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

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Author	Ian Andrew Barber

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.

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

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.

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

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.

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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.

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.

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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.

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.

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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

df> accessed 3 August 2018.

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.

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.

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.

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

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.

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.

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.

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).

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).

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.

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

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.

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

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.

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.

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

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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