statute- Issues, Negotiations, Results (Kluwer Law International
1999) 41, 40-42.
147 Assembly of State Parties (n 132).
148 Rome Statute (n 71) Art 11-13.
149 Amnesty International, Left in the Dark: Failures of
Accountability for Civilian Causalities Caused by International
Military Operations in Afghanistan (Amnesty International Ltd
45
Dark: Failures of Accountability for Civilian Causalities
Caused by International Military Operations in Afghanistan”,
discusses the blatant flaws in the US military justice system
in relation to war crime prosecution, and lambasts the slow
moving nature of the ICC’s preliminary inquiry into a
situation that began in 2007, which was described as ‘the
longest-standing inquiry to remain at this early stage’.150
Despite this slow progress, an official “Request for
authorisation of an investigation pursuant to Article 15” was
made by the ICC Prosecutor in November 2017 in accordance
with Article 15(3) of the Rome Statute.151 This could enable
the ICC Pre-trial Chamber to grant the Prosecutor’s request
and open an official investigation into alleged war crimes
committed by US military forces and individuals in the
Central Intelligence Agency (CIA).152 The decision to grant
the request was ultimately rejected in 2019,153 but the initial
2014) ASA 11/006/2014
2014en.pdf> accessed 1 August 2018.
150 Amnesty International, Left in the Dark (n 149) 84.
151 ICC Office of the Prosecutor, ‘Request for Authorization of an
Investigation Pursuant to Article 15’ Pre-Trial Chamber III (20
November 2017) No. ICC-02/17
cpi.int/courtrecords/cr2017_06891.pdf> accessed 1 September
2018.
152 ibid.
153 ICC, ‘Decision Pursuant to Article 15 of the Rome Statute on
the Authorisation of an Investigation into the Situation in the
Islamic Republic of Afghanistan’ Pre-Trial Chamber III (12 April
2019) No. ICC-02/17
46 SLJ 7(1)
request for authorisation has resulted in strong reactions
from the Trump Administration.154 For example, National
Security Advisor John Bolton has gone as far as to propose
banning, sanctioning, and even criminally prosecuting ICC
judges in the United States should the investigation
proceed.155 The United States government could have
challenged the ICC’s intervention on various grounds,
particularly on the Status of Forces Agreement (SOFA).156
Nonetheless, the fact that such a request of unprecedented
nature was even made and taken into consideration by the
ICC and further pursued following the visceral reaction of
the Trump Administration suggests that the ICC is capable of
flexing its machinery to pursue international criminal justice.
This could naturally extend to war crimes involving AWS in
the future, as officially investigating the nationals of a
powerful non-State Party is no longer in the realm of theory.
cpi.int/courtrecords/cr2017_06891.pdf> accessed 19 September
2019.
154 Steve Holland, ‘Trump Administration Takes Aim at
International Criminal Court, PLO’ Reuters (10 September 2018)
administration-to-take-tough-stance-against-international-
criminal-court-idUSKCN1LQ076> accessed 11 September 2018.
155 ibid.
156 Luis Moreno Ocampo, ‘The ICC’s Afghanistan Investigation:
The Missing Option’ Lawfare (24 April 2017)
missing-option> accessed 2 September 2018.
47
ii. Precedent of Amending the Rome Statute
The proposal for an amendment to the Rome Statute as a
means of providing accountability for AWS can be further
supported in light of the success of the previous efforts to
amend the Rome Statute. Unlike ad hoc tribunals, the
International Criminal Court is a permanent tribunal that is
able to respond to the needs of a rapidly changing world and
evolve to bring about justice. Article 121 of the Rome Statute
outlines the procedure for amending the Rome Statute with a
non-institutional amendment, which can be proposed by any
State Party before being directly taken up or dealt with at a
Review Conference. The adoption of such an amendment at
either a meeting of the Assembly of State Parties or at a
Review Conference requires two-thirds majority to pass and
enters into force a year later for State Parties.157 However,
amendments to Articles 5,6,7 and 8, if not accepted by a State
party, will render the Court unable to exercise jurisdiction
regarding a crime covered by the respective amendment.158
In 2010, State Parties gathered in Kampala, Uganda to
successfully amend the Rome Statute for the first time in
history.159 This Review Conference resulted in substantial
157 Rome Statute (n 71) Art 121 (3)(4).
158 ibid Art 121(5).
159 Assembly of State Parties, ‘Review Conference of the Rome
Statute of the International Criminal Court Kampala, 31 May
11 June 2010’ (2010) ICC Official Records, RC/11
48 SLJ 7(1)
changes to the Rome Statute, such as the adoption of a new
international crime that the Court would have jurisdiction
over the crime of aggression and expanded the ICC
jurisdiction over war crimes involving the use of certain
weapons in both international and non-international
conflicts.160 While some see this amendment as relatively
uncontroversial, Amal Alamuddin and Philippa Webb argue
that ‘the process by which the amendment was successfully
adopted is also instructive for future efforts to modify the
ICC Statute’.161 In fact, the State parties at the Review
Conference were able to reach a consensus for the crime of
aggression, including its definition and conditions for
jurisdiction, within the span of a few weeks.162 This is a
remarkable feature for any international meeting, and
suggests that future debates on AWS amendments are not set
for failure. Moreover, scholars have noted that the expanded
jurisdiction over the aforementioned war crimes will depend
on future ICC interpretation.163 The undefined nature of this
amendment is equally pertinent to a future amendment
pertaining to AWS, as any respective amendment would also
require further interpretation by the ICC. Although
Christopher Greenwood had noted that ‘the remarkable
cpi.int/iccdocs/asp_docs/ASP9/OR/RC-11-ENG.pdf> accessed 1
September 2018.
160 ibid, 13-17.
161 Amal Alamuddin and Philippa Webb, ‘Expanding
Jurisdiction over War Crimes under Article 8 of the ICC Statute’
(2010) 8 Journal of International Criminal Justice 1219.
162 Assembly of State Parties, ‘Review Conference’ (n 154) 1-4.
163 Alamuddin and Webb, (n 161) 1219.
49
progress in the development of weaponry and methods of
warfare during the twentieth century was unmatched by
development in the law’,164 the success of this amendment to
the Rome Statute seems to rebut this notion, and instead
provides a glimmer of hope for the codification in providing
accountability for AWS in the twenty-first century.
V. Conclusion
In sum, it is an undeniable fact that AWS are being actively
developed, and that fully autonomous weapons systems may
soon become commonplace in armed conflict. This stark
realisation has spurred the international community into
action as NGOs, international institutions, and legal scholars
are attempting to understand AWS, and debate whether
these new technologies can fit within the present-day
international legal framework. As explored in Chapter 1,
global policymakers need to adequately address the
characterisation of AWS and reconcile the varying
perspectives on autonomy and meaningful human control to
arrive at universally acceptable nomenclature. Chapter 2 of
this paper has elucidated the international regulatory system
relevant to AWS and reflected upon the challenges and
complicated nature of war crime prosecution under
international criminal law. In the first section of Chapter 3,
one can see that a paramount concern regarding the
deployment of AWS is that of accountability. As highlighted
by human rights organisations and certain commentators,
164 Boothy (n 40) 539
50 SLJ 7(1)
our current conception of individual criminal liability and
respective legal framework is ill -suited to provide
accountability for individuals who deploy AWS that
perpetrate international crimes. Fortunately, through an
exploration of novel frameworks for individual responsibility
as proposed by various legal scholars, it is evident that new
legal mechanisms can be adopted to fairly attribute criminal
liability to a human agent for the unlawful conduct of an
AWS. These new means of assigning individual criminal
liability are both innovative and feasible, as they are largely
rooted in existing international legal traditions and modern
military practice. In consequence, Chapter 4 of this paper has
considered the adoption of the aforementioned accountability
schemes in the form of an amendment to the Rome Statute of
the International Criminal Court. While this paper posits
such an amendment, it has not considered its exact
construction, which will require future research. Instead, a
modification of the Rome Statute has been defended through
an examination of the ICC’s existing architecture and the
success of previous efforts to amend the Rome Statute.
Regardless of this position, it is important to acknowledge
that any attempt to establish individual criminal liability for
human agents who deploy AWS that perpetrate war crimes
will be met with diverging opinions. Also, it will
undoubtedly require a significant amount of political will
and creativity to craft effective solutions that will close the
AWS accountability gap. With that being said, it is my hope
that this research has served as a minor contribution to that
effort. As cleverly stated by British mathematician Alan
Turing in his seminal work, “Computing Machinery and
51
Intelligence” ‘We can only see a short distance ahead, but we
can see plenty there that needs to be done’.165
165 Alan M Turing, “Computing Machinery and Intelligence”
(1950) LIX (236) Mind: A Quarterly Review of Psychology and
Philosophy 433, 460
52 SLJ 7(1)
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