Individual Criminal Responsibility for Autonomous Weapons Systems in International Criminal Law 9004524304, 9789004524309

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Individual Criminal Responsibility for Autonomous Weapons Systems in International Criminal Law

International Humanitarian Law Series Editor-​in-​Chief Professor Timothy L.H. McCormack Editorial Advisory Board Professor Georges Abi-​Saab –​H.E. Judge George H. Aldrich Madame Justice Louise Arbour –​Professor Ove Bring Professor John Dugard –​Professor Dr. Horst Fischer Dr. Hans-​Peter Gasser –​Professor Christopher Greenwood Professor Ruth Lapidoth –​Professor Gabrielle Kirk McDonald H.E. Judge Theodor Meron –​Captain J. Ashley Roach Professor Michael Schmitt

volume 65 The International Humanitarian Law Series is a series of monographs and edited volumes which aims to promote scholarly analysis and discussion of both the theory and practice of the inter­ national legal regulation of armed conflict. The series explores substantive issues of International Humanitarian Law Including, –​ Protection for victims of armed conflict and regulation of the means and method of warfare –​ questions of application of the various legal regimes for the conduct of armed conflict –​ Issues relating to the implementation of International Humanitarian Law obligations –​ national and international approaches to the enforcement of the law and –​ the interactions between International Humanitarian Law and other related areas of inter­ national law such as Human Rights, Refugee Law, Arms Control and Disarmament Law, and International Criminal Law

The titles published in this series are listed at brill.com/​ihul

Individual Criminal Responsibility for Autonomous Weapons Systems in International Criminal Law By

Barry de Vries

LEIDEN | BOSTON

Cover illustration: A U.S. Air Force mq-​9 Reaper drone assigned to the 432nd Wing, takes off from the flight-​ line at Creech Air Force Base September 1, 2021 in Indian Springs, Nevada. (© Tsgt. Emerson Nunez/​Us Air/​ Planet Pix via zuma Press Wire) This book is based on a dissertation submitted to the Faculty of Law of the Justus-Liebig University Gießen for the fulfilment of a doctoral degree. The Library of Congress Cataloging-​in-​Publication Data is available online at https://​cata​log.loc.gov lc record available at https://​lccn.loc.gov/2022062069​

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/​brill-​typeface. issn 1389-​6 776 isbn 978-​9 0-​0 4-​5 2430-​9 (hardback) isbn 978-​9 0-​0 4-​5 2431-​6 (e-​book) Copyright 2023 by Barry de Vries. Published by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Nijhoff, Brill Hotei, Brill Schöningh, Brill Fink, Brill mentis, Vandenhoeck & Ruprecht, Böhlau, V&R unipress and Wageningen Academic. Koninklijke Brill nv reserves the right to protect this publication against unauthorized use. Requests for re-​use and/​or translations must be addressed to Koninklijke Brill nv via brill.com or copyright.com. This book is printed on acid-​free paper and produced in a sustainable manner.

Contents 1  Introduction 1 1  Ban the Bot? 1 2  Historical Visions of Autonomy 3 3  Responsibility for Autonomous Weapon Systems 9 Development of Autonomy in Weapon Systems 12 2  1  The History of Automation in Weapon Systems 12 2  Weapon Systems Currently in Use 15 2.1  Mines 15 2.2  Missile Defence Systems 16 2.3  Unmanned Aerial Vehicles 17 2.4  Unmanned Ground Vehicles 19 2.5  Cyber Weapons 20 2.6  Loitering Munitions 20 3  Likely Future Developments 22 4  Reasons for the March towards Autonomy 26 5  Programming 28 5.1  Machine Learning 29 5.2  Artificial Intelligence 31 5.3  ‘Strong’ ai 31 5.4  Ethical Governor 33 5.5  Bounded Morality 34 Meaning of Autonomy 35 3  1  General Notions of Autonomy 36 1.1  Autonomy in Philosophy 37 1.2  Autonomy in Technical Discussions 38 2  Autonomy Spectra 40 3  Dimensions of Autonomy in Autonomous Systems 41 3.1  Human-​Machine Relation 42 3.2  Sophistication of the Machine 45 3.3  The Type of Decision Being Automated 49 4  Conclusion 50

vi Contents 4  The Why of International Criminal Justice 52 1  The History of Individual Criminal Accountability in International Criminal Justice 53 2  The Proposed Reasons for International Criminal Justice 60 2.1  Retribution 60 2.2  Deterrence 61 2.3  Truth-​Telling 63 2.4  Providing Justice for Victims 64 2.5  Facilitation of Peace 64 2.6  The Expressive Effect of International Criminal Justice 65 3  Conclusion 68 aws Considered as Prohibited Weapons 70 5  1  Introduction 70 2  Weapons Law under International Humanitarian Law 74 2.1  Superfluous Injury or Unnecessary Suffering 76 2.1.1  Introduction 76 2.1.2  History 77 2.1.3  What Is the Correct English Wording? 79 2.1.4  What Suffering Is Superfluous or What Injury Is Unnecessary? 83 2.1.5  Conclusion 88 2.2  Inherently Indiscriminate 89 2.2.1  Introduction 89 2.2.2  Which Cannot Be Directed 91 2.2.3  Effects that Cannot Be Limited 93 2.2.4  Conflation between the Law of Targeting and Weapons Law 94 2.3  Conclusion 96 3  Employing Prohibited Weapons under International Criminal Law 98 3.1  Introduction 98 3.2  A Nature to Cause 102 3.3  Inherently Indiscriminate 103 3.4  Annex 103 3.5  Comprehensive Prohibition 106 3.6  Nullum Crimen 108 3.7  Non-​international Armed Conflicts 112 3.8  Amendment Procedure 121 4  Application to Autonomous Weapons Systems 123 4.1  Introduction 123

Contents



vii

4.2  Are aws of a Nature to Cause Superfluous Injury or Unnecessary Suffering? 124 4.3  Are aws Inherently Indiscriminate? 125 4.4  What Future Could There Be for aws under Art. 8(2)(b)(xx) icc Statute? 128 5  Conclusion 129 aws Considered as Responsible Actors 132 6  1  Introduction 132 2  General Actus Reus and Mens Rea 134 2.1  Actus Reus 134 2.2  Mens Rea 135 3  Actus Reus and Mens Rea in International Criminal Law 137 3.1 Actus Reus within International Criminal Law 137 3.2  Interpretation of Mens Rea within International Criminal Law 138 4  aws and Mens Rea 145 5  Conclusion 150 Commission 152 7  1  Introduction 152 2  Theories of Perpetration 153 3  Individual Perpetration 162 4  Co-​perpetration 164 5  Indirect Perpetration 168 5.1  General Indirect Perpetration 168 5.2  Organisationsherrschaft 172 5.2.1  History of Organisationsherrschaft 172 5.2.2  Incorporation of Organisationsherrschaft by the icc 177 5.2.3  The Interpretation of Organisationsherrschaft by the icc 179 5.3  Conclusion on Indirect Perpetration 184 6  Indirect Co-​perpetration 184 7  Commission through aws? 186 7.1  Direct Human Involvement 187 7.2  No Direct Human Involvement 189 7.2.1  Direct Perpetration 189 7.2.2  Joint Perpetration 190 7.2.3  Indirect Perpetration 191 8  Conclusion 192

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viii Contents 8  Superior Responsibility 194 1  Introduction 194 2  Early History 196 3  Post-​World War ii Jurisprudence 199 3.1  Yamashita 200 3.2  International Military Tribunal for the Far East 203 3.3  Western Prosecutions after World War ii 206 4  Additional Protocol i 210 5  The Ad Hoc Tribunals 214 5.1  The icty and ictr Statutes 214 5.2  Superior Responsibility in the Jurisprudence of the icty and the ictr 216 5.2.1  The Existence of a Superior-​Subordinate Relationship 218 5.2.2  Knew or Had Reason to Know 222 5.2.3  Failure to Take Necessary and Reasonable Measures 225 5.2.4  Superior Responsibility of Civilians 228 5.3  The Nature of Superior Responsibility at the Ad Hoc Tribunals 230 5.4  Closing Remarks 232 6  i cc Statute 233 6.1  Causality 234 6.2  Military Commanders 237 6.3  Civilian Superiors 240 6.4  Nature of Superior Responsibility under Article 28 icc Statute 242 7  Applicability of Superior Responsibility to aws 243 8  Conclusion 248 Conclusion 249 9  1  Conclusion 249 2  Ban the Bot? 254  Treaties, Conventions & Domestic Legislation 259  Jurisprudence 261  Bibliography 267  Index 291

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Introduction The speed with which technologies are developing seems to have increased, especially over the last 200 years, with great steps being made in progressively shorter periods. This has become extremely clear since the industrial revolution, after which technological innovations appear to be being made at an accelerating pace. Within the last half of the 20th century perhaps the biggest example of this has been the invention of computers, their mass adoption and their steadily increasing computational power. The capabilities of computers continue to increase and with this comes the increasing potential to develop some form of artificial intelligence. The discussion concerning a potential singularity, where computers will become as or more intelligent than human beings has taken on a much more realistic tone as this appears to be coming closer and closer to reality. With the increase of computational power and intelligence, more and more tasks are being left to artificial systems to either perform themselves or perform under the supervision of human beings. This development can be found in most areas of life and includes examples as varied as the employment of surgical machines, which allow human surgeons to be much more precise, or the continued development of a driverless car, where the car acts on the basis of computational programs and can reach a destination safely without human input. This continued progression is likely to continue as computational power increases and will play a significant role in many different areas of life. Military affairs are not an exception to this development, increased computational power and the use of technology has already led to many innovations within military practice and one of the likely future military innovations coming from this is the creation of forms of artificial intelligence or systems that can operate without direct human influence. 1

Ban the Bot?

The likely development of such systems has led to continued discussions on the issue of potential autonomous weapons over the last years. There have been consistent calls for a ban on the development of autonomous weapon systems by NGOs, academic, peace organisations and public figures. These calls put forth a list of potential arguments to attempt to persuade states and, perhaps

© Barry de Vries, 2023 | DOI:10.1163/9789004524316_002

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Chapter 1

as much or even more, public opinion to call for a ban to develop such systems. Many of these arguments contain legal, moral and ethical questions arising from the creation of autonomous systems, especially with regard to the use of force against humans. The moral and philosophical questions are important, but beyond the scope of this book as this is restricted to the legal question of individual criminal responsibility from a legal perspective. The calls for a ban on autonomous weapon systems often employ legal verbiage to support the creation of a legally binding ban, highlighting the importance of assessing the issue from a legal perspective. Several of the arguments brought forth in favour of a ban on aws have already been covered extensively,1 however one of the main questions that remains is whether any individual could be held criminally accountable for the actions of an aws. While the non-​existence of individual criminal responsibility would not in itself lead to an automatic prohibition on aws, it has been used as an important argument in favour of developing a ban. This has been based on the assumption that a lack of criminal responsibility would prevent victims from pursuing an effective remedy as well as going against the underlying goals of criminal law. This argument has often been coated in the terms and approach of international criminal law and it is therefore important to look at this issue from this perspective. This is why in this book I will consider the question of whether it is possible on the basis of current international criminal law to hold an individual criminally responsible with regard to the actions of an aws.

1 Such as the question of whether or not an autonomous system could act in accordance with international humanitarian law, especially whether it could distinguish between civilians and combatants and whether it could make the judgment call concerning proportionality, see for example: Armin Krishnan, Killer Robots: Legality and Ethicality of Autonomous Weapons (Ashgate 2009); Philip Alston, ‘Lethal Robotics Technologies: The Implications for Human Rights and International Humanitarian Law’ (2012) Journal of Law Information and Science Special Edition: The Law of Unmanned Vehicles 35; Bonnie Docherty, ‘Losing Humanity: The Case Against Killer Robots’ Human Rights Watch 2012; Markus Wagner, ‘The Dehumanization of International Humanitarian Law: Legal, Ethical, and Political Implications of Autonomous Weapon Systems’ (2014) 47 Vanderbilt Journal of Transnational Law 1371; Marco Sassóli, ‘Autonomous Weapons and International Humanitarian Law: Advantages, Open Technical Questions and Legal Issues to be Clarified’ (2014) 90 International Law Studies/​Naval War College 308; Rebecca Crootof, ‘The Killer Robots Are Here: Legal and Policy Implications’ (2015) 36 Cardozo Law Review 1837; Tetyana Krupiy, ‘Of Souls, Spirits And Ghosts: Transposing the Application of the Rules of Targeting to Lethal Autonomous Robots’ (2015) 16 Melbourne Journal of International Law 145.

Introduction

2

3

Historical Visions of Autonomy

Much of the public perception of autonomous systems seems to have been influenced by the use of autonomous systems as a story device in science fiction stories. The perception that terms such as ‘killer robots’ create, namely the image of out-​of-​control, murderous artificial intelligence, can certainly be seen to have its origin within much of the science fiction literature of the 20th century, especially notable authors such as Isaac Asimov, Philip K. Dick and Harlan Ellison. Many of the fears that are being invoked by the idea of autonomous weapon systems have been informed by these well-​known science fiction portrayals. Within the media it is not uncommon for the term ‘killer robots’ to be used when discussing autonomous weapons systems,2 which evokes images of remorseless, unfeeling, killing machines, as seen in films such as The Terminator. Similarly, the idea of artificial intelligence often makes people have visions of computers taking over the world and destroying humanity, as can be seen in multiple examples in science fiction, from the psychotic am in Harlan Ellison’s I have no mouth but I must scream to the intelligent machines enslaving humans to act as power sources in The Matrix films. Although this debate has come up in recent years, the idea of autonomous systems is not anything new, even the idea of autonomous weapons systems is not entirely new; it has existed within myths and science fiction for a long time. The new development that has led to the urgency of this debate is the potential that such a system can actually be developed and deployed within the foreseeable future. The fact that this debate in itself is not entirely new can be seen by the use of the term ‘killer robots’ and even though most organisations have opted against its use, the term ‘robot’ is often still a central focus point in the discussions. The use of this term itself is already evidence of the longer discussion about autonomous systems as this term was first used in the 1920s by the Czech writer Josef Čapek and used by his brother in the play r.u.r.: Rossum’s Universal Robot. The word ‘robot’ finds its origin in the Czech word for forced labour and was created for its thematic meaning within the story.3 Čapek’s play describes humanoid artificial beings that start out by doing the work within a factory complex but throughout the story develop further, first they are used as soldiers within a conflict between humans and subsequently with them using the skills that they have learned to rebel against their human masters. One of 2 This has been aggravated by the fact that Human Rights Watch, a vocal opponent of autonomous weapon systems used this term to discuss the issue (Docherty n 1). 3 Daniel Dinello, Technophobia!: Science Fiction Visions of Posthuman Technology (University of Texas Press 2005) 47.

4

Chapter 1

the most recurring fears invoked by the image of robots can already be seen here in the first use of the word, the rebelling of the creation against the creator and the subsequent killing of the creator. This can be seen as an almost inherent fear that exists in humanity that scientific invention and progress will turn out to be the undoing of humanity. This fear certainly is not only felt in the context of autonomy and artificial intelligence, it arises with respect to nearly every new technological development, but it is perhaps most often portrayed within the context of artificial intelligence. This can be seen in many modern science fiction stories, such as 2001: A Space Odyssey,4 Blade Runner, The Terminator, I have no mouth but I must scream, and The Matrix. While these and many other stories have divergent underlying themes and political statements, which the autonomous systems represent, and the issues these stories seek to address are generally not the artificial intelligence itself, it is the vivid imagery of rebellious or murderous artificial intelligence that has created images within the mind of the general population. The imagery of these stories could be said to perhaps have developed the fear for artificial intelligence, but what is more likely is that these stories speak to the inherent fear of humanity towards new technologies and especially to the idea that technology could overtake humanity and render it obsolete. It is therefore likely that some of this imagery in the discussion of autonomous weapon systems or the focus of the media on this aspect is not even conscious, but rather a manifestation of this already existing fear. R.U.R.: Rossum’s Universal Robot also had other aspects that would later become tropes of many science fiction stories, especially with regard to how it shows the potential for growth of autonomous systems. Throughout the play these systems become increasingly human and in the end there is the revelation that these ‘robots’ can love one another and could be said to be truly alive.5 As this shows, the inception of the term ‘robots’ already included many of the fears as well as hopes with respect to autonomous systems that are still part of current literature and film as well as the debate about the development of autonomous systems. The first use of the term ‘robots’ was, however, not the first instance of themes of artificial autonomous systems being included in stories; such

4 Although it becomes clear, especially in its sequel 2010: The Year We Made Contact that hal did not malfunction and rather followed its programming exactly. 5 r.u.r.: Rossum’s Universal Robots; Kamila Kinyon ‘The phenomenology of Robots: Confrontations with death in Karel Capek’s R.U.R’. in: Arthur Evans (ed.) Vintage Visions: Essays on Early Science Fiction (Wesleyan University Press 2014) from 240; Minsoo Kang, Sublime dreams of living machines: the automaton in the European imagination (Harvard University Press 2011) 279–​282.

Introduction

5

themes have been present throughout many myths and legends stretching out throughout the years.6 One of the earliest examples of an automated or autonomous weapon can be found in the myth of Talos, the bronze automaton made by Hephaestus. This entity was made to move and fights on its own and was specifically described as a technological marvel.7 Talos was instructed to patrol the island of Crete and throw boulders to sink foreign ships but did not receive any further or specific instructions. In some of the retellings of this myth. Talos was more advanced than just following these instructions and was imbued with humanlike emotions as well as some form of intelligence.8 Talos is perhaps the most well-​known of Hephaestus’ creations, especially amongst those creations that could be considered to be somewhat sentient. However, within the Iliad there is another instance of a creation imbued with sentience. Homer describes the forge of Hephaestus and mentions service girls made of gold, which are described as having been imparted with some form of consciousness and the potential for learning. Although in the case of both Talos and the service girls it is unclear how these entities function, they do provide a certain idea of and dream for artificial life, for the creation of automatons capable of human intelligence that has existed for millennia.9 Although the myths concerning Hephaestus provide some glimpses into ancient perceptions, what perhaps speaks more to the imagination about autonomous systems are the moving statues of Daedalus. These are in some sense precursors of the current concept of artificial life having its own will and being outside of the control of the human creator. The moving statues appear to be clearly linked to animals or perhaps even human slaves in that they had an inherent, supposed yearning for freedom, which was presented by the fact that unless they were physically restrained from escaping they would constantly attempt to gain their freedom.10 This can be seen as an indication that there was a specific independent will within these status and the idea of artificial beings yearning to be free, although probably an allegory for slavery, 6

7 8 9 10

It has been argued that in some regards the interpretations of these myths and legends that view these as potential depictions of artificial intelligence or automatons are only viewed this way because of current technology and discussion and should not be viewed in this manner. Kang (n 5) 14–​15, 20. Mayor, however, argues that while they were perhaps not literal prototypes, but rather that it is possible that ancient people did imagine such concepts, that there was the idea that it might one day be possible to create such systems, Adrienne Mayor, Gods and Robots (Princeton University Press 2018) 95–​96. Mayor (n 6) 7–​9. Mayor (n 6) 11–​19. Mayor (n 6) 149–​150. Kang (n 5) 20.

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can still be seen in much of the current-​day depictions of automatons, robots or artificial intelligence in the idea that granting something sentience will lead it to go beyond the control of its creator.11 The concept of artificial life and autonomous devices was not only brought up in myths but was also discussed within the concept of philosophy. Aristotle mused upon the idea of a machine that could function as a slave and ‘could accomplish its own work, obeying or anticipating the will of others’.12 He referred back to myths as examples, which can therefore be taken as the origin of his thought.13 He thought more of limited machines, in line with how much of production is automated now, but especially the concept of anticipating the will can be taken as the existence of an underlying idea of something autonomous or capable of some form of learning. Many of these concepts seem to have arisen at a time when there was a fascination with automatons and artificial imitations of living animals, which certainly will have influenced the perceptions of people at the time. Comparable lore can be found within myths of other civilizations, such as within ancient Chinese or Indian mythology.14 Within these concepts there is the recurring question of what it means to have free will and what autonomy is. The question of how to define autonomy is still a central question in the current debates. Another recurring point in the current debate is how does mankind ensure retention of control over autonomous systems and how can it be ensured that these systems would function within existing rules. A central discussion point is how, and perhaps more accurately whether, moral values can be programmed: can human emotions such as compassion and empathy be implanted within autonomous systems? This in itself is also not an entirely new concept and has been seen in science fiction for a long time. While not necessarily considering a mechanized device, a parallel can be drawn to the character of the Iron Knight in the poem The Faerie Queene. The Iron Knight was instructed to deliver justice but was not imbued with compassion or empathy and therefore followed an inflexible idea of justice leading it to kill without any mercy.15 This theme can be seen in many other stories as well, perhaps not always discussing technological developments or mechanical systems, but the underlying theme is still present of a lack of control and potential unforeseen violence from an autonomous entity. While mechanical systems became more 11 Kang (n 5) 21. 12 Aristotle, Politics (translated by Benjamin Jowett) (Infomotions, Inc 2000) 4; Kang (n 5) 17. 13 Aristotle (n 12) 4. 14 Mayor (n 6) 2. 15 Mayor (n 6) 29–​30; Kang (n 5) 65.

Introduction

7

represented in the fiction of the late 19th century, perhaps the most important piece of literature that deals with this theme did not deal with a mechanical system but with a reanimated human body, a technological development nonetheless, namely Frankenstein. This classic book by Mary Shelley was written in the early 19th century and is often perceived as the first real science fiction story and has played a significant role in the perception of technology in Western culture, with it being the archetypical instance of a creation turning against its creator.16 The first instance in literature where a mechanical autonomous system intentionally killed someone can be found in the 1893 story of Ambrose Bierce Moxon’s Master. This story, like the ancient Greek myths, found its inspiration in the popular automatons of its time, in this case it concerned Kempelen’s famous chess-​playing ‘automaton’, the ‘Mechanical Turk’. The story therefore concerned a mechanical chess-​player that kills its inventor after the machine is beaten in a game of chess. This shows that the fear of a ‘robot’ getting out of control was present even before the word ‘robot’ was invented and that this idea has shaped our perception significantly. But the possibility of autonomous or automated systems has not solely been the object of fear or horror, they have at times been looked at with fondness, being considered as the epitome of rationality and detachment from emotions. This was especially the case during the Enlightenment. However, especially over the last 200 years this potential of autonomy and automations has generally been regarded with significant scepticism. It might be easy to point towards the industrial revolution for this development, but this would appear to be an incomplete assumption, both due to the timing of these stories, as well as the nature of the mechanics within them.17 The horror in initial stories seems to have come from the uncanny and the potential supernatural nature of such a system, with the really sinister persons being the ones who create them.18 But although there were some instances in which mechanical machines were mentioned in literature, the real turning point towards feelings of horror about mechanical machines came with the advent of the industrial revolution, where an idea that machines would ultimately rule over man came into existence. It was also here the amount of literature that dealt with the potential of mechanical systems taking on the characteristics of living creatures, specifically human characteristics, became more common.19 Some of 16 17 18 19

Dinello (n 3) 41–​43. Kang (n 5) 198–​200. Kang (n 5) 207–​217. Kang (n 5) 223–​226.

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Chapter 1

the earliest films already included the idea of artificial mechanical men that were originally in servitude getting out of control and becoming threats for humans.20 However, it was still not too common for something autonomous to be truly displayed as such and even if it was this was often presented more in the fantastical manner. World War I was the initiation of a significant change in this regard, where the destructive and dehumanizing aspects of modern technology became more of a focus within fiction. It is here that the idea of a revolt of machines and these machines as being irrational or even mad became a more common portrayal.21 The clear destructive nature of modern technology had been seen within the brutal as well as mechanical nature of the fighting in World War i, this was combined with the increased exploitation and dehumanization of the worker as nothing more than a tool in an assembly line.22 There have been attempts in literature to create a potential for control of autonomous systems, the most well-​known of these being the ‘three laws of robotics’ by Isaac Asimov. In his work he developed three laws that would be programmed within robots which would allow them to be controlled and ensure that they would not become harmful to humanity. The laws he proposed were:

–​ A robot may not injure a human being or, through inaction, allow a human being to come to harm. –​ A robot must obey the orders given it by human beings except where such orders would conflict with the First Law. –​ A robot must protect its own existence as long as such protection does not conflict with the First or Second Laws.23

These laws are still hugely influential in modern debates about autonomous systems and in part have formed the basis for approaches taken to ensure that autonomous systems could not cause harm. However, even with such laws there can be the possibility of things going wrong, which can be exemplified by the 1948 novel by Jack Williamson ‘The Humanoids’, where robots do follow the first law, namely ‘to serve and obey and guard men from harm’ but in name of this law imprison all humans and take control of the entire civilization.24

20 21 22 23 24

Dinello (n 3) 48. Kang (n 5) 267–​268. Dinello (n 3) 10; Kang (n 5) 267–​270. Isaac Asimov, ‘Runaround’ (1942) March Astounding Science Fiction. Dinello (n 3) 68–​70.

Introduction

9

It is also immediately clear that what is attempted to be developed with aws would invalidate the first law, making this not a suitable approach for aws. 3

Responsibility for Autonomous Weapon Systems

As these examples show many of the discussion points within the current debate on aws have been explored before in myths, science fiction as well as philosophy and it is from these sources that perceptions of autonomous systems are drawn, and which therefore inform the arguments. It is, however, extremely questionable whether these speculative ideas will in any way resemble reality and while we may draw upon these explorations for initial impressions it is necessary to focus on the practical realities and the likely manner in which such systems could develop. There are, however, also aspects of aws that have not been the subject of widespread speculation in fiction, one of these is the potential for individual responsibility for the actions of autonomous systems. This is a significant issue within the current debate and the only manner in which this has truly been explored in literature and film has focused on the potential responsibility of these systems themselves. This exploration appears to be of only limited interest for the current debate and it must therefore be considered from a purely legalistic perspective rather than through the lens of speculative fiction. Much of the discussion on the accountability of autonomous systems and especially lethal autonomous weapon systems, has logically focused on the context of international criminal law, as this is the field of law that seeks to address potential war crimes through individual responsibility. However, the development of artificial intelligence has also led to similar discussions in different fields of law, at this moment this is especially the case with regard to self-​driving cars and domestic criminal law as well as civil liability. The discussion of individual responsibility is very pressing due to the apparent potential that this technology will be adopted in the foreseeable future, with several of these systems being tested within real-​world situations and prototypes being developed, with ideas already for mass adoption. This book will therefore explore the issue of individual criminal responsibility for aws. It will do so by setting out the concept of aws in the first part of the text. This will start with Chapter 2 where I will describe the development within military technology towards including more autonomy within weapons systems and the manners in which continued autonomy has been foreseen to be developed. With this in mind the next chapter will discuss what autonomy is and where the boundaries are between remote-​controlled, automated and

10 

Chapter 1

autonomous, and where autonomy could potentially become problematic or at least potentially call for further regulation. The fourth chapter discusses the importance of international criminal justice and why it is important to hold individuals accountable when international crimes are committed. This will show the importance of the question of accountability for the actions of autonomous weapon systems and will provide a general framework upon which the application of the different modes of responsibility to the issue of autonomous weapons systems needs to be considered. I will then start with the discussion of different potential approaches to hold individuals accountable for the actions of aws. In Chapter 5 I will determine whether the deployment itself can be considered as a potential international crime, specifically the crime of deploying prohibited weapons. I will discuss the provisions on prohibited weapons within the icc Statute, how these came to be and how they should be interpreted. This will then allow me to determine whether it is possible for aws to fall within the provisions on prohibited weapons within the icc Statute as well as the likelihood of these weapons to be included within these provisions either by interpretation of the current provision or through the development of an amendment to the icc Statute specifically addressing the issue of aws. The next potential approach that will be discussed concerns the question of whether or not the aws itself could be considered to be accountable. This will deal with the issue of whether an aws, especially a potentially intelligent one, could be able to fulfil the requirements necessary for criminal accountability. This will most notably consider whether or not it is possible for an aws to fulfil both the objective as well as the subjective elements of a crime. It will then discuss the issue of accountability of the aws itself in light of the objectives of criminal accountability in order to determine whether such an approach would even be appropriate when considering the stated objectives of international criminal law. The third part of the book will focus on different modes of responsibility that could potentially be used to determine whether an individual can be held accountable for the actions of an aws when these result in the commission of an international crime. Chapter 7 will focus in this regard on the concept of commission. This chapter will discuss the concept of commission as it is used within international criminal law and especially the manner in which it is interpreted within the icc, therefore including all concepts of commission, meaning direct, joint as well as indirect commission, including Organisationsherrschaft. It will thereby be able to answer the question whether

Introduction

11

an individual can be considered as a perpetrator even in those cases where the act itself is carried out by an aws, rather than the person themselves. In Chapter 8 I will discuss the concept of superior responsibility. I will explore how this concept was developed and how it should be interpreted and applied within the context of the icc Statute. On this basis it can then be determined whether it is possible to apply this concept to the relation between an aws and an individual. Due to the nature of superior responsibility it will consider this from both a military as well as a civilian context, meaning that it will also consider the potential of applying this form of accountability to civilian programmers. On the basis of the answers that are provided within the discussed chapters I will then be able to answer the question whether international criminal law as employed by the icc provides an opportunity to hold an individual accountable for aws as well as discuss the implications that this answer will have. This is especially prudent in light of the fact that a lack of individual criminal responsibility for the actions of aws is one of the arguments used in favour of a ban on aws.

­c hapter 2

Development of Autonomy in Weapon Systems The science fiction classic Terminator 2: Judgment Day paints a future in which an artificial intelligence is put in control of the US military, it becomes self-​ aware in 1997 and thereby truly autonomous, the creators of the system try to make the system inoperable but are too late. This results in the autonomous artificial intelligence using the military systems the humans put it in control over, to take over the world.1 Although the future envisioned in the film did not come to be in 1997, certain of the fears that are displayed in this film have however come up again. With the creation of more advanced weapons systems and the possibility of autonomous weapons, many fear a future which might have self-​aware robots like the Terminator fighting wars. The perceptions of what this might look like makes it important to see what systems exist today and how these might develop in the future and whether the fears of something similar to Terminators existing sometime in the near future are realistic. This chapter will lay out the history and the development towards more autonomy within weapon systems and will discuss certain systems which are currently in use, as well as discuss different ways in which these systems might develop. I will not discuss to what extend these weapons would or would not be considered as truly being autonomous weapons according to different proposed definitions, since, as will be discussed in the next chapter, the exact definition of autonomy is still quite contentious. 1

The History of Automation in Weapon Systems

While the debate about aws is quite recent and truly autonomous weapon systems are, according to most, not yet in use and might be quite a distance away, the gradual shift towards less direct human involvement within weapon systems does have significant history. The first steps towards this goal were taken in the late 19th century when Nikola Tesla created the first prototype of a boat which was remotely controlled by radio.2 Since he created a system that was capable of carrying ordinance, he

1 Terminator 2: Judgment Day, James Cameron, 1991. 2 Peter Singer, Wired for War (Penguin Books 2009) 46.

© Barry de Vries, 2023 | DOI:10.1163/9789004524316_003

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attempted to garner enthusiasm for it within the US Department of Defence. At the time there was little interest in the development of radio-​controlled systems from the military and as such he was unsuccessful, and it was never put into use.3 It was not until the First World War that the first radio-​controlled weapon systems were created and put into use by the military. Examples of these could be seen in the remote-​controlled torpedoes that the Germans experimented with, the remote controlled aircraft created by the British, which was used in a method similar to a primitive cruise missile and the Kettering bug, an aerial torpedo, developed by the US.4 During the interbellum there was some development of unmanned aircrafts, but these were mainly used for target practice and were not intended for use in combat.5 There was a significant development in remote-​controlled systems during the Second World War, with both the Germans and the Japanese developing remote-​controlled tracked vehicles and the Japanese even developing two prototype remote-​controlled tanks,6 while the US used a radio-​controlled bomber aircraft filled with explosives.7 The Cold War saw the adoption of several different technologies and the development different types of remote-​controlled systems, some of which are still in use, overall the funding for the research into these systems was significant, especially in the context of unmanned aerial vehicles.8 Although new systems, similar to the unmanned aerial vehicles of today (uav s or more commonly revered to as drones), were deployed in combat operations in the 1980s, these systems were mainly used for gathering intelligence or used as decoys.9 Another area which saw significant developments during this time was precision munitions and so-​called ‘smart’ weapons. Within these weapons, which were mainly guided missiles and guided bombs, the guidance toward 3 Krishnan A, Killer Robots: Legality and Ethicality of Autonomous Weapons (Ashgate 2009) 15; Singer (n 2) 47; Markus Wagner, ‘Autonomy in the Battlespace: Independently Operating Weapon Systems and the Law of Armed Conflict’ in Dan Saxon (ed.) International Humanitarian Law and the Changing Technology of War (Koninklijke Brill nv 2012) 100; Markus Wagner, ‘The Dehumanization of International humanitarian law: Legal, Ethical, and Political Implications of Autonomous Weapon Systems’ (2014) 47 Vanderbilt Journal of Transnational Law 1371, 1375. 4 Krishnan (n 3) 15–​16. 5 Ibid. 16. 6 Ibid. 16–​17; Philip Alston, ‘Lethal Robotics Technologies: The Implications for Human Rights and International humanitarian law’, (2012) J L Inf & Sci Special Edition: The Law of Unmanned Vehicles 35, 39. 7 Alston (n 6) 39. 8 Ibid. 9 Wagner (n 3) 1376.

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the target became automated. This development started with the creation of laser-​guided bombs.10 While these systems originally needed the intended target to be continually painted by a laser, later models had memory capabilities, this made it possible for the bomb to automatically stay on target without the need for continued contact of the laser.11 Another development during this period was the creation of ‘fire-​and-​ ­forget’ weapon systems that, once they are launched, no longer required any act of the operator. After launch the guidance systems within the weapon system would take control, making the weapon pursue the intended target independently. While the first generations of these weapons, which included such systems as the Shrike anti-​radiation missile and the Styx anti-​ship missile, were not very successful, these types of systems developed significantly over time.12 A well-​known example of a more advanced ‘fire-​and-​forget’ weapon system is the cruise missile, which can fly independently to the target on the basis of either pre-​set coordinates or recognition software. However, cruise missiles still require that the target has previously been decided and the terrain over which it will fly has previously been mapped out or photographed.13 Some of the most important developments during the Cold War took place in the 1980s where a range of new automated systems were developed and deployed. The most notable of these were several different types of automated air defence systems such as the Phalanx, Aegis and Patriot, many of which are still in use today.14 These systems will be discussed in more detail later in this chapter. As the Cold War came to a close the funding for military research projects diminished significantly due to decreasing military budgets, which came about because of the relative peacefulness of the 1990s.15 The only significant development in the 1990s was the increase in the use of tele-​operated uav s for surveillance.16 The real watershed moment for unmanned systems came during the war on terror after 9/​11, when the research and procurement of unmanned systems

10 11 12 13 14 15 16

Krishnan (n 3) 20. Singer (n 2) 57. Krishnan (n 3) 20. Singer (n 2) 57. Krishnan (n 3) 24, Docherty B, ‘Losing Humanity: The Case Against Killer Robots’ Human Rights Watch 2012, 9. Hin-​Yan Liu, ‘Categorization and legality of autonomous and remote weapons systems’ (2012) 94(886) International Review of the Red Cross 627, 632. Krishnan (n 3) 26–​27; Wagner (n 3) 101; Wagner (n 1) 1377.

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increased significantly.17 It was after this moment that drones became weaponized and their use in combat operations has since increased steadily and significantly.18 Drones were not the only form of robotics that saw their first significant use during the wars in Iraq and Afghanistan, as a large amount of unmanned ground vehicles (ugv) were used as well. These ugv s were originally mainly deployed to detect and dispose of ied s (improvised explosive device).19 The deployment of robotics was due to several different factors, amongst them most importantly the greater computational power, which made them more viable, and the realities of these conflicts, which made them more necessary. These systems were still remote-​controlled, with the drive towards real autonomy only really starting to take place in the last 10 years.20 This again has come about due to greater computational power combined with other technological developments21 as well as an increase in research funding, both from military and civilian sources, into projects granting systems greater autonomy. 2

Weapon Systems Currently in Use

There are quite a few current systems that can be seen as being part of the drive towards more autonomy and some of these could, according to some groups, even be seen as already being partially autonomous. It is therefore useful to review the types of weapon systems that are currently in use that include an aspect of automation or autonomy and how these systems operate. 2.1 Mines Mines could be seen as being the simplest and probably oldest form of automated weapon systems. Like more sophisticated systems, mines react to external signals and, as anti-​tank mines show, are able to limit their reaction to only specific signals.22 However, mines are generally not seen as comparable to the other types of systems within the discussion about automated or autonomous 17 18 19 20 21 22

Singer (n 2) 61; Alston (n 6) 39. Krishnan (n 3) 27, Wagner (n 3) 1377. Wagner (n 3) 103. I will not pinpoint an exact date at this time, due to the fact that there is still discussion as to what should be considered as being an aws. Liu (n 15) 632. Alan Backstrom & Ian Henderson, ‘New capabilities in warfare: an overview of contemporary technological developments and the associated legal an engineering issues in Article 36 weapons reviews’ (2012) 94(886) International Review of the Red Cross 483,

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systems.23 This is because their ability to process information is very limited, only capable of reacting to the triggering of a switch, these systems are therefore too simple and predictable to really fall within the discussion and are normally considered to be automatic.24 Encapsulated torpedo mines, such as the mk60 Encapsulated Torpedo (acptor), are not like regular mines, these do not explode when triggered, but instead release a torpedo which will track the target. Encapsulated Torpedo mines are capable of detecting, identifying and firing at enemy vessels independently.25 They do this by responding automatically to acoustic, electromagnetic or pressure signatures which indicate enemy vessels in the vicinity.26 While the US no longer has such systems in use, Russia and China do still have similar systems in use.27 2.2 Missile Defence Systems One of the oldest type of systems that needs to be discussed are human-​ supervised defensive systems such as the Aegis, Phalanx and Counter Rocket, Artillery and Mortar System (c-​r am). Some of these systems were first developed in the 1970s and are still in use today. These or other similar systems are currently used by a significant number of states.28 These are radar-​guided guns originally designed as defence against anti-​ship missiles, some of the more modern systems are also capable of offering defence against small gunboats, artillery and helicopters.29 The Aegis and Phalanx automatically track 490; John Lewis, ‘The Case for Regulating Fully Autonomous Weapons’ (2015) 124(4) Yale Law Journal 1309, 1319–​1320. 23 Krishnan (n 3) 33. 24 Patrick Lin, George Bekey & Keith Abney, ‘Autonomous Military Robotics: Risk, Ethics, and Design’ Report for the Department of the Navy, Office of Naval Research 2008, 18; Paul Scharre & Michael Horowitz, ‘An Introduction to Autonomy in Weapon Systems’ Center for New American Security 2015, 14. 25 Jack M Beard, ‘Autonomous Weapons and Human Responsibilities’ (2014) 45 Georgetown Journal of International Law 617, 619; Tetyana Krupiy, ‘Of Souls, Spirits And Ghosts: Transposing the Application of the Rules of Targeting to Lethal Autonomous Robots’ (2015) 16 Melbourne Journal of International Law 145, 152. 26 Krupiy (n 25) 152; unidir, The Weaponization of Increasingly Autonomous Technologies in the Maritime Environment: Testing the Waters, unidir Resources no. 4, 2015, 4; Jeffrey Thurnher, ‘Means and Methods of the Future: Autonomous Systems’ in Paul Ducheine et al. (eds.) Targeting: The Challenges of Modern Warfare (t.m.c. Asser Press 2016) 182. 27 Scharre & Horowitz (n 24) 15; Rebecca Crootof, ‘The Killer Robots Are Here: Legal and Policy Implications’ (2015) 36 Cardozo Law Review 1837, 1840. 28 Docherty (n 14) 10; Crootof (n 27) 1870; Paul Scharre, ‘The Opportunity and Challenge of Autonomous Systems’ in Andrew Williams & Paul Scharre (eds.), Autonomous Systems: Issues for Defence Policymakers (nato Capability Engineering and Innovation Division 2015) 14; Scharre & Horowitz (n 24) 12. 29 Docherty (n 14) 9.

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and shoot down any missiles that have gotten past other defences and are too fast for humans to react to. The c-​r am is a similar type of system mounted onto a flatbed truck for use on land.30 The search, detection and threat evaluation functions within these systems are completely automated.31 Such Close-​in Weapon Systems (CiWS) detect specific signatures which indicate the approach of missiles, artillery and rockets and can react automatically.32 These systems are able to operate in several different modes, ranging from complete human control over the decision to fire, to the so-​called ‘casualty’ mode in which the system itself can, once activated, select and engage targets independently, but only within the narrow parameters of its programming.33 In all cases there is the possibility for a human operator to override the system, ensuring the weapon not to fire.34 The well-​known Israeli ‘Iron Dome’ can be seen as a similar type of system.35 The question that has been asked about these systems is whether the high speed of the incoming threats truly allows for an informed decision of the human operator.36 2.3 Unmanned Aerial Vehicles Some of the most significant developments have been made within the area of uav s. While uav s were originally developed and used mainly by the US, many states have since either procured or developed their own uav s. The best-​ known uav s are the Predator and Reaper drones, which have risen to fame, or infamy, since 9/​11. The drones that are currently deployed in conflict situations are still fully tele-​operated.37 However, there are several prototypes of uav s which are capable of certain autonomous functions. For example, the Global Hawk and the x-​47B, both developed by the US, and the British Taranis are 30 31 32 33 34 35 36

37

Singer (n 2) 38; Docherty (n 14) 10; Crootof (n 27) 1859. Tyler Evans, ‘At War with the Robots: Autonomous Weapon Systems and the Martens Clause’ (2014) 41(3) Hofstra Law Review 697, 705. Thurnher (n 26) 182. Krishnan (n 3) 44; Gary Marchant et al., ‘International Governance of Autonomous Military Robots’ (2011) xii The Columbia Science and Technology Review 272, 287; Crootof (n 27) 1870. Singer (n 2) 124; Crootof (n 27) 1858–​1859. Docherty (n 14) 10–​11; Harjeet Singh, ‘Robotics and the Changing Characteristics of Warfare’ (2014) Winter claws Journal 91, 97. Docherty (n 14) 12; Nils Melzer, ‘Human Rights Implications of the Usage of Drones and Unmanned Robots in Warfare’ Directorate-​General for External Policies, European parliament 2013, 12; Beard (n 49) 631; Evans (n 31) 705; Crootof (n 27) 1860; Scharre & Horowitz (n 24) 13. Benjamin Kastan, ‘Autonomous Weapon Systems: A Coming Legal Singularity?’ (2013) 45(1) Journal of Law Technology and Policy 45, 49.

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capable of taking off, landing and flying without operator intervention. None of these prototypes currently have the capability to engage in the use of force themselves.38 These systems are able to navigate independently on the basis of gps or on-​board electronic maps, in situations where there are no gps signals.39 The Taranis would also be able to identify targets but in order to deploy force it still needs to receive permission from a human operator, it is not known whether the Global Hawk and the x-​47B will have similar capabilities.40 It needs to be noted that none of these systems currently appear to be equipped with weapons, but it seems extremely probable that this will be the case in the future.41 The x-​47B is notable because it was the first autonomously navigating drone able to launch and land from an aircraft carrier, one of the most difficult manoeuvres in aviation.42 It is probable that China is also developing similar types of technology, due to the showing of the Anjian drone, however it is unclear how many autonomous functions this system will have.43 Another prototype developed by the US is the gt Max, an unmanned helicopter that can fly on its own, but can also determine for itself how it could best do so and has the ability to handle multiple unexpected challenges.44

38 Singer (n 2) 36; Darren Stewart, ‘New Technology and the Law of Armed Conflict: Technological Meteorites or Legal Dinosaurs?’ (2011) 87 International Law Studies/​U.S. Naval War College 271, 276; Peter Asaro, ‘On banning autonomous weapon systems: human rights, automation and the dehumanization of lethal decision-​making’ (2012) 94(886) International Review of the Red Cross 687, 690; Merel Ekelhof & Miriam Struyk, ‘Deadly Decisions: 8 objections to killer robots’ pax 2014 2; Jason S DeSon, ‘Automating the Right Stuff? The Hidden Ramifications of Ensuring Autonomous Aerial Weapon Systems Comply with International Humanitarian Law’ (2015) 72 The Air Force Law Review 85, 87. 39 Remus Titiriga, ‘Autonomy of Military Robots: Assessing the Technical and Legal (“Jus in Bello”) Thresholds’ (2016) 32(2) The John Marshall Journal of Information Technology and Privacy Law 57, 71. 40 Jeffrey Thurnher, ‘Legal Implications of Fully Autonomous Targeting’ (2012) 67 Joint Forces Quarterly 77, 79; Melzer (n 36) 10; Micheal Schmitt & Jeffrey Thurnher, ‘“Out of the Loop”: Autonomous Weapon Systems and the Law of Armed Conflict’ (2013) 4 Harvard National Security Journal 231, 239; Gwendelynn Bills, ‘LAWS unto Themselves: Controlling the Development and Use of Lethal Autonomous Weapons Systems’ (2014) 83 the George Washington Law Review 176, 182; Titiriga (n 39) 71. 41 Docherty (n 14) 16; Ekelhof & Struyk (n 38) 2. 42 Melzer (n 36) 10. 43 Stewart (n 38) 281. 44 Singer (n 2) 78.

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Unmanned Ground Vehicles 2.4 There are also many robotic systems functioning on the ground, such ugv s are currently completely tele-​operated and used in a wide variety of situation. One of the better known ugv s is the PackBot, which is mostly used to detect and defuse ied s. Special Weapons Observation Reconnaissance Detection System (swords) is one of the few weaponized ugv s, this system is based on the Talon frame, but has the possibility to be mounted with a wide variety of weapons.45 These are only a few examples of the types of regular ugv s which are in use today. While the majority of ugv s are tele-​operated some systems exist that are capable of functioning more independently. The Republic of Korea has deployed the Samsung sgr-​1 within the demilitarized zone, where it performs sentry functions.46 The sgr-​1 is equipped with heat and motion sensors and can use pattern recognition algorithms to detect people within the demilitarized zone. While normally this system alerts operators when it detects intruders, who can then use the sensors of the sgr-​1 to assess the situation and make the decision whether to use sgr-​1’s outfitted machine gun, the sgr-​1 has the capability to fire on its own.47 Israel uses a system named Sentry Tech, which functions in a similar manner as the sgr-​1, it is currently remote-​controlled but has the capability to engage threats independently.48 Israel also deploys a system which is called the Guardium, which is restricted to using force only if the decision to do so is taken by a human, but appears to be capable of using force independently as well, if it is programmed to do so.49 The big difference between the sgr-​1 and the Guardium is that while the sgr-​1 is a stationary system, the Guardium is capable of movement and used for patrol duties along the border between Israel and Gaza.50 The Guardium can patrol a route as programmed but is also able to react to unscheduled events, as long as these fall within the boundaries of a set of guidelines.51 45 46 47

48 49 50 51

Alston (n 6) 42. Alston (n 6) 46; Wendell Wallach & Colin Allen, ‘Framing robot arms control’ (2013) 15 (2) Ethics and Information Technology 125, 128. Alston (n 6) 46; Docherty (n 14) 13–​15; Melzer (n 36) 12–​13; Christopher Toscano, ‘“Friends of Humans”: An Argument for Developing Autonomous Weapons Systems’ (2015) 8(1) Journal of National Security Law & Policy 189, 199; Crootof (n 27) 1869; Roni Elias, ‘Facing the Brave New World of Killer Robots: Adapting the Development of Autonomous Weapons Systems into the Framework of the International Law of War’ (2016) 3(1) The Indonesian journal of International and Comparative law 101, 107. Docherty (n 14) 15. Stewart (n 38) 281; Crootof (n 27) 1869; Elias (n 47) 108. Melzer (n 36) 13; Elias (n 47) 108. Docherty (n 14) 15–​16.

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2.5 Cyber Weapons An area that is of specific interest is that of cyber-​weapons, because due to the nature of cyberwarfare it seems likely that the first real aws will be deployed in this battlespace, if they haven’t been already. Programs are currently being developed which would be able to independently search for and find vulnerabilities in systems and then determine how to exploit these vulnerabilities.52 The best-​known example of a cyberweapon53 that has been employed by a state is probably the Stuxnet worm. Stuxnet was used to slow down Iran’s nuclear program by causing the nuclear centrifuges to function improperly.54 It has been stated by some that Stuxnet was already an example of a computational system acting in an autonomous manner and could therefore be considered as the first aws deployed, since it could be said that the virus itself has made the ultimate decision to “attack” the computers controlling the centrifuges.55 2.6 Loitering Munitions Perhaps the most interesting and high-​tech (and often seen as the clearest example of a possible autonomous weapon) are a certain class of fire-​and-​­forget weapons, such as the Israeli harpy-​missile and the British Brimstone anti-​ tank missile, commonly referred to as loitering munitions. While the majority of fire-​and-​forget missiles only have the capability to fly to pre-​set coordinates or engage on a target identified by the operator and cannot select targets, loitering munitions have more developed capabilities. These munitions are generally capable of much longer time of flight and a far larger geographic area in which it can search for a target.56 The harpy is able to loiter and search for any radar signature which would indicate a radar installation, when it detects 52 53

54 55

56

Thurnher (n 26) 183. I will not discuss the issue of at what the threshold is for cybermeans to amount to the use of force, or to be considered as an act of war. This would be outside the scope of this research and as such it is only considered with the possible autonomous abilities of such systems. Mary Ellen O’Connell, ‘21st Century Arms Control Challenges: Drones, Cyber Weapons, Killer Robots and WMDs’ (2014) 13(3) Washington University Global Studies Law Review 515, 519–​520. Backstrom & Henderson (n 22) 503; Eric Talbot Jensen, ‘Future War, Future Law’ (2013) 22(2) Minnesota Journal of International Law 282, 309; Duncan Hollis, ‘Setting the Stage: Autonomous Legal Reasoning in International Humanitarian Law’ Temple University Legal Studies Research Paper Series, Research Paper no. 2016–​05, 8; Thurnher (n 26) 183. Schmitt & Thurnher (n 40) 236; Nicolas Marsh, ‘Defining the Scope of Autonomy: Issues for the Campaign to Stop Killer Robots’ (2014) 2 prio Policy Brief 3; Scharre & Horowitz (n 24) 13–​14; Thurnher (n 26) 180.

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such an installation it will use its database to see whether the installation is friendly, if it does not show up as friendly it will direct its course towards this system, without an operator being able to interfere or determine which specific installation the missile will hit.57 Several other states have purchased the harpy-​missile58 and China might have a similar system in use, developed by reverse-​engineering the harpy.59 The Brimstone missile is an anti-​armour missile which is able to search for targets, by comparing them to known target signatures in its database. It will automatically reject any objects which do not match known target signatures and continues its search until it identifies a target which does match a target signature. It is, however, not completely clear if these missiles are programmed to seek out specific radar targets, or any targets fitting certain characteristics.60 To ensure that there is less chance of friendly fire the missiles can be programmed not to search for target signatures until it reaches a specific location.61 The US has a similar weapon system in use, called the Wide Area Search Autonomous Attack Miniature Munition (wasaamm), a small cruise missile capable of loitering and searching for a specific target by identifying particular signatures and engaging the target, either independently or after receiving permission.62 Other US prototypes are the Low-​Cost Autonomous Attack System (locaas), which is designed as an anti-​ tank, anti-​missile defence and anti-​surface-​to-​air missile systems missile and the Tacit Rainbow, which like the Harpy is an anti-​radar munition.63 Lockheed Martin has developed a loitering munition focused on anti-​ship capabilities, this missile would also be capable of changing its flight-​path in order to avoid detection by radar.64

57 58 59 60 61 62 63 64

Singh (n 35) 99; Crootof (n 27) 1871. Crootof (n 27) 1871; Scharre & Horowitz (n 24) 13. Scharre & Horowitz (n 24) 13. Brian Handy (ed.), Royal Air Force Aircraft & Weapons (dcc(raf) Publications Belmont Press 2007) 87; Crootof (n 27) 1870–​1871. Marsh (n 56) 2–​3. Backstrom & Henderson (n 22) 491; William Boothby, Conflict Law: The Influence of New Weapons Technology, Human Rights and Emerging Actors, (T.M.C. Asser Press 2014) 105; Krupiy (n 25) 152. Robert Sparrow, ‘Killer Robots’ (2007) 24(1) Journal of Applied Philosophy 62, 63; Scharre & Horowitz (n 24) 13. Krupiy (n 25) 152.

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Likely Future Developments

The systems in use today can be seen as stepping stones towards increased autonomy and, as the prototypes currently tested show, it seems likely that this trend will continue.65 But it also appears likely that the move towards more autonomy will take place in an incremental manner, slowly eroding the human control over the system and increasingly granting systems more and more situations where it can act in an autonomous manner.66 For the moment this seems to be focused on the ability to navigate or find targets autonomously, with complete autonomous targeting seemingly far off, but with each development this coming closer towards a reality. Although it must be stated that there is no way one could exactly predict the manner in which technology will develop, as there are many different factors that influence the adoption and development of different technologies.67 However, the push towards increased autonomous functions seems quite probable and according to many the creation of autonomous systems seems inevitable, unless there is some sort of intervention which would prevent the development of such systems.68 This appears logical since much of the technology necessary for more autonomy

65

66

67 68

Noel Sharkey, ‘Automating Warfare: Lessons Learned from the Drones’ [2011] Journal of Law Information and Science Special edition: The Law of Unmanned Vehicles 140, 143; Wallach & Allen (n 46) 128; Wagner (n 3) 1379; Bradan Thomas, ‘Autonomous Weapon Systems: The Anatomy of Autonomy and the Legality of Lethality’ (2015) 37(1) Houston Journal of International Law 235, 237. Sharkey (n 65) 141; Markus Wagner, ‘Beyond the Drone Debate: Autonomy in Tomorrow’s Battlespace’ [2012] American Society of International Law Proceedings 80, 84; Kenneth Anderson & Matthew Waxman, ‘Law and Ethics for Autonomous Weapon Systems: Why a ban Won’t Work and How the Laws of War Can’ Hoover Institution, Stanford University, 2013 18–​19, James Foy, ‘Autonomous Weapons Systems: Taking the Human out of International Humanitarian Law’ (2014) 23 Dalhousie Journal of Legal Studies 47, 50; Beard (n 49) 626–​627. Asaro (n 38) 704; Merel Noorman & Deborah Johnson, ‘Negotiating autonomy and responsibility in military robots’ (2014) 16(1) Ethics and Information Technology 51, 51; Thurnher (n 26) 183. Alston (n 6) 45; Anderson & Waxman (n 66) 2; Jensen (n 55) 307; Foy (n 66) 52; Mary Ellen O’Connell, ‘Banning Autonomous Killing: The Legal and Ethical Requirement That Humans Make Near-​Time Lethal Decisions’ in Matthew Evangelista & Henry Shue (eds.), The American Way of Bombing: Changing Ethical and Legal Norms, from Flying Fortresses to Drones (Cornell University Press 2014) 226; Beard (n 49) 620; Shane Reeves & William Johnson, ‘Autonomous Weapons: Are You Sure These Are Killer Robots? Can We Talk About It?’ (2014) April The Army Lawyer 25, 27; Toscano (n 47) 204–​205; Markus Wagner, ‘Die Zukunft der Kriegsführung? Autonome Waffensysteme als Herausforderung für das Völkerrecht’ (2016) 2 Vereinte Nationen 73, 74.

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is improving at a rapid pace.69 It is known that several different states are currently either doing research themselves, or funding research into the issue of autonomous functioning within weapon systems.70 While there are several different manners in which this march towards more autonomy could likely take place, one thing that is clear is that it appears unlikely that such systems will take the form of aws that science-​fiction media has imprinted in the imagination of many people. The humanoid killing machines such as the Terminator are not likely to emerge. The area in which it is likely that aws will be developed first seems to be the area of cyber-​weapons. It has been argued that certain current software is already autonomous, but this is not yet generally accepted. Even if one were to conclude that current software is not autonomous, one does need to agree that cyberspace will certainly be a focus. This seems especially true considering that it can be said that cyberwarfare would be impossible without some form of autonomy within cyberweapons.71 This is mainly because the software will need to operate independently as cyber operations under direct human control will be too slow to be effective.72 Not only that, but the manner in which software works makes it likely that it will be a lot less difficult to develop ­autonomous cyberweapons which are capable to comply with international humanitarian law, because it is easier for example to distinguish between military and civilian objects within code than it is on a cluttered real world battlespace.73 It is possible that even if such systems would infect civilian objects, they can be programmed to only deliver their payload to military systems, thus ensuring the required distinction.74 69 70

71 72

73 74

Kenneth Anderson, Daniel Reisner & Matthew Waxman, ‘Adapting the Law of Armed Conflict to Autonomous Weapon Systems’ (2014) 90 International Law Studies/​U.S. Naval War College 386, 391. Thurnher (n 40) 80; Jakob Kellenberger, ‘Keynote address’ International Humanitarian Law and New Technologies, 34th Round Table on current issues of international humanitarian law, San Remo 8–​10 September 2011, reprinted in (2012) 94(886) International Review of the Red Cross 809, 812; Melzer (n 36) 9; Marcel Dickow, ‘Robotik –​ein Game-​ Changer für Militär und Sicherheitspolitik’ swp-​Studie 2015 7. Hollis (n 55) 15. Jody Prescott, ‘Autonomous Decision-​Making Processes and the Responsible Cyber Commanders’ in: 5th International Conference on Cyber Conflict (nato ccd coe Publications 2013) 2–​3; Christopher M Kovach, ‘Beyond Skynet: Reconciling Increased Autonomy in Computer-​Based Weapons Systems with the Laws of War’ (2014) 71 The Air Force Law Review 231, 235; Hollis (n 55) 7. Kovach (n 72) 244. As could already be seen by the fact that the Stuxnet virus was reported to have spread to other computer systems than its intended target, but outside of this infection had no effect on systems other than the Iranian nuclear power plants, Jensen (n 55) 304; Kovach (n 72) 235.

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One likely development that can lead to an incremental creep towards autonomy is the use of Swarm technology, which is currently being researched.75 Swarm technology focuses on many smaller systems acting in correspondence or in unison with each other. For such smaller systems to cooperate with each other they need to be capable of communicating and reacting at high speeds. As it will be almost impossible for a human being to control all the smaller subsets of systems, the individual systems within a swarm will need to have at least some autonomy in order to function properly and effectively.76 Even if there would be a human operator, this would take the form of a single operator monitoring an entire swarm rather than individual systems.77 A related development that will create the need for autonomy within weapon systems is the research that is being done into systems which are extremely small, such as nanobots. It is probable that these systems, and especially the manner in which such a system would move, cannot be effectively controlled by a human operator. This means that for such systems to be effective these systems are required to have some autonomous functioning.78 There is some indication that autonomy will be implemented sooner within an underwater environment than any other battlespace. This is due to two major reasons. The first is that this environment is relatively uncluttered and there is therefore less likelihood of civilian activity within this battlespace.79 The other reason why it is likely to be implemented faster there, is because of the problematic nature of underwater communications, which limit the functionality of tele-​operated systems. Several nations appear to already be developing or have developed underwater systems that can adjust themselves in order to maintain their position. On this basis the US is currently trying to develop a vessel which could autonomously search for enemy submarines in months long missions.80 75 76

77 78 79

80

Thurnher (n 40) 79. Krishnan (n 3) 35; Alston (n 6) 43; Chantal Grut, ‘The Challenge of Autonomous Lethal Robotics to International Humanitarian Law’ (2013) 18(1) Journal of Conflict & Security Law 5, 7; Jeffrey Caton, ‘Autonomous Weapon Systems: A Brief Survey of Developmental, Operational, Legal and Ethical Issues’ The Letort Papers, Strategic Studies Institute US Army War College 2015 32. Alston (n 6) 43; Kastan (n 37) 53. Krishnan (n 3) 35. Anderson & Waxman (n 66) 6; George Lucas Jr, ‘Automated Warfare’ (2014) 25(2) Stanford law & Policy Review 317, 322; unidir, The Weaponization of Increasingly Autonomous Technologies in the Maritime Environment: Testing the Waters, unidir Resources no. 4, 2015, 2. unidir, The Weaponization of Increasingly Autonomous Technologies in the Maritime Environment: Testing the Waters, unidir Resources no. 4, 2015, 2, 5–​6; Thurnher (n 26) 183.

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A thing that absolutely needs to be taken into account and addressed is the fact that many technologies which would make aws possible are dual-​use. Much of the research is done by civilian corporations without direct ties to the military and are focused on these technologies for civilian purposes, an example of this is the research done into self-​driving cars.81 This means that even if a possible ban on the development of these systems or research into these systems is agreed upon, this would mainly be focused on the military aspect of these systems, as can be seen by the fact that multiple states have argued this during discussions on the issue of aws.82 This also means that if research into the technology is banned for military development, these systems could still proliferate due to the availability of the technology in other areas of life, which is inherent to dual-​use technology.83 A consequence of this is that such systems can then possibly be adapted to be used in a military context, by states and non-​state actors which do not comply with the ban, due to the inherent benefits of these systems.84 These inherent benefits might also lead to a need for other states to employ such systems when an enemy deploys aws. It is an assumption of some that a state which does not have autonomous weapons would perhaps not be able to compete against a force which does deploy aws.85 Even though this appears likely, there are those that argue that a ban can be effective and might shift innovation towards different types of research,86 because of this reason research should be done into what would be

81 82 83 84 85 86

Anderson & Waxman (n 66) 2; Anderson, Reisner & Waxman (n 69) 391; Robert Work & Shawn Brimley, ‘20YY: Preparing for War in the Robotic Age’ Center for a New American Security 2014, 6; Dickow (n 70) 7. Report of the 2016 Informal Meeting of Experts on Lethal Autonomous Weapons Systems (laws) (advanced version) par. 22. United Nations General Assembly, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions: Christof Heyns, United Nations Human Rights Council, 2013 UNDoc: a/​h rc/​23/​47; 9, Anderson & Waxman (n 66) 21; Singh (n 35) 91. Anderson, Reisner & Waxman (n 69) 398; Work & Brimley (n 81) 20; Caton (n 76) 48. Thurnher (n 40) 80; Foy (n 66) 62–​63. See here for example, Asaro (n 38) 705–​706, However he does not approach the idea of proliferation of aws through the use and adaptation of civilian technology, nor the idea that if a single state or non-​state actor will deploy such systems, it will more likely for other states to follow suit. An example of such a diversion of research can be seen with Protocol iv of the Convention on Certain Conventional Weapons, which prohibited the use of permanently blinding laser weapons, this prohibition led to a change in research towards temporarily blinding laser weapons. (Neil Davison, ‘New Weapons: Legal and Policy Issues Associated with Weapons Described as ‘Non-​lethal’’ in Dan Saxon (ed.), International Humanitarian Law and the Changing Technology of War (Koninklijke Brill nv 2012) 286).

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necessary to ensure an effective ban before calls for a ban can realistically be followed up upon. 4

Reasons for the March towards Autonomy

There are multiple reasons why it is likely that the push towards more autonomy in weapon systems and towards an incremental loss of direct human ­control over systems will continue. This section should not be taken as an endorsement of states developing and deploying these weapon systems, but only as an explanation why states are currently investing in this research. An important reason for this continued stride towards autonomy is the need to decrease manpower requirements. This is mainly due to a need to cut personnel since defence budgets are becoming more constrained. These budget constraints are becoming increasingly important as the costs for manned combat platform development are increasing as well.87 This will lead to more autonomy, since current tele-​operated systems, such as drones, do not decrease the necessary amount of personnel and only with more autonomy would it be possible to reduce manpower.88 A related and perhaps far more important reason for the development of aws is that the lack of human operators will reduce the amount of casualties, at the very least in the amount of combat casualties, and perhaps, if the argument that these systems will be able to be ‘more ethical’ than humans holds water, even the amount of civilian casualties. This possibility will be an important factor in the consideration to develop and deploy systems with autonomous functions as the public opinion has grown extremely critical of casualties.89 Thus in order to retain support for the government and their involvement within an armed conflict the casualties within the civilian population and amongst their own soldiers need to be kept to a minimum. Other incentives for more autonomy are related to the data links that are necessary to retain control over tele-​operated systems. The first of these is the limitation of available bandwidth. The amount of possible bandwidth can only be so high, which would mean that in certain conflict zones there is the possibility of bandwidth bottlenecks limiting the number of tele-​operated systems 87 88 89

Work & Brimley (n 81) 6. Krishnan (n 3) 36; Schmitt & Thurnher (n 40) 237; Toscano (n 47) 191. John Sullins, ‘An Ethical Analysis of the Case for Robotic Weapons Arms Control’ at 5th International Conference on Cyber Conflict (nato ccd coe Publications 2013) 2–​3; Toscano (n 47) 191; Crootof (n 27) 1866.

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that could possibly operate simultaneously in a particular area.90 Another factor is that tele-​operating systems need to account for a delay between taking the decision and the actual action being taken by the system, for uav this currently means that there is a 1.5 second lag, which in all probability will be considered unacceptable, especially in aerial combat.91 Tele-​operated systems also have to deal with the fact that wireless transmission of data is not possible everywhere and can be disrupted with relative ease. This can become a significant problem because when the connection is severed such tele-​operated systems are no longer capable of functioning.92 The transmission of data via a wireless transmission also makes the weapon system more vulnerable to cyber-​attack or jamming, which could render remote-​controlled systems essentially useless.93 Even though these systems are most often well protected against cyber-​attacks, it is still possible for them to be hacked as can be seen by the capture of an US uav by Iran in 2016.94 Systems which are capable of more autonomous functions could also overcome certain human deficiencies. Machines would be able to function more effectively in several contexts, without the intervention of human operators. One of these is the ability of computers to make assessments and act on those assessments faster than a human operator would ever be able to. This means that combat situations will be subject to even more time constraints and decisions will need to be taken at even higher speeds. There will almost certainly be a need for systems which are able to react in an extremely short time period and in some situations this will require reaction-​times faster than a human being could possibly attain.95 Examples of such situations can be seen in the manoeuvring of an aircraft, which a computer system could do quicker and at higher speeds than a human would, in cyberspace operations where decisions will need to be made even faster,96 or as different defence systems show,97 the ability of a computer to react to threats which would be too quick for a human to process, let alone act on.98 90 91 92 93 94 95 96 97 98

Krishnan (n 3) 38. Alston (n 6) 44; Foy (n 66) 52; Beard (n 49) 633. Krishnan (n 3) 38; Schmitt & Thurnher (n 40) 238. Krishnan (n 3) 39; Alston (n 6) 44; Thurnher (n 40) 80; Schmitt & Thurnher (n 40) 238. http://​www.csmoni​tor.com/​World/​Mid​dle-​East/​2011/​1215/​Exclus​ive-​Iran-​hijac​ked-​US -​drone-​says-​Iran​ian-​engin​eer-​Video last visited on 17–​08–​2016. Marchant et al. (n 33) 275; Alston (n 6) 44; Thurnher (n 40) 80; Mark Gubrud, ‘Stopping killer robots’ (2014) 70(1) Bulletin of the Atomic Scientists .32, 33. Prescott (n 72) 2. Thurnher (n 40) 80. Krishnan (n 3) 35; Anderson & Waxman (n 66) 5.

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Another benefit an aws would have over a human is that a machine would never need to rest. This means that an aws would be able to function continuously for far longer periods than a human operator would ever be able to do. A weapon system that would be deployed for long periods of time needs to have either autonomy or multiple operators. This is becoming more and more apparent as battery life is expanding and recharging technologies will allow for on-​mission recharging, which extends the possible functioning time of weapon systems.99 Another aspect in which aws will potentially be more effective without human operators is due to them not having emotions or motivations of their own. While this is also taken as a negative to aws, it also means that these systems will not be motivated to act out of fear, anger or vengeance and will not be affected by stressful situations.100 An advantage of aws that is related to this lack of human qualities can be seen in the notion that these systems will be better than humans in situations which are either dull, dirty or dangerous.101 An aws would be more capable of effectively conducting dull missions that require a long period of attentiveness, such as for example guard duty. Machines are also able to operate in environments which would be dangerous for humans to operate in, such as situations where there is contamination from nuclear waste or where chemical or biological weapons have been used.102 5

Programming

Most current prototypes of systems with autonomous functions still have the issue that they are considered as being “brittle”. The term “brittle” is used to describe the inability of these systems to react appropriately to unexpected and uncertain circumstances, or at least that they can’t do so to a high degree. These systems might still be able to outperform humans, but only in very specific narrow tasks, as can be seen in Deep Blue or the Google driverless car. Such systems are therefore of only limited utility, as least as the situation is at the moment, as they are only able to be deployed in highly constructed environments, or with very constrained targeting perimeters.103 Future 99 100 101 102 103

Foy (n 66) 52. Crootof (n 27) 1867. Work & Brimley (n 81) 22. Crootof (n 27) 1867. Kastan (n 37) 51; Dan Saxon, ‘A Human Touch: Autonomous Weapons, Directive 3000.09, and the “Appropriate Levels of Human Judgment over the Use of Force”’ (2014) 15 (2) Georgetown Journal of International Affairs 100, 103; icrc Expert Meeting,

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developments in technology, especially in the areas of machine learning and artificial intelligence, could lead to systems which would be less brittle and would consequently be capable of functioning in more complex and dynamic environments.104 Artificial intelligence and machine learning is currently being researched by many different states and corporations.105 For many, the development of machine learning or a high level of artificial intelligence is seen as the best manner to develop aws capable of coping with the unstructured nature of most conflict situations and fulfil the necessary international humanitarian law obligations. There are several different approaches proposed as to how to develop these systems and how to ensure compliance with international humanitarian law. 5.1 Machine Learning Machine learning will be necessary to overcome the “brittleness” issue of current systems, as it would lead to them being more flexible and better at dealing with unexpected situations.106 But machine learning needs to be differentiated from human adaptive behaviour, as human behaviour has an indeterminate amount of possibilities, while machine learning will necessarily be based on probabilistic algorithms and therefore constrained by the developers. This will remain the case until the creation of “strong ai”.107 With machine learning a system will have software capable of receiving different inputs and on the basis of these different inputs in combination with its programming will develop approaches to analyse and subsequently act upon new information.108 Research is currently being done to study how to best realize machine learning.109 There are different ways in which machine learning is envisioned. One of these methods is through the employment of Bayesian networks. Under such

104 105 1 06 107 108 109

Autonomous Weapon Systems: Technical, Military, Legal and Humanitarian Aspects, Geneva Switzerland 26–​28 March 2014, 7; Scharre (n 28) 17. Vincent Boulanin, ‘Mapping the debate on LAWS at the CCW: Taking stock and moving forward’ (2016) 49 EU Non-​Proliferation Consortium Non-​Proliferation Paper 1, 1. Marchant et al. (n 33) 284; Alston (n 6) 46; unidir, Framing Discussions on the Weaponization of Increasingly Autonomous Technologies, unidir Resources no. 1, 2014, 10. Kastan (n 37) 51. Toscano (n 47) 194. Peter Margulies, ‘Making Autonomous Weapons Accountable: Command Responsibility for Computer-​guided Lethal Force in Armed Conflicts’ Roger Williams University School of Law Legal Studies Research Paper 166, 2016, 7. Krupiy (n 25) 149.

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networks new evidence would demonstrate whether a particular hypothesis is more or less likely to be correct.110 This means that the system will draw inferences through likely probabilities on the basis of the received data inputs, the convergence of all the data that is collected by the system and then act upon these inferences.111 Another thing that could be seen as necessary for machine learning is the inclusion of neural networks. Neural networks produce outputs on the basis of patterns found between new stimuli and other data inputs.112 Neural nets would exist in multiple layers between input and output allowing it to sort data into different steps, thereby facilitating the system to break down complex data into manageable parts.113 By combining Bayesian networks with neural networks a system would be able to learn through reinforcement, leading to the system integrating its knowledge with the assessment of the likely effects of subsequent actions. It basically allows the system to use trial-​and-​error and thus to learn from experience or example.114 In any case such a system would first be ‘trained’ by the programmer inputting data that informs the machine of different criteria and thus enabling it to recognize criteria that are expected to be relevant, this also allows it to recognize other criteria which are analogous to the original criteria but were perhaps not foreseen by the programmers.115 This possibility to interpret analogous criteria is what enables the machine to act when it is confronted with unforeseen situations. While machine learning would certainly be a significant step forwards, it also entails certain effects that could be considered as less beneficial, the most important amongst these is that the behaviour of these systems becomes less predictable.116 This presents itself in two different regards. Firstly, there is the issue that due to machine learning the machine will take decisions which might not be foreseen. But perhaps more important is whether the nature of what the system will learn can be predicted, or whether that is unpredictable as well.117 This therefore creates significant uncertainty within the predictability 1 10 111 112 113 114

Margulies (n 108) 8–​9. Ibid. 8–​12. Thurnher (n 40) 79; Margulies (n 108) 13. Margulies (n 108) 13. Thurnher (n 40) 79; Jeffrey Thurnher, ‘The Law That Applies to Autonomous Weapon Systems’ (2013) 17(4) American Society of International Law Insights 2; Margulies (n 108) 15. 115 Dickow (n 70) 8; Margulies (n 108) 8. 1 16 Kastan (n 37) 51; Toscano (n 47) 194. 117 Prescott (n 72) 13; Margulies (n 108) 15–​16.

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of the actions of autonomous systems and is one of the issues that needs to be considered when developing a system. Artificial Intelligence 5.2 Artificial Intelligence is related to the notion of machine learning and is another part of what the basis of the decision-​making process within future autonomous systems will be. A higher level of Artificial Intelligence (ai) would allow for a system to function in a less defined and controlled environment and thus would decrease the ‘brittleness’ of systems.118 Most current ai are not that sophisticated, certainly not sufficient to be able to comply with international humanitarian law, let alone exceed the level of general understanding that a human has.119 Before discussing likely developments, the term Artificial Intelligence needs to be clearly understood, since in the view of many the possibility of sophisticated ai is what would make developing real autonomous systems a possibility. ai in general needs to be seen as software making it possible for a computerized system to perform tasks normally requiring human intelligence, or a system having human-​like capabilities.120 The term in itself does not determine what capabilities would be human-​like or how far the level of human-​like capabilities goes. This is an important consideration as it has significant impact on the discussion and shows the inaccuracy of statements such as ‘ai will be achieved’, since the most basic forms of ai have already been developed. Some systems have such human-​like capabilities but can use them only in very limited situations. One of the most well-​known examples of this could be seen in the system Deep Blue, which was able to reach and even surpass a human’s ability at chess. What is often meant by the statement ‘ai will be achieved’ or ‘can be achieved’ is a level of ai as intelligent as or more intelligent than human beings.121 5.3 ‘Strong’ ai Artificial Intelligence that is capable of approaching or even surpassing human intelligence is commonly referred to as ‘strong’ ai. With ai that sophisticated a system is able to achieve a level of universal intelligence and adaptability comparable to human intelligence or perhaps even exceed human intelligence, especially focused on the notion of abstract thought and problem solving.122 1 18 119 120 121 122

Anderson & Waxman (n 66) 6. Toscano (n 47) 198. Krishnan (n 3) 5; Beard (n 49) 623. Sharkey (n 65) 141–​142. Krishnan (n 3) 5, 48; Docherty (n 14) 28–​29; Toscano (n 47) 216.

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For some the idea of ‘strong’ ai goes as far as the possibility of ai being able to replicate human emotions, thereby enabling moral behaviour. It is therefore argued by some that ‘strong’ ai is the best approach to ensure machine morality.123 Current technology is, however, not sophisticated enough to allow for the creation of ‘strong’ ai. Whether machines would ever be able to truly duplicate human cognition is still very debatable and could be considered speculative. At the very least the notion of ‘strong’ ai should be considered as science fiction for the foreseeable future.124 However, there are also those who claim that it will be possible for such ‘strong’ ai to be developed.125 But considering that the ability to create ‘strong’ ai has been “overpromised” in the past,126 it is prudent to remain reserved in believing in the possibility of future ‘strong’ ai. In any case it needs to be said that ‘strong’ ai will not be possible without major technological breakthroughs, which some have estimated might be achievable in several decades.127 Some have stated that it is necessary to include ‘strong’ ai in order to be able to create a safe, reliable system capable of complying with the norms of international humanitarian law.128 ‘strong’ ai certainly is a lofty and commendable goal for long term research, and this research will likely continue, as there is significant funding for such research and there is a, perhaps morbid, curiosity to develop it.129 A thing that needs to be noted is the fact that the higher the level of ai, the more unpredictable the system might become, as there are more possible outcomes and at the level of true ‘strong’ this unpredictability is obviously very high.130 But as mentioned earlier it seems unlikely that such a high level of ai is achievable in any practical manner for the foreseeable future. 1 23 Lucas (n 79) 328. 124 Docherty (n 14) 8; Lucas (n 79) 330–​332; Marco Sassóli, ‘Autonomous Weapons and International Humanitarian Law: Advantages, Open Technical Questions and Legal Issues to be Clarified’ (2014) 90 International Law Studies/​Naval War College 308, 312; Beard (n 49) 623; Dickow (n 70) 8. 125 Sparrow (n 63) 65; Docherty (n 14) 29; Aaron Gevers, ‘Is Johnny Five Alive or did it Short Circuit? Can and Should an Artificially Intelligent Machine be held Accountable in War or Is it Merely a Weapons’ (2015) 12(3) Rutgers Journal of Law & Public Policy 384 387–​388. 126 Evans (n 31) 709. Even more simple forms of ai have been overpromised in the past, Deep Blue is a perfect example of this as well. The idea of computers being able to beat a human grandmaster was already proposed in the early days of ai research, but was not achieved until 40 years after its initial prediction when Deep Blue beat Gary Kasparov, Asaro (n 38) 705. 127 Krishnan (n 3) 5; Gevers (n 125) 387–​388. 128 Lucas (n 79) 328–​329. 129 Lucas (n 79) 328; Gevers (n 125) 389. 130 Stewart (n 38) 290.

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Ethical Governor 5.4 A different proposed possibility for compliance with international humanitarian law is the incorporation of an ethical governor within the system. This would take the form of developing a binding set of prime rules which the system is not able to alter, governing all actions of the system. This method has been proposed and is being researched by Ronald Arkin. It is stated that this is the more likely development of the technology rather than the creation of ‘strong’ ai.131 The core of Arkin’s approach is that the ethical governor would evaluate whether a lethal response is appropriate prior to the action being taken.132 The idea is that any lethal action would be impermissible, unless there is a specific permission to use force coded in the system’s programming.133 Another manner in which this can be achieved is by translating international humanitarian law into programming rules that determine which actions would be illegal under any given situation.134 This set of rules would be set apart from the rest of the decision-​making architecture and would overrule any decision taken by the general decision-​making architecture, including specific orders given to the system, which would not comply with these rules.135 Arkin has worked out certain prerequisites for an action to be considered appropriate, but this should only be considered as being part of preliminary research and not yet at a level where it could be implemented.136 The current state of technology is not yet advanced enough to develop a system which would integrate this software and the relevant rules are not yet able to be accurately translated into correct algorithms.137 Even when this software would become available, these systems would not be able to function in any and all situations and especially interactions with civilians might remain problematic.138 Further research into the possibility of such an ethical governor is currently being funded by the US Department of Defence.139

1 31 DeSon (n 38) 100. 132 Ronald Arkin, Governing Lethal Behaviour in Autonomous Robots (crc Press, Boca Raton 2009) 127; Titiriga (n 39) 78. 133 Arkin (n 132) 94–​98; Kastan (n 37) 53. 134 Asaro (n 38) 696. 135 Prescott (n 72) 14; Sullins (n 89) 8. 136 Arkin (n 132) 211. 137 Titiriga (n 39) 79. 138 Wallach & Allen (n 46) 129. 139 William Fleischman, ‘Why We Should Not Build Autonomous Robotic Weapons’ in: xix Congreso Argentino de Ciencias de la Computación (cacic 2013) 1678; Krupiy (n 25) 173.

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5.5 Bounded Morality In the short term, the most likely manner in which systems might be able to comply with international humanitarian law is by programming a certain bounded morality within the system. The idea is that while the notion of a programmable ethical governor or outfitting a system with ‘strong’ ai is a challenge that cannot be solved with current technology, it might be possible to deploy simpler systems.140 The idea is to develop systems which are operationally moral due to the fact that all circumstances that they are likely encounter are anticipated in advance and correct responses are coded into their programming. This works even with systems with limited sophistication and without needing to incorporate machine learning, but this also means that these systems will only be able to be legitimately deployed in restricted environments and these situations need to be tightly constrained.141 Proponents of this development see no use in the lofty and farfetched ideas of high level ai and instead focus more on the question whether these systems are safe, reliable and can fulfil their purposes in accordance with the law.142 Such systems would only require the level of ai which is necessary to fulfil the specific task for which it was developed and programmed.143 This is more in line with the manner in which many of the more technological advanced weapon systems that are in use today are deployed and viewed. This would not solve the notion of “brittleness”, since it would still not enable the system to respond adequately to an unforeseen situation for which no response has been programmed and would therefore limit the instances in which they can be employed.144

1 40 Lucas (n 79) 323. 141 Wallach & Allen (n 46) 127. 142 Lucas (n 79) 332; George Lucas Jr, ‘Legal and Ethical Precepts Governing Emerging Military Technologies: Research and Use’ (2013) 5 Utah Law Review 1271, 1274. 143 Beard (n 49) 623. 144 Toscano (n 47) 217.

­c hapter 3

Meaning of Autonomy Within science fiction androids are often portrayed as being almost human, with the capability of ‘strong’ ai. However, as discussed, this is unlikely to exist in the real world any time soon. What has become clear from the discussion is that it has been influenced by these elements from science fiction. This can be seen from the use of the term “Killer Robots”, evoking the idea that autonomous systems will become unstoppable, uncontrollable killing machines. It is also likely that this notion of killer robots has partially influenced the discussion about what these systems will likely be. There is no consensus as to how autonomy should exactly be understood in this context and there is a lack of consistency in the use of the term itself. Does autonomy entail that a system must be more than a collection of circuits and sub-​processors, that it must be able to form its own beliefs and thoughts, or could it also be something simpler, something less lofty? In order to find the answer to this question this chapter will go through different elements of how the term autonomy is understood. It will start with a general discussion on autonomy, before turning to two of the most influential starting points for these discussions, the interpretation of autonomy from a philosophical perspective and the interpretation from a technological perspective. The chapter will then discuss the different spectra proposed for autonomy in weapon systems and whether such a spectrum is useful for a legal understanding. Finally, this chapter will go over the different dimensions of autonomy that are relevant to the discussions on aws and what relevance the different dimensions have. Understanding what is meant by terms such as autonomy systems and the different approaches to applying autonomy is extremely important as it has significant consequences in the thinking about the development of aws and therefore any further future discussions.1

1 Noel Sharkey, ‘Automating Warfare: Lessons Learned from the Drones’ [2011] Journal of Law Information and Science Special edition: The Law of Unmanned Vehicles 140, 14; Rebecca Crootof, ‘The Killer Robots Are Here: Legal and Policy Implications’ (2015) 36 Cardozo Law Review 1837, 1841; Andrew Williams, ‘Defining Autonomy in Systems: Challenges and Solutions’ in Andrew Williams & Paul Scharre (eds.) Autonomous Systems: Issues for Defence Policymakers (nato Capability Engineering and Innovation Division 2015) 27; Vincent Boulanin, ‘Mapping the debate on LAWS at the CCW: Taking stock and moving forward’ (2016) 49 EU Non-​Proliferation Consortium Non-​Proliferation Paper 3.

© Barry de Vries, 2023 | DOI:10.1163/9789004524316_004

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Chapter 3

General Notions of Autonomy

One of the preliminary issues that needs to be looked at for any discussion on aws is what is meant with the term autonomy, since determining whether a weapon system should be seen as autonomous depends on how autonomy is interpreted.2 The word itself is a contraction of the Greek auto, meaning self, and nomos, meaning law, thus meaning self-​rule or self-​governing.3 This term is used in different fields, some examples include philosophy, politics and technology, and autonomy has a very different meaning in every field and there is often not even a common definition within a single field. At the moment in the discussion concerning aws there is no set definition of the term autonomy and this term is used in significantly different manners by different stakeholders.4 As such it can be quite confusing what is meant with autonomy in the context of aws, since this term can be considered as being very vague while at the same time having a very loaded meaning. This loaded meaning becomes clear when one looks at the popular thinking about autonomous systems, as robots or computers which are capable of thinking for themselves. This perception has been significantly influenced by the picture of autonomous systems put forth by science fiction,5 such as the Terminator in the Terminator-​series of movies, or the android Data from Star Trek: The Next Generation. How autonomy should be interpreted in weapon systems is quite unclear, this is especially true since the nature of autonomy, even in humans, is not clearly defined or understood.6 There is some general idea of what autonomy is in human beings and this is then often extended to the idea of autonomy in machines.7 2 Ian Anthony & Chris Holland, The governance of autonomous weapons in SIPRI Yearbook 2014: Armaments, Disarmament and International Security (Oxford University Press 2014) 424. 3 Armin Krishnan, Killer Robots: Legality and Ethicality of Autonomous Weapons (Ashgate 2009) 43. 4 Philip Alston, ‘Lethal Robotics Technologies: The Implications for Human Rights and International Humanitarian Law’ (2012) Journal of Law Information and Science Special Edition: The Law of Unmanned Vehicles 35, 50; unidir, Framing Discussions on the Weaponization of Increasingly Autonomous Technologies, unidir Resources no. 1, 2014, 3 Crootof (n 1) 1844; Paul Scharre, ‘The Opportunity and Challenge of Autonomous Systems’ in Andrew Williams & Paul Scharre (eds.), Autonomous Systems: Issues for Defence Policymakers (nato Capability Engineering and Innovation Division 2015) 8; Boulanin (n 1) 5. 5 Sharkey (n 1) 141; Michael Horowitz, ‘Public opinion and the politics of the killer robots debate’ (2016) 3(1) Research and Politics 1, 4; Paul Scharre, ‘Autonomous Weapons and Operational Risk’ Center for a New American Security 2016, 6. 6 Robert Sparrow, ‘Killer Robots’ (2007) 24(1) Journal of Applied Philosophy 62, 65; Merel Noorman & Deborah Johnson, ‘Negotiating autonomy and responsibility in military robots’ (2014) 16(1) Ethics and Information Technology 51, 53. 7 Noorman & Johnson (n 6) 52.

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The extension of this understanding of human autonomy to machines can, however, lead to the impossible, or at the very least improbable, expectations of autonomous weapon systems attaining a human-​like capability of intelligence, understanding and perhaps even emotions.8 Autonomy in Philosophy 1.1 It must be made clear that autonomy in aws generally does not concern the notion of autonomy as it exists in philosophy. It is, however, necessary to understand that philosophical approach as it has had significant effect on the discussion and the interpretation of autonomy. Within philosophy the notion of autonomy is linked to concepts such as complete self-​governance without any external influence, the ability to have free will and being an independent moral agent.9 It can be said that in philosophy this autonomy is what distinguishes humans from other forms of life and allows for the existence of ethics and morality as well as moral responsibility.10 Therefore it seems that such moral agency is only possible in human beings, as only human beings are capable of morality and moral responsibility. For a machine to ever attain this notion of autonomy appears very improbable, even if ‘strong’ ai can be developed, since the basis for any ‘thought’ of the system and the manner in which information is processed, will always remain its programming, which in itself should be considered as an outside influence in the philosophical sense.11 The idea that autonomy in aws should be interpreted as the ability to act without any external constraint must be considered as incorrect from a different viewpoint as well, because even humans within a military context 8 9

10 11

Noorman & Johnson (n 6) 53; Christopher Toscano, ‘“Friends of Humans”: An Argument for Developing Autonomous Weapons Systems’ (2015) 8(1) Journal of National Security Law & Policy 189, 191. Alfred Mele, Autonomous Agents: From Self-​Control to Autonomy (Oxford University Press 2001) 4; Patrick Lin, George Bekey & Keith Abney, ‘Autonomous Military Robotics: Risk, Ethics, and Design’ Report for the Department of the Navy, Office of Naval Research 2008, 104; Katerina Deligiorgi, The Scope of Autonomy: Kant and the Morality of Freedom (Oxford University Press 2012) 9–​10; George Lucas Jr, ‘Engineering, Ethics and Industry: The Moral Challenges of Lethal Autonomy’ in: Bradley Strawser & Jeff McMahan (eds.), Killing by Remote Control: The Ethics of Unmanned Military (Oxford University Press 2013) 218–​219; Jack M Beard, ‘Autonomous Weapons and Human Responsibilities’ (2014) 45 Georgetown Journal of International Law 617, 622. Mele (n 9) 8; Deligiorgi (n 9) 4; Noorman & Johnson (n 6) 53. Lin, Bekey & Abney (n 10) 105; William Marra & Sonia McNeil, ‘Understanding “The Loop”: Regulating the Next Generation of War Machines’ (2013) 36(3) Harvard Journal of Law and Public Policy 1139, 1177; Robin Geiss, ‘The International-​Law Dimension of Autonomous Weapons Systems’ Friedrich Ebert Stiftung Study 2015 6.

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are not allowed to act without external constraint. Military personnel are still governed by external constraints such as legal rules, rules of engagement and the orders they receive, thus it has been argued that even they do not act in full and complete autonomy from a philosophical perspective.12 Since it is unlikely that an autonomous weapon system will have autonomy as seen within philosophy this chapter will not go into detail into the debate about autonomy in this regard and will focus on the more achievable form of autonomy. While this definition is not directly applicable, it has been influential, and this interpretation of the term ‘autonomy’ is often the cause for much of the criticisms and confusion about aws. 1.2 Autonomy in Technical Discussions Even within the more specific fields of robotics and computer science there are divergent notions on what autonomy is, with different definitions highlighting different aspects.13 There has been a history of using terms such as ‘smart’, ‘intelligent’ or ‘autonomous’ to describe new technologies in a wide variety of instances, both in military and civilian technology, perhaps to a point that such terms have become almost meaningless.14 In the case of ‘autonomous’ the term has been used to for example describe any system which does not have direct human control or supervision.15 This is similar to how autonomy is sometimes regarded in engineering, where it is sometimes defined as the ability of a system to act independently of immediate human control, or perform specific functions without human control or input.16 It is important to consider that this does not mean that an autonomous system as such acts without 12 13 14 15

16

Benjamin Kastan, ‘Autonomous Weapon Systems: A Coming Legal Singularity?’ (2013) 45(1) Journal of Law Technology and Policy 45, 50; George Lucas Jr, ‘Automated Warfare’ (2014) 25(2) Stanford law & Policy Review 317, 323–​324. Noorman & Johnson (n 6) 56. Beard (n 9) 622; Williams (n 1) 54. Sparrow (n 6) 65; Timothy Coughlin, ‘The Future of Robotic Weaponry and the Law of Armed Conflict: Irreconcilable Differences?’ (2011) 17 ucl Jurisprudence Review 67, 69; Peter Asaro, ‘On banning autonomous weapon systems: human rights, automation and the dehumanization of lethal decision-​making’ (2012) 94(886) International Review of the Red Cross 687, 690; Wendell Wallach & Colin Allen, ‘Framing robot arms control’ (2013) 15 (2) Ethics and Information Technology 125, 126; Harjeet Singh, ‘Robotics and the Changing Characteristics of Warfare’ (2014) Winter claws Journal 91, 95; Policy Guidance: Autonomy in Defence Systems, Multinational Copability Development Campaign, 2014, 8. Sparrow (n 6) 65; Noorman & Johnson (n 6) 53; Jeffrey Thurnher, ‘Means and Methods of the Future: Autonomous Systems’ in Paul Ducheine et al. (eds.) Targeting: The Challenges of Modern Warfare (T.M.C. Asser Press 2016) 180.

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any human-​imposed restrictions, it will still always be constrained by its programming and the boundaries set by such programming. Therefore, while the machine acts without direct real-​time human interaction it is still bound by its programming.17 In this regard it can be considered that the programming takes the role of the human operator which would normally directly control a system.18 Such an understanding can be linked to the notion that machine autonomy in robotics is often understood in the context of automation.19 However, just not having direct human control or supervision needs to be considered as too broad to correctly define aws. It is likely that no state would agree with using this as a basis for a definition, as this definition would incorporate a great many weapons currently in use, even those as crude as mines or relatively simple ones, like ballistic missiles, while these types of weapon systems do not raise the same type of questions as possible future systems.20 Another approach that has been proposed within engineering considers a system to be autonomous when it possesses several different characteristics, however there is significant discussion over which characteristics these would be. Common within most approaches is that the system must firstly have automation, which is the ability to operate without outside interference. The existence of automation in itself would not be enough for a system to be classified as an autonomous system, but which other characteristics would need to be considered is still a point of discussion. There is the position that such a system should also be capable of decision-​making agency, a choice in action or thought and the possibility to deliberately pursue goals.21 A different viewpoint is that such a system needs to be self-​governing, sometimes described

17 18 19 20

21

Tim McFarland, Autonomous Weapon Systems and the Law of Armed Conflict (Cambridge University Press 2020). 30–​31. Ibid. 1 33–​34. Toscano (n 8) 193. Sparrow (n 6) 65; Coughlin (n 15) 69; Kenneth Anderson, Daniel Reisner & Matthew Waxman, ‘Adapting the Law of Armed Conflict to Autonomous Weapon Systems’ (2014) 90 International Law Studies/​U.S. Naval War College 386, 388; Mary Ellen O’Connell, ‘Banning Autonomous Killing: The Legal and Ethical Requirement That Humans Make Near-​Time Lethal Decisions’ in Matthew Evangelista & Henry Shue (eds.), The American Way of Bombing: Changing Ethical and Legal Norms, from Flying Fortresses to Drones (Cornell University Press 2014) 224; William Boothby, Conflict Law: The Influence of New Weapons Technology, Human Rights and Emerging Actors, (T.M.C. Asser Press 2014) 106. Marra & McNeil (n 11) 1150–​1151.

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as the systems assertiveness, and capable of functioning in changing and unstructured environments.22 2

Autonomy Spectra

Over the history of machine autonomy research, it has been considered that autonomy ought to be seen as existing on a spectrum, with systems under complete human control on the one side and completely, or fully, autonomous systems on the other end of the spectrum. These spectra have most often been based strictly on the technological capabilities of such systems. Several different spectra of autonomy have been proposed, with different scales and ­different determinations of how autonomous systems should be considered at different levels. With these levels of autonomy, these different spectra, it has been attempted to make autonomy into something measurable and that these spectra could subsequently function as a potential roadmap determining how more autonomous functioning might be developed.23 These different spectra have led to confusion and an overabundance of different scales and therefore have not aided the discussion on autonomous systems, instead making the discussion even more difficult and diffused. The most commonly accepted manner to distinguish between systems has recently been the one followed by the US DoD. Rather than going into the exact minutiae of which aspects of the decision-​making or which functions are autonomous or automated, it rather divides systems on the basis of a three-​tier scale into broad categories. This simplified three-​tier scale generally refers to the levels of remote-​controlled systems, automated systems and lastly autonomous systems.24 The differentiation between the levels is based on the degree of human involvement in the functioning of systems.25 For the 22 23 24

25

Tetyana Krupiy, ‘Of Souls, Spirits And Ghosts: Transposing the Application of the Rules of Targeting to Lethal Autonomous Robots’ (2015) 16 Melbourne Journal of International Law 145 148; Crootof (n 1) 1845. Defence Science Board Task Force Report, The Role of Autonomy in DoD Systems, United States Department of Defence 2012, 23–​24; Noorman & Johnson (n 6) 57. Defence Science Board Task Force Report, The Role of Autonomy in DoD Systems, United States Department of Defence 2012, 2–​4; icrc Expert Meeting, Autonomous Weapon Systems: Technical, Military, Legal and Humanitarian Aspects, Geneva Switzerland 26–​ 28 March 2014, 62; Paul Scharre & Michael Horowitz, ‘An Introduction to Autonomy in Weapon Systems’ Center for New American Security 2015, 4. Alston (n 4) 40, Markus Wagner, ‘The Dehumanization of International Humanitarian Law: Legal, Ethical, and Political Implications of Autonomous Weapon Systems’ (2014)

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determination of a legally effective definition, as well as the determination of the nature of autonomy, it is not necessary to refer back to different spectra of autonomy that have been proposed in the past, since this has mostly been foregone in the current discussion and has led mainly to confusion in the past.26 In general it also does not seem wise to follow a purely technical approach of distinguishing between different systems on the basis of such a spectrum when discussing autonomous systems in a legal sense, as Rebecca Crootof rightly stated: ‘a purely mechanical definition of autonomy for weapon systems might have the perverse effect of distinguishing among different weapon systems for technical reasons regardless of whether they operate similarly in practice, or vice versa’.27 3

Dimensions of Autonomy in Autonomous Systems

Another aspect of the term autonomy that creates confusion in the discussion is that it can be referring to different dimensions of a machine, with different functions having different levels of autonomy. The problem here lies in the use of the term autonomy by different parties while referring to different dimensions of autonomy in machines. Generally, it can be said that autonomy is considered in the following three aspects, or can be said to consist of the following three dimensions: –​ The human-​machine relation –​ The sophistication of the machine –​ The type of decision or function being automated28 These different dimensions are largely independent from each other, a system which is considered more autonomous in one of these dimensions would not necessarily be autonomous in the other regards.29 While this is not the only manner in which autonomy can be described, it does incorporate the three

26 27 28

29

47 Vanderbilt Journal of Transnational Law 1371, 1379–​1383; Gabi Siboni & Yoni Eshpar, ‘Dilemmas in the Use of Autonomous Weapons’ (2014) 16(4) Strategic Assessment 75, 76. Scharre (n 4) 8; Scharre & Horowitz (n 24) 4. Crootof (n 1) 1846. icrc Expert Meeting, Autonomous Weapon Systems: Technical, Military, Legal and Humanitarian Aspects, Geneva Switzerland 26–​28 March 2014, 15; Scharre (n 4) 9; Williams (n 1) 53; Scharre & Horowitz (n 24) 5–​6; Remus Titiriga, ‘Autonomy of Military Robots: Assessing the Technical and Legal (“Jus in Bello”) Thresholds’ (2016) 32(2) The John Marshall Journal of Information Technology and Privacy Law 57, 59. Scharre (n 4) 11; Scharre & Horowitz (n 24) 5; Scharre (n 5) 12.

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most commonly bases for deciding the level of autonomy and provides a decent overview of most of the current interpretations. Human-​Machine Relation 3.1 The first of these dimensions is the human-​machine command-​and-​­control relationship. This is the level to which there needs to be interaction of a human with the machine, or to put it differently whether there is a need for human  input and how often or in what circumstances this is needed. This human-​machine relation is an often-​used method to describe what autonomy is in the context of aws.30 In this context much of the discussion revolves around the determination of whether a system can be considered as either man-​in-​the-​loop, man-​on-​ the-​loop, or man-​out-​of-​the-​loop. The loop refers to Boyd’s four-​step process of human decision-​making: Observe, Orient, Decide, Act, commonly referred to as the ooda-​Loop.31 The idea is that a human must first gather information about the environment, which is the Observe-​stage. Then he must interpret this information, referred to as the Orient-​stage of the decision loop. Based on this orientation the human weighs different potential actions and Decides how to act. This finally leads to the actual execution of the decision, the Act-​stage of the loop.32 This loop is used as an effective manner to understand decision-​ making in humans as well as in machines.33 Engineers and roboticists have therefore adopted this loop to explain how machine systems make decisions and interact with the world.34 The ooda-​loop is a very simplified illustration of decision-​making in either humans or machines, because in practice there is no clean linear process due to feedback and integration in different stages

30

31 32

33 34

Scharre (n 4) 10; Jeffrey Caton, ‘Autonomous Weapon Systems: A Brief Survey of Developmental, Operational, Legal and Ethical Issues’ The Letort Papers, Strategic Studies Institute US Army War College 2015 2; Markus Wagner, ‘Die Zukunft der Kriegsführung? Autonome Waffensysteme als Herausforderung für das Völkerrecht’ (2016) 2 Vereinte Nationen 73, 73. Marra & McNeil (n 11) 1144; Bradan Thomas, ‘Autonomous Weapon Systems: The Anatomy of Autonomy and the Legality of Lethality’ (2015) 37(1) Houston Journal of International Law 235, 242; McFarland (n 17) 35. Berndt Brehmer, ‘The Dynamic OODA Loop: Amalgamating Boyd’s OODA Loop and the Cybernetic Approach to Commad and Control’ (10th International Command and Control Research Technology Symposium The Future of C2 2005) 2; Grant Hammond, ‘On the Making of History: John Boyd and American Security’ The Harmon Memorial Lecture US Air Force Academy 2012 8–​9; Marra & McNeil (n 11) 1144. Marra & McNeil (n 11) 1144. Marra & McNeil (n 11) 1145–​1146.

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of the ‘loop’.35 Even though simplified the ooda-​loop offers an opportunity to understand the basic manner in which systems are designed to make decisions as well as offering a comparison between systems. When using the ooda-​loop to determine the autonomy it must however be mentioned that the level of autonomy within the different stages of the ooda-​loop can differ.36 The amount of independence of the system in fulfilling the ooda-​loop may also differ between different functions of a system. The statements in-​the-​loop, on-​the-​loop and out-​of-​the-​loop, thus consider the position which a human operator has in the overall decision making of a machine system, meaning that the more of a machine can execute the ooda-​loop on its own, the greater the autonomy is within the system.37 Human-​in-​the-​loop systems are those systems where the system is directly controlled by a human, or where humans must give an affirmative order before a system can act.38 The most common example of human-​in-​the-​loop systems are remote-​controlled systems, such systems are relatively easy to distinguish from man-​on-​the-​loop or man-​out-​of-​the-​loop systems. Such man-​in-​the-​loop systems are not new and almost all unmanned systems have been man-​in-​the-​ loop ever since the invention of the first remote-​controlled boat in the 19th century. The majority of unmanned systems in use today, including the best-​ known examples of unmanned systems such as the Predator-​drone or the Packbot, are remote-​controlled and thus man-​in-​the loop.39 Man-​on-​the-​loop systems are systems where a human operator would no longer directly control the system or where the system no longer requires affirmation before engaging a target, but rather the human would solely supervise and monitor the actions of a system, most often this is interpreted as also including a requirement that the human supervisor has the ability to override the actions of the system.40 Examples of such systems can be found in many of the automatic defence systems in use today, such as the c-​r am or the Aegis. Others have interpreted man-​on-​the-​loop as meaning that a human only needs to be able to intervene when the system fails or malfunctions, as long as 35 36 37 38 39 40

Brehmer (n 32) 2–​3; Marra & McNeil (n 11) 1146. Marra & McNeil (n 11) 1152; Crootof (n 1) 1846. Marra & McNeil (n 11) 1150; Wallach & Allen (n 15) 126; Titiriga (n 28) 61. Alston (n 4) 40; Wallach & Allen (n 15) 126; Scharre & Horowitz (n 24) 6. Alston (n 4) 42–​43; Kastan (n 12) 49; Wallach & Allen (n 15) 128. Wallach & Allen (n 15) 126; Gwendelynn Bills, ‘LAWS unto Themselves: Controlling the Development and Use of Lethal Autonomous Weapons Systems’ (2014) 83 the George Washington Law Review 176, 182; Joel Hood, ‘The Equilibrium of Violence: Accountability in the Age of Autonomous Weapons Systems’ (2015) 11 International Law and Management Review 12, 26; Scharre & Horowitz (n 24) 6.

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there is monitored supervision over the system and that it is not necessary for human to have the ability to intervene in every decision taken by the system.41 Following from the interpretation of man-​in-​the-​loop and man-​on-​the-​ loop it logically means that out-​of-​the-​loop systems are those systems where a human has no immediate and direct involvement in the actions of a system, meaning that there is neither an active role, nor a direct supervisory role for humans. As already discussed, this does mean that there is entirely no human involvement at any level, as the programming will still be done by a human, however that the direct operation is done without any direct human interference.42 This manner of distinction appears to follow logically from the manner in which engineering defines autonomy, namely that the machine is capable of acting without direct human involvement. The problem with this interpretation is that this in itself does not necessarily distinguish between truly autonomous systems and systems which should be considered automated, since both concepts refer to acting without human intervention and as such could be considered as being human-​out-​of-​the-​loop systems.43 One might consider this as being implied in the use of the ooda-​ loop, since generally less technological sophisticated or less autonomous systems cannot be considered as genuinely making decisions, instead following a pre-​programmed routine. Another interpretation is that due to the very strict set programming such systems should be considered as being man-​on-​ the-​loop or man-​in-​the-​loop systems, since there is very significant human involvement prior to deployment setting very specific parameters for action.44 However, even when taking these viewpoint it remains at times difficult to correctly assess the autonomous or automated status of a machine, especially when the amount of interaction with humans decreases. This is aggravated when the concept is approach without taking the degree of possible intervention into account.45 Armin Krishnan has tried to come to a four-​tier spectrum which looks to ameliorate this problem. This scale distinguishes between tele-​ operation, pre-​programmed, supervised autonomy and complete autonomy, thereby making a clearer distinction where automated systems would fall, by

41 42 43 44 45

Scharre (n 4) 10. McFarland (n 17) 30–​31. Marra & McNeil (n 11) 1150; Nils Melzer, ‘Human Rights Implications of the Usage of Drones and Unmanned Robots in Warfare’ Directorate-​General for External Policies, European parliament 2013, 6. John Murphy, ‘Mission Impossible? International law and the Changing Character of War’ (2011) 87 International Law Studies/​U.S. Naval War College 13, 25; Alston (n 4) 40. Marra & McNeil (n 11) 1149; Wallach & Allen (n 15) 126; Beard (n 9) 627.

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having a separate category for them in between so-​called man-​in-​the-​loop and man-​on-​the-​loop systems.46 Neither of these spectra take into account the possibility that a system which is intended to be human-​supervised could be operated without such supervision or where the period of time for a possible intervention could be too short for a human to effectively intervene. As a consequence the distinction between on-​the-​loop and out-​of-​the-​loop could in many cases not be a technical question of autonomy, but a practical one about the manner in which these systems are used.47 Even when following any of these distinctions it is unlikely that any system will be completely free of human input, mainly due to the fact that these systems will operate under parameters and frameworks that will be programmed in by humans, as well as the decision to deploy the system will remain within human control.48 This is the reason why some even go as far as considering the wider loop of any human involvement in this consideration for determining when a system could truly be called out-​of-​the-​loop.49 Sophistication of the Machine 3.2 The second aspect of a system to which the term autonomy can refer to is the sophistication of the machine’s decision-​making. This sophistication can be seen as the complexity of the system. This complexity is mainly concerned with how the decision-​making within the system takes place. From this perspective automatic systems are those systems with simple, mechanical responses to specific inputs. Automated systems would then be more complex, but still strictly rule-​based systems, with pre-​programmed responses for specific instances. The term autonomous system would be reserved for those systems that are capable of self-​direction, some form of machine learning and adaptability or emergent behaviour which is not directly predictable. However, some think 46 47 48

49

Krishnan (n 3) 43–​44. United Nations General Assembly, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions: Christof Heyns, United Nations Human Rights Council, 2013 UNDoc: a/​h rc/​23/​47, 8; Crootof (n 1) 1850. United Nations General Assembly, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions: Christof Heyns, United Nations Human Rights Council, 2013 UNDoc: a/​h rc/​23/​47, 8; Michael Schmitt, ‘Autonomous Weapon Systems and International Humanitarian Law: A Reply to the Critics’ [2013] Harvard National Security Journal Features 4; Thurnher (n 16) 181; Christof Heyns, ‘Human Rights and the use of Autonomous Weapons Systems (aws) During Domestic Law Enforcement’ (2016) 38(2) Human Rights Quarterly 350, 358. Adviesraad Internationale Vraagstukken/​Commissie van Advies inzake Volkenrechtelijke Vraagstukken, Autonome Wapensystemen, de Noodzaak van Betekenisvolle Menselijke Controle, aiv no. 97/​cavv no. 26 October 2015, 17.

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that the complexity needs to be even higher to be truly autonomous and see autonomous systems as those that are capable of actual intelligence and free will, thus following an approach which seems to draw quite heavily from the philosophical understanding of autonomy.50 From this interpretation of the different types of systems follows that perhaps the most important distinction that needs to be made in determining what autonomous systems are, is between automated and autonomous. Automated weapons are weapons which do not require human control during the deployment of the systems, but there often is very significant human involvement prior to deployment.51 Automated systems can be understood as unsupervised systems which are programmed to follow repetitive, structured and routine operations.52 These systems are programmed prior to their deployment and subsequently follow the parameters of their programming completely and without fail, unless there is a malfunction.53 An automated system would only be able to function in structured environments and only capable of carrying out a pre-​programmed sequence of actions, as such they are not capable of adaptation unless new information is programmed in.54 Autonomous systems on the other hand would be capable of adapting to uncertainties and integrating new information, thus able to function in open and unstructured environments.55 This means that the greater the capability to adapt, the more

50 Scharre (n 4) 10; Scharre & Horowitz (n 24) 6. 51 Markus Wagner, ‘Autonomy in the Battlespace: Independently Operating Weapon Systems and the Law of Armed Conflict’ in Dan Saxon (ed.) International Humanitarian Law and the Changing Technology of War (Koninklijke Brill nv 2012) 104–​105; Wagner (n 25) 1382. 52 Asaro (n 15) 690; Krupiy (n 22) 148; Roni Elias, ‘Facing the Brave New World of Killer Robots: Adapting the Development of Autonomous Weapons Systems into the Framework of the International Law of War’ (2016) 3(1) The Indonesian journal of International and Comparative law 101, 104. 53 Sharkey (n 1) 141; Kastan (n 12) 49; Wagner (n 25) 1382. 54 Jakob Kellenberger, ‘Keynote address’ International Humanitarian Law and New Technologies, 34th Round Table on current issues of international humanitarian law, San Remo 8–​10 September 2011, reprinted in (2012) 94(886) International Review of the Red Cross 809, 812; icrc Expert Meeting, Autonomous Weapon Systems: Technical, Military, Legal and Humanitarian Aspects, Geneva Switzerland 26–​28 March 2014, 60; Wagner (n 25) 1382; Geiss (n 11) 6. 55 Alan Backstrom & Ian Henderson, ‘New capabilities in warfare: an overview of contemporary technological developments and the associated legal an engineering issues in Article 36 weapons reviews’ (2012) 94(886) International Review of the Red Cross 483, 490; Sharkey (n 1) 141; Wagner (n 25) 1383; Bills (n 40) 181.

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autonomous such a system would be.56 These systems would also require less direct human involvement prior to their deployment.57 It has been said that one of the main differences between autonomous and automated weapon systems would be the predictability.58 This is largely related to the adaptability just discussed. In general it can be stated that an automated weapon system is completely predictable, the programming of such a system only allows for a specific reaction to a specific input with no other possible actions of such a system (this is obviously barring a potential malfunction of the system), meaning that if the programming is known, the action is known, this can also be referred to as deterministic or rule-​based programming.59 It has sometimes been stated that, unlike an automated weapon, an autonomous system is not entirely predictable in what actions are taken by the system, as there can potentially be a range of probable reactions. In other words, the overall functioning of the autonomous weapon might be predictable, but the exact action taken by an autonomous weapon in every specific situation might not be predictable. This unpredictability stems from the autonomous system being able to function in unstructured environments and therefore capable of some form of adaptation or discretion.60 In order to ensure that the programming is still functional in these instances the incorporating of either adaptive or intelligent control is necessary. Adaptive control would allow systems to tune the operating parameters of a system in response to changes in the operating environment or the system itself but can only function if potential changes are modelled in the programming. This limits the complexity or uncertainty in which these systems can be employed as these need to programmed with sufficient detail. Intelligent control would be necessary in more complex and unpredictable environments, which would require some form of ai allowing it to emulate to some extent biological cognitive processes.61 Especially the notion of discretion in decision-​making could be said to be what differentiates autonomous systems from automated systems. In this regard discretion 56 57 58 59

Kastan (n 12) 50; Marra & McNeil (n 11) 1153–​1154. Wagner (n 51) 105. Boulanin (n 1) 5. icrc Expert Meeting, Autonomous Weapon Systems: Technical, Military, Legal and Humanitarian Aspects, Geneva Switzerland 26–​28 March 2014, 13; Foy (n 90) 40; Boothby (n 20) 104; Williams (n 1) 32. 60 Sharkey (n 1) 141; Kenneth Anderson & Matthew Waxman, ‘Law and Ethics for Autonomous Weapon Systems: Why a ban Won’t Work and How the Laws of War Can’ Hoover Institution, Stanford University, 2013 5–​6; Boothby (n 20) 105; Wagner (n 25) 1383; Boulanin (n 1) 5; Scharre (n 5) 12. 61 McFarland (n 17) 37–​40.

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needs to be understood as the ability of the system to independently determine a course of action out of several alternatives and act in a manner it determines best to complete its assigned mission, all without human involvement or intervention.62 In all likelihood autonomous systems would incorporate some form of probability-​based reasoning which would create the situation where it might be impossible to accurately and with certainty predict the decisions and actions of the machine, thus confounding the possibility of unpredictable outcomes.63 The difference between this understanding of autonomy and understanding autonomy only as independently operating of the machine has been eloquently described as (t)he machine not only operates independent of the human operator, but also, to a certain extent, independent of its human creators.64 Even this interpretation of autonomy is not directly correlated to machines which are capable of ‘real’ thought or so-​called “strong” ai. It is, however, sometimes conflated with this and thus comes closer to the philosophical definition of autonomy, especially if one were to claim that only systems with “strong” ai should be considered as autonomous, as some do.65 It must be stated that some level of ai, some state a significantly high level of ai, will be necessary to deploy autonomous systems, this does not mean that these systems will think and make decisions similar to how a human would do this.66 A machine does not truly have intention, nor would it be self-​aware, as such its decision-​making cannot be considered as analogous to human decision-​ making.67 Another aspect that must be understood is that an autonomous system would still be ruled by its programming, but that this programming allows for operation in unstructured environments and possible adaptation within boundaries set by the programming.68 These two considerations should exemplify that this dimension of autonomy is not to be considered as similar to the philosophical definition. 62 63 64 65 66 67 68

Wagner (n 25) 1383; Marra & McNeil (n 11) 1154; Boothby (n 20) 105; Vincent Boulanin, ‘Implementing Article 36 Weapon Reviews in the Light of Increasing Autonomy in Weapon System’ (2015) 1 sipri Insights on Peace and Security 1, 8; Wagner (n 30) 74. icrc Expert Meeting, Autonomous Weapon Systems: Technical, Military, Legal and Humanitarian Aspects, Geneva Switzerland 26–​28 March 2014, 13; Anderson, Reisner & Waxman (n 20) 394; Krupiy (n 22) 150; Williams (n 1) 39; Heyns (n 48) 356. Noorman & Johnson (n 6) 58. Noorman & Johnson (n 6) 53; Scharre & Horowitz (n 24) 6. Sharkey (n 1) 142; Lucas (n 12) 327–​332; Beard (n 9) 623. Lucas (n 9) 218. Asaro (n 15) 690; Sharkey (n 1) 141; Lucas (n 9) 218–​219; Schmitt (n 48) 4; Toscano (n 8) 194; Boulanin (n 231) 8.

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The Type of Decision Being Automated 3.3 The third approach to describe autonomy does so based on the type of decision or the function that is being automated. With this approach it is no longer necessary to talk about the question of achieving ‘full autonomy’, but to focus on which tasks are being done by, or requiring involvement of, a human and which are done independently by a machine and what the relation between the human and the machine is for different functions. Here the system is discussed more in the context of autonomous functions which a system might possess instead of describing entire systems as having ‘autonomy’, since this level of human involvement can widely differ depending on the specific function that is concerned.69 For many it appears likely that the incremental development of autonomy in new weapon systems will take place by creating systems that have more and more functions which can be conducted autonomously.70 It is because of these reasons that some argue that the discussion should not focus on a definition of aws, but focus on autonomous functioning within weapon systems.71 Many of the discussions at least partially focus on autonomy from this perspective and there has been a drive to focus more on this aspect. It is often considered that especially those systems in which the targeting process is being automated are the types of systems that raise the most issues and that other functions, such as navigation, are not as problematic.72 Sometimes those weapons which have autonomy in other functions but not in the targeting cycle are considered to be semi-​autonomous.73 This could be considered as a more functional and practical approach that might be more appropriate to truly consider autonomy in weapon systems in a realistic and constructive manner.

69 70 71

72

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unidir, Framing Discussions on the Weaponization of Increasingly Autonomous Technologies, unidir Resources no. 1, 2014, 4; Scharre (n 4) 11; Williams (n 1) 54; Titiriga (n 28) 62. Sharkey (n 1) 141; Anderson & Waxman (n 60) 18–​19; Melzer (n 43) 9; Anderson, Reisner & Waxman (n 20) 389. Policy Guidance: Autonomy in Defence Systems, Multinational Copability Development Campaign, 2014, 7–​8; Williams (n 1) 55–​57; Report of the 2015 Informal Meeting of Experts on Lethal Autonomous Weapons Systems (laws), UNdoc ccw/​m sp/​2015/​3, par. 41; Scharre & Horowitz (n 24) 17. Melzer (n 43) 9; unidir, Framing Discussions on the Weaponization of Increasingly Autonomous Technologies, unidir Resources no. 1, 2014, 3; icrc Expert Meeting, Autonomous Weapon Systems: Technical, Military, Legal and Humanitarian Aspects, Geneva Switzerland 26–​28 March 2014, 62; Scharre (n 4) 12; Geiss (n 11) 6; Scharre & Horowitz (n 24) 7; Boulanin (n 1) 6; Heyns (n 48) 356. Crootof (n 1) 1844.

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Conclusion

While this chapter has laid out the general notions of understanding autonomy, from the philosophical to the highly technical, it shows that there are clear distinctions between different understandings. But the question then is what makes aws different and how should such weapon systems be perceived? The notion of autonomy is often underspecified, this is understandable for several different reasons. Part of this is likely because it is generally understood that autonomy does not yet exist in machines and as such any discussion on how such systems will function in the future will remain speculative until autonomous systems are operational.74 This notion of whether autonomous systems are merely systems with a very high level of automation or if they are something more is part of the discussion and part of the confusion since the differences between positions are not always made clear and the term autonomy is used while referring to different things. This is further complicated due to the fact that there are different interpretations of the term autonomy, which leads to the situation that while different stakeholders will use the same terms, they might well mean something completely different. The confusion within this discussion is compounded by the different dimensions to autonomy in weapon systems. Within both the philosophical and the technological interpretation of autonomy the human-​machine relationship is at the basis, however the manner in which this needs to be seen is different between these, with the philosophical approach also needing an exceedingly high level of sophistication of the machine, while even the most basic system might be considered as being autonomous from an engineering perspective. The line between autonomous and highly automated weapons is very thin and very unstable, which is part of the reason why there is a disagreement about whether aws already exist.75 This can also be seen from a technological perspective, as the technology is strikingly similar between a highly automated system and an autonomous system.76 These are, however, general notions on how to distinguish between different systems without any real specificity and can by themselves not be considered as being practical to use in a legal environment to be used as a definition to base regulation on. It is because of this reason that there is still significant discussion on what the correct definition for aws would be, an issue that has been the focal point of the discussions in the context of the Group of Governmental Experts of the Convention on 74 75 76

Noorman & Johnson (n 6) 52; Scharre & Horowitz (n 24) 4. Anderson, Reisner & Waxman (n 20) 389; Scharre (n 4) 11. Anderson, Reisner & Waxman (n 20) 397; Geiss (n 11) 6.

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Certain Conventional Weapons for several years. However, for the purposes of this book and the issue of individual criminal responsibility for the actions of an aws it is not necessary to follow a strict definition. The general notion of what autonomy is and how it should be considered as has been discussed within this chapter are a sufficient basis to determine the applicability of existing forms of criminal responsibility.

­c hapter 4

The Why of International Criminal Justice Although international criminal justice has developed as a response to atrocities and in many ways is a reactionary field of law there needs to be some explanation as to why this would be part of a correct response to aws. This is especially relevant due to the fact that aws have been discussed in many other fields of law from which potential responses to the issue are being sought.1 In this regard it is necessary to first have a short overview of the history and development of individual criminal responsibility in international criminal justice and the way it came into being. After that this chapter will look at the justifications that have been given for the use of international criminal justice and an assessment of these justifications on the basis of which it will be concluded in what manner international criminal justice can have a positive effect and must be seen as part of the approach to such atrocities. It will thereby show the role that criminal justice has within the discussion on aws.

1 Perhaps most of the discussion has been focused around international humanitarian law and the potential issues for aws to comply with international humanitarian law. See for example: Michael Schmitt, ‘Autonomous Weapon Systems and International Humanitarian Law: A Reply to the Critics’ [2013] Harvard National Security Journal Features; Kenneth Anderson & Matthew Waxman, ‘Law and Ethics for Autonomous Weapon Systems: Why a ban Won’t Work and How the Laws of War Can’ Hoover Institution, Stanford University, 2013; Markus Wagner, ‘The Dehumanization of International Humanitarian Law: Legal, Ethical, and Political Implications of Autonomous Weapon Systems’ (2014) 47 Vanderbilt Journal of Transnational Law 1371; Evans (n 55); Chantal Grut, ‘The Challenge of Autonomous Lethal Robotics to International Humanitarian Law’ (2013) 18(1) Journal of Conflict & Security Law 5; James Foy, ‘Autonomous Weapons Systems: Taking the Human out of International Humanitarian Law’ (2014) 23 Dalhousie Journal of Legal Studies 47; Kjolv Egeland, “Lethal Autonomous Weapon Systems under International Humanitarian Law,” (2016) 85(2) Nordic Journal of International Law 89–​118; Thompson Chengeta, ‘Measuring Autonomous Weapon Systems against International Humanitarian Law Rules’ (2016) 5 Journal of Law and Cyber Warfare 66; Alan L Schuller, ‘At the Crossroads of Control: The Intersection of Artificial Intelligence in Autonomous Weapon Systems with International Humanitarian Law’ (2017) 8 Harvard National Security Journal 379; Matthias Brenneke ‘Lethal Autonomous Weapon Systems and Their Compatibility with International Humanitarian Law: A Primer on the Debate’. In: Gill T, Geiß R, Krieger H, Paulussen C (eds.) Yearbook of International Humanitarian Law, Volume 21 (2018) (T.M.C. Asser Press 2020).

© Barry de Vries, 2023 | DOI:10.1163/9789004524316_005

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The History of Individual Criminal Accountability in International Criminal Justice

While it could be said that there is some international criminal law before the First World War,2 but realistically the first real clear indication of a possibility to prosecute individuals for actions that could be considered international crimes can only be found after the First World War. Prior to that there was a very clear distinction in international law between the state and the individual, with only the former having direct obligations put upon it through international law.3 During the negotiation of the peace treaties against Germany and the Ottoman Empire there was significant discussion about the possibility of holding individuals accountable for acts that up to then would have been considered state actions, This was brought up together with the possibility of having international tribunals to hold specific individuals accountable.4 While initially there was the intention to hold multiple persons accountable before an international tribunal,5 the final treaty with Germany only included a provision to try Kaiser Wilhelm ii before an international tribunal.6 Although the wording of the provision has created some doubts over whether there was ever any real intention to set up this international tribunal and try him in earnest7 and it has been said that the provision itself can be seen as showing a presumption of guilt against the Kaiser.8 Outside of this specific tribunal the Versailles Treaty included a provision which would allow for military tribunals to be instituted by the Allied Powers for the prosecution of others.9 The Allied Powers did not create military tribunals, instead the Germans were permitted 2 Kai Ambos, Treatise on International Criminal Law: Volume i: Foundations and General Parts (Oxford University Press 2013) 1–​2; Noora Arajärvi, The Changing Nature of Customary International Law: Methods of interpreting the concepts of custom in international criminal tribunals (Routledge 2014) 35–​37. 3 Gerhard Werle & Florian Jessberger, Principles of International Criminal Law (Oxford University Press 2014) 1. 4 William Schabas, The International Criminal Court; A Commentary on the Rome Statute (Oxford University Press 2010) 1–​2. 5 Kirsten Sellars, Trying the Kaiser: The Origins of International Criminal Law, in: Morten Bergsmo, Cheah Wui Ling & Yi Ping (eds.), Historical Origins of International Criminal Law: Volume i (Torkal Opsahl Academic EPublisher 2014) 195–​ 212; Theodor Meron, ‘Reflections on the Prosecution of War Crimes by International Tribunals’ (2006) 100(3) The American Journal of International Law 551, 555–​556. 6 Art. 227 Treaty of Peace between the Allied and Associated Powers and Germany, 28 June 1919 (hereafter: Versailles treaty). 7 M Cherif Bassiouni, ‘Justice and Peace: The Importance of Choosing Accountability over Realpolitik’ (2003) 35(2) Case Western Journal of International Law 191, 193. 8 Schabas (n 4) 2. 9 Art. 228 and art. 229 Versailles treaty.

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to try certain individuals themselves under their national law. These subsequent German trials cannot be considered as serious attempts to prosecute the individuals in any meaningful manner.10 In the Treaty of Sèvres11 provisions provided for the prosecution of Turkish individuals for war crimes12 and unlike the Versailles Treaty there was also a provision that provided for the prosecution of people ‘responsible for the massacres committed during the continuance of the state of war on territory which formed part of the Turkish Empire on August 1, 1914’, which can be seen as a precursor to the later notion of crimes against humanity.13 This treaty never entered into force and in the subsequent peace treaty with Turkey14 this provision was not included and provided for a protocol guaranteeing amnesties.15 These provisions in the Versailles Treaty and the Treaty of Sèvres, do show the start of the acceptance that individuals should in certain circumstances be held accountable under international law, a clear divergence from the doctrine within international law up to that point.16 During the Interbellum there were several attempts at setting up some form of tribunal, or special chamber of the Permanent Court of International Justice, for the adjudication of individuals for acts considered as internationally criminal acts, these attempts were in vain and never received much support from the international community.17 In 1937 there was a convention adopted which would create an international court which would have the ability to try individuals that breached provisions included in the Convention for the Prevention and Punishment of Terrorism18 but these treaties never entered into force.19 10

Werle & Jessberger (n 3) 4; Joseph Rikhof, The Istanbul and Leipzig Trials: Myth or Reality? In: Morten Bergsmo, Cheah Wui Ling & Yi Ping (eds.), Historical Origins of International Criminal Law: Volume i (Torkal Opsahl Academic EPublisher 2014) 259–​298; Bassiouni (n 7) 193. 11 Treaty of Peace Between the Allied powers and the Ottoman Empire, signed at Sèvres 10 August 1920. 12 Art. 226, 227 Treaty of Peace Between the Allied powers and the Ottoman Empire, signed at Sèvres 10 August 1920. 13 Art. 230 Treaty of Peace Between the Allied powers and the Ottoman Empire, signed at Sèvres 10 August 1920. 14 Treaty of Peace with Turkey Signed at Lausanne 24 July 1923. 15 Bassiouni (n 7) 194; Meron (n 5) 558. 16 Meron (n 5) 553–​554. 17 Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millennium (Transnational Publishers Inc. 2002) 24; Schabas (n 4) 3–​4. 18 Convention for the Creation of an International Criminal Court 1937, Convention for the Prevention and Punishment of Terrorism 1937, ilc, Historical Survey of the Question of International Criminal Jurisdiction, 1949, UN Doc a/​c n.4/​7/​Rev.1, 17–​18; M Cherif Bassiouni, The Statute of the International Criminal Court: A Documentary History (Transnational Publishers, Inc. 1998) 10. 19 Sadat (n 17) 25, Kirsten Sellars, Founding Nuremberg: Innovation and Orthodoxy at the 1945 London Conference, in: Morten Bergsmo, Cheah Wui Ling & Yi Ping (eds.), Historical

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The atrocities that occurred during the Second World War made the idea of individual criminal responsibility under international law resurface. The idea of having a criminal trial to assess the guilt of individuals was initially not readily embraced during the war and there were arguments put forth to instead summarily execute the German leadership that would be caught.20 After lengthy discussions and much debate the idea of setting up a tribunal to deal with these individuals gained more ground and was seen as the most suitable manner to deal with the issue.21 This culminated at the London Conference where the London Charter was adopted, which included the foundation of the International Military Tribunal (imt) in Nuremberg.22 Although it is often called an international tribunal there is some argument that this t­ ribunal cannot, strictly speaking, be considered international court, but a joint national court based on occupation law.23 It is generally agreed that the trial before the imt was conducted in a fair manner with at least some regard to issues of due process, which is at least partially indicated through the acquittal of several of those indicted.24 An interesting difference between the imt and subsequent international tribunals is the fact that at the imt there were also s­ everal organizations that were prosecuted, this was not for the ­specific reason to hold these organizations accountable, but more to ensure that i­ ndividual d­ efendants could then at later trials be prosecuted and convicted on the basis of their membership of such an organization,25 thus it cannot be construed as forming a basis to hold organizations themselves responsible.

20

21 22 23 24 25

Origins of International Criminal Law: Volume i (Torkal Opsahl Academic EPublisher 2014) 541–​562. Robert Sloane, ‘The Expressive Capacity of international Punishment: The Limits of the National Law Analogy and the Potential of International Criminal Law’ (2007) 43(1) Stanford journal of International Law 39, 65; Mark Osiel, ‘Why Prosecute? Critics of Punishment for Mass Atrocity’ (2000) 22(1) Human Rights Quarterly 118, 131; David Scheffer, ‘Nuremberg Trials’ (2008) 39 Studies in Transnational Legal Policy 155, 157–​158. Meron (n 5) 551–​552; Antonio Cassese, ‘The Rationale for International Criminal Justice’, in: Antonio Cassese (ed.), The Oxford Companion to International Criminal Justice (Oxford University Press 2009) 128. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal, London, 8 August 1945. Hans-​Heinrich Jescheck, ‘The General Principles of International Criminal Law Set Out in Nuremberg, as Mirrored in the ICC Statute’ (2004) 2(1) Journal of International Criminal Justice 38, 38–​39. Meron (n 5) 552; Bassiouni (n 18) 8; Scheffer (n 20) 161–​162, 178–​179. Scheffer (n 20) 165–​166.

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After the conclusion of hostilities in the Far East another tribunal was set up to try the political and military leaders of Japan in a similar manner. Unlike the imt this tribunal was not set up by way of a multilateral agreement, but was based on a directive from the commander in chief of allied forces, General MacArthur.26 The charter of the International Military Tribunal for the Far East (imtfe) did however closely follow the London Charter and it was clear that the basis of this document was the London Charter.27 The Tokyo trial took place from 29 April 1946 to 12 November 1948, and unlike at the imt all those who received judgement were convicted.28 While the imt and especially the imtfe most certainly had their flaws and significant criticisms can be and have been made against them,29 it is evidently clear that these tribunals were a watershed moment in international criminal law and had a significant effect on the formation and the applicable law at subsequent tribunals and courts.30 It was in the trials before these tribunals that the foundations of international criminal law were first explained and refined. The fact that international tribunals were set up after World War Two marked a clear change compared to the situation after the First World War, where there had been discussions and attempts at creating such a tribunal. These tribunals were the first time that these discussions and ideas formed the basis for implementation. As such it is these tribunals that are seen as the first precedents of international criminal law in practice and therefore the real birth of international criminal law.31 While after the First World War some g­ eneral notion was starting to develop that the subjects of obligations under international law were no longer solely states, but could potentially include individuals, it was here that this was put in practice and specifically acknowledged. 26 Charter of the International Military Tribunal for the Far East, 19 January 1946. 27 Meron (n 5) 565. 28 Yuma Totani, ‘International Military Tribunals at Tokyo 1946–​ 1949: Individual Responsibility for War Crimes’ in: Morten Bergsmo, Cheah Wui Ling & Yi Ping (eds.), Historical Origins of International Criminal Law: Volume ii, (Torkal Opsahl Academic EPublisher 2014) 31; Meron (n 5) 562. 29 Werle & Jessberger (n 3) 8–​10; Bassiouni (n 7) 196–​197; Meron (n 5) 552, 570–​571; Christian Tomuschat, ‘The Legacy of Nuremberg’ (2006) 4(4) Journal of International Criminal Justice 830, 832–​834. 30 David Koller, ‘The Nuremberg Legacy in the Historical Development of International Criminal Law’ in: Morten Bergsmo, Cheah Wui Ling & Yi Ping (eds.), Historical Origins of International Criminal Law: Volume i (Torkal Opsahl Academic EPublisher 2014); Bassiouni (n 18) 9; Roberto Bellelli, ‘The Establishment of the System of International Criminal Justice’ in: Roberto Bellelli (ed.), International Criminal Justice: Law and Practice from the Rome Statute to Its Review (Ashgate, 2010) 11–​12. 31 Sadat (n 17) 29; Werle & Jessberger (n 3) 5; Koller (n 30) 579.

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These tribunals were the basis to ensure the potential of attributing individual criminal responsibility for, at least some, international crimes.32 Immediately after the Second World War the UN affirmed the principle of the London Charter and considered the establishment of an international criminal code.33 This was done by giving a mandate to the ilc to c­odify offences against the peace and security of mankind and at a later date the General Assembly also invited the ilc to study the possibility and desirability of setting up a judicial authority to try individuals for such offences.34 During the Cold War there were some discussions about the issue of international criminal law, but its development and application was largely brought to a standstill due to the political climate of the time.35 During this time the legal basis for international criminal law was secured and the principles of the London Charter consolidated, but there was a lack of will to apply these principles.36 It was not until the Cold War was over that there was another significant development in the field. In 1989, on the request of Trinidad and Tobago, the General Assembly of the UN requested the ilc to research the issue of an international criminal court. While this initiative originally was intended to be focused on international drug crimes,37 over time this project would form the basis of the icc Statute.38 The atrocities that occurred in the 1990s shocked the world and were another factor for a renewed interest and sense of urgency for international criminal law and individual responsibility. The tensions within Yugoslavia had been rising for some time and at the start of the 90s these sparked the conflict which would dissolve Yugoslavia. During this conflict flagrant violations of humanitarian law and crimes against humanity occurred, leading the Security Council to take an unprecedented measure, instituting an international tribunal (the International Criminal Tribunal for the Former Yugoslavia (icty)) to try those 32 33

Jescheck (n 23) 43–​44; Scheffer (n 20) 180; Tomuschat (n 29) 840; Arajärvi (n 2) 38. unga Res. 95(i), Affirmation of the Principles of International Law Recognised by the Charter of the Nuremberg Tribunal, 11 December 1946; Werle & Jessberger (n 3) 17–​18; Arajärvi (n 2) 41. 34 United Nations General Assembly, Resolution 260 (iii), 9 December 1948; Koller (n 30) 566–​581. 35 Sadat (n 17) 32–​36; Andrew Altman & Christopher Wellman, ‘A Defence of International Criminal Law’ (2004) 115(1) Ethics 35, 54. 36 Werle & Jessberger (n 3) 14; There were some national prosecutions for specific cases, perhaps the most notable example: Attorney-​General of the Government of Israel v. Eichmann, translated and reprinted in: The American Journal of International Law (1962) 56(3) 805–​845. 37 UN ga Res 44/​39, Bassiouni (n 18) 16. 38 Werle & Jessberger (n 3) 18–​20, Bassiouni (n 18) 17.

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that were suspected of war crimes, crimes against humanity and genocide.39 There was significant resistance to the creation of an international tribunal initially, mainly because it was believed that this could potentially complicate achieving a political settlement of the conflict within the Former Yugoslavia.40 Even after the creation of the tribunal there was still resistance of states to cooperate with the tribunal, especially in the first years of the tribunal.41 In 1994 the longstanding conflict in Rwanda between the Hutu and Tutsi ethnic groups culminated in genocide after the plane of the Rwandan president was shot down.42 On the basis of the creation of the icty the Rwandan government requested the UN Security Council to institute a tribunal for Rwanda as well, the International Criminal Tribunal for Rwanda (ictr).43 While the creation of the ictr took some time, there does not appear to have been as significant a resistance to the idea as had been in the case of the icty. Even the simple constitution of these tribunals and their charters already made a significant contribution to the development of the law.44 Unlike in the case of the imt and the imtfe these tribunals could really be considered as international tribunals, since neither the icty nor the ictr were instituted by any victorious powers but rather by the UN and their bench consisted of impartial judges. This was part of the way in which the statutes for these tribunals tried to overcome some of the criticism that had been levied against the imt and the imtfe.45 The charters of the icty and the ictr clearly reflected the developments in the decades between the imt and the creation of the ad hoc Tribunals as well as the criticism that had been levied against the imt and imtfe. This could be seen in the more detailed definitions, the different scope and the lack of crimes against the peace.46 The ad hoc Tribunals contributed significantly to the development of humanitarian law and international criminal law through the refining and

39 40

unsc Res. 827 25 May 1993. Bartram S Brown, ‘The international Criminal Tribunal for the Former Yugoslavia’ in: M Cherif Bassiouni (ed.), International Criminal Law: Volume iii International Enforcement (Martinus Nijhoff Publishers 2008) 69–​71. 41 Ibid. 96–​99. 42 Roman Boed, ‘The International Criminal Tribunal for Rwanda’ In: M Cherif Bassiouni (ed.), International Criminal Law: Volume iii International Enforcement (Martinus Nijhoff Publishers 2008) 103–​104. 43 unsc Res. 955 8 November 1994. 44 Theodor Meron, ‘International Criminalization of Internal Atrocities’ (1995) 89(3) American Journal of International Law 554, 555–​561. 45 Koller (n 30) 577–​578. 46 Meron (n 5) 566–​567.

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explaining of these fields of law, both in their statutes as well as in their jurisprudence.47 As such the experience of the ad hoc Tribunals could certainly be argued as being successful, this is especially true when looking at it from a strictly legal perspective, with a significant number of judgments and ground-​ breaking developments in humanitarian and international criminal law.48 But perhaps just as important is that these tribunals renewed the commitment of the international community to institute a form of international criminal law.49 Through the creation of the icty and the ictr and the work of the International Law Commission there was a significant impetus at the time to create a permanent international criminal court which would be able to deal with these issues as they arose, without having to rely on ad hoc Tribunals for specific incidents. The creation of the icty and the ictr showed that there might be a willingness of governments to support the establishment of a permanent international criminal court.50 The quick development of International Criminal Law during the 1990s could also be argued to have been due to the failure of the international community to prevent or forestall the atrocities in the Former Yugoslavia and Rwanda.51 During the international conference to discuss the document that would become the icc Statute there were two opposite viewpoints as to what the icc should be, either a strong independent court, or a more symbolic type of court, which could be seen as an at the ready ad hoc court.52 In the end a compromise was reached which did grant the office of the prosecutor the right to initiate investigations and as such made the possibility of prosecution less reliant on political decision-​making.53 The Rome Statute of the International Criminal Court was adopted on 17 July 1998. It entered into force on 11 April 2002 when it exceeded the necessary 60 ratifications. An interesting manner in which the icc tries to overcome the claims of victors’ justice that the imt and the imtfe faced is similar to how it was dealt with in the icty and the ictr, by choosing sides but rather only referring ‘situations’.54 As it stands 123 states

47 Werle & Jessberger (n 3) 16. 48 Bellelli (n 30) 13. 49 Alexander Greenawalt, ‘Justice Without Politics: Prosecutorial Discretion and the International Criminal Court’ (2007) 39(3) nyu Journal of International Law and Politics 583, 590. 50 Sadat (n 17) 40; Bassiouni (n 18) 18–​19. 51 Sloane (n 20) 46–​47. 52 Werle & Jessberger (n 3) 19–​21. 53 Greenawalt (n 49) 593. 54 Art. 13 Rome Statute, Tomuschat (n 29) 844.

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are party to the icc Statute.55 During the 2010 Review Conference of the icc Statute in Kampala a definition of the crime of aggression was agreed on and the necessary articles were amended. At this time however only 39 states who have become party to this amendment.56 2

The Proposed Reasons for International Criminal Justice

There have been a litany of proposed justifications and goals that international criminal law has been said to achieve, but it is necessary to view whether it is able to achieve these goals and to what extend these truly warrant the use of international criminal law.57 Unlike traditional criminal law there are more divergent objectives under international criminal law and this overabundance of goals has been seen as potentially damaging the system of international criminal justice.58 Some of the commonly mentioned goals of international criminal justice include: retribution, deterrence, justice for the victims, peace, truth-​telling and reconciliation. 2.1 Retribution There has at times been a clear retributive aspect to international criminal justice, which was especially clear in the case of the tribunals after the Second World War.59 Retribution can be understood as the notion that the wrong that has been committed needs to be balanced and reconciled by punishment.60 Another manner in which it can be viewed is that the guilty deserve to suffer, which is a sentiment that can be seen throughout history.61 It has been 55 56 57 58

59 60 61

UN Treaty Database, Rome Statute of the International Criminal Court. UN Treaty Database, Amendments on the crime of aggression to the Rome Statute of the International Criminal Court. Danilo Zolo ‘Peace through Criminal Law’ (2004) 2(3) Journal of International Criminal Justice 727, 729. Mirjam Damaska, ‘Problematic Features of International Criminal Procedure’ in: Antiono Cassese (ed.), The Oxford Companion to International Criminal Justice (Oxford University Press 2009) 177–​178; Mark Drumbl, Atrocity, Punishment and International Law (Cambridge University Press 2007) 60. Sadat (n 17) 51; Altman & Wellman (n 35) 58, Immi Tallgren, ‘The Sensibility and Sense of International Criminal Law’ (2002) 13(2) European Journal of International Law 561, 590–​591. Tallgren (n 59) 580; Mirko Bagaric & John Morrs, ‘International Sentencing Law: In Search of a Justification and Coherent Framework’ (2006) 6(2) International Criminal Law Review 191, 241. Bagaric & Morrs (n 60) 243–​244.

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said that this justification in itself cannot be considered sufficient and that it is not proper to base the prosecution of individuals on this principle.62 This commonly held definition of retribution however appears to not be the interpretation followed within international criminal justice, which can be seen in that fact that the icty explicitly does not conflate the term with revenge or vengeance. The icty made clear that the manner in which retribution should be interpreted is as the expression of condemnation and outrage of the international community.63 This definition used by the icty however appears to move retribution to expressivism. This turns retribution towards something that is of a more utilitarian nature rather than strict punishment. 2.2 Deterrence The deterrence factor is one of the reasons most often mentioned for the prosecution of international crimes and it is often stated as being the most important.64 In the field of international criminal law the term deterrence is commonly used to mean general deterrence, as it is unlikely that a perpetrator would get a chance to commit similar crimes again after international prosecution.65 It is believed that through the prosecution of international crimes it is possible that other prospective perpetrators are deterred and will not commit such crimes, this effect is often presumed to exist.66 The failure to prosecute international crimes can then be seen as having led others to commit such crimes, as the prospective perpetrators believe that they would not be held

62 63

64

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Grant Niemann, ‘International Criminal Law Sentencing Objectives’ in: Willem de Lint, Marinella Marmo & Nerida Chazal, (eds.), Criminal justice in International Society (Routledge 2014) 142; Ambos (n 2) 68. Prosecutor v. Nikolić it-​02-​60/​1, Trial Chamber Judgement (International Criminal Tribunal for the Former Yugoslavia 2 Dec 2003) par. 86–​87, Prosecutor v. Simić et al. it-​95-​ 9, Trial Chamber Judgement (International Criminal Tribunal for the Former Yugoslavia 17 Oct. 2003) par. 1059; Drumbl (n 58) 61. unsc Res. 827 25 May 1993, unsc Res. 955 8 November 1994, Preamble to the Rome Statute for the International Criminal Court; Drumbl (n 58) 61; Julian Ku & Jide Nzelibe, ‘Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities’ (2006) 86(4) Washington University Law Review 777, 779, 787. Juan Méndez, ‘National Reconciliation, Transnational Justice, and the International Criminal Court’ (2001) 15(1) Ethics & International Affairs 25, 30; Drumbl (n 58) 169. See for example: Michael P Scharf, ‘The Tools for Enforcing International Criminal Justice in the New Millennium: Lessons from the Yugoslavia Tribunal’ (2000) 49(4) DePaul Law Review 925, 932; Marco Sassóli, ‘Humanitarian Law and International Criminal Law’ in: Antiono Cassese (ed.), The Oxford Companion to International Criminal Justice (Oxford University Press 2009) 113; Dawn Rothe & Christoper Mullins, ‘Beyond Juristic Orientation of International Criminal Justice: The Relevance of Criminological Insight to International

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accountable.67 There is very little evidence which shows a deterrent effect of prosecutions for major crimes even in national systems and in the case international criminal law there is no empirical evidence which shows any deterrent effect from international prosecutions.68 It is argued that this lack of evidence might be due to the fact that it is hard, if not impossible to measure in any meaningful manner how many more of such crimes would’ve been committed without having a judicial system in place.69 There might be some merit to this argument, however there are certain methods in which a possible deterrent effect, or very possibly a lack of such an effect, could be shown.70 Even when one assumes that deterrence would be able to work in the context of international crimes, the current nature of international criminal justice makes it unlikely to be very effective, as the prosecution is so sporadic and unlikely.71 It is this unlikeliness of prosecution that is often seen as the sole reason that deterrence does not appear to have taken root as of yet and that by increasing the effectiveness of international criminal law and the likelihood of possible punishment, international criminal law would have a deterrent effect.72 It has been said that there might be some evidence that the icty and ictr prosecutions have brought a change in perceptions and that accountability in these cases can be said to be a part of a new realism, but is generally unclear to what extent this actually has had a deterrent effect.73 Another issue with the potential deterrent effect of international criminal law is that the sentences of international institutions in many cases could be considered as being of lesser gravity than those the perpetrators would face in their domestic system. This coupled with a lower potential of punishment

67 68 69 70 71 72 73

Criminal Law and its Control, A Commentary’ (2010) 8(1) International Criminal Law Review 97, 98, Dawn L Rothe & Isabel Schoultz, ‘International Criminal Justice: Law, Courts and Punishment as Deterrent Mechanisms?’ in: Willem de Lint, Marinella Marmo & Nerida Chazal, (eds.), Criminal justice in International Society (Routledge 2014) 151–​154; Ambos (n 2) 69–​70. Scharf (n 66) 926–​927; 930, Bassiouni (n 7) 195; Antonio Cassese, ‘Reflections on International Criminal Justice’ (1998) 61(2) Modern Law Review 1, 2. David Hoile, Justice Denied: The Reality of the International Criminal Court (The Africa Research Centre 2014) 239; Tallgren (n 59) 569; Ku & Nzelibe (n 64). Meron (n 5) 577. Ku & Nzelibe (n 64) 791. Christopher Mullins & Dawn Rothe, ‘The Ability of the International Criminal Court to Deter Violations of International Criminal Law: A Theoretical Assessment’ (2010) 10(5) International Criminal Law Review 771, 777–​781. Darryl Robinson, Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court, (2003) 14(3) European Journal of International Law 481, 489. Sadat (n 17) 74.

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through international means would indicate that significant extra deterrent effect from international prosecutions is unlikely.74 A general issue that exists with determining the deterrent effect is that it assumes a rational actor, while it appears that the perpetrators of mass atrocities are unlikely to behave in such a rational manner.75 It can be said that there is some anecdotal evidence which point to at least some deterrent coming from international prosecutions,76 but there are also situations where it can be implied that the use of international prosecutions have led to an increase of violence.77 Looking at the deterrent factor is of special significance for the subject of this thesis, since the insistence on individual criminal responsibility for aws is for a large part focused on the loss of the deterrent factor when no person could be held accountable. Since it appears that there is no clear evidence of any effective deterrence stemming from prosecutions for violations of international criminal law, it becomes debatable whether this argument against aws holds water. 2.3 Truth-​Telling The idea that international proceedings could be used as an impartial forum to record an official version of the truth and to provide for a manner in which victims might be able to be heard, has been put forth as another important justification for international criminal justice.78 From this perspective the criminal proceeding is an official acknowledgement of injustice and suffering and can in this manner contribute to the prevention of historical revisionism.79 There are some reservations to this though, since the manner in which the criminal process is structured does not provide for a complete view of the relevant context. It can also be debated of whether this is the most appropriate setting for the victims to tell their story, as cross examination can make it a traumatic experience.80 These barriers to truly effective truth-​telling stem from the nature of criminal justice, as too large a focus on the creation of a 74 75

76 77 78 79 80

Ku & Nzelibe (n 64). Méndez (n 65) 30; Drumbl (n 58) 171; Rothe & Mullins (n 66) 100–​102; Rothe & Schoultz (n 66) 161; Alette Smeulers, ‘Preventing International Crimes’ in: Willem de Lint, Marinella Marmo & Nerida Chazal, (eds.), Criminal justice in International Society (Routledge 2014) 276–​277. Mullins & Rothe (n 71) 785. Hoile (n 68) 230–​235; Drumbl (n 58) 169; Schabas (n 4) 44. Sadat (n 17) 52; Drumbl (n 58) 173. Werle & Jessberger (n 3) 38; Scharf (n 66) 931–​932; Drumbl (n 58) 175. Robinson (n 72) 484, Damaska (n 58) 180.

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historical record can be at odds with the principle of individual culpability and the determination thereof.81 Providing Justice for Victims 2.4 The notion of truth-​telling has been linked to the possibility of international criminal justice to provide justice for the victims.82 An argument that is brought against the idea that criminal proceedings can provide justice for the victims is that it is not always possible for international criminal law to follow the priorities of the victims. Due to the fact that international criminal justice is based on an international order and is itself an international institution, it does not reflect a victim-​centric restorative modality in any meaningful manner as it can at times reflect international interests rather than the interests of victims.83 Facilitation of Peace 2.5 Both the truth telling nature and the possibility of providing justice to the victims are part of the idea that without justice there can be no longstanding peace. One of the factors that created the notion that International criminal justice would contribute to peace stems from the foundation of the icty and the ictr in vii of the UN Charter.84 This relation between peace and justice is also suggested in the preamble to the icc Statute.85 An argument which can be made in favour of the peace-​facilitating nature is that the removal of leaders with criminal intentions and an interest in conflict could make a positive contribution to peace and that the stigmatization of these leaders undermines their influence.86 However it is also argued that the threat of criminal prosecution and the lack of amnesties will lead to an unwillingness to conduct peace negotiations or surrender, although it has been possible in several conflicts to end a conflict without an amnesty.87 Another manner in which criminal justice could be able to contribute to a lasting peace is by achieving certain of the other goals of international criminal law, such as providing justice for the victims, establishing the truth and punishing those directly responsible.88 It 81 82 83 84 85 86 87 88

Allison Marston Danner & Jenny Martinez, ‘Guilty Associations: Joint Criminal Enterprise, Command Responsibility and the Development of International Criminal Law’ (2005) 93(1) California Law Review 75, 95. Scharf (n 66) 929. Sloane (n 20) 49–​51, 79; Drumbl (n 58) 62. unsc Res. 827 25 May 1993; unsc Res. 955 8 November 1994, Bagaric & Morrs (n 60) 198. Schabas (n 4) 42. Payam Akhavan, ‘Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities’ (2001) 95(1) The American Journal of International Law 7; Scharf (n 66) 931. Méndez (n 65) 35–​37. Bassiouni (n 7) 191–​192.

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is argued that through attaining these goals, there is the potential for reconciliation.89 One manner in which it is said to aid to reconciliation is to ensure that the guilt is individualized and that the group to which the perpetrator belonged does not suffer from the idea of collective responsibility, which can be grounds for further tensions and new violence.90 This would potentially ensure that there are no revenge killings and halts the creation of a new cycle of violence. With international criminal justice there is also the added benefit that the application of the law is done by an impartial external source.91 The problem with the claims that are made in this regard of ‘no peace without justice’ and the contribution of criminal justice to reconciliation is that these are such broad arguments that there is no manner in which these arguments can be empirically verified.92 There does appear to not be much, if any, evidence that shows that reconciliation might be slower in cases where there has not been any post war prosecutions when compared to the cases where there have been prosecutions.93 There is also no empirical proof which can conclusively state that trials in and of themselves would be capable of ensuring or even improving reconciliation.94 2.6 The Expressive Effect of International Criminal Justice Another important and more recently emerging area of justifications for international criminal justice can be found in the expressivist understanding of criminal justice. The choice of criminal law is seen as important in this regard, because by using international criminal justice it constructs a normative discourse that expresses a deep condemnation of the behaviour which might have an effect on the normative culture.95 It is this symbolic significance which is only available in criminal law and cannot be seen to such an extent in any other form of penalty.96 Through this expressive nature of criminal law is it

89 90 91 92 93 94 95 96

Bagaric & Morrs (n 60) 242; Cassese (n 67) 6. Werle & Jessberger (n 3) 39; Akhavan (n 86) 24; Scharf (n 66) 930; Tom Farer, ‘Restraining the Barbarians: Can International Criminal Law Help?’ (2000) 22(1) Human Rights Quarterly 90, 92; Danner & Martinez (n 81) 93. Danner & Martinez (n 81) 93; Cassese (n 67) 7. Tallgren (n 59) 592. Bagaric & Morrs (n 60) 246; Schabas (n 4) 43. For a good overview of the lack of reconciliatory effect of the icty see: Janine Natalya Clark, International Trials and Reconciliation; Assessing the Impact of the International Criminal Tribunal for the Former Yugoslavia, (Routledge 2014). Sadat (n 17) 52; Meron (n 5) 563. Sloane (n 20) 42, 70–​71.

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that international criminal law might be able to contribute to the other goals put forth for it. One manner in which the expressive justification has been argued is that through norm stabilization international awareness of the law is created and reinforced and that this leads to further legitimization of the norms of international law.97 This could be seen as a form of deterrence, but most often the term deterrence in international criminal justice is focused on immediate deterrence, whereas this can better be described as general prevention or a didactic function.98 Even selective and limited accountability in this regard would contribute to the transformation of societal norms and decreasing the political acceptability of massive human rights abuses.99 This effect is difficult to prove as it would be subtle and only be seen in the long-​term. It is seen as a possibility that it could lead to a situation where provisions of international criminal law become entrenched in society which would create resistance against committing these crimes and thereby reduce the possibility of new atrocities. Another possibility is that it could create a habitual lawfulness which would counteract the intentions to commit international crimes and as such become a self-​controlling mechanism.100 This means that there might be a slow erosion of the culture which allowed these crimes to occur, which would lead to prevention even if this is not readily apparent at the current, it might become apparent in the future, since this would be a slow and gradual change.101 In cases where the moral norms are already altered during conflict it would appear unlikely to have an effect, but it could increase the resistance against altering such norms.102 A reason that is most often not mentioned as a justification in itself is the effect international criminal law, and the international tribunals specifically, have had on the uniform development of international humanitarian law and the setting of precedent. This can also be seen as part of the expressive function of international criminal justice. Through this, international criminal justice also contributes to the development of national laws and ethical norms and 97

Werle & Jessberger (n 3) 37–​38; Nerida Chazal, ‘The Rationale of International Criminal Justice: Idealpolitik, Realpolitik and the International Criminal Court’ in: Willem de Lint, Marinella Marmo & Nerida Chazal, (eds.), Criminal justice in International Society (Routledge 2014) 22; Ambos (n 2) 71. 98 Ku & Nzelibe (n 64) 788. 99 Akhavan (n 86) 8; Sloane (n 20) 75. 100 Rothe & Mullins (n 66) 104; Bagaric & Morrs (n 60) 221; Ku & Nzelibe (n 64) 788; Ambos (n 2) 72. 1 01 Akhavan (n 86) 10–​13. 102 Sloane (n 20) 76.

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establishes an international criminal law that offers adequate protection.103 This means that through the expressive function international criminal justice can contribute to the promotion of human rights and humanitarian law.104 Outside of this promotion of human rights, it ensures that there is a far better understanding of the law granting the law a far greater currency, offering a contribution to the success of other courts, which is another form of the expressive function.105 It is clear that the Tribunals that have existed in the past, that are still currently active, as well as the icc have had significant effect on the manner in which humanitarian law has developed and as such have given a significant boost to humanitarian law, ensuring a more uniform interpretation.106 While not all are in agreement, this contribution to the development of these norms could in itself be seen as a justification for international criminal law. Unlike the other justifications the evidence of development of humanitarian law and international criminal law by the international tribunals cannot truly be contested, it is clear that the tribunals have had this effect and these international courts and tribunals will, in all likelihood, retain the possibility to play such a role. Especially in the context of this research this is of great importance due to the novel nature of the technology and the potential for quick proliferation of such technology and therefore could potentially ask for a uniform approach to aws. This ensures the necessity of looking at this aspect through the lens of international criminal law and determining the manner international criminal law would deal with the issue. Whereas many other justifications appear not to be effective in practice these expressivist justifications have a more realistic notion of what international criminal law can do and the development of these norms are a sufficient justification for the institution of such tribunals and courts, even if other justifications cannot be achieved. The international nature also helps with the expressive function of criminal law, as due to the internationality of the forum it can have a greater impact on a far greater public and thus better effect these expressivist goals.107

103 Sloane (n 20) 75; Meron (n 5) 564; Cassese (n 21) 127; Altman & Wellman (n 35) 59; Chazal (n 97) 21. 104 Damaska (n 58) 181. 105 Meron (n 5) 578. 106 Meron (n 44) 555 For some examples in which the icty and the ictr have developed humanitarian law, see Sassóli (n 66); Drumbl (n 58) 175; Smeulers (n 75) 277. 107 Cassese (n 21) 127; Zolo (n 57) 728.

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Conclusion

In conclusion it can be said that it appears in many regards that the notion of international criminal justice has its historical basis in the retributive effect that such prosecutions can have. The idea of ‘just desserts’ has a long history and remains a strong influence and might be the most powerful justification for international criminal justice. It is however doubtful whether a solely retributive justification can be seen as being sufficient to base the idea of international criminal justice on in the current political climate. Quite a few other justifications have been offered over the time, but in many cases not much empirical evidence can be shown to evidence the potential of international criminal justice to achieve these goals. The effect on deterrence, peace and reconciliation is often times presumed while evidence appears to point to the notion that international criminal justice is not able to attain these goals. When looking realistically there is a need for a multi-​layered approach in which international courts are only one of the instruments in order to attain many of the goals stated for international criminal justice and there currently is a tendency to expect far more of these institutions than they can often accomplish in reality.108 It must in any case be clear that international criminal law cannot attain these goals by itself, the only manner in which it can be realistically be said to contribute to these goals is if it is used as an augmentation of other strategies.109 Through a justification based on the expressive nature of international prosecution without a focus on the specific goals it could be said that there is a chance that international criminal law can at least contribute to these goals, but realistically only through an expressive manner. This might seem like a relatively weak justification, in reality this expressive nature is of far greater importance than the direct effect that is at times ascribed to international criminal justice. As such it is in the expressive function of international criminal justice that it can possibly have the greatest effect in this regard as well. For this reason, it seems necessary to look at the expressive justifications of international criminal justice, as tribunals at times appear to have done, especially when they equated retribution with some expressive aspects. An expressive justification seems to have stronger empirical support than the justifications of deterrence, peace and reconciliation. The effects of the statutes of international criminal tribunals and their jurisprudence have had a sizable

1 08 Clark (n 94) 206. 109 Sloane (n 20) 45.

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impact on several fields of law and their uniform development. Even solely on this ground it could be said that the existence of prosecution through international means can be justified. But other expressive functions can be said to have a strengthening effect on this justification. The norm stabilization can, while not having a direct deterrent effect, at least aid in the determination of what is acceptable behaviour according to the international community and as such might lead to norm internalization, through which some preventive effect might be achieved. It is therefore that more focus must be given to the expressive nature and thus to more outreach and a greater visibility of international criminal justice. By focusing on these goals of international criminal justice the notion of an overabundance of goals for international criminal justice might be tempered. By tempering the expectations for unachievable goals, the very real accomplishments of these courts can be appreciated more clearly. This would also aid to the legitimacy of these courts, since the attempts to achieve impossible goals can only lead to disillusionment of what these courts can realistically achieve. This shows that a discussion on aws should include considerations of criminal justice due to the specific role that it plays in addressing atrocities, which can potentially be caused by the employment of aws. But it also shows that criminal justice on its own does not necessarily provide a panacea to the issue. It should be considered as a relevant factor that needs to be viewed in the broader discussion on aws, however due to the nature of aws as discussed in the previous chapters a very significant and relevant factor. The potential diffusion of responsibility due to the employment of aws does not negate the considerations of criminal justice, rather the goals and objectives of international criminal justice remain just as relevant.

­c hapter 5

aws Considered as Prohibited Weapons 1

Introduction

When discussing the issue of aws the first thing that needs to be considered is whether it is possible to hold a person accountable solely for the deployment of aws. If an individual can be held accountable on this basis it is no longer necessary to consider whether different forms of individual responsibility are applicable. This would therefore create a situation where the question of criminal responsibility could be answered with relative ease, the question who can be held accountable for the use of these weapons is simply answered with the person who employed the aws, without any further complications. Within international humanitarian law there are rules concerning the legality of weapons and employing weapons that go contrary to these rules have been criminalized up to a certain point. This prohibition has been incorporated within the war crimes provisions of international criminal law. In the cases of such illegal weapons their employment can be viewed as a crime in itself, without there needing to be evidence of any adverse consequences of their employment. This is an important aspect to consider especially because it has been argued by some that aws should be considered as being prohibited by principle under international humanitarian law, that even without any new international legal rule being introduced these weapons should be considered as being illegal.1 This chapter will therefore assess this argument and determine whether aws would fit within existing war crimes provisions in international criminal law. The basic presumption within international law has always been that unless there is a specific prohibition within international law, a state is free to act as it sees fit.2 Therefore, it is completely legal for a state to use any weapon, new or old, as long as the use of this weapon is not prohibited within international law. It has however long been acknowledged that the choice of means 1 See for example: Bonnie Docherty, ‘Losing Humanity: The Case Against Killer Robots’ Human Rights Watch 2012, 24–​26; Pakistan, Statement by Ambassador Tehmina Janjua, PR of Pakistan, General Exchange of Views, Informal Meeting of Experts on Lethal Autonomous Weapon Systems, Geneva 11–​15 April 2016, 1–​2. 2 SS Lotus Case (France v. Turkey) Permanent Court of International Justice, Publications de la Cour Permanente de Justice Internationale Series A (1927) No. 10, 18–​19.

© Barry de Vries, 2023 | DOI:10.1163/9789004524316_006

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by which states conduct warfare is not unlimited and neither is the choice of means of warfare by an individual. The notion that the ‘right of belligerents to adopt means of injuring the enemy is not unlimited’ has been explicitly stated within international law since it was included in art. 22 of the 1899 Hague Regulations,3 but even before that there had been bans on specific weapons all throughout the world.4 The modern interpretation of this restriction of means of warfare has been reiterated in many documents, one of the most influential being art. 35(1) ap i.5 This principle is generally regarded as one of the cardinal parts of customary international humanitarian law.6 It must therefore be seen whether a weapon has specific rules prohibiting (or in certain specific cases allowing) their use, either in custom or in treaty. Although in several cases specific weapons have been prohibited in specific instruments, this does not mean that there must always be a specific instrument concerning a specific weapon in order to render the use of such a weapon prohibited. A weapon can also be considered as prohibited in cases in cases where the nature of the weapon goes against the main principles of existing humanitarian law.7 This has been reiterated in the Nuclear Weapons 3

4

5

6

7

Convention (ii) Respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, art. 22, 29 July 1899, 32 Stat 1803, Treaty Series 403 (hereafter: Hague Regulation 1899) It had already been included within the Brussels Declaration, but this declaration never attained the status of international law, William Boothby, Weapons and the Law of Armed Conflict (Oxford University Press 2009) 56, 73. Christopher Greenwood, ‘Current Issues in the Law of Armed Conflict: Weapons, Targets and International Criminal Liability’, (1997) 1 Singapore Journal of international & Comparative Law, 441, 442; Hitoshi Nasu & Thomas Faunce, ‘Nanotechnology and the International Law of Weaponry: Towards International Regulation of Nano-​Weapons’, (2010) 20(1) Journal of Law, Information and Science 21, 33; Thilo Marauhn, ‘The Prohibition to Use Chemical Weapons’ in T D Gill et al. (eds.), Yearbook of International Law 2014 (T.M.C. Asser Press 2016) 28. Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol i), 8 June 1977 1125 unts 3; MG Cowling, ‘The Relationship between Military Necessity and the Principle of Superfluous Injury and Unnecessary Suffering in the Law of Armed Conflict’ (2000) 25 South African Yearbook of International Law 131, 141. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion 1996 i.c.j. Rep. 226, ¶77–​78 (hereafter: Nuclear weapons Advisory Opinion); Nicholas Sitaropoulos, ‘Weapons and Superfluous injury or Unnecessary Suffering in International Humanitarian law: Human Pain in Time of War and the Limits of Law’ (2001) 54 Revue Hellénique de Droit International 71, 88; Stuart Casey-​Maslen, ‘The Use of Nuclear Weapons under Rules Governing the Conduct of Hostilities’ in Gro Nystuen, Stuart Casey-​Maslen & Annie Golden Bersagel (ed.), Nuclear Weapons under International Law (Cambridge University Press 2014) 92. Ryuichi Shimoda et al. v. The State, District Court of Tokyo, 7 December 1963, translated in (1964) 8 Japanese Annual of International Law 212; Shane Darcy, Judges, Law and War: The Judicial Developments of International Humanitarian Law (Cambridge University Press

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advisory opinion, where the court stated that even if there was no rule specifically permitting or outlawing the use of nuclear weapons, these weapons and the use of these weapons should still comply with the general requirements of international humanitarian law.8 This can certainly be said to be a logical approach to new weapons and technological innovations, rather than requiring specific prohibitions for each individual weapon, especially since it is generally difficult to predict the exact outcome of technological developments. The problem of not being able to predict technology is one of the reasons why there has hardly ever been a possibility to proscribe certain specific weapons prior to their development and deployment.9 Instead the majority of the specific weapon regulations and prohibitions have been in reaction to the use of specific types of weapons and the consequences that their use had.10 Without relying on general principles it would therefore generally be impossible for a

8 9

10

2014) 192; Michael Newton, ‘Back to the Future: Reflections on the Advent of Autonomous Weapons Systems’ (2015) 47(1) Case Western Reserve Journal of International Law 5, 12. Nuclear weapons Advisory Opinion, ¶ 74; Greenwood (n 4) 455. Arguably the only exceptions to this notion have been the ban the prohibition on non-​ detectable fragments (Protocol (i)on Non-​Detectable Fragments to the 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, 2 Dec 1983, 1342 u.n.t.s. 168) (hereafter: Protocol (i) on Non-​Detectable Fragments), prohibiting weapons that have as a primary use injuring by fragments which or not detectably by X-​Rays, while weapons with such fragments, such as plastics, had been used, this was not the primary purpose of these weapons, or of the use of such fragments, there has also been the ban on permanently blinding laser weapons (Protocol (iv) on Blinding Laser Weapons to the 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, 30 July 1998 2024 u.n.t.s. 163 (Hereafter Protocol on Permanently Blinding Laser Weapons)), which had been created prior to the deployment of these weapons and arguably even prior to the development of these weapons (W Hays Parks, ‘The ICRC Customary law Study: A Preliminary Assessment’ (2005) 99 American Society of International Law Proceedings 208, 211–​212; Jean-​Marie Henckaerts and Louise Doswald-​Beck Customary International Humanitarian Law, Volume i: Rules (Cambridge University Press, 2009) 277–​ 278). However, with both of these weapons the expected outcome of these weapons and their effects were widely known, which might have aided in the adoption of the bans of these weapons. Tyler Evans, ‘At War with the Robots: Autonomous Weapon Systems and the Martens Clause’ (2014) 41(3) Hofstra Law Review 697, 720–​721, 731; Sean Watts, ‘Regulation-​Tolerant Weapons, Regulation-​Resistant Weapons and the Law of War’ (2015) 91 International Law Studies/​U.S. Naval War College 540, 589. Such as for example poison gas after the First World War or incendiary weapons after the Vietnam-​war, William J Fenrick, ‘International Humanitarian Law and Criminal Trials’ (1997) 7 Transnational Law & Contemporary Problems 23, 29–​30; Parks (n 9) 209; David Turns, ‘Weapons in the ICRC Study on Customary International Humanitarian Law’ (2006) 11(2) Journal of Conflict & Security Law 201, 204.

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weapon to be prohibit prior to their employment and the adoption of a subsequent comprehensive treaty prohibiting the weapon. This is possible as the applicability of these general principles are not reliant on whether the weapon was in use at the time of the development of these legal principles, or whether it has been invented subsequently.11 This is especially relevant in the case of aws, as their distinct nature sets them apart from most, if not all weapons that have come before them. And while obviously aws could be outfitted with weapons that have been prohibited, aws themselves have not yet been the subject of a specific treaty. Their legality must therefore be decided by determining whether there is a rule in either customary international law or treaty-​ law that specifically allows or prohibits their use, which especially requires a detailed look at the general principles of the weapons provisions in international humanitarian and international criminal law.12 It is for this reason that chapter will consider under what circumstances a weapon can be considered as inherently illegal and whether someone could consequently be held directly accountable for the employment of such a prohibited weapon. In order to determine the applicability of these standards and their criminalization in international criminal law to the context of aws, this chapter will start by laying out the international humanitarian law considerations about the legality of weapons. While weapons law has two separate manners in which it can regulate means of warfare, namely specific prohibitions or regulations for specific weapons or through the general principles which exists within it, for reasons mentioned above this part will focus on the general principles. After determining the status of weapons law and its constituent parts the chapter will move on to the incorporation of this international humanitarian law norm within international criminal law. It will focus on the manner these general principles have been incorporated within the icc Statute and how the relevant provisions within the icc Statute are to be applied. It will also discuss relevant criticisms that have been levied against the specific interpretation of

11 12

Nuclear weapons Advisory Opinion, ¶ 85–​86; Greenwood (n 4) 445–​446. Hin-​Yan Liu, ‘Categorization and legality of autonomous and remote weapons systems’ (2012) 94(886) International Review of the Red Cross 627, 638; Bradan Thomas, ‘Autonomous Weapon Systems: The Anatomy of Autonomy and the Legality of Lethality’ (2015) 37(1) Houston Journal of International Law 235, 246–​248. This could be different if a specific aws would be outfitted with such weapons or ammunition that have been explicitly forbidden, in that case that specific aws would be illegal to use, but this does not include all aws as a manner of class.

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this prohibition within the icc Statute. Again, I will focus on the general prohibition rather than the prohibitions against specific weapons.13 Lastly the chapter will then apply the standards put forth within international humanitarian law and within international criminal law (especially the version incorporated within the icc Statute) to the case of aws in order to determine whether these weapons would be considered as being prohibited within international humanitarian law and whether their use is, or could be, criminalized by international criminal law. 2

Weapons Law under International Humanitarian Law

In order to determine how to interpret the provisions on weapons in international criminal law it is necessary to determine how international humanitarian law prohibits the employment of certain weapons and especially which general principles are capable of prohibiting general categories of weapons without the existence of a specific prohibition. The rules and principles of international humanitarian law need to be the starting point because of the close link that exists between international humanitarian law and international criminal law. This link is quite apparent since at its core a war crime is a violation of humanitarian law which incurs individual criminal responsibility.14 It is therefore necessary to interpret an international criminal law rule concerning war crimes with due regard for the norms of international humanitarian law, as these are the underlying basis of the war crime.15 13

14

15

In the Rome Statute of the International Criminal Court, 01 July 2002 2187 u.n.t.s. 3 (hereafter: icc Statute) the following means of warfare are specifically prohibited: poison or poisoned weapons (art. 8 (2)(b)(xvii) and art. 8 (2)(e)(xiii) icc Statute), asphyxiating, poisonous or other gases and all analogous liquids materials or devices (art. 8(2)(v)(xviii) and art. 8(2)(e)(xiv) icc Statute) and bullets which expand or flatten easily in the human body (art. 8(2)(b)(xix) and art. 8(2)(e)(xv) icc Statute). Christopher Greenwood, ‘The Development of International Humanitarian Law by the International Criminal Tribunal for the Former Yugoslavia’ (1997) 2 Max Planck Yearbook of United Nations Law 97, 130–​131; Jordan J Paust, ‘The Preparatory Committee’s “Definition of Crimes” –​War Crimes’ (1997) 8(3) Criminal Law Forum 431, 432; Kelly D Askin, ‘Crimes Within the Jurisdiction of the International Criminal Law’ (1999) 10 Criminal Law Forum 33, 51. Sandesh Sivakumaran, ‘Re-​envisaging the International Law of Internal Armed Conflict’ (2011) 22(1) The European Journal of International Law 219, 238–​239; Rogier Bartels, ‘Discrepancies Between International Humanitarian Law on the Battlefield and in the Courtroom: The Challenges of Applying International Humanitarian law During International Criminal Trials’ in: M Matthee et al. (eds.), Armed Conflict and International Law: In Search of the Human Face (T.M.C. Asser Press 2013) 341; Robert Cryer, ‘The

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The field of international humanitarian law that is concerned with the legality of means of combat is often referred to as ‘weapons law’. As weapons law solely concerns the legality of the weapon itself it must be distinguished from the law concerning the manner in which a weapon is used, which would most commonly refer to the law on targeting.16 While weapons law also concerns the prohibitions of certain specific weapons, this chapter will be focused on the general principles that can render a weapon unlawful without the existence of a specific legal instrument prohibiting it.17 There are two relevant general principles that are capable of prohibiting the use of weapons. Firstly, it is prohibited to employ weapons that are of a nature to cause unnecessary suffering or superfluous injury and secondly there is the prohibition on weapons of nature to be inherently indiscriminate.18 If a weapon violates either of

16

17

18

Relationship of International Humanitarian Law and War Crimes: International Criminal Tribunals and Their Statutes’ in: Caroline Harvey, James Summers & Nigel D White (eds.), Contemporary Challenges to the Laws of War: Essays in Honour of Professor Peter Rowe (Cambridge University Press 2014) 143. Micheal Schmitt & Jeffrey Thurnher, ‘“Out of the Loop”: Autonomous Weapon Systems and the Law of Armed Conflict’ (2013) 4 Harvard National Security Journal 231, 243–​244; Titus Hattan, ‘Lethal Autonomous Robots: Are They Legal Under International Human Rights and Humanitarian Law’ (2015) 93(4) Nebraska Law Review 1035, 1048; William Boothby, Weapons and the Law of Armed Conflict (Oxford University Press 2016) 5. Although it has been argued that many of these specific prohibitions are to be seen as an extension of the general principles or at the very least based on the notion that these prohibited weapons are to be seen as causing superfluous injury or unnecessary suffering or are inherently indiscriminate. Christopher Greenwood, ‘The Law of Weaponry at the Start of the New Millennium’, (1998) 71 International law Studies/​US Naval War College, 185 192; Henckaerts & Doswald-​Beck (n 9) 279. While an argument has been made for other inclusions within the law of weaponry, these remain still reasonably controversial and do not really find purchase within international criminal law especially (these are not even brought up by those who criticize the current application of the law of weaponry within the icc Statute for being too restrictive) in this regard and this chapter will therefore not directly and in great detail discuss these. It should also be noted that it is unclear whether for example the prohibition to employ weapons which are intended, or may be expected to cause widespread, long-​term and severe damage to the natural environment, put forth in art. 35(3) api could be considered as being customary international humanitarian law. Greenwood (n 17) 204–​205. Another thing that has been brought up as a possible influential principle in weapons law, and which has had an especially large impact in the discussion on aws, has been the Martens’ Clause. However, there is no indication that the Martens’ Clause by itself can prohibit particular weapons, and its interpretation is still up for debate, even questioning its legal status in its entirety. Antonio Cassese, ‘The Martens Clause: Half a loaf or Simply Pie in the Sky?’ (2000) 11(1) European Journal of International law 187, 187–​214; Nasu & Faunce (n 4) 35; Evans (n 9) 731; Watts (n 9) 557–​558. Even if one would argue that the Martens Clause would be capable of doing so, it is difficult to determine what the “dictates of public conscience” are, with many arguing that this should be interpreted as public

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these principles that weapon must be considered as being an inherently illegal weapon and any use of such a weapon should be considered as being contrary to international humanitarian law. This general rule is generally and widely accepted as a rule of international customary law and its applicability is not seriously contested within either international or non-​international armed conflicts.19 This section will first discuss the notion of superfluous injury or unnecessary suffering before turning to the notion of indiscriminate by nature. Superfluous Injury or Unnecessary Suffering 2.1 2.1.1 Introduction The prohibition of weapons which are of a nature to cause superfluous injury or unnecessary suffering has been one of the longest standing, most prevalent and enduring principles of international humanitarian law. The notion that weapons of a nature to cause superfluous injury or unnecessary suffering should be considered prohibited has been recognized within international law and explicitly included within international humanitarian law documents since the Hague Regulations. While this was the first explicit mention of the principle, the underlying rationale for this prohibition can be found in earlier documents.20 This principle has been stated by the icj as one of the most cardinal principles of international humanitarian law and as such should, according to the Court, clearly be considered as customary international law.21 The Court also clarified that it is one of the intransgressible principles of international humanitarian law and as such recognizes the clear importance of this principle.22 Being one of the core tenets of international humanitarian law, the

19

20

21 22

opposition. Within the context of aws there is no clear overwhelming public opinion against their development and deployment, with some research even showing the support in their development and deployment, depending on the context. Evans (n 9) 731; Michael Horowitz, ‘Public opinion and the politics of the killer robots debate’ (2016) 3(1) Research and Politics 1. Michael Bothe, War Crimes in: Antonio Cassese, Paola Gaeta & John R W D Jones (eds.), The Rome Statute of the International Criminal Court (Oxford University Press 2002) 408–​ 409; Turns (n 10) 207–​208; Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary (Cambridge University Press 2009) 298; Nasu & Faunce (n 4) 33–​34; William Schabas, The International Criminal Court; A Commentary on the Rome Statute (Oxford University Press 2010) 244. Nasu & Faunce (n 4) 33; Such as for example the Lieber Code (U.S. War Department, General Orders No. 100, 24 Arp. 1863) and the St. Petersburg Declaration (1863 St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight (29 November/​11 December 1868)). Nuclear weapons Advisory Opinion, ¶ 78. Nuclear weapons Advisory Opinion, ¶ 79.

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prohibition against weapons that cause superfluous injury or unnecessary suffering is generally considered to be applicable in both international and non-​ international armed conflicts.23 But even with it being such a core tenet of international humanitarian law, there has not been consensus on the interpretation of the principle. This means that the exact interpretation of the principle and therefore which weapons should be considered as causing superfluous injury or unnecessary suffering has not always been consistent.24 An aspect in which this principle differs significantly from most other principle of international humanitarian law is the fact that where most of international humanitarian law is focused on the protection of non-​combatants, this principle is primarily focused on the protection of combatants, even though it obviously is also applied to non-​combatants.25 2.1.2 History The way this principle is currently understood can be traced back to the U.S. civil war and the creation of the Lieber Code. The Lieber Code was a general code of conduct for Union troops, which included provisions that used the principle of military necessity to limit the violence. One of these provisions, art. 16, can be said to implicitly include a consideration that weapons which cause unnecessary suffering should be considered as being prohibited.26 This was however not explicitly stated within the Lieber Code. The first explicit statement concerning weapons which cause unnecessary suffering or superfluous injury within an international instrument can be found in the 1868 St. Petersburg Declaration. While the main body of this Declaration 23

24

25

26

Greenwood (n 4) 443; Henckaerts & Doswald-​Beck (n 9) 237–​240; Steven Haines, ‘Weapons, Means and methods of Warfare’ in: Elizabeth Wilmshurst & Susan Breau (eds.), Perspectives on the ICRC Study on Customary International Humanitarian Law (Cambridge University Press 2009) 264. Sitaropoulos (n 6) 72; Henckaerts & Doswald-​Beck (n 9) 240; Simon O’Connor, ‘Nuclear Weapons and the Unnecessary Suffering Rule’ in Gro Nystuen, Stuart Casey-​Maslen & Annie Golden Bersagel (ed.), Nuclear Weapons under International Law (Cambridge University Press 2014) 128; Watts (n 9) 546. Burrus M Carnahan, ‘Unnecessary Suffering, the Red Cross and Tactical Laser Weapons’ (1996) 18(4) Loyola of Los Angeles International and Comparative Law Review 705, 711–​ 712; Greenwood (n 4) 443; Judith Gardam, ‘The Contribution of the International Court of Justice to International Humanitarian Law’ (2001) 14 Leiden Journal of International Law 349, 356–​357; Dörmann (n 19) 303; Thomas (n 12) 251. U.S. War Department, General Orders No. 100, 24 Apr. 1863, art. 16; Greenwood (n 17) 186–​ 187; Burrus M Carnahan, ‘Lincoln, Lieber and the Laws of War: The Origins and Limits of the principle of Military Necessity’ (1998) 92(2) The American Journal of International Law 213, 213; Cowling (n 5) 134–​135; O’Connor (n 24) 130.

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concerned the outlawing of a specific type of ammunition, namely any “projectile of a weight below 400 grammes, which is either explosive or charged with fulminating or inflammable substances”, it included a reference within its preamble that has to be considered as a great step in the development of the general principle of superfluous injury or unnecessary suffering: That the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy; That for this purpose it is sufficient to disable the greatest possible number of men; That this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men or render their death inevitable; [and] That the employment of such arms would, therefore, be contrary to the laws of humanity.27 While the preamble clearly seems to state (t)hat the employment of such arms would, therefore, be contrary to the laws of humanity, it does not appear that the preamble should be taken as intending to create a legal obligation or for it to form the basis of a future binding rule.28 It seems more logical to consider this inclusion as acknowledging a general rule out of which the specific prohibition of explosive projectiles below 400 grammes originated.29 But even if one were to not take the statements in this preamble as evidence of an already existing general principle, the sentiment expressed within the preamble has been the basis upon which subsequent treaties and agreements have built and expanded. These paragraphs have for example been cited as the inspiration for the 1899 Hague Regulations.30 It is therefore not strange to see that both the 1899 and the 1907 Hague Regulations not only restated the general sentiment included in the St. Petersburg Declaration preamble but developed it further, even though the principle against weapons causing superfluous injury or unnecessary suffering does not appear to have been the

27 28 29 30

St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight (29 November/​11 December 1868), ¶ 4–​7. Nasu & Faunce (n 4) 34. Cowling (n 5) 139. Hague Peace Conference: Declaration on the Use of Bullets Which Expand or Flatten Easily in the Human Body; July 29, 1899; Cowling (n 5) 140; O’Connor (n 24) 131.

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main reason for, or even the primary intended focus of either 1899 or the 1907 Regulations.31 2.1.3 What Is the Correct English Wording? The inclusion of a prohibition on weapons that cause superfluous injury or unnecessary suffering within the Hague Regulations can be said to have been the real foundation for the modern interpretation of the principle as customary international humanitarian law.32 Much of the discussion on the principle and what its correct definition is, has focused on the manner in which it was included and the differences in the provisions between the 1899 and 1907 Regulations. This was because there were distinct and significant differences in the English language versions between the relevant provisions in the two texts. While the French text should be viewed as the authoritative text,33 the difference in the English text has led to some issues. The French formulation of article 23 in both the 1899 and 1907 Hague regulations was the following: Outre les prohibitions établies par des conventions spéciales, il est notamment ‘interdit’: … e. d’employer des armes, des projectiles ou des matières propres à causer des maux superflus Article 23 of the 1899 Hague Regulations was formulated in English as such: Besides the prohibitions provided by special Conventions, it is especially prohibited:… (e) to employ arms, projectiles or material of a nature to cause superfluous injury …34 While the same article in English in the 1907 Hague Regulations reads:

31 32 33 34

Detlev F Vagts, ‘The Hague Conventions and Arms Control’ (2000) 94 American Journal of International Law 31, 32–​34; Watts (n 9) 570–​571. Nuclear weapons Advisory Opinion, ¶ 77–​78; Watts (n 9) 546. In re van der Giessen, Special Court of Cassation, Netherlands, 21 June 1948, reprinted in: H Lauterpacht (ed.) Annual Digest and Reports of Public International Law Cases (Butterworth & Co. ltd 1953), 599–​600; Paust (n 14) 435; Boothby (n 3) 58. Art. 23 Hague Regulation 1899.

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In addition to the prohibitions provided by special Conventions, it is especially forbidden:… (e) To employ arms, projectiles, or material calculated to cause unnecessary suffering;35 While the sentiment and the intention of both of these provisions is similar, the difference between ‘of a nature to cause superfluous injury’ and ‘calculated to cause unnecessary suffering’ is significant, even though the authoritative French texts opted to use ‘propre à causer des maux superflus’ in both. The choice of slightly different English translation has had a significant effect on subsequent discussions and the subsequent interpretation of the issue of superfluous injury and unnecessary suffering.36 There are two significant aspects in which the provisions differ, which subsequently raises two questions. Firstly, whether there is a difference between superfluous injury and unnecessary suffering and secondly whether these weapons should be ‘of a nature to cause’ or ‘calculated to cause’ to cause such injury or suffering. The first difference that will be discussed is the choice to translate the term ‘maux superflux’ as ‘superfluous injury’ in 1899 and ‘unnecessary suffering’ in 1907. The two terms have significantly different meanings in English, the term injury is commonly understood as meaning the immediate physical damage, while suffering is seen as also including non-​immediate and non-​physical damage, such as disfigurement and psychological damage.37 Since the two Hague Regulations, the two terms have been used conjunctively as a translation for ‘maux superflus’ and have both been included in subsequent definitions. This can be seen for example in art. 35(2) of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts38 (ap i), which was the first codification of the norm in English that used both terms: It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.

35 36 37 38

Art. 23 Convention (iv) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, 18 October 1907, 36 Stat. 2277; Treaty Series 539. Boothby (n 3) 57; Nasu & Faunce (n 4) 37; Watts (n 9) 547–​548. Sitaropoulos (n 6) 88–​89; Boothby (n 3) 58; Nasu & Faunce (n 4) 40. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1997, 1125 u.n.t.s. 3.

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It appears that the English formulation of the principle with both terms, can now be said to be reflective of the customary standard.39 By consequence of including both terms in the English translation both physical as well as non-​ physical damage can be considered when determining if a weapon goes against this principle. The second difference between the 1899 and the 1907 Hague Regulations that needs to be discussed is the question of whether a weapon must be of ‘of a nature to cause’ such injury or suffering or that such a weapon must be ‘calculated to cause’ this. At first glance one could be excused to think that this is but a minor alteration, but the choice between the two has significant consequences. In both translations the terms have been included to ensure that the prohibition was worded in such a way that it only prohibits those weapons which effects are generally superfluous injury or unnecessary suffering, while not directly regulating those weapons which might cause such injury or suffering if used in a particular way or in specific circumstances. However, the extent to which these terms limit the prohibition differ between the two terms.40 Both terms are used in such a way that it must be determined whether the weapon is not only capable of producing superfluous injury or unnecessary suffering, but that this weapon must inevitably cause such injury or suffering when its employed for its normal or intended use.41 However when using the term ‘calculated’ within this prohibition it would be necessary to show that in the development of a weapon there is the intention to ensure this weapon 39 40 41

Henckaerts & Doswald-​Beck (n 9) 237; Haines (n 23) 264; Jordan J Paust, ‘The International Criminal Court Does Not Have Complete Jurisdiction over Customary Crimes Against Humanity and War Crimes’ (2010) 43(3) John Marshall Law Review 681, 710. Sitaropoulos (n 6) 84. There is an issue in this regard with the examples used by the icrc study on customary international humanitarian law in that the study focuses on weapons ‘if used in certain or all contexts’ which goes against the generally understood notion of this principle, which is concerned with whether the weapon inevitably causes such injury or suffering in its normal use, not whether a specific type of use can cause such suffering or injury. This might be due to the fact that using weapons to inflict superfluous injury or unnecessary suffering is in itself prohibited, but this does not go to the legality of the weapon itself. In general it can be said that a weapon that can be used without causing unnecessary suffering or superfluous injury in a significant amount fo circumstances would not fall under this prohibition. Greenwood (n 17) 199; Henckaerts & Doswald-​Beck (n 9) 243–​244; Boothby (n 3) 68; Judith Gardam, ‘Crimes involving Disproportionate Means and Methods of Warfare under the Statute of the International Criminal Court’ in: José Doria, Hans-​Peter Gasser & M Cherif Bassiouni (eds.), The Legal Regime of the International Criminal Court: Essays in Honour of Professor Igor Blishchenko (Martinus Nijhoff Publishers 2009) 554; William Boothby, Conflict Law: The Influence of New Weapons Technology, Human Rights and Emerging Actors, (T.M.C. Asser Press 2014) 172.

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causes such suffering or injury, in other words there must be some form of deliberateness to cause this in its design. The term ‘of a nature’ on the other hand is to be interpreted as referencing the objective nature or the likely effects of the normal use of a weapon, which in general can be seen as more objective while also making the prohibition somewhat broader.42 Due to the requirement that a weapon inevitably causes such injury or suffering when it is employed for its normal or intended use as the basis of a prohibition it has been stated that the term ‘of a nature to cause’ better refers to the intrinsic nature of a weapon, looking at the invariable outcome of its use, and that therefore this should be considered the more appropriate wording. This is also seen as the correct interpretation because this term focuses more on the design-​dependent effects, rather than the intention of its development.43 Another argument that has been brought forth in favour of the term ‘of a nature’ is the understanding that on the basis of the object and purpose of the original Hague Declarations, article 23 should be interpreted broadly, whereas the term ‘calculated to’ can be providing for a significantly less broad prohibition.44 The broader interpretation also seems to be more in line with the original French text of the Regulations.45 On the basis of these arguments the formulation included in the 1899 Hague Regulations seems to be the correct formulation, therefore is it this formulation that has subsequently been codified in art. 35(2) ap i. Although these arguments and the codification of the principle in art. 35(2) ap i do seem to indicate, that the term ‘of a nature to cause’ is the correct formulation, there is not complete certainty. This is because even documents that have been adopted after art. 35(2) ap i, have made use of either of the terms, thus not completely clearing up the issue.46 However as the term ‘of a nature’ appears to be the more broadly accepted formulation, the rest of this chapter will use art. 35(2) ap i as the basis for its determination. But even when considering the term ‘of a nature’ as the correct term, this does not alleviate the problem of determining when a weapon can be considered as being prohibited by the principle. This is because there is not complete

42 43 44 45 46

Cowling (n 5) 140; Christine Byron, War Crimes and crimes against humanity in the Rome Statute of the International Criminal Court (Manchester University Press 2009) 136–​137; Nasu & Faunce (n 4) 37; Watts (n 9) 546–​547. Cowling (n 532) 145; Boothby (n 3) 58; Watts (n 9) 547. Marauhn (n 4) 29. Paust (n 14) 435; Sitaropoulos (n 6) 88–​89; O’Connor (n 24) 132. Such as for example art. 3(a) Statute of the International Criminal Tribunal for the Former Yugoslavia 25 May 1993 UN Doc s/​r es/​827; Watts (n 9) 549–​550.

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consensus on the interpretation of the term in a practical sense. It has been argued that if there are a significant number of circumstances in which a weapon can be employed without having superfluous injury or unnecessary suffering as an effect, the weapon cannot be considered as being ‘of a nature to cause superfluous suffering or unnecessary suffering’, but where the exact tipping point lies is difficult to ascertain.47 2.1.4 What Suffering Is Superfluous or What Injury Is Unnecessary? Having determined the correct wording of the international customary law rule, the question arises as to what suffering is superfluous and what injury is unnecessary. When answering this question it must be considered that the principle against superfluous injury or unnecessary suffering is not an absolute principle, a weapon is not prohibited solely because it causes extreme suffering, the suffering must be superfluous or the injuries need to be deemed ­unnecessary.48 This acknowledges that it is the nature of armed conflict that necessary suffering is expected and lawful and that this can include severe injury or death. This acknowledgment of the nature of armed conflict has formed the basis of the principle against superfluous injury or unnecessary ­suffering since its inception and can be considered as part of the general acknowledgment of military necessity as one of the determining factors within international humanitarian law.49 Through the use of terms such as superfluous and unnecessary it is clear that there needs to be a comparison.50 However it is not completely clear by the principle itself, or the codifications of the principle, what this suffering or injury needs to be compared to. Looking at the issue logically and at the purposes of weapons use, which purpose normally is to create a military advantage, the appropriate comparison appears to be between the suffering or injury caused by a weapon and the normally expected military advantage of a weapon in its intended or normal use.51 The military advantage has also been qualified as the military necessity to employ the weapon, which appears to be more in 47 48 49 50 51

Greenwood (n 17) 198–​199. Carnahan (n 25) 712; Greenwood (n 17) 194–​195; Marco Roscini, Cyber Operations and the Use of Force in International Law (Oxford University Press 2014) 172. Sitaropoulos (n 6) 80; Boothby (n 3) 55–​56; Boothby (n 41) 172. Greenwood (n 17) 197; Boothby (n 3) 62. Greenwood (n 4) 446; Boothby (n 3) 62; Heather Harrison Dinniss, Cyber Warfare and the Laws of War (Cambridge University Press 2012) 255; Boothby (n 41) 159; Steven Haines, ‘The Developing Law of Weapons: Humanity, Distinction and Precautions in Attack’ in: Andrew Clapham & Paola Gaeta (eds.), The Oxford Handbook of International Law in Armed Conflict (Oxford University Press 2014) 285.

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line with the verbiage of international humanitarian law and is reminiscent to the inclusion of the principle within the Lieber Code.52 The determination of the military necessity needs to be focused on the weapons normal use, or in the case of new weapons on the expected normal use, for which the weapon was intended or designed and should therefore not take into account its use in extraordinary circumstances or cases of misuse.53 As a consequence of the focus on the military advantage it does not matter if the suffering is extreme, as long as the military advantage that is, or is expected to be, attained by the use of this weapon does not render the suffering unnecessary. This can be either due to the fact that the advantage is so great that its use warrants the suffering, or that the same military advantage cannot be attained through means which cause less suffering. Therefore, the more effective a weapon is, thus the greater its military advantage, the less likely it is for the suffering it inflicts to be classified as unnecessary.54 This was acknowledged by the Tokyo District Court in Shimoda et al. v. The State where the court stated: the use of a certain weapon, great as its inhuman result may be, need not be prohibited by international law if it has a great military effect.55 These two widely divergent factors need to therefore be balanced against each other, which is partially what has led to the difficulty in applying the principle, as there is no consensus about what considerations are relevant or the manner in which these factors need to be weighed to determine the exact military necessity of a weapon.56 It might seem easy to point to the first explicit pronouncement of the principle against superfluous injury or unnecessary suffering, the 1868 St. Petersburg Declaration, in order to find a solution. In the preamble of the Declaration there was a focus on the disablement ‘of the greatest possible number of men’.57 However this needs to be viewed as an overtly simplistic and too narrow an 52 53 54 55 56 57

Cowling (n 5) 142; Nasu & Faunce (n 4) 38. Greenwood (n 17) 198–​199; Cowling (n 5) 146–​147; Boothby (n 3) 62; Nasu & Faunce (n 4) 37; Boothby (n 41) 159. Carnahan (n 25) 712–​713; Greenwood (n 4) 446; Sandesh Sivakumaran, The Law of Non International Armed Conflict (Oxford University Press 2014) 389. Ryuichi Shimoda et al. v. The State, District Court of Tokyo, 7 December 1963, translated in (1964) 8 Japanese Annual of International Law 212. Greenwood (n 4) 446; Sitaropoulos (n 6) 82–​82. 1863 St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight (29 November/​11 December 1868).

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approach to military necessity, especially when looking at it from a modern perspective. This is because it can only be viewed as an applicable approach in the context of anti-​personnel weapons and does not take into account any other relevant factors, outside of the disablement of troops.58 In the modern context it has been argued that to determine the military advantage, not only the strict considerations of the immediate effects of different weapons need to be taken into account but also other factors, such as their costs, the availability of alternative weapons and other impacts.59 The problem with comparing the suffering to the general military advantage or military necessity, is that this concept is not completely clear and can be interpreted very broadly. This might lead to the concept of military necessity functioning in a legitimising role, used as a justification for derogation from the general rule, as this concept can be interpreted in different manners to further military or political goals.60 A different and more comprehensive way to look at the issue of what unnecessary suffering or superfluous injury is, is the view that any suffering or injury that has no military purpose can be considered as being superfluous or unnecessary.61 While this is a legitimate position, it does not alleviate the issue that exists when comparing the suffering to military necessity, as this in itself does not indicate which suffering or injury has no military purpose and as such does not add clarification. Military necessity is but one part of the equation, the second part of the comparison is the injury or suffering. As is the case with military necessity there is no clear consensus on the factors that need to be taken into account when attempting to measure the severity of the suffering or the injury and the question has been raised whether this aspect should be objectified in some way. Some general conclusions about the nature of this suffering or injury can be drawn from the law itself. Through combining the terms suffering and injury in the English translation of the principle it is now considered that the totality of suffering and injury need to be taken into account, thus both physical and psychological effects.62 Another consideration that can be stated with reasonable 58 59 60

61 62

Greenwood (n 17) 195–​196; Gardam (n 41) 557, Although it has also been argued that the principle against superfluous injury or unnecessary suffering is only applicable to anti-​ personnel weapons, Dinniss (n 51) 253. Carnahan (n 25) 713; Greenwood (n 17) 198; Sitaropoulos (n 6) 75–​76. Sitaropoulos (n 6) 76; Nasu & Faunce (n 4) 38–​39. This legitimising role has been used since the inception of the principle of military necessity in the Lieber Code, which was evolved into the notion of Kriegsraison in Germany, which was used as a basis for the German Army to legitimize their violations of the customs of war, Carnahan (n 26) 218. Carnahan (n 25) 713; Henckaerts & Doswald-​Beck (n 9) 240. Greenwood (n 17) 196; Sitaropoulos (n 6) 91; Boothby (n 3) 58–​59.

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certainty is that, as with the military advantage, the suffering or injury needs to be considered in the context of the normal or intended use of the weapon. This is especially prudent to take into account in this context, because most any weapon is capable of causing superfluous injury or unnecessary suffering through misuse or in extraordinary circumstance. It does not appear to be sufficient that a weapon could, or even would, cause superfluous injury or unnecessary suffering in simply a majority of instances, as there might also be instances where the suffering would not be unnecessary or the injury not be superfluous.63 It has been argued that some forms of injury or suffering might objectively always be considered as unnecessary or superfluous. This has led to the attempt at making the interpretation of superfluous injury and unnecessary suffering more objective and practical, most notably through the SIrUS-​project of the icrc. The project attempted to draw on medical assessments in order to create a baseline for what should be considered as superfluous or unnecessary. After the publication of its results this study received a lot of criticism and has not seen any real adoption by states, instead garnering strong opposition from many states.64 One of the main criticisms was that the project only regarded a single aspect, that of injury and suffering, without taking into account the possible military advantage, therefore only taking into account one of the two factors necessary to determine what injury is superfluous of which suffering is unnecessary.65 The SIrUS-​project was subsequently abandoned and no further attempts have been made since to objectify the principle.66 As such these two factors are difficult to objectively measure on their own, which compounds the inherent problem of comparing such divergent factors.67 The base comparison should, as stated, be that the suffering should be considered as unnecessary and the injury as superfluous if it is not relevant or proportionate to the concrete, or expected, military advantage.68 But even if both factors could be objectively measured and quantified, the determination what suffering or injury would be disproportional for what military advantage would in many ways remain a judgment call.69 This comparison can be made even more difficult in the context of new weapons, that have not been 63 64 65 66 67 68 69

Carnahan (n 25) 719; Greenwood (n 17) 199. Nasu & Faunce (n 4) 40; O’Connor (n 24) 141–​142; Watts (n 9) 549. Boothby (n 3) 65–​66; David Křivánek, ‘The Weapons Provisions in the Rome Statute of the International Criminal Court and in the German Code of Crimes Against International Law’ (Nomos Verlagsgesellschaft 2010) 153. Boothby (n 3) 66; Watts (n 9) 549. Greenwood (n 4) 446; Sitaropoulos (n 6) 82; Boothby (n 3) 64; Nasu & Faunce (n 4) 38. Sitaropoulos (n 6) 80; Gardam (n 41) 557. Boothby (n 3) 64–​65.

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employed yet or which are still in development. In such a case the determination must be made on the basis of assumptions concerning the likely suffering that the weapon will cause in its normal use and, which is even more difficult to ascertain, the likely military advantage that the normal use of this weapon will affect.70 There has been some discussion about how this determination should be made,71 but a concrete and reasonably objective manner has not been agreed upon. The difficulty of determining how the different factors need to be weighed appears to be one of the main reasons why there are hardly any weapons that are considered to violate the principle against superfluous injury or unnecessary suffering.72 In this regard it is interesting that during the proceedings in the Nuclear Weapons Advisory Opinion certain states argued within their written statements that the balancing between the harm and the military necessity could not be done in abstracto.73 This reasoning does not appear to be persuasive, because if one were to follow this reasoning it completely undermines the principle against superfluous injury or unnecessary suffering in the context of weapons law, as it would shift from the intrinsic value of a weapon to a case-​by-​case determination on the manner in which a weapon has been used,

70 71

72 73

Greenwood (n 17) 199. It has for example been argued that there should be a comparison between different weapons and possible alternatives (Greenwood (n 17) 191; Ines Peterson, Die Strafbarkeit des Einsatzes von biologischen, chemischen und nuklearen Waffen als Kriegsverbrechen nach dem IStGH-​Statut (Berliner Wissenschafts-​Verlag 2009) 294; O’Connor (n 24) 140) This option however raises a different problem, namely that this would make it increasingly difficult to state in any objective manner that a weapon is entirely prohibited, as this comparison would be dependent on the arsenal that is available to a party. This would subsequently lead to different standards being applied to different states, or armed groups, especially when one takes into account the availability of a possible alternative weapon. (Greenwood (n 17) 198). Those that are mentioned in this regard are often antiquated weapons, such as barbed lances, Carnahan (n 25) 722; Greenwood (n 4) 446; Greenwood (n 17) 185–​186; Turns (n 10) 211–​212; Watts (n 9) 551. O’Connor (n 24) 139; ICJ Written Statements, Nuclear Weapons Advisory Opinion, Letter dated 16 June 1995 from the Minister for Foreign Affairs a.i. of the Netherlands, together with Written Statement of the Government of the Netherlands, 7–​ 8; ICJ Written Statements, Nuclear Weapons Advisory Opinion, Letter dated 16 June 1995 from the Legal Adviser to the Foreign and Commonwealth Office of the United Kingdom of Great Britain and Northern Ireland, together with Written Comments of the United Kingdom, 51–​52; ICJ Written Statements, Nuclear Weapons Advisory Opinion, Letter dated 20 June 1995 from the Acting Legal Adviser to the Department of State, together with Written Statement of the Government of the United States of America, 21–​22.

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thereby shifting from weapons law towards the law of targeting. If one looks at the current practice it might be argued from a cynical point of view that this is already the manner in which the principle is often applied, however this interpretation is clearly not in line with the object and purpose of the principle, nor is it the manner in which the international customary law rule is most commonly interpreted. Within the advisory opinion itself the icj states that superfluous injury or unnecessary suffering should be considered to be any ‘harm greater than that unavoidable to achieve legitimate military objectives’.74 Thus the advisory opinion does not provide any more clear indication as to how either factor needs to be interpreted or weighted.75 Judge Shahabuddeen in his dissenting opinion does attempt to deal with the issue in somewhat more detail, and unlike the general opinion he opines that ‘suffering is superfluous or unnecessary if it is materially in excess of the degree of suffering which is justified by the military advantage sought to be achieved’.76 In order to clarify this further Judge Shahabuddeen turns to an interesting aspect, that is not generally brought up for consideration in this context, namely the public conscience.77 By doing this he directly links the notion of superfluous injury and unnecessary suffering to the Martens Clause in order to interpret the former.78 It could certainly be argued that the principle is in line with and derives from the Martens Clause,79 however the notion that there is a direct link between the interpretations of the two does not appear to have broad support in the literature. 2.1.5 Conclusion Even though the principle against superfluous injury and unnecessary suffering can be regarded as one of the oldest, as well as one of the most important and intransgressible principles of international humanitarian law, it does not appear to have had much practical effect. Over the years it has been extremely rare for a weapon to be considered as causing such harm, and while it has been argued that certain prohibition instruments on specific weapons have at least been partially inspired by the principle, there is no clear example to point to for any weapon developed within the last century that has unequivocally been seen as running afoul of this principle.80 It has for example been argued that 74 75 76 77 78 79 80

Nuclear weapons Advisory Opinion, ¶ 78. O’Connor (n 24) 136. Nuclear weapons Advisory Opinion, Dissenting Opinion of Judge Shahabuddeen, 180. Nuclear weapons Advisory Opinion, Dissenting Opinion of Judge Shahabuddeen, 180–​181. O’Connor (n 24) 137. Boothby (n 3) 67. Greenwood (n 4) 446; Greenwood (n 17) 185–​186; Roscini (n 48) 173.

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the ccw and its protocols find their basis in the principle prohibiting weapons of a nature to cause superfluous injury or unnecessary suffering,81 but it cannot be said that this has been explicitly acknowledged in any of the protocols.82 Another argument against taking prohibitions on specific weapons as being based on this principle is the mere fact that the existence of a prohibition or restriction on a weapon in itself cannot be viewed as evidence or as having the implication that a particular weapon breaches this principle.83 Even nuclear weapons, which are widely seen as causing superfluous injury or unnecessary suffering, have not been found to be prohibited on the basis of the principle of superfluous injury or unnecessary suffering.84 This principle can therefore be argued to be more of a moral rule that provides a rationale for the prohibition of specific weapons, rather than having a lot of practical legal value in itself.85 2.2 Inherently Indiscriminate 2.2.1 Introduction The second cardinal principle of international humanitarian law that needs to be discussed in this context is the principle of distinction between combatants and non-​combatants. It logically flows from the principle of distinction that only combatants and military objectives can be legitimate targets of use of force, which consequently means that attacks should only be directed against military objectives. As the icj has stated, the principle of distinction is one of the most fundamental rules and similar to the principle against superfluous injury and unnecessary suffering is one of the intransgressible norms of international humanitarian law.86 The main importance of this principle is most often seen within the context of the law of targeting, but this principle also plays an important role in determining the legality of a weapon. Within 81

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It has for example been argued that the ban on permanently blinding laser weapons (Protocol on Permanently Blinding Laser Weapons), or Protocol (i) on Non-​Detectable Fragments are based on the principle. Greenwood (n 4) 449–​450; Evans (n 9) 720; Watts (n 9) 589. W Hays Parks, Means and Methods of Warfare, George Washington International Law Review, 2006, vol. 38, 511–​539, 522; Watts (n 9) 580; Boothby argues that due to the omitting of such an assertion, a case could be made that it is not regarded as breaching the principle. Boothby (n 3) 60. Parks (n 82) 522–​523; Boothby (n 3) 60. Nuclear weapons Advisory Opinion, ¶ 94–​95. Turns (n 10) 211–​212. Within the icrc Study on Customary International Humanitarian Law it is even acknowledged that there is no consensus about whether the principle in itself prohibits certain weapons, or that weapons can only be considered as being prohibited on the basis of a specific provision or instrument concerning the weapon, Henckaerts & Doswald-​Beck (n 9) 242–​243. Nuclear weapons Advisory Opinion, ¶ 78–​79.

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weapons law the application of this principle can lead to the prohibition of weapons that are not capable of being used in a way that follows the guiding principle of distinction. This prohibition thereby tries to serve and protect the principle of distinction87 and can certainly be seen as a logical and necessary consequence of this principle.88 The icj worded the nature of the obligation as states being prohibited from ever using ‘weapons that are incapable of distinguishing between civilian and military targets’.89 While the extension of the principle of distinction to weapons law does not seem anything other than logical, it does not exactly clarify how to determine whether a weapon is incapable of distinguishing between civilian and military objects. In this regard it needs to be viewed how this principle has been formulated in its codification. There is some agreement that the manner in which the principle should be understood is reflected in art. 51(4)(b) and (c) ap i:90

4. Indiscriminate attacks are prohibited. Indiscriminate attacks are: (…) (b) those which employ a method or means of combat which cannot be directed at a specific military objective; or (c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.

This was the first explicit inclusion of a prohibition against weapons which do not have the capability to discriminate. Prior to ap i international instruments seemed to solely be concerned with the indiscriminate use of weapons.91 This led to some discussion within literature about whether the principle of distinction only dealt with the use of weapons, or whether it could render a weapon inherently indiscriminate, raising the question whether ap i codified existing law or made new law in this regard.92 While there might be some discussion 87 88

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Greenwood (n 17) 189; Charles J Moxley Jr., John Burroughs & Jonathan Granoff, ‘Nuclear Weapons and Compliance with International Humanitarian Law and the Nuclear Non-​ Proliferation Treaty’ (2011) 34(4) Fordham International Law Journal 595, 612, 614. Greenwood (n 17) 200; Lindsay Moir, ‘Conduct of Hostilities –​War Crimes’ in: José Doria, Hans-​Peter Gasser & M Cherif Bassiouni (eds.), The Legal Regime of the International Criminal Court: Essays in Honour of Professor Igor Blishchenko (Martinus Nijhoff Publishers 2009) 491; Casey-​Maslen (n 6) 96–​97; Haines (n 51) 282. Nuclear weapons Advisory Opinion, ¶ 78. Haines (n 23) 266–​267; Boothby (n 3) 79–​85; Henckaerts & Doswald-​Beck (n 9) 247; Dörmann (n 19) 302–​309; Watts (n 9) 552–​553. Boothby (n 3) 72–​76. Boothby (n 3) 75–​76; Haines (n 51) 282; Watts (n 9) 552.

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on whether there was a pre-​existing rule prohibiting inherently indiscriminate weapons, since its inclusion in ap i the prohibition can certainly be said to have become customary international humanitarian law,93 as has been acknowledged by the icj in the Nuclear Weapons Advisory Opinion.94 When looking at the icj Advisory opinion it becomes clear that the Court equates the use of an indiscriminate weapon with a deliberate attack on non-​combatants.95 This is generally seen as the manner in which the rule against inherently indiscriminate weapons has been developed, first as a part of the prohibition against indiscriminate attacks, before becoming significant as a standalone provision.96 While currently art. 51(4)(b) and (c) api are taken as the customary international law standard concerning inherently indiscriminate weapons, there has been some discussion about whether both subparagraphs should be considered when determining a weapons legality.97 The view that both subparagraphs are relevant seems to have been supported by the icj when it speaks of ‘weapons that are incapable of distinguishing between civilian and military targets’,98 which appears broader than the term ‘weapons that cannot be directed at a specific military objective’ in art. 51(4)(b) api.99 Both of these aspects will therefore be discussed. 2.2.2

Which Cannot Be Directed (b) those which employ a method or means of combat which cannot be directed at a specific military objective

This subparagraph focuses on those weapons which cannot be directed at a specific military objective, the employment of which will render an attack as an indiscriminate attack, due to the nature of art. 51 api.100 This logically seems to be mainly focused on law of targeting but it does have effects in the area of weapons law. It becomes clear from the subparagraph that a weapon must be capable of discriminate use, that it must be capable of being directed at a specific military objective, if not than the employment of the weapon 93 94 95 96 97

Haines (n 23) 266–​267; Henckaerts & Doswald-​Beck (n 9) 244–​246; Watts (n 9) 552–​553. Nuclear weapons Advisory Opinion, ¶ 78–​79. Nuclear weapons Advisory Opinion, ¶ 78 Dörmann (n 19) 308. Bothe (n 19) 408; Turns (n 10) 214. Casey-​Maslen (n 6) 109–​110; Jeffrey Thurnher, ‘Means and Methods of the Future: Autonomous Systems’ in Paul Ducheine et al. (eds.) Targeting: The Challenges of Modern Warfare (T.M.C. Asser Press 2016) 186–​187. 98 Nuclear weapons Advisory Opinion, ¶ 78. 99 Dörmann (n 19) 308; Casey-​Maslen (n 6) 109. 100 Boothby (n 3) 79.

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is prohibited. But the manner in which it should be determined whether a weapon is capable of such direction is however less clear than the subparagraph appears. There is no clear answer, and consequently there is still debate, as to how this subparagraph should be interpreted. Judge Higgins in her dissenting opinion to the Nuclear Weapons Advisory Opinion stated that a weapon is indiscriminate in nature if it is incapable of being targeted at a military objective.101 This statement is clearly in line with the subparagraph and does indicate that with term ‘directed’ is a reference to the targeting procedure. In this regard to determine whether a weapon is incapable of being directed, the weapon needs to be considered in light of its ordinarily intended target, thus looking at the ‘nature’ of a weapon. As such, and similar to the principle prohibiting weapons that are of a nature to cause superfluous injury or unnecessary suffering, the legality of a weapon cannot be considered in light of inappropriate uses of a weapon.102 The weapon must be indiscriminate in all circumstances, as such it cannot be considered an inherently indiscriminate weapon in certain circumstances, while not being considered inherently indiscriminate in other circumstances.103 A problem distinguishing this difference with indiscriminate attacks under the law of targeting is a subject will be discussed later in this section. It has been argued that this inability to be directed should be understood to include weapons which have no guidance systems, or which guidance systems are so rudimentary or unreliable that it cannot be predicted where these weapons will impact.104 Very few weapons would be incapable of reaching this threshold and consequently be considered to be so inaccurate that they would be inherently incapable of being directed, as it is mainly understood to be weapons entirely incapable of direction.105 This has led to the most often mentioned example of such weapons being the incendiary balloons employed by the Japanese during the Second World War, which after deployment were completely dependent on the weather to determine where heir payload would take effect.106 No

1 01 Nuclear weapons Advisory Opinion Dissenting Opinion of Judge Higgins, ¶ 24. 102 Haines 2009, 266; Boothby (n 3) 82–​83; Christopher Toscano, ‘“Friends of Humans”: An Argument for Developing Autonomous Weapons Systems’ (2015) 8(1) Journal of National Security Law & Policy 189, 206. 103 Haines (n 23) 266–​267; Boothby (n 3) 82–​83. 104 Greenwood (n 17) 215; Casey-​Maslen (n 6) 99. 105 Greenwood (n 17) 203; Boothby (n 3) 81. 106 Dörmann (n 19) 305–​306; Watts (n 9) 553; Thomas (n 12) 254–​255.

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contemporary weapon since the Second World War can unequivocally be considered so incapable of direction. It has subsequently been argued that this standard should be further developed and expanded to also include weapons which are ‘incapable of reliably distinguishing’.107 Broadening the scope in this manner would allow for more weapons to be considered as being inherently indiscriminate, but it seems unlikely at the current point in time that the rule should be interpreted to include such weapons as well.108 2.2.3

Effects that Cannot Be Limited (c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.109

This subparagraph mirrors subparagraph b in that it focuses on the issue from the perspective of the law of targeting, describing a specific type of attack which should be considerate as an indiscriminate attack. As with the previous subparagraph it is currently considered to also be part of determining the overall legality of a weapon. However, there is no consensus about what should be considered as ‘effects which cannot be limited’.110 This subparagraph is generally interpreted as prohibiting weapons the effects of which cannot be controlled, this lack of control over the effects is what leads to an impossibility to ensure that the use of the weapon adheres to the principle of distinction.111 This means that there needs to be a certain degree of foreseeability to the effects that the use of the weapon entails, an example of a type of weapon where this would not be the case would be a weapon whose effects are wholly dependent on the weather.112 The determination of whether effects cannot be controlled is not only based on spatial effects, but it also concerns temporal issues.113 As Dörmann states this form of 107 Peter J Richards & Michael N Schmitt, ‘Mars meets Mother Nature: Protecting the Environment during Armed Conflict’ (1999) xxviii Stetson Law Review 1047, 1079. 108 Boothby (n 3) 81. 109 Art. 51(4)(c) api. 110 Henckaerts & Doswald-​Beck (n 9) 248; Dörmann (n 19) 308–​309. 111 Cowling (n 5) 146; Dörmann (n 19) 308; Moxley, Burroughs & Granoff (n 87) 613; Casey-​ Maslen (n 6) 104–​106. 112 Dörmann (n 19) 309; Křivánek (n 65) 156. 113 Casey-​Maslen (n 6) 106.

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an inherently indiscriminate nature is meant ‘for cases (…) where the weapon, even when targeted accurately and functioning correctly, is likely to take on ‘a life of its own’ and randomly hit combatants or civilians to a significant degree’.114 The argument has been put forth that perhaps the principle of proportionality should be taken into account when determining the effects of a weapon. The problem with this is that it would create an extremely difficult situation as it would be nearly impossible to do so in an abstract manner and subsequently use it to determine whether a weapon is inherently indiscriminate. As such it does not appear to be the most logical interpretation of art. 51(4)(c) ap i and therefore remains quite a contentious view.115 The more logical approach is that proportionality is not directly applicable in the context of weapons law, as proportionality cannot be considered in abstracto, but can only be truly considered in the context of a specific attack.116 Like with the other form of inherently indiscriminate it is difficult to state from many weapons that their effects could be seen as uncontrollable. The only weapons that could clearly be said to possibly fall in the category of weapons the effects of which cannot be controlled are biological and chemical weapons, as it cannot be predicted or controlled how the agent would possibly spread after its initial deployment.117 2.2.4 Conflation between the Law of Targeting and Weapons Law As discussed earlier, in the context of weapons law a weapon is either inherently indiscriminate or not, it cannot be context-​specific. However, it has often occurred that the different interpretations of indiscriminate in weapons law and the law of targeting are conflated. An interesting example of such conflation can be seen at the icty in the Martić-​case. In this case the Trial Chamber seemed to view the principle similarly in both weapons law and targeting law. The Trial Chamber stated that the the M-​87 Orkan was an indiscriminate weapon by virtue of its characteristics.118 However when following the exact reasoning of the Trial Chamber,

1 14 115 116 117

Dörmann (n 19) 309. Dörmann (n 19) 308–​309; Casey-​Maslen (n 6) 116. Boothby (n 3) 79. Haines (n 23) 266–​267; Watts (n 9) 553 although it has been said that even certain biological or chemical weapons could be used in a manner which only affects combatants, Sivakumaran (n 54) 391. 118 Prosecutor v. Martić, Case No. it-​95-​11-​t Trial Chamber i Judgment, ¶ 463 (International Criminal Tribunal for the Former Yugoslavia 12 June 2007).

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it did not consider the M-​87 Orkan as inherently unlawful, but rather that its use was unlawful in this instance, due to its employment in densely populated civilian areas and the specific firing range at which it was employed.119 The Appeals Chamber further complicated the matter by stating firstly that ‘(t)he Trial Chamber concluded that the M-​87 Orkan was used as an indiscriminate weapon’ thereby indicating that the manner in which the weapon was used was the issue.120 But the Appeals Chamber later appeared to contradict this statement by mentioning that ‘the Trial Chamber did not err when it found that the M-​87 Orkan was an indiscriminate weapon, incapable of hitting specific targets’.121 With these different statements the Appeals Chamber did not make it entirely clear whether they followed the same interpretation. In this case there seems to have been made no difference between the indiscriminate use of a weapon and an inherently indiscriminate weapon. However, when considering the facts of the case this should be seen as a case of indiscriminate use of a weapon, rather than fulfilling the requirements for regarding the M-​87 Orkan itself as inherently unlawful.122 This shows the difficulty that there often is in differentiating between weapons used in an indiscriminate manner, such as was the case in the Martić-​case, weapons which can have indiscriminate effects, such as landmines or clustermunitions, and weapons which are indiscriminate by their very nature. It is only the latter which are directly prohibited on the basis of this principle, and these are only those weapons which are entirely incapable of discriminating use. Weapons which can be used in an indiscriminate manner, or which can have indiscriminate effects but are also capable of being used in a manner which complies with the principle of distinction can therefore not be considered as inherently indiscriminate and are therefore not prohibited by this principle.123 Because this seems like a exceedingly high threshold it has been argued that weapons which in their normal or typical use do not comply with the principle of distinction, should be seen as being prohibited by the principle of discrimination.124 This does not appear to be the correct interpretation, especially when seen in the context of the icj Nuclear Weapons Advisory Opinion, where even nuclear weapons could not be considered as inherently

1 19 Ibid. ¶ 461–​463. 120 Prosecutor v. Martić, Case No. it-​95-​11, Appeals Chamber Judgment, ¶ 247 (International Criminal Tribunal for the Former Yugoslavia 08 October 2008). 121 Ibid., ¶ 256. 122 Casey-​Maslen (n 6) 100–​103. 123 Boothby (n 3) 81–​82; Sivakumaran (n 54) 391–​392. 124 Boothby (n 3) 83; Sivakumaran (n 54) 391.

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indiscriminate, which indicates that as long as there might be any situation in which their use is not indiscriminate such a weapon cannot be considered as being inherently illegal.125 Similar to the principle against superfluous injury and unnecessary suffering there is a discussion about whether weapons are to be considered as ­prohibited solely on the basis of the general principle against inherently indiscriminate weapons, or whether a weapon can only be considered as being prohibited when there is a specific international legal rule or instrument prohibiting this weapon.126 There are no clear indications of weapons being prohibited solely on the basis of this principle,127 or where it has been made explicit that the instrument prohibiting a weapon is based on this principle, as such it could be argued that weapons which are inherently indiscriminate are virtually non-​existent.128 Conclusion 2.3 There are clear principles within weapons law that are certainly generally accepted, and it is completely clear that the prohibition against weapons which cause superfluous injury or unnecessary suffering, or which are inherently indiscriminate is customary international humanitarian law. While this is clear, it must also be understood that these principles are not consistently applied and there is no consensus on the way they should be applied. This is especially the case when focusing on the practical question of whether a specific weapon should be considered as being prohibited. Even weapons which generally seem to go against these base principles of international humanitarian law do not appear to be prohibited by these principles. The best example of this can be seen in the Nuclear Weapons Advisory Opinion, where it is acknowledged that while the use of nuclear weapons would generally violate these principle, there is the possibility that there would be circumstances in which the use of these weapons could be compatible with these principles, indicating that the employment of these weapons is not in and off itself prohibited.129

1 25 Nuclear weapons Advisory Opinion, ¶ 94–​95 Sivakumaran (n 54) 391–​392. 126 Henckaerts & Doswald-​Beck (n 9) 2009, 248–​249; Boothby (n 3) 84–​85. 127 Commonly mentioned examples of weapons that are inherently indiscriminate, are weapons such as balloon bombs or V2 rockets, but this has not been explicitly acknowledged by any international tribunal, or international instrument Dörmann (n 19) 305–​307. 128 Parks (n 82) 522; Sivakumaran (n 54) 391. 129 Nuclear weapons Advisory Opinion, ¶ 95; Darcy (n 7) 1897–​198.

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This reasoning by the icj shows the exceedingly high bar that needs to be crossed before these principles completely prohibit a weapon, a standard that appears practically unobtainable.130 The majority of weapons, all outside of specific archaic weapons,131 that are considered to be prohibited have their own international instrument concerning their legality.132 It has been argued that certain of these specific prohibitions could be seen as superfluous, as several of these weapons would be considered as contrary to one of the principles of weapons law.133 However all of these weapons do have a specific instrument banning them and these instruments can be seen as being necessary since the general prohibitions are too broad and vague to by themselves be useful in any practical sense, especially since there is often no clear indication that the prohibition instrument was based on these principles.134 This is aggravated by the fact that it is not until the prohibition instrument is adopted that the employment of a weapon is seen as contrary to international law. Especially in the context of new weapons there is a tendency for states to defend a new technology or development and generally do not consider any weapon they are developing as banned under these principles.135 It has been argued that these principles may have been one of the factors instigating the negotiations of treaties concerning certain weapons, realistically it does appear that they often were not the primary reason, it seems that strategic concerns were often more important.136 Only recently does it appear 1 30 Thomas (n 12) 257. 131 As can be seen by the referencing of archaic weapons as examples of weapons prohibited on the basis of these principles, such as barbed lances. Carnahan (n 25) 722; Greenwood (n 4) 446; Greenwood (n 17) 185–​186; Turns (n 10) 211–​212; Watts (n 9) 551. 132 Such as for example: Protocol (i)on Non-​Detectable Fragments; Protocol on Permanently Blinding Laser Weapons; Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction 26 March 1975, 1015 u.n.t.s. 163; Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction 29 Apr. 1997 1975 u.n.t.s. 469. 133 Haines (n 23) 272–​273, who argues that for example Protocol (i)on Non-​Detectable Fragments and Protocol (ii) on Prohibitions or Restrictions on the Use of Mines, Booby-​ traps and Other Devices to the 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, 2 Dec 1983, 1342 u.n.t.s. 168 are superfluous. 134 Parks (n 82) 522; Byron (n 42) 138. 135 Louise Doswald-​Beck, ‘Confronting Complexity and New Technologies: A Need to Return to First Principles of International Law’ (2012) 106 Proceedings of the Annual Meeting (American Society of International Law) 107, 107. 136 Robert Mathews and Timothy McCormack, ‘The Influence of Humanitarian Principles in the Negotiation of Arms Control Treaties’ (1999) 81(834) International Review of the Red Cross 331, 339, 344; Theodor Meron, ‘The Humanization of Humanitarian Law’

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that the general principles have become a more significant factor for such negotiations, as notably was the case for the 1997 Ottawa treaty and the recent Cluster munitions treaty.137 This has led to the question of whether these principles themselves can render a weapon illegal without explicit action by states, since practice seems to indicate the contrary.138 Because of this indication it could seem more appropriate to see these principles as being more of a guideline or a moral imperative to create specific weapon prohibitions, on the basis of these principles, rather than having specific weapons banned through this prohibition.139 3

Employing Prohibited Weapons under International Criminal Law

Introduction 3.1 With the general principles that can prohibit weapons under international humanitarian law having been discussed we turn to the question of how the use of prohibited weapons has been dealt with in international criminal law. First thing that needs to be noted is that rarely do treaties that prohibit or regulate the use of certain weapons include a criminal law approach in them, instead opting for a regulatory or disarmament approach. Even those that do include a criminal law approach do so by obliging states to create domestic criminal law provisions for the use of such weapons.140 This section will however focus on the approach that has been taken in the context of international criminal law, it will especially focus on the interpretation within the icc Statute as this is the most comprehensive codification of the law concerning war crimes and is the most relevant in the current environment. The codification within the icc Statute does not directly influence possible international customary law nature

1 37 138 139 140

(2000) 94 The American Journal of International Law 239, 239; Nasu & Faunce (n 4) 30; Bonnie Docherty, ‘Ending Civilian Suffering: The Purpose, Provisions, and Promise of Humanitarian Disarmament Law’ (2010) 15 Austrian Review of International and European Law 7, 17–​23. Mathews and McCormack (n 136) 344–​347; Meron (n 136) 239; Docherty (n 136) 7–​9. Turns (n 10) 214–​215; Gardam (n 41) 554. Haines (n 23) 278–​279. Most notable of these are: Art. iv Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction 26 march 1975, 1015 u.n.t.s. 163; art. vii Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction 29 Apr. 1997 1975 u.n.t.s. 469; art. 9 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-​Personnel Mines and on their Destruction 1 March 1999, 2056 u.n.t.s. 211.

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in this regard, this exists independently from the icc Statute.The provision in the statute only affects the jurisdiction that the icc has over the employment of weapons.141 This section will focus on those provisions that deal directly with the criminalization of the employment of a weapon, even though the use of weapons which go counter to the general principles of superfluous injury and unnecessary suffering or which are inherently indiscriminate might also constitute a different war crime in many instances.142 This is because in these instances it would be the manner in which a weapon is used which constitutes the war crime and it’s not the employment of the weapon in and of itself which is the criminal act. While the provisions of international humanitarian law have been discussed it needs to be considered that the intention of international humanitarian law is not to approximate a comprehensive criminal code.143 As such these rules are in many cases not completely and directly transposable to international criminal law without some alterations. The rules of international humanitarian law are often relatively ambiguous and its provisions are often very abstract, oftentimes without direct indication of its detailed application.144 This clashes with international criminal law and criminal law in general, as the legality principle requires clear and detailed rules.145 In many cases this leads to provisions of international criminal law being significantly narrower than their international humanitarian law counterparts.146 Although it has been argued 141 Annie Golden Bersagel, ‘Use of Nuclear Weapons as an International Crime and the Rome Statute of the International Criminal Court’ in Gro Nystuen, Stuart Casey-​Maslen & Annie Golden Bersagel (ed.), Nuclear Weapons under International Law (Cambridge University Press 2014) 233–​234; art. 22(3) icc Statute. 142 Henckaerts & Doswald-​Beck (n 9) 600; An example of such an instance is the use of indiscriminate weapons, which could be interpreted as a direct attack against civilians, as was stated in Prosecutor v. Galić, Case No. it-​98-​29-​a , Appeals Chamber Judgment ¶ 132 (International Criminal Tribunal for the Former Yugoslavia 30 Nov. 2006); Andrea Cannone, ‘The use of prohibited weapons and war crimes’ in: Fausto Pocar, Marco Pedrazzi & Micaela Frulli (eds.) War Crimes and the Conduct of Hostilities: Challenges to Adjudication and Investigation (Edward Elgar Publishing Limited 2013) 190; Not in all cases will the use of a weapon contrary to the general principles of weapons law constitute a different war crime as well, especially weapons that violate the principle against unnecessary suffering or superfluous injury would in many instances not be covered by a different war crime under the Rome Statute, Robert Cryer, ‘Hague law comes home: Prosecuting weapons offences at the International Criminal Court’ (2003) Acta Juridica 238, 252 or a chemical weapon which use exclusively affected combatants Beth Van Schaack, ‘Mapping War Crimes in Syria’ (2016) 92 U.S. Naval War College/​International Law Studies 282, 315. 143 Fenrick (n 10) 26; Bartels (n 15) 340. 144 Fenrick (n 10) 26; Gardam (n 25) 351. 145 Bartels (n 15) 340–​341. 146 Sivakumaran (n 15) 221; Bartels (n 15) 346.

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that this might have the risk that the narrower international criminal law approach could replace the broader international humanitarian law rule,147 it is in most cases required to narrow the provision in criminal law if only to adhere to the legality principle. Especially in the context of the employment of prohibited weapons where the relevant general international humanitarian law rules are very general, broad and there exists a lack of clarity concerning their application, as seen in the previous sections, is this a necessary step and it is therefore not surprising that the provisions within the icc Statute are somewhat different. During the drafting of the icc Statute the weapons provisions turned out to be some of the most contentious aspects.148 This contentious nature has led the weapons provision to be one of the more criticized aspects of the icc Statute’s war crimes provisions and has generally been seen as one of the more disappointing and lacklustre aspects of the entire Statute.149 Certain provisions within article 8 icc Statute deal with specific types of weapons and ammunition, however these are limited.150 The weapons and munitions which are included have generally not been commonly used in modern conflicts,151 at the same time more modern and more controversial

147 Sivakumaran (n 15) 221; Robert Cryer, ‘The Relationship of International Humanitarian Law and War Crimes: International Criminal Tribunals and Their Statutes’ in: Caroline Harvey, James Summers & Nigel D White (eds.), Contemporary Challenges to the Laws of War: Essays in Honour of Professor Peter Rowe (Cambridge University Press 2014) 140–​141. 148 Michael Cottier, ‘Article 8 War Crimes, para. 2(b) (xvii)-​(xx)’ in: Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (C.H. Beck, Hart Publishing, Nomos 2008) 410; Schabas (n 19) 243; Robin Geiss, ‘Poison, Gas and Expanding Bullets: The Extension of the List of Prohibited Weapons at the Review Conference of the International Criminal Court in Kampala’ in M N Schmitt et al. (eds.) Yearbook of International Humanitarian Law, Volume 13, 2010 (T.M.C. Asser instituut 2011) 339–​340; Bersagel (n 141) 221. 149 Timothy L H McCormack & Sue Robertson, ‘Jurisdictional Aspects of the Rome Statute for the New International Criminal Court’ (1999) 23 Melbourne University Law Review 635, 664; Askin (n 14) 54; Cryer (n 142); Knut Dörmann, ‘War Crimes under the Rome Statute of the International Criminal Court, with a Special Focus on the negotiations on the Elements of Crimes’ in A von Bogdandy and R Wolfrum (eds.) Max Planck Yearbook of United Nations Law, volume 7, 2003 (Koninklijke Brill n.v. 2003) 345–​346; Leena Grover, Interpreting Crimes in the Rome Statute of the International Criminal Court (Cambridge University Press 2014) 285. 150 poison or poisoned weapons (art. 8 (2)(b)(xvii) and art. 8 (2)(e)(xiii)), asphyxiating, poisonous or other gases and all analogous liquids materials or devices (art. 8(2)(v)(xviii) and art. 8(2)(e)(xiv)) and bullets which expand or flatten easily in the human body (art. 8(2) (b)(xix) and art. 8(2)(e)(xv)). 151 Schabas (n 19) 243–​244; Darcy (n 7) 188.

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weapons were not included, such as anti-​personnel land mines, cluster munitions, biological weapons, or nuclear weapons. The very limited number of included weapons leads to the situation where most weapons that might be considered as being prohibited would need to fall under the general weapons provision included in art. 8(2)(b)(xx) icc Statute. This subparagraph states: Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123. This provision is currently only included within the context of international armed conflicts, with no comparable provision existing in the context of non-​ international armed conflicts. The basis of this provision is the international humanitarian law standards of superfluous injury or unnecessary suffering and weapons which are inherently indiscriminate as discussed in the previous sections. This section will therefore mainly focus on the specifics about this prohibition that set it apart from the general understanding of the standard in international humanitarian law. It will discuss this subparagraph in light of the possible customary law standard that might exist. This needs to be done as art. 10 icc Statute acknowledges that nothing in the statute can or should be interpreted as limiting or prejudicing in any way existing or developing rules of international law. As such the provisions in the icc Statute are not necessarily reflective of customary international law.152 It must therefore be considered to what extend art. 8(2)(b)(xx) icc Statute reflects international customary law, especially in light of the possibly emerging criminal jurisdiction of the African Court of Justice and Human Rights coupled with current rifts between the icc and multiple states. One of the differences between the criminalization of the employment of prohibited weapons and most international crimes in general is that employment is a crime of conduct, there is no need for damage to have been caused.

152 Askin (n 14) 58; Robert Cryer, ‘Of Custom, Treaties, Scholars and the Gavel: The Influence of the International Criminal Tribunals on the icrc Customary Law Study’ (2006) 11(2) Journal of Conflict and Security Law 239, 242–​243; Paust (n 39) 682.

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This means that the simple employment and the intent to employ the weapon is by itself sufficient to fulfil the constituent elements of this crime.153 A Nature to Cause 3.2 As discussed in the section about weapons in international humanitarian law, there has been some confusion as to the correct wording of the principle against superfluous injury or unnecessary suffering, whether the weapon should be ‘calculated to cause’ or ‘of a nature to cause’ such harm. During the drafting of the icc Statute the same discussion was brought up. In the end the decision was made to follow art. 35(2) api and the 1899 Hague Regulations by opting for the terminology ‘of a nature to cause’.154 While in initial drafts the term ‘calculated to cause’ was used, this was changed in later drafts.155 This differs from the manner it was dealt within in the icty Statute where the term ‘calculated to cause’ was used.156 As discussed previously it appears that ‘of a nature to cause’ is the correct interpretation of the principle, as this is in line with the customary rule, on the basis of the original French text, as well as art. 35(2) ap i.157 As shown earlier this difference in terms was a significant difference in international humanitarian law, but in the context of international criminal law this difference becomes even more important. This is because of the higher importance that is granted to mens rea in the context of criminal law. If the term ‘calculated to cause’ was adopted there would have to be a higher level of mens rea required, it would require the prosecution to prove specific

153 Stuart Casey-​Maslen, ‘Use of Nuclear Weapons as Genocide, a Crime against Humanity or a War Crime’ in Gro Nystuen, Stuart Casey-​Maslen & Annie Golden Bersagel (ed.), Nuclear Weapons under International Law (Cambridge University Press 2014) 207. 154 It was made explicitly clear by Australia that this was the manner in which the customary principle had developed and that this was the correct and more contemporary interpretation, a/​c onf.183/​c 1/​s r.5, ¶ 43. 155 See for example the report of the preparatory committee, where in one of the draft options the term calculated to cause was included (Report of the Preparatory Committee on the Establishment of an International Criminal Court document a/​c onf.183/​2, (United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court Rome, 15 June–​17 July 1998 Official Records Volume iii, 17)), but by the draft of the Report of the Committee on the Whole, this was no longer mentioned, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court Rome, 15 June–​17 July 1998 Official Records Volume iii, 97. 156 Art. 3(a) Statute of the International Criminal Tribunal for the Former Yugoslavia 25 May 1993 UN Doc s/​r es/​827. 157 See: Paust (n 14) 436; Sitaropoulos (n 6) 88–​89; Paust (n 39) 710; O’Connor (n 24) 132.

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intent in the development, which is not the case under the wording ‘of a nature to cause’.158 This would also require the prosecution to prove double intent, firstly the intent by the manufacturer and subsequently the intent by the person employing the weapon. If it was opted to follow the term ‘calculated to cause’ this would not allow for criminal responsibility in the case of wanton or reckless disregard of the consequences and effects caused by the use of such weapons.159 3.3 Inherently Indiscriminate The wording within art. 8(2)(b)(xx) icc Statute is significantly different from the codification of the rule prohibiting inherently indiscriminate weapons within art. 51(4)(b) and (c) api. Whereas within international humanitarian law the principle is more explicitly laid out, the icc Statute opts for a more succinct formulation, prohibiting weapons which are ‘inherently indiscriminate’. But while the wording might be different, it should be clear that the intention is to criminalize the standard of international humanitarian law and for the term inherently indiscriminate to be interpreted in such a manner that it includes both weapons which are incapable of being directed at a specific military objective as well as weapons with uncontrollable effects.160 As such it should be said that there is no significant difference between the term ‘inherently indiscriminate’ in art. 8(2)(b)(xx) icc Statute and the terminology used in international humanitarian law. 3.4 Annex Art. 8(2)(b)(xx) icc Statute provides for the potential to criminalize weapons that cause superfluous injury or unnecessary suffering, or which are inherently indiscriminate through their inclusion within an annex. Currently such an annex has not been adopted and the provision can therefore be said to still be awaiting implementation.161 As such the provision currently has no

158 Roger S Clark, ‘Methods of Warfare That Cause Unnecessary Suffering or are inherently Indiscriminate: A Memorial Tribute to Howard Berman’ (1999) 28 California Western International Law Journal 379, 383; Paust (n 39) 710; Křivánek (n 65) 150. 159 Paust (n 14) 435–​436. 160 Greenwood (n 17) 200; Roger S Clark, ‘Building on Article 8(2)(b)(xx) of the Rome Statute of the International Criminal Court: Weapons and Methods of Warfare’ (2009) 12(3) New Criminal Law Review 366, 374: Schabas (n 19) 244; Casey-​Maslen (n 6) 99–​106. 161 Peterson (n 71) 145.

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practical value and can only be said to have symbolic value.162 But it has also been viewed that the non-​adoption of an annex negates the significance of the principles included in the provision, or that it, at the very least, does so as far as it concerns the icc.163 This subparagraph can for example be contrasted with art. 3(a) of the icty Statute, that provides general jurisdiction over the employment of weapons calculated to cause unnecessary suffering.164 Due to the fact that the adoption of an annex and a comprehensive prohibition are required, the provision within the icc Statute is therefore oftentimes viewed as being narrower than the customary law standard, both in international humanitarian law as well as international criminal law.165 The icc Statute is however broader in its consideration of weapons than the icty in one regard, namely through including the possibility of criminalizing the employment of weapons which are inherently indiscriminate, which was omitted from the icty Statute.166 Several different reasons have been put forward as to why the drafters of the icc Statute opted for the need for a weapon to be included within an annex to the icc Statute prior to their employment being prohibited. For many the most apparent of these reasons is that the drafters were unwilling to cede the power to determine the legality of a weapon to the icc itself, as this would allow the Court to decide over several very controversial weapons.167 This viewpoint is strongly supported by the difficulty in drafting the icc Statute’s weapons provisions that the travaux préparatoires show. These provisions were amongst the most controversial aspects of the drafting process and especially the issue of nuclear weapons was problematic. A majority of states were in favour of either including a specific prohibition concerning the employment of nuclear weapons or to leave the general prohibition open-​ended and let the court 162 Antonio Cassese, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’ (1999) 10 The European Journal of International Law 144, 152 Schabas (n 19) 244–​245. 163 Cryer (n 142) 250. 164 It must be said however that no prosecutions have taken place for the employment of weapons that might be contrary to this principle and it has been argued that this might be because the existence of an absolute prohibition is not completely clear. Cryer (n 142) 250; Héctor Olásolo, Unlawful Attacks in Combat Situations: From the ICTY’s Case Law to the Rome Statute (Martinus Nijhoff Publishers 2008) 67, 100–​101; O’Connor (n 24) 135. 165 Cassese (n 162) 152; Henckaerts & Doswald-​Beck (n 9) 583 Bersagel (n 141) 225–​230. 166 It can be argued that the icty got around this by arguing that the use of indiscriminate weapons can be equated to a direct attack on civilians, see Prosecutor v. Galić, Case No. it-​98-​29-​a , Appeals Chamber Judgment, ¶ 132 (International Criminal Tribunal for the Former Yugoslavia 30 Nov. 2006). 167 Cryer (n 142) 250–​251.

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decide upon which weapons were prohibited by the general principles. The five permanent members of the Security Council were however strongly opposed to the inclusion, or possible inclusion, of nuclear weapons.168 In the end it was decided not to include nuclear weapons, however part of the compromise was that biological and chemical weapons were not included either. This compromise was made due to the fact that several states that were opposed to nuclear weapons wanted a similar legal approach to the employment of biological and chemical weapons.169 This also meant that the general provision could not be open-​ended and the determination concerning the legality of employment of weapons could not be left to the icc, as this would go against the compromise by allowing either category of weapon to fall within the prohibition if the Court so determined. This compromise was presented, and certainly had the outcome, as a political move to retain a general consensus for the provisions concerning weapons, especially as the intention was to find the broadest possible support.170 It was subsequently acknowledged that the Statute did not include all weapons that it might have possibly included, and it could even be argued it did not include all weapons it should probably have included, which, combined with the possibility of newly developed weapons, led to the incorporation of the opportunity to include more weapons under an annex.171 Currently it appears unlikely however that the annex of prohibited weapons will be expanded in the near future, especially in regard to such controversial weapons as biological, chemical and nuclear weapons.172 This assumption can 168 Interestingly enough this drive to include nuclear weapons included, and according to some was led by, India, a nuclear power itself. Philippe Kirsch & John T Holmes, ‘The Rome Conference on an International Criminal Court: The Negotiating Process’ (1999) 93(1) The American Journal of International Law 2, 4; Mahnoush H Arsanjani, ‘The Rome Statute of the International Criminal Court’ (1999) 93 The American Journal of International Law 22, 34; Clark (n 160) 367–​368, 371; Bersagel (n 141) 222–​223. 169 See for example the statement by the Syrian Arab Republic 33rd meeting a/​c onf.183/​ c.1/​s r.33 ¶ 35; Philippe Kirsch & Darryl Robinson, ‘Reaching Agreement at the Rome Conference’ in: Antonio Cassese, Paola Gaeta & John R W D Jones (eds.), The Rome Statute of the International Criminal Court (Oxford University Press 2002) 79–​80; Cryer (n 142) 251; Dörmann (n 149) 346; Clark (n 160) 376; Schabas (n 19) 247; Van Schaack (n 142) 314; Marauhn (n 4) 38. 170 Kirsch & Holmes (n 168) 10; McCormack & Robertson (n 149) 665; Schabas (n 19) 246–​247. 171 Which was acknowledged by for example, Egypt (a/​c onf.183/​s r.9 ¶ 85), Markus Wagner, ‘The ICC and its Jurisdiction –​Myths, Misperceptions and Realities’ in A von Bogdandy & R Wolfrum (eds.) Max Planck Yearbook of United Nations Law, volume 7, 2003 (Koninklijke Brill n.v. 2003) 461; Van Schaack (n 142) 314. 172 Cassese (n 162) 152; Daniel David Ntanda Nsereko, ‘The Kampala Review Conference: The Capstone of the Rome System’ (2011) 22 Criminal Law Forum 511, 517; Van Schaack (n 142) 315.

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be seen as substantiated by the fact that Belgium intended to put forth a proposal in Kampala which would criminalize the employment of more weapons and initially intended to do so through the creation of an annex, as well as the proposal by Mexico to criminalize the employment of nuclear weapons, both were quickly shown to not have significant support amongst the states parties.173 An interesting argument has been brought forth by Cottier about this annex, namely that while normally the annex only ought to include weapons which are of a nature to cause superfluous injury or unnecessary suffering, or which are inherently indiscriminate, the nature of the amendment procedure would allow a Review Conference or the Assembly of States Parties to deviate from this. Thus, while it might have political importance and it is certainly unlikely to be used for weapons that do not have these characteristics, the possibility remains that it is possible for the States Parties to include them.174 3.5 Comprehensive Prohibition One of the extra elements that the provision in the icc Statute has compared to the international humanitarian law standard is that the weapon needs to be subject to a comprehensive prohibition. What constitutes a comprehensive prohibition is not further explained in either the icc Statute or the Elements of Crimes.175 There is also no indication within the drafting history as to how this term should be interpreted.176 When interpreting the term ‘comprehensive prohibition’ it logically follows from a textual approach that it can be assumed that any weapon that is prohibited under customary international law would fall under such a comprehensive prohibition, as will any which is prohibited on the basis of a near universally accepted treaty.177 It has been argued that in the context of the icc Statute the focus should be on those weapons that are prohibited under customary international law, since one of the intentions of 173 Amal Alamuddin & Philippa Webb, ‘Expanding Jurisdiction over War Crimes under Article 8 of the ICC Statute’ (2010) 8 Journal of International Criminal Justice 1219, 1222–​ 1223; Roger S Clark, ‘Amendments to the Rome Statute of the International Criminal Court Considered at the first Review Conference on the Court, Kampala, 31 May–​11 June 2010’ (2010) 2 Goettingen Journal of International Law 689, 709–​710; Geiss (n 148) 348–​349. 174 Cottier (n 148) 423. 175 The Elements of crimes mainly do not explain this any further, as the states parties decided against creating elements of crime for this article until such time that an annex was created. Cryer (n 142) 250; Dörmann (n 19) 297. 176 Roger S Clark, ‘Possible Amendments for the First ICC Review Conference in 2009’ (2007) 4 New Zealand Yearbook of International Law 103, 109; Clark (n 160) 370. 177 Clark (n 160) 378; Peterson (n 71) 295–​296; Křivánek (n 65) 166.

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the Statute was to only criminalize acts on the basis of customary international law.178 Many of the weapons that were explicitly discussed during the drafting of the icc Statute could be said to already have been the subject of a comprehensive probation at the time of the drafting, this seems especially the case with chemical or biological weapons.179 Since the entry into force of the icc Statute other weapons could be argued to have become subject to a comprehensive prohibition, such as anti-​personnel mines or more controversially cluster munitions.180 Requiring the existence of a prior comprehensive prohibition originated from a Canadian proposal, which originally seemed to have left it to the Court itself to determine whether a comprehensive prohibition had been achieved.181 To grant this power to the court was considered to be unacceptable by many states, who were of the view that the power to determine whether there is a comprehensive prohibition should retain with the states parties.182 The determination of whether there is a comprehensive prohibition does not solely rely on factual factors, it is at the complete discretion of the Assembly of States Parties or the Review Conference. Either of these organs can determine explicitly that such a prohibition exists, or can do so implicitly by doing nothing more than including a weapon within the annex.183 Since the Review Conference and the Assembly of States Parties have complete discretion in determining whether a comprehensive prohibition exists and what entails a comprehensive prohibition, as there is no fixed definition, this means that the acceptance of a relevant amendment creating an annex or including a weapon within the annex can be seen as sufficient proof for the existence of such a comprehensive prohibition.184 This consequently means that it would be possible to include even weapons for which it might be arguable whether

178 As can be seen by statements made during the drafting process, such as: Japan, 2nd plenary meeting a/​c onf.183/​s r.2 ¶ 44; U.S.A, Committee of the Whole 4th Meeting, 2nd meeting a/​c onf.183/​c .1/​s r.2 ¶ 49; Germany Committee of the Whole 4th Meeting, 2nd meeting a/​c onf.183/​c .1/​s r.2 ¶ 55 Křivánek (n 65) 166. 179 Clark (n 176) 108; Bersagel (n 141) 227. 180 Clark (n 176) 108–​109; Nsereko (n 172) 517; Geiss (n 148) 350; Bersagel (n 141) 227. 181 Clark (n 160) 370; Bersagel (n 141) 225. 182 Herman von Hebel & Darryl Robinson, ‘Crimes within the jurisdiction of the court’ in Roy S Lee, The International Criminal Court: the making of the Rome Statute: issues, negotiations, results (Kluwer Law International 1999) 115; Bersagel (n 141) 225. 183 Clark (n 176) 109; Clark (n 160) 385–​386. 184 Clark (n 160) 373; Peterson (n 71) 295–​296.

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they are subject to a comprehensive prohibition, as long as it is decided by the Assembly of States Party or Review Conference to include them. Nullum Crimen 3.6 An argument that has been put forth in favour of a specific annex and for the weapon to be subject to a comprehensive prohibition, which would lead to a strictly defined list of weapons, is that without including a list of prohibited weapons, such a provision would run counter to the principle of nullum crimen sine lege. This argument appears to not have found much favour in the literature and if mentioned is most often quickly gleamed over.185 This argument can however be seen to have been brought up in the drafting of the icc Statute when states expressed their opposition to a general prohibition of employing weapons of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate, or definitions were proposed for the weapons provisions that lacked clarity.186 This could be seen in the discussion of the so-​called generic formula, one of the option for the weapons provisions where the provision was similar as it is now but would not require a need for a weapon to be subject to a comprehensive prohibition nor would it need to be included in an annex.187 This generic formula had considerable support, but while certain states were against it on the basis of the previously discussed political reasons, it was unacceptable to other states as this would go against the principle of nullum crimen sine lege, as such a generic provision would not have the required clarity that is necessary in a criminal code.188 The principle of nullum crimen has a long history within criminal law and is generally seen as one of the basic elements of the principle of legality. The principle can be seen to consist of different aspects. The first is that a person can only be held criminally responsible if the conduct constituted a crime at the time of its occurrence. This is often taken as part of the foundation of the principle of legality. Another part of nullum crimen is that the definitions of crimes need to be strictly construed and sufficiently precise, and that in case of ambiguity this needs to be interpreted in favour of the defendant. The 185 The majority of the literature seems to focus on the political disagreement, see eg Jelena Pejic, ‘The International Criminal Court Statute: An Appraisal of the Rome Package’ (2000) 34(1) The International Lawyer 65, 71; Clark 2009. 186 Such sentiments can be seen in statements by for example: Israel a/​c onf.183/​c .1/​s r.27, ¶33; Denmark a/​c onf.183/​c .1/​s r.4 ¶ 73; The United Kingdom a/​c onf.183/​c 1/​s r.5, ¶ 40; Japan a/​c onf. 183/​c . 1/​s r.25 ¶ 29; Republic of Korea a/​c onf.183/​c .1/​s r.26 ¶ 55 Bersagel (n 141) 224. 187 Clark (n 160) 370. 188 Arsanjani (n 168) 34; Křivánek (n 65) 28.

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importance of this principle can clearly be seen in the fact that there is a specific article within the icc Statute dealing with it.189 It should be said that this is part of the principle of legality and is generally seen as a non-​derogable norm in human rights instruments.190 The principle can certainly be said to at times have had a problematic history within international criminal law and it has often been applied quite flexibly.191 Within the icc Statute the intention was to adhere more strictly to the principle of legality.192 One of the basic necessities in order to comply with this principle is that there are precise formulations of criminal offences.193 The importance of this has also been repeated often within different contexts during the drafting history.194 It has been argued that requiring a comprehensive prohibition and the inclusion within an annex is counter to international customary law, partly because this would undercut the importance of the general international humanitarian law principles prohibiting weapons causing superfluous injury or unnecessary suffering or which are inherently indiscriminate.195 A strictly defined list of prohibited weapons can however be argued to be required due to the nature of criminal law and the principle of legality and legal certainty. The argument for legal certainty and for clear well-​defined crimes seems especially prudent in the context of prohibiting the employment of weapons, in light of the significant uncertainty that still exists in international humanitarian law as to the exact application. As has been shown in the section concerning international humanitarian law the general principles are vague and have several different interpretations without having clear practical applications. This is exemplified by the fact that state practice has shown that weapons rarely, if ever, have been prohibited on the sole basis of them being of a nature to cause superfluous injury or unnecessary suffering.196 And that instead of banning weapons on the basis of these general principles specific instruments are adopted to ban

1 89 Art. 22 Rome Statute of the International Criminal Court. 190 William A Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2015) 539, see for example article 15 International Covenant on Civil and Political Rights 16 Dec. 1966 999 u.n.t.s 171, article 11(2) of the Universal Declaration of Human Rights (unga Res 217 (iii) 10 Dec 1948). 191 Schabas (n 190) 540. 192 Schabas (n 190) 541–​542. 193 Schabas (n 190) 543–​544. 194 Germany Committee of the Whole 4th Meeting, 2nd meeting a/​c onf.183/​c .1/​s r.2 ¶ 56; Schabas (n 190) 544. 195 See for example Bersagel (n 141) 230. 196 Cowling (n 5) 149; Gardam (n 41) 554.

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specific weapons.197 To allow individual criminal responsibility for such a nebulous concept that has no clear practical interpretation could therefore certainly be seen as violating the principle of nullum crimen sine lege. This seems especially true as this would then allow for weapons to fall under this prohibition even when their use might not have been considered as illegal by those using them and without the illegality being foreseeable that they might be, as such it would possibly retroactively prohibit certain conduct. Even if one were to consider the open wording to be sufficient for criminalization, the weapons must indisputably be of a nature to cause superfluous injury or unnecessary suffering or be inherently indiscriminate, which appears a near insurmountable standard as previously discussed. On this basis it could be argued that if a court could determine a weapon as being of a nature to cause superfluous injury or unnecessary suffering, or inherently indiscriminate, a person choosing to employ it either knew or should have known that such a weapon violated these principles.198 However it seems as though it would be difficult to provide a clear indication that a weapon would violate these principles, thus it cannot be clearly said that it would be foreseeable for a person that they could be held accountable solely for the use of such a weapon.199 If one follows the European Court of Human Rights interpretation of the necessary clarity, that if a person can know from the provision what acts should be considered as criminally unlawful either by the plain text or on the basis of expert advice,200 this would not be sufficient in this context, as even amongst experts there is no consensus or clarity.201

197 Marina Castellaneta, ‘New weapons, old crimes?’ in: Fausto Pocar, Marco Pedrazzi & Micaela Frulli (eds.) War Crimes and the Conduct of Hostilities: Challenges to Adjudication and Investigation (Edward Elgar Publishing Limited 2013) 194–​195; Yoram Dinstein, Non-​ International Armed Conflicts in International Law (Cambridge University Press 2014) 216. 198 Although Alamuddin and Webb argued this point in the context of mens rea the same reasoning applies here. Alamuddin & Webb (n 173) 1235–​1236. 199 Alamuddin & Webb (n 173) 1235–​1236 Taking into account that Alamuddin & Webb were talking in the context of Dum-​Dum bullets, where there is such a comprehensive prohibition, they argued that it would be hard to predict how the court would interpret it and what standard should be applied. 200 Kokkinakis v. Greece, app. no. 14307/​88 (European Court of Human Rights 25 May 1993) ¶ 52; S.W. v. the United Kingdom, app. no. 20166/​92 (European Court of Human Rights 22 Nov. 1995) ¶ 35. 201 The most prudent example here would again be nuclear weapons, while many states and experts might agree that these weapons would constitute a weapon which is inherently indiscriminate and causes superfluous injury and unnecessary suffering, even the icj did not state that these weapons are contrary to international humanitarian law and prohibited on this basis. (See icj Nuclear weapons Advisory Opinion).

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The notion of this uncertainty and the need to include a well-​defined list in the annex can be exemplified by looking at the war crimes section of the icrc Study on customary international law. Here the section focused on the war crime of employing prohibited weapons consists of a list of specific weapons which its authors considered as being prohibited and their employment criminalized, it is however highly debatable whether all these weapons could be considered as such. This mainly due to a lack of a comprehensive prohibition or a lack of state practice.202 This has even been acknowledged by its authors who could not provide with conclusive evidence for all their inclusions.203 This shows the exceeding difficulty to determine the legality of a weapon in light of the principles, especially if one looks for weapons which are indisputable against these principles. This is also what would make an open provision problematic with regard to the legality principle, as there is no consensus as to how one should interpret these principles and which weapons are prohibited, it can therefore not be expected that a possible accused would have the knowledge that such a weapon would have the nature of causing superfluous injury or unnecessary suffering or to be inherently indiscriminate. This argumentation can be said to fall more in line with the intention of the icc Statute, which was not to adopt an open-​ended and general approach, but to follow more closely the principle of legal certainty and nullum crimen sine lege and to include a detailed list of specific offences.204 This can thus be viewed as one of the examples of the difficulty to transpose rules of international humanitarian law into international criminal law, and the need to alter them to fulfil the requirements of the latter.205 As noted the provision within the icc Statute differs in this regard from the customary international law rule within international humanitarian law but as shown the practical difference is not significant. This extra requirement makes logical sense as in international criminal law provisions need to be more narrowly construed, since there is a need for strict and clear definitions in order to impose criminal accountability. Thus, the comprehensive prohibition is a logical outcome as it allows for the provision to retain the specificity necessary and ensures that a person ‘knew or should have known’ that a weapon was contrary to this prohibition. The inclusion of an annex can be viewed as another requirement contrary to customary 202 Charles Garraway, ‘War Crimes’ in: Elizabeth Wilmshurst & Susan Breau (eds.), Pers­ pectives on the ICRC Study on Customary International Humanitarian Law (Cambridge University Press 2009) 386. 203 Henckaerts & Doswald-​Beck (n 9). 204 Garraway (n 202) 378. 205 Bersagel (n 141) 224–​225.

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law, but it especially makes logical sense when looking at it in the context of the icc Statute, as art. 22 icc Statute requires certainty. While such an annex might lead to a hindrance for including specific weapons, it could be argued that if there is not enough of a consensus to include specific weapons, the prohibition against these weapons does not have sufficient support to be considered as of a customary nature or as a comprehensive prohibition. As such it could be argued that the provision of art. 8(2)(b)(xx) icc Statute is a more faithful interpretation of the customary international law rule in this regard than others which were proposed. This could especially be argued in light of the general reluctance to prohibit weapons solely on the basis of the general principles and rather require a specific instrument assessing their legality, even in the context of international humanitarian law. It must be noted that the similar provision within the Malabo Protocol, which would form the basis of the African Criminal Court, does not include the reference to a comprehensive prohibition or the inclusion of an annex,206 this has however been criticized for its lack of legal certainty.207 3.7 Non-​international Armed Conflicts Another aspect of the approach to weapons within the icc Statute that has often been criticized as not being conform international customary law is that the lack of a comparable provision to art. 8(2)(b)(xx) icc Statute dealing with prohibited weapons in non-​international armed conflicts.208 It has been argued that, at the very least some of, the weapons prohibitions in international humanitarian law and international criminal law are similar within non-​ international armed conflicts as they are in international armed conflicts.209 This is at least partially based on the belief that it is difficult to reconcile the fact that the use of certain weapons can be considered as war crime in an international armed conflict, but not in an internal armed conflict. This belief has been strengthened with the increasing occurrence of non-​international armed 206 Art. 28D (b)(xxi) Protocol on Amendments to the Protocol of the Statute of the African Court of Justice and Human Rights, 27 June 2014, Malabo. 207 Kai Ambos, ‘Genocide (Article 28B), Crimes Against Humanity (Article 28C), War Crimes (Article 28D) and the Crime of Aggression (Article 28M)’ in: Gerhard Werle & Moritz Vormbaum (eds.), The African Criminal Court: A Commentary on the Malabo Protocol (Asser Press 2017) 44. 208 McCormack & Robertson (n 149) 666; Cryer (n 142) 252–​253; Dörmann (n 149) 347–​348; Deidre Willmott, ‘Removing the Distinction Between International and Non-​International Armed Conflict in the Rome Statute of the International Criminal Court’ (2004) 5 Melbourne Journal of International Law 196, 206–​208. 209 Cryer (n 142) 252–​253; Willmott (n 208) 206–​208; Nsereko (n 172) 514–​515.

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conflicts coupled with the intention of international humanitarian law.210 This is seen as part of the progress within international humanitarian law (and consequently in international criminal law) to bring the legal regime applicable in non-​international armed conflicts closer to the standards applicable in international armed conflicts.211 Some even argue for a singular approach entirely disregarding the characterization of the conflict.212 This has led some authors to see the approach within the icc Statute as retrograde when compared to international customary law.213 How correct this view in general is can certainly be debated, as this chapter focuses on the employment of weapons however it will focus on this particular aspect of the debate. This position of similar legal regimes regardless of characterization of a conflict is relatively recent, especially with regard to the legality of the employment of particular weapons.214 Before turning to the specifics of a general provision concerning the employment of weapons it must be stated that the argument that there were entirely no provisions in the icc Statute dealing with prohibited weapons in non-​ international armed conflicts has been partially ameliorated after the Kampala Conference. At this conference an amendment was adopted that included comparable weapons provisions to those mentioned in art. 8(2)(b)(xvii–​xix) icc Statute under art. 8(2)(e) icc Statute.215 By replicating these provision it now allows for the prosecution of the employment in non-​international armed conflict of at least some of the prohibited weapons.216 What speaks in favour of the customary nature of prohibitions on the employment of weapons in non-​ international armed conflicts, is the statement by Belgium during the adoption of these provisions, that the employment of the weapons within the provisions put forth by the amendment were already criminalized by international customary law.217 In this regard some credence might be given to the argument 2 10 211 212 213 214

McCormack & Robertson (n 149) 666; Wagner (n 171) 467. Willmott (n 208) 206–​208; Alamuddin & Webb (n 173) 1220–​1222; Geiss (n 148) 351. Cassese (n 162) 150; Alamuddin & Webb (n 173) 1241–​1242. Cassese (n 162) 150–​153; Grover (n 149) 285; Bersagel (n 141) 237. Turns (n 10) 209–​210; Eve La Haye, War Crimes in Internal Armed Conflicts (Cambridge University Press 2008) 67–​68. 215 Amendment to article 8 of the Rome Statute of the International Criminal Court, 26 Sept 2012 2868 u.n.t.s. 195. 2 16 Those being: Poison or poisoned weapons art. 8 (2)(e)(xiii) icc Statute; asphyxiating, poisonous or other gases and all analogous liquids materials or devices art. 8(2)(e)(xiv) icc Statute; bullets which expand or flatten easily in the human body art. 8(2)(e)(xv) icc Statute. Geiss (n 148) 338. 217 Nsereko (n 172) 517; Geiss (n 148) 339; Paul Rietjens, ‘History of negotiations: from Rome to Kampala and the future, the procedure for drafting the amendments, where we stand

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that these specific weapons were already prohibited to be employed in non-​ international armed conflicts, but that their non-​inclusion in the icc Statute was part of the compromise on nuclear weapons.218 Belgium at the same time also stated that part of their reasoning for the proposal of the amendment was to have a more unified approach to international and internal armed conflicts, which also gives more support to the argument for a unified approach.219 There still remains one significant aspect of weapons prohibitions that in the icc Statute differs between international and non-​international armed conflicts, this is the lack of a general provision, like the one found in art. 8(2)(b) (xx) icc Statute, within the context of non-​international armed conflicts. It is especially interesting that such a similar provision was not included within any of the different proposals put forth by Belgium.220 Of course, this in itself cannot be taken as direct evidence of the opinio iuris of Belgium that there should not be a comparable provision for non-​international armed conflicts, especially since Belgium did state that other lacunae still existed within the icc Statute.221 Before turning to the discussion concerning the possible customary nature of the criminalization of employing weapons of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate, it must be stated that the general principle of distinction in humanitarian law and thereby the need to discriminate between combatants and non-​combatants, as well as the prohibition on superfluous injury or unnecessary suffering remain applicable in non-​international armed conflicts.222 But the fact that

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today’ in: Gérard Dive, Benjamin Goes & Damien Vandermeersch (eds.), From Rome to Kampala: The first 2 amendments to the Rome Statute (Bruylant 2012) 64. Prince Zeid Ra’ad Zeid Al-​Hussein, Stefan Barriga, Jutta Bertram-​Nothnagel, Roger Clark, David Donat-​Cattin, Gérard Dive, Donald M Ferencz, Jörn Eiermann, Hans-​Peter Kaul, Claus Kreß, Anne-​Marie La Rosa, Robbie Manson, Astrid Reisinger Coracini, Michael Scharf, Jennifer Trahan, Christian Wenaweser, and Meagan Wong, Handbook: Ratification and Implementation of the Kampala Amendments to the Rome Statute of the ICC: Crime of Aggression, War Crimes (Liechtenstein Institute on Self-​Determination 2012) 44. Belgium: proposal of Amendments Reference: c.n.733.2009.treaties-​8 (Depositary Notification), ¶ 1; Statement by Belgium in explanation of position after the adoption of resolution rc/​Res.5, on the amendments to article 8 of the Rome Statute, Review Conference of the Rome Statute of the International Criminal Court Kampala, 31 May–​11 June 2010 Official Records, 120. Křivánek (n 65) 196. This is implicitly stated in Statement by Belgium in explanation of position after the adoption of resolution rc/​Res.5, on the amendments to article 8 of the Rome Statute, Review Conference of the Rome Statute of the International Criminal Court Kampala, 31 May 0 11 June 2010 Official Records, 120; Rietjens (n 217) 65. Frits Kalshoven, ‘From International Humanitarian Law to International Criminal Law’ (2004) 3 Chinese Journal of International Law 151, 155–​156.

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the international humanitarian law rule is of a customary nature in non-​ international armed conflicts does not automatically ensure that the employment of prohibited weapons in non-​international armed conflicts constitutes a war crime. In this regard it needs to be focused less on the applicability of an international humanitarian law rule and instead focus on whether this specific norm can be said to have been criminalized under international law in the context of non-​international armed conflicts.223 One of the main arguments that is made in favour of such a customary criminal prohibition in non-​international armed conflicts, is that it follows from the Tadić Appeals Chamber Decision of 2 October 1995, that such a customary rule exists.224 In this decision the Appeals Chamber commented that there was a general progression towards extending the rules and principles applicable in international armed conflicts to also be applicable in non-​international armed conflicts.225 While the Appeals Chamber acknowledged that this was the manner in which international humanitarian law was developing, it did so while issuing the following caveat: ‘this extension has not taken place in the form of a full and mechanical transplant of those rules to internal conflicts; rather, the general essence of those rules, and not the detailed regulation they may contain, has become applicable to internal conflicts’.226 This observation was made in the context of a general discussion concerning the applicability of rules of international humanitarian law in the context of non-​international armed conflicts. In a later part of the decision the Appeals Chamber focused more specifically on the use of weapons. When discussing weapons, the Appeals Chamber argued that there was a general consideration as to why in this context there ought to be a uniform approach in both international and non-​international armed conflicts, when it stated that: Indeed, elementary considerations of humanity and common sense make it preposterous that the use by States of weapons prohibited in armed conflicts between themselves be allowed when States try to put down rebellion by their own nationals on their own territory. What is

2 23 Greenwood (n 14) 131; Sivakumaran (n 15) 229. 224 Such as: Cassese (n 162) 152–​153; Olásolo (n 164) 97–​98; Castellaneta (n 197) 200. 225 Prosecutor v. Tadić, Case No. it-​94-​1, Appeals Chamber, Decision on the defence motion for interlocutory appeal on jurisdiction, ¶ 119 (International Criminal Tribunal for the Former Yugoslavia 2 October 1995). 226 Prosecutor v. Tadić, Case No. it-​94-​1, Appeals Chamber, Decision on the defence motion for interlocutory appeal on jurisdiction, ¶ 126 (International Criminal Tribunal for the Former Yugoslavia 2 October 1995).

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inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife.227 The Appeals Chamber stated that this consideration is the basis for rules concerning weapons to be applicable in both internal and international armed conflicts.228 The decision continues further with a focus on the issue of chemical weapons, but from this statement it is clear that the general statement was intended to be viewed in the broader perspective concerning any prohibition of weapons. These paragraphs clearly put the prohibitions on weapons within the general ‘extension to internal armed conflict of rules and principles concerning international wars’229 and are therefore reasoned to be applicable in both international and non-​international armed conflicts. When discussing the general gradual extension into non-​international armed conflicts, the Appeals Chamber did state that the detailed regulations may vary between international and non-​international armed conflicts,230 however in the context of prohibited weapons the Appeals Chamber seems to have held the view that the regulations would be uniform regardless of the type of conflict.231 The argument has certainly become an important statement concerning the customary nature of the rules applicable to weapons but it must be noted that this statement was a clear obiter dictum, as the case did not concern the employment of prohibited weapons, as such its persuasive power is debatable.232 Even if not taking the fact that the statement was obiter dictum into account, there are significant problems with the Appeals Chambers assertion. While it might certainly be the case that international humanitarian law in non-​ international armed conflicts would include some of the principles of weapons law, and the amendment to the icc Statute certainly seems to indicate this in the context of specific weapons, the Appeals Chamber does not provide 227 Prosecutor v. Tadić, Case No. it-​94-​1, Appeals Chamber, Decision on the defence motion for interlocutory appeal on jurisdiction, ¶ 119 (International Criminal Tribunal for the Former Yugoslavia 2 October 1995). 228 Prosecutor v. Tadić, Case No. it-​94-​1, Appeals Chamber, Decision on the defence motion for interlocutory appeal on jurisdiction, ¶ 120 (International Criminal Tribunal for the Former Yugoslavia 2 October 1995). 229 Prosecutor v. Tadić, Case No. it-​94-​1, Appeals Chamber, Decision on the defence motion for interlocutory appeal on jurisdiction, ¶ 119 (International Criminal Tribunal for the Former Yugoslavia 2 October 1995). 230 Prosecutor v. Tadić, Case No. it-​94-​1, Appeals Chamber, Decision on the defence motion for interlocutory appeal on jurisdiction, ¶ 126 (International Criminal Tribunal for the Former Yugoslavia 2 October 1995). 231 Willmott (n 208) 206. 232 Greenwood (n 14) 129; Cryer (n 152) 254; Turns (n 10) 209.

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sufficient practice to unequivocally accept its position that there exists such a general prohibition.233 Especially when determining the possibility of criminal responsibility for prohibited weapons only on the basis of customary international law, there would need to be significant support within state practice to have a solid basis. The problem with this lack of clear support for this rule is exemplified by the fact that it has been argued that there is no clear evidence that the use of such weapons in internal armed conflicts has ever even been treated as crimes within international law.234 As noted, the view that criminal provisions for the employment of weapons of a nature to cause superfluous injury or unnecessary suffering are applicable in the case of non-​international armed conflicts is often based on this Appeals Chamber decision and the inherently appealing logic that it puts forth in this regard. It is however debatable how much evidence there is that supports these assertions outside of this decision and the inherently appealing logic,235 especially since as mentioned earlier the Appeals Chamber itself did not provide much supporting evidence in its decision. The fact that the statement of the Appeals Chamber is often taken as the sole evidence of this rule, shows the correctness of Cryer when he stated that ‘the jurisprudence of international tribunals is apparently considered, per se, ‘persuasive evidence’ of a customary rule without any reference to the quality of decisions by those tribunals’.236 The specific focus of this section of the Decision, namely the prohibition of chemical warfare in non-​international armed conflict, seems to have supporting evidence, both in the decision and in general and could certainly be seen as being correct.237 The considerations concerning the criminalization of weapons contrary to the general principle against superfluous injury and unnecessary suffering or which are of an inherently indiscriminate nature, in non-​ international armed conflicts had less convincing arguments and evidence. It must be made clear that this should not be viewed as doubting the quality of the entire decision, but rather that this specific part of the decision seems to lack the depth and supporting evidence necessary to truly make a statement concerning the customary nature of the applicability in non-​international armed conflicts. It is interesting to note that this decision was rendered prior to a lot of the drafting procedure of the icc Statute and that while the drafters were aware 2 33 234 235 236 237

Greenwood (n 14) 129; Cryer (n 142) 253. Greenwood (n 14) 130–​131; La Haye (n 214) 71–​73. Cassese (n 162) 152–​153; Turns (n 10) 210; La Haye (n 214) 67–​73. Cryer (n 152) 252. Cryer (n 142) 253; Dinstein (n 197) 209, but see Marauhn (n 4) 39.

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of the statements of the Appeals Chamber, it was still decided to retain a stark difference between the legal regimes applicable in international and non-​ international armed conflicts.238 It can therefore be argued that the drafters were of the opinion that the criminalization of the employment of weapons of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate, in non-​international armed conflicts had not yet reached the status of customary international law.239 A specific instance that can be considered as supporting this position is the fact that there was little objection, or actually hardly any mention at all, when the weapons provisions for non-​international armed conflicts were taken out of the drafts for the icc Statute.240 It has been argued that this choice to not include provisions for non-​international armed conflicts was part of the package deal to make the icc Statute more palatable for those who fought for the inclusion of the criminalization of employing nuclear weapons.241 It is however not entirely clear whether this was the case, as the drafts without these provisions were already circulated prior to any decision was made concerning the nuclear weapons issue242 and there is no other clear evidence for the assertion that it was part of this package deal. Another argument that has been brought up in favour of the existence of a criminal prohibition to employ such weapons in non-​international armed conflicts is the inclusion of such a prohibition in the icrc Customary International humanitarian Law Study.243 This argument is based on a faulty premise, as 238 As can be seen by acknowledgments of the decision in the Committee of the Whole: Canada, 4th meeting of the Committee of the Whole, a/​c onf.183/​c .1/​s r.4, ¶ 1; Israel, 4th meeting of the Committee of the Whole, a/​c onf.183/​c .1/​s r.4, ¶ 25; Willmott (n 208) 206. 239 Dörmann (n 149) 347. 240 Only a few states mentioned the provisions and showed their disapproval with this fact, such as Australia a/​c onf.183/​c .1/​s r.34, par. 108, and Denmark a/​c onf.183/​c .1/​s r.35, par. 68; La Haye (n 214) 73; Geiss (n 148) 339. 241 Geiss (n 148) 340; Al-​Hussein et al. (n 218) 45. 242 This can be seen by the fact that the provision concerning prohibited means of warfare in internal armed conflicts had been excluded prior to the 34th meeting of the Committee of the whole (this can be seen by the statements made here concerning the lack of these provisions during this meeting made by Australia 34th meeting Committee of the Whole a/​c onf.183/​c .1/​s r.34, ¶ 108), while the debate concerning nuclear weapons still continued in the same meeting and continued on in subsequent meetings, see for example in the 34th meeting of the Committee of the Whole, the statements by Iran, 34th meeting Committee of the Whole a/​c onf.183/​c .1/​s r.34, ¶ 61; Cuba 34th meeting Committee of the Whole a/​c onf.183/​c .1/​s r.34, ¶ 68; Jordan 34th meeting Committee of the Whole a/​ conf.183/​c .1/​s r.34, ¶ 80. 243 Al-​Hussein et al. (n 218) 45; Van Schaack (n 142) 299.

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there is a significant issue with the study in this aspect. While the study states that this criminalization is a part of customary international law, it does not provide significant evidence showing clear support of such a rule concerning criminal responsibility existing. The icrc Study instead relies largely on a lack of state practice. It uses the fact that such weapons are rarely employed and the fact that there is a lack of claims that a specific weapon may be lawfully employed as their evidence the existence of the customary rule.244 The other main basis for the icrc s Study’s assertion that this is a customary international law rule are the earlier discussed statements by the Appeals Court, even though these were obiter dictum.245 Other than these two arguments the icrc Study does not provide more evidence of the existence of criminal responsibility under international criminal law in the case of employing weapons that are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in non-​international armed conflicts. There also does not appear to be any clear evidence in favour of its applicability to non-​international armed conflicts within any international legal instruments. In the case of treaties and protocols that have dealt with specific weapons these originally focused only on the use of such weapons in international armed conflicts,246 although there are some that call for a general prohibition.247 The problem is that only very few have dealt with the issue of criminalization of the use of particular weapons in international armed conflicts, let alone in non-​international armed conflicts.248 But it must be said that 2 44 Turns (n 10) 210–​211; Henckaerts & Doswald-​Beck (n 9) 239–​240; La Haye (n 214) 71. 245 Cryer (n 152) 254; Haines (n 23) 262–​263; A clear reference to the case in the study can be seen Henckaerts & Doswald-​Beck (n 9) 240. 246 Before the 1970s there weren’t many different treaties or conventions concerning specific weapons, however some examples do exists such as the 1899 and 1907 Hague Regulations, the 1925 Gas Protocol (Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, 17 June 1925, (1929) 94 League of Nations Treaty Series 65) and the ccw originally (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 2 Dec 1983, 1342 u.n.t.s. 162). 247 Such as can be seen by the obligation to never use the means which are the subject of the treaty, see: art. 1(b) Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction 29 Apr. 1997 1975 u.n.t.s. 469; art. 1(a) Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction 26 march 1975, 1015 u.n.t.s. 163; art. 1 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-​Personnel Mines and on their Destruction 1 March 1999, 2056 u.n.t.s. 211; art. 1 Convention on Cluster Munitions 1 August 2010, 2688 u.n.t.s. 39. 248 Henckaerts & Doswald-​Beck (n 9) 600; Van Schaack (n 142) 299, such as art. vii (1) (a) Convention on the Prohibition of the Development, Production, Stockpiling and

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in modern weapon conventions there does appear to be a clear development towards a lack of distinction between international and non-​international armed conflicts. Another important development in this regard is the fact that the states parties to the ccw have agreed to extend its scope to include non-​ international armed conflicts as well.249 These developments clearly should be viewed as part of the progress towards a more uniform application of international humanitarian law as was mentioned in the Tadić Appeals Chamber decision.250 What is not clear from this development though is the influence of these developments on international criminal law, since only very few of these treaties include indications concerning possible international criminal liability, most focus instead on states to implement national penal legislation.251 Outside of treaties there could be other state practice that could indicate whether such a rule has developed within the context of non-​international armed conflict. The problem with this is the fact that there is a lack of state practice in both the use of these weapons as well as responses to their use, which makes it more difficult to determine the status of these rules. Especially in the context of determining criminal responsibility there has been no clear state practice in the context of employing weapons which are of a nature to cause superfluous injury or unnecessary suffering, or which are inherently indiscriminate. The rare instances in which such weapons could be argued to have been used in non-​international armed conflicts have however not been consistently condemned, let alone let to criminal prosecutions in all cases.252 Because of this it is difficult to use these treaties or state practice as a basis for arguing the customary nature of there being similar international criminal law rules concerning the employment of weapons in non-​international armed conflicts as there are in international armed conflicts. Outside of the obiter dictum in the Tadić Appeals Chamber there is no clear jurisprudence or Use of Chemical Weapons and on their Destruction 29 Apr. 1997 1975 u.n.t.s. 469 art. 9 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-​Personnel Mines and on their Destruction 1 March 1999, 2056 u.n.t.s. 211; art. 9 Convention on Cluster Munitions 1 August 2010, 2688 u.n.t.s. 39. 249 Amendment to Article i of the 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, 18 May 2004, 2260 u.n.t.s. 82; Willmott (n 208) 208. 250 Willmott (n 208) 206–​208; Kalshoven (n 222) 158. 251 art. vii (1)(a) Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction 29 Apr. 1997 1975 u.n.t.s. 469 art. 9 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-​Personnel Mines and on their Destruction 1 March 1999, 2056 u.n.t.s. 211; art. 9 Convention on Cluster Munitions 1 August 2010, 2688 u.n.t.s. 39. 252 La Haye (n 214) 69–​71.

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precedent which has dealt with the criminal accountability for the employment of weapons, this is a shame as dealing with this issue outside of an obiter might have helped to clarify the customary nature as well as the interpretation of these rules.253 Thus while it might be inherently persuasive and appear logical to automatically and directly apply a similar standard to the employment of weapons which are of a nature to cause superfluous injury or unnecessary suffering, or which are inherently indiscriminate in the context of non-​international armed conflicts, there is no clear evidence that states have applied similar standards or are in favour of doing so.254 Subsequently it cannot be said that there is not sufficient evidence of either state practice or opinio iuris to convincingly argue that this is a rule of customary international criminal law. 3.8 Amendment Procedure Having discussed the article and the annex that should be made to really implement art. 8(2)(b)(xx) icc Statute we must now turn to the question of how that annex should be created. Art. 8(2)(b)(xx) icc Statute states that such an annex should be created through a formal amendment, however there is no consensus as to how this amendment should be made, as there are two different amendment procedures under art. 121 icc Statute. These both have different requirements and binding power and art. 8(2)(b)(xx) icc Statute does not specify which of the amendment procedures is applicable. The two procedures are the general amendment procedure of art. 121(4) icc Statute and the amendment procedure concerning amendments to art. 5, 6, 7 and 8 of the icc Statute, which is laid out in art. 121 (5) icc Statute. Part of determining which is applicable requires to view whether the adoption of an annex should be seen as an amendment to art. 8 icc Statute or whether it should be seen as a general amendment. This can be identified as questioning whether such an annex should be viewed as a “new” crime and thus an amendment of art. 8 icc Statute or if it should be interpreted as giving content to an already existing crime.255 While this seems like a relatively minor and mostly a procedural issue it has significant effects on how the annex should be formed and its binding power. If the annex is interpreted as giving content to an already existing crime it can be adopted according to the general amendment procedure of art. 121(4) icc Statute. This would mean that the annex would need to be ratified by 2 53 Greenwood (n 14) 129; Van Schaack (n 142) 300. 254 La Haye (n 214) 69–​71; Van Schaack (n 142) 299. 255 Clark (n 160) 387–​388.

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seven-​eighths of the states parties before it could enter into force a year after the final instrument of ratification was deposited, while not binding anyone prior to this date. Once a year has passed after seven-​eighths of the states have deposited their instruments of ratification the amendment will enter into force for all States Parties. However, when the creation of an annex should be viewed as a new crime and consequently as being an amendment to art. 8 icc Statute that means that the amendment procedure of art. 121(5) icc Statute would need to be followed. The main difference here is that such an amendment will only enter into force for those states parties that have ratified and deposited their ratification, while not binding any other states, regardless of the number of ratifications. As such, unlike under art. 121(4) icc Statute the amendment would not become applicable to non-​ratifying states ipso iure.256 An argument that can be made in favour of the regular amendment procedure of art. 121 (4) icc Statute is that if an annex was to be seen as an amendment of art. 8 icc Statute the reference to the amendment procedure could be deemed unnecessary. The inclusion of a reference to the amendment procedure would then only be a symbolic reference to the fact that the list was viewed as not being inclusive enough.257 This express mention of the amendment procedure would lead one to believe that the general amendment procedure of art. 121 (4) icc Statute would be the more plausible and logical approach.258 There are other supporting arguments for this assumption. Firstly, there is the fact that there needs to be a comprehensive prohibition, which can be interpreted as being of importance due to the fact that an inclusion of an annex could bind all those that are party to the icc, if however the inclusion in annex would only bind those that ratify the amendment there is no significant reason for the underlying prohibition to be comprehensive.259 This concurs with the notion that an annex should be seen as filling an anticipated gap in art. 8(2)(b) (xx) icc Statute rather than it constituting a real change of art. 8 icc Statute260 There is also an indication of some supporting evidence for the general amendment procedure in the different Belgian proposals for amendments at the Kampala Conference. The different Belgian attempts were focused on the notion of including the employment of different weapons within the confines 2 56 257 258 259 260

Křivánek (n 65) 192; Alamuddin & Webb (n 173) 1237. Cottier (n 148) 413, 423. Clark (n 160) 388. Clark (n 160) 388. Clark (n 160) 387–​388.

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of art. 8 icc Statute. The original attempt by Belgium was to include multiple munitions within a newly created annex on the basis of art. 8(2)(b)(xx) icc Statute, this was however quickly shown to not have significant support.261 When this lack of support became evident Belgium opted to continue its attempts by creating specific amendments for specific weapons to art. 8(2)(b) icc Statute, instead of including them under an annex.262 This logically would lead one to assume that there is indeed a difference between regular amendments of art. 8 icc Statute and amendments particular to art. 8 (2)(b)(xx) icc Statute, otherwise Belgium would not be opted to disregard the notion of creating an annex in favour of a specific amendments. Especially when one considers that art. 8(2)(b)(xx) icc Statute is specifically intended to be used to include amendments concerning ammunitions.263 4

Application to Autonomous Weapons Systems

Introduction 4.1 With the creation of any new weapon or technology there has always been some tension with the existing rules international humanitarian law and in some cases even with international criminal law, the development of aws is obviously no exception. There currently exists a significant movement to regulate or even outright prohibit the development and subsequent use of aws. At the moment there exists no legal instruments that are specifically concerned with aws. As discussed, this does not mean that there are no rules which govern them, the general principles prohibiting the use of weapons that are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate, that have been laid out will need to be used to determine the legality of their use. Then on the basis of what this outcome is it can be determined whether they could realistically be included under a possible annex of art. 8(2)(b)(xx) icc Statute. It must be kept in mind that it could be argued that the assessment of the legality of aws at the current state can be difficult due to fact that these weapons are seen as not yet being developed or are seen as being at the infancy of their development.264 While several significant criticisms are being levied 2 61 262 263 264

Alamuddin & Webb (n 173) 1228; Geiss (n 148) 351; Van Schaack (n 142) 315. Schabas (n 19) 247; Alamuddin & Webb (n 173) 1228. Křivánek (n 65) 147. John Lewis, ‘The Case for Regulating Fully Autonomous Weapons’ (2015) 124(4) Yale Law Journal 1309, 1312.

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against aws, this section will only focus on those principles that could render a weapon illegal, those being that they either are of a nature to cause superfluous injury or unnecessary suffering or that they are inherently indiscriminate. Other criticisms that have been made have not been evidenced to render a weapon illegal in their own rights, but they might be seen as a rationale or foundation for a specific ban or regulation.265 Are aws of a Nature to Cause Superfluous Injury or Unnecessary Suffering? When applying these basic principles to the issue of aws it must be considered that there are several very significant differences between aws and a lot of other weapons. The main distinguishing aspect of aws is, as discussed in Chapter 3, the autonomous functioning with regard to the targeting decision. Therefore the aws is often seen as the delivery method, the weapon system, which needs to be seen as distinct from the weapon’s effect, such as the injuring or wounding characteristics that the weapon it fields (or delivers) has.266 This has as a consequence that it can certainly not be blanketly stated that aws would inflict any specific kind of suffering, it can especially not be stated that aws would cause superfluous injury or unnecessary suffering in all cases, when looking at aws as a category in its entirety. This is due to the fact that the autonomy in itself does not influence the injurious effects. It could of course be the case that a specific aws would cause such injury or suffering, however whether this is the case would be completely dependent on the weapons or munitions with which that specific aws is outfitted. Any aws outfitted with weapons or munitions which are of a nature to cause superfluous injury or unnecessary suffering should obviously be prohibited by this principle. The

4.2

265 Examples of such arguments that have been made are for example that these weapons run counter to the Martens Clause (Horowitz (n 18) 2); another argument is that there is no criminal accountability for the actions of aws, see for example Docherty B, ‘Mind the Gap: The Lack of Accountability for Killer Robots’ Human Rights Watch 2015. However, as mentioned in Chapter 3, Section 2, this does not render a weapon prohibited solely on this basis. 266 Liu (n 12) 640–​641; Kenneth Anderson & Matthew Waxman, ‘Law and Ethics for Autonomous Weapon Systems: Why a ban Won’t Work and How the Laws of War Can’ Hoover Institution, Stanford University, 2013 10–​11; William Boothby, ‘How will weapons reviews address the challenges posed by new technologies?’ (2013) 52(1) Military Law and the Law of War Review 37, 53; Jeffrey Thurnher, ‘The Law That Applies to Autonomous Weapon Systems’ (2013) 17(4) American Society of International Law Insights 2; Nathalie Weizmann, ‘Autonomous Weapon Systems under International Law’ Geneva Academy of International Humanitarian Law and Human Rights, Academy Briefing no. 8 2014, 17; Thurnher (n 97) 186.

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only exception to a differentiation between the aws as a system and the weapons and ammunition it is outfitted with, would be in those cases where the aws itself can also be considered to be the weapon.267 There is also another possibility, which is where a system is programmed specifically in such a manner as to inflict superfluous injury or unnecessary suffering, regardless of the weapon it was outfitted with. This however seems as an extremely unlikely scenario and would have little effect on the legality of aws as a category and again only focuses on the specific aws that has been programmed in this manner. Neither of these possibilities can be considered sufficient to render all aws as a category as prohibited under the principle of superfluous injury or unnecessary suffering, since it concerns individual types of aws and is not a characteristic inherent to autonomy in weapon systems. Therefore, it cannot be stated that aws as a category would be of a nature to cause superfluous injury or unnecessary suffering. 4.3 Are aws Inherently Indiscriminate? Concerning the question of whether an aws would be capable of being directed at a military objective, as required under art. 51(4)(b) api, it must first be made clear that the currently existing technology that would be the basis of aws, as well as the expected developments in technology, make it unlikely that existing systems, or those that would exist in the near future, would be capable of distinction in the context of anti-​personnel uses of force.268 It would be illogical however not to assume that the capability of systems to distinguish between different kinds of objects would not improve in the future.269 Even more, outside of anti-​personnel uses of force there are already systems, which could be considered as either precursors to aws or as primitive aws,270 capable of distinguishing between specific signatures, such as the Brimstone anti-​ armour missile can do with different types of vehicles.271 2 67 Liu (n 12) 641. 268 Liu (n 12) 641; Nils Melzer, ‘Human Rights Implications of the Usage of Drones and Unmanned Robots in Warfare’ Directorate-​General for External Policies, European parliament 2013 28. 269 And it seems unlikely even that indiscriminate aws will be developed and employed, as their military utility would be very limited, Toscano (n 102) 207. 270 The fact that aws do already exist and are already in use has been used as a counterargument to the claim that aws are inherently illegal, Rebecca Crootof, ‘The Killer Robots Are Here: Legal and Policy Implications’ (2015) 36 Cardozo Law Review 1837, 1842–​1843. 271 Brian Handy (ed.), Royal Air Force Aircraft & Weapons (dcc(raf) Publications Belmont Press 2007) 87; Crootof (n 270) 1870–​1871.

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It has even been argued that with the advent of new technologies there is a possibility that aws might in the future be better able of adhering to the principle of distinction than even humans currently can.272 Whether this will turn out to be true is of course dependent on the course in which the technology will develop and what technology aws will be outfitted. The manner in which an aws will be outfitted, especially in the context of sensor technology and the intelligence of the system, will be key to its capability to distinguish, as the autonomy itself does not indicate its ability to distinguish.273 As long as the sensor technology and the intelligence of the system are sophisticated enough to ensure reliable targeting information, it could be ensured that the system would only target legitimate targets, thereby rendering it not incapable of being directed.274 However, would the potential situation where aws would be incapable of distinguishing between combatants and non-​combatants necessarily lead to the conclusion that such a weapon could under no circumstances be directed at a military objective? This does not appear to be the case. Such aws could under certain circumstances still be employed if due to the circumstances in which it is employed the likelihood of encountering non-​combatants is minimized. This can be done for example by only employing it in certain environments, such as a demilitarized zone, or in the context of underwater ­operations.275 Another manner in which such precautions can be made is by the programming of the correct mission parameters, such as limiting the area of operation, or limiting the use of force by the aws. In these regards aws can be compared to an anti-​personnel mine, in that they might have indiscriminate effects, but that they are not indiscriminate in all circumstances, it depends on the context in which they are employed. Taking such precautions would mean that aws could be deployed with due regard for the principle of distinction, even if these systems themselves cannot apply this principle. In this regard it should also be considered that aws would be capable of discriminate use through the simple fact that it is possible to programme a specific military objective for the system to accomplish, thereby quite directly directing the aws against a military objective.

272 Shane Reeves & William Johnson, ‘Autonomous Weapons: Are You Sure These Are Killer Robots? Can We Talk About It?’ (2014) April The Army Lawyer 25, 26; Hattan (n 16) 1049. 273 Toscano (n 102) 207. 274 Anderson & Waxman (n 265) 10. 275 Anderson & Waxman (n 265) 6; Lucas (n 103) 322; unidir, The Weaponization of Increasingly Autonomous Technologies in the Maritime Environment: Testing the Waters, unidir Resources no. 4, 2015, 2.

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When looking at the issue of uncontrollable effects, as mentioned under art. 51(4)(c) api, there does not appear to be anything within the autonomy of the targeting decision that could be argued to create uncontrollable effects as meant under this subparagraph. In this regard it is important to distinguish between uncontrollable effects caused by an aws and the suggestion that is often made that an aws itself needs to be classified as uncontrollable. The manner in which an aws might be considered as uncontrollable is different from what is intended under art. 51(4)(c) ap i. When speaking of aws the uncontrollability refers to the fact that a person cannot directly influence the acts of the system once it has been employed.276 This means that the uncontrollability of an aws does not mean that the system is likely to target combatants and non-​combatants alike, as it can still only function within the confines of its programming and operational parameters and in most cases will probably be able to be turned off.277 Thus unless the aws is outfitted with a weapon which has uncontrollable effects, such as a chemical or biological weapon, it does not seem that an aws would have uncontrollable effects.278 It could be argued that Autonomous Computer Network Attacks might be wholly uncontrollable, as there is some evidence that the infection by these attacks cannot always be controlled within the meaning intended by art. 51(4) (c) ap i. A good example of such an instance was the Stuxnet worm, which can be said to have spread uncontrollably and indiscriminately. However, this example also shows that even though the spreading of the worm was uncontrollable, the deliverance of the payload was controlled, only delivering it to its intended target,279 which shows that while the system itself might be uncontrollable, its effects were certainly controllable. This also shows that with the correct programming and mission parameters aws could be employed within the confines of the general principles. As such when considering whether aws should be considered as inherently indiscriminate the starting point needs to be that there is nothing inherent to the autonomy within the targeting decision that would render such a system indiscriminate but rather that this depends on other characteristics of a system.280 This would therefore again potentially render specific aws inherently

276 As generally it is seen that autonomy in this regard means the lack of human control over the exact actions of a system, see Chapter 2. 277 Toscano (n 102) 207–​208. 278 Thurnher (n 97) 186–​187. 279 Dinniss (n 51) 256–​257. 280 Thurnher (n 97) 186.

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indiscriminate, however this would not be a general characteristic of aws as a category of weapon systems, thus not prohibiting the use of any aws. What Future Could There Be for aws under Art. 8(2)(b)(xx) icc Statute? As has been brought up in the debates concerning aws the question of criminal accountability for the actions of aws is one of the major issues.281 This difficulty could be overcome if the mere employment of aws would be considered as a war crime, as there no longer needs to be a causal and mens rea link between the action of the aws and an individual person, the mens rea would only be concerned with the deployment of the system. As shown, it is unlikely for aws to categorically be of a nature to cause superfluous injury or unnecessary suffering or inherently indiscriminate, which consequently means that these weapon systems, under normal circumstances, would not fall under art. 8(2)(b)(xx) icc Statute. However, the simple fact that aws would not be of a nature to cause superfluous injury or unnecessary suffering or inherently indiscriminate and do not have a comprehensive prohibition, this does not make it impossible for them to be included under an annex to art. 8(2)(b)(xx) icc Statute if one were to follow Cottiers Argument.282 As discussed, the Assembly of States Parties and the Review Conference have complete discretion concerning the inclusion of a weapon under an annex and as such can deviate from the requirements put forth in the provision. However, it seems unlikely for this to occur, especially considering the already existing difficulties in adopting an annex to art. 8(2) (b)(xx) icc Statute. At the current time it is improbable for the annex to be created and any weapon to be included in the short-​term future, the problems that exists would be further compounded on in the case of a new weapon that has not yet garnered a prohibition, let alone a comprehensive one, thus making the inclusion of aws under art. 8(2)(b)(xx) icc Statute extremely improbable in the foreseeable future. Therefore, the criminalization the employment of aws under art. 8(2)(b) (xx) icc Statute does not appear to be a probable outcome. This means that if there would be a regulatory scheme or ban on the use and development of aws, this would require a provision concerning the criminalization of their use, or the inclusion of their employment as a separate war crime under the 4.4

281 This can be seen for example at the 2016 Informal meeting of experts: Report of the 2016 Informal Meeting of Experts on Lethal Autonomous Weapons Systems (laws) (advanced version) ¶ 17, 52. 282 Cottier (n 148) 423.

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icc Statute. The notion of creating a separate provision seems to be in line with the development of the proposals that were attempted by Belgium. However, as was shown by the proposals of Belgium it is unlikely to occur if there is not a decent basis of the prohibition in international customary law, as there appears to be the need for clear consensus to include weapons in the Statute. It also showed the difficulty to include some of the more controversial weapons, as previous weapons prohibitions have shown. It seems likely that aws will be among the more controversial weapon systems, thus further complicating their potential inclusion. In this regard it needs to be noted that as mentioned earlier, it is generally difficult to find consensus concerning weapons that are not yet developed or which are of strategic importance. These two factors will work heavily against any possible criminalization of employing aws. 5

Conclusion

The prohibitions against weapons of a nature to cause superfluous injury or unnecessary suffering and against weapons which are inherently indiscriminate have long been important principles within international humanitarian law, however in reality have had relatively little practical effect. There have been no weapons which can truly be said to have prohibited on the basis of these principles. This has led to the question of whether the principles themselves can render a weapon illegal without explicit action by states, since practice has generally shown the contrary.283 Due to this notion it seems more appropriate to see these principles as being more of a guideline or a moral imperative to create specific prohibitions on the basis of these principles, rather than having weapons banned through this prohibition.284 For this reason it is more appropriate for the weapon provision in the icc Statute to require a comprehensive prohibition and to be included in an annex, as there are no clear indications of which weapons would constitute violations of this provision and when looking at the principles and the application of these principles it seems that a direct application of these principles by the Court itself could certainly violate the nullum crimen sine lege, as no weapon can currently without objection be called prohibited on the basis of these principles.

2 83 Gardam (n 41) 554. 284 Haines (n 23) 278–​279.

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As has been shown the principles against superfluous injury or unnecessary suffering and inherently indiscriminate weapons are rarely used as a direct basis to render a weapons employment prohibited. There is no reason to assume why this would be different in the case of aws.285 This seems especially true when considering that aws are similar in this regard to cyber weapons, where the diversity of the possible systems would make it impossible to state that all of them would be inherently contrary to these principle in abstracto, it is therefore more realistic that the use of these weapons and specific systems would be more relevant than discussing aws as an entire class.286 In this regard the following statement by Smith seems to be an accurate assessment of the legality of aws: ‘while it is true that some autonomous weapon systems might violate international humanitarian law norms, it is categorically not the case that all such systems will do so. Instead, and as with most other weapon systems, their lawfulness as such, as well as the lawfulness of their use, must be judged on a case-​by-​case basis’.287 It needs to be stated that this notion that aws will not be prohibited on the basis of the general principles seems to be understood by many states. Even states that seem to be in favour of a ban on these weapons, call for a specific ban or regulations on aws, acknowledging that these weapons are not in all cases inherently indiscriminate or of a nature to cause superfluous injury or unnecessary suffering. This can for example be seen in Cuba’s working paper at the Fifth Review Conference of the ccw, where it states ‘Se deben prohibir todas aquellas armas autónomas que no puedan cumplir con las disposiciones del derecho internacional’,288 thereby showing that only those aws should be prohibited which cannot comply with international law, implying that it is possible for aws to comply with international law. It has been stated several times that the current legal framework needs to be discussed and that the existing legal framework on its own would not be 285 Peter Margulies, ‘Making Autonomous Weapons Accountable: Command Responsibility for Computer-​guided Lethal Force in Armed Conflicts’ Roger Williams University School of Law Legal Studies Research Paper 166, 2016 6. 286 Roscini (n 48) 175–​176; Rebecca Crootof, ‘The Varied Law of Autonomous weapon Systems’ in Williams A & Scharre P (eds.), Autonomous Systems: Issues for Defence Policymakers (nato Capability Engineering and Innovation Division 2015) 104. 287 Michael Schmitt, ‘Autonomous Weapon Systems and International Humanitarian Law: A Reply to the Critics’ [2013] Harvard National Security Journal Features 8. 288 Documento de Trabajo de Cuba, ‘Armas Autónomas’ Fifth Review Conference of the High Contracting Parties to the 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 2.

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sufficient to deal with the issue of aws as it would be difficult to ensure that aws comply with all rules of international humanitarian law.289 This can be seen in the general discussion where specific concerns that have been brought up as a basis for a possible ban or regulation, although these concerns, especially those of an ethical or moral nature, can not on their own lead to a general prohibition. These considerations, combined with the fact that it is unlikely that aws would be banned on the basis of the general principles, leads to the conclusion that to deal with these concerns there would be the need for a specific instrument dealing with aws.290 Consequently, this means that is extremely unlikely that the employment of aws will be criminalized in itself, either under art. 8(2)(b)(xx) icc Statute or in any other manner. The question of accountability for aws therefore remains and other manners of accountability in international criminal law need to be considered to answer this question.

289 Gwendelynn Bills, ‘LAWS unto Themselves: Controlling the Development and Use of Lethal Autonomous Weapons Systems’ (2014) 83 the George Washington Law Review 176, 189 see especially statements made by states during the expert meetings, such as for example: Switzerland, Towards a “compliance-​based” approach to LAWS, ccw Meeting of Experts on Lethal Autonomous Weapons Systems, Geneva, 11–​15 April 2016, par. 10–​21; Statement by H E Mr. Ravinatha P Aryasinha, Ambassador/​Permanent Representative of Sri Lanka, ccw Meeting of Experts on Lethal Autonomous Weapons Systems, Geneva, 11 April 2016, 3–​4. 290 Alan Backstrom & Ian Henderson, ‘New capabilities in warfare: an overview of contemporary technological developments and the associated legal an engineering issues in Article 36 weapons reviews’ (2012) 94(886) International Review of the Red Cross 483, 495, this can also be seen in the call for a complete prohibition on the development of these weapons, such as Algeria mentions: Déclaration de la delegation algérienne, ccw Meeting of Experts on Lethal Autonomous Weapons Systems, Geneva, 11–​15 April 2016, 2.

­c hapter 6

aws Considered as Responsible Actors 1

Introduction Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.1

This statement at the imt has generally been taken as one of the most important statements in the history of international criminal law and the notion of imposing individual criminal responsibility on those that commit grave atrocities. While this statement certainly is part of the foundation of international criminal law, there has been a move within certain domestic jurisdictions as well as within the literature to attempt and hold entities other than individuals accountable for international crimes. This is generally focused, as is understandable, on the notion of corporate accountability.2 As this development towards a possibility to hold non-​human entities accountable is continuing, it needs to be asked in the context of aws whether the notion of only punishing human individuals is correct, especially since there now arises the chance that crimes against international law will not only be committed by humans, but might soon be committed by machines. This research started with determining what aws actually are and how these systems should be considered. Having laid this out and considered whether the employment of aws as such can be the basis for criminal prosecution, it is now time to turn to the question of individual criminal responsibility for the actions of the aws. This chapter will be the start of this determination. It will 1 International Military Tribunal (Nuremberg), Judgment 1 October 1946, printed in: Trials of the Major War Criminal Before the International Military Tribunal Nuremberg 1947, vol. 1, 223. 2 See for example: Normal Farrel, ‘Attributing Criminal Liability to Corporate Actors: Some Lessons from International Tribunals’ (2010) 8(3) Journal of International Criminal Justice 873; Mordechai Kremnitzer, ‘A Possible Case for Imposing Criminal Liability on Corporations in International Criminal Law’ (2010) 8(3) Journal of International Criminal Justice 909; James G Stewart, ‘The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute’ (2014) 47(1) New York University Journal of International Law and Politics 121; Caroline Kaeb, ‘The Shifting Sands of Corporate Liability Under International Criminal Law’ (2016) 49(2) The George Washington International Law Review 351.

© Barry de Vries, 2023 | DOI:10.1163/9789004524316_007

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focus on the question of whether an aws might itself be held accountable for its actions. This argument has at times been brought up and generally is either summarily discarded as being unrealistic or seen as unnecessary to discuss,3 but it has also been brought up that it might become a possibility at some point in the future.4 Those who adhere to the latter opinion generally view that while it is not possible to hold these systems currently accountable, this might become possible when they have been further developed. The notion of accountability for an autonomous system is however not often considered or researched in-​depth. This chapter will attempt to look at this issue in more depth by viewing whether an aws might possibly fulfil all the requirements necessary to commit a criminal offense and be held accountable. A criminal offense in general consists of two elements, the physical and the mental element, or the objective and subjective elements, actus reus and mens rea.5 It is a general principle that 3 See for example: Marco Sassóli, ‘Autonomous Weapons and International Humanitarian Law: Advantages, Open Technical Questions and Legal Issues to be Clarified’ (2014) 90 International Law Studies/​Naval War College 308, 323; Mark Gubrud, ‘Stopping killer robots’ (2014) 70(1) Bulletin of the Atomic Scientists 32, 36; Christopher Toscano, ‘“Friends of Humans”: An Argument for Developing Autonomous Weapons Systems’ (2015) 8(1) Journal of National Security Law & Policy 189, 235; Kelly Cass, ‘Autonomous Weapons and Accountability: Seeking Solutions in the Law of War’ (2015) 48 Loyola of Los Angeles Law Review 1017, 1057. 4 Bert-​ Jaap Koops, Mireille Hildebrandt & David-​ Olivier Jaquet-​ Chiffelle, ‘Bridging the Accountability Gap: Rights for New Entities in the Information Society’ (2010) 11(2) Minnesota Journal of Law, Science & Technology 497, 515–​516; Ugo Pagallo, ‘What Robots Want: Autonomous Machines, Codes and New Frontiers of Legal Responsibility’ in: Mireille Hildebrandt & Jeanne Gaakeer (eds.), Human Law and Computer Law: Comparative Perspectives, Ius Gentium: Comparative Perspectives on Law and Justice Vol. 25 (Springer Science +​Business Media 2013) 60; Deborah G Johnson, ‘Technology with No Human Responsibility’ (2015) 127(4) Journal of Business Ethics 707, 710. 5 Pamela Hediger, ‘Mens Rea: The Impasse of Law and Psychiatry’ (1990–​1991) 26(3) Gonzaga Law Review 613, 613; Mohamed Elewa Badar, ‘Mens rea –​Mistake of Law & Mistake of Fact in German Criminal Law: A Survey for International Criminal Tribunals’ (2005) 5 International Criminal Law Review 203, 204; Fabián O Raimondo, General Principles of Law in the Decisions of International Criminal Courts and Tribunals (Martinus Nijhoff Publishers 2008) 109–​110; Elies van Sliedregt, Individual Criminal Responsibility in International Law (2012 Oxford University Press) 40; Geert-​Jan Knoops, An Introduction to the Law of International Criminal Tribunals (Koninklijke Brill nv 2014) 94. An exception to this are criminal offences that are subject to strict liability, but it must be noted that these are generally highly exceptional instances, Johan D van der Vyver, ‘The International Criminal Court and the Concept of Mens Rea in International Criminal Law’ (2005) 12(1) University of Miami International & Comparative Law Review 57, 57; Stefanie Bock, ‘The Prerequisite of Personal Guilt and the Duty to Know the Law in the Light of Article 32 ICC Statute’ (2013) 9(4) Utrecht Law Review 184, 185.

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no person can be held accountable unless the person has caused certain consequences or acted in a way that is prohibited by criminal law and also has the required state of mind for causing the consequence or acting in this manner. This is perhaps the most foundational principle of criminal law and it therefore is also a fundamental part of international criminal law.6 As there generally seems to be no real discussion about whether an aws could possibly fulfil the physical element this chapter will only briefly go through this, instead opting to focus on the mental element. It will first describe what mental element is required for most criminal offences and what requirements there are to fulfil this element. It will then turn to how this has exactly been interpreted in the context of international criminal law. After having laid out the general notion of the mental element it will then turn to the question of whether an aws might be capable of having mens rea, whether this is already the case with current systems or whether future systems might be sophisticated enough to at one point have the mental capacity to reach this level. As this chapter concerns the more general question of whether an aws is capable of fulfilling the constituent elements of a crime in the abstract it will not detail the exact elements of specific crimes within international criminal law but will focus on the general understanding of the elements. It will especially not focus specifically on the notion of dolus specialis, which while necessary for certain specific offences, most notably genocide, is not necessary for the general assessment whether aws are capable of fulfilling the general physical and mental elements. 2

General Actus Reus and Mens Rea

Actus Reus 2.1 As discussed in the introduction one of the basic foundations of all modern criminal law systems is that in order for there to be criminal responsibility two requirements need to be fulfilled. The first being the physical element, namely the actual factual committing of the crime. In many cases this is relatively easy, as this can generally be factually ascertained. It is seen that both acts as well as omissions can constitute the actus reus.7 While the actual actus reus can be 6

7

See for example: Prosecutor v. Mucić et al., Case No. it-​96-​21, Trial Chamber, Judgment ¶ 424–​425 (International Criminal Tribunal for the Former Yugoslavia 16 November 1998); Beatrice Bonafé, The Relationship Between State and Individual Responsibility (Martinus Nijhoff Publishers 2009) 119; van Sliedregt (n 649) 39. Mohamed Elewa Badar & Iryna Marchuk, ‘A Comparative Study of the Principles Governing Criminal Responsibility in the Major Legal Systems of the World (England,

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more difficult to ascertain in specific circumstances the physical element is generally less complicated from the theoretical or abstract perspective. Mens Rea 2.2 In many instances the more difficult theoretical question is whether a person can be said to have the required mental state necessary to be held criminally responsible. The mere existence of causation of harm on the basis of the acts of a person is not sufficient to hold someone criminally responsible.8 The question of whether such a mental state exists can be boiled down to whether the accused has the necessary ‘guilty mind’. This notion has a long history and is the foundation of all modern penal systems. The principle is closely linked to the principle of nulla poena sine culpa.9 As the basis of this principle of a guilty mind reference is often made to the Latin phrase: actus non facit reum nisi mens sit rea. By making reference to this Latin phrase the principle could be mistaken to be of Roman origin but the modern notion finds its basis within canonical law.10 It has its foundation in concepts of moral guilt and sin, which formed the basis of canonical laws, transplanting earlier private justice.11 The move from private to public justice started to take place in the 12th century.12 In earlier private justice the physical act was of greatest importance and one could be held accountable without there being any guilt. The move within canonical law to focus on moral guilt meant that the mental element started to gain importance and could even be said to have become more important than the actual physical act.13 This was part of the general move away from personal vengeance in western penal systems to a system based on the notion of retribution and thus an emphasis on

8 9 10 11

12 13

United States, Germany, France, Denmark, Russia, China, and Islamic Legal Tradition)’ (2013) 24 Criminal Law Forum 1, 4. Bock (n 5) 185. Bock (n 5) 185. Albert Lévitt, ‘The Origin of the Doctrine of Mens Rea’ (1922) 17 Illinois Law Review 117, 118–​136. Peter H Karlen, ‘Mens Rea: A New Analysis’ (1978) 9(2) The University of Toledo Law Review 191, 206; Craig A Stern, ‘The Heart of Mens Rea and the Insanity of Psychopaths’ (2014) 42 Capital University Law Review 619, 630, It must be noted here that in this chapter i focus on the Western interpretation and understanding of mens rea, but that this concepts also exists in other criminal law regimes, such as within Islamic law, Badar & Marchuk (n 7) 40–​41. Francis Bowes Sayre, ‘Mens Rea’ (1932) 45(6) Harvard Law Review 974, 980–​982; Stern (n 11) 630. Rollins M Perkins, ‘A Rationale of Mens Rea’ (1939) 52 Harvard Law Review 905, 905; Karlen (n 611) 204–​206; Stern (n 11) 632–​633.

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the moral quality of crime, which led to requiring mens rea.14 It seems that the principle of mens rea has been generally accepted in most, if not all legal systems, since the 18th century.15 The principles on which the current understanding of mens rea is based no longer have their basis in the concept of biblical sin and guilt, but instead in free will and the voluntary nature of a person’s actions. In this regard the criminal law systems work on the basis of the hypothesis that individuals are free agents, capable of choosing between right and wrong and therefore consciously chose to do wrong.16 This notion of free will and the conscious choice to act wrongfully is part of the understanding of moral agency.17 It is because of this that the general understanding of intent includes both an element of knowledge and an element of will, often referred to as the cognitive and volitional elements.18 As criminal accountability requires a volitional element current penal systems are generally not concerned with accidental behaviour, there is a need for some form of intent or recklessness.19 Although there is a need for intent, most penal systems distinguish between different forms and degrees of fault. Within civil law systems distinction is made between dolus directus in the first degree, dolus directus in the second degree, dolus eventualis and negligence.20 While common law systems distinguish between direct intent, indirect intent, recklessness and negligence.21 Regardless of the different degrees, in all of them there remains the main concept of mens rea, namely 14 15 16

17

18 19

20 21

Sayre (n 12) 987–​988. Hediger (n 4) 615. Sayre (n 12) 1004; Hediger (n 4) 614–​615; Massimo Scaliotti, ‘Defences before the International Criminal Court: Substantive grounds for excluding criminal responsibility –​Part 2’ (2002) 2 International Criminal Law Review 1, 16; Kirsten Campbell, ‘Victims and Perpetrators of International Crimes: The Problem of the ‘Legal Person’’ (2011) 2 International Humanitarian Legal Studies 325, 331. Patrick Lin, George Bekey & Keith Abney, ‘Autonomous Military Robotics: Risk, Ethics, and Design’ Report for the Department of the Navy, Office of Naval Research 2008, 60; Peter Asaro, ‘A Body to Kick, but Still No Soul to Damn: Legal Perspectives on Robotics’ in: Patrick Lin, Keith Abney & George Bekey (eds.) Robot Ethics: The Ethical and Social Implications of Robotics (mit Press 2012) 181. van Sliedregt (n 5) 40; Stern (n 11) 628–​629. William Schabas, ‘Mens Rea and the International Criminal Tribunal for the Former Yugoslavia’ (2003) 37 (4) New England Law Review 1015, 1015; Sarah Finnin, ‘Mental Elements Under Article 30 of the Rome Statute of the International Criminal Court: A Comparative Analysis’ (2012) 61 International and Comparative Law Quarterly 325, 328. Badar (n 5) 205–​206; Badar & Marchuk (n 7) 28–​36. V S Khanna, ‘Is the Notion of Corporate Fault a Faulty Notion?: The Case of Corporate Mens Rea’ (1999) 79 Boston University Law Review 355, 367–​368; Badar (n 5) 206; Badar & Marchuk (n 7) 4–​13.

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that a person is only responsible for their voluntary acts.22 This has as a consequence that in those circumstances where a person cannot be said to act voluntarily, they cannot have the requisite mens rea. The existence of mens rea is generally taken as a presumption, with a majority of defences within criminal law being focused on providing a counterpoint to the presumption.23 3

Actus Reus and Mens Rea in International Criminal Law

As stated earlier it is generally accepted that the notions of actus reus and mens rea are just as applicable in the case of international criminal law as they are in the context of domestic criminal law.24 However as is the case with other terms and principles, this does not mean that the interpretation of these principles will be exactly the same as they are in domestic criminal systems. Therefore, it must be assessed how these terms are interpreted in the context of international criminal law, before it can be assessed how these principles must be applied to aws. 3.1 Actus Reus within International Criminal Law While the icc Statute contains a specific provision detailing and defining the mental elements, it does not do so with the concept of material elements. The only mention within the icc Statute of material elements is within art. 30 of the icc Statute, which discusses the mental elements. During the drafting of the icc Statute there had been several proposals to include a definition but it was opted not to include a provision concerning the actus reus due to the difficulty to reach agreement.25 It needs to be inferred from article 30 icc Statute that the relevant material elements in the context of the icc Statute are referred to as the conduct, consequence and circumstances.26 This therefore encompasses the whole of the material elements that can be at play with regard to crimes. 22 23 24 25 26

Badar & Marchuk (n 7) 4. Hediger (n 4) 613–​614; Schabas (n 19) 1015. Prosecutor v. Mucić et al., Case No. it-​ 96-​ 21, Trial Chamber, Judgment ¶ 424–​ 425 (International Criminal Tribunal for the Former Yugoslavia 16 November 1998); Raimondo (n 5) 110, 185. William A Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2015) 626. Mohamed Elewa Badar, ‘The Mental Element in the Rome Statute of the International Criminal Court: A Commentary from a Comparative Criminal Law Perspective’ (2008) 19 Criminal Law Forum 473, 475.

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3.2 Interpretation of Mens Rea within International Criminal Law While the general understanding of the term mens rea has been explained earlier, it must again be made clear that the exact interpretation of the term and associated terms, such as intent or knowledge are interpreted quite differently between different domestic penal systems.27 This is especially important in the context of international criminal law, due to its hybrid nature. It is because of this that it is important to see how the notion of mens rea should be interpreted in the context of international criminal law. When discussing the principle of mens rea within the context international criminal law, it must be said that this should be considered as a general principle of law.28 Before the inclusion of a provision on mental elements within the icc Statute, none of the founding documents of international tribunals mentioned the notion of mens rea explicitly.29 It has however been mentioned within the jurisprudence quite extensively. The jurisprudence of the icty especially has dealt with the principle of mens rea in detail, on the basis that mens rea is a necessary component of any criminal offence.30 The icty did quite early lay out that it is a general principle that criminal culpability requires an analysis of two aspects, the physical act, or objective element and the mens rea or subjective element.31 The Appeals Chamber clearly positioned the principle of mens rea within international criminal law as one of its most fundamental principles, when it stated that ‘[t]‌he basic assumption must be that in international law as much as in national systems, the foundation of criminal responsibility is the principle of personal culpability: nobody may be held criminally responsible for acts or transactions in which he has not personally engaged or in some other way participated (nulla poena sine culpa)’.32 The Appeals Chamber also made clear here that there was an implicit reference of this principle in the icty Statute, 27 28 29 30

31 32

Finnin (n 19) 328. Schabas (n 19) 1015. Schabas (n 19) 1017; Finnin (n 19) 325; Iryna Marchuk, The Fundamental Concept of Crime in International Criminal Law (Springer-​Verlag Heidelberg 2014) 115–​116. It did so from the first of its judgments onward, it was absolutely necessary to deal with this issue within Erdemovic, as the issue of duress was raised by the defence, which was addressed by the Trial Chamber as a question concerning the existence of mens rea. Prosecutor v. Erdemovic it-​96-​22-​t, Trial Chamber Judgement ¶ 14 (International Criminal Tribunal for the Former Yugoslavia 29 November 1996); Schabas (n 19) 1018. Prosecutor v. Mucić et al., Case No. it-​ 96-​ 21, Trial Chamber, Judgment ¶ 424–​ 425 (International Criminal Tribunal for the Former Yugoslavia 16 November 1998); Raimondo (n 5) 110. Prosecutor v. Tadić, Case No. it-​94-​1-​a , Appeals Chamber Judgment, ¶ 186 (International Criminal Tribunal for the Former Yugoslavia 15 July 1999).

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that the Statute’s references to culpability should be understood to mean that a person needs to have intent and knowledge.33 In determining these the ad hoc Tribunals followed the general understanding in that there needs to be a volitional and cognitive element.34 Within the icty the lowest level of intent was indirect intent where a person was aware of a substantial likelihood and still choose to act.35 A clear general definition of intent does not appear to have been formed by the ad hoc Tribunals however, instead the tribunals focused on specific forms of intent with respect to specific crimes.36 Thus, while it wasn’t explicitly included within the statutes, the Tribunals themselves did grant significant importance to the principle of mens rea. The icc Statute was a departure from this lack of an explicit acknowledgment by including a provision which deals with the mental element of crimes, namely art. 30 icc Statute. The inclusion of this provision was seen as a useful and necessary inclusion from the start of the drafting of the icc Statute.37 Article 30 icc Statute attempts to bring consistency to the understanding of mens rea and set a standard rule which applies to all crimes within the icc Statute, unless a specific provision provides otherwise. The basis of any responsibility under the icc Statute is that any offense is committed with ‘intent and knowledge’. While the provision itself has received significant criticism, its inclusion needs to be viewed as a positive development as it ensures more clarity in how the terms knowledge and intent could be construed.38 This increased clarity is an important development, because, as mentioned earlier, different legal systems interpret these terms differently and subsequently set different standards

33 34 35

36 37

38

Prosecutor v. Tadić, Case No. it-​94-​1-​a , Appeals Chamber Judgment, ¶ 186 (International Criminal Tribunal for the Former Yugoslavia 15 July 1999). Badar (n 26) 479; Knoops (n 5) 95. See for example: Prosecutor v. Blaškić Case No. it-​95-​14-​a , Appeals Chamber Judgment, ¶ 41 (International Criminal Tribunal for the Former Yugoslavia 29 July 2004); Prosecutor v. Strugar, Case No. it-​01-​42-​t Trial Chamber ii Judgment ¶ 235 (International Criminal Tribunal for the Former Yugoslavia 31 January 2005); Barbara Goy, ‘Individual Criminal Responsibility before the International Criminal Court: A Comparison with the Ad Hoc Tribunals’ (2012) 12 International Criminal Law Review 1, 15–​16. Marchuk (n 29) 117. Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vol. i Proceedings of the preparatory Committee during March-​April and August 1996, a/​51/​22 [Vol-​i ](supp), ¶ 199; Roger S Clark, ‘The Mental Element in International Criminal Law: The Rome Statute of the International Criminal Court and the Elements of Offences’ (2001) 12 Criminal Law Forum 291, 297; Mohamed Elewa Badar, ‘Dolus Eventualis and the Rome Statute Without It?’ (2009) 12(3) New Criminal Law Review: An International and Interdisciplinary Journal 433, 447. Finnin (n 19) 326–​327.

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to determine intent.39 While it must be noted that this article is applicable “unless otherwise provided”, this section will focus on the general rule and not offence-​specific required levels of intent. Of course it should be kept in mind that this interpretation of the mental elements is only relevant to crimes within the icc Statute and does not reflect or codify customary law.40 However, one must admit that the provision and the understanding of this provision will be quite influential in the general understanding of mens rea within international criminal law. Article 30(1) icc Statute provides the general rule, stating that the material elements of a crime must be committed with intent and knowledge. This paragraph was grounds for significant debate over whether the wording of this paragraph should be ‘intent or knowledge’ or ‘intent and knowledge’. In the end it was decided to go for a conjunctive formulation, on the basis that both are necessary to exist, as it can be argued that there cannot be intent without being aware (having knowledge) of the relevant surrounding circumstances.41 This understanding was confirmed by Pre-​Trial Chamber i in the confirmation of charges decision in the Lubanga-​case.42 In this regard it is clear that mens rea under the icc Statute requires both the volitional and the cognitive aspects.43 With this understanding it might also be more suitable to not see them as two different cumulative elements, but rather as both being necessary components of the general mental element of intent.44 The icc Statute is based on an element analysis, meaning that it looks at the various elements of a crime, where earlier international tribunals focused on the entirety of the offence. This has as a consequence that different mental elements need to be applied to the possible different material elements, which, as mentioned earlier, are conduct, consequence and circumstance.45 Once the specific material element is determined, art. 30(2) and (3) icc Statute state the 39

It can be simplified in saying that there is a significant difference between Civil Law systems and Common Law Systems, which interpret the levels of intent differently. Finnin (n 19) 328. 40 Marchuk (n 29) 125. 41 Albin Eser, ‘Mental Elements –​Mistake of Fact and Mistake of Law’ in: Antonio Cassese, Paola Gaeta & John R W D Jones (eds.), The Rome Statute of the International Criminal Court (Oxford University Press 2002) 905; Finnin (n 19) 336. 42 Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​06 icc Pre-​trial Chamber i, Decision on the Confirmation of Charges, ¶ 351 (International Criminal Court 29 January 2007). 43 Badar (n 26) 479. 44 Mohamed Elewa Badar & Sara Porro, ‘Rethinking the Mental Elements in the Jurisprudence of the ICC’ in: Carsten Stahn (ed.), The law and Practice of the International Criminal Court (Oxford University Press 2015) 651. 45 Badar (n 26) 476–​477; Finnin (n 19) 338.

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appropriate interpretation for the relevant mental element. For conduct this requires intent, circumstances require knowledge and consequence elements require both intent and knowledge.46 From this follows that the notion that there ought to be ‘intent and knowledge’ does not mean that every material element must have both intent and knowledge, but when conduct is combined with another material element (as is required for all crimes under the icc Statute) it can be determined that there is both intent and knowledge in the overall commission of the offence.47 The second paragraph of the article lays out how the term intent should be interpreted in the context of the icc Statute. The first aspect of intent is that a person means to either engage in specific conduct or cause specific consequences. In this manner it excludes conduct that needs to be considered as unintentional, such as reflex behaviour and accidents.48 This can be seen as a restatement of what commonly is regarded as direct intent in common law or dolus directus in the first degree in civil law systems.49 Direct intent or dolus directus in the first degree is generally the highest level of mens rea that’s possible, and should be interpreted as consisting of the purposeful will to engage in conduct or to cause the consequences,50 which is how it has been interpreted by the icc so far.51 The interpretation under art. 30 icc Statute has been noted to be different from domestic interpretations, as it is argued that the cognitive part is of less concern if there is such a high level of will in domestic systems, but because art. 30 icc Statute requires both knowledge and intent in the context of the consequence element, the cognitive factor is a more important aspect under the icc and thus it can be said that the required mens rea has a higher threshold than in domestic penal systems.52 In Lubanga Pre-​ Trial Camber i however noted that this is the general interpretation of dolus directus in the first degree with regard to consequences, thus indicating that in their view this is not a departure from the general interpretation, and that in

46 47 48 49 50 51 52

Finnin (n 19) 340; van Sliedregt (n 5) 46; Bock (n 5) 186. Clark (n 37) 302–​303; Finnin (n 19) 340. Schabas (n 25) 631. Finnin (n 19) 341; Schabas (n 25) 629. Finnin (n 19) 341; Schabas (n 25) 629. See for example: Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​06 icc Pre-​trial Chamber i, Decision on the Confirmation of Charges, ¶ 351 (International Criminal Court 29 January 2007). Finnin (n 19) 342–​343; Kai Ambos, Treatise on International Criminal Law: Volume i: Foundations and General Parts (Oxford University Press 2013) 274–​275.

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domestic legal systems the cognitive element still remains an important factor for dolus directus in the first degree.53 The second manner in which intent can manifest itself within the context of the icc Statute is specific to the consequence element, namely that the person is ‘aware that it (the consequence) will occur in ordinary course of events’. This conforms to the common law concept of oblique intent and the civil law concept of dolus directus in the second degree.54 Consequently, the person needs to foresee the consequence as a practically certain outcome of their actions, barring only unforeseen or unexpected intervention, yet still choosing to engage in the action and can thereby be seen to have had the will to bring about the consequences.55 It has been confirmed in Bemba that the consequences need to be those that are inevitably expected and that because of this there needs to be virtual certainty.56 There is a very fine line between intent and knowledge in the icc Statute, as can be seen by the notion that in the context of the circumstance element the awareness of the occurrence of the consequence in normal circumstances is taken as an assumption of intent.57 The cognitive aspect of mens rea is expanded upon in paragraph 3 of article 30 icc Statute where it states that knowledge ‘means awareness that a circumstance exists or a consequence will occur in the ordinary course of events’. It must be kept in mind that the notion of knowledge will be a subjective standard, focusing on the specific person and not on the mind of a reasonable person.58 The paragraph repeats the knowledge standard set for consequences that was already included in art. 30(2)(b), which clearly shows the indication that within the context of consequences the person needs to act with intent as well as knowledge.59 The knowledge standard has an objective aspect through the inclusion of the term ‘in the ordinary course of events’.60 The required level of knowledge that is necessary with regard to the circumstance element, is that there must be awareness. It can be argued that the notion of wilful blindness could be read into this paragraph, but this is contentious.61 Considering that 53 54 55 56 57 58 59 60 61

Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​06 icc Pre-​trial Chamber i, Decision on the Confirmation of Charges, ¶ 351 (International Criminal Court 29 January 2007). Badar (n 37) 439; Finnin (n 19) 344–​344. Finnin (n 19) 343; Ambos (n 52) 275–​276; Schabas (n 25) 629–​630. Prosecutor v. Bemba, icc-​01/​05-​01/​08-​424, icc Pre-​Trial Chamber ii, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-​Pierre Bemba Gombo ¶ 362 (International Criminal Court 15 June 2009). Badar (n 26) 484, 495. Badar (n 26) 496. Ambos (n 52) 275. Ambos (n 52) 275–​276. Ambos (n 52) 276.

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most of the crimes within the icc Statute need to be committed within a certain context it is necessary that awareness includes this specific context.62 The manner in which the general aspects of intent and knowledge should be interpreted were drafted with relatively little controversy, the question of whether lower levels of mens rea, namely recklessness, gross negligence and dolus eventualis should be included within the mens rea definition of the icc Statute, created more substantial difficulties.63 Thus from the Statute itself it is unclear what the appropriate lowest level of mens rea is that can invoke individual responsibility under the icc Statute. This has especially revolved around whether dolus eventualis or recklessness could be considered as being part of such intent, as it could not be clearly stated from the Statute.64 The question concerning recklessness was relatively quickly and easily answered by the Pre-​Trial Chamber in the Lubanga confirmation of charges where it stated that: The concept of recklessness requires only that the perpetrator be aware of the existence of a risk that the objective elements of the crime may result from his or her actions or omissions, but does not require that he or she reconcile himself or herself with the result. In so far as recklessness does not require the suspect to reconcile himself or herself with the causation of the objective elements of the crime as a result of his or her actions or omissions, it is not part of the concept of intention.65 This reasoning shows that the Pre-​Trial Chamber did not see recklessness as including a form of volition, instead only requiring a form of knowledge. Thereby it could not be said to have the required intent as mentioned in article 30 icc Statute.66 This seems to be in line with the drafting history of the icc 62 63 64 65 66

Such as the fact that for war crimes it is necessary that there is an armed conflict, means that the accused it aware that the acts were conducting within the context of an armed conflict. Marchuk (n 29) 133. William A Schabas, ‘General Principles of Criminal Law in the International Criminal Court Statute (Part iii)’ (1998) 6(4) European Journal of Crime, Criminal Law and Criminal Justice 400, 420. Finnin (n 19) 343–​346. Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​06 icc Pre-​trial Chamber i, Decision on the Confirmation of Charges, ¶ 355, fn. 438 (International Criminal Court 29 January 2007). Mohamed Elewa Badar & Nora Karsten, ‘Current Developments at the International Criminal Tribunals’ (2008) 8 International Criminal Law Review 353, 357; Mohamed Elewa Badar, ‘The Mens Rea Enigma in the Jurisprudence of the International Criminal Court’ in: van den Herik & Stahn (eds.), The Diversification and Fragmentation of International Criminal Law (Koninklijke Brill 2012) 511.

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Statute where there was an apparent consensus that negligence would not be sufficient to invoke criminal liability under the Statute, even if this was not explicitly stated or decided.67 Concerning the notion of dolus eventualis, it seems like initially Pre-​Trial Chamber allowed for it to fall under art. 30 icc Statute in its decision on the confirmation of charges in the Lubanga-​case, stating that the volitional element was fulfilled by the acceptance of the outcome, as the person reconciles themself with the outcome or consents to it.68 This reconciliation with the outcome was argued to distinguish dolus eventualis from recklessness and brought it under the auspices of art. 30 icc Statute.69 The problem with the reasoning within the Lubanga decision is that it did not include any support for dolus eventualis to be included under art. 30 icc, but solely noted that the concept had been used by the icty and the ictr.70 Although in Katanga and Ngudjolo Chui the defence of Katanga put forth the argument that dolus eventualis was not included under art. 30 icc Statute, the Pre-​Trial Chamber refrained from commenting on the issue and relied on other concepts to determine the mental element, thus not providing more clarity on the issue.71 In a more a recent decision of Pre-​Trial Chamber ii it was determined that dolus eventualis was not included under article 30, finding that the wording ‘does not accommodate a lower standard than the one required by dolus directus in the second degree (oblique intention)’.72 ptc ii also considered that the phrasing used 67 68 69 70

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Clark (n 37) 300–​301. Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​06 icc Pre-​trial Chamber i, Decision on the Confirmation of Charges, ¶ 352–​355 (International Criminal Court 29 January 2007) Badar & Karsten (n 66) 356; Badar (n 37) 442–​443. Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​06 icc Pre-​trial Chamber i, Decision on the Confirmation of Charges, ¶ 355 (International Criminal Court 29 January 2007); Finnin (n 19) 348–​349. Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​06 icc Pre-​trial Chamber i, Decision on the Confirmation of Charges, ¶ 352 (International Criminal Court 29 January 2007); War Crimes Research Office, Modes of Liability and the Mental Element Analyzing the Early Jurisprudence of the International Criminal Court (International Criminal Court Legal Analysis and Education Project 2010) 10 (hereafter: wcro); Badar & Porro (n 44) 658. Prosecutor v. Katanga and Ngudjolo Chui, icc-​01/​04-​01/​07-​717 Pre-​trial Chamber i, Decision on the Confirmation of Charges, ¶ 531 (International Criminal Court 01 October 2008); Badar (n 66) 503–​504. Although the Pre-​trial chamber did note that the majority was in agreeance with the decision of ptc i in the Lubanga-​case, Prosecutor v. Katanga and Ngudjolo Chui, icc-​01/​04-​01/​07-​717 Pre-​trial Chamber i, Decision on the Confirmation of Charges, ¶ 251, fn. 329 (International Criminal Court 01 October 2008). Prosecutor v. Bemba, icc-​01/​05-​01/​08-​424, icc Pre-​Trial Chamber ii, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-​Pierre Bemba Gombo ¶ 359 (International Criminal Court 15 June 2009).

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in article 30 icc Statute ‘clearly indicate that the required standard of occurrence is close to certainty’.73 Thereby making certain that dolus eventualis falls outside the required intent, as this allows for the consequences to be mere likelihood or possibility, rather than being close to a certainty.74 This approach seem to be more in line with the context and the drafting history of art. 30 icc Statute. In the drafting of art. 30 icc Statute multiple possibilities were put forward, amongst them the inclusion of dolus eventualis, while finally opting to define intent and knowledge in the manner of art. 30 icc Statute.75 It is generally considered that the drafters of the Statute were not in favour of including dolus eventualis or similar concepts within the required mens rea.76 Because of this the fact that the plain language of the article does not seem to allow for the inclusion of dolus eventualis needs to be followed without ambiguity.77 The more restrictive view of Pre-​Trial Chamber ii has subsequently been followed by Trial Chamber i in its judgment in the Lubanga-​case,78 as well as Trial Chamber ii in the judgment of Katanga.79 In 2014 the appeals chamber in its appeals judgment in the same case followed the requirement of ‘virtual certainty’ that was put forth by ptc ii in Bemba, thus creating more certainty over the exclusion of dolus eventualis under art. 30 icc Statute.80 4

aws and Mens Rea

As was stated in the introduction of this chapter, it has been argued, while relatively rarely, that a system should itself be held accountable for its actions.81 This chapter has so far shown that for individual criminal responsibility, both 73 74 75 76 77 78 79 80 81

Prosecutor v. Bemba, icc-​01/​05-​01/​08-​424, icc Pre-​Trial Chamber ii, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-​Pierre Bemba Gombo ¶ 362 (International Criminal Court 15 June 2009). Ambos (n 52) 277; Schabas (n 25) 632; Badar & Porro (n 44) 660. wcro (n 70) 10; Ambos (n 52) 277. wcro (n 70) 25; Schabas (n 25) 630. It was opted to go for the wording of ‘will occur’ as opposed to ‘may occur’, thus only allowing those situation where the consequences are certain, wcro (n 70) 10, 69–​70; Badar (n 66) 513; Knoops (n 5) 97. Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​07 icc Trial Chamber ii, Judgment, ¶ 1011 (International Criminal Court 14 March 2012); Badar & Porro (n 44) 661. Prosecutor v. Katanga, icc-​01/​04-​01/​06 icc Trial Chamber i, Judgment, ¶ 775–​777 (International Criminal Court 14 March 2012); Badar & Porro (n 44) 662. Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​07 icc Appeals Chamber, Judgment, ¶ 447–​450 (International Criminal Court 01 December 2014); Badar & Porro (n 44) 663. Such as for example: Koops, Hildebrandt & Jaquet-​Chiffelle (n 4) 515–​516; Pagallo (n 4) 49.

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mens rea and actus reus need to exist. While there have been other arguments proposed for why an autonomous artificial system could possibly fall outside of the scope of criminal law, both from a practical as well as from a moral perspective, this section will focus on whether a system can theoretically fulfil the general requirements for criminal responsibility, which are actus reus and mens rea.82 In the case of aws, it is not the actus reus that creates a possible problem. A system can be considered to have acted when it has factually performed an act, similar to how it would be done by a human individual, thus making it relatively easy to determine whether an artificial system has fulfilled the actus reus.83 The issue of mens rea is a trickier subject and it is here that the question arises whether a system can fulfil the requirements for criminal accountability. The common argument that has been brought up as to why an aws cannot be held accountable84 is that since aws are not human they are incapable of having intention and consequently are incapable of having the prerequisite mens rea.85 This is often taken as fact without it seemingly warranting significant analysis.86 However, at present, and throughout history, there are legal systems which have the possibility of holding non-​human entities accountable and attributing some form of mens rea to them.87 This call to hold non-​ human entities, mainly corporations, accountable has raised the question of whether these non-​human entities can have mens rea, and it has been argued that this is possible.88 It is obvious that one cannot rely on a similar argument as to what constitutes mens rea in the case of aws as one would in the case of 82 83 84 85 86 87

88

Gabriel Hallevy, Liability for Crimes Involving Artificial Intelligence Systems (Springer 2015) 35. Gabriel Hallevy, ‘The Criminal Liability of Artificial Intelligence Entities –​From Science Fiction to Legal Social Control’ (2010) 4 Akron Intellectual Property Journal 171 187; Docherty (n 293) 18. This is from a more theoretical aspect, not looking at the practical elements that might preclude non-​human accountability. Pagallo (n 4) 51; Roberta Arnold, ‘Legal Challenges Posed by LAWS: Criminal Liability for Breaches of IHL by (the Use of) LAWS’ in Robin Geiß, Lethal Autonomous Weapons Systems: Technology, Definition, Ethics & Security (German Federal Foreign Office 2016) 14. Arnold (n 85) 18. Most notable of these in modern criminal law is the notion of corporate accountability, even though this concept can be said to find its traces to the 17th century Khanna (n 21) 362–​365; Gabriel Hallevy, ‘Unmanned Vehicles: Subordination to Criminal Law under the Modern Concept of Criminal Liability’ (2011) 21(2) Journal of Law, Information and Science 200 26–​27. Angela Walker, ‘The Hidden Flaw in Kiobel: Under the Alien Tort Statute the mens rea standard for corporate aiding and abetting is knowledge’ (2011) 10(2) Northwestern Journal of International Human Rights 119 127.

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corporations,89 but it shows that there is a possibility for non-​human entities to have mens rea and that a parallel might be drawn.90 The general principle of mens rea includes the notion that a person cannot be held accountable for incidents where they themselves cannot control their actions, it is from this need for control and voluntarity that many of the criminal defences stem, such as the insanity defence,91 or when they cannot comprehend their actions or the consequences of these, such as in the case of young children.92 This leads to one of the main questions concerning mens rea and aws, can it be truly said that aws are in control of their actions, as their choice of actions is guided and constricted by their programming. As stated earlier in this chapter for there to be mens rea it must be said that there is both knowledge as well as intent. When you follow the general understanding of knowledge as awareness it can be seen that this constitute sensory reception of data and the subsequent understanding of this data.93 As most aws will be equipped with sensors and at least enough intelligence to interpret this data, it seems unlikely that it could be argued that aws would not have knowledge in this regard,94 as well as that the manner in which these systems approach this could be seen as paralleling the human approach to knowledge.95 It might however be more difficult when one follows the definition of knowledge put forth in article 30(3) icc Statute. While awareness that a circumstance exists will be relatively easy to assess when it concerns a factual and observable circumstance. It might offer more difficulty when it concerns a more abstract type of circumstance, such as for example whether the act takes place in the context of an armed conflict, as is required for the existence of a war crime. These more abstract notions can already offer difficulties in the context of a regular person, but it will be significantly more difficult for a system, as it will most likely not be programmed to understand and comprehend such abstract notions. But while there is a good chance that the required knowledge or awareness can be present in the case of aws, at least concerning factual and observable circumstances, mens rea also requires a volitional aspect. Therefore, it must

89 90 91 92 93 94 95

This mainly is because the mens rea of a corporation can be boiled down to being an aggregate of the human entities that comprises it. Pagallo (n 4) 60. Johnson (n 4) 710. Scaliotti (n 16) 16; Pagallo (n 4) 51. Pagallo (n 4) 51. Hallevy (n 83) 188; Hallevy (n 87) 208; Hallevy (n 82) 88–​89. Gabriel Hallevy, ‘Virtual Criminal Responsibility’ (2010) 6(1) Original Law Review 6 17–​18. Hallevy (n 87) 208–​209; Hallevy (n 82) 89–​93.

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now be determined whether it is possible for an artificial agent to have the level of intent required. The difference in the programming of autonomous systems when compared to automatic systems, as has been discussed previously is that autonomous systems will act independently and make decision without human instruction and without these being not anticipated and addressed by the fabricators.96 This can lead one to ask whether it can truly be said that the system is confined by its programming or whether it truly does make decisions and be argued to have some form of free will. It can be said that due to the need for guilt, which is only possible with free choice, to be held accountable there needs to be moral agency.97 It is, however, impossible for current autonomous systems to have this agency, because these systems are bound by their programming and every line of code will establish or limit the autonomy of their behaviour. Meaning that at the current level of autonomy and intelligence it seems impossible that any system can be said to have consciousness and thus the ability to have mens rea, which consequently needs to lead to the conclusion that current systems cannot be held accountable for their actions.98 However it has been argued that this might be different in the future and that these systems might attain some form of free will and thereby would possibly have the moral capability to be held accountable.99 At the moment this of course still sounds like science fiction and does not seem to be attainable in any realistically foreseeable future.100 If autonomous systems develop substantially, it has been argued that because it cannot be ascertained with certainty how a system would reach its conclusions in the case of ‘strong’ ai, these need to be considered as similar to humans and as such to hold them accountable as humans.101 But in this regard it needs to be considered that, even in the case of ‘strong’ ai, if a system decides to do something it is difficult to state whether this truly is its ‘own’ and ‘free’ will, or if it would then still

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David C Vladeck, ‘Machines without principals: Liability rules and artificial intelligence’ (2014) 89 Washington Law Review 117, 121; James Igoe Walsh, ‘Political Accountability and autonomous weapons’ (2015) Research and Politics 1, 2. 97 Lin, Bekey & Abney (n 17) 60; Asaro (n 17) 181. 98 Pagallo (n 4) 51–​52. 99 Koops, Hildebrandt & Jaquet-​Chiffelle (n 4) 515–​516; Pagallo (n 4) 60; Johnson (n 4) 710. 100 Pagallo (n 4) 61; Beard (n 49) 662; Merel Noorman & Deborah Johnson, ‘Negotiating autonomy and responsibility in military robots’ (2014) 16(1) Ethics and Information Technology 51, 55. 1 01 Aaron Gevers, ‘Is Johnny Five Alive or did it Short Circuit? Can and Should an Artificially Intelligent Machine be held Accountable in War or Is it Merely a Weapons’ (2015) 12(3) Rutgers Journal of Law & Public Policy 384 396.

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simply make certain choices on the basis and in accordance with its programming, thus binding them to the constraints of its programming.102 This consequently means that an autonomous system cannot be considered as moral agents, as they do not have consciousness and free will to act and therefore would be incapable of criminal intent.103 Hallevy has argued that an autonomous system can have intent if a system is programmed to have a purpose or an aim and subsequently acts in furtherance of this purpose.104 This does however not seem to be in line with the actual understanding of mens rea, as the intent requires an autonomous purpose, which is why there are general defences negating the mens rea in the case of those who do not freely decide to act, such as those under duress or insanity.105 As such the fact that even if autonomous systems would learn, they would not become true free agents, as they would not have an autonomous purpose, and thus could not be held responsible for their actions.106 It also does not seem to be in line with the more philosophical approach to mens rea, which understands moral responsibility as necessarily including higher-​ order intentionality, allowing for beliefs about a beings own beliefs, desires and thoughts.107 Focusing the notion of intent on the purpose or aim of the system appears to be a logical fallacy, for if this purpose or aim is programmed into a system, it cannot be said that the system then sets its own goals, that it forms these from its free will, which is the basis of the notion of mens rea.108 The argument proposed by Hallevy appears to forego to a large extent the volitional element of mens rea and the notion of free will, as being outside of the 102 Sabine Gless, Emily Silverman & Thomas Weigend, ‘If Robots Cause Harm, Who Is to Blame? Self-​Driving Cars and Criminal Liability’ (2016) 19(3) New Criminal Law Review 412, 419–​420. 103 Lin, Bekey & Abney (n 17) 60; John Murphy, ‘Mission Impossible? International law and the Changing Character of War’ (2011) 87 International Law Studies/​U.S. Naval War College 13, 27; Markus Wagner, ‘The Dehumanization of International Humanitarian Law: Legal, Ethical, and Political Implications of Autonomous Weapon Systems’ (2014) 47 Vanderbilt Journal of Transnational Law 1371, 1403–​1404. 104 Hallevy (n 83) 189; Hallevy (n 87) 18. 105 It is interesting here that Hallevy does not argue that this negates the mens rea but instead exempts them from criminal liability, he also does not seem to acknowledge that intent generally consists of a volitional aspect as well and therefore does not seem to focus on the question of whether a system can be said to actually freely chose to act in a certain manner, instead construing the notion of intent solely to the purposefulness Hallevy (n 83) 189–​191. 106 Gless, Silverman & Weigend (n 102) 417. 107 Daniel C Dennett, ‘When HAL Kills, Who’s to Blame? Computer Ethics’ in David G Stork (ed.) HAL’s Legacy: 2001’s Computer as Dream and Reality (The mit Press 1997) 353–​354. 108 Gless, Silverman & Weigend (n 102) 420–​421.

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scope of the criminal law approach to mens rea, in doing so he seems to focus solely on the notion of dolus directus in the second degree, or dolus eventualis.109 Hallevy does not seem to take into account the ‘acceptance’-​theory on which it is argued that intent is included in these concepts, since a person can be said to have accepted the consequences and thus has fulfilled the volitional requirement.110 It must be understood that the general notion put forth by Hallevy, that oftentimes irrelevant attributes of autonomous systems are put forth to argue against their possible accountability, is correct, a system does not need to be regarded to have a soul, or to be evil to be held accountable.111 Yet his disregard of the notion of free decision making as the basis for criminal accountability and thus the underplaying of the volitional component of mens rea is a quite questionable and does not seem to be in accordance with modern understanding of mens rea. 5

Conclusion

This chapter has shown that criminal responsibility requires the existence of both an actus reus and a mens rea. As the mens rea consists of both a cognitive aspect and a volitional aspect it seems currently unlikely that an autonomous technological agent can ever truly be said to have mens rea. This is mainly due to the fact that it cannot be said that an aws would be capable of forming any form of free will, instead it will always be confined by its programming within its decision-​making. It can therefore be concluded that an aws could not be held individually responsible for its actions. While it has been argued that this might change in the future when there would be so-​called ‘strong’ ai, even in this case it is debatably how free the decisions of a system will be and whether it can ever be said to have become free enough from its programming to fulfil the volitional aspect of mens rea in any meaningful manner.112 But as mentioned this might not be the case; however, this is still completely speculative 1 09 Hallevy (n 82) 96–​98. 110 Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​06 icc Pre-​trial Chamber i, Decision on the Confirmation of Charges, ¶ 353–​355 (International Criminal Court 29 January 2007); Mohamed Elewa Badar, ‘Drawing the Boundaries of Mens Rea in the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia’ (2006) 6 International Criminal Law Review 313 314–​415; van Sliedregt (n 5) 47–​48; Goy (n 35) 14–​15. 111 Hallevy (n 82) 105. 112 Of course, it can be argued that humans are not completely free in their decision-​making either, but this is still a controversial notion and is not really taken into account for the notion of mens rea.

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and must currently still be considered as science fiction and outside the realm of realistic expectations. As the system itself cannot be held accountable it must subsequently be assessed whether it might be possible to hold a human accountable for the actions of the system, which is what the next chapters will attempt to do. Several forms of criminal responsibility are however already clearly not applicable to the context of aws, namely those that concern accessorial liability. This is because accessorial liability, such as aiding and abetting, can only exist when there is a principal as these forms of liability are derivative from the criminality of the principal.113

113 Prosecutor v. Tadić, Case No. it-​94-​1-​a , Appeals Chamber Judgment, ¶ 229 (International Criminal Tribunal for the Former Yugoslavia 15 July 1999); Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​07 icc Trial Chamber ii, Judgment, ¶ 998 (International Criminal Court 14 March 2012); Prosecutor v. Katanga, icc-​01/​04-​01/​06 icc Trial Chamber i, Judgment, ¶ 1385 (International Criminal Court 14 March 2012).

­c hapter 7

Commission 1

Introduction

As discussed, it is impossible for an aws itself to be held accountable, while there might be a possibility that an aws could, in the future, fulfil all the necessary requirements to be criminally responsible, it is extremely unlikely that the intelligence of aws would rise to the level that would allow it to have mens rea within the foreseeable future. Even if this is a theoretical possibility, the icc Statute has closed of this avenue by restricting its jurisdiction to natural persons, thus only human beings can be held responsible.1 At the same time aws are not included within the list of prohibited weapons in the icc Statute and therefore it is not possible to hold an individual accountable for the sole employment of aws either.2 This therefore requires looking at whether it can be possible for an individual to be held criminally accountable for the acts committed by an aws, if these amount to an international crime. There are two distinct situations that need to be discussed in this regard and which will be assessed throughout this and the following chapter. The first situation is where an individual directly uses an aws to commit a specific crime, either by directing them to do so or by programming them in a specific manner to ensure a criminal outcome. In this situation the aws can be regarded as being a tool for the commission of the crime. The second scenario is where there is no direct human influence in the actions of the aws, but rather where the aws either functions in a manner which is contrary to its programming, or where it acts in an unexpected manner. It is important to discuss both of the different scenarios as it is possible that the appropriate mode of liability could differ between the two scenarios. This chapter will look at these scenarios from the concept of perpetration, while the next chapter will consider this from the perspective of command responsibility. These two concepts of liability are especially important due to the focus of this book on the applicable law of the icc and the fact that concepts of accessorial liability appear to be inapplicable to the context of aws.3

1 See Chapter 6. 2 See Chapter 5. 3 See Chapter 6, Section 5.

© Barry de Vries, 2023 | DOI:10.1163/9789004524316_008

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This chapter will therefore consider the concept of perpetration and how it has been applied by the icc to consider whether this would be a mode of responsibility appropriate to address the issue of aws. Perpetration is described in article 25(3)(a) icc Statute as committing ‘whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible’. The Court has developed several concepts by which the notion of perpetration is to be understood, most notably the concept of ‘control over the crime’. Using this as its foundation this chapter will start with a short layout of the difference between perpetration or commission and participation. This will focus on the different theories that have been employed to distinguish between perpetration and participation, or accessorial forms of liability. The formulation of art. 25(3)(a) icc Statute makes it clear that at least three different forms of perpetration were foreseen within the icc Statute, namely individual perpetration, joint perpetration and indirect perpetration, the chapter will therefore continue by discussing these consecutively. The icc has further developed a new form of perpetration that is not directly referenced in the provision, namely indirect co-​perpetration. With a firm understanding of the distinction between perpetration and participation as well as the different forms of perpetration that have been included within article 25(3)(a) icc i will discuss these concepts in the context of and their applicability to the issue of accountability for the actions of aws in order to determine whether the concept of perpetration is a concept that could address this question. 2

Theories of Perpetration

National jurisdictions generally apply one of two different approaches to the issue of perpetration, unitary perpetration or differential participation. The concept of unitary perpetration is characterized by the notion that every person contributing to a crime is to be considered as a perpetrator of that crime.4 Consequently, this means that this model does not allow for distinction on the basis of the degree of involvement or role of the person, thereby 4 Héctor Olásolo & Ana Pérez Cepeda, ‘The Notion of Control of the Crime and its Application by the icty in the Stakić Case’ (2004) 4 International Criminal Law Review 475, 482; Elies van Sliedregt, Individual Criminal Responsibility in International Law (2012 Oxford University Press) 65–​66; Lachezar Yanev, Theories of Co-​perpetration in International Criminal Law (Brill Nijhoff 2018) 9.

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not distinguishing between ‘actors’ and ‘accomplices’, but considers all to be perpetrators. This does not necessarily mean that all are treated similarly at all stages, especially with regard to sentencing the factor of proximity is taken into account, but all are considered similarly concerning the main issue of guilt or innocence.5 The concept of unitary perpetration is followed by several domestic jurisdiction, such as notably Denmark and Italy.6 This approach has also been adopted by certain international tribunals, this was for example applied at the imt and the imtfe.7 The other concept of perpetration is ‘differential participation’, unlike the unitary perpetration model this concept is based on a differentiation between ‘perpetration’ (in the narrow sense) and ‘participation’.8 A multitude of different domestic jurisdictions follow this approach and while the manner in which this differentiation is made can differ significantly between different jurisdictions, all make the distinction between perpetrators and participants. The notion of ‘fair labelling’ is often the underlying rationale for this distinction as the differentiation of influence and role of different individuals over a crime it would be unjust to treat all individuals involved in a similar manner.9 Those who have the predominant influence over the commission of a crime are those that are considered as the ‘perpetrators’, while those that make less

5 Albin Eser, ‘Individual Criminal Responsibility’ in Antonio Cassese, Paola Gaeta & John R W D Jones, The Rome Statute of the International Criminal Court (Oxford University Press 2015), 781. 6 Olásolo & Pérez Cepeda (n 4) 482; Héctor Olásolo, ‘Developments in the distinction between principal and accessorial liability in light of the first case law of the International Criminal Court’ in: Carsten Stahn & Göran Sluiter (eds.) The Emerging Practice of the International Criminal Court (Koninklijke Brill nv 2009) 339; Yanev (n 4) 9. 7 Although it has been argued that this might not have been a conscious choice on the founders of the imt and imtfe Charters, but rather a consequence of the lack of clarity in this regard within these Charters, Olásolo (n 6) 343–​344; Eser (n 5) 784; Elies van Sliedregt, ‘Perpetration and Participation in Article 25(3)’ in Carsten Stahn, The Law and Practice of the International Criminal Court (Oxford University Press 2015) 502. This generally finds expression in the nmt judgments by being quite imprecise in their application of individual responsibility, Kevin Jon Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (Oxford University Press 2011) 252–​254. 8 van Sliedregt (n 4) 66; Yanev (n 4) 10. 9 Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​07 icc Appeals Chamber, Judgment, ¶ 463 (International Criminal Court 01 December 2014); This is not only due to legal consideration but also the signaling effect that such fair labelling has, Jens David Ohlin, ‘Co-​ Perpetration: German Dogmatik or German Invasion?’ in Carsten Stahn, The Law and Practice of the International Criminal Court (Oxford University Press 2015) 530–​531; Miles Jackson, ‘The Attribution of Responsibility and Modes of liability in International Criminal Law’ (2016) 29 Leiden Journal of International Law 879, 888.

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influential contributions to the crime are to be considered as ‘participants’. The concept of differential participation is applied in a majority of domestic legal systems and can be seen for example in most civil law jurisdictions, for example France, Switzerland and Spain.10 The differential participation model has also been the model that was applied at the ad hoc Tribunals.11 Within the icc Statute individual criminal responsibility is primarily addressed in art. 25 icc Statute, with the different forms of criminal responsibility that are available to the court being described in paragraph 3.12 The organization of this article shows that the Statute follows the concept of ‘differential participation’, rather than the ‘unitary perpetration’ model, with the concept of ‘perpetration’ being included within subparagraph (a), while concepts of ‘participation’ are described in subparagraphs (b) to (e).13 The application of ‘differential participation’ has been confirmed by the Court, which has stated that the formulation of art. 25 icc Statute indicates a hierarchy of blameworthiness between the different forms of accountability.14 This indicates that perpetration is the highest form of responsibility, this understanding has been confirmed by the Appeals Chamber which stated that ‘generally speaking and all other things being equal, a person who is found to commit a crime him-​or herself bears more blameworthiness than a person who contributes to the crime of another person or persons’.15 The icc can therefore be 10 11

Eser (n 5). Art. 7 Statute of the International Criminal Tribunal for the Former Yugoslavia 25 May 1993 UN Doc s/​r es/​827icty; Art. 6 Statute of the International Criminal Tribunal for Rwanda 8 Nov 1994 UN Doc s/​r es/​955; Olásolo (n 6) 344–​345. 12 The exception to this is the concept of superior responsibility that is addressed in article 28 Rome Statute for the International Criminal Court, which will be discussed in the following chapter. 13 Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​07 icc Trial Chamber ii, Judgment, ¶ 999 (International Criminal Court 14 March 2012); Steffen Wirth, ‘Co-​perpetration in the Lubanga Trial Judgment’ (2012) 10 Journal of International Criminal Justice 971, at 979; Alicia Gil Gil & Elena Maculan, ‘Current Trends in the Definition of ‘Perpetrator’ by the International Criminal Court: From the Decision on the Confirmation of Charges in the Lubanga case to the Katanga judgment’ (2015) 28 Leiden Journal of International Law 349, 351. 14 Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​07 icc Trial Chamber ii, Judgment, ¶ 999 (International Criminal Court 14 March 2012); Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​ 07 icc Appeals Chamber, Judgment, ¶ 462 (International Criminal Court 01 December 2014); Héctor Olásolo, ‘Reflections on the Treatment of the Notions of Control of the Crime and Joint Criminal Enterprise in the Stakić Appeal Judgement’ (2007) 7 International Criminal Law Review 143, 145. 15 George Mugwanya, ‘Substantive Law’ in: Fabricio Guariglia, Ben Batros, Reinhold Gallmetzer, George Mugwanya (eds.), The Appeals Chamber of the International

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said to follow a normative foundation as the basis for its distinction between perpetrators and participants.16 The application of ‘differential participation’ in the icc Statute and by the Court does not follow all the normal characteristics of ‘differential participation’ as applied in domestic jurisdictions, as it is not entirely consistent in differentiating treatment between perpetrator and participant. This can best be exemplified within the context of sentencing, where, unlike in most national jurisdictions, the distinction between perpetrator and participant does not appear to have a direct effect, the icc Statute does not explicitly requires there to be any differentiation in this regard.17 Although, as discussed, the Court reads an inherent hierarchy of blameworthiness in art. 25(3) icc Statute, this has not always been applied in a consistent and strict manner. For example, Trial Chamber ii in its judgment in Katanga moved away from the hierarchical normative order, towards a larger focus on the derivative nature of accessorial liability as a reason for distinguishing between ‘perpetrator’ and ‘participant’.18 The Trial Chamber laid the focus more on the fact that in the case of accessorial liability the responsibility does not flow from the act of the individual itself, but rather from the unlawful nature of the principal act. The Courts reasoning in this regard seems to be more in line with some of the critiques that were made against interpreting art. 25(3) icc Statute as constituting a hierarchy of

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18

Criminal Court: Commentary and Digest of Jurisprudence (Cambridge University Press 2018) 466–​467. van Sliedregt (n 4) 72, 79; Robert Clarke, ‘Together Again? Customary Law and Control over the Crime’ (2015) 26 Criminal Law Forum 457, 464. Although it is still possible for the Court to take this into account during the sentencing on the basis of article 78(1) icc, it is not immediately clear whether this will have a significant impact, for this to be determined there would need to be more sentencing judgments that would facilitate an in-​depth study in this regard, similar to what Barbora Hola has done with regard to the sentencing practice in the icty. This was also posited by Judge Fulford as part of his separate opinion and part of the reasoning why he was not in agreement that article 25(3) includes a hierarchy of blameworthiness in Lubanga: ‘Article 78 of the Statute and Rule 145 of the Rules of Procedure and Evidence, which govern the sentences that are to be imposed, provide that an individual’s sentence is to be decided on the basis of ‘all the relevant factors’, ‘including the gravity of the crime and the individual circumstances of the convicted person’. Although the ‘degree of participation’ is one of the factors listed in Rule 145(1)(c) of the Rules, these provisions overall do not narrowly determine the sentencing range by reference to the mode of liability under which the accused is convicted, and instead this is simply one of a number of relevant factors’. Separate opinion Judge Fulford, Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​07 icc Trial Chamber ii, Judgment, (International Criminal Court 14 March 2012), ¶ 9. Gil Gil & Maculan (n 13) 363.

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blameworthiness.19 But although the Court has not always been consistent, the normative foundation for the distinction between ‘perpetrators’ and ‘participants’ appears to be the approach most consistently espoused. While it is therefore clear that the icc follows the ‘differentiated participation’ model and that it appears to do so on the basis of a hierarchy of blameworthiness it sees as inherent in art. 25(3) icc Statute, this raises the question which criteria the icc applies to distinguish between perpetrators and participants and the justification for these criteria. In other words, how does the icc determine when an individual is to be seen as a ‘perpetrator’ rather than a ‘participant’ to a crime. This has been a consistent point of discussion for any jurisdiction that employs the ‘differentiated participation’ model and has led to the development of several different theories by literature and different jurisdictions. These existing theories have played a significant role in the interpretation of the icc Statute and a large part of the early jurisprudence of the Court dealt with this issue. It is therefore necessary to consider the different theories proposed for the basis of the distinction, these can be divided into three separate groups, namely the objective approach, the subjective approach, and the control theory. The objective approach to ‘differentiated participation’ can mainly be found in common-​law jurisdictions, such as the United Kingdom, Australia and the United States.20 In this approach the focus lies on the facts of the crime and the actus reus, consequently only those of whom it can be said that they performed all the constitutive elements of the actus reus can be considered to be a perpetrator while all others are to be considered as participants.21 This approach has several drawbacks, one of which is especially apparent in the context of international criminal law, as it does not in itself provide for a solution for those who are in leadership position, who do not themself carry out the act, leading to the situation where it is impossible to prosecute these individuals as perpetrators, while it could be argued that it is specifically them who 19

20 21

Such as especially been put forth by Judge Fulford and Judge Van den Wyngaert. Judge Van den Wyngaert argued that relying on the notion of ‘control over the crime’ had its foundation in an inherent hierarchy within article 25(3), something she rejected. Concurring Opinion of Judge Christine Van den Wyngaert, The Prosecutor v. Mathieu Ngudjolo Chui icc-​01/​04-​02/​12-​4 Trial Chamber ii, Judgment, (International Criminal Court 20 December 2012), ¶ 22–​30. Ohlin (n 9). Olásolo (n 14) 147; Jens David Ohlin, ‘Joint Intentions to Commit International Crimes’ (2011) 11(2) Chicago Journal of International Law 693, at 722; Neha Jain, ‘The Control Theory of Perpetration in International Criminal Law’ (2011) 12 (1) Chicago Journal of International Law 159, 164; Ohlin (n 9) 519.

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are most culpable.22 In domestic jurisdictions solutions have been found to at least prosecute these individuals, although not as perpetrators, which still creates issues with regard to ‘fair labelling’ for the role that a person played in a crime, a consideration which according to many is of increased importance in the context of international criminal law.23 The second approach to differentiate participation is the subjective approach. This is the theory that is more commonly followed in civil law legal systems, such as Germany, the Netherlands and France.24 Contrary to the objective approach, this does not focus on the objective elements, or the actus reus, of the crime, but bases itself on the subjective elements, or the mens rea. Under this approach it is those that can be said to have acted with the required mens rea that can be considered as perpetrators.25 While this might address the issue that rose in the context of the objective approach, it does create other issues, most notably the possibility of a person being considered as a perpetrator due to having the requisite mens rea, even though there is an uncertain causal connection between their actions and the crime.26 This approach was favoured by the ad hoc Tribunals and allowed for the adoption of the concept of Joint Criminal Enterprise due to the concepts focus on the mens rea of the persons involved.27 The last theory that has been devised to differentiate perpetration from participation is the ‘control theory’, first put forth by Claus Roxin in his book ‘Täterschaft und Tatherrschaft’. In this book he sought to overcome the deficiencies that existed in the objective and the subjective approach and develop a theory that consisted of the best aspects of both theories.28 The basis of the 22 23 24 25 26 27 28

The US seeks to address this issue by equating the guilt between perpetrators and participants and allowing similar criminal penalties, Ohlin (n 9) 519. Stefano Manacorda & Chantal Meloni, ‘Indirect Perpetration versus Joint Criminal Enterprise: Concurring Approaches in the Practice of International Criminal Law’ (2011) 9 Journal of international Criminal Justice 159, 160–​161; Yanev (n 4) 22. van Sliedregt (n 4) 81; Lachezar Yanev & Tijs Kooijmans, ‘Divided Minds in the Lubanga Trial Judgment: A Case against the Joint Control Theory’ (2013) 13 International Criminal Law Review 789, 813 Yanev (n 4) 498. Olásolo (n 14) 147; Ohlin (n 21) 722; Jain (n 21) 164–​165; van Sliedregt (n 4) 81–​82. Ohlin (n 9) 519–​520. Mohamed Elewa Badar & Nora Karsten, ‘Current Developments at the International Criminal Tribunals’ (2008) 8 International Criminal Law Review 353, 365; Ohlin (n 21) 722. This came about in response to a contentious decision within the German courts in the Stashynsky-​case. In this case the German Bundesgerichtshof convicted Stashynsky as an aider/​abettor, even though he had been the individual who physically had committed two murders, but which he only undertook under strict orders from his superiors in the kgb and under the fear that in case of disobedience he would be executed, rather than being said to have the required mens rea. van Sliedregt (n 4) 82; Yanev (n 4) 399.

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control theory is that the notion of perpetration revolves around the existence of ‘control’, consequently it is the question of whether an individual ‘controls’ the crime that determines whether they are to be seen as a perpetrator or participant. This means that the dividing line between perpetrator and participants lies in the dominance over the act, with those who have the power to determine whether a certain act is done being considered perpetrators of that act, while the others are to be seen as participants.29 Focusing on this aspect has allowed for different forms of conduct to fall within the notion of ‘control’, thereby creating a more nuanced notion of perpetration than is possible within the objective as well as the subjective approach.30 As such, the control theory can be argued to allow for three separate manners in which an individual can control a crime: i) by physically committing it (direct perpetration); (ii) by controlling the will of the person who physically commits it (indirect perpetration); or (iii) by having an essential task in the joint commission of the crime (joint/​co-​perpetration).31 Although this theory was quickly adopted within German criminal law theory and spread to criminal law theory internationally, this has mainly been restricted to academia and commentators and has not been applied in a consistent and continuous manner in any jurisdiction, not even within German jurisprudence.32 Most domestic cases will have the same outcome, regardless of the theoretical approach taken, but in cases of organizational crimes and large-​scale crimes there might be a different outcome depending on the approach followed. This is especially relevant for international crimes, where the person who holds the control over the crime is generally a higher authority not carrying out the actus reus of the crime himself.33 It is therefore important to consider which approach was taken by the icc in its interpretation of perpetration. The icc has made clear in its discussions on the issue of perpetration that it follows a version of the ‘control’ theory to distinguish between ‘perpetrators’ and ‘participants’. In the Decision on the Confirmation of Charges in Lubanga the ptc described the different theories that existed to base this distinction on and subsequently concluded that the approach focusing on the ‘control over the crime’ was the most appropriate. It based this for a large part on the inclusion of indirect perpetration in art. 25(3)(a) icc Statute, which is a distinctive 29 30 31 32 33

Olásolo (n 14) 145; Ohlin (n 21) 722–​723; Jain (n 21) 165; Sliedregt (n 7) 507. Olásolo & Pérez Cepeda (n 4) 488–​489; Jain (n 21) 165. Yanev (n 4) 32. Jain (n 21) 166; Yanev (n 4) 492. Maria Granik, ‘Indirect Perpetration Theory: A Defence’ (2015) 28 Leiden Journal of International Law 977, 982.

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feature of the ‘control’ theory.34 The notion of indirect perpetration indicates that not only the physical perpetrator, the individual who fulfills the actus reus, can have control over the commission of the crime, but rather that also others involved can be said to have control over the commission, most notably those that can be considered as ‘masterminding’ the commission.35 The ptc rejected the objective approach on the basis that ‘principals to a crime are not limited to those who physically carry out the objective elements of the offence but also include those who, in spite of being removed from the scene of the crime, control or mastermind its commission because they decide whether and how the offence will be committed’.36 The subjective approach was considered similarly inapplicable because following this approach would move the focus from the level of contribution to the commission of the offence as the distinguishing criterion between principals and accessories, placing it instead on the state of mind.37 Consequently, the only theory that could be applicable was the ‘control over the crime’ approach, as in this decision the concept of ‘control over the crime’ was considered as a melding of the two other approaches, including both an objective element, the factual circumstances for exercising the control, as well as a subjective element, the awareness of the existence of such circumstances.38 The adoption of the ‘control’ theory by the ptc has been reaffirmed in different decisions and was confirmed by the Appeals Chamber as the structure on which the interpretation of art. 25(3) icc Statute should be based.39 Through the adoption of the ‘control’ theory, the icc has moved away from the concept of perpetration as it was applied in the ad hoc Tribunals. The ‘control’ theory had been discussed within several decisions of the icty and the 34 35

36 37 38 39

Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​06 icc Pre-​trial Chamber i, Decision on the Confirmation of Charges, ¶ 330–​341 (International Criminal Court 29 January 2007); Olásolo (n 6) 351; Jain (n 21) 182; Yanev & Kooijmans (n 24) 797; Yanev (n 4) 414. It has been argued that the focus on the notion of ‘control over the crime’ has led to a diminished significance of the forms of responsibility included in subparagraphs (b)-​(d), William A Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2015) 568. Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​06 icc Pre-​trial Chamber i, Decision on the Confirmation of Charges, ¶ 330 (International Criminal Court 29 January 2007). Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​06 icc Pre-​trial Chamber i, Decision on the Confirmation of Charges, ¶ 329 (International Criminal Court 29 January 2007). Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​06 icc Pre-​trial Chamber i, Decision on the Confirmation of Charges, ¶ 330–​341 (International Criminal Court 29 January 2007); Badar & Karsten (n 27) 365; Manacorda & Meloni (n 23) 169. Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​07 icc Appeals Chamber, Judgment, ¶ 473 (International Criminal Court 01 December 2014); Mugwanya (n 15) 467.

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ictr,40 but the icty Appeals Chamber made it clear that the ‘control’ theory could not be seen to have any foundation in customary international law and could therefore not be applied within the icty.41 This difference between the jurisprudence of the icty and the ictr on the one hand and the icc on the other has been clearly referenced by the icc.42 In its discussion of the ‘control’ theory the ptc made mention that the theory was ‘applied in numerous legal systems’, which was partially the reasoning used by the ptc for justifying its use within the icc.43 In order to support this argument the ptc did reference multiple legal systems, however it is unclear whether there is an actual practical application of the ‘control’ theory in all mentioned systems.44 The theory has found some application in the German legal system, however mainly in exceptional cases.45 There is also some indication that it is applied in some Latin American states due to the heavy i­ nfluence the German criminal legal system has had on their domestic legal systems.46 However, outside of these jurisdictions this theory has not been widely accepted and adopted.47 The ptc’s view of wide acceptance of the theory was not only based on its application in domestic jurisdictions, but also because the theory was ‘widely recognized in legal doctrine’.48 Due to the apparent lack of application of the ‘control’ theory in domestic jurisdictions there was criticism against the argumentation of the ptc, this can be seen as part of the reason why, while the Appeals Chamber and other subsequent decisions have 40

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42 43 44 45 46 47 48

Most notably within the Stakić Trial Chamber Judgment (Prosecutor v. Milomir Stakić, Case No. it-​97-​24 Trial Chamber ii, Judgment (International Criminal Tribunal for the Former Yugoslavia 31 July 2003)) and the separate opinion of Judge Schomburg in the Gacumbitsi Appeals Judgment (Separate Opinion Judge Schomburg Prosecutor v. Sylvestre Gacumbitsi, Case No. ictr-​2001-​64-​a , Appeals Chamber, Judgment (International Criminal Tribunal for Rwanda 7 July 2006)). Prosecutor v. Milomir Stakić, Case No. it-​97-​24 Appeals Chamber, Judgment, ¶ 62 (International Criminal Tribunal for the Former Yugoslavia 22 March 2003); Flavia Zorzi Giustiniani, ‘Stretching the Boundaries of Commission Liability: The ictr Appeal Judgment in Seromba’ (2008) 6 Journal of International Criminal Justice 783, at 791–​792. van Sliedregt (n 4) 84 Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​07 icc Appeals Chamber, Judgment, ¶ 472 (International Criminal Court 01 December 2014). Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​06 icc Pre-​trial Chamber i, Decision on the Confirmation of Charges, ¶ 330 (International Criminal Court 29 January 2007). Yanev (n 4) 498–​500; van Sliedregt (n 4) 86–​87. Jain (n 21) 166; Yanev (n 4) 492. van Sliedregt (n 4) 86–​87; Yanev & Kooijmans (n 24) 813–​814; Clarke (n 16) 463–​464. van Sliedregt (n 4) 86–​87. Prosecutor v. Katanga and Ngudjolo Chui, icc-​01/​04-​01/​07-​717 Pre-​trial Chamber i, Decision on the Confirmation of Charges, ¶ 485 (International Criminal Court 01 October 2008).

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continued to follow the ‘control’ theory, the Court seems to no longer base this upon its application in ‘numerous legal systems’.49 This lack of precedent for the application of the ‘control’ theory outside of the German legal systems or systems that have been heavily influenced by German criminal law, has led authors to argue that the reliance of the icc on the ‘control’ theory is inappropriate, especially in light of the fact that the icc Statute itself does not provide a clear reference to the theory.50 These issues will be further discussed in the sections on co-​perpetration and indirect perpetration, as the influence of the ‘control’ theory is most pronounced in these two contexts. 3

Individual Perpetration

As stated, there are three different forms of perpetration that are included within art. 25(3)(a) icc Statute which will be discussed in order. The first of these is what can be described as solitary and direct perpetration, which is included in the subparagraph as ‘commits (…) as an individual’. This form of perpetration refers to the situation where a single individual alone fulfills all the constitutive elements of a criminal act, they therefore commit the crime without a level of influence or assistance from another person that would rise to a version of joint perpetration, at most others can be seen as accessories.51 There have been very few cases that have dealt with the issue of individual perpetration at the icc, this can in large part be explained by the nature of international crimes and international criminal law,52 combined with the prosecution strategy which up until recently focused on prosecuting only those that were most responsible and in leadership positions.53 Due to this lack of jurisprudence on the issue at the icc it is necessary to see how individual perpetration has been interpreted in criminal law in general and at the ad hoc Tribunals in particular. Individual perpetration is the most traditional form of criminal responsibility as criminal responsibility has always been firstly based on the direct responsibility for a person’s own actions, which is the foundation 49 50 51 52 53

Clarke (n 16) 465. Yanev & Kooijmans (n 24) 797–​814; Clarke (n 16) 463–​464. Gerhard Werle, ‘Individual Criminal Responsibility in Article 25 ICC Statute’ (2007) 5 Journal of International Criminal Justice 953, 958; van Sliedregt (n 4) 89; Eser (n 5) 789. It is uncommon that the people who are prosecuted are those that physically commit the acts, Schabas (n 35) 566. This recently has appeared to be changed to include mid-​level perpetrators as well, the practical effect of this change can not yet be seen as of the time of writing. icc Office of the Prosecutor, Strategic Plan 2019–​2021, 17 July 2019.

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for individual perpetration as well.54 As individual perpetration is the most basic form of perpetration and the basic contours of it are generally similar in most legal systems, it appears likely that the icc would follow the core tenets of the jurisprudence of the ad hoc Tribunals in this regard, as these follow the general understanding of direct perpetration. Following the approach set out by the ad hoc Tribunals is possible since the notion of individual direct perpetration is not influenced by the choice of the control theory over other approaches to perpetration, since as discussed the outcome would be similar in these types of cases regardless of the chosen approach. We can therefore turn to the Appeals Chamber of the icty in Tadić that described individual direct perpetration as ‘physical perpetration of a crime by the accused himself, or a culpable omission of an act mandated by a rule of criminal law’.55 This follows the general understanding of individual perpetration as applied in most domestic jurisdictions. The definition of direct perpetration as proposed in the Tadić-​appeal has been confirmed in subsequent decisions of both the icty,56 ictr,57 as well as other tribunals.58 The fact that the icc follows a ‘control’ theory approach to perpetration rather than the subjective approach that was adopted by the ad hoc Tribunals does not alter the applicability of this jurisprudence, since the outcome would be the same in the context of the ‘control’ theory, since if the individual physically perpetrates the act, this ensures that they generally also have the control over the act, as they physically and directly carry out the actus reus.59

54 M Cherif Bassiouni, Introduction to International Criminal Law (Martinus Nijhoff Publishers 2012), at 285. 55 Prosecutor v. Tadić, Case No. it-​94-​1-​a , Appeals Chamber Judgment, ¶ 188 (International Criminal Tribunal for the Former Yugoslavia 15 July 1999). 56 See for example: Prosecutor v. Stanislav Galić, Case No. it-​98-​29-​t, Trial Chamber i Judgment ¶ 168 (International Criminal Tribunal for the Former Yugoslavia 5 December 2003); Prosecutor v. Limaj et al., Case No. it-​03-​66-​t, Trial Chamber i Judgment ¶ 509 (International Criminal Tribunal for the Former Yugoslavia 30 November 2005). 57 Prosecutor v. Nahimana Case No. ictr 99-​52-​a , Appeals Chamber, Judgment ¶ 478 (International Criminal Tribunal for Rwanda 28 November 2007). 58 The phrasing of the scsl in the Decision on defence motion for judgement of acquittal pursuant to rule 98 in Prosecutor v. Brima (scsl-​04-​16-​t ) [2006] scsl 35 (31 March 2006) was somewhat different, yet conveyed the same general principle: ‘An individual can be said to have ‘committed’ a crime when he or she physically perpetrates the relevant criminal act or engenders a culpable omission in violation of a rule of criminal law’. 59 Olásolo & Pérez Cepeda (n 4) 488–​489.

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Co-​perpetration

The second form of perpetration that is included in Article 25(3)(a) icc Statute can be found in the phrase: ‘commits (…) jointly with another person’. This is what is commonly referred to as co-​perpetration. In domestic jurisdictions co-​perpetration often requires that the co-​perpetrators work together towards realizing the elements of an offense, with the contributions of each individual being of sufficient weight and importance.60 As can be seen from this, co-​perpetration has two basic requirements, firstly that there must be more than one person who commits the crime and, secondly, that they need to work together. The latter aspect has been interpreted within the icc as there needing to be an agreement between the individuals to work together to commit the crime.61 Discussing co-​perpetration necessitates the question as to whether each of the co-​perpetrators must fulfill all the constitutive elements of a crime or if it is sufficient when the constitutive elements are fulfilled by the whole of the co-​perpetrators. This question has not been answered uniformly by domestic jurisdictions, with different national jurisdictions approaching this issue in very different manners.62 We must therefore turn back to the different theories on perpetration that have been discussed in Section 2 above, as discussed there the different theories focused on different elements to qualify an individual as a perpetrator, such as the actus reus in the objective theory and the mens rea in the subjective theory. It is therefore these elements that are decisive for determining when a person can be considered a co-​perpetrator. Since the icc follows the ‘control’ theory, co-​perpetration is not confined to solely those that physically perpetrated the act and fulfilled the whole of the actus reus.63 The determining factor within the icc is whether it can be stated that there is some form of joint control over the crime. Consequently, none of the co-​perpetrators need to have the overall and full control, but rather all involved must share the control over the crime.64 Therefore, it is not necessary for each of the co-​perpetrators to 60 61

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Werle (n 51) 958; Jain (n 21) 167–​170. Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​07 icc Appeals Chamber, Judgment, ¶ 445 (International Criminal Court 01 December 2014); Lachezar Yanev, ‘On Common Plans and Excess Crimes: Fragmenting the Notion of Co-​Perpetration in International Criminal Law’ (2018) 31 Leiden Journal of International Law 693, 698; Mugwanya (n 15) 464. Werle (n 51) 958; Eser (n 5) 790–​791. Schabas (n 35) 569. Pamela J Stephens, ‘Collective Criminality and Individual Responsibility: The Constraints of Interpretation’ (2014) 37(2) Fordham International Law Journal 501, at 523.

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fulfill all the constitutive elements as long as the whole of the co-​perpetrators fulfill the constitutive elements with joint control. Co-​perpetration has been brought up quite prominently in the jurisprudence of the icc. The first instance where this issue was discussed was in the Lubanga Confirmation of Charges, where the ptc set out what it saw as the requirements for co-​perpetration: (i) there needs to be an agreement or common plan among a plurality of individuals; (ii) there must be coordinated essential contributions by each co-​perpetrator which result in the realization of the actus reus; (iii) the defendant has the required mens rea for the crime; (iv) the co-​perpetrators (a) are mutually aware that implementing the common plan would result in the realization of the actus reus and (b) mutually accept these results; and (v) the individual is aware of the factual circumstances enabling them to jointly control the crime.65 This understanding of co-​perpetration has subsequently been affirmed by the Trial Chamber66 and the Appeals Chamber.67 There has been a minor adjustment in the required subjective elements, as the ptc referred to the risk that crimes may result from the execution of the common plan,68 which will be discussed shortly. As can be seen from these requirements there is no need for the co-​ perpetrators to all be present during the execution stage of the crime, the icc has made clear that it is possible for co-​perpetration to take the form of contributions during the preparatory stage, as long as the joint control over the crime remains.69 It is also not required for there to be a direct or physical link between the contribution and the actual commission of the crime for someone to be held as co-​perpetrator.70 As long as an individual provides an essential contribution they can be held as co-​perpetrator and this can take non-​physical form rather than providing a physical contribution, such as formulating the strategy

65 66 67 68 69 70

Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​06 icc Pre-​trial Chamber i, Decision on the Confirmation of Charges, ¶ 342–​367 (International Criminal Court 29 January 2007); Yanev (n 61) 695; Yanev (n 4) 415. Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​07 icc Trial Chamber ii, Judgment, ¶ 976–​1006 (International Criminal Court 14 March 2012). Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​07 icc Appeals Chamber, Judgment, ¶ 7 (International Criminal Court 01 December 2014); Clarke (n 16) 460; Yanev (n 4) 33. Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​06 icc Pre-​trial Chamber i, Decision on the Confirmation of Charges, ¶ 349–​365 (International Criminal Court 29 January 2007). Badar & Karsten (n 27) 366; van Sliedregt (n 4) 99–​100; Mugwanya (n 15) 464–​466. Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​07 icc Trial Chamber ii, Judgment, ¶ 1003–​ 1004 (International Criminal Court 14 March 2012); Prosecutor v. Lubanga Dyilo, icc-​ 01/​04-​01/​07 icc Appeals Chamber, Judgment, ¶ 466 (International Criminal Court 01 December 2014).

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or the plan.71 This leads to the question as to how broad an essential contribution should be interpreted, an issue for which the icc has not provided much further elucidation, other than determining that the contribution needs to be essential to the crime. This could potentially be interpreted in quite a broad manner.72 The general core tenets of co-​perpetration as put forth by the ptc in Lubanga have remained in place and were affirmed by the Trial and Appeals Chamber, but there were two specific issues that have been heavily criticized. The first aspect that has been criticized is the nature of the contributions that can lead to someone being accountable as a co-​perpetrator. In its initial decision ptc i determined that the contribution needs to be essential to the commission of the crime. This was based on the understanding that with co-​perpetration ‘none of the participants has overall control over the offence because they all depend on one another for its commission, they all share control because each of them could frustrate the commission of the crime by not carrying out his or her task’.73 It can be argued that this directly follows from the application of the ‘control’ theory, for without the ability to frustrate the execution of the crime the individual would not have the required control over the crime.74 It has consequently been stated that for co-​perpetration it needs to be determined whether the contribution was of such a character that without it the crime could not continue, therefore it is necessary to consider whether the contribution played an essential part in the crime.75 The Trial Chamber agreed that the contribution needs to be essential for there to be co-​perpetration, but did so on the basis of the argument that co-​perpetration under art. 25(3) (a) icc Statute should be considered as requiring more than just a substantial contribution, as the accessorial forms of responsibility of art. 25(3)(b)-​(d)

71

Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​07 icc Appeals Chamber, Judgment, ¶ 469 (International Criminal Court 01 December 2014); Jens David Ohlin, Elies van Sliedregt & Thomas Weigend, ‘Assessing the Control-​Theory’ (2013) 26 Leiden Journal of International Law 725, at 732; Yanev (n 4) 432–​433. 72 Ohlin, van Sliedregt & Weigend (n 71) 732; Yanev (n 4) 432–​435. 73 Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​06 icc Pre-​trial Chamber i, Decision on the Confirmation of Charges, ¶ 342 (International Criminal Court 29 January 2007). 74 Werle (n 51) 962; Wirth (n 13) 972; Yanev & Kooijmans (n 24) 795–​796; Mugwanya (n 15) 466; Yanev (n 4) 401. 75 Werle (n 51) 962; Olásolo (n 6) 356–​ 357; Steffen Wirth, ‘Committing Liability in International Criminal law’ in; Carsten Stahn & Göran Sluiter (eds.) The Emerging Practice of the International Criminal Court (Koninklijke Brill nv 2009), at 331; Ohlin (n 21) 723; Wirth (n 13) 987.

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icc Statute require substantial contribution.76 This argumentation was subsequently affirmed by the Appeals Chamber.77 The notion that only essential contributions can lead to responsibility under the concept of co-​perpetration has been one of the main criticisms against the icc’s interpretation of co-​perpetration. This criticism is largely based on the necessity that this creates for the icc to engage in counterfactual and hypothetical evaluations, since to answer the question of whether a contribution was essential it needs to be assessed whether the crime would have progressed even if the contribution was not made.78 This also leads to the assumption that where it is possible to conceive of a situation in which the crime would have progressed without the contribution, it would need to be determined that the contribution was not essential. It was therefore that Judge Van den Wyngaert argued that instead of an essential contribution only a direct contribution should be necessary for co-​perpetration, since, as she states ‘[t]‌he essence of committing a crime is bringing about its material elements. Only those individuals whose acts made a direct contribution to bringing about the material elements can thus be said to have jointly perpetrated the crime’.79 Judge Fulford also disagreed with the position of the Court and proposed a different type of test, namely whether there exists ‘an operative link between the individual’s contribution and the commission of the crime’.80 These positions have however remained minority positions within the Court and the majority of the Chamber decided in favour of the essential contribution.81 The second aspect of co-​perpetration, as espoused by the ptc, that received criticism concerns the mental element required for co-​perpetration. One of 76 77 78

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Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​07 icc Trial Chamber ii, Judgment, ¶ 995–​999 (International Criminal Court 14 March 2012); Yanev (n 4) 431. Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​07 icc Appeals Chamber, Judgment, ¶ 473 (International Criminal Court 01 December 2014); Yanev (n 4) 431. Separate opinion Judge Fulford, Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​07 icc Trial Chamber ii, Judgment, ¶ 15 (International Criminal Court 14 March 2012), Ohlin (n 9) 528–​ 529; Gerhard Werle & Boris Burghardt, ‘Establishing Degrees of Responsibility: Modes of Participation in Article 25 of the ICC Statute’, in: Elies van Sliedregt & Sergey Vasiliev (eds.), Pluralism in International Criminal Law (Oxford University Press 2014), at 317. Concurring Opinion of Judge Christine Van den Wyngaert, The Prosecutor v. Mathieu Ngudjolo Chui icc-​01/​04-​02/​12-​4 Trial Chamber ii, Judgment, (International Criminal Court 20 December 2012); Thomas Weigend, ‘Perpetration through an Organization: The Unexpected Career of a German Legal Concept’ (2011) 9 Journal of International Criminal Justice 91; van Sliedregt (n 4) 99. Separate opinion Judge Fulford, Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​07 icc Trial Chamber ii, Judgment, ¶ 15 (International Criminal Court 14 March 2012). Mugwanya (n 15) 464–​466.

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the requirements put forth by the ptc was the need for mutual awareness, in which a clear cognitive notion can be found,82 but as was discussed in Chapter 6 mens rea requires not only a cognitive element, but a volitional element as well. This volitional element was found in the need for the co-​perpetrators to mutually accept the result, the standard used by the ptc to determine this was that co-​perpetrators must ‘mutually accept the result by reconciling themselves to it or consenting to it’.83 This was a controversial statement as it was viewed as referring to a form of dolus eventualis, which according to art. 30 icc Statute generally is insufficient to hold a person accountable.84 As such the Trial Chamber rejected the notion of dolus eventualis being sufficient for co-​perpetrators, although, according to some scholars, not in sufficient enough a manner.85 The Appeals Chamber subsequently was a lot more explicit in its rejection of dolus eventualis and according to their judgment the required mental element is that in order to determine that the common plan includes an ‘element of criminality’ there needs to be ‘virtual certainty’ for the commission of the crime in effecting the common plan.86 The adoption of the control theory to determine whether a person is a co-​ perpetrator has not been without its critics, however is not deemed to create many practical issues in the context of co-​perpetration and much of the critique is mainly theoretical.87 5

Indirect Perpetration

General Indirect Perpetration 5.1 The final form of perpetration in art. 25(3)(a) icc Statute can be found in the phrase, ‘commits (…) through another person, regardless of whether that other person is criminally responsible’. This form of perpetration is generally described under the term indirect perpetration. The notion of indirect 82 83 84 85 86 87

Badar & Karsten (n 27) 366. Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​06 icc Pre-​trial Chamber i, Decision on the Confirmation of Charges, ¶ 361 (International Criminal Court 29 January 2007). van Sliedregt (n 4) 100–​101; Wirth (n 13) 990; Ohlin (n 9) 533; Yanev (n 61) 710; Yanev (n 4) 441–​442. Ohlin (n 9) 533–​534; Gil Gill & Maculan (n 770) 360; Yanev (n 4) 425–​429. Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​07 icc Appeals Chamber, Judgment, ¶ 447 (International Criminal Court 01 December 2014); Yanev (n 61) 710–​711; Mugwanya (n 15) 470–​471; Yanev (n 4) 425–​426. Olena Kucher & Aleksey Petrenko, ‘International Criminal Responsibility after Katan­ga: Old Challenges, New Solutions’ (2015) 3(1) Russian law Journal 143, at 152.

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perpetration in itself is not a novelty in criminal law, at least not within domestic jurisdictions.88 With regard to the interpretation of the concept, the icc follows the general approach that is taken by domestic jurisdiction that include the concept in many regards. However, while it is not a novelty within national jurisdictions, its inclusion in the icc Statute is a significant development, as it is the first time the concept was included in an international instrument.89 The concept is mainly intended to be used for what can be considered as leadership crimes, crimes for which the ad hoc Tribunals instead mainly relied on the concept of Joint Criminal Enterprise.90 The notion of indirect perpetration has been brought up within the icty and the ictr on occasion, however any attempt to apply it within these tribunals has been rejected on the basis that this form of responsibility cannot be said to have any support in customary international law or within the jurisprudence of the ad hoc Tribunals.91 Under indirect perpetration it is possible to hold a person as a perpetrator even if they did not have a direct hand in the actus reus, but instead use another person as a tool to perform the criminal act.92 In this regard indirect perpetration differs from co-​perpetration in that the individuals involved in the commission cannot be considered as equals in the commission of the crime, as

88 89 90

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Olásolo (n 14) 154–​156; Werle (n 51) 963. Werle (n 51) 963–​964; Florian Jessberger & Julia Geneuss, ‘On the Application of a Theory of Indirect Perpetration in Al Bashir’ (2008) 6 Journal of International Criminal Justice 853, at 857; Eser (n 5) 793. This was first put forward in the seminal Tadić Judgment, where the Trial Chamber went through a significant number of cases, where it found a basis for the notion of Joint Criminal Enterprise within customary international law. This form of criminal responsibility has been reaffirmed many times within the icty and the ictr and throughout the different judgments has been developed much further than would be prudent to discuss in the context of the present chapter, for a more detailed look into the notion of Joint Criminal Enterprise, see Prosecutor v. Tadić, Case No. it-​94-​1-​a , Appeals Chamber Judgment, ¶ 185–​229 (International Criminal Tribunal for the Former Yugoslavia 15 July 1999). It must also be noted that the majority of these cases involved a particular judge, namely Judge Wolfgang Schomburg. Some have indicated that the ictr Appeals Chamber in Seromba applied a form of commission ‘through another person’ (Dissenting opinion of Judge Liu Prosecutor v. Athanase Seromba, Case No. ictr-​2001-​66-​a , Appeals Chamber, Judgment (International Criminal Tribunal for Rwanda 12 March 2008) ¶ 9–​ 10, see: Giustiniani (n 41) 788), however even if it is the case that the Appeals Chamber argued for this, which is contested, this would be an exception to the general approach of the ad hoc Tribunals. Jernej Letnar Černič, ‘Shaping the Spiderweb: Towards the Concept of Joint Commission Through Another Person under the Rome Statute and Jurisprudence of the International Criminal Court’ (2011) 22 Criminal Law Forum 539, at 550; Ohlin (n 9) 521; Yanev (n 4) 377.

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within indirect perpetration the indirect perpetrator has the predominant will and uses the physical perpetrator as an instrument.93 In order to determine whether a person is to be viewed as an indirect perpetrator the Trial Chamber in Katanga stated that the icc Statute incorporates three requirements: (i) the person has control over the crime whose material elements were brought about by other persons; (ii) meets the mental element required either by art. 30 icc Statute, or specific to the crime in question; (iii) is ‘aware of the factual circumstances which allow the person to exert control over the crime’.94 Therefore, it must first be determined whether the indirect perpetrator has control over the crime whose material elements were brought about by another person, directly implying that the actus reus must be committed through another person, which is used as a tool to commit the act. This can potentially lead to issues with regard to distinguishing between indirect perpetration and several forms of accessorial liability, especially inducing, soliciting or ordering an individual to commit a crime.95 It should therefore be assumed that more than simple involvement is necessary in the context of indirect perpetration in order to distinguish it from these other forms of accountability, but the dividing lines between these modes of liability are not entirely clear and the jurisprudence of the icc has thus far not created more clarity. The control over the crime as well as the fact that the crime is committed through another person leads to the conclusion that the indirect perpetrator needs to be in a dominant position over the person that physically carries out the act.96 This means that for a person to be considered as an indirect perpetrator they must themself fulfil all the constitutive elements of a crime, while not directly physically themself, but by controlling the crime through their predominant will. This can be viewed as an outcome of the application of the ‘control’ theory within the icc. It is therefore that the ptc has made it clear that indirect perpetration should be considered as ‘the most typical manifestation of the concept of control over the crime’.97 93 94 95

96 97

Eser (n 5) 793. Prosecutor v. Katanga, icc-​01/​04-​01/​06 icc Trial Chamber i, Judgment, ¶ 1416 (International Criminal Court 14 March 2012). Weigend for example argues that it is a policy question whether this distinction should really be made in the case of instigators, Thomas Weigend, ‘The ICC and its Applicable Law; Indirect Perpetration’ in Carsten Stahn, The Law and Practice of the International Criminal Court (Oxford University Press 2015), at 538. Weigend (n 95) 538. Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​06 icc Pre-​trial Chamber i, Decision on the Confirmation of Charges, ¶ 339 (International Criminal Court 29 January 2007).

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While most of the proposed components of indirect perpetration are s­ imilar to how it is viewed in those domestic jurisdictions that include it, art. 25(3)(a) icc Statute does include a novelty compared to the national implementation, namely that it allows for indirect perpetration even in the case where the physical perpetrator themself can be held criminally responsible. This is a significant divergence, as in most domestic jurisdictions indirect perpetration can only be applied in those cases where the person that does the physical act, the person through which the crime is committed, can themself not be held criminally responsible, regardless of whether this is because they are a minor, a lack of culpability or any other reason.98 In most domestic jurisdictions it is specifically this lack of criminal responsibility that allows the indirect ­perpetrator to use them as a tool, as an instrument to fulfil their will, as this is generally considered as not possible in those instances where the individual carrying out the physical act would themself be criminally responsible.99 Without criminal responsibility of the physical actor there is a need to hold the indirect perpetrator accountable as there is no other person that could be considered responsible for the committing of the criminal act.100 This is a reasonable consideration in the national concept, as it normally is an exceptional case where an individual is under such strict control as indirect perpetration requires, while simultaneously being themself legally responsible. In the context of the crimes that are dealt with in the icc, this would not be such an exceptional situation, both due to the nature of international crimes being more often organisational crimes as well as the fact that it is far more common for individuals to be under strict control as to what they will or won’t do, due to these often being state sponsored crimes or involving persons in a military or a non-​state armed group.101 Consequently, the previously discussed distinction between ordering, instigating and indirect perpetration becomes even more complex and blurred. It has been argued that the decision of whether to prosecute a person on the notion of ordering under art. 25(3)(b)

98 99

Jessberger & Geneuss (n 89) 857; Yanev (n 4) 377–​378. Weigend (n 79) 96; Gerhard Werle & Boris Burghardt, ‘Indirect Perpetration: A Perfect Fit for International Prosecution of Armchair Killers?’ (2011) 9 Journal of International Criminal Justice 85, 86; Kai Ambos, ‘The Fujimori Judgment: A President’s Responsibility for Crimes Against Humanity as Indirect Perpetrator by Virtue of an Organized Power Apparatus’ (2011) 9 Journal of International Criminal Justice 137, at 148; van Sliedregt (n 4) 89–​90; Eser (n 5) 793–​794. 100 Weigend (n 95) 538; Yanev (n 4) 377–​378. 1 01 Weigend (n 95) 538–​539.

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icc Statute or under indirect perpetration of art. 25(3)(a) icc Statute should be based on the notion of fair labelling.102 The possibility of indirect perpetration in the case of a culpable actor was not initially included in the drafts of the article on individual responsibility, rather while the early drafts included the notion of indirect perpetration, this was restricted to cases of innocent agents. There is no clarity as to why this was changed in later drafts, nor why it was accepted even though most states still reject it in their domestic jurisdiction.103 As discussed it is however a logical inclusion due to the nature of international crimes and the attempt to prosecute those that are deemed most responsible. 5.2 Organisationsherrschaft 5.2.1 History of Organisationsherrschaft The inclusion of indirect perpetration in the case of a person who themself is potentially criminally responsible has allowed the icc to address a specific form of indirect perpetration, namely perpetration through an organization, or as it is often referred to by its German name Organisationsherrschaft. As the German name already indicates this concept finds its origin within German legal literature, most notably in the writings of Claus Roxin. Roxin initially developed the theory on the basis of the Eichmann-​case and in response to the question of how to deal with instances of highly rigid bureaucratic organizations that are involved in mass criminality.104 The concept of Organisationsherrschaft is based on the general notion of indirect perpetration and especially on the domination of the indirect perpetrator over the physical perpetrator. Unlike the icc Statute, Roxin followed the general understanding of indirect perpetration in Germany at the time, namely that there can only be indirect perpetration in the case of an innocent agent, at least in most normal situations. Roxin started to consider that this understanding of indirect perpetration was insufficient for crimes committed in the context of an organization such as the Nazi-​regime, after details of the Eichmann-​case started to emerge during his trial. The standing understanding of indirect perpetration was insufficient, as it would lead to the situation where those in leadership-​positions in such an organization could only be held 1 02 Werle (n 51) 956–​957; Weigend (n 95) 539–​540. 103 The drafting history does not provide any clear indication for this, especially since the provision was not discussed in detail during the adoption of the Rome Statute. Weigend (n 95) 542–​543. 104 Jessberger & Geneuss (n 89) 859–​860; Weigend (n 95) 547; van Sliedregt (n 4) 509; Ohlin (n 9) 520–​521.

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accountable as an accessory to the crimes rather than as a perpetrator, since in most cases the physical perpetrator would themself be criminally responsible. He therefore argued that it should be possible to hold a person accountable as an indirect perpetrator even when the physical perpetrator is themself culpable.105 This made him develop the thought that domination could not only exist on the basis of a physical actors lack of culpability, but on the basis of organizational control as well.106 The facts of the Eichmann-​case and the nature of the Nazi-​regime led him to conceptualize a theory, where the domination was based on the existence of a hierarchically structured criminal o­ rganization, where an indirect perpetrator could give orders which are unquestionably followed and there is certainty that these orders will be carried out.107 In this manner the indirect perpetrator can be viewed as exercising control through the existence of organizational control, even though they themself are far away from the actual crime and the physical perpetrator remains criminally responsible themself. In Roxins theory this control exists because the organization would exist independently of its changing members and decisions made by those that are at the level of physical perpetration.108 This would not be case for any criminal organization and Roxin set out several requirements that must be fulfilled in order to speak of a situation of Organisationsherrschaft. The first of these requirements is that the organization must exhibit a tight hierarchical structure. This is one of the foundational requirement, as Roxin argued that without the existence of such a tight hierarchical structure there would not be the possibility of automatic implementation of the decision of the indirect perpetrator.109 An organization with a tight hierarchical structure distinguishes itself from a regular group of persons with a leader in that the organization could be seen as independent from the individual members, the individuals within the organization are just considered as part of the larger overall organization, rather than separate individuals.110 The indirect perpetrator is subsequently required to hold control over the hierarchical structure in

1 05 106 107 108

Weigend (n 79) 96–​97. Weigend (n 95) 547; Granik (n 33) 983. Jessberger & Geneuss (n 89) 860; Yanev (n 4) 378–​379. Olásolo & Pérez Cepeda (n 4) 489; Kai Ambos, ‘Command Responsibility and Organisationsherrschaft: ways of attributing international crimes to the ‘most responsible’’ in: Herman Gijsbrecht van der Wilt & André Nollkaemper, System Criminality in International Law (2006 Cambridge University Press) 144–​145; Jessberger & Geneuss (n 89) 860; Jain (n 21) 171–​172. 109 Jain (n 21) 174. 1 10 Jessberger & Geneuss (n 89) 860; Jain (n 21) 174.

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order to implement the hierarchical control.111 They are not required to have control over the entirety of the organization and be in the highest leadership, control can potentially exist in different levels of the hierarchy, as long as the indirect perpetrators can be said to have control over a hierarchical structure within part of the organization.112 The second requirement concerns the fungibility of the members of the organization, especially of those at the level of physical perpetration. This notion of fungibility refers to the easy replaceability of individual members of the organization.113 Replaceability is necessary as it allows for the fact that the overall plan to carry out the crime continues unhindered even when an individual on the level of physical perpetration refuses to participate, since another individual would immediately step into that position. In this regard the individuals should be seen as nothing more than mere cogs within the machine of the organization.114 In the context of Roxin’s original theory this replaceability took the form of a large number of replaceable possible actors.115 The last requirement that Roxin included was that the organization needs to operate outside the regular legal order.116 This was done to restrict the application of this theory only to state authorities or organizations that could be argued to function as a ‘state within a state’.117 The organization acting as a ‘state within a state’ was considered necessary as otherwise there would not be the possibility of automatic implementation of criminal orders, since the physical perpetrator could still potentially face the consequences of committing a crime under the regular legal order. At the same time if a state apparatus acts within the regular legal order this would then not be a crime committed through the power structure, but rather against the structure of the state, therefore not attributable to the state itself, but only to the individual giving the order to commit the crime.118 The publication of the theory of Organisationsherrschaft by Roxin has had significant influence on legal literature and theoretical discussion. However, although it has had this influence, for most of the time since its publication 1 11 Olásolo & Pérez Cepeda (n 4) 489; Jessberger & Geneuss (n 89) 861. 112 Olásolo & Pérez Cepeda (n 4) 490; Jessberger & Geneuss (n 89) 861; Granik (n 33) 983. 113 The term fungibility is used as it invokes the image of the fungus-​like nature of such an organization, where when one individual member is taken out of the organization, they are quickly replaced with another. 114 Ambos (n 108) 145; Jessberger & Geneuss (n 89) 860–​861; Weigend (n 79) 97; Jain (n 21) 172. 115 Jain (n 21) 174–​175. 116 Yanev (n 4) 380. 117 Jain (n 21) 173, 177. 118 Weigend (n 79) 97; Ambos (n 99) 154.

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its effect on legal practice was limited. Since its publication in the 1960s there have only been a handful of cases worldwide where it could be argued that this theory, or at least a version of this theory was applied. Even within its country of origin, Germany, the theory has only found limited application during the 1990s to adjudicate cases concerning border guards of the German Democratic Republic (gdr). The German Federal Court of Justice relied on the concept of Organisationsherrschaft to hold the leadership of the gdr accountable for killings committed by border guards of individuals attempting to illegally cross the border into the Federal Republic of Germany.119 The court started with recognizing that under normal circumstances only the border guards could be held accountable for these killings and not the leadership, because the border guards themselves were criminally responsible and indirect perpetration would normally only apply in the case of physical actors who were not criminally responsible. The court viewed the current situation as not a normal case of indirect perpetration and warranted an exception due to the nature of the organization within the gdr and the ‘almost automatic’ execution of an order.120 It therefore applied a form of Organisationsherrschaft, although not completely similar to the manner it was theorized by Roxin. The court expanded upon the theory by opening up the possibility for Organisationsherrschaft to be applicable to other types of organizations, most notably economic or business-​like enterprises. This has been made possible by the courts partially negating the requirement of the organization being outside of the legal order.121 The court also clarified the mens rea standard by determining that the indirect perpetrator needs to be in full knowledge of the circumstances that would lead to the fulfilment of the elements of the act.122 Subsequent German decisions applying similar forms of responsibility diverged even further from Roxin’s original theory by no longer referring strictly to the principle of fungibility but instead focusing on the creation and use of the basic framework conditions to implement the elements of the offense through the organizational structure.123 This has obviously significantly altered the nature of this form of responsibility as it at worst disregards and at best partially alters one of the core requirements. Outside of Germany there had been relatively little application of the theory of Organisationsherrschaft, with only a few cases in Latin America 1 19 120 121 122 123

Bundesgerichtshof (5 StR 98/​94), 26 July 1994; 40. Weigend (n 95) 548; Granik (n 33) 984. Olásolo & Pérez Cepeda (n 4) 492; Weigend (n 79) 98–​99; Jain (n 21) 173. Jain (n 21) 173. Jain (n 21) 173.

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referencing the theory, potentially due to the influence of German legal theory on the criminal legal system of several of these states. It had been applied by lower courts in Argentina,124 Chile,125 however these earlier decisions were not generally followed or were even overturned in later decisions.126 It was not until relatively recently that indirect perpetration through control over an organization was successfully applied in Peru127 and 124 In the so-​called Juntas-​case the Buenos Aires Federal Court of Appeals determined that in that case there was control by the accused as when a subordinate refused to carry out an order, they would be automatically replaced by a person who would carry it out. This was confounded by the fact that the accused has been able at any time to stop the crimes being committed, as could be seen by the fact that they had actually done so at certain points. Olásolo & Pérez Cepeda (n 4) 494–​495; Francisco Muñoz-​Conde & Héctor Olásolo, ‘The Application of the Notion of Indirect Perpetration through Organized Structures of Power in Latin American and Spain’ (2011) 9 Journal of International Criminal Justice 113, 116–​117; Argentina: National Appeals Court Judgment on Human Rights Violations by Former Military Leaders 9 December 1985, reprinted in: International Legal Materials (American Society of International Law) (1987) 26(2) 317. 125 Jose Manuel Contreras-​case 1993 In the judgment in first instance General Jose Manuel Contreras was held accountable on the basis of control through an organization. This was a very contentious judgment which was not generally accepted by Chilean scholars as this form of criminal responsibility was not part of Chilean jurisprudence in 1993. Even within Chilean case law it cannot be said to have been generally accepted until relatively recently. Muñoz-​Conde & Olásolo (n 124) 121–​122. 126 Argentina: National Appeals Court Judgment on Human Rights Violations by Former Military Leaders 9 December 1985, reprinted in: International Legal Materials (American Society of International Law) (1987) 26(2) 317. This occurred in the Juntas-​case in Argentina where the Federal Court of Appeals had found the accused guilty on the basis of indirect perpetration through control over an organization, this was overturned by the Chamber of Cassation of the Argentine Supreme Court in 1986, who argued that the leading jurisprudence at the time only allowed for the finding of perpetration if they had physically carried out the actus reus. Muñoz-​Conde & Olásolo (n 124) 117–​118. 127 It was applied for the first time in the case against Abimael Guzmán in 2006 when the Peruvian National Penal Chamber determined that indirect perpetration through an organization was not excluding this form of perpetration and could be read in a more recent law which included perpetration ‘through another person’. The National Penal Chamber however focused on the favourable disposition in order to assess automatic compliance rather than the fungibility of physical actors. The Supreme Court affirmed the application of indirect perpetration through control over an organization but rejected the basis of automatic compliance that the National Penal Chamber and adopted a standard that was based on the fungibility of the physical actors, thereby more closely resembling the original theory of Organisationsherrschaft. This was further reaffirmed in the Fujimori case where the Peruvian Supreme Court focused entirely on the original interpretation of this mode of perpetration, but did include a new additional requirement, namely the perpetrators disposition to commit the act. Muñoz-​Conde & Olásolo (n 124) 127–​131; Ambos (n 99) 149–​157.

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Colombia128 and has been referenced in Chile,129 but it cannot be said to have been applied in a consistent manner in these cases.130 Looking at the nature of Organisationsherrschaft and the clear history of the theory as a means to deal with mass and collective criminality, especially in the context of international crimes, makes it a natural extension of indirect perpetration in international criminal law. This is especially due to the fact that this theory generally deals with situations where the physical act of a crime is done through another responsible person, rather than by those that most would perhaps consider most responsible,131 makes it quite understandable that the icc has chosen to incorporate it. 5.2.2 Incorporation of Organisationsherrschaft by the icc As discussed, Organisationsherrschaft is a theory that is heavily influenced by German legal literature in both its origin and its development, while having only limited application outside of academic literature. This raises the question how the icc justifies the incorporation of Organisationsherrschaft within its jurisdiction. In the earliest decisions that apply this concept there was a clear reliance on German legal theory and the works of Claus Roxin himself, almost to the complete exclusion of any other indicator. The ptc in the decision on the confirmation of charges in the Katanga and Chui-​case, gave several arguments for applying the concept, however not all of these arguments were affirmed by subsequent decisions. One of the arguments of the ptc was that there was an increasing use of the concept within

128 In the case against García Romero of 23 February 2010 he was convicted by the Colombian Supreme Court on the basis of indirect perpetration, which has been argued to have been in the variant of ‘control over an organization’. The reasons that the Colombian Supreme Court gave for its decision however do not completely fit within the general understanding of this theory, as he was not directly involved in the decision for the crimes to be committed, nor was he in full control of the group that did commit the acts. (Muñoz-​Conde & Olásolo (n 124) 125–​127). 129 The Fujimori extradition decision of the Chilean Supreme Court did explicitly refer to the possibility of applying indirect perpetration through an organization, however this was not directly a case concerning criminal responsibility according to Chilean law, so it is debatable how influential this will prove to be. 130 Most notably in Argentina, Muñoz-​Conde & Olásolo (n 124) 118–​120. 131 Manacorda & Meloni (n 23) 169–​170; This question of holding those who would be considered most culpable responsible has been an issue in the context of international criminal law, since its inception, generally not those that are the physical actors are the focus of prosecutions, but those who can be considered as having ‘masterminded’ the situation, this has led to the inclusion of concepts such as conspiracy in the imt and the imtfe and Joint Criminal Enterprise in the icty and the ictr.

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national jurisdictions.132 As discussed, this can be argued to be the case, however the application is still limited to a very small number of cases that have been concentrated in only a few states, while not even consistently and uniformly applied in those cases. This can therefore not really be seen as sufficient argument to justify the inclusion of Organisationsherrschaft within the icc. Another argument brought forth by the ptc, was that the concept had been addressed in the jurisprudence of international tribunals. While this, strictly speaking, is true, this can be considered as somewhat misleading as it does not show the context in which it had been brought up. While the concept had been addressed at times by the ad hoc Tribunals, it has not been successfully applied and has consistently been rejected in favour of Joint Criminal Enterprise.133 As has been discussed, there was the view within the ad hoc Tribunals that the concept of Organisationsherrschaft did not have any grounding in customary law. The weakness of these two arguments can also be seen in the fact that the Trial Chamber did not focus on these arguments while discussing Organisationsherrschaft in its judgment in the Katanga-​ case, but rather focused on the last argument brought forth by the ptc.134 This argument was founded on interpreting the text of art. 25(3)(a) icc Statute and specifically how committing through another person, even in cases where this other person is criminally responsible, should be interpreted. This inclusion, according to the ptc, should be seen as including the possibility of ‘control’ existing in the form of control over an organization.135 The ptc continued by stating that because international crime generally consist of collective or mass criminality the Statute must be understood to include organizational control.136 Judge Van den Wyngaert is especially critical on this point, as she argues this interpretation goes against the explicit wording of article 25(3)(a) which specifically states ‘person’ rather than ‘organization’.137 Others have argued that this might

132 Prosecutor v. Katanga and Ngudjolo Chui, icc-​01/​04-​01/​07-​717 Pre-​trial Chamber i, Decision on the Confirmation of Charges, ¶ 502 (International Criminal Court 01 October 2008). 133 Jessberger & Geneuss (n 89) 856. 134 Prosecutor v. Katanga, icc-​01/​04-​01/​06 icc Trial Chamber i, Judgment, ¶ 1403–​1406 (International Criminal Court 14 March 2012). 135 Weigend (n 79) 93. 136 Weigend (n 79) 93. 137 Concurring Opinion of Judge Christine Van den Wyngaert, The Prosecutor v. Mathieu Ngudjolo Chui icc-​01/​04-​02/​12-​4 Trial Chamber ii, Judgment, (International Criminal Court 20 December 2012), ¶ 49–​57.

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be too fine a reading, since organizations are still made up of natural persons and it would therefore still fit within the notion of ‘person’.138 The argument that the icc Statute can be interpreted as allowing for Organisationsherrschaft, due to the inclusion of indirect perpetration even in the context of a culpable physical actor is the strongest one brought forth in favour of an inclusion of Organisationsherrschaft. This is because Organisationsherrschaft is one of the few legal theories that incorporates the concept of indirect perpetration that allows for the domination of a culpable actor. Therefore, it could be argued that the textual interpretation would allow for the application of the concept. The statement of Pre-​Trial Chamber i in Katanga and Chui that this form of responsibility ‘has been incorporated into the framework of the Statute’ could be argued to be based on such an interpretation of the provision. The provision is not unequivocal about it and it cannot be said to be explicitly referenced in art. 25(3)(a) icc Statute, it does however seem to be the most consistent and logical interpretation. There has also been critiques against the inclusion from a more practical perspective, namely that the notion of perpetration through an organization as a theory is well-​suited, however only well-​suited for particular situations. As described, the theory was originally intended to deal with well-​organized highly bureaucratic organizations, as Roxin developed it as a response to the Eichmann-​case and the bureaucracy of the Nazi-​regime. Likewise, most situations in which it has been applied by domestic courts concerned highly bureaucratic and hierarchical organizations. The facts of the cases where the icc has applied the theory however do not lend themselves to be interpreted as similar situations. Katanga and Chui were in charge of organizations, that is correct, but the reality of most African rebel groups and really most rebel groups regardless of where they are, do not lend itself to be regarded as a Nazi-​ like bureaucratic organization.139 5.2.3 The Interpretation of Organisationsherrschaft by the icc Having considered the justification that the icc has given for its adoption of Organisationsherrschaft it needs to be considered how it has been interpreted by the icc. The most detailed description as to how this concept should be applied in the icc was given by ptc ii in the Decision of the Confirmation of Charges in the Katanga and Chui-​case and was further discussed in the Trial Chamber Judgment in the Katanga-​case. In its decision ptc ii first discussed

1 38 Ohlin, van Sliedregt & Weigend (n 71) 737. 139 Werle & Burghardt (n 99) 89; Manacorda & Meloni (n 23) 171.

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the potential of control being exercised by means of an organization, or as they describe it, an organised apparatus of power.140 ptc ii determined that through the control of the accused over the organized structure of power, they had the power and authority within the organization to secure compliance with their orders.141 This led to the first requirement for responsibility on the basis of this form of responsibility, namely the existence of a hierarchical relation between superiors and subordinates within the organization.142 The second requirement proposed follows logically from the first, namely that the indirect perpetrator must exercise control over the organized structure of power, or at least over part of this structure, this control is manifested through the subordinates’ compliance.143 In order for the crimes to be attributable to the accused, this compliance should extend to automatically ensuring the execution of the crimes. This does not require that the indirect perpetrator controls the individual will of each physical perpetrator, but that there is a functional automatism.144 Functional automatism is attained when there is the understanding from the indirect perpetrator ‘that if a member of the organization refuses to comply, another will usually be available to step in and somehow ensure the execution of the orders issued’.145 In order for this to be possible there needs to be a sufficient number of subordinates within the organized structure of power which could potentially take the place of individuals at the physical perpetrators level if these refuse to commit the crime.146 In this regard the icc, unlike the German courts, stayed closer to the original theory of Roxin by focusing on the fungibility of those that directly act, which it described as ‘several persons who may replace one another and who are all in a position to bring about the material elements of the crimes’147 With regard to the mental element required, the Court determined that the general tenets of Article 30 icc are applicable and that this means that there needs to be an awareness of the indirect perpetrator of their control over the organization.148 140 Prosecutor v. Katanga and Ngudjolo Chui, icc-​01/​04-​01/​07-​717 Pre-​trial Chamber i, Decision on the Confirmation of Charges, ¶ 510 (International Criminal Court 01 October 2008). 141 Ibid., 511–​514. 142 Weigend (n 79) 93; Granik (n 33) 989. 143 Granik (n 33) 989. 144 Prosecutor v. Katanga, icc-​01/​04-​01/​06 icc Trial Chamber i, Judgment, ¶ 1408 (Inter­ national Criminal Court 14 March 2012). 145 Ibid. 146 Weigend (n 79) 93; Granik (n 33) 989. 147 Prosecutor v. Katanga, icc-​01/​04-​01/​06 icc Trial Chamber i, Judgment, ¶ 1408 (Inter­ national Criminal Court 14 March 2012). 148 Granik (n 33) 988–​989.

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These requirement do not differ too much from the original theory as proposed by Roxin or from those few instances where Organisationsherrschaft has been applied by national courts, there are however a few aspects in which the icc broadens the theory significantly. The first is that while the ptc did state that there needed to be fungibility,149 this was difficult to prove in several instances in the context of the case. The ptc therefore relied on a broader concept of automatic compliance, namely that this could be formed through the adoption of violent and strict training regimes that individuals within the organization went through, which instilled a propensity to commit crimes, and thereby had them falling within the control of the accused.150 The ptc thereby reformulated one of the requirements put forth by Roxin from fungibility to a requirement that there needs to be automatic compliance, seemingly not reliant on how automatic compliance is achieved.151 While the need for fungibility was reiterated by the Trial Chamber in its judgment in the Katanga-​case, they did not directly refute the statement of the ptc and actually made note of the fact that functional automatism can take place outside of those bureaucracies foreseen by Roxin as the Trial Chamber stated ‘the existence of an organised and hierarchical apparatus of power, characterised by near-​automatic obedience to the orders it hands down, which will allow a court to find certain members of the structure responsible as perpetrators of crimes whose material elements were committed by their subordinates’.152 The problem is that because the Trial Chamber did not find it proven that the Ngiti militia was an organised apparatus of power, nor that Katanga himself wielded the level of control necessary to be considered an indirect perpetrator,153 it did not consider whether it would be possible for the training regime to be considered as sufficient to ensure functional automatism as had been proposed by the ptc. The change to the fungibility-​requirement of the original theory seems to address some of the main criticisms against the original theory of Roxin. The notion of fungibility has often been criticized because of the understanding that perfect and immediate substitutability 149 Prosecutor v. Katanga, icc-​01/​04-​01/​06 icc Trial Chamber i, Judgment, ¶ 515–​ 518 (International Criminal Court 14 March 2012). 150 Prosecutor v. Katanga and Ngudjolo Chui, icc-​01/​04-​01/​07-​717 Pre-​trial Chamber i, Decision on the Confirmation of Charges, ¶ 546–​547 (International Criminal Court 01 October 2008). 151 Jain (n 21) 185–​186; Manacorda & Meloni (n 23) 172. 152 Prosecutor v. Katanga, icc-​01/​04-​01/​06 icc Trial Chamber i, Judgment, ¶ 1409–​1410 (International Criminal Court 14 March 2012). 153 Prosecutor v. Katanga, icc-​01/​04-​01/​06 icc Trial Chamber i, Judgment, ¶ 1420 (International Criminal Court 14 March 2012).

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of subordinates is not realistic, this is especially the case in those situations where the physical perpetrator is highly specialized and therefore not immediately replaceable.154 This approach towards general automatic execution, rather than focusing on the fungibility specifically, also falls in line with most of the domestic applications of the theory.155 By focusing more on the automatic compliance it allows the icc to overcome this issue.156 This approach seems to have been confirmed by the Trial Chamber in its judgment in the Ntaganda-​case.157 The second aspect where the icc has significantly broadened the scope of Organisationsherrschaft can be found in the nature of the organisational structure that can be considered as an organised structure of power. As discussed, the important aspect is the insurance of functional automatism and the Trial Chamber acknowledged that aspect more than the bureaucratic structures that inspired the theory, such as the Nazi-​regime. The icc also concurs with most national jurisdictions that apply the theory, in that it is not necessary that the organization is separated from the normal legal order, which was a central point for Roxin.158 Roxins requirement that the organization is outside of the regular legal order has often been criticized by scholars as not being a necessary condition.159 This change therefore seems an appropriate change due to the change in the type of cases where this theory is to be applied. But the ptc has made a controversial statement concerning the nature of the organization in Ruto et al. where the ptc significantly broadened the notion of an organized structure of power, leading to a situation where almost any organization could almost be considered as being capable of forming an organized structure of power.160 The third aspect is that while the ptc ostensibly follows the control theory and a form of indirect perpetration, the facts of the case in Katanga and Chui made it difficult to argue that the crimes that had been committed were directly ordered or even known about by the accused.161 The ptc therefore 1 54 155 156 157 1 58 159 160 161

Ambos (n 108) 145–​148. Muñoz-​Conde & Olásolo (n 881). Jain (n 21) 195. Prosecutor v. Ntaganda, icc-​01/​04-​02/​06 icc Trial Chamber vi, Judgment, ¶ 819 (International Criminal Court 8 July 2019). Jain (n 21) 186; Gil Gill & Maculan (n 770) 355. Jain (n 21) 177. Prosecutor v. Ruto et al., icc-​01/​09-​01/​11 icc Pre-​trial Chamber ii, Decision on the Confirmation of Charges, ¶ 314–​316 (International Criminal Court 23 January 2012); Yanev (n 4) 522–​523. Notably different sexual crimes committed without the express order of the accused, it could not even be established that there was sufficient evidence to show that the accused

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allowed for acts that were not based on direct orders to fall within this form of perpetration, as long as these acts could be said to fall within the objectives established and followed by the organization.162 This was again based on the violent and strict training regimes, which according to the ptc instilled a propensity to commit crimes, which in part led to the crimes possibly being attributable to Katanga and Chui due to their control over the organization and the training regimes.163 In this regard it can be viewed that the ptc went far beyond the traditional theory, where a focus is on the automatic implementation of an order and the physical perpetrators do not go beyond what is ordered. the notion that the physical perpetrators can act on their own accord negates the central tenet of Organisationsherrschaft, as their compliance cannot really be considered automatic anymore and acts that go beyond their orders cannot be considered as complying at all.164 Some argue that this is an unwarranted extension of the theory,165 while others argue that it is in line with the notion that Organisationsherrschaft does not focus on the individual crimes, but rather on the global act coming from their control over the organization and that this is the object of the attribution of acts to the indirect perpetrator.166 This aspect was not directly addressed by the Trial Chamber in their judgments in both the Katanga-​case and the Chui-​case, however they did specifically refer to the applicability of art. 30 icc Statute.167 As art. 30 icc Statute requires both knowledge and intent and has been considered to exclude the possibility of dolus eventualis, this brings into question the ptc statement in this regard, as this could certainly be considered as venturing in the realm of dolus eventualis.168 It is therefore quite questionable whether this

162 163 1 64 165 166 167 168

even had prior knowledge of these crimes would be committed. Partly Dissenting Opinion by Judge Anita Ušacka, Prosecutor v. Katanga and Ngudjolo Chui, icc-​01/​04-​01/​07-​717 Pre-​ trial Chamber i, Decision on the Confirmation of Charges (International Criminal Court 01 October 2008). Prosecutor v. Katanga and Ngudjolo Chui, icc-​01/​04-​01/​07-​717 Pre-​trial Chamber i, Decision on the Confirmation of Charges, ¶ 518 (International Criminal Court 01 October 2008). Prosecutor v. Katanga and Ngudjolo Chui, icc-​01/​04-​01/​07-​717 Pre-​trial Chamber i, Decision on the Confirmation of Charges, ¶ 547 (International Criminal Court 01 October 2008). van Sliedregt (n 7) 514. van Sliedregt (n 4) 170. Ambos (n 99) 148. Prosecutor v. Katanga, icc-​01/​04-​01/​06 icc Trial Chamber i, Judgment, ¶ 1413–​1414 (International Criminal Court 14 March 2012). Ohlin, van Sliedregt & Weigend (n 71) 739.

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aspect of the interpretation of Organisationsherrschaft will be followed within other decisions of the icc. Conclusion on Indirect Perpetration 5.3 The inclusion of indirect perpetration has been one of the most important developments in the context of individual responsibility at the icc. Before the icc Statute it cannot be considered to have been a direct part of international criminal law, there was no indication of the notion of indirect perpetration in the imt or the imtfe and later international tribunals also opted for a different approach, one which they found had more grounding within international customary law, namely Joint Criminal Enterprise. Only in a handful of cases at the icty and the ictr was the concept of indirect perpetration brought up but never successfully applied. This has led many to question the concept of indirect perpetration as a concept of international customary law outside of the icc Statute.169 This critique seems especially prudent due to the expansive notion of indirect perpetration within art. 25(3)(a) icc Statute, mainly the possibility of a criminally responsible physical actor and the even broader interpretation of indirect perpetration, especially with regard to perpetration through an organization, of the icc. It is therefore unlikely to state that this approach can be considered as international customary law and applicable in any manner outside of the icc itself. 6

Indirect Co-​perpetration

The forms of perpetration that have been discussed thus far have all been included explicitly within art. 25(3)(a) icc Statute, however the icc has accepted another form of perpetration that has not been explicitly included within the icc Statute, namely what can be referred to as indirect co-​ perpetration.170 Instead of being included in art. 25(3)(a) icc Statute, this form of responsibility has been developed within the jurisprudence, with its first emergence in the Confirmation of Charges of Katanga and Chui.171 In this 169 Prosecutor v. Milomir Stakić, Case No. it-​97-​24-​a , Appeals Chamber, Judgment ¶ 62 (International Criminal Tribunal for the Former Yugoslavia 22 March 2006), Weigend (n 79) 106; Weigend (n 95) 540; Giustiniani (n 41) 788; Yanev (n 4) 492–​493. 170 It had been discussed in Stakić at the icty, but summarily rejected there Prosecutor v. Milomir Stakić, Case No. it-​97-​24-​a , Appeals Chamber, Judgment ¶ 62 (International Criminal Tribunal for the Former Yugoslavia 22 March 20060); van Sliedregt (n 4) 165. 171 Prosecutor v. Katanga and Ngudjolo Chui, icc-​01/​04-​01/​07-​717 Pre-​trial Chamber i, Decision on the Confirmation of Charges (International Criminal Court 01 October 2008).

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case the prosecution had originally focused on the notion of co-​perpetration on the basis of joint control over the crimes, however this was a problem as their direct control over the acts could not be based on their presence during the crimes. The ptc did confirm the charges, but did so not on the basis of co-​perpetration, but rather on the two accused jointly committing the acts, not themselves, but through other persons under their command.172 With this approach the Pre-​Trial Chamber combined the concepts of co-​perpetration and indirect perpetration into a mixture of the both.173 In this case this would be the only possibility of prosecuting the defendants for perpetration as both of the defendants were only in charge of their own ethnic groups, which would not listen to the orders of the other accused. Therefore, the theory of indirect perpetration alone would not be sufficient for the successful prosecution of both individuals for the crimes committed by both groups. This meant that it was necessary for both defendants to be co-​perpetrators for there to be the required control over the physical perpetrators.174 While this was not directly included within art. 25(3)(a) icc Statute, the ptc held that it was a natural combination of the two forms of perpetration and could therefore be viewed to have been included implicitly. The use of the word ‘or’ in art. 25(3)(a) icc Statute was seen by the ptc as an inclusive disjunction allowing for the combination of indirect perpetration and co-​perpetration.175 This has been seen by some as an unwarranted broadening of art. 25(3)(a) icc Statute and introducing a new form of perpetration and individual criminal responsibility.176 The Trial Chamber has accepted the concept of indirect co-​perpetration as a legitimate legal concept.177 While none of those charged under this notion of 172 Prosecutor v. Katanga and Ngudjolo Chui, icc-​01/​04-​01/​07-​717 Pre-​trial Chamber i, Decision on the Confirmation of Charges, ¶ 490–​494 (International Criminal Court 01 October 2008). 173 Ibid.; Weigend (n 95) 544. 174 Prosecutor v. Katanga and Ngudjolo Chui, icc-​01/​04-​01/​07-​717 Pre-​trial Chamber i, Decision on the Confirmation of Charges, ¶ 490–​494 (International Criminal Court 01 October 2008); van Sliedregt (n 4) 166. 175 Prosecutor v. Katanga and Ngudjolo Chui, icc-​01/​04-​01/​07-​717 Pre-​trial Chamber i, Decision on the Confirmation of Charges, ¶ 491 (International Criminal Court 01 October 2008); Černič (n 92) 556–​557. 176 Concurring Opinion of Judge Christine Van den Wyngaert, The Prosecutor v. Mathieu Ngudjolo Chui icc-​01/​04-​02/​12-​4 Trial Chamber ii, Judgment, (International Criminal Court 20 December 2012); Gil Gill & Maculan (n 770) 353 van Sliedregt (n 7) 526. 177 Prosecutor v. Katanga, icc-​01/​04-​01/​06 icc Trial Chamber i, Judgment, ¶ 1397 (International Criminal Court 14 March 2012); Prosecutor v. Chui icc-​01/​04-​02/​12 icc Trial Chamber ii, Judgment, ¶ 111 (International Criminal Court 18 December 2012); Prosecutor v. Ntaganda, icc-​01/​04-​02/​06 icc Trial Chamber vi, Judgment, ¶ 771–​772 (International Criminal Court 8 July 2019).

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perpetration have been convicted on this basis, it is one of the more popular forms of responsibility invoked by the prosecutor.178 This does not mean that this has been without criticism from within the icc itself, especially Judge Van den Wyngaert has been critical of the adoption of indirect co-​perpetration as she sees no indication that this forms of perpetration was included, or intended to be included, within art. 25(3)(a) icc Statute. As such, she argues that this form of individual responsibility expands the notion of indirect perpetration to a degree that might be detrimental. She is extremely critical, as she views this as creating a completely separate mode of perpetration and individual responsibility within art. 25(3)(a) icc Statute, thereby violating the legality principle of art. 22(2) icc Statute.179 For indirect co-​perpetration to exist it requires the accused to fulfill both the requirements for indirect perpetration and co-​perpetration.180 This means that there needs to be proof of a common plan, a coordinated cooperation,181 a coordinated essential contribution as well as the mutual awareness and acceptance ‘that implementing their common plan will result in the realization of the objective elements of the crimes’.182 Consequently, there is the added subjective element of the awareness of the factual circumstances enabling them to exercise control over the crime through another person.183 7

Commission through aws?

Having discussed the manner in which different forms of commission have been interpreted within the icc this chapter will now consider whether any of these concepts would be applicable to the context of aws. In the current situation when a crime is committed with a weapon system the person that employs the weapon system would generally be considered to be the perpetrator and could generally be held accountable on the basis of direct perpetration. This is because the employment of the weapon system is generally the act through which the crime would be committed. This section will however

1 78 Ohlin, van Sliedregt & Weigend (n 71) 734. 179 Concurring Opinion of Judge Christine Van den Wyngaert, The Prosecutor v. Mathieu Ngudjolo Chui icc-​01/​04-​02/​12-​4 Trial Chamber ii, Judgment, (International Criminal Court 20 December 2012) van Sliedregt (n 7) 509. 180 Manacorda & Meloni (n 23) 173. 181 Černič (n 92) 555; van Sliedregt (n 7) 509. 182 Černič (n 92) 555. 183 Jain (n 21) 186.

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discuss whether this approach would be as applicable in the context of aws as it would be in the case of other weapon systems. This will focus on two different scenarios, the first is the case where the aws is either programmed or commanded to commit specific crimes, while the second will discuss the situation where the aws is not programmed or commanded to commit crimes but does so without direct human involvement. 7.1 Direct Human Involvement As stated, this section will first discuss the case where the aws is directly programmed or commanded to act in a manner which might constitute a crime. This case can be solved relatively easily as an aws in such case does not actually operate in an autonomous manner and should be considered similar as any tool used in the commission of a crime. Programming or commanding an aws would be no different than firing a gun or placing a landmine, there is only the singular possible outcome. This would be the case, since while these systems would generally be programmed in such a manner as to function autonomously, they would still be bound by direct commands programmed into them in order to ensure their effectivity. They would function autonomously in furtherance of the objective to which they were programmed or commanded and would not autonomously set the objective in these situations. Therefore, although they function in a more sophisticated manner, they are similar to any other weapons platform and the regular concept of commission would be applicable. It would be the programming in of the committing of the crime that would constitute the actus reus and should therefore be seen as any other form of direct perpetration. This could be different in the case where aws further develop and something like an ethical core is included within the system allowing for the ­possible rejection of illegal orders. In such a case there is no longer the singular ­outcome, consequently complicating the perception of these systems as merely tools who act without a choice. It is however difficult to imagine a situation where such an ethical core could not potentially be circumvented or overruled, whether as an intentional design decision or as a general consequence of programming systems to follow commands. Regardless, in the context where there is direct human involvement through programming or commanding a system to act in a criminal manner, the concept of direct perpetration would remain the most appropriate. Although indirect perpetration concerns the form of perpetration where an individual uses another individual as a tool to commit the crime, it is because the physical actus reus is being committed by another individual human that it necessitates a different form of responsibility. Because aws are not considered

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as actual human beings there is no need to further complicate the situation and would more appropriately be resolved by relying on the concept of direct perpetration, mainly due to the direct link between the instruction and the perpetration. Indirect perpetration seeks to address the situation where another individual is used as a tool, while in this case it is more appropriate to consider a tool being used as it is intended, albeit for unlawful purposes. This approach appears to be correct, especially when considering that when living beings other than humans are employed in a crime, this does not alter the applicability of direct perpetration. What is important to discuss in this context is how to interpret the commands given to an aws when employed. In common parlance and much of the current discussion it is often stated that these systems are ordered to do so. This could result in the assumption that perhaps the mode of responsibility of ordering or even indirect perpetration would be the more appropriate mode of responsibility to apply. The issue with these two concepts is that they require the commission of a crime through another individual. As has been determined in the case of ordering: ‘the person instructs another person in any form to either: (i) commit a crime which in fact occurs or is attempted or (ii) perform an act or omission in the execution of which a crime is carried out’.184 There is the use of ones position to convince another to commit an offence.185 This is not exactly the situation that occurs with an aws, as it is not necessarily the position that an individual has that offers powers over the actions of the system, but it is more that the system itself is a mechanical system with the inherent limitation of its programming and commands, it cannot step beyond these regardless of the position of the individual that instructs it. Due to this direct influence and direct relation between the acts and mens rea of the person that employs the system and the outcome of the criminal act, it is more appropriate to retain the close connection that exists in the context of direct perpetration. While it is not my belief that it is necessary to refer to the concept of indirect perpetration in such context, indirect perpetration might respond to some 184 Prosecutor v. Ntaganda, icc-​01/​04-​02/​06 icc Pre-​Trial Chamber ii, Decision on the Confirmation of Charges, ¶ 145 (International Criminal Court 9 June 2014). 185 Prosecutor v. Jean-​Paul Akayesu, Case No. ictr-​96-​4, Trial Chamber, Judgment ¶ 483 (International Criminal Tribunal for Rwanda 1 June 2001); Prosecutor v. Mucić et al., Case No. it-​96-​21, Trial Chamber, Judgment ¶ 281 (International Criminal Tribunal for the Former Yugoslavia 16 November 1998); Prosecutor v. Kordić & Čerkez Case No. it-​95-​14/​2, Trial Chamber Judgment, ¶ 388 (International Criminal Tribunal for the Former Yugoslavia 26 February 2001); Prosecutor v. Krstić Case No. it-​98-​33, Trial Chamber Judgment, ¶ 601 (International Criminal Tribunal for the Former Yugoslavia 2 August 2001).

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issues that might arise in the future. One argument that can be made against the application of direct perpetration is that for a system to be truly autonomous it ought not to be restricted by its programming as to directly implement any instruction it receives. If this is the case, then direct perpetration would not be an appropriate theory of responsibility as the concrete link between the actions of the person employing the aws and the later outcome are not as closely linked as should be the case for direct perpetration. Under this circumstance the concept of indirect perpetration might offer a solution. Since indirect perpetration requires the use of another individual as a tool to enact the indirect perpetrators will, who thereby retains control over the act, this could by analogy be applied to the case of aws, where the weapon system, due to its sophistication and intelligence, is placed in the role of the one who is used by the indirect perpetrator. Unlike joint perpetration this does not mean a relation of equals, but rather of one using another to enact their will. The main difference that allows for indirect perpetration unlike joint perpetration is the fact that indirect perpetration can take place even in the case where the one who commits the physical act can be considered as not criminally responsible. As discussed, aws can generally not be considered as criminally responsible entities, even if future sophistication allows for the existence of mens rea in these systems, they would still be precluded from the jurisdiction of the icc. However, by not requiring another criminally responsible party this obstacle is not present in the case of indirect perpetration. Therefore, if future aws need to be seen as more than just simple weapon systems, but having some form of intelligence and therefore being some form of actor t­ hemselves, indirect perpetration could overcome the issue of criminal responsibility in those cases where the crimes occur due to the intentional programming or instruction of these crimes. 7.2 No Direct Human Involvement The relative simplicity to determine criminal responsibility in these situations is generally accepted, but the questions concerning criminal responsibility do not originate from this scenario. The discussion revolves more around the situation where the criminal act is not programmed or commanded, but where the aws acts in a truly autonomous manner and acts, irrespective of its programming or commands, in a criminal manner. 7.2.1 Direct Perpetration It has been suggested by some that the person employing the aws should be held accountable as the operator of any other weapon system, thus favouring the notion that direct perpetration would be the most appropriate response

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even in these situations. The argument that the person who employs the system has committed the actus reus could be made by referring to the choice to employ the system. If one views the system as similar to any other weapons platform this choice would be the correct point of viewing the commission of the actus reus. While this approach certainly can be said to have a certain  inherent pull, there are significant issues that would be difficult to overcome. The main issue does not lie in the actus reus but in the mens rea. Because in order to hold the individual employing the aws accountable it must be proven under art. 30 icc Statute that they have both the knowledge and the intention to commit this crime, while with aws the issue is that the commission of the crime was not foreseen nor was it intended. Unlike in the context where the crime itself was a programmed objective or a necessary outcome of the programmed objective in the case where it occurs due to the functioning of the aws, due to its own decision-​making process, there is no direct link  between  the action and the mens rea of the individual employing the system. The argument could be made that by employing the system, especially if there is the knowledge of malfunctions or uncertainties about its functioning, the employment itself could be said to constitute the acknowledgement and acceptance of the risk of the commission of crimes. The problem with this reasoning is that it would not be applicable in the context of the icc due to the Courts rejection of dolus eventualis as a potential ground for criminal responsibility. This therefore precludes the application of direct perpetration in those cases where the commission of crimes was not directly programmed or commanded, as there would not be enough knowledge, much less anything that can be considered as intent above the level of dolus eventualis. 7.2.2 Joint Perpetration It should be clear from the notion of joint perpetration together with the previously discussed impossibility to hold the aws as a perpetrator that it is impossible to apply the concept of joint perpetration to this context. Joint perpetration, as discussed requires the working together of two or more perpetrators on the basis of essential contributions by each. Since aws cannot be considered as perpetrators, it is therefore impossible for there to be more than one perpetrator, if it requires the aws to be qualified as a perpetrator. This can therefore not be applied in the context where the aws on its own volition acts in a manner which would be criminal if done by a human. There might be an argument that in the case where an aws is programmed or instructed to commit a crime joint perpetration might play a role. This is

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especially the case where the system is programmed in such a manner as to allow the commission of crimes. Since the production of these systems require the contributions of a wide variety of individuals, such as many programmers, developers and the individuals that employ the system, it could be argued that all of them make essential contributions to the ultimate commission of the crime. While they might make essential contributions they would lack the required mens rea to hold them accountable as they are too far removed from the ultimate decision to commit the crime, since aws would be developed for a general purpose. 7.2.3 Indirect Perpetration Indirect perpetration generally seeks address those cases where an indirect perpetrator enforced their will on the physical perpetrator in order to achieve an intended goal. This would therefore indicate that the concept would not be applicable in those cases where aws are not directly instructed to commit crimes. While this does not normally appears to be the case, Kai Ambos has argued that, in the context of Organisationsherrschaft, crimes could be attributed to indirect perpetrators as long as they are committed within the context of the objectives of the organization.186 It also appears that this was the approach taken by the ptc in Katanga when it attributed the sexual offences after the attack to the accused.187 There is therefore some indication that crimes that fall outside of what is explicitly ordered could potentially fall within the scope of indirect perpetration. As this has only been stated in the context of Organisationsherrschaft, it would need to be determined whether such a context would be applicable to aws. These systems, at least how they are envisioned currently, will generally be employed by state militaries or non-​ military groups, it therefore would not be too difficult to ascertain the existence of a hierarchal relationship as well as the existence of an organized structure of power. The next question is whether there is a functional automatism on the basis of this organized structure of power. It is clear that there should be a functional automatism to follow orders by aws by their very nature, but this is not strictly related to the organization. This question becomes especially tricky when one considers that such crimes are committed outside of the scope of 1 86 Ambos (n 108) 150. 187 Prosecutor v. Katanga and Ngudjolo Chui, icc-​01/​04-​01/​07-​717 Pre-​trial Chamber i, Decision on the Confirmation of Charges, ¶ 567–​569 (International Criminal Court 01 October 2008). While again not explicitly stated, this seems to also be the approach taken in the Ntaganda Trial Judgment; Prosecutor v. Ntaganda, icc-​01/​04-​02/​06 icc Trial Chamber vi, Judgment, ¶ 1186–​1187 (International Criminal Court 8 July 2019).

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what is ordered. As discussed, there is some indication in the Confirmation of Charges for Katanga and Chui that this might be possible, since the ptc refers specifically to the training regimes as creating a propensity for violence. It could be argued that the programming can be viewed as similarly to training regimes and that by not programming in restrictions to ensure the non-​committing of crimes, such a propensity of violence is created. However, it would appear unlikely that this approach would be followed by the icc, this is that although the exact reasoning of the ptc in this regard has not been directly addressed by later decisions, later decisions have reiterated and clearly remarked on the fact that dolus eventualis is explicitly rejected by the icc. Therefore, in the case of indirect perpetration there is the need to follow art. 30 icc Statute including requiring knowledge and intent. In the context of crimes being committed outside of the intention of the individuals employing the aws it would therefore be impossible to hold individuals accountable on the basis of indirect perpetration and the ruling of the ptc in this regard should be viewed as flawed and an anomaly. 8

Conclusion

The modes of responsibility included in art. 25(3)(a) icc Statute do create an opportunity to hold individuals accountable for crimes to be committed by aws, however only in certain circumstances. If one views these systems as regular weapon systems, restricted by their programming and instructions it seems most appropriate to view the aws as any other tool and consider those who program or instruct these systems to commit the crimes as direct perpetrators. If these systems however develop further and should be considered as something closer to humans and being gifted with some form of consciousness, thereby no longer being completely restricted by their programming or instructions, these should be viewed in a similar manner as how human beings that are used as tools to commit crimes are viewed and as such indirect perpetration would be the most appropriate approach, especially seeing as indirect perpetration is possible even in those cases where the physical perpetrators are themselves not criminally responsible, which would the case with aws. However, these concepts of responsibility do not appear to be directly applicable to those cases where the crimes were not intentionally programmed or instructed, in these cases it cannot be argued to be a form of perpetration as the necessary mens rea would not exist since there is no clear intention to commit these crimes. There is thus the need to consider further and focus on a

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concept of responsibility which allows for the imposition of criminal responsibility, even in those cases where there is no evidence of clear intention to have these crimes being committed. The next chapter will therefore focus on the issue of superior responsibility.

­c hapter 8

Superior Responsibility 1

Introduction

The forms of responsibility that have been discussed seem inadequate at dealing with the issue of aws, therefore it is necessary to turn to a form of accountability that is not included within art. 25(3) icc Statute, namely superior responsibility, which is included in art. 28 icc Statute. This is an important mode of responsibility to consider as it is perhaps the form of responsibility that is most commonly referred to when discussing the issue of responsibility for aws.1 It is therefore imperative to consider the concept of superior responsibility in detail in order to determine whether this form of responsibility could be applicable to aws from either a practical or conceptual position. Superior responsibility differs in several significant regards from other forms of individual criminal responsibility that have been discussed. It firstly is perhaps the only truly international mode of individual responsibility and due to that is somewhat distinct from the other forms of responsibility. Secondly, the nature of criminal responsibility under this form of responsibility is quite distinct as in many regards it goes against the view of how many envision criminal responsibility in general. This has led to superior responsibility being quite controversial, especially, as will be shown, in how the different constitutive elements of the concepts have been interpreted. Unlike most other forms of criminal responsibility, especially in international criminal law, superior responsibility is based on an omission, namely the failure of a superior to take necessary and reasonable steps to prevent or punish offences. At the same time this omission creates the responsibility for an international crime, even though the superior did not themself commit this crime. This has led to a significant debate on many of the different elements, especially with regard to

1 See e.g. Bonnie Docherty, ‘Mind the Gap: The Lack of Accountability for Killer Robots’ (Human Rights Watch 2015) 20–​ 25; Peter Margulies, ‘Making Autonomous Weapons Accountable: Command Responsibility for Computer-​ guided Lethal Force in Armed Conflicts’ Roger Williams University School of Law Legal Studies Research Paper 166, 2016; Charles Dunlap, ‘Accountability and Autonomous Weapon: Much Ado about Nothing?’ (2016) 30(1) Temple International & Comparative Law Journal 63 70–​71; Carrie McDougall, ‘Autonomous Weapon Systems and Accountability: Putting the Cart Before the Horse’ (2019) 20 Melbourne Journal of International Law 58, 77–​78.

© Barry de Vries, 2023 | DOI:10.1163/9789004524316_009

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the appropriate mens rea, as superior responsibility can be said to not require a similar level of intent as is required for other forms of criminal responsibility.2 It is therefore necessary to discuss in detail how this mode of responsibility has developed and how it is to be interpreted in order to determine whether this form of responsibility would be appropriate and effective in the context of aws. To be able to do so this chapter will follow the development of superior responsibility, how it came to be as well as how it developed further in order to understand the manner in which it is applied in the icc as well as the underlying rationale behind the concept. This chapter will therefore start with outlining the broad historical underpinnings of superior responsibility before turning to its first application in post-​World War ii tribunals. It will then discuss the first codification of what can be considered superior responsibility, within the Second Additional Protocol. A significant focus will then be given to the inclusion of superior responsibility in the statutes of the ad hoc Tribunals and the application by the ad hoc Tribunals, as much of the interpretation of the concept within the icc has been based on the jurisprudence of the ad hoc Tribunals. This chapter continues with discussing the codification of this mode of responsibility within the icc Statute, focused on the aspects that differ from the previous understandings of the concept. As with all chapters that have focused on the issue of responsibility, this chapter will finish with a discussion of whether this mode of responsibility would be applicable to the circumstances of aws committing crimes and if so in what situations this would be potentially the case. Before turning to the historical development of the concept it is ­important to first clarify what is being discussed when the term superior responsibility is used. The terms superior responsibility and command responsibility have been and still are often used interchangeably, both in the literature and the jurisprudence. These terms generally refer to the same concept, but command responsibility needs to be understood as the application of the concept to military and military-​like superiors, while superior responsibility is more neutral to the individuals it applies to.3 In this chapter it is opted to use the term superior responsibility for the general use of the term, while the term command responsibility will be used in the more restricted form for the

2 Jenny Martinez, ‘Understanding Mens Rea in Command Responsibility’ (2007) 5 Journal of International Criminal Justice 638–​664, at 642. 3 Gideon Boas, James L Bischoff & Natalie L Reid, International Law Practitioner Library: Volume i (Cambridge University Press 2010) 144.

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application of this theory within the context of military or military-​equivalent situations. The term superior responsibility has also not always been used in a consistent manner by all of the literature, with some distinguishing between two forms of superior responsibility, so-​called direct superior responsibility and indirect superior responsibility.4 This chapter will be restricted to the notion of indirect superior responsibility, as what these authors refer to as direct superior responsibility would generally fall within the concept of ‘ordering’,5 which has been addressed in the context of Chapter 7, due to the use of the term ‘ordering’ in the context of aws. 2

Early History

The underlying principle of superior responsibility in the context of military organizations can be said to be one of the longest standing military principles. Its roots can be traced back to early writings on military issues, such as Sun Tzu’s ‘art of war’. In this he stated that ‘when troops flee, are insubordinate, distressed, collapse in disorder or are routed, it is the fault of the general. None of these disorders can be attributed to natural causes’.6 He continued this by explaining that commanders should be responsible for the failures of those under their command.7 While this could be argued to refer more broadly to the duties of a commander, the underlying rationale of a superiors responsibility for their subordinates can be identified. Clearer in their relation to the modern interpretation of superior responsibility as a form of individual responsibility are western sources from the past few centuries. There have been the writings of Grotius, where he stated that ‘a community, or its rulers, may be held responsible for the crime of a subject if they knew it and do not prevent 4 Robert Cryer, ‘The Ad Hoc Tribunals and the Law of Command Responsibility: A Quiet Earthquake’ in: Chane Darcy & Joseph Powderly, Judicial Creativity at the International Criminal Tribunals (Oxford University Press 2010) 172. 5 Greg Vetter, ‘Command Responsibility of Non-​Military Superior in the International Criminal Court (ICC)’ (2000) 25(1) Yale Journal of International Law 89–​143, 97; M Cherif Bassiouni, Introduction to International Criminal Law (Martinus Nijhoff Publishers 2014) 332. 6 William H Parks, ‘Command Responsibility For War Crimes’ (1973) 62 Military Law Review 1, 3. 7 Parks (n 6) 4; Michael A Newton & Casey Kuhlman, ‘Why Criminal Culpability should Follow the Critical Path: Reframing the Theory of ‘Effective Control’’ (2009) xl Netherlands Yearbook of International Law 3, 6; Patrick Walsh & Joshua F Berry, ‘Expanding Command Responsibility: The Application of the Doctrine of Command Responsibility to Human Rights Law’ (2016) 11 Liberty University Law Review 423, 426.

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it when they could and should prevent it’.8 But this idea was not only found in legal scholarship, there have also been consistent references to the principle in legal instruments addressing the military, such as the 1439 Ordinance of Orleans,9 the 1621 Swedish Articles of Military Laws to be Observed in the Wars, and the 1775 American Articles of War.10 However, even though the underlying rationale can be seen throughout the centuries, this only concerned general obligations for military commanders and did not clearly include any kind of criminal accountability of commanders for their subordinate’s crimes. This does not mean that there were no indications of a potential to hold commanders accountable for crimes of their subordinates, while these were quite uncommon, there have been some instances where commanders had been held accountable. The case that is most frequently referred to is the case of Peter von Hagenbach, who in 1474 was held responsible for the crimes committed by his troops that he had failed to prevent. He was convicted of murder, rape and other crimes, on the basis of this failure.11 Thus, while there is some indication that some concept existed where a military commander was accountable for the actions of his troops, it is very questionable whether this can be viewed in a manner that is similar to the concept of superior responsibility as it is understood today, as a form of individual criminal responsibility. It has therefore been stated that understanding this historical origin is of limited value to determine the concept of superior responsibility as it is currently understood.12 There are certainly differences between the concepts, however it is important to see the origin of the concept to ascertain how its current form came to be. The clearest foundational link between the traditional understanding and the modern concept can be found in the 1907 Hague Regulations. These 8 9 10

11 12

Parks (n 6) 4; L C Green, ‘Command Responsibility in International Humanitarian Law’ (1995) 5 Transnational Law & Contemporary Problems 319, 321; Walsh & Berry (n 7) 426–​427. Green (n 8) 321; Newton & Kuhlman (n 7) 18. Parks (n 6) 5; Green (n 8) 321–​322; Bing Bing Jia, ‘The Doctrine of Command Responsibility in International Law with Emphasis on Liability for Failure to Punish’ (1998) 45(3) Netherlands International Law Review 325, 326–​327; Emily Langston, ‘The superior responsibility doctrine in international law: Historical continuities, innovation and criminality: Can East Timor’s Special Panels bring militia leaders to justice?’ (2004) 4 International Criminal Law Review 141, 149–​150; Boas, Bischoff & Reid (n 3) 145–​146. Parks (n 6) 4–​5; Langston (n 10) 149; Boas, Bischoff & Reid (n 3) 145; Walsh & Berry (n 7) 427. Mirjan Damaška, ‘The Shadow Side of Command Responsibility’ (2001) 49(3) The American Journal of Comparative Law 455, 485.

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include an important provision that obliges states to ensure that the military, as well as militia, are to be ‘commanded by a person responsible for his subordinates’.13 While this does not immediately makes clear what is meant and looking at it with modern sensibilities might lead one to believe the concept of superior responsibility was already somewhat fully formed by that time, the reality is that at the time this was not understood to be an imposition of criminal responsibility on the commander, but rather an obligation towards states.14 It is however a clear link between the then already existing military standard and the modern legal concept and thereby reflects the basis for the subsequent development of superior responsibility, as it lays the legal foundation for what will become the lynchpin for superior responsibility, namely the notion of responsible command.15 The second important step towards the modern understanding of superior responsibility can be found at the end of the First World War. During the 1919 Preliminary Peace Conference a commission was set up to address the question of responsibility for the war and crimes committed during it.16 The report of this commission recommended the establishment of an international tribunal to prosecute certain individuals, this included jurisdiction for cases where a commander, who had actual knowledge of a subordinate’s crime, abstained ‘from preventing or taking measures to prevent’ violations of the laws and customs of war.17 This is strikingly similar to the general concept 13

14 15

16 17

Green (n 8) 325; Jia (n 10) 327; Bassiouni (n 5) 338; Allison Marston Danner & Jenny Martinez, ‘Guilty Associations: Joint Criminal Enterprise, Command Responsibility and the Development of International Criminal Law’ (2005) 93(1) California Law Review 75, 122; Boas, Bischoff & Reid (n 3) 146–​147. Lou Ann Bohn, ‘Proceeding with Caution Under Article 28: AN Argument to Exempt Non-​Governmental Civilians From Prosecution on the Basis of Command Responsibility’ (2004) i Eyes on the icc 1, 3. Joakim Dungel & Shannon Ghadiri, ‘The Temporal Scope of Command Responsibility Revisited: Why Commanders Have a Duty to Prevent Crimes Committed After the Cessation of Effective Control’ (2010) 17 University of California, Davis Journal of International Law and Policy 1, 13; Alejandro Kiss, ‘25 Command Responsibility under Article 28 of the Rome Statute’ in: Carsten Stahn (ed.) The Law and Practice of the International Criminal Court (Oxford University Press 2015) 609–​610; Chantal Meloni, ‘The Evolution of Command Responsibility in International Criminal Law’ in: Morten Bergsmo, Cheah Wui Ling, Song Tianying & Yi Ping, Historical Origins of International Criminal Law: Volume 3 (Torkel Opsahl Academic EPublisher 2015) 687–​688; Walsh & Berry (n 7) 430–​431. The Commission on Responsibilities of the Authors of the War and on Enforcement of Penalties. Green (n 8) 322–​323; Bohn (n 14) 3; Bassiouni (n 5) 338; Dungel & Ghadiri (n 15) 13–​14; Gideon Boas, ‘Command Responsibility for the Failure to Stop Atrocities: The Legacy of the Tokyo Trial’ in: Yuki Tanaka et al. (eds.) Beyond Victor’s Justice? The Tokyo War Crimes Trial Revisited (Koninklijke Brill nv 2011) 168–​169; Meloni (n 15) 684–​685.

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of superior responsibility as it would later be implemented in international criminal law, however it was never adopted within an actual legal instrument at the time. The outcome of the report was the inclusion of several provisions in the Versailles treaty discussing the potential prosecution of individuals, but this only referred to an international tribunal in the case of Kaiser Wilhelm ii, while other cases would be tried before national tribunals in Germany and Turkey.18 None of these provisions nor the statutes of the relevant tribunals mentioned the concept of holding commanders responsible for these types of omissions. These provisions did not really result into anything, with Wilhelm ii not being extradited by the Netherlands and the national proceedings against others only trying a handful of individual officers.19 3

Post-​World War ii Jurisprudence

Although there were some indications that a concept such as superior responsibility was at least in the process of being developed after World War i, there was no clear indication of individual responsibility following from the principle of responsible command before World War ii. It was only until the different tribunals after World War ii that the concept of superior responsibility as a mode of criminal responsibility was truly developed. This was mainly done as a response to the particular facts of different crimes that had been committed during the war. What first needs to be made clear is that no indication of the concept can be found in any of the statutes of the different tribunals, instead it was developed through the caselaw of these tribunals.20 The tribunals developed the concept as a response to the fact that traditional modes of responsibility could not always be established against persons in leadership positions, but that it was specifically these individuals for whom some form of responsibility was considered most appropriate.21 The fact that it was developed through caselaw rather than any form of codification has led to consistent criticisms against the use of this concept by the post-​World War ii tribunals and whether or not they acted contrary to the principle of nullum crimen sine lege. It was not only these tribunals that developed the concept of superior responsibility, but as a 18 19 20 21

Green (n 8) 322–​323; Bohn (n 14) 3; Bassiouni (n 5) 338; Dungel & Ghadiri (n 15) 13–​14; Boas (n 17) 168–​169; Meloni (n 15) 684–​685. Green (n 8) 323; Bohn (n 14) 3. Damaška (n 12) 485; Martinez (n 2) 647. Kiss (n 15) 611.

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response to the crimes committed during the war, different national legislations adopted similar concepts that could be viewed as a kind of ‘command responsibility’.22 3.1 Yamashita The case that first developed the contours of the modern theory of superior responsibility was Yamashita v. US, first before a US Military Commission and subsequently before the US Supreme Court.23 This case concerned the prosecution of Japanese general Tomoyuki Yamashita for crimes that had been ­committed by his men against the Philippine civilian population and against prisoners of war. He was charged before a US military commission on the authority of general Douglas MacArthur.24 One of the main problems to hold Yamashita accountable was that the general did not himself commit the crimes, nor was there any evidence that pointed towards him ordering his troops to commit these crimes, he was therefore charged on the basis of him not having prevented these crimes. This was predicated on the notion that commanders could be held accountable if they failed to carry out their duty to control the operations of the members of his command.25 The defence of Yamasahita responded by arguing that Yamashita was no longer able to remain in contact with his troops due to the effectiveness of the American operations in cutting the lines of communication and that he therefore had no knowledge of the crimes committed, nor was he in a position to exercise control over his troops.26 The military commission held Yamashita responsible and sentenced him to execution. It based the conviction on the following reasoning: where murder and rape and vicious, revengeful actions are widespread offences, and there is no effective attempt by a commander to discover and control the criminal acts, such a commander may be held responsible, even criminally liable, for the lawless acts of his troops, depending upon their nature and the circumstances surrounding them.27 22 23 24 25 26 27

Parks (n 6) 16–​19. U.S. Supreme Court, In Re Yamashita, 27 U.S. 1, 66 S. Ct. 340, 90 L. Ed. 499, 1946 (4 February 1946). Order of General MacArthur of September 24, 1945. Parks (n 6) 23; Green (n 8) 336; Michael L Smidt. ‘Yamashita, Medina and Beyond: Command Responsibility in Contemporary Military Operations’ (2000) 164 Military Law Review 155, 180; Boas, Bischoff & Reid (n 3) 153. Parks (n 6) 24; Green (n 8) 336. U.S. Supreme Court, In Re Yamashita, 27 U.S. 1, 66 S. Ct. 340, 90 L. Ed. 499, 1946 (4 February 1946).

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The reason that the commission gave as to why a commander could, under circumstances, be held responsible for the actions of his troops was because of the broad powers given to military commanders for the maintenance of discipline and control over their troops. Because of these broad powers military commanders have a concurrent duty to exercise the control with which they have been authorized and a failure to maintain this control signifies a breach of the commanders’ duty, which allows for the imposition of criminal responsibility.28 While this provided a foundation for criminal responsibility, it did not address the argument of the defence that Yamashita did not have any knowledge of the crimes. The commission dealt with this argument by referring to the widespread nature of the crimes, which according to the commission put Yamashita on notice of the crimes.29 In response to the conviction and the death sentence Yamashita entered a habeas corpus petition before the US Supreme Court.30 The Supreme Court addressed the petition and, in the end, rejected it. One of the arguments put forth by the defence was that no crime had been committed by Yamashita, as he had neither committed nor directed the commission. The Supreme Court dismissed this claim stating that ‘this overlooks the fact that the gist of the charge is an unlawful breach of duty by petitioner as an army commander to control the operations of the members of his command by ‘permitting them to commit’ the extensive and widespread atrocities specified’.31 The question was therefore not whether he had personally committed or directed the commission, but rather whether there existed a duty within the laws of war for a military commander to take measures, that are within their power, to control troops under their command and therefore to prevent such crimes from being committed by their troops. The Supreme Court argued that this duty could be found in the 1907 Hague Conventions as well as the 1929 Geneva Convention and if this duty is breached the commander ‘may be charged with personal responsibility for his failure to take such measures when violations result’.32 28 29 30 31 32

Jia (n 10) 330–​331. Parks (n 6) 25–​30; Boas (n 17) 169–​170. Kai Ambos, ‘Superior Responsibility’ in Antonio Cassese, Paola Gaeta & John R W D Jones (eds.) The Rome Statute of the International Criminal Court (Oxford University Press 2002) 808; Dungel & Ghadiri (n 15) 14. U.S. Supreme Court, In Re Yamashita, 27 U.S. 1, 66 S. Ct. 340, 90 L. Ed. 499, 1946 (4 February 1946). U.S. Supreme Court, In Re Yamashita, 27 U.S. 1, 66 S. Ct. 340, 90 L. Ed. 499, 1946 (4 February 1946); Parks (n 6) 34; Michael Kelly, ‘Grafting the Command Responsibility Doctrine onto Corporate Criminal Liability for Atrocities’ (2010) 24 Emory International Law Review 671,

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What was more contentious for the judges. and what has caused the most discussion since then, was the question about the necessary mens rea a commander had to have to be responsible for the actions of his subordinates. The main question was what standard of knowledge needed to be applied to the concept of command responsibility. The standard that was ultimately adopted by the Supreme Court has been argued to potentially be strict liability, or at least something close to strict liability due to the use of the term ‘should have known’.33 Others have argued that this should not be taken as imposing strict liability, but rather that the standard of ‘should have known’ was applied as both the military commission and the Supreme Court did not believe the pleas of ignorance of general Yamashita. Due to the circumstances of the case, it was held to be impossible for the general to truly be ignorant of the fact that crimes were being committed and even if he was ignorant, this could only be the case if he was wilfully remaining ignorant.34 The judgments of both the commission as well as the Supreme Court have, to this day, received significant criticism about the application of the law, the lack of protection of the rights of the accused and the potential influence that ideological-​racial prejudice and resentment from the war might have played in the decision.35 While many of these, as well as other criticisms against the Yamashita-​judgment, are certainly warranted, this does not negate the significant precedential value of the judgment as well as the historic and symbolic effect it has had on the development of superior responsibility. To this day it is the seminal moment for superior responsibility and has influenced every subsequent decision on the issue, as it can be argued that all subsequent judgments and developments have been, in some manner, a response to the judgment in the Yamashita-​case, whether in concurrence or in opposition to the interpretation of superior responsibility in this case.36

33 34

35 36

676. This was uniformly accepted by all the Supreme Court Justices, even those that dissented from the overall judgment. Martinez (n 2) 648. Langston (n 10) 151; Martinez (n 2) 649; Michael J Sherman, ‘Standards in Command Responsibility Prosecutions: How Strict, and Why?’ (2018) 38(2) Northern Illinois University Law Review 298, 302. Smidt (n 25) 181; Monica Feria Tinta, ‘Commanders on Trial: The Blaškić Case and the Doctrine of Command Responsibility under International Law’ (2000) 47(3) Netherlands International Law Review 293, 310–​311; Danner & Martinez (n 13) 124; Martinez (n 2) 649; Kai Ambos, ‘21 Superior Responsibility’ in: Antonio Cassese, Paola Gaeta, John R W D Jones (eds.) The Rome Statute of the International Criminal Court (Oxford University Press 2015) 828. Ambos (n 30) 809; Ambos (n 34) 827. Danner & Martinez (n 13) 124; Martinez (n 2) 650.

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International Military Tribunal for the Far East 3.2 The concept of superior responsibility was not included within the prosecution of war criminals before the imt, but it was applied and further developed in the context of the imtfe. The statute of the imtfe did not include any reference to the concept of superior responsibility, however the indictment of the defendants at the imtfe included a specific charge under Count 55 which alleged ‘recklessly disregarded their legal duty to take adequate steps to secure the observance and prevent breaches’ of the laws of war.37 Although this was not an exact replication of the concept applied by the US Supreme Court it can be seen as a clear reference to the general concept of superior responsibility as it was understood at the time. The Tribunal described in its judgment how it interpreted the concept of what would come to be known as superior responsibility, when it held that superiors could be held responsible if ‘they had knowledge that crimes were being committed, and having such knowledge they failed to take such steps as were within their power to prevent the commission of such crimes in the future, or 2) they are at fault in having failed to acquire such knowledge’.38 The imtfe based the duty to take steps to prevent the commission on the understanding that this was a rule of customary international law and embedded in the 1907 Hague Convention and the 1929 Geneva Convention.39 There was therefore a pre-​existing legal duty that was breached if superiors did not take measures. This was similar to the approach taken by the US Supreme Court in the Yamashita-​case. The Tribunal also made explicitly clear what level of mens rea it considered sufficient to hold a superior accountable when it stated ‘If he knew, or should have known, by use of reasonable diligence, of the commission by his troops of atrocities and if he did not do everything within his power and capacity under the existing circumstances to prevent their occurrence and punish the offenders, he was derelict in his duties’.40 37

38 39 40

International Military Tribunal for the Far East Judgment of 4 November 1948: in John Pritchard and Sonia M Zaide (eds.), The Tokyo War Crimes Trial, Vol. 22, 424; Yaël Ronen, ‘Superior Responsibility of Civilians for International Crimes Committed in Civilian Settings’ (2010) 43 Vanderbilt Journal of Transnational Law 313, 321. International Military Tribunal for the Far East Judgment of 4 November 1948: in John Pritchard and Sonia M Zaide (eds.), The Tokyo War Crimes Trial, Vol. 22, 445; Dungel & Ghadiri (n 15) 14–​15. Parks (n 6) 65. International Military Tribunal for the Far East Judgment of 4 November 1948: in John Pritchard and Sonia M Zaide (eds.), The Tokyo War Crimes Trial, Vol. 22; Boas, Bischoff & Reid (n 3) 161–​162.

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Several military commanders were prosecuted before the imtfe on the basis of count 55, with most of them being convicted for this count, amongst them generals Hata, Kimura, Matsui and Muto. The imtfe held that they had breached their duty to control their troops, similar to what general Yamashita was convicted for, this duty was especially breached in the context of the ill-​ treatment of prisoners of war and civilian internees.41 In these convictions the imtfe followed the approach taken by the military commission and the Supreme Court in Yamashita and therefore did not provide much further development of superior responsibility. One of the few acquittals for count 55 can be found in the case against admiral Soemu Toyada. In this case, the imtfe clearly seemed to indicate that the notion of strict liability was not applicable to superior responsibility, as the tribunal explicitly stated that an individual could only be convicted under superior responsibility if they ‘knew or should have known by use of reasonable diligence’ of the commission of crimes by subordinates. As this could not be proven to a sufficient degree, admiral Toyoda was acquitted for this count.42 The imtfe greatly expanded the concept of superior responsibility by applying the concept not only to military commanders but to civilian political leaders as well. Although the legal foundation for the duty in the Yamashita-​ case was the duty of a military commander to control their troops, the imtfe determined that the concept of superior responsibility could be applied to both military commanders as well as civilian superiors. Multiple individuals were held responsible at the imtfe on the basis of superior responsibility, even though they could not be considered as military commanders. Among these was foreign minister Hirota, who was held accountable for his failure to punish or prevent war crimes that occurred during the ‘Rape of Nanking’. This was controversial because as the minister of foreign affairs he had no direct power over the individuals that had committed the crimes. Hirota had even reported the reports he had received on committed crimes to the War Ministry and had received assurances that the atrocities would stop.43 Even though he had received these assurances, the atrocities continued and, according to the imtfe, Hirota ‘was content to rely on assurances which he knew were not being implemented’.44 The imtfe held that he could be held responsible for this because he did not insist ‘before the Cabinet that 41 42 43 44

Parks (n 6) 68–​69; Jia (n 10) 334. Parks (n 6) 72–​73; Boas (n 17) 168. Ronen (n 37) 321. International Military Tribunal for the Far East Judgment of 4 November 1948: in John Pritchard and Sonia M Zaide (eds.), The Tokyo War Crimes Trial, Vol. 22, 791.

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immediate action be taken to put an end to the atrocities, failing any other action open to him to bring about the same result’.45 The imtfe therefore considered that Hirota had not undertaken the necessary adequate steps he should have taken to attempt to prevent the atrocities.46 The imtfe saw this as a neglect of his duty, even though the perpetrators weren’t under his direct or even indirect command.47 This conviction has received significant criticism, as the imtfe focused primarily on the position held by Hirota, while it did not give significant consideration to the fact that he lacked actual control over the perpetrators.48 The focus on the official position held and the disregarding of the lack of actual control are two aspects that can be seen in most of the convictions of civilian superiors under the concept of superior responsibility at the imtfe. This can for example be seen in the case against Foreign Minister Shigemitsu. Shigemitsu, who was convicted under count 55 because he had undertaken no adequate steps to investigate reports of violations committed against prisoners of war after he had received repeated protests by Allied Powers about this issue.49 The imtfe held him responsible under superior responsibility because he ‘as a member of government, bore overhead responsibility for the welfare of prisoners’.50 As was the case with Hirota, there were no indications that any of the perpetrators were under the direct or indirect command of Shigemitsu, but he was held responsible solely due to his dereliction of duty as a member of the government.51 Also similarly to Hirota, the imtfe found that Shigemitsu had not taken adequate steps and mentioned that it would have been necessary for him to press the matter further, if necessary to the point of resigning and only then could it be said that he had taken adequate steps.52 The reasoning of the imtfe against Prime Minister Koiso Kuniaki was quite similar. He had also issued a directive to the competent authorities prohibiting

45 46 47 48 49 50 51 52

Ibid. Boas, Bischoff & Reid (n 3) 156; Boas (n 17) 170–​171. International Military Tribunal for the Far East Judgment of 4 November 1948: in John Pritchard and Sonia M Zaide (eds.), The Tokyo War Crimes Trial, Vol. 22, 791–​792 Ronen (n 37) 321. Boas, Bischoff & Reid (n 3) 156; Bassiouni (n 5) 349. International Military Tribunal for the Far East Judgment of 4 November 1948: in John Pritchard and Sonia M Zaide (eds.), The Tokyo War Crimes Trial, Vol. 22, 829–​831. International Military Tribunal for the Far East Judgment of 4 November 1948: in John Pritchard and Sonia M Zaide (eds.), The Tokyo War Crimes Trial, Vol. 22, 831; Guénaël Mettraux, The Law of Command Responsibility (Oxford University Press 2009), at 104–​105. Ronen (n 37) 322; Ambos (n 34) 830–​831. Boas, Bischoff & Reid (n 3) 172; Boas (n 17) 171.

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the mistreatment of prisoners of war, however the imtfe did not find this sufficient to determine he had taken adequate steps, since Kuniaki remained in office for six months after this directive while the situation for prisoners of war did not improve. The imtfe therefore held that he could still be seen as being in ‘deliberate disregard of his duty’.53 Looking at these different cases of civilians being held responsible under the concept of superior responsibility it seems to indicate that the imtfe applied a form of collective responsibility for government officials as the basis for the duty that had been disregarded.54 These cases also show the very restrictive view that the imtfe had concerning the notion of adequate steps, especially since it is quite questionable whether the steps that the imtfe proposed would actually in any way be adequate, at the same time it is just as questionable whether or not these steps would actually be realistic. 3.3 Western Prosecutions after World War ii While this shows that the early development of superior responsibility took place within the eastern theatre after World War ii, this does not mean that its development was confined to the eastern theatre. The concept of superior responsibility was not mentioned in the London Charter, nor was it brought up during the imt itself, with all individuals being held accountable on the basis of more direct involvement in the crimes. Superior responsibility did play a significant role in several cases under Control Council Law 10 (ccl10). ccl10 included a provision that allowed for the prosecution of any leader that ‘took a consenting part’ in crimes, it was this provision that allowed the prosecution to go after accused on the basis of the concept of superior responsibility.55 One of the more important cases in this regard was the High Command-​ case, where fourteen senior German officials were charged with, among other crimes, war crimes. As discussed, one of the main points of contention within the Yamashita-​case surrounded the standard of knowledge to be applied and whether a commander has a form of strict liability concerning crimes committed by their subordinates and this issue was brought up in the High Command-​ case. The court in this case made clear that superior responsibility cannot be based on the notion of strict liability and does require some form of personal dereliction, when it stated:

53 54 55

Boas, Bischoff & Reid (n 3) 171–​172; Boas (n 17) 171. Ambos (n 30) 812; Meloni (n 15) 688. Parks (n 6) 18; Smidt (n 25) 175–​176.

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Criminal acts committed by those forces cannot in themselves be charged to him on the theory of subordination. The same is true of other high commanders in the chain of command. Criminality does not attach to every individual in this chain of command from that fact alone. There must be a personal dereliction. That can occur only where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes criminal negligence on his part. In the latter case it must be a personal neglect amounting to a wanton, immoral disregard of the action of his subordinates amounting to acquiescence.56 This makes it clear that in the eyes of the judges the position of command by itself cannot be sufficient to hold a superior accountable if there is no personal dereliction of duty, which precludes the application of a standard of strict liability.57 In the case at hand, one of the main defendants, Wilhelm von Leeb, could not be said to have had the necessary control and therefore there was no personal dereliction and he was consequently acquitted of the charges related to crimes committed by his subordinates.58 The tribunals further elaborated on this issue by stating that ‘the occupying commander must have knowledge of these offences and acquiesce or participate or criminally neglect to interfere in their commission and that the offences committed must be patently criminal’.59 While this seems to indicate that the superior needed to have knowledge of the crimes before they could be held responsible, the tribunal interpreted this as there being an obligation to be aware of the actions of their subordinates. This did not extend to a duty to investigate or take precautions in general, but could probably be more appropriately referred to as an obligation to not remain wilfully blind.60 This means that the tribunal followed a ‘should 56 57 58 59 60

United States Military Tribunal at Nuremberg, United States v. Wilhelm von Leeb et al., in: The United Nations War Crimes Commission, Law Reports of Trials of War Criminals, vol. xii, 1949, 76. Parks (n 6) 42; Jia (n 10) 332–​333; Vetter (n 5) 106; Geert-​Jan Alexander Knoops, ‘The Transposition of Superior Responsibility onto Guerrilla Warfare under the Laws of the International Criminal Tribunals’ (2007) 7 International Criminal Law Review 505, at 512. United States Military Tribunal at Nuremberg, United States v. Wilhelm von Leeb et al., in: The United Nations War Crimes Commission, Law Reports of Trials of War Criminals, vol. xii, 1949; Boas, Bischoff & Reid (n 3) 163–​164. United States Military Tribunal at Nuremberg, United States v. Wilhelm von Leeb et al., in: The United Nations War Crimes Commission, Law Reports of Trials of War Criminals, vol. xii, 1949, 77. Smidt (n 25) 182–​183; Walsh & Berry (n 7) 433; Amy H McCarthy, ‘Erosion of the Rule of Law as a Basis for Command Responsibility under International Humanitarian Law’ (2018) 18(2) Chicago Journal of International Law 553, 559.

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have known’-​standard to determine whether a superior could be held responsible for the crimes committed by their subordinates.61 The High Command-​ case did not only deal with the issue of strict liability but also gave a clear reference for the underlying basis of this form of responsibility, which they described as ‘the duty and responsibility for maintaining peace and order and the prevention of crime rests upon the commanding general’.62 A second important case for the development of the concept of superior responsibility was the Hostage-​case. This case concerned the prosecution of individuals for, among other crimes, the killing of hostages in occupied ­territories, with some of them being prosecuted on the basis of superior responsibility.63 The court first made clear that a superior has some duties concerning control and supervision and that these are the legal duties underpinning superior responsibility. The court continued by stating that if crimes have been committed within the control and supervision of the superior, they have the duty to intervene and attempt to prevent the commission of crimes.64 While the High Command-​case made clear that there was no strict liability, the Hostage-​case gave more insight into the knowledge required. It was argued that there is an obligation to know, or at least investigate further once credible information has been received.65 While in Yamashita the standard of ‘should have known’ was applied, the judges in the Hostage-​case required the reception of concrete information about crimes, thereby applying a far more stringent standard.66 The judgment even explicitly referred to the notion of widespread atrocities being sufficient to presuppose knowledge and differed from the US Supreme Court, by arguing that this on its own could not constitute as evidence establishing knowledge.67 It also made clear that the reception of such information on its own would be enough to presume knowledge, it need not be 61 62

63 64 65 66 67

Boas, Bischoff & Reid (n 3) 164; Bassiouni (n 5) 346–​347. United States Military Tribunal at Nuremberg, United States v. Wilhelm von Leeb et al., in: The United Nations War Crimes Commission, Law Reports of Trials of War Criminals, vol. xii, 1949, 1009, citing United States Military Tribunal at Nuremberg, United States v. Wilhelm List, in: The United Nations War Crimes Commission, Law Reports of Trials of War Criminals, vol. viii, 1949, 69–​70. Martinez (n 2) 650; Boas, Bischoff & Reid (n 3) 162. United States Military Tribunal at Nuremberg, United States v. Wilhelm List, in: The United Nations War Crimes Commission, Law Reports of Trials of War Criminals, vol. viii, 1949, 69–​71. United States Military Tribunal at Nuremberg, United States v. Wilhelm List, in: The United Nations War Crimes Commission, Law Reports of Trials of War Criminals, vol. viii, 1949, 71 Ambos (n 30) 811; Boas, Bischoff & Reid (n 3) 162–​163. Ambos (n 30) 811; Kelly (n 32) 678; Ambos (n 34) 829. Langston (n 10) 152.

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evidenced that the information is actually read.68 In the Hostage-​case there was clear evidence that the reports of killings were passed up the chain of command, which therefore made it possible to determine that the defendants were in possession of the information.69 The judges went further by stating that in the case of occupation there was at least some affirmative duty of a superior to collect information about the conduct of troops in their areas of command, as they considered that a commander ‘is charged with notice of occurrences taking place within that territory. He may require adequate reports of all occurrences that come within the scope of his power and, if such reports are incomplete or otherwise inadequate, he is obliged to require supplementary reports to apprise him of all the pertinent facts. If he fails to require and obtain complete information, the dereliction of duty rests upon him and he is in no position to plead his own dereliction as a defence’.70 While these first two cases concerned military commanders the trials under ccl10 also mode significant development in the application of superior responsibility to civilian superiors, most notably in the Roechling-​case. This case concerned German industrialists who were tried for the mistreatment of forced labourers. The judgment made clear that these industrialists were ‘not accused of having ordered this horrible treatment, but of having permitted it; and indeed supported it, and in addition, of not having done anything in order to have it modified’.71 In the end it was the fact that they had not done their utmost to put an end to these abuses that led to their responsibility.72 The defence attempted to claim that the defendants had no knowledge of the mistreatment and they therefore could not be held accountable for this mistreatment. The tribunal responded to this claim by referring to the duty that a head of a firm had to enquire about the treatment of forced labourers within their firm, therefore if the defendants did not have knowledge of mistreatment this could only be caused by criminal negligence on their part, as there should be enough evidence clearly available to them to put them on notice of possible mistreatment.73 This should be viewed as the tribunal rejecting these claims of 68 69 70 71 72 73

Jia (n 10) 333; Smidt (n 25) 184; Boas, Bischoff & Reid (n 3) 162; Walsh & Berry (n 7) 434. Martinez (n 2) 650. United States Military Tribunal at Nuremberg, United States v. Wilhelm List, in: The United Nations War Crimes Commission, Law Reports of Trials of War Criminals, vol. viii, 1949, 71. General Tribunal of Military Government for the French Zone of Occupation in Germany, Hermann Roechling, Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10 Vol. xiv (US Government Printing Office 1950) 1088. Bohn (n 14) 4; Boas, Bischoff & Reid (n 3) 155–​156. General Tribunal of Military Government for the French Zone of Occupation in Germany, Hermann Roechling, Trials of War Criminals before the Nuernberg Military Tribunals under

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ignorance and arguing that this would amount to wilful blindness, rather than imposing strict liability. 4

Additional Protocol i

Superior responsibility was quickly developed as a mode of responsibility through the cases after World War ii, however like all of international criminal law, there was only limited development in the next decades. There were some infrequent instances in which superior responsibility was brought up in national cases, but these instances did not further develop the concept in any significant manner.74 Even though there was no significant judicial application of the theory, there was one significant development in the decades between World War ii and the creation of the ad hoc Tribunals, namely the inclusion of the concept in ap i. The history of the concept of superior responsibility can be traced back to the military concept of responsible command. It was therefore surprising that it was not included within the original Geneva Conventions but this omission was rectified in ap i. By including superior responsibility, it provided the first clear codification of the concept and thereby a clear treaty basis.75 While the tribunals after World War ii argued that the notion of superior responsibility

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Control Council Law No. 10 Vol. xiv (US Government Printing Office 1950) 1088–​1089; Tinta (n 34) 316; Boas, Bischoff & Reid (n 3) 165–​166. Special attention must be made to the Medina-​case, in which commander Medina was charged on the basis of command responsibility for the crimes committed by his subordinates in the Vietnamese town of My Lai. This case is noteworthy due to the different interpretation given to the concept of command responsibility and especially concerning the required knowledge than was done in the Yamashita-​case. Many consider this the application of double standards of the US with regard to enemy commanders and their own troops and this might well be considered to be the case (Ambos (n 30) 810; Charles Garraway, ‘The Application of Superior Responsibility in an Era of Unlimited Information’ in: Dan Saxon (ed.) International Humanitarian Law and the Changing Technology of War (Koninklijke Brill nv. 2012) 187–​206, at 194; Bassiouni (n 5) 352–​353). What needs to be taken into account however is that the legal standard that was applicable in the cases differed, not only from an interpretative aspect with regard to command responsibility but concerning the actually statutory law that was to be applied by the courts. While this was a double standard, this was not done arbitrarily by the courts, but was required of them due to the legal regime applicable to each case. Smidt (n 25) 194–​195; Trenton W Powell, ‘Command Responsibility: How the International Criminal Court’s Jean-​Pierre Bemba Gombo Conviction Exposes the Uniform Code of Military Justice’ (2017) 225 Military Law Review 837–​881, at 848; Sherman (n 33) 305–​306. Green (n 8) 341; Newton & Kuhlman (n 7) 24; Ronen (n 37) 332; McCarthy (n 60) 560.

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could be read in the provisions obliging responsible command in the Hague Regulations of 1907 as a counterpart for the need of effective command, this was not unequivocally accepted. The inclusion of superior responsibility in ap i solved one of the main critiques levied against the Yamashita-​judgment and other post-​World War ii jurisprudence, namely that there was no legal foundation for the superior’s duty or their criminal responsibility.76 ap i now provided a concrete legal obligation, whereas before this stemmed from the general obligation of a superior to ensure compliance of their subordinates with the laws of war and in certain instances obligations that were not directly related to the superior-​subordinate relationship, such as maintaining order in occupied territory or the protection of the wellbeing of prisoners of war.77 The concept of superior responsibility is included through a combination of two provisions. The first is art. 87(1) ap i which describe how the concept of responsible command should be interpreted and states: The High Contracting Parties and the Parties to the conflict shall require military commanders, with respect to members of the armed forces under their command and other persons under their control, to prevent and, where necessary, to suppress and to report to competent authorities breaches of the Conventions and of this Protocol. This provision establishes the legal duty, the breach of which would create legal responsibility. This duty exists in the obligation to prevent, supress and report the commission of crimes by a commander’s subordinate. This provision needs to be viewed in combination with art. 86(2): The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.

76 77

Ronen (n 37) 332. Ronen (n 37) 332.

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As can be seen this in itself does not create individual criminal responsibility, but rather excludes the potential defence of a superior that the crimes had been committed by their subordinates. These two provisions have since formed the basis for the further development of superior responsibility and contains all elements that are the cornerstone of superior responsibility. Art. 8(2) ap i includes three basic requirements that are still used to determine whether an individual can be held responsible on the basis of superior responsibility. The first of these is the foundation for this form of responsibility, namely the existence of a superior-​subordinate relationship between the person who commits the crime and the individual to be held responsible. The second is that the superior failed to take feasible measures to prevent or repress the breach of the conventions, this is the breach of legal duty that allows for omission liability. The third requirement concerns the mens rea, under art. 86(2) ap i the superior needs to either know or have information which should have enabled them to conclude that the crime was committed, was being committing or was going to be committed. During the negotiations it was especially this mental element that was the main point of debate about superior responsibility. The adopted provision contains a narrower approach to the mens rea then originally proposed by the icrc, which was a ‘knew or should have known’-​standard.78 The icrc wanted to include the broader knowledge-​standard because this standard would include those situations where no proper reporting system for breaches was set up. Allowing this situation to fall outside of the scope of the knowledge-​standard would create incentives for commanders not to set up these reporting systems as it would allow them to circumvent superior responsibility.79 The adopted standard does not necessarily include this scenario, however there is still some flexibility in the English wording. The exact interpretation of the mental element was however complicated by a discrepancy between the English and French versions of the text, with the French version referring to ‘des informations leur permettant de conclure’, which in English translates to ‘information enabling them to conclude’, rather than ‘which should have enabled them to conclude’.80 The Commentary referred to this discrepancy and opted that the French version should be followed as it would be more consistent with the object and purpose of the treaty, this is however contested.81 The standard put forth in art. 86 ap i does seem to follow the standard put forth in the High Command-​case, which 78 79 80 81

Langston (n 10) 157. Langston (n 10) 157. Smidt (n 25) 203–​204; Danner & Martinez (n 13) 126. Ambos (n 30) 846; Danner & Martinez (n 326).

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can be somewhat substantiated by the fact that the Commentary explicitly quotes the High Command case when describing the mental element.82 While ap i codifies rules concerning the laws of armed conflict and art. 87(1) ap i is confined to military commanders, the provision of art. 86(2) ap i is not restricted to military commanders, but is applicable to all forms of superiors.83 Through the use of the generic term ‘superior’ this provision does include not only military commanders, but also those superiors who are not part of the military, but do have control over their subordinates.84 The choice to not restrict this to military commanders falls in line with previous decisions at the imtfe and the Roechling-​case under ccl10, which determined that the concept of superior responsibility is not restricted to military commanders. Although ap i clearly includes non-​military superiors, the manner in which superior responsibility has been included does have some restrictions concerning its application. This first is that due to the nature of ap i it is restricted in the type of acts for which superior responsibility can be invoked, as art. 86(2) ap i clearly confines it to breaches of the Geneva Conventions or ap i.85 This means that it can only be applied in those cases where it concerns what could loosely be defined as war crimes, while superior responsibility for crimes against humanity or genocide still was not codified. The nature of ap i also created uncertainty over whether this concept would be applicable in the case of non-​international armed conflicts. During the drafting of Additional Protocol ii (ap ii) there was an attempt to include a provision concerning the ensuring of observance of ap ii, which would include a potential reference to the concept of superior responsibility, but this was not included in the adopted text of ap ii.86 It could therefore be argued that, at the time of the adoption of these protocols, superior responsibility was only applicable in the context of international armed conflicts.87 The provision of art. 86(2) ap i could also be argued to have a temporal restriction, namely that it is only applicable in the situations where a subordinate ‘was committing or was going to commit’ crimes, and that it therefore would not include past crimes.88 This falls in line with 82 83 84 85 86 87 88

Kiss (n 15) 644–​645. Ronen (n 37) 317. Claude Pilloud, Jean Simon Pictet, Yves Sandoz & Cristophe Swinarski Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (International Committee of the Red Cross 1987) 1013; Walsh & Berry (n 7) 437–​438. Ronen (n 37) 318; Ambos (n 34) 837. Sandesh Sivakumaran, ‘Command Responsibility in Irregular Groups’ (2012) 10 Journal of International Criminal Justice 1129–​1150, at 1135. Walsh & Berry (n 7) 438. Ambos (n 30) 823; Garraway (n 74) 196.

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the measures to be taken by a superior being restricted to prevent or repress breaches, both verbs which are only applicable in the context of future or ongoing crimes. The obligation to punish perpetrators is included in art. 87(3) ap i which proscribes that Parties require commanders, ‘where appropriate, to initiate disciplinary or penal actions’. In this way past crimes are included, but it does not necessarily extend to penal or disciplinary responsibility as art. 86(1) ap i does, since it leaves it to the states as to how to address this issue.89 The Commentary of ap i argues that the notion of a duty to punish is included within the term ‘repress’,90 however looking at the ordinary meaning of the term ‘repress’, this is contentious.91 These provisions have been extremely important for the legal incorporation of superior responsibility as well as the further development of this mode of responsibility.92 But while this certainly has played a role in the development of the concept as a mode of responsibility under international criminal law, it must be reiterated that these provisions did not create individual criminal responsibility, but rather an obligation towards to states. ap i left it to states parties to determine how this should be implemented and whether to impose penal or disciplinary measures.93 5

The Ad Hoc Tribunals

The icty and ictr Statutes 5.1 ap i did provide some form of codification for superior responsibility, but even with this codification a lot of unclarity and uncertainty remained about the concept, especially concerning its role as a mode of responsibility. There was no significant further development until the ad hoc Tribunals started to develop international criminal law in the 1990s. The Statute of the icty included a provision for superior responsibility as a mode of individual responsibility, namely art. 7(3) icty. The phrasing of this provision was very similar to the wording of art. 86(1) ap i and stated: The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of 89 90 91 92 93

Garraway (n 74) 197. Pilloud, Pictet, Sandoz & Swinarski (n 84) 1011. Boas, Bischoff & Reid (n 3) 173. Vetter (n 5) 109. Jia (n 10) 338.

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criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. The Statute of the ictr included a similar provision, with the only difference being the articles to which it referred. During the drafting of these provisions the Secretary General of the UN drew heavily on art. 86(2) ap i, there was a clear intention to follow art. 86(2) ap i and therefore much of the interpretation of these provisions have been based on art. 86(2) ap i and its drafting history.94 However, there are also aspects in which these provisions clearly differ from art. 86(2) ap i, these stem, to a large extent, from the difference in nature between the Statutes of the ad hoc Tribunals and ap i. The first of these differences is the fact that the Statutes make clear that superior responsibility concerns a form of criminal responsibility, while art. 86(2) ap i approaches it as a rejection of a defence against penal or disciplinary responsibility. It was necessary to reformulate the concept of superior responsibility, as the nature of the jurisdiction of the icty and the ictr required this to be formulated as a form of individual responsibility and be restricted to criminal responsibility. Another significant difference can be found in the fact that within the icty and ictr Statutes the concept of superior responsibility is, unlike art. 86(2) ap i, not restricted to breaches of the Geneva Conventions or ap i. This allows for the application of superior responsibility not only to war crimes but to crimes against humanity and genocide as well. This was a novel approach as superior responsibility had not before been applied to crimes other than war crimes. By no longer restricting superior responsibility to breaches of the Geneva Conventions or ap i, it also allowed for its application in contexts outside of an armed conflict. As there is no clear indication that the provisions on superior responsibility at the ad hoc Tribunals were restricted to international armed conflicts only, this led to a discussion within the icty whether or not superior responsibility was applicable in non-​international armed conflicts. Since this was not explicitly included in the icty Statute this was a point of discussion, as art. 86(2) ap i explicitly only applied in international armed conflicts. The Tribunal reasoned that since the concept of responsible command also existed in the context

94

Bohn (n 14) 6.

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of non-​international armed conflict, there was the implication that superior responsibility needed to also be applicable in non-​international conflicts.95 The provision on superior responsibility in the Statutes also provided clarity about the issue of past crimes. While, as discussed, it was possible to argue that past crimes were not included within art. 86(2) ap i, the use of the term ‘or had done so’ in the icty and ictr Statutes as well as the inclusion of a duty to punish perpetrators, clearly indicates that, at least for the ad hoc Tribunals, it was possible to impose superior responsibility for past crimes. This could be seen as combining aspects of both art. 86 ap i as well as art. 87 ap i, as the latter already included past crimes Outside of these aspects, there are no significant differences between the provisions on superior responsibility in the Statutes and art. 86(2) ap i,96 these provisions themselves are rather concise and do not provide much more clarity concerning the interpretation of superior responsibility. Consequently, much of the further development of superior responsibility was done in the jurisprudence of the ad hoc Tribunals. 5.2 Superior Responsibility in the Jurisprudence of the icty and the ictr The first important case that dealt with the issue of superior responsibility was the Čelebići-​case before the icty.97 It was thereby the first important case discussing superior responsibility since the post-​World War ii jurisprudence. The case is named after the prison camp where the crimes were committed. Two of the defendants were convicted on the basis of direct participation, while the commander of the camp, Mucić, was held responsible on the basis of superior responsibility.98 The Trial Chamber laid out three basic requirements for superior responsibility,99 which were subsequently confirmed by the Appeals 95

96

97 98 99

Prosecutor v. Hadžihasanović & Kubura, Case No. it-​01-​47, Appeals Chamber i Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility (International Criminal Tribunal for the Former Yugoslavia 16 July 2003); Cryer (n 4) 163–​ 164; Harmen van der Wilt, ‘Command Responsibility in the Jungle: Some Reflections on the Elements of Effective Command and Control’ in: Charles Chernor Jalloh (ed.) The Sierra Leone Special Court and its Legacy (Cambridge University Press 2014) 144, 144. There are some other aspects where the provisions in the Statutes of the icty and ictr differ from the Article 86(2) ap i, but these will be discussed when they come up during the discussion on the constitutive elements of superior responsibility in the jurisprudence of the ad hoc Tribunals are discussed. Prosecutor v. Mucić et al., Case No. it-​96-​21, Trial Chamber, Judgment (International Criminal Tribunal for the Former Yugoslavia 16 November 1998). Ibid. Ibid. ¶ 346.

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Chamber.100 In order for someone to be held accountable by superior responsibility there needs to be (i) a superior-​subordinate relationship; (ii) the superior needs to have knowledge or have reason to know that a crime was about to be or had been committed and (iii) there needs to be failure on the superiors part to take the necessary and reasonable measures to prevent the criminal act or to punish the perpetrator.101 There is also an underlying prerequisite which was not explicitly included within the requirements, namely that that a crime within the jurisdiction of the ad hoc Tribunal needed to have been committed by the subordinates.102 This does not need to discussed in significant depth as the Trial Chamber stated in Orić: ‘both the requirement of a principal crime (committed by others than the accused) and its performance in any of the modes of liability provided for in Article 7(1) appeared so obvious as to hardly need to be explicitly stated’.103 There is however one aspect of this that does need to be discussed and that is how the term ‘commit’ as used in art. 7(3) icty Statute has been interpreted by the icty. Unlike the concept of strict commission as a mode of responsibility, the term ‘commit’ in art. 7(3) icty Statute has been interpreted in a broad manner incorporating all forms of perpetration and participation listed in art. 7(1) icty Statute.104 The Appeals Chamber based this on interpreting the term ‘commit’ in its more ordinary meaning and referred back to the manner in which it was employed in art. 86(2) ap i, which was seen as incorporating all

100 Prosecutor v. Mucić et al., Case No. it-​96-​21-​a , Appeals Chamber, Judgment (International Criminal Tribunal for the Former Yugoslavia 20 February 2001). 101 Prosecutor v. Mucić et al., Case No. it-​96-​21, Trial Chamber, Judgment, ¶ 346 (International Criminal Tribunal for the Former Yugoslavia 16 November 1998). 102 Beatrice Bonafé, ‘Finding a Proper Role for Command Responsibility’ (2007) 5 Journal of International Criminal Justice 599, 605; Mettraux (n 50) 79; Kai Ambos, ‘Command Responsibility and Organisationsherrschaft: Ways of Attributing International Crimes to the ‘Most Responsible’’ in: A Nollkaemper, H van der Wilt (eds.) System Criminality in International Law (Cambridge University Press 2009) 130. 103 Prosecutor v. Orić, Case No. it-​03-​68, Trial Chamber ii, Judgment, ¶ 273 (International Criminal Tribunal for the Former Yugoslavia 30 June 2006). 104 See for example: Prosecutor v. Orić, Case No. it-​03-​68, Trial Chamber ii, Judgment, ¶ 299 (International Criminal Tribunal for the Former Yugoslavia 30 June 2006); Prosecutor v. Blagojević & Jokić, Case No. it-​02-​60-​A, Appeals Chamber, Judgment, ¶ 281 (International Criminal Tribunal for the Former Yugoslavia 9 May 2007); Prosecutor v. Boškoski & Tarčulovski, Case No. it-​04-​82, Trial Chamber, Judgment, ¶ 404 (International Criminal Tribunal for the Former Yugoslavia 10 July 2008); Mohamed Elewa Badar & Nora Karsten, ‘Current Developments at the International Criminal Tribunals’ (2008) 8 International Criminal Law Review 353, 1; Elies van Sliedregt, ‘The Curious Case of International Criminal Liability’ (2012) 10 Journal of International Criminal Justice 1171, 1181–​1182.

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forms of criminal responsibility.105 The reasoning for incorporating all forms of criminal responsibility has also been based on the underlying purpose of superior responsibility, which is to ‘ensure that subordinates do not violate international humanitarian law, either by harmful acts or by omitting a protective duty. This enforcement of international humanitarian law would be impaired to an inconceivable degree if a superior had to prevent subordinates only from killing or maltreating in person, while he could look the other way if he observed that subordinates ‘merely’ aided and abetted others in procuring the same evil’.106 The three main requirements of superior responsibility have been reiterated and confirmed in several subsequent judgments both at the icty107 as well as the ictr.108 The subsequent subsections will discuss the different requirements as they have been developed throughout icty and ictr jurisprudence, before specifically addressing how the issue of civilian superior responsibility has been addressed by the ad hoc Tribunals. 5.2.1 The Existence of a Superior-​Subordinate Relationship This first thing that must be established for superior responsibility to be possible, is that the accused is in a position of command or authority and whether there is therefore a relationship of superior and subordinate.109 The icty has reiterated in multiple judgments that the relation between a superior and subordinate is not determined solely by the legal status of the individuals

105 Prosecutor v. Blagojević & Jokić, Case No. it-​02-​60-​a , Appeals Chamber, Judgment, ¶ 281 (International Criminal Tribunal for the Former Yugoslavia 9 May 2007); Elies van Sliedregt, Command Responsibility at the icty –​Three Generations of Case-​law and still Ambiguity, in: Bert Swart, Alexander Zahar & Göran Sluiter (eds.) The Legacy of the International Criminal Tribunal for the Former Yugoslavia (Oxford University Press 2011) 383; Elies van Sliedregt, Individual Criminal Responsibility in International Law (2012 Oxford University Press) 189–​190. 106 Prosecutor v. Orić, Case No. it-​03-​68, Trial Chamber ii, Judgment, ¶ 300 (International Criminal Tribunal for the Former Yugoslavia 30 June 2006). 107 See for example: Prosecutor v. Aleksovski, Case No. it-​95-​14/​1-​a , Appeals Chamber Judgment, ¶ 72 (International Criminal Tribunal for the Former Yugoslavia 24 March 2000); Prosecutor v. Blaškić, Case No. it-​95-​14-​a , Appeals Chamber Judgment, ¶ 484 (International Criminal Tribunal for the Former Yugoslavia 29 July 2004). 108 See for example: Prosecutor v. Sylvestre Gacumbitsi, Case No. ictr-​2001-​64-​a , Appeals Chamber, Judgment ¶ 143 (International Criminal Tribunal for Rwanda 7 July 2006); Prosecutor v. Nahimana Case No. ictr 99-​52-​a , Appeals Chamber, Judgment ¶ 484 (International Criminal Tribunal for Rwanda 28 November 2007). 109 Bonafé (n 102) 609.

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involved.110 Consequently, it cannot be assumed that a person is a superior based only on their formal status as such, the superior must also have the possession of effective control over the actions of the subordinates.111 It has however been accepted that the existence of a de jure position of command or authority can be taken as a prima facie presumption of effective control in many cases. Therefore, unless there is evidence to the contrary it is an important indicator of effective control.112 A de jure position of authority originates from a formal delegation of authority or because of the position an individual holds within an overall organizations, but this depends on the nature of the organization.113 With a de jure ­position, the extent to which this individual can exercise their authority can also be potentially restricted by the origin of this authority, because it is dependent on the type of authority that has been delegated. For example, it is possible for a superior to gain strategic command while having no operational command, or that they are not delegated with disciplinary power, thereby restricting the amount of control they factually have over their subordinates.114 The icty specifically made clear that not only those in a legal position of authority can incur superior responsibility when it stated ‘individuals in positions of authority … may incur criminal responsibility … on the basis of their de facto as well as de jure positions as superiors’.115 Therefore it is understood that any individual in a superior position that has effective control can potentially incur superior responsibility. The critical aspect, regardless of being de jure or de facto, is whether the superior can be said to have effective control over the subordinate. The necessary underlying superior-​subordinate relationship was stated by the Trial Chamber in Čelebići to exist when there is the ‘actual possession or non-​possession of powers of control over the actions

110 Prosecutor v. Mucić et al., Case No. it-​96-​21, Trial Chamber, Judgment ¶ 377 (International Criminal Tribunal for the Former Yugoslavia 16 November 1998); Prosecutor v. Halilović, Case No. it-​01-​48, Trial Chamber, Judgment ¶ 57 (International Criminal Tribunal for the Former Yugoslavia 16 November 2005) Prosecutor v. Limaj et al., Case No. it-​03-​66-​t, Trial Chamber i Judgment ¶ 521 (International Criminal Tribunal for the Former Yugoslavia 30 November 2005). 111 Mettraux (n 50) 140–​141. 112 Danner & Martinez (n 13) 131; Mettraux (n 50) 171; Boas, Bischoff & Reid (n 3) 186–​187. 113 Alex Obote-​Odora, ‘The Statute of the International Criminal Tribunal for Rwanda: Article 6 Responsibilities’ (2002) 1 The Law and Practice of International Criminal Courts and Tribunals 343–​366, at 355–​356; Mettraux (n 50) 139–​140. 114 Obote-​Odora (n 113) 356. 115 Prosecutor v. Mucić et al., Case No. it-​96-​21, Trial Chamber, Judgment ¶ 354 (International Criminal Tribunal for the Former Yugoslavia 16 November 1998).

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of subordinates’.116 The powers of control needed to amount to the level of effective control over the actions of the subordinates was defined as: “… The superiors have effective control over the persons committing the underlying violations of humanitarian law, in the sense of having the material ability to prevent and punish the commission of these offences.”117 Effective control is the lynchpin in determining the nature of the relationship between superior and subordinate, it is therefore not reliant on formal or direct subordination.118 The focus on effective control and the lack of reliance on formal or direct subordination has allowed for a broader interpretation of the term subordinate, as it allows for the inclusion of any individual which falls within the effective control of the superior, even if they are not a direct subordinate.119 This has been taken quite far and has led to the icty imposing superior responsibility even in instances where the perpetrating subordinates were ‘unidentified’. In Krnojelac it was held that there was a need to identify the alleged perpetrators in order to establish the superior-​subordinate relationship, however that this identification does not need to be entirely exact. The determining factor is whether the alleged perpetrators can at least be identified as belonging to a group that would be under the effective control of the superior, if this is the case the superior can be held accountable on the basis of superior responsibility, even if the individual perpetrator has not been identified.120 But since there is the need for effective control this simultaneously means that having only a position of substantial influence is not sufficient, it would need to be combined with the existence of effective control.121 Effective 1 16 Ibid. ¶ 354. 117 Ibid. ¶ 378. 118 Geert-​ Jan Alexander Knoops, ‘The Duality of the Proportionality Principle within Asymmetric Warfare and Ensuing Superior Criminal Responsibilities’ (2009) 9 International Criminal Law Review 501, 515; Kazuya Yokohama, ‘The Failure to Control and the Failure to Prevent, Repress and Submit: The Structure of Superior Responsibility under Article 28 ICC Statute’ (2018) 18 International Criminal Law Review 275, 279. 119 Mettraux (n 50) 146; van Sliedregt (n 104) 384; van Sliedregt (n 105) 1182. 120 Prosecutor v. Milorad Krnojelac, Case No. it-​97-​25-​p t, Pre-​Trial Chamber, Decision on the Defence Preliminary Motion on the Form of the Indictment ¶ 46 (International Criminal Tribunal for the Former Yugoslavia 24 February 1999); Prosecutor v. Hadžihasanović & Kubura, Case No. it-​01-​47-​t, Trial Chamber, Judgment ¶ 90 (International Criminal Tribunal for the Former Yugoslavia 15 March 2006); Prosecutor v. Orić, Case No. it-​03-​68, Trial Chamber, Judgment ¶ 311 (International Criminal Tribunal for the Former Yugoslavia 30 June 2006); Boas, Bischoff & Reid (n 3) 184; van Sliedregt (n 104) 384–​385; van Sliedregt (n 105) 1182. 121 Bonafé (n 102) 609; Mettraux (n 50) 145; Boas, Bischoff & Reid (n 3) 189–​190; Kiss (n 15) 620 This was affirmed by the scsl in the Kondewa-​case where the spiritual or psychological powers that Kondewa held over the perpetrators was not sufficient with the exception of

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control can manifest itself in a wide variety of ways and the existence of effective control must therefore be determined on a case-​by-​case basis, which has led the icty to state that ‘[t]‌he indicators of effective control are more a matter of evidence than of substantive law’.122 Consequently, neither the icty nor the ictr have provided for a strict test or set of criteria to determine effective control and instead focused on potential indicia which can be considered to determine whether there is effective control.123 The person who actually committed the crime does not even necessarily need to be under the effective control of the superior, as long as a subordinate, because of their own actions or omissions, are criminally responsible in some manner for the acts of the direct perpetrators, this can also take the form of accessorial liability or superior responsibility.124 Because there needs to be effective control the Appeals Chamber rejected the application of superior responsibility in instances where the superior was not in a position of effective control at the time of the commission of the crime. The Appeals Chamber determined that because effective control is required, this is required at the moment of commission or else a superior cannot be held accountable.125

122 123 124 125

the one situation where his powers gave him effective control due to him being integrated in the chain of command. Prosecutor v. Fofana and Kondewa, Case No. scsl-​04-​14-​t, Trial Chamber i, Judgment (Special Court for Sierra Leone 2 August 2007); van der Wilt (n 95) 156; René Provost, ‘Authority, Responsibility, and Witchcraft: From Tintin to the SCSL’ in: Charles Chernor Jalloh (ed.) The Sierra Leone Special Court and its Legacy (Cambridge University Press 2014) 159–​180. Prosecutor v. Blaškić, Case No. it-​95-​14-​a , Appeals Chamber Judgment, ¶ 69 (International Criminal Tribunal for the Former Yugoslavia 29 July 2004). Knoops (n 118) 516; Mettraux (n 50) 163–​170; Ambos (n 102) 134; Boas, Bischoff & Reid (n 3) 194–​200. These range from the position, the capacity to issue orders and the tasks performed by the superior. Prosecutor v. Orić, Case No. it-​03-​68, Trial Chamber, Judgment ¶ 299–​306 (International Criminal Tribunal for the Former Yugoslavia 30 June 2006); van Sliedregt (n 104) 384; van Sliedregt (n 105) 191. Prosecutor v. Hadžihasanović & Kubura, Case No. it-​01-​47, Appeals Chamber i Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility ¶ 37–​56 (International Criminal Tribunal for the Former Yugoslavia 16 July 2003); Bonafé (n 102) 610; van Sliedregt (n 104) 381; van Sliedregt (n 105) 187. This has been a relatively contested position even within the tribunals itself, as it is believed that this allows for the circumvention of superior responsibility, especially in cases where crimes become known after the fact and these are not punished by the subsequent superior. It has also received significant critique from the literature mainly on the same reasoning as the dissenting judges, the possibility to not punish a perpetrator after the fact allows for possible impunity. Cryer (n 4) 167–​169; Ambos (n 102) 135.

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5.2.2 Knew or Had Reason to Know The mental element of superior responsibility at the ad hoc Tribunals is split up into two separate situations, the first being when someone knew, the other is when there is no actual knowledge but the superior had reason to know. The required mens rea is easier to determine in those cases where the superior knew, and this is applicable in the case where the superior had actual knowledge. Actual knowledge can be described as awareness as to the existence of an act or circumstance.126 The difficulty here is not the link between the mens rea and the omission, but rather the difficulty in proving actual knowledge, as an assumption of the existence of knowledge solely on the basis of a superiors positions has been explicitly rejected.127 The icty does allow for actual knowledge to be established on the basis of circumstantial evidence, in which the position of the superior can potentially be one of the factors.128 The ad hoc Tribunals have however not given an abstract test to determine what can be considered as sufficient circumstantial evidence, but have rather given a variety of indicia that could assist in determining whether a superior could be considered as having actual knowledge.129 More discussion has been focused on the concept ‘reason to know’, as this situation is more fluid. The concept of this type of knowledge had already been a point of discussion throughout the development of superior responsibility, as has been shown in the previous sections. The concept as it is included within the icty and ictr Statutes differs from the manner in which it has been included in art. 86(2) ap i. In the statutes of the ad hoc Tribunals this has been included with the term ‘had reason to know’ while ap i follows the formulation ‘had information which would have enabled him to conclude’. In practice the difference in phrasing does not have a significant effect as the icty interpreted ‘had reason to know’ as when the superior has information in their possession of a nature which would put them on notice of the risk of specific crimes, they should conduct additional investigation in order to ascertain whether subordinates were about to commit of had committed the crimes.130 The Tribunal adopted this standard as it viewed it as being in accordance with customary

1 26 Obote-​Odora (n 113) 359. 127 Newton & Kuhlman (n 7) 32; Ambos (n 34) 834. 128 Prosecutor v. Mucić et al., Case No. it-​96-​21, Trial Chamber, Judgment ¶ 360 (International Criminal Tribunal for the Former Yugoslavia 16 November 1998); Boas, Bischoff & Reid (n 3) 203–​204; Ambos (n 34) 834–​835. 129 Ambos (n 30) 816; Langston (n 10) 175; Boas, Bischoff & Reid (n 3) 204. 130 Obote-​Odora (n 113) 359; Langston (n 10) 177; Darryl Robinson, ‘A Justification of Command Responsibility’ (2017) 28 Criminal Law Forum 633, 641.

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international law.131 It therefore did not view the difference between the icty Statute and art. 86(2) ap i as proscriptive, as this interpretation coincides with the interpretation of art. 86(2) ap i.132 The information does not need to have conclusive proof of crimes being committed or having been committed, but there needs to be enough of an indication of such crimes that there exists a need for additional investigation.133 The standard that has been applied in the ad hoc Tribunals remains somewhat ambiguous and allows for considerable flexibility for judges as to what should be considered as such information.134 In Čelebići the Appeals Chamber stated that the superior needs to be in possession of such information but also held that it can be sufficient for this information to be made available to them, for example because of reports have been addressed to them.135 This is similar to the approach taken in the Hostage-​case under ccl10 and the icty followed this approach by stating that it is sufficient if the information has been provided or made available to the superior and the superior does not need to have taken notice of the reports or their substance.136 This does not mean that negligence in obtaining information is sufficient to hold a superior responsible under superior responsibility, since as the Appeals Chamber stated ‘[n]‌eglect of a duty to acquire such knowledge, however, does not feature in the provision as a separate offence, and a superior is not therefore liable under the provision for such failures but only for failing to take necessary and reasonable measures to prevent or punish’.137 The prosecution had argued that a ‘serious dereliction’ of a duty to obtain information would be sufficient to hold a superior responsible, but the 131 Prosecutor v. Mucić et al., Case No. it-​96-​21, Trial Chamber, Judgment ¶ 393 (International Criminal Tribunal for the Former Yugoslavia 16 November 1998) Danner & Martinez (n 13) 127. 132 McCarthy (n 60) 563. 133 Prosecutor v. Mucić et al., Case No. it-​96-​21, Trial Chamber, Judgment ¶ 393 (International Criminal Tribunal for the Former Yugoslavia 16 November 1998); Prosecutor v. Milorad Krnojelac Case No. it-​97-​25-​t, Trial Chamber, Judgment ¶ 94 (International Criminal Tribunal for the Former Yugoslavia 15 March 2002); Prosecutor v. Blagojević & Jokić, Case No. it-​02-​60-​t, Trial Chamber, Judgment, ¶ 792 (International Criminal Tribunal for the Former Yugoslavia 17 January 2005); Prosecutor v. Orić, Case No. it-​03-​68, Trial Chamber, Judgment ¶ 322 (International Criminal Tribunal for the Former Yugoslavia 30 June 2006); Martinez (n 2) 656; Boas, Bischoff & Reid (n 3) 210. 134 Martinez (n 2) 659; Robinson (n 130) 641–​642. 135 Prosecutor v. Mucić et al., Case No. it-​96-​21-​a , Appeals Chamber, Judgment ¶ 238–​239 (International Criminal Tribunal for the Former Yugoslavia 20 February 2001). 136 Langston (n 10) 177; Newton & Kuhlman (n 7) 32; Robinson (n 130) 643–​644. 137 Prosecutor v. Mucić et al., Case No. it-​96-​21-​a , Appeals Chamber, Judgment ¶ 226 (International Criminal Tribunal for the Former Yugoslavia 20 February 2001); Langston (n 10) 176–​177.

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Appeals Chamber stated that the failure to set up a reporting system would not be sufficient and would only ‘constitute a neglect of duty which results in liability within the military discipline framework’, which would generally mean disciplinary rather than criminal responsibility.138 The icty has specifically referenced the ‘should have known’-​standard that had been applied in post-​World War ii jurisprudence and rejected it by referring to art. 86(2) ap i as having altered the required mens rea for superior responsibility.139 The Trial Chambers in Blaškić140 and Bagilishema141 had put forth the argument that if a superior exercises due diligence a lack of knowledge could not be held against them, which could be argued as applying a ‘should have known’ standard, however the Appeals Chamber remained consistent in following the standard adopted in Čelebići.142 Although a ‘should have known’-​standard is not applied in the ad hoc Tribunals, superiors are still required not to remain wilfully blind, but where the line exactly lies is unclear. The Appeals Chamber in Čelebići followed a very broad interpretation of where the obligation to investigate starts, arguing that having access to the information ‘that some of the soldiers under his command have a violent or unstable character, or have been drinking prior to being sent on a mission’ was sufficient to consider that the commander had reason to know.143 It is therefore not necessary to have specific information about the crimes, as long as there are indications towards the same type of crimes rather than general criminal activity, even general information would be sufficient.144 138 Prosecutor v. Mucić et al., Case No. it-​96-​21-​a , Appeals Chamber, Judgment ¶ 226 (International Criminal Tribunal for the Former Yugoslavia 20 February 2001); Robinson (n 130) 641. 139 Prosecutor v. Mucić et al., Case No. it-​96-​21-​a , Appeals Chamber, Judgment ¶ 228–​239 (International Criminal Tribunal for the Former Yugoslavia 20 February 2001); Tinta (n 34) 317. 140 Prosecutor v. Blaškić, Case No. it-​95-​14-​t, Trial Chamber Judgment, ¶ 332 (International Criminal Tribunal for the Former Yugoslavia 3 March 2000). 141 Prosecutor v. Ignace Bagilishema, Case No. ictr-​95-​1A-​t, Trial Chamber, Judgment ¶ 46 (International Criminal Tribunal for Rwanda 7 June 2001). 142 Prosecutor v. Mucić et al., Case No. it-​96-​21-​a , Appeals Chamber, Judgment ¶ 239 (International Criminal Tribunal for the Former Yugoslavia 20 February 2001); Prosecutor v. Blaškić, Case No. it-​95-​14-​a , Appeals Chamber Judgment, ¶ 62 (International Criminal Tribunal for the Former Yugoslavia 29 July 2004); Danner & Martinez (n 13) 129; Kelly (n 32) 678. 143 Prosecutor v. Mucić et al., Case No. it-​96-​21-​a , Appeals Chamber, Judgment ¶ 238 (International Criminal Tribunal for the Former Yugoslavia 20 February 2001); Ambos (n 30) 817; Ambos (n 34) 835. 144 Bonafé (n 102) 607; Mettraux (n 50) 77–​78; Newton & Kuhlman (n 7) 32; McCarthy (n 60) 564.

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5.2.3 Failure to Take Necessary and Reasonable Measures Superior responsibility seeks to hold a superior accountable on the basis of their omission and as with any form of omission liability this requires a specific duty to act. For an omission to lead to superior responsibility an individual needs to be, as the ictr put it, ‘bound by a specific legal duty to prevent a crime’.145 In the context of superior responsibility this specific legal duty is the taking of necessary and reasonable measures to prevent or punish the commission of crimes by their subordinates, as this failing to exercise proper control over their subordinates is a failure of responsible command.146 The origin of this duty can, as discussed, be found in the principle of responsible command within international humanitarian law, which obliges a commander to take measures to ensure compliance with humanitarian law.147 This duty of responsible command is not entirely similar to the duty that forms the basis of superior responsibility, there is a difference between a general obligation to prevent and the specific obligation to take necessary and reasonable measures. As the Trial Chamber stated in Halilović only the latter specific obligation can lead to criminal responsibility.148 Therefore only those measures that are or are not taken in light of the knowledge or constructive knowledge are considered for the fulfilment of this duty, while general measures such as ensuring awareness of humanitarian law, training and general discipline are not.149 A lack of training or awareness can therefore only be taken into consideration as part of the specific obligation from the point of time when the information is in the possession of the superior.150

145 Prosecutor v. Jean Mpambara, Case No. ictr-​01-​65-​t, Trial Chamber, Judgment ¶ 27 (International Criminal Tribunal for Rwanda 11 September 2006); Sivakumaran (n 86) 1131. 146 Volker Nerlich, ‘Superior Responsibility under Article 28 ICC Statute’ (2007) 5 Journal of International Criminal Justice 665–​682, at 671; Chia Lehnardt, ‘Individual Liability of Private Military Personnel under International Criminal Law’ (2008) 19(5) The European Journal of International Law 1015–​1034, at 1027–​1028; Sivakumaran (n 86) 1133–​1134; Yokohama (n 118) 279. 147 Prosecutor v. Hadžihasanović & Kubura, Case No. it-​01-​47-​t, Trial Chamber, Judgment ¶ 67–​68 (International Criminal Tribunal for the Former Yugoslavia 15 March 2006) Sandesh Sivakumaran, ‘Command Responsibility in the Sierra Leonean Conflict: The Duty to Take Measures to Prevent Crimes and Punish the Perpetrators’ in: Charles Chernor Jalloh (ed.) The Sierra Leone Special Court and its Legacy (Cambridge University Press 2014) 128–​143, at 130. 148 Prosecutor v. Halilović, Case No. it-​01-​48, Trial Chamber, Judgment ¶ 81–​90 (International Criminal Tribunal for the Former Yugoslavia 16 November 2005). 149 Sivakumaran (n 86) 1140; Sivakumaran (n 147) 133. 150 Sivakumaran (n 86) 1140; Sivakumaran (n 147) 133–​134.

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The specific obligation to take necessary and reasonable measures is closely related to the effective control that forms the basis of a superior-​subordinate relationship, as the nature of this control and the authority that the superior has determines the measures that the superior could potentially take. What measures are therefore necessary, reasonable and feasible need to be determined on a case-​by-​case basis, taking into account the measures available to the superior.151 The determination of which measures are to be viewed as necessary and reasonable has been stated by the Trial Chamber to not be ‘a matter of substantive law but of evidence’.152 Consequently, there has been no attempt at providing an abstract test to determine this, as the consideration is viewed as not being susceptible to a general legal standard.153 There has been some clarification concerning what should be considered as ‘necessary measures’, these are namely those measures that can be considered as appropriate to evidence a genuine effort to prevent or punish, while ‘reasonable measures’ are those measures that can be said to reasonably fall within the material powers of the superior.154 What are considered reasonable measures looks at the material powers of the superior, like with effective control this consideration is not restricted to the formal legal consequence, but rather looks at the material possibility.155 Regardless of what measures are within the material possibility or can be considered as appropriate, it is not necessary that these measures actually attain a specific result. If a superior takes necessary and reasonable measures but the crime is still being committed, this does not result in liability on the basis of superior responsibility as the obligation is one of conduct rather than of result.156 Concerning the obligation to punish, the ad hoc Tribunals interpreted that a ‘superior is bound to conduct a meaningful investigation with a view to 151 Prosecutor v. Halilović, Case No. it-​01-​48, Trial Chamber, Judgment ¶ 74 (International Criminal Tribunal for the Former Yugoslavia 16 November 2005); Bassiouni (n 5) 365; Bonafé (n 102) 605; Lehnardt (n 146) 1028; van der Wilt (n 95) 146. 152 Prosecutor v. Blaškić, Case No. it-​95-​14-​a , Appeals Chamber Judgment, ¶ 72 (International Criminal Tribunal for the Former Yugoslavia 29 July 2004); Prosecutor v. Halilović, Case No. it-​01-​48, Trial Chamber, Judgment ¶ 74 (International Criminal Tribunal for the Former Yugoslavia 16 November 2005); Kiss (n 15) 627. 153 Prosecutor v. Mucić et al., Case No. it-​96-​21, Trial Chamber, Judgment ¶ 394 (International Criminal Tribunal for the Former Yugoslavia 16 November 1998); Prosecutor v. Blaškić, Case No. it-​95-​14-​a , Appeals Chamber Judgment, ¶ 72 (International Criminal Tribunal for the Former Yugoslavia 29 July 2004); Danner & Martinez (n 13) 122; Knoops (n 118) 516. 154 Knoops (n 118) 517; Mettraux (n 50) 237–​241; Kiss (n 15) 627–​628. 155 Prosecutor v. Mucić et al., Case No. it-​96-​21, Trial Chamber, Judgment ¶ 395 (International Criminal Tribunal for the Former Yugoslavia 16 November 1998); Mettraux (n 50) 49–​51. 156 Sivakumaran (n 86) 1142.

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establish the facts, order or execute appropriate sanctions, or report the perpetrators to the competent authorities in case the superior lacks sanctioning power’.157 It therefore allows for the investigation to not be conducted by the superior themself, especially when they don’t have the authority to sanction the subordinate, it thereby includes the concept of reporting the situation as included in art. 87(1) ap i.158 Although it was not clearly included in art. 7(3) icty Statute, the icty determined in Blaškić that in the case where a superior knew or had reason to know that a crime would be committed yet did not take necessary and reasonable measures to prevent its commission, they cannot remedy this post facto through punishment.159 The Tribunal came to this understanding as it recognized that superior responsibility is not a singular legal obligation or alternative obligations, but instead consists of two separate and distinct legal obligations, namely the duty to take measures to prevent the commission and the duty to take measures to punish the perpetrators.160 The duty to act exists from the moment that the superior receives the information concerning the commission of a crime and therefore if they receive the information prior to the commission they are under the duty to take necessary and reasonable measures to prevent its commission, while only if they receive information after the commission are they only under the duty to take measures to punish the perpetrators.161

157 This is a statement from the Special Court for Sierra Leone (The Prosecutor vs. Alex Tamba Brima, Ibrahim Bazzy Kamara and Santigie Borbor Kanu, Case No. scsl-​04-​16-​t, Trial Chamber, Judgment ¶ 799 (Special Court for Sierra Leone 20 June 2007)), however it very eloquently restates the interpretation of the obligation by the icty: Prosecutor v. Limaj et al., Case No. it-​03-​66-​t, Trial Chamber i Judgment ¶ 529 (International Criminal Tribunal for the Former Yugoslavia 30 November 2005); Prosecutor v. Strugar Case No. it-​ 01-​42-​t, Trial Chamber Judgment, ¶ 376 (International Criminal Tribunal for the Former Yugoslavia 31 January 2005); Prosecutor v. Orić, Case No. it-​03-​68, Trial Chamber, Judgment ¶ 336 (International Criminal Tribunal for the Former Yugoslavia 30 June 2006). 158 Newton & Kuhlman (n 7) 37; Sivakumaran (n 86) 1146. 159 Prosecutor v. Blaškić, Case No. it-​95-​14-​t, Trial Chamber Judgment, ¶ 336 (International Criminal Tribunal for the Former Yugoslavia 3 March 2000); Prosecutor v. Kordić & Čerkez Case No. it-​95-​14/​2, Trial Chamber Judgment, ¶ 444; (International Criminal Tribunal for the Former Yugoslavia 26 February 2001); Prosecutor v. Strugar Case No. it-​01-​42-​t, Trial Chamber Judgment, ¶ 373 (International Criminal Tribunal for the Former Yugoslavia 31 January 2005). 160 Prosecutor v. Blaškić, Case No. it-​95-​14-​t, Trial Chamber Judgment, ¶ 336 (International Criminal Tribunal for the Former Yugoslavia 3 March 2000); Boas, Bischoff & Reid (n 3) 179; Bassiouni (n 5) 365. 161 Prosecutor v. Strugar Case No. it-​01-​42-​t, Trial Chamber Judgment, ¶ 373 (International Criminal Tribunal for the Former Yugoslavia 31 January 2005); Bassiouni (n 5) 365–​366.

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Consequently, it is not possible to make up a failure to take measures preventing the crime with punishment after commission. 5.2.4 Superior Responsibility of Civilians Most of the cases at the icty dealing with the issue of superior responsibility concerned military or paramilitary commanders or non-​military superiors acting in an equivalent manner in a military or paramilitary setting. Because of this reason the majority of the pronouncements made by the icty on the issue have concerned superior responsibility in a military context and have therefore not gone in-​depth into how to consider superior responsibility in civilian contexts.162 Both the icty and the ictr Statutes refer generally to ‘superiors’ rather than restricting superior responsibility to military commanders and this has led the icty to acknowledge that the doctrine is applicable to both military commanders and civilian superiors and even went as far as stating that this was part of the customary international law of superior responsibility.163 One important statement was made by the icty Appeals Chamber in Čelebići on the issue of civilian superior responsibility, namely that a civilian superior can only be held responsible if they ‘exercise a degree of control over their subordinates which is similar to that of military commanders’.164 While the icty discussed the issue relatively little, the ictr has significantly developed the concept of civilian superior responsibility through a series of important decisions. The reason for this increased focus on civilian superior responsibility is due to the differences in circumstances between the conflict in the former Yugoslavia and the genocide in Rwanda, with the latter involving more perpetrators coming from the civilian population. The first important case on superior responsibility decided by the ictr was the case of Jean-​Paul Akayesu. The ictr stated that much of the essence of the different requirements that are applicable in the context of command responsibility are also applicable to the situation of civilian superior responsibility and that the concept of effective control can under circumstances be

1 62 Ronen (n 37) 324–​325. 163 Prosecutor v. Mucić et al., Case No. it-​96-​21, Trial Chamber, Judgment ¶ 357 (International Criminal Tribunal for the Former Yugoslavia 16 November 1998); Meloni (n 15) 696–​697; Bassiouni (n 5) 362. 164 Prosecutor v. Mucić et al., Case No. it-​ 96-​ 21, Trial Chamber, Judgment ¶ 377–​ 378 (International Criminal Tribunal for the Former Yugoslavia 16 November 1998); Prosecutor v. Mucić et al., Case No. it-​96-​21-​a , Appeals Chamber, Judgment ¶ 197 (International Criminal Tribunal for the Former Yugoslavia 20 February 2001); Vetter (n 5) 117; Ambos (n 30) 815.

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applicable to civilian relations of subordination.165 There is, however, a different basis for the legal duty, which when breached allows for omission liability. While under command responsibility the legal duty concerns the duty to control their troops and maintain responsible command, the ictr stated that in the case of civilian superiors the duty stems from the effective control itself.166 This can be criticized as creating a ‘good Samaritan’ doctrine in international criminal law.167 Perhaps the most important case in this regard was the case of Alfred Musema, the director of the Gisovu Tea Factory. The ictr held him accountable on the basis of ordering and aiding and abetting for certain crimes, as well as holding him responsible on the basis of superior responsibility for certain acts of the employees of the Gisovu Tea Factory, since as the director these employees were his subordinates. The ictr stated that he failed to take measures to prevent the crimes by his employees and instead aided and abetted in the commission of such crimes.168 The ictr confirmed that the general underlying requirement for a superior-​subordinate relationship as determined in Čelebići, namely effective control, is also the standard to be applied in the context of civilian superior responsibility.169 Musema was seen as having effective control over the employees that committed the crimes, as he was capable of removing these individuals from their positions at the tea factory and he had the ability to prevent or punish in the case of the use of tea factory property in the commission of crimes.170 This control was further linked to the substantial social and economic influence Musema held in the community.171 It is interesting how the Trial Chamber noted the influence that is at issue in a superior-​subordinate relationship, by stating that it often appears ‘in the form of psychological pressure’.172 The finding of effective control on this basis has 165 Prosecutor v. Jean-​Paul Akayesu, Case No. ictr-​96-​4, Trial Chamber, Judgment ¶ 491 (International Criminal Tribunal for Rwanda 1 June 2001); Obote-​Odora (n 113) 362; Danner & Martinez (n 13) 130. 166 Prosecutor v. Jean-​Paul Akayesu, Case No. ictr-​96-​4, Trial Chamber, Judgment ¶ 491 (International Criminal Tribunal for Rwanda 1 June 2001). 167 Ronen (n 37) 335. 168 Prosecutor v. Alfred Musema, Case No. ictr-​96-​13, Trial Chamber, Judgment ¶ 949–​950 (International Criminal Tribunal for Rwanda 27 January 2000). 169 Ibid. 141; Newton & Kuhlman (n 7) 42. 170 Prosecutor v. Alfred Musema, Case No. ictr-​96-​13, Trial Chamber, Judgment ¶ 1002–​1004 (International Criminal Tribunal for Rwanda 27 January 2000). 171 Ibid. 140; Hans Vest, ‘Business Leaders and the Modes of Individual Criminal Responsibility under International Law’ (2010) 8 Journal of International Criminal Justice 851–​872, a 871. 172 Prosecutor v. Alfred Musema, Case No. ictr-​96-​13, Trial Chamber, Judgment ¶ 140 (International Criminal Tribunal for Rwanda 27 January 2000); Vest (n 1115) 870.

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received some criticism because the crimes occurred outside of the work for the tea factory, while the control of Musema did not extend beyond the tea factory and therefore the crimes could be argued to have been outside of his control.173 The cases before the ictr show that superior responsibility generally is interpreted similarly in both military and civilian contexts, there has however been an exception in the case of Kayishema and Ruzindana.174 In this case the ictr did differentiate between the level of knowledge that is necessary in the context of a command responsibility and civilian superior responsibility. It did so on the basis of a referral to art. 28 icc Statute as an instructive provision. It justified this differentiation due to the difference between the duty of a military commander and the duty of a civilian superior.175 This has however been received critically, as this goes directly against the stated jurisprudence of the ad hoc Tribunals, which since Čelebići has followed a unitary approach.176 However, outside of this specific case it is clear that it is uncommon for the ad hoc Tribunals to apply different standards to military commanders or civilian superiors. Only after the adoption and entry into force of the icc Statute does there appear some indication of a differentiation between the two types of superior. But outside of the case of Kayishema and Ruzindana the d­ ifferences are confined to weighing different forms of evidence differently for considering whether the requirements of superior responsibility are fulfilled, while the overall requirements for superior responsibility remain the same.177 5.3 The Nature of Superior Responsibility at the Ad Hoc Tribunals The general aspects of superior responsibility have mostly been consistently followed, but there remains one issue that creates much of the discussion about superior responsibility at the ad hoc Tribunals and that is how superior responsibility should exactly be classified, or in other words, what the exact nature of superior responsibility is. This question concerns whether a superior shares in the same responsibility as the subordinate or if they are responsible with regard to the underlying acts, but only for his own omission, the failing to take the necessary and reasonable measures. This means that the issue is 1 73 Ronen (n 37) 341. 174 Prosecutor v. Kayishema et al., Case No. ictr-​95-​1, Trial Chamber, Judgment ¶ 483 (International Criminal Tribunal for Rwanda 21 May 1999). 175 Ibid. ¶ 227–​228. 176 van Sliedregt (n 105) 201–​202. 177 Mettraux (n 50) 107–​109; Meloni (n 15) 697–​698.

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whether the superior is held liable for the underlying crimes, with respect to the underlying crimes but through his own omission, or if they are only held accountable for the omission itself. This question had not truly been brought up before but became an important discussion with regard to the jurisprudence of the ad hoc Tribunals. While most post-​World War ii cases seemed to indicate that superior responsibility is a form of liability for the underlying crimes,178 it is debatable how much precedential value must be given to these considerations, because in many of these cases it concerned individuals who had also actively participated in crimes. At the same time none of the codifications had given any clear indications as to the legal nature of superior responsibility.179 Superior responsibility was positioned as a form of liability for the underlying crimes in the early case-​law of the icty, with most of the cases indicating that the superior is held responsible for the acts of the subordinates.180 This appears to have changed over time. The start of this change can be argued to have been the opinion of Judge Shahabuddeen in Hadžihasanović where he argued that ‘[c]‌ommand responsibility imposes responsibility on a commander for failure to take corrective action in respect of a crime committed by another; it does not make the commander party to the crime committed by that other’.181 This position was adopted by the Appeals Chamber in Krnojelac, where it was stated that it ‘cannot be overemphasized that, where superior responsibility is concerned, an accused is not charged with the crimes of his subordinates but with his failure to carry out his duty as a superior to exercise control’.182 In this approach therefore it is no longer that the superior is held responsible for the acts of their subordinates, but is held responsible for their 178 United States Military Tribunal at Nuremberg, United States v. Wilhelm von Leeb et al., in: The United Nations War Crimes Commission, Law Reports of Trials of War Criminals, vol. xii, 1949; Cryer (n 4) 171–​172; van Sliedregt (n 105) 195. 179 van Sliedregt (n 105) 195. 180 Prosecutor v. Mucić et al., Case No. it-​ 96-​ 21, Trial Chamber, Judgment ¶ 333–​ 334 (International Criminal Tribunal for the Former Yugoslavia 16 November 1998); Prosecutor v. Aleksovski, Case No. it-​95-​14/​1-​t, Trial Chamber Judgment, ¶ 67 (International Criminal Tribunal for the Former Yugoslavia 25 June 1999); Prosecutor v. Blaškić, Case No. it-​95-​14-​ t, Trial Chamber Judgment, ¶ 301–​303 (International Criminal Tribunal for the Former Yugoslavia 3 March 2000); Cryer (n 4) 172–​173. 181 Prosecutor v. Hadžihasanović & Kubura, Case No. it-​01-​47, Appeals Chamber i Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility (Partial Dissenting Opinion of Judge Shahabuddeen) ¶ 33 (International Criminal Tribunal for the Former Yugoslavia 16 July 2003); Cryer (n 4) 174. 182 Prosecutor v. Milorad Krnojelac Case No. it-​97-​25-​a , Appeals Chamber, Judgment ¶ 171 (International Criminal Tribunal for the Former Yugoslavia 17 September 2003).

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own breach of duty.183 As the Trial Chamber made clear in Halilović, superior responsibility is responsibility for the omission of the superior themself, rather than sharing the same responsibility as their subordinates.184 Some have interpreted this as the Trial Chamber following the approach that the breach of duty in itself is a separate criminal offense, rather than as a mode of responsibility.185 This has however also been interpreted as it being not a separate offense, but still separate and different from normal modes of responsibility and should therefore be viewed as a sui generis form of accountability.186 It has been the latter view that seems to have been more commonly espoused.187 5.4 Closing Remarks It is clear that the ad hoc Tribunals have significantly developed the doctrine of superior responsibility, but it must be stated that in most cases the application of superior responsibility was as a subsidiary charge and there was a preference to apply other forms of responsibility rather than superior responsibility.188 The ad hoc Tribunals have also followed the approach that where a conviction can be made under both superior responsibility and another form of more direct responsibility, the latter should prevail.189 This has led to the, 183 Bonafé (n 102) 603–​604; Mettraux (n 50) 45–​46; Darryl Robinson, ‘How Command Responsibility got so Complicated: A Culpability Contradiction, its Obfuscation, and a Simple Solution’ (2012) 13 Melbourne Journal of International Law 1, 9–​10. 184 Prosecutor v. Halilović, Case No. it-​01-​48, Trial Chamber, Judgment ¶ 54 (International Criminal Tribunal for the Former Yugoslavia 16 November 2005); Bonafé (n 102) 603; Cryer (n 4) 179. 185 van Sliedregt (n 105) 192; Héctor Olasolo & Jannluck Canosa Cantor, ‘The Treatment of Superior Responsibility in Colombia: Interpreting the Agreement Between the Colombian Government and the FARC’ (2019) 30 Criminal Law Forum 61, 83–​84. 186 Prosecutor v. Hadžihasanović & Kubura, Case No. it-​01-​47-​t, Trial Chamber, Judgment ¶ 75 (International Criminal Tribunal for the Former Yugoslavia 15 March 2006); Damaška (n 12) 461; van Sliedregt (n 105) 196; Miles Jackson, Complicity in International Law (Oxford University Press 2015) 113; Olasolo & Canosa Cantor (n 185) 85. 187 Prosecutor v. Halilović, Case No. it-​01-​48, Trial Chamber, Judgment ¶ 54 (International Criminal Tribunal for the Former Yugoslavia 16 November 2005); Prosecutor v. Hadžihasanović & Kubura, Case No. it-​01-​47-​t, Trial Chamber, Judgment ¶ 75 (International Criminal Tribunal for the Former Yugoslavia 15 March 2006); The Prosecutor vs. Alex Tamba Brima, Ibrahim Bazzy Kamara and Santigie Borbor Kanu, Case No. scsl-​ 04-​16-​t, Trial Chamber, Judgment ¶ 783 (Special Court for Sierra Leone 20 June 2007); The Prosecutor vs. Moinina Fofana and Allieu Kondewa, Case No. scsl-​04-​14-​t, Trial Chamber, Judgment ¶ 234 (Special Court for Sierra Leone 2 August 2007); Mettraux (n 50) 38; van Sliedregt (n 105) 196. 188 Ronen (n 37) 329–​330. 189 Prosecutor v. Kordić & Čerkez Case No. it-​95-​14/​2, Appeals Chamber Judgment, ¶ 34–​35 (International Criminal Tribunal for the Former Yugoslavia 17 December 2004); Prosecutor

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comparatively, limited number of cases where superior responsibility was successfully applied. It has therefore been stated that superior responsibility is one of the forms of liability least likely to successfully convict a person under international criminal law.190 6

icc Statute

Previous codifications have been shown to be relatively lacking in detail and the icc Statute sought to deal with some of the uncertainty by setting out a far more detailed provision on superior responsibility in art. 28 icc Statute. In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:





(a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. (b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:

v. Blaškić, Case No. it-​95-​14-​a , Appeals Chamber Judgment, ¶ 91 (International Criminal Tribunal for the Former Yugoslavia 29 July 2004); Prosecutor v. Juvénal Kajelijeli, Case No. ictr-​98-​44a-​a , Appeals Chamber, Judgment ¶ 81 (International Criminal Tribunal for Rwanda 23 May 2005). 190 Bonafé (n 102) 602.

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(i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes; (ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and (iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

The basic premise of the different requirements is still present, namely the superior-​subordinate relationship, some form of knowledge and a failure to take steps to prevent or punish but there are some significant differences between this codification and previous codifications as well as the jurisprudence of the ad hoc Tribunals. These differences have led to a discussion on whether all parts of this codification are in accordance with customary international law.191 The jurisprudence of the icc indicates that much of the interpretation of art. 28 icc Statute will be influenced in many respects by the j­ urisprudence of the ad hoc Tribunals and therefore it seems appropriate to take much of this jurisprudence as indicative for the interpretation of art. 28 icc Statute. This can for example be seen in the interpretation of the term ‘commit’, which has been interpreted in a broad manner as to include all forms of criminal responsibility, similar to the approach taken by the ad hoc Tribunals.192 Due to this likely confluence between the previously discussed jurisprudence and the interpretation of art. 28 icc Statute there will be a focus on those aspects where there is a likely difference, or where a difference has been acknowledge by the icc. The most significant difference is found in the fact that there are two different standards, one for military commanders and another for civilian superiors, while previously both were included within a unitary standard. Because of this I will first discuss those topics where there a difference exists in general requirements applicable to both military commanders and civilian superiors, before addressing aspects of the specific standards. 6.1 Causality One of the major differences between art. 28 icc Statute and the way superior responsibility was approached in the ad hoc Tribunals is in the fact that 1 91 Mettraux (n 50) 22–​23. 192 Prosecutor v. Jean-​Pierre Bemba Gombo, icc-​01/​05-​01/​08 icc Trial Chamber ii, Judgment, ¶ 175 (International Criminal Court 12 March 2016); Nerlich (n 146) 668–​669; Olasolo & Canosa Cantor (n 185) 71–​74.

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art. 28 icc Statute requires a causal connection between the omission of the superior and the crime committed by their subordinates. According to the Pre-​Trial Chamber,193 the Trial Chamber194 and several judges in the Appeals Chamber,195 the causality requirement can be found in the phrase ‘as a result of his or her failure to exercise control properly’ in both art. 28(a) and 28(b) icc Statute. This differs significantly from the approach at the ad hoc Tribunals, where any requirement of causality was rejected.196 There has therefore been significant discussion on whether requiring a causal connection differs from customary international law or should rather be seen as a return to the traditional concept of superior responsibility and is therefore more in line with customary international law than the standard applied at the ad hoc Tribunals.197 Since this differs significantly from the ad hoc Tribunals, the causal connection has led to significant discussion in literature and has been a focal point in early jurisprudence of the icc on superior responsibility. In the early responses to the icc Statute the discussion specifically focused on the question as to how causality could be construed in the context of a failure to take measures to punish the perpetrators. These measures occur after the commission of the crime and it would thus be difficult to construe a situation where there would be a causal connection between them and the actual crime. Some had therefore argued that causality could be viewed in the context of subsequent crimes, however this would create a loophole in the case where the omission of a superior in a singular case would possibly be insufficient to hold a superior responsible.198 In response to this argument the Pre-​Trial Chamber made clear that

193 Prosecutor v. Bemba, icc-​01/​05-​01/​08-​424, icc Pre-​Trial Chamber ii, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-​Pierre Bemba Gombo ¶ 423 (International Criminal Court 15 June 2009). 194 Prosecutor v. Jean-​Pierre Bemba Gombo, icc-​01/​05-​01/​08 icc Trial Chamber iii, Judgment, ¶ 210–​212 (International Criminal Court 21 March 2016). 195 Dissenting Opinion of Judge Sanji Mmasenono Monageng and Judge Piotr Hofmański ¶ 326–​339 Prosecutor v. Jean-​Pierre Bemba Gombo, icc-​01/​05-​01/​08 icc Appeals Chamber, Judgment (International Criminal Court 8 June 2018); Concurring Separate Opinion of Judge Eboe-​Osuji ¶ 188–​193 Prosecutor v. Jean-​Pierre Bemba Gombo, icc-​01/​05-​01/​08 icc Appeals Chamber, Judgment (International Criminal Court 8 June 2018); Olasolo & Canosa Cantor (n 185) 85–​86. 196 Prosecutor v. Mucić et al., Case No. it-​96-​21, Trial Chamber, Judgment ¶ 398 (International Criminal Tribunal for the Former Yugoslavia 16 November 1998); Prosecutor v. Blaškić, Case No. it-​95-​14-​a , Appeals Chamber Judgment, ¶ 75–​77 (International Criminal Tribunal for the Former Yugoslavia 29 July 2004); Mettraux (n 50) 82–​83; Robinson (n 183) 12. 197 Mettraux (n 50) 33; Dungel & Ghadiri (n 15) 10–​11; Robinson (n 183) 25–​27; McCarthy (n 60) 571–​572. 198 Meloni (n 15) 630; Robinson (n 183) 17.

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the necessity of a causal connection should only be considered when it concerns the duty to take measures against future or ongoing crimes. In cases concerning past crimes no causal connection is required, as this would, according to the ptc, create the illogical situation where the failure to punish should be causally connected to the crime it subsequently failed to punish.199 There was also discussion concerning the appropriate test to determine the causal connection. It was considered that the ‘but for’-​test would not be appropriate in the context of superior responsibility, as the liability is not based in acts, but rather in the omission to act and actively influence the actions of other individuals. Applying the ‘but for’-​test would create insurmountable obstacles for prosecution and it had therefore been considered that by the term ‘as a result’ in art. 28 icc Statute the test for causality should be an evaluation of possibilities and consider the increase in the risk of subordinates committing the crime.200 There were also authors that had argued in favour of an inverted ‘but for’-​test, that the question was whether the omitted act would have prevented the crime from occurring.201 The ptc answered this question by determining that the test to determine whether or not there was a causal connection was not the regular ‘but for’-​test that is often used to determine causality but instead a test to consider whether the ‘commander’s omission increased the risk of the commission of the crimes charged’.202 This issue of causality has however not been addressed by either the Trial Chamber or the Appeals Chamber.203 Since the approach of the ptc has not been confirmed by subsequent decisions, some uncertainty about this interpretation still remains, especially since a contrary position has been espoused by several judges at both the Trial Chamber as well as the Appeals Chamber.204 199 Prosecutor v. Bemba, icc-​01/​05-​01/​08-​424, icc Pre-​Trial Chamber ii, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-​Pierre Bemba Gombo ¶ 424 (International Criminal Court 15 June 2009); Jackson (n 186) 119; van Sliedregt (n 105) 199; Olasolo & Canosa Cantor (n 185) 86. 200 Nerlich (n 146) 673. 201 Ambos (n 30) 842. 202 Prosecutor v. Bemba, icc-​01/​05-​01/​08-​424, icc Pre-​Trial Chamber ii, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-​Pierre Bemba Gombo ¶ 425 (International Criminal Court 15 June 2009); Robinson (n 183) 54–​55; Meloni (n 15) 702–​703. 203 Olasolo & Canosa Cantor (n 185) 86. 204 Separate Opinion of Judge Sylvia Steiner, Prosecutor v. Jean-​Pierre Bemba Gombo, icc-​01/​ 05-​01/​08 icc Trial Chamber iii, Judgment, ¶ 175 (International Criminal Court 21 March 2016); Separate Opinion of Judge Kuniko Ozaki, Prosecutor v. Jean-​Pierre Bemba Gombo, icc-​01/​05-​01/​08 icc Trial Chamber iii, Judgment, ¶ 175 (International Criminal Court 21 March 2016); Dissenting Opinion of Judge Sanji Mmasenono Monageng and Judge Piotr Hofmański ¶ 326–​339 Prosecutor v. Jean-​Pierre Bemba Gombo, icc-​01/​05-​01/​08 icc

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In these opinions the judges argued in favour of requiring a causal connection in the context of punishing crimes and for a look at a connection to potential future crimes. Military Commanders 6.2 Art. 28(a) icc Statute focuses on superior responsibility in a military context and is only applicable to military commanders and persons ‘effectively acting as military commander’. The term military commander in this paragraph refers to those that are either formally or legally appointed to carry out military command.205 This is comparable to what has been referred to in the ad hoc Tribunals as de jure military commanders.206 These are the individuals for whom the concept of superior responsibility was originally intended and is generally restricted to those in traditional military hierarchy. The other group referenced in this paragraph, persons ‘effectively acting as military commanders’ are distinct as they do not have their command on the basis of formal appointment, but rather are what the ad hoc Tribunals referred to as de facto military commanders. This group has been defined as those who exercise ‘effective control over a group of persons through a chain of command’.207 As expected this group is not confined to those in the traditional military hierarchy, but are generally found in the context of irregular armed forces, such as rebel groups or paramilitary groups. They can also be a part of the regular armed forces, as long as they don’t have their command on the basis of formal appointment.208

205 206

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Appeals Chamber, Judgment (International Criminal Court 8 June 2018); Concurring Separate Opinion of Judge Eboe-​Osuji ¶ 188–​193 Prosecutor v. Jean-​Pierre Bemba Gombo, icc-​01/​05-​01/​08 icc Appeals Chamber, Judgment (International Criminal Court 8 June 2018); Robinson (n 183) 27–​28; Olasolo & Canosa Cantor (n 185) 27–​28. Prosecutor v. Bemba, icc-​01/​05-​01/​08-​424, icc Pre-​Trial Chamber ii, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-​Pierre Bemba Gombo ¶ 408 (International Criminal Court 15 June 2009). Prosecutor v. Mucić et al., Case No. it-​96-​21, Trial Chamber, Judgment ¶ 354 (International Criminal Tribunal for the Former Yugoslavia 16 November 1998); Prosecutor v. Bemba, icc-​01/​05-​01/​08-​424, icc Pre-​Trial Chamber ii, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-​Pierre Bemba Gombo ¶ 408–​409 (International Criminal Court 15 June 2009); Kiss (n 15) 614; William A Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2015) 612. Prosecutor v. Bemba, icc-​01/​05-​01/​08-​424, icc Pre-​Trial Chamber ii, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-​Pierre Bemba Gombo ¶ 409 (International Criminal Court 15 June 2009); Kiss (n 15) 614. Schabas (n 206) 612.

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Most of the application of superior responsibility for military commanders appears to be similar to the ad hoc Tribunals yet they are not entirely identical. The most significant difference can be found in the mens rea required of military commanders. While the ad hoc Tribunals operated on the standard of ‘knew, or had reason to know’, art. 28(a) icc Statute imposes the standard of ‘knew or, owing to the circumstances at the time, should have known’. The first clear textual difference is found in the use of the phrase ‘owing to the circumstances at the time’, this is unlikely to have any practical implications, as even at the ad hoc Tribunals the mental element was only considered in light of the circumstances at the time.209 The notion of ‘knew’ has been confirmed to be similarly interpreted as it was in the ad hoc Tribunals, in that it cannot be presumed, but must be established through evidence, however there are factors that can establish actual knowledge.210 The real difference can be found in the standard for constructive knowledge. Where the ad hoc Tribunals clearly followed the notion that the superior needs at least to have had ‘reasons to know’, Article 28 icc allows for superior responsibility on the basis that the military commander ‘should have known’. The ‘should have known’-​standard appears be closer to the standard applied in the eastern theatre after the Second World War and was also the standard that was originally proposed by the icrc for the codification of superior responsibility in ap i.211 In the early discussion on superior responsibility in the icc Statute several scholars argued that art. 28(a) icc Statute should be interpreted in light of the jurisprudence of the ad hoc Tribunals and that therefore ‘should have known’ should be interpreted in a similar manner as to how ‘had reason to know’ was interpreted by the icty.212 This argument was rejected by the icc, which stated that ‘should have known’ is clearly a different standard, and intentionally so, than the one included in the Statutes of the icty and the ictr and should therefore be interpreted differently.213 The ptc clarified that under art. 28(a) icc 209 This is especially the case since a reference to the ‘circumstances at the time’ was included in Article 86(2) ap i. Prosecutor v. Blaškić, Case No. it-​95-​14-​t, Trial Chamber Judgment, ¶ 324–​332 (International Criminal Tribunal for the Former Yugoslavia 3 March 2000). 210 Prosecutor v. Jean-​Pierre Bemba Gombo, icc-​01/​05-​01/​08 icc Trial Chamber iii, Judgment, ¶ 191 (International Criminal Court 21 March 2016). 211 Ambos (n 30) 846. 212 Ambos (n 30) 846–​851; Nerlich (n 146) 674; Ambos (n 102) 137–​138; War Crimes Research Office, Modes of Liability and the Mental Element Analyzing the Early Jurisprudence of the International Criminal Court (International Criminal Court Legal Analysis and Education Project 2010) 10 (hereafter: wcro) 61–​62. 213 Prosecutor v. Bemba, icc-​01/​05-​01/​08-​424, icc Pre-​Trial Chamber ii, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against

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Statute the superior need to merely have been negligent in failing to acquire knowledgeand does not require a superior to be in possession of information.214 This has been seen as the icc interpreting art. 28(a) icc Statute as putting an active duty on the superior to secure information and take measures to ensure that they are informed.215 This appears to have been the intention of the ptc, as they described the term ‘should have known’ as requiring ‘more of an active duty on the part of the superior to take the necessary measures to secure knowledge of the conduct of his troops and to inquire, regardless of the availability of information at the time on the commission of the crime’.216 This standard consequently puts a much stricter duty on the military commander than what was included in art. 86(2) ap i or in the icty and ictr Statutes and prosecution based on command responsibility has therefore more potential for success under the icc Statute than under the icty and ictr Statutes.217 By putting an active duty on the military commander the icc Statute specifically addresses the situation where a military commander deliberately fails to institute effective reporting mechanisms, as this would be a gross dereliction of their duty to stay informed.218 This confirms what was previously stated in the Lubanga confirmation of charges, where in a footnote the ptc stated “the expression ”had reason to know‟ is a stricter requirement than the “should have known‟ requirement because it does not criminalise the military superiors’ lack of due diligence to comply with their duty to be informed of their subordinates’ activities.”219 This reasoning appears to be valid, especially since there was the intention during the drafting of the icc Statute to ensure a higher degree of accountability for military commanders.220 It can be argued that the ptc applied what would be considered as a negligence-​standard,

214 2 15 216

2 17 218 219 220

Jean-​Pierre Bemba Gombo ¶ 434 (International Criminal Court 15 June 2009); wcro (n 212) 47; Meloni (n 15) 704. Prosecutor v. Bemba, icc-​01/​05-​01/​08-​424, icc Pre-​Trial Chamber ii, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-​Pierre Bemba Gombo ¶ 432 (International Criminal Court 15 June 2009). Schabas (n 206) 616. Prosecutor v. Bemba, icc-​01/​05-​01/​08-​424, icc Pre-​Trial Chamber ii, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-​Pierre Bemba Gombo ¶ 433 (International Criminal Court 15 June 2009); Meloni (n 15) 704–​705. Langston (n 10) 160; Kiss (n 15) 646. Jackson (n 186) 116; Kiss (n 15) 646; Robinson (n 130) 644–​645. Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​06 icc Pre-​trial Chamber i, Decision on the Confirmation of Charges, ¶ 358 (International Criminal Court 29 January 2007); wcro (n 212) 60. McCarthy (n 60) 572; Olasolo & Canosa Cantor (n 185) 75–​76.

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although the negligence standard was generally rejected to be included in art. 30 icc Statute.221 The interpretation of the term ‘should have known’ and whether a negligence standard is applicable in the context of art. 28(a) icc Statute was not further discussed in the Trial Judgment or the Appeals Judgment in the case of Bemba, as it was found that he had actual knowledge, therefore not requiring either chamber to resort to the notion of ‘should have known’.222 6.3 Civilian Superiors While art. 28(a) icc Statute concentrates on superior responsibility of military commanders and those persons effectively acting as military commanders, art. 28(b) icc Statute is applicable to all those who do not fall within art. 28(a) icc Statute. While not explicitly stated in art. 28(b) icc Statute this is generally regarded as concerning superior responsibility of civilians. This paragraph includes a different set of requirements than paragraph (a), even though the underlying premise of the requirements is similar, the exact application is different. The icc Statute differs significantly in this regard from prior codifications and jurisprudence on superior responsibility, which have generally applied a unitarian approach, with only evidentiary differences. It should therefore not be surprising that the different standard for civilian superiors came about after extensive negotiations and are based on compromises between differing positions. The actual distinction between the two categories of superiors was suggested and incorporated only late in the negotiations of the icc Statute after a proposal from the US delegation.223 Much of the discussion about whether art. 28 icc Statute reflects customary international law has revolved around this differentiation between military and civilian superiors, with it being suggested that this is not in accordance with customary international law.224 It has however also been suggested that it is difficult to ascertain the exact standard to be applied to civilian superiors under customary international law due to the very limited number of cases that have dealt with the issue. This was especially the case at the time of the

221 Kiss (n 15) 635; Olasolo & Canosa Cantor (n 185) 75–​76. Although it must be noted that Article 30 icc allows for exceptions to this as it states: ‘unless otherwise provided’. Ambos (n 30) 845; Kiss (n 15) 638. 222 Prosecutor v. Jean-​Pierre Bemba Gombo, icc-​01/​05-​01/​08 icc Trial Chamber iii, Judgment, ¶ 196 (International Criminal Court 21 March 2016); McCarthy (n 60) 572. 223 Ambos (n 30) 830; van Sliedregt (n 104) 392; Ambos (n 34) 848–​849. 224 Vetter (n 5) 104; van Sliedregt (n 104) 392.

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drafting of the icc Statute, and the differing applications of superior responsibility in these cases.225 There are multiple aspects in which art. 28(b) icc Statute differs from paragraph (a) and these have differing implications. Some of the changes are only textual and will not create significant difference in the application of superior responsibility between civilian and military contexts. There is for example the reference to ‘authority and control’ in paragraph (b) while paragraph (a) refers to ‘command and control’. This is to be viewed as solely a textual difference, as the terms ‘command and authority’ and ‘authority and control’ need to be interpreted substantially the same, especially seeing as the term ‘command’ has been understood to be defined as ‘authority, especially over armed forces’.226 A more significant difference is the fact that paragraph (b) includes an extra subparagraph that has no equivalent in paragraph (a). This concerns the subparagraph:

(ii) The crimes concerned activities that were within the effective responsibility and control of the superior

This has been seen as recognizing the factual difference between military commanders and civilian superiors. Military commanders generally have far greater control over their troops, with control over almost all of their troops’ actions, while civilian superiors have far more limited control over their subordinates.227 This stems from the fact that in most military circumstances there is already a strict control and punishment system that ensures far greater control of a military commander than is generally applicable in civilian situations.228 This interpretation would fall in line with the approach that has been taken in the jurisprudence on the issue of civilian superiors.229 This change in control 225 Vetter (n 5) 110–​111; Mettraux argued that specifically the interpretation of superior responsibility in the case of non-​military superiors was in line with the customary legal standard, while it is the standard for the military superior which goes beyond of what is included within international customary law. Mettraux (n 50) 27. 226 Mettraux (n 50) 29; Meloni (n 15) 701–​702; Kiss (n 15) 618–​619. 227 Vetter (n 5) 120; Ambos (n 30) 840; Mettraux (n 50) 32–​33; Ronen (n 37) 350; Kiss (n 15) 621. 228 Ambos (n 30) 840; Kiss (n 15) 613. 229 Perhaps with the exception of the imtfe judgments which are generally considered as being too expansive concerning their application of superior responsibility for civilian superiors. It is however to be remembered that much of this jurisprudence was created after the adoption of the Rome Statute and can clearly be seen as part of the reasoning within relevant jurisprudence, Prosecutor v. Kayishema et al., Case No. ictr-​95-​1, Trial Chamber, Judgment ¶ 213–​224 (International Criminal Tribunal for Rwanda 21 May 1999); Ronen (n 37) 350–​351.

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will also have the effect that especially the third aspect of the underlying duty to take measures, namely to submit the matter to the competent authorities, will be of greater importance in the context of civilian superiors.230 The other significant difference can be found in the applicable standard for constructive knowledge, while this has been greatly expanded in the case of command responsibility, the possibility of constructive knowledge is much more restricted in the case of civilian superiors. Unlike a military commander who can be held responsible if they “knew or, owing to the circumstances at the time, should have known”, a civilian superior can only be held responsible if they “knew, or consciously disregarded information which clearly indicated”. This difference comes from a compromise between the original US proposal, which would only allow for superior responsibility of civilians in the case of actual knowledge, and the criticisms against this from those states which were in favour of a negligence standard for both military and civilian superiors.231 The approach adopted for civilian superiors has been argued to be close to the standard that has been applied at the icty and similar to requiring individuals to ‘have reason to know’ in that they must be put on notice of the need to investigate further, this information must be ‘sufficiently alarming … putting a superior on notice of the risk that crimes might subsequently be carried out by his subordinates’.232 It has however also been argued to be significantly different from the standard applied by the ad hoc Tribunals, as the mere possession of information, regardless of whether there was awareness of its content by the superior, would generally not be sufficient. The need for conscious disregard requires that there is a degree of awareness of what the information is, therefore it should be considered as comparable to wilful blindness.233 This latter interpretation seems to be the more in line with the drafting history, due to opposition of several states to the imposition of superior responsibility to civilians and therefore restricting the concept.234 6.4 Nature of Superior Responsibility under Article 28 icc Statute Much of the discussion about the application of superior responsibility in the ad hoc Tribunals has focused on the question of the exact nature of superior responsibility. This discussion did not abate with the adoption of the icc 230 Vest (n 1115) 869; Brian Seth Parker, ‘Applying the Doctrine of Superior Responsibility to Corporate Officers: A Theory of Individual Liability for International Human Rights Violations’ (2012) 35 Hastings International & Comparative Law Review 1–​27, at 14. 231 Ambos (n 30) 830–​831; Ambos (n 34) 849. 232 Schabas (n 206) 617. 233 Vetter (n 5) 124; Ambos (n 30) 851–​852; Nerlich (n 146) 674; van Sliedregt (n 104) 392. 234 Lehnardt (n 146) 1029–​1030.

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Statute, instead a similar discussion has arisen about art. 28 icc Statute, with different authors discussing whether it should be seen as a mode of responsibility235 or as a separate crime of omission.236 For now this debate seems to have been decided with the statement of the Court in the confirmation of charges in the Bemba-​case: The Chamber notes that article 28 of the Statute reflects a different form of criminal responsibility than that found under article 25(3)(a) of the Statute in the sense that a superior may be held responsible for the prohibited conduct of his subordinates for failing to fulfil his duty to prevent or repress their unlawful conduct or submit the matter to the competent authority.237 This statement by the Court seems to indicate that in their eyes superior responsibility should not be seen as a crime of omission of the superior but rather as a form of criminal responsibility of the superior for the underlying crime.238 It is however debatable whether this is the correct interpretation as the Trial Chamber seemed to indicate that superior responsibility should be approached on the basis of the sui generis interpretation.239 This was also debated in the Separate Opinion of Judge Ozaki240 and has been put forth by some in the literature.241 7

Applicability of Superior Responsibility to aws

As discussed in the previous chapter, the main issue that needs to be debated is whether an individual can be held accountable for the actions of an aws when this action is not directly programmed or instructed. As stated, this does not truly fall within the context of indirect perpetration due to the fact that the 2 35 Ambos (n 30) 933–​835; van Sliedregt (n 104) 397; Jackson (n 186) 114–​115. 236 Ambos (1046) 131; Ambos (n 34) 851 Yokohama (n 118) 287. 237 Prosecutor v. Bemba, icc-​01/​05-​01/​08-​424, icc Pre-​Trial Chamber ii, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-​Pierre Bemba Gombo ¶ 436 (International Criminal Court 15 June 2009). 238 Jackson (n 186) 115. 239 Prosecutor v. Jean-​Pierre Bemba Gombo, icc-​01/​05-​01/​08 icc Trial Chamber iii, Judgment, ¶ 171–​174 (International Criminal Court 21 March 2016). 240 Separate Opinion of Judge Kuniko Ozaki, Prosecutor v. Jean-​Pierre Bemba Gombo, icc-​01/​ 05-​01/​08 icc Trial Chamber iii, Judgment (International Criminal Court 21 March 2016). 241 Yokohama (n 118) 290.

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commission of the crime was not directly intended by the person deploying the system or programming the system and therefore it needs to be determined whether holding someone accountable for situations where the c­ ommitted crimes were not directly intended is possible under a different form of responsibility. The mode of responsibility that would most likely address this issue is superior responsibility, since as has been shown in this chapter, this form of responsibility was specifically intended to address crimes committed by subordinates without direct instructions to do so from superiors. The concept of superior responsibility is one that is often brought up as a possible consideration or even solution to the question of criminal responsibility for act of aws. It is therefore appropriate to discuss whether this form of responsibility could be applicable in the context of aws. This section will go through the different requirements for superior responsibility and discuss whether these requirements could be met in the context of aws. While, as has already been seen in the chapter on direct responsibility of aws themselves, in the case where the physical act is performed by an aws without direct instruction, it cannot truly be said that there is a principal perpetrator, which thus made it impossible for there to be accessorial liability. It therefore makes sense to question why this chapter goes into such detail into the question of the applicability of superior responsibility, as prima facie one would say that a similar concise response would be sufficient to deal with this question. However, the frequency with which this theory is put forth as a solution to the issue of aws in the literature and in the debate and the consistency in which it has been brought up warrant a more in-​depth look at the mode of responsibility. There are also certain aspects of this mode of responsibility which differ in the relation between the principal and the other and it can be said that superior responsibility can not truly be considered a form of accessorial liability, as the superior is not held accountable with relation to the acts of the principal, but they are held accountable for the crimes through their own omission. Having said that, there still exists the issue that there is the need for an international crime to have been committed by subordinates as an underlying ­prerequisite for the application of superior responsibility. This immediately creates a problem, since as discussed in Chapter 6 it is impossible for aws as they exist and are likely to exist to, in the strict sense, commit such a crime, as they do not have the prerequisite mens rea. While the term ‘commit’ is interpreted in a broad sense in the context of superior responsibility, it seems unlikely that this could be interpreted in such a way as to include the commission of acts by aws, since even in the broad interpretation, it still requires the subordinate to fulfil the requirements of a form of criminal responsibility,

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either under art. 25 icc Statute or art. 28 icc Statute. This would therefore immediately invalidate the application of superior responsibility to the context of aws. The nature of superior responsibility as a sui generis form of criminal responsibility where the superior is not held accountable as a party to the crimes of their subordinates, but they are the underlying criminal basis due to which the superiors own omission might be considered as criminal,242 could potentially allow for an even broader interpretation of the term ‘commit’. It is therefore appropriate to consider the issue further to see whether the concept in general could be applied to the context of aws. An argument that has been brought against the applicability of superior responsibility proposes that there would be no, or at least not sufficient effective control over these systems.243 This argument assumes that due to possible communication errors, programming errors or mechanical malfunctions, the superior would not be in a position to exercise de facto control over these systems. While this argument has some inherent plausibility and might be correct in some cases, one would assume that military commanders would have the ability to prevent the commission of crimes, at the very least through recalling or deactivating the system. This would allow for the exercise of effective control in the vast majority of situations. It does not appear to be realistic that military commanders would employ these systems without these capabilities. Therefore, unlike some of the criticisms that are made against the existence of effective control, it would appear likely that military commanders would have at least some form of de facto control over the systems, as these would, in all likelihood, not be employed without the possibility of activating failsafe procedures. However, while I believe that there can be effective control over these systems, the more pressing question here is whether aws can be considered as subordinates. The ad hoc Tribunals have taken a relatively broad stance over who can be subordinates, not even requiring the exact perpetrators to be identified as long as they can be identified to belong to a group of the superior’s subordinates. But while they have taken a broad view and have not explicitly stated that these need to be human beings, the latter is an underlying assumption and requirement. The subordinate as it is currently understood needs to be a human being who is under the effective control of the superior. However, the underlying notion of superior responsibility, namely the prevention or punishment of crimes committed by those under a superior’s control, might

2 42 Mettraux (n 50) 64–​65. 243 Docherty (n 1) 24.

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warrant the expansion of the concept to non-​human entities, especially highly intelligent aws. This would require a reconceptualization of the concept into a broader form of criminal responsibility, as it would not realistically fall within the current understanding of the concept. It would also require a difficult determination of when a system would be intelligent enough to fall within the concept of subordinate and which types of entities would be part of the new concept, as such a change would have far-​reaching consequences. This would thereby go beyond the sui generis approach to the nature of the concept and would require viewing superior responsibility as a separate crime. The second requirement for superior responsibility is that the military commander either ‘knew or should have known’ or the civilian superior ‘knew or consciously disregarded information’. Determining knowledge would in many regards have similar issues in the case with aws as there are in the case with regular troops, since aws operating in truly autonomous fashion would likely not be subject to constant and complete oversight, thus creating the situation where there might not always be knowledge of crimes about to be or having been committed. This would therefore often preclude the existence of actual knowledge, especially in the case where the committing of the crime had not been programmed or instructed. Consequently, there would need to be a reliance on constructive knowledge, meaning in the case of military commanders that they ‘should have known’ or in the case of civilian superiors that they ‘consciously disregarded information’. It is here that the difference between human subordinates and aws start to create issues. This difference is especially pronounced in the possibility of constructive knowledge prior to the commission of a crime. In the case of human subordinates, the existence of knowledge is more likely, as human subordinates often require planning or organizing prior to the commission of a crime or at least there is the potential for indications that possible crimes could be committed. This is harder, if not almost impossible to establish in the context of aws. The commission of crimes by aws would generally not have much prior information available, since they are often the outcome of split-​seconds decisions by the programming of a system in a specific instance. It could be argued that if there has been evidence of prior unlawful acts by an aws, these might be indications for possible risks of future unlawful acts. However, the question that then must be asked is if these indications only create the notice of risk required for superior responsibility for that specific system, any of its make, model or any that includes specific programming? This needs then to be immediately tied to what level of programming and it knowledge should be required of individuals employing these systems, because without sufficient knowledge of programming and the interactions between algorithms it would

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hardly be possible for most persons to identify and quantify this risk. It would therefore be almost impossible to determine when constructive knowledge exists and rises to even the relatively low level of ‘should have known’. This is exacerbated by the fact that these systems will likely be developed in a decentralized manner, which would potentially not even allow for a clear indication as to how all the algorithms would interact in any given situations, thereby not allowing for the existence of such constructive knowledge. This leads to a conclusion that mens rea is a significant, if not impossible hurdle, not only in how to legally conceptualize it in the context of aws but even more in how to practically evidence it. The third requirement of superior responsibility is that the superior fails to take reasonable and necessary measures to prevent, repress or submit the matter to the proper authorities. As discussed, this is closely linked to the notion of effective control and therefore in the case of communication errors or malfunctions it might not be possible for a superior to take the appropriate measures, leading to no-​one possibly being held accountable. In the vast majority of cases however there would be potential to take measures to prevent the commission of crimes, with those cases where this is not possible also probably not providing the superior with the requisite knowledge to hold them accountable. It has also been put forth that there is no possibility to punish aws and that therefore superior responsibility would not be an appropriate form of responsibility that would alleviate the issues concerning individual responsibility. While I agree that it is not possible to punish an aws, as it would not have any comprehension of such punishment, this does not automatically mean that superior responsibility would not be applicable. In the jurisprudence as well as art. 28 icc Statute there is the acknowledgement that superiors that do not have the authority or the powers to actually punish perpetrators of crimes, can still be held accountable in those cases where they fail to take measures to prevent the commission of crimes, or where they fail to submit the matter to the proper authorities. The latter might be of a different consequence in the case of aws, however not less important, for if information about the commission of a crime by an aws would not be submitted it could potentially lead to the commission of future crimes by aws if a possible malfunction or programming error would not be brought to light. Therefore, while the exact reason for the submission of the matter to the authorities might be different, it is not any less important and the underlying rationale for it is similar, namely the prevention of future crimes. In this regard there do not appear to be any hurdles to overcome this requirement that are specific to aws.

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Conclusion

Superior responsibility is perhaps the mode of responsibility that has been most discussed as being a possible solution to the issue of individual responsibility for unintended actions of aws.244 However, as this section shows, applying it to the situation of aws would likely stretch the notion of superior responsibility too far. While certain requirements could be interpreted in such a manner as to meet them, they would all need to be adjusted and applied differently in the context of aws and would require a reformulation of the concept. This makes it hard to imagine the icc going so far as to basically reconceptualize the concept of superior responsibility and broaden the different requirements significantly. By doing so the icc would significantly alter the nature of superior responsibility, which would have significant consequences, not only in the context of aws. It therefore cannot realistically be assumed or even really considered that this is a likely development, leading to the conclusion that superior responsibility would not be an appropriate form of criminal responsibility to address the issue of aws.

244 See e.g. Docherty (n 1) 20–​25; Markus Wagner, ‘The Dehumanization of International Humanitarian Law: Legal, Ethical, and Political Implications of Autonomous Weapon Systems’ (2014) 47 Vanderbilt Journal of Transnational Law 1371, 1407; Gevers (n 149); Chantal Grut, ‘The Challenge of Autonomous Lethal Robotics to International Humanitarian Law’ (2013) 18(1) Journal of Conflict & Security Law 5; 17–​20; Benjamin Kastan, ‘Autonomous Weapon Systems: A Coming Legal Singularity?’ (2013) 45(1) Journal of Law Technology and Policy 45, 80; Margulies (n 1); Dunlap (n 1) 70–​71; McDougall (n 1) 77–​78.

­c hapter 9

Conclusion This study set out to investigate the question as to how to address the issue of autonomous weapons within international criminal law. However, throughout the investigation it was soon found that perhaps the more pressing question would be whether it would be possible to find a form of criminal responsibility within international criminal law that could address this issue. Within the literature several approaches had been discussed, most prominently direct perpetration and command responsibility; however, often these did not provide in-​depth reasoning for their potential applicability. 1

Conclusion

It is clear that there has been a continued progression within arms development towards increasing the automation within weapon systems. This is likely to progress onward, even with the ongoing discussion concerning the legality and ethicality of it. The development of increasing use of programming within many weapon systems is likely to continue until autonomous functioning is achieved. This is not readily achievable yet at the moment, but progress in certain aspects is making it increasingly likely that this will be achieved in the foreseeable future. This is likely to first take the form of autonomous movement and autonomy in different functions, with autonomy within the critical functions of a weapon system, namely with regard to targeting, being the final step, a step that as of yet still seems to be some time in the future. Several different concepts and developmental pathways have been discussed to incorporate autonomy in a manner that would comply with the relevant legal regimes. While it is unclear what exact form of autonomy will be developed, it appears likely that some form of autonomy will be incorporated in some weapon systems in the foreseeable future. The term autonomy can by itself still create significant discussion and needs to be clearly defined when discussing aws. The very understandings of autonomy as present in either philosophy or engineering do not by themselves seem to be entirely relevant to the context of aws. Many of the different approaches to autonomy that have been proposed in the past create difficulties when attempting to apply them to the issue of aws. This in part explains the problems that have arisen in the discussions on potential regulation on aws, as one

© Barry de Vries, 2023 | DOI:10.1163/9789004524316_010

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of the major stumbling blocks in these initial stages has been how to approach the definition of aws. In the discussions on aws it has become clear that what is relevant is the type of decision being automated and that the main issue lies with weapon systems which are capable of autonomy within the decision to use force. The existence of autonomy in other aspects of a systems functioning are not those that are contested. This development of autonomy has led to a broad discussion about the legality as well as the morality of developing and employing autonomous weapons. This discussion touches on many different fields, it has especially been debated with regard to international humanitarian law, human rights law and criminal law. It has also raised questions which are not of a legal nature but have been very influential in the discussions on aws and the potential responses to aws. This has been especially noteworthy with regard to moral, ethical and philosophical questions that are being raised by the potential use of force by aws. It is from this range of questions that the question of criminal responsibility for the actions of aws come. While in essence a legal question concerning the applicability of individual responsibility, it touches on the other questions. With regard to humanitarian law there is the requirement to hold individuals accountable for grave breaches of the Geneva Conventions and their Protocols. In the context of human rights law, the question of possibility of accountability is linked to the notion whether there can be an effective remedy in those instances where a crime is committed by or through an aws. This all combined with the specific need for criminal justice responses in some regards, especially in the context of international crimes, makes it imperative that the question of criminal responsibility is asked. International criminal law has been given many different objectives and reasonings, it is debatable whether some of these can be attained through international criminal law, however it clearly shows the importance that is placed upon international criminal law and why the issue of individual criminal responsibility for the actions of aws has been a contentious and important issue in the debates on the development of aws. The first approach that has been discussed is whether aws could potentially be addressed through them being considered as a prohibited weapon. There are two potential manners in which this can be done. The first would be to create a specific subparagraph in article 8 icc Statute that would create a specific war crime to employ these systems. This is however quite unlikely, especially since there is no sense of consensus on whether these systems should be banned making it unlikely that such an amendment would be successfully adopted. The other option would be to include aws within an annex under article 8(2)(b)(xx) icc Statute, which has specifically been included in order to allow new weapons to fall within the remit of Article 8(2)(b) icc Statute.

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This however poses the issue that the subparagraph makes clear that this is intended for those weapons which would be prohibited on the basis of the general principles of weapons law under ihl, meaning that they either are of a nature to cause superfluous injury or unnecessary suffering or that they would be inherently indiscriminate. It is unlikely that aws would go against either of these principles in general, therefore making it more difficult to fit them within this subparagraph. The other general notion described within this subparagraph, namely that there is a comprehensive prohibition, will also not be met with regard to aws, at least not within the foreseeable future and potentially not at all. While this is the case it would still be possible to include these systems under an annex of Article 8(2)(b)(xx) icc Statute, since the Assembly of States Parties has complete discretion in this regard. However, it is unlikely that this option would be chosen, firstly because it is unlikely for there to be a majority of states in favour of a blanket prohibition on the use of aws and secondly there appears to be a general aversion to using this paragraph, as can be seen by the decision to opt for the creation of new subparagraphs with regard to weapons that should be prohibited rather than the adoption of an annex. Turning away from the potential crime of employing aws and focusing on concepts of responsibility, this book first determined whether aws can themselves be held accountable for their actions. This question brings with it some philosophical debate concerning what can be considered as intelligence and how this could potentially be approached, however these philosophical issues are of limited concern when discussing this topic from an international criminal law perspective. International criminal law goes around this philosophical debate and provides a relatively simple and straightforward answer. Even when one disregards the impossibility of the icc exercising jurisdiction over a non-​natural entity the answer is relatively uncomplicated. While it is possible for non-​natural entities to have some form of mens rea, it appears unlikely that the aws that are currently being developed and foreseen to have any sense of true moral agency. It is here that the concept of mens rea does need to link to the more philosophical question of what can be considered as ‘own’ will as well as ‘free’ will. In the context of mens rea this requires the existence of an autonomous purpose, which is something that cannot truly exist in the context of aws, even if one were to develop ‘strong’ ai, the system would still be bound by its programming for its purpose and therefore not free in its decision-​making. This would also be seen as being in line with several reasons for international criminal justice being incompatible with punishing aws themselves. It is impossible to truly punish an aws, thereby negating the potential punitive effects of criminal prosecution, it would also not lead itself to a deterrent effect, since aws would have no concept of such punishment,

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this is similarly the case in the context of potential rehabilitative effects. This all also ensures that there is no possibility of accessorial accountability being applicable to human persons either, since if there is no principal there can be no derivative accountability, thereby precluding the applicability of concepts such as aiding and abetting, instigating, etc. The next concept of accountability that has been discussed was the notion of perpetration. This chapter showed that perpetration would be the appropriate situation where an individual directly programs or instruct an aws to act in a manner which would constitute an international. This would be a more appropriate form of accountability than ordering, although many use the term ‘ordering’ to describe instructing the aws to engage in a specific course of action. Because there is a more direct line between the person giving the instruction/​programming there is no need to turn to derivative forms of accountability, such as ordering, especially since these would not be applicable. This is also in line with the general notion within international criminal law that those who are most responsible should be held accountable through the most direct manner, as there is the view that Article 25 icc Statute includes a form of normative order as to the level of culpability for each of the forms of accountability discussed in this article. By recognizing that there is a direct and causal line between the instruction and the act, without any real other links between the instruction and the act, this stands to reason that the one that gives the ‘order’ for an aws to commit such an act is realistically the one who is most and most often solely responsible. This, however, is not the main issue with aws, but rather who to hold accountable in those cases where no-​one gave direct instructions, where an aws goes beyond its instructions, as it can potentially do. In these cases, it is not possible to hold the individual directly accountable, as there is no individual who gave the instruction. Because of this, direct perpetration is not an option to hold anyone accountable, as it cannot be immediately said that the individual that either employed the system or who programmed the system has fulfilled the requisites of either the material or the mental elements of the crime. This therefore required to look further than simple direct commission and see whether other forms of commission might be applicable. Joint commission can be disregarded because of a similar reason why there cannot be derivative accountability, as the aws cannot itself fulfil the mental element it cannot be said to be a co-​perpetrator, without the existence of co-​perpetrators it is impossible for there to be joint commission. Indirect perpetration within the icc allows for the accountability of an indirect perpetrator even in those cases where the individual enacting the material element is themself not criminally accountability, as such the

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determination on whether this is applicable to aws is an important one. As discussed, it is not necessary to resort to this theory in those cases where there has been direct instruction or programming, as this can be resolved using regular commission as a method of criminal responsibility. While some indication could be found that would speak to some aspects of this concept being applicable, there is a significant issue in applying this mode of accountability to this situation and that is that there needs to be the initial instruction of the indirect perpetrator as otherwise it could not be said that the indirect perpetrator enforced their will. Some indication can be found in the application of Organisationsherrschaft by the icc that this could be seen in a broader manner in the context of Organisationsherrschaft with the attribution of acts as long as they were committed within the context of the objectives of the indirect perpetrator. However, while this originally seemed to indicate that some form of dolus eventualis could be applied for Organisationsherrschaft with the reference training regimes in Katanga and Chui potentially being analogous to programming for aws, the notion of dolus eventualis was explicitly rejected by the Trial Chamber as well as the Appeals Chamber as not having any grounding within Article 30 icc Statute. This thereby closes of the possibility of using indirect perpetration in general and Organisationsherrschaft in particular in the context of aws that act outside of on an explicit instruction, as accountability for these actions would normally not exceed dolus eventualis. This led the research to turn to the only clear possibility within the Rome Statute to hold individuals accountable for the actions of others, where these actions were not explicitly known and accepted by the individual, namely superior responsibility of Article 28 icc Statute. This form of responsibility is the only form of responsibility truly coming from international criminal law and has been developed since World War ii by the different international tribunals and several international treaties. Over the course of these decisions and treaties it has become clear that a superior can be held accountable in those cases where they either knew or should have known that their subordinates were about to or had committed crimes and they did not take measures to prevent or repress these crimes. This makes clear that this form of responsibility has been developed specifically to address the situation where the committed acts were not directly instructed or ordered. It is this that has led multiple authors to argue that superior responsibility is the most appropriate form of accountability to address the issue of aws responsibility. As this form of responsibility is not directly a form of derivative responsibility, but rather a sui generis form of accountability which hold the superior themself responsible for their own omission with regard to the crimes, this could be argued to allow for superior responsibility to be applicable. However, even

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though it is not strictly a form of derivative responsibility, it has been held that regardless of this fact there still needs to be a crime which has been committed by a subordinate. The problem here is how the term subordinate is to be understood and how there is an underlying assumption, even if it is not explicitly stated, that this concerns human beings who commit the crime, thereby it needs to logically be understood as precluding aws as subordinates. This itself could potentially be altered; however, this is not the only issue with applying superior responsibility to the context of aws. The difference between aws and humans oftentimes precludes the existence of constructive knowledge, since unlike in the context of human subordinates there generally would not be the existence of evidence that an aws is going to commit a crime. When you combine this with the fact that in the context of aws there is no real possibility for a superior to take action ex post facto, due to the lack of a possibility to punish the crime, it appears as though the situations that gave rise to the concept of superior responsibility are ill-​suited to be applied similarly to the context of aws. Applying the concept of superior responsibility would require the aspect of superior responsibility to be stretched to such a degree that the concept does not appear to be logical as it would result in a general reconceptualization of the entire concept of superior responsibility. This leads to the conclusion that there is no form of criminal responsibility in international criminal law that can truly be applied. This goes against the arguments made by some scholars that the issue of individual criminal ­responsibility can be easily resolved by applying existing forms of criminal responsibility. It confirms the view of some that the issue of individual ­criminal responsibility cannot be addressed by current international criminal law and provides a solid foundation for this argument, going further than the manner in which this is often stated as a ‘statement of fact’ without providing much support for this position. 2

Ban the Bot?

This conclusion could be seen as lending credence to the arguments made by those that seek to ban the development and employment of autonomous weapons systems. This argument has been made for example by Human Rights Watch, as well as several other NGOs and several scholars. While my answer to the question of whether international criminal law can address the issue of aws is similar to these activists, I do not follow their reasoning that this in itself is an issue or that this should lead to a ban on the development or employment of these weapons.

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The fact that individual criminal responsibility cannot be addressed so easily by current international criminal law, this does not automatically support a ban on these systems. This firstly is due to the fact that the legality of weapon systems does not hinge on the potential accountability for their employment, but within international humanitarian law only two aspects are to be ­concerned, as discussed in Chapter 5, whether they are of a nature to cause superfluous injury or unnecessary suffering or whether they are inherently indiscriminate. This means that for the inherent illegality of a weapon system the issue of accountability is not a consideration to be made. However, while the lack of individual criminal responsibility would not in itself create the situation that the development or employment of aws would be unlawful, it could be argued that this brings into question the ethicality of developing systems whose potential illegal actions cannot be addressed through criminal responsibility. This has been linked to potentially violating the right to an effective remedy. The question that then first needs to be answered is whether there is a need for international criminal responsibility specifically, especially in those cases where it can be said that any form of intent is non-​ existent. Since, as discussed the main issue is not whether or not someone can be held accountable on the basis of them instructing or programming an aws to commit what would amount to international crimes, it seems clear that in these cases the aws need to be viewed as nothing more than an instrument. There is a deliberate reason why dolus eventualis was not included within the Rome Statute, as there was the view that international criminal law should primarily be focused on those that had the most guilt, high levels of guilt are generally coinciding with the existence of intent. This however raises the question as to why this should not be the same in the case where the aws commits what amounts to an international crime, outside of the purview of what it has been programmed to do, thus questioning whether or not it should still be an instrument, thereby leaving the individual employing or programming the system outside of criminal accountability unless there is some form of intent. It seems out of this research that this is the appropriate approach according to international criminal law as it stands at this moment, however many view this as inappropriate and contrary to the human right of effective remedy as well as the idea that there is the moral need to hold an individual accountable. However, as international criminal law stands today, this is not possible. I am of the view that this question should be seen in a broader context and while there might not be a solution available within the icc, this does not mean that there would be no potential for an effective remedy, or even for potential criminal responsibility. While international criminal law has certainly created or further developed certain forms of criminal responsibility, this is only a very

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narrow field of criminal justice. Due to the limited capacity of the icc as well as the limited jurisdiction of international criminal justice mechanisms, the more important mechanism to address questions of international crimes and especially war crimes is and will remain national criminal justice. It is here that we can potentially turn to national criminal law, many of which do allow for the existence of dolus eventualis or some form of negligence, it is potentially possible that within these concepts a form of individual responsibility can be found that is more appropriate to apply to the context of aws. There is not the requirement for criminal responsibility to specifically be at the international level, especially since many of the objectives that are there for international criminal responsibility are just as applicable, with some being even more effectively addressed at the domestic level. This does not mean that current national legislation or jurisprudence provide clear answers as to how to deal with the issue of aws; however, national law is much more flexible and capable of responding to new developments. Many of the issues that have been discussed in this book will need to be addressed in the development of national law as well, especially seeing as in many cases the development of international criminal law concepts of criminal responsibility have been on the basis of concepts taken from national law, or as in the case of superior responsibility its inclusion within national jurisdictions has been based on international criminal law. By taking into account the issues highlighted within this study it would be possible for national jurisdictions to either adapt existing forms of criminal responsibility or develop either new crimes or new forms of criminal responsibility. The fact that there is currently not an effective approach to deal with the issue of aws within criminal law, either internationally or nationally, does not necessarily mean that there is not the possibility to address the issue within the future, especially due to the increase in knowledge about the issue. This is not an issue that is restricted to the question of responsibility for international crimes, but similar discussions have been rising up with regard to autonomously driving cars. In this regard the ongoing case in the U.S.A. concerning the death of a person, Elaine Herzberg, due to a self-​driving car can be instrumental in determining the approach taken within the U.S.A. The operator of the self-​driving car has been charged with negligent homicide due to the fact that she was not paying attention and did not intervene.1 This has been the first recorded death from such a situation and consequently also the first time

1 https://​eu.usato​day.com/​story/​money/​2020/​09/​15/​uber-​saf​ety-​dri​ver-​rafa​ela-​vasq​uez-​char​ ged-​neglig​ent-​homic​ide-​2018-​fatal-​crash-​ariz​ona/​581​1636​002/​.

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someone has been charged under these circumstances, it is therefore possible that this will be a precedent-​setting case that will have significant influence on the direction accountability for autonomous systems will take. There will, however, likely not be a singular response to the question from all jurisdictions; however, the manner in which jurisdictions have and will address this issue can potentially inform responses to aws. As this case shows, it is likely that courts and legislators will need to deal with the issue of criminal responsibility sooner rather than later. And in light of the likely continued development towards more autonomy within weapons systems this will not be different for aws and this study not only shows the difficulties within international criminal law, but also many of the issues that will arise within national jurisdictions to address aws. It is therefore also significant that in the case in Arizona U.S.A. the woman has been charged with negligent homicide, a form of criminal responsibility that cannot be relied upon in current international criminal law. It appears likely that it will be necessary to rely on negligence or dolus eventualis to allow for the individual criminal responsibility of any individuals, which creates the situation that either international criminal law will need to be altered to allow for accountability on this basis, or otherwise there will be no possibility within international criminal law to hold anyone accountable for the actions of aws.

Treaties, Conventions & Domestic Legislation Lieber Code (U.S. War Department, General Orders No. 100, 24 Arp. 1863) 1863 St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight (29 November/​11 December 1868) Convention (ii) Respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, 29 July 1899, 32 Stat 1803, Treaty Series 403 Hague Peace Conference: Declaration on the Use of Bullets Which Expand or Flatten Easily in the Human Body; July 29, 1899 Convention (iv) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, 18 October 1907, 36 Stat. 2277; Treaty Series 539 Treaty of Peace between the Allied and Associated Powers and Germany, June 28 1919 Treaty of Peace Between the Allied powers and the Ottoman Empire, signed at Sèvres August 10 1920 Treaty of Peace with Turkey Signed at Lausanne 24 July 1923 Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, 17 June 1925, (1929) 94 League of Nations Treaty Series 65 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal, London, 8 August 1945 Charter of the International Military Tribunal for the Far East, 19 January 1946 International Covenant on Civil and Political Rights 16 Dec. 1966 999 u.n.t.s 171 Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol i), 8 June 1977 1125 unts 3 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction 26 march 1975, 1015 u.n.t.s. 163 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 2 Dec 1983, 1342 u.n.t.s. 162 Protocol (i) on Non-​Detectable Fragments to the 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, 2 Dec 1983, 1342 u.n.t.s. 168

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Protocol (ii) on Prohibitions or Restrictions on the Use of Mines, Booby-​traps and Other Devices to the 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, 2 Dec 1983, 1342 u.n.t.s. 168 Statute of the International Criminal Tribunal for the Former Yugoslavia 25 May 1993 UN Doc s/​r es/​827 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction 29 Apr. 1997 1975 u.n.t.s. 469 Protocol (iv) on Blinding Laser Weapons to the 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, 30 July 1998 2024 u.n.t.s. 163 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-​Personnel Mines and on their Destruction 1 March 1999, 2056 u.n.t.s. 211 Rome Statute of the International Criminal Court, 01 July 2002 2187 u.n.t.s. 3 Amendment to Article i of the 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, 18 May 2004, 2260 u.n.t.s. 82 Convention on Cluster Munitions 1 August 2010, 2688 u.n.t.s. 39 Protocol on Amendments to the Protocol of the Statute of the African Court of Justice and Human Rights, 27 June 2014, Malabo

Jurisprudence

icj

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion 1996 i.c.j. Rep. 226

icty

Prosecutor v. Tadić, Case No. it-​94-​1, Appeals Chamber, Decision on the defence motion for interlocutory appeal on jurisdiction (International Criminal Tribunal for the Former Yugoslavia 2 October 1995) Prosecutor v. Erdemovic it-​96-​22-​T, Trial Chamber Judgement (International Criminal Tribunal for the Former Yugoslavia 29 November 1996) Prosecutor v. Mucić et al., Case No. it-​96-​21, Trial Chamber Judgment (International Criminal Tribunal for the Former Yugoslavia 16 November 1998) Prosecutor v. Milorad Krnojelac, Case No. it-​97-​25-​p t, Pre-​Trial Chamber, Decision on the Defence Preliminary Motion on the Form of the Indictment (International Criminal Tribunal for the Former Yugoslavia 24 February 1999) Prosecutor v. Aleksovski, Case No. it-​95-​14/​1-​t, Trial Chamber Judgment (International Criminal Tribunal for the Former Yugoslavia 25 June 1999) Prosecutor v. Tadić, Case No. it-​94-​1-​a , Appeals Chamber Judgment, (International Criminal Tribunal for the Former Yugoslavia 15 July 1999) Prosecutor v. Blaškić, Case No. it-​95-​14-​t, Trial Chamber Judgment (International Criminal Tribunal for the Former Yugoslavia 3 March 2000) Prosecutor v. Aleksovski, Case No. it-​95-​14/​1-​a , Appeals Chamber Judgment (International Criminal Tribunal for the Former Yugoslavia 24 March 2000) Prosecutor v. Mucić et al., Case No. it-​96-​21-​a , Appeals Chamber Judgment (International Criminal Tribunal for the Former Yugoslavia 20 February 2001) Prosecutor v. Kordić & Čerkez Case No. it-​95-​14/​2, Trial Chamber Judgment (International Criminal Tribunal for the Former Yugoslavia 26 February 2001) Prosecutor v. Krstić Case No. it-​98-​33, Trial Chamber Judgment (International Criminal Tribunal for the Former Yugoslavia 2 August 2001) Prosecutor v. Milorad Krnojelac Case No. it-​97-​25-​T, Trial Chamber Judgment (International Criminal Tribunal for the Former Yugoslavia 15 March 2002) Prosecutor v. Hadžihasanović & Kubura, Case No. it-​01-​47, Appeals Chamber i Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility (Partial Dissenting Opinion of Judge

262 Jurisprudence Shahabuddeen) (International Criminal Tribunal for the Former Yugoslavia 16 July 2003) Prosecutor v. Milomir Stakić, Case No. it-​97-​24, icty Trial Chamber ii Judgment (International Criminal Tribunal for the Former Yugoslavia 31 July 2003) Prosecutor v. Milorad Krnojelac Case No. it-​97-​25-​a, Appeals Chamber Judgment (International Criminal Tribunal for the Former Yugoslavia 17 September 2003) Prosecutor v. Simić et al., it-​95-​9, Trial Chamber Judgement (International Criminal Tribunal for the Former Yugoslavia 17 Oct. 2003) Prosecutor v. Nikolić it-​02-​60/​1, Trial Chamber Judgement (International Criminal Tribunal for the Former Yugoslavia 2 Dec 2003) Prosecutor v. Stanislav Galić, Case No. it-​98-​29-​t, Trial Chamber i Judgment (International Criminal Tribunal for the Former Yugoslavia 5 December 2003) Prosecutor v. Blaškić Case No. it-​95-​14-​a , Appeals Chamber Judgment (International Criminal Tribunal for the Former Yugoslavia 29 July 2004) Prosecutor v. Kordić & Čerkez Case No. it-​95-​14/​2, Appeals Chamber Judgment (International Criminal Tribunal for the Former Yugoslavia 17 December 2004) Prosecutor v. Blagojević & Jokić, Case No. it-​02-​60-​t, Trial Chamber Judgment (International Criminal Tribunal for the Former Yugoslavia 17 January 2005) Prosecutor v. Strugar, Case No. it-​01-​42-​t Trial Chamber Judgment (International Criminal Tribunal for the Former Yugoslavia 31 January 2005) Prosecutor v. Halilović, Case No. it-​01-​48, Trial Chamber Judgment (International Criminal Tribunal for the Former Yugoslavia 16 November 2005) Prosecutor v. Limaj et al., Case No. it-​03-​66-​t, Trial Chamber i Judgment (International Criminal Tribunal for the Former Yugoslavia 30 November 2005) Prosecutor v. Hadžihasanović & Kubura, Case No. it-​01-​47-​t, Trial Chamber Judgment (International Criminal Tribunal for the Former Yugoslavia 15 March 2006) Prosecutor v. Milomir Stakić, Case No. it-​97-​24-​a , Appeals Chamber Judgment (International Criminal Tribunal for the Former Yugoslavia 22 March 2006) Prosecutor v. Orić, Case No. it-​03-​68, Trial Chamber Judgment (International Criminal Tribunal for the Former Yugoslavia 30 June 2006) Prosecutor v. Galić, Case No. it-​98-​29-​a , Appeals Chamber Judgment (International Criminal Tribunal for the Former Yugoslavia 30 Nov. 2006) Prosecutor v. Blagojević & Jokić, Case No. it-​02-​60-​a , Appeals Chamber Judgment (International Criminal Tribunal for the Former Yugoslavia 9 May 2007)

Jurisprudence

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Prosecutor v. Martić, Case No. it-​95-​11-​t Trial Chamber Judgment (International Criminal Tribunal for the Former Yugoslavia 12 June 2007) Prosecutor v. Boškoski & Tarčulovski, Case No. it-​04-​82, Trial Chamber Judgment (International Criminal Tribunal for the Former Yugoslavia 10 July 2008) Prosecutor v. Martić, Case No. it-​ 95-​ 11, Appeals Chamber Judgment (International Criminal Tribunal for the Former Yugoslavia 08 October 2008)

ictr

Prosecutor v. Kayishema et al., Case No. ictr-​95-​1, Trial Chamber Judgment (International Criminal Tribunal for Rwanda 21 May 1999) Prosecutor v. Alfred Musema, Case No. ictr-​96-​13, Trial Chamber Judgment (International Criminal Tribunal for Rwanda 27 January 2000) Prosecutor v. Jean-​Paul Akayesu, Case No. ictr-​96-​4, Trial Chamber Judgment (International Criminal Tribunal for Rwanda 1 June 2001) Prosecutor v. Ignace Bagilishema, Case No. ictr-​95-​1a-​t, Trial Chamber Judgment (International Criminal Tribunal for Rwanda 7 June 2001) Prosecutor v. Juvénal Kajelijeli, Case No. ictr-​98-​44a-​a , Appeals Chamber Judgment (International Criminal Tribunal for Rwanda 23 May 2005) Prosecutor v. Sylvestre Gacumbitsi, Case No. ictr-​2001-​64-​a , Appeals Chamber Judgment (International Criminal Tribunal for Rwanda 7 July 2006) Prosecutor v. Jean Mpambara, Case No. ictr-​01-​65-​t, Trial Chamber Judgment (International Criminal Tribunal for Rwanda 11 September 2006) Prosecutor v. Nahimana Case No. ictr 99-​52-​a , Appeals Chamber Judgment (International Criminal Tribunal for Rwanda 28 November 2007) Prosecutor v. Athanase Seromba, Case No. ictr-​2001-​66-​a , Appeals Chamber Judgment (International Criminal Tribunal for Rwanda 12 March 2008)

icc

trial Chamber i, Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​06 icc Pre-​ Decision on the Confirmation of Charges (International Criminal Court 29 January 2007) Prosecutor v. Katanga and Ngudjolo Chui, icc-​01/​04-​01/​07-​717 Pre-​trial Chamber i, Decision on the Confirmation of Charges (International Criminal Court 01 October 2008)

264 Jurisprudence Prosecutor v. Bemba, icc-​01/​05-​01/​08-​424, icc Pre-​Trial Chamber ii, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-​Pierre Bemba Gombo (International Criminal Court 15 June 2009) Prosecutor v. Ruto et al., icc-​01/​09-​01/​11 icc Pre-​trial Chamber ii Decision on the Confirmation of Charges (International Criminal Court 23 January 2012) Prosecutor v. Katanga, icc-​01/​04-​01/​06 icc Trial Chamber i, Judgment (International Criminal Court 14 March 2012) Prosecutor v. Chui icc-​01/​04-​02/​12 icc Trial Chamber ii Judgment (International Criminal Court 18 December 2012) Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​07 icc Trial Chamber ii, Judgment (International Criminal Court 7 March 2014) Prosecutor v. Ntaganda, icc-​01/​04-​02/​06 icc Pre-​Trial Chamber ii Decision on the Confirmation of Charges (International Criminal Court 9 June 2014) Prosecutor v. Lubanga Dyilo, icc-​01/​04-​01/​07 icc Appeals Chamber, Judgment (International Criminal Court 01 December 2014) Prosecutor v. Jean-​Pierre Bemba Gombo, icc-​01/​05-​01/​08 icc Trial Chamber iii Judgment (International Criminal Court 21 March 2016) Prosecutor v. Jean-​ Pierre Bemba Gombo, icc-​01/​05-​01/​08 icc Appeals Chamber Judgment (International Criminal Court 8 June 2018) Prosecutor v. Ntaganda, icc-​01/​04-​02/​06 icc Trial Chamber vi Judgment (International Criminal Court 8 July 2019)

Human Rights Bodies

Kokkinakis v. Greece, app. no. 14307/​88 (European Court of Human Rights 25 May 1993) S.W. v. the United Kingdom, app. no. 20166/​92 (European Court of Human Rights 22 Nov. 1995) Finogenov and Others v Russia ECtHR 20-​12-​2011

Other International Tribunals

SS Lotus Case (France v. Turkey) Permanent Court of International Justice, Publications de la Cour Permanente de Justice Internationale Series A (1927) No. 10

Jurisprudence

265

International Military Tribunal (Nuremberg), Judgment 1 October 1946, printed in: Trials of the Major War Criminal Before the International Military Tribunal Nuremberg 1947, vol. 1 International Military Tribunal for the Far East, Judgment of 4 November 1948: reprinted in: John Pritchard and Sonia M. Zaide (eds.), The Tokyo War Crimes Trial, Vol. 22 The Prosecutor vs. Alex Tamba Brima, Ibrahim Bazzy Kamara and Santigie Borbor Kanu, Case No. scsl-​04-​16-​t, Trial Chamber Decision on defence motion for judgement of acquittal pursuant to rule 98 (Special Court for Sierra Leone 31 March 2006) The Prosecutor vs. Alex Tamba Brima, Ibrahim Bazzy Kamara and Santigie Borbor Kanu, Case No. scsl-​04-​16-​t, Trial Chamber Judgment (Special Court for Sierra Leone 20 June 2007) The Prosecutor vs. Moinina Fofana and Allieu Kondewa, Case No. scsl-​04-​14-​ t, Trial Chamber Judgment (Special Court for Sierra Leone 2 August 2007)

Tribunals under cc10

United States Military Tribunal at Nuremberg, United States v. Wilhelm von Leeb et al., in: The United Nations War Crimes Commission, Law Reports of Trials of War Criminals, vol. xii, 1949 United States Military Tribunal at Nuremberg, United States v. Wilhelm List, in: The United Nations War Crimes Commission, Law Reports of Trials of War Criminals, vol. viii, 1949 General Tribunal of Military Government for the French Zone of Occupation in Germany, Hermann Roechling, Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10 Vol. xiv (US Government Printing Office 1950)

National Jurisprudence:

U.S. Supreme Court, In Re Yamashita, 27 U.S. 1, 66 S. Ct. 340, 90 L. Ed. 499, 1946 (4 February 1946) In re van der Giessen, Special Court of Cassation, Netherlands, 21 June 1948, reprinted in: H. Lauterpacht (ed.) Annual Digest and Reports of Public International Law Cases (Butterworth & Co. ltd 1953)

266 Jurisprudence Attorney-​General of the Government of Israel v. Eichmann translated and reprinted in: The American Journal of International Law (1962) 56(3) 805–​845 Ryuichi Shimoda et al. v. The State, District Court of Tokyo, 7 December 1963, translated in (1964) 8 Japanese Annual of International Law 212 National Appeals Court Judgment on Human Rights Violations by Former Military Leaders 9 December 1985, reprinted in: International Legal Materials (American Society of International Law) (1987) 26(2) 317 Bundesgerichtshof [BGHSt] 26 July 1994, 40 BGHSt 218 (1995)

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270 Bibliography Asaro P, ‘A Body to Kick, but Still No Soul to Damn: Legal Perspectives on Robotics’ in Lin P, Abney K & Bekey G (eds.) Robot Ethics: The Ethical and Social Implications of Robotics (mit Press 2012). Badar M E, ‘The Mens Rea Enigma in the Jurisprudence of the International Criminal Court’ in: van den Herik & Stahn (eds.), The Diversification and Fragmentation of International Criminal Law (Koninklijke Brill 2012). Badar M E & Porro S, ‘Rethinking the Mental Elements in the Jurisprudence of the ICC’ in: Stahn C (ed.), The law and Practice of the International Criminal Court (Oxford University Press 2015). Bartels R, ‘Discrepancies Between International humanitarian law on the Battlefield and in the Courtroom: The Challenges of Applying International humanitarian law During International Criminal Trials’ in: Matthee M, et al. (eds.), Armed Conflict and International Law: In Search of the Human Face (T.M.C. Asser Press 2013). Bellelli R, ‘The Esablishment of the System of International Criminal Justice’ in: Roberto Bellelli (ed.), International Criminal Justice: Law and Practice from the Rome Statute to Its Review, (Ashgate 2010). Bersagel A G, ‘Use of Nuclear Weapons as an International Crime and the Rome Statute of the International Criminal Court’ in Gro Nystuen, Stuart Casey-​Maslen & Annie Golden Bersagel (ed.), Nuclear Weapons under International Law (Cambridge University Press 2014). Boas G, ‘Command Responsibility for the Failure to Stop Atrocities: The Legacy of the Tokyo Trial’ in: Tanaka Y et al. (eds.) Beyond Victor’s Justice? The Tokyo War Crimes Trial Revisited (Koninklijke Brill nv 2011) 163–​173. Boed R, ‘The International Criminal Tribunal for Rwanda’ In: M Cherif Bassiouni (ed.), International Criminal Law: Volume iii International Enforcement (Martinus Nijhoff Publishers 2008). Bothe M, ‘War Crimes’ in: Cassese A, Gaeta P & Jones J (eds.), The Rome Statute of the International Criminal Court (Oxford University Press 2002). Brenneke M, ‘Lethal Autonomous Weapon Systems and Their Compatibility with International Humanitarian Law: A Primer on the Debate’. In: Gill T, Geiß R, Krieger H, Paulussen C (eds.) Yearbook of International Humanitarian Law, Volume 21 (2018) (t.m.c. Asser Press 2020). Brown B S, ‘The international Criminal Tribunal for the Former Yugoslavia’ In: M Cherif Bassiouni (ed.), International Criminal Law: Volume iii International Enforcement (Martinus Nijhoff Publishers 2008). Cannone A, ‘The use of prohibited weapons and war crimes’ in: Fausto Pocar, Marco Pedrazzi & Micaela Frulli (eds.) War Crimes and the Conduct of Hostilities: Challenges to Adjudication and Investigation (Edward Elgar Publishing Limited 2013). Casey-​Maslen S, ‘Use of Nuclear Weapons as Genocide, a Crime against Humanity or a War Crime’ in Gro Nystuen, Casey-​Maslen S & Bersagel A G (ed.), Nuclear Weapons under International Law (Cambridge University Press 2014).

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272 Bibliography Eser A, ‘Individual Criminal Responsibility’ in Antonio Cassese, Paola Gaeta & John R W D Jones, The Rome Statute of the International Criminal Court (Oxford University Press 2015). Gardam J, ‘Crimes involving Disproportionate Means and Methods of Warfare under the Statute of the International Criminal Court’ in: Doria J, Gasser H-​P & Bassiouni M C (eds.), The Legal Regime of the International Criminal Court: Essays in Honour of Professor Igor Blishchenko (Martinus Nijhoff Publishers 2009). Garraway Charles, ‘War Crimes’ in: Elizabeth Wilmshurst & Susan Breau (eds.), Perspectives on the ICRC Study on Customary International humanitarian law (Cambridge University Press 2009). Garraway C, ‘The Application of Superior Responsibility in an Era of Unlimited Information’ in: Saxon D (ed.) International humanitarian law and the Changing Technology of War (Koninklijke Brill nv. 2012) 187–​206. Geiss R, ‘Poison, Gas and Expanding Bullets: The Extension of the List of Prohibited Weapons at the Review Conference of the International Criminal Court in Kampala’ in M N Schmitt et al. (eds.) Yearbook of International humanitarian law, Volume 13, 2010 (T.M.C. Asser Instituut 2011). Haines S, ‘Weapons, Means and methods of Warfare’ in: Wilmshurst E & Breau S (eds.), Perspectives on the ICRC Study on Customary International humanitarian law (Cambridge University Press 2009). Haines S, ‘The Developing Law of Weapons: Humanity, Distinction and Precautions in Attack’ in: Clapham A & Gaeta P (eds.), The Oxford Handbook of International Law in Armed Conflict (Oxford University Press 2014). Von Hebel H & Robinson D, ‘Crimes within the jurisdiction of the court’ in Lee R S, The International Criminal Court: the making of the Rome Statute: issues, negotiations, results (Kluwer Law International 1999). Kirsch P & Robinson D, ‘Reaching Agreement at the Rome Conference’ in: Antonio Cassese, Paola Gaeta & John R W D Jones (eds.), The Rome Statute of the International Criminal Court (Oxford University Press 2002). Kiss A, ‘25 Command Responsibility under Article 28 of the Rome Statute’ in: Stahn C (ed.) The Law and Practice of the International Criminal Court (Oxford University Press 2015) 608–​647. Koller David, ‘The Nuremberg Legacy in the Historical Development of International Criminal Law’ in Morten Bergsmo, Cheah Wui Ling & Yi Ping (eds.), Historical Origins of International Criminal Law: Volume i (Torkal Opsahl Academic EPublisher 2014). Lucas Jr G, ‘Engineering, Ethics and Industry: The Moral Challenges of Lethal Autonomy’ in: Strawser B & McMahan J (eds.), Killing by Remote Control: The Ethics of Unmanned Military (Oxford University Press 2013). Marauhn T, ‘The Prohibition to Use Chemical Weapons’ in Gill T, et al. (eds.), Yearbook of International Law 2014 (T.M.C. Asser Press 2016).

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288 Bibliography Wirth S, ‘Co-​ perpetration in the Lubanga Trial Judgment’ (2012) 10 Journal of International Criminal Justice 971. Yanev L, ‘On Common Plans and Excess Crimes: Fragmenting the Notion of Co-​ Perpetration in International Criminal Law’ (2018) 31 Leiden Journal of International Law 693. Yanev L & Kooijmans T, ‘Divided Minds in the Lubanga Trial Judgment: A Case against the Joint Control Theory’ (2013) 13 International Criminal Law Review 789. Yokohama K, ‘The Failure to Control and the Failure to Prevent, Repress and Submit: The Structure of Superios Responsibility under Article 28 ICC Statute’ (2018) 18 International Criminal Law Review 275. Zolo D, ‘Peace through Criminal Law’ (2004) 2(3) Journal of International Criminal Justice 727.



Other Secondary Sources

Adviesraad Internationale Vraagstukken/​Commissie van Advies inzake Volkenrech­ telijke Vraagstukken, ‘Autonome Wapensystemen, de Noodzaak van Betekenisvolle Menselijke Controle’ aiv no. 97/​cavv no. 26 October 2015. Anderson K & Waxman M, ‘Law and Ethics for Autonomous Weapon Systems: Why a ban Won’t Work and How the Laws of War Can’ Hoover Institution, Stanford University, 2013. Caton J, ‘Autonomous Weapon Systems: A Brief Survey of Developmental, Operational, Legal and Ethical Issues’ The Letort Papers, Strategic Studies Institute US Army War College 2015. Dickow M, ‘Robotik –​ein Game-​Changer für Militär und Sicherheitspolitik’ swp-​ Studie 2015. Docherty B, ‘Losing Humanity: The Case Against Killer Robots’ Human Rights Watch 2012. Docherty B, ‘Mind the Gap: The Lack of Accountability for Killer Robots’ Human Rights Watch 2015. Docherty B, ‘Shaking the Foundations: The Human Rights Implications of Killer Robots’ Human Rights Watch 2014. Ekelhof M & Struyk M, ‘Deadly Decisions: 8 objections to killer robots’ pax 2014. Geiss R, ‘The International-​ Law Dimension of Autonomous Weapons Systems’ Friedrich Ebert Stiftung Study 2015. Hoile D, Justice Denied: The Reality of the International Criminal Court (The Africa Research Centre, 2014). Hollis D, ‘Setting the Stage: Autonomous Legal Reasoning in International humanitarian law’ Temple University Legal Studies Research Paper Series, Research Paper no. 2016–​05.

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Conference Papers

Brehmer B, ‘The Dynamic OODA Loop: Amalgamating Boyd’s OODA Loop and the Cybernetic Approach to Commad and Control’ (10th International Command and Control Research Technology Symposium The Future of C2 2005). Fleischman W, ‘Why We Should Not Build Autonomous Robotic Weapons’ in: xix Congreso Argentino de Ciencias de la Computación (cacic 2013). Hammond G, ‘On the Making of History: John Boyd and American Security’ The Harmon Memorial Lecture US Air Force Academy 2012. Kellenberger J, ‘Keynote address’ International humanitarian law and New Technologies, 34th Round Table on current issues of international humanitarian law, San Remo 8–​10 September 2011, reprinted in (2012) 94(886) International Review of the Red Cross 809. Prescott J, ‘Autonomous Decision-​ Making Processes and the Responsible Cyber Commanders’ at 5th International Conference on Cyber Conflict (nato ccd coe Publications 2013).

290 Bibliography Sullins J, ‘An Ethical Analysis of the Case for Robotic Weapons Arms Control’ at 5th International Conference on Cyber Conflict (nato ccd coe Publications 2013).



Speeches

Lin P, Cyber Norms: A Missing Link in the Autonomous Weapons Debate, speech at: unidir Conference, Cyber Weapons and Autonomous Weapons: Potential Overlap, Interaction and Vulnerabilities 9 October 2015.

Index Accountability 9, 10, 53–​60, 66, 111, 133, 136, 150, 155, 232, 250, 252–​254 Actus reus 133, 134–​135, 137, 146, 150, 157, 158, 159, 160, 163, 164, 165, 169, 170, 187, 190 Additional Protocol i 80, 210–​214 Akayesu 188, 228–​229 Aleksovski 218, 231 Artificial Intelligence 1, 3, 4, 6, 9, 12, 29, 31 ‘Strong ai’ 29, 31–​32, 33, 34, 35, 37, 48, 148, 150, 251 Automated 5, 6, 7, 10, 14, 15, 17, 40, 41, 44, 46, 47, 49, 50, 250 Automation 12, 15, 39, 50, 250 Autonomy 3–​9, 12–​34, 35–​51, 124–​127, 148, 249–​250, 257 Bagilishema 224 Bemba  Pre-​Trial Chamber 142, 144, 145, 235, 236, 237, 238, 239, 243 Trial Chamber Judgment 234, 235, 236, 238, 240, 243 Appeals Chamber Judgment 235, 236, 240 Biological Weapon 28, 94, 101, 105, 107, 127 Blagojević & Jokić 217, 218, 223 Blaškić  Trial Chamber Judgment 227, 231, 235, 238 Appeals Chamber Judgment 139, 107, 221, 224, 226 Boškoski & Tarčulovski 217 Brima 163n, 228n, 232 Brittle 28, 29, 31, 34 Chemical Weapon 28, 94, 105, 107, 116, 117, 127 Chui 157, 167, 178, 185, 186 Civilian 11, 24, 33, 94, 204 Objects 23, 90, 93 Population 26 Superiors 204, 205, 209, 218, 228–​230, 234, 240–​242, 246 Cognition 32, 47, 136, 139, 140, 141, 142, 150, 168

Combatants 77, 89, 94, 114, 126, 127 Command responsibility. See superior responsibility Commission. See perpetation Control theory 157, 158–​162, 163, 164, 168, 170, 182 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons 89, 120, 130 Corporate responsibility 133, 147n Deterrence 60, 61–​63, 66, 68, 251 Direct human control 23, 26, 38, 39 Direct human involvement 12, 44, 47, 187–​189 Distinction 23, 89–​90, 93, 95, 114, 125, 126 Dolus directus 136, 141–​142, 144, 150 Dolus eventualis 136, 143, 144–​145, 150, 168, 183, 190, 192, 253, 255, 256, 257 Dolus specialis 134 Eichmann 172, 173, 179 Elements of crimes 106 Erdemovic 138n Ethical governor 33, 34 Expressivism 61, 65–​67, 68–​69 Fair labelling 154, 158, 172 Fofana 221n, 232 Free will 37, 46, 136, 148–​149, 150, 251 Gacumbitsi 161, 218 Galić 99, 104, 163 Hadžihasanović 216, 220, 221, 225, 231, 232 Hague Regulations  1899 71, 78, 79, 80, 81, 82, 102 1907 78, 79–​80, 81, 197–​198, 201, 203, 211 Halilović 219, 225, 226, 232 High Command 206–​208, 212–​213 Hostage 208–​209 icrc 86, 212, 238 icrc Study on Customary International Law 111, 118–​119

292 Index ictr 58, 59, 62, 64, 144, 161, 169, 184, 215, 221, 225, 228, 229, 230 Statute 58, 215, 216, 222, 228, 238, 239 icty 57–​58, 59, 61, 62, 64, 138, 139, 156n, 161, 169, 184, 218, 219, 220, 221, 222, 223, 224, 227, 228, 231, 238, 242 Statute 58, 102, 104, 138–​139, 214–​216, 222, 228, 238, 239 In re van der Giessen 79 Inducing 170 Inherently indiscriminate 75, 89–​98, 99, 101, 103, 104, 106, 108, 109, 110, 111, 114, 117, 118, 119, 120, 121, 123, 124, 125–​128, 129, 130, 251, 255 Intent 102, 103, 136, 138–​145, 146, 147, 148, 149, 150, 183, 190, 192–​193, 195, 255 International Humanitarian Law 32, 33, 34, 66, 70, 71, 72, 73, 74, 76, 77, 79, 83, 84, 88, 89, 91, 96, 99–​101, 102, 103, 106, 109, 111, 112, 113, 115, 116, 120, 123, 129, 130–​131, 218, 225, 250, 255 International Law Commission 57, 59 International Military Tribunal 55, 56, 58, 59, 132, 154, 184, 203, 206 International Military Tribunal for the Far East 56, 58, 59, 154, 184, 203–​206, 213 Kampala 60, 106, 113, 122 Katanga and Ngudjolo Chui 144, 161, 177, 178, 179–​180, 181, 182, 183, 184–​185, 191, 192, 253 Katanga 145, 151, 156, 170, 178, 179–​181, 183, 185–​186 Knowledge 30, 111, 136, 138, 139, 140, 141, 142, 143, 145, 147, 175, 183, 190, 193, 198, 202, 203, 206, 207, 208, 209, 212, 217, 222–​ 224, 225, 230, 234, 238, 239, 240, 242, 246–​247, 254 Kajelijeli 233 Kayishema et al. 230, 241n Kokkinakis v. Greece 110 Kordić & Čerkez 188, 227, 232 Krnojelac 220, 223, 231 Krstić 188 Legality, principle of 99–​100, 108–​109, 111, 186 Lieber Code 76n, 77, 84, 85n Limaj et al. 163, 219, 227 List. See Hostage

London Charter 55, 56, 57, 206 Lubanga  Confirmation of Charges 140, 141, 142, 143, 144, 159, 160, 161, 165, 166, 168, 170, 239 Trial Chamber Judgment 145, 151, 155, 156n, 165, 167 Appeals Chamber Judgment 154, 155, 160, 161, 164, 165, 166, 167, 168 Machine learning 29–​31, 34, 45 Man-​in-​the-​loop 42, 43, 44, 45 Man-​on-​the-​loop 43, 45 Man-​out-​of-​the-​loop 42, 43, 44, 45 Martić 94, 95 Mpambara 225 Mens rea 102, 128, 133, 135–​137, 138–​145, 145–​ 150, 152, 158, 164, 165, 168, 188, 189, 190, 191, 192, 195, 202, 203, 212, 222, 224, 238, 244, 247, 251 Military objective 89, 90, 91–​92, 103, 125, 126 Military necessity 77, 83–​85, 87 Mucić et al. 216–​217, 219, 222–​224, 226, 228, 237 Musema 229–​230 Nahimana 163, 218 Negligence 136, 143, 144, 207, 208, 223, 239–​ 240, 242, 256, 257 Nikolić 61 Non-​combatants 77, 89, 91, 114, 126, 127 Ntaganda 182, 185, 188, 191 Nuclear weapons 72, 89, 95–​96, 97, 101, 104–​ 105, 106, 110n, 114, 118 Nuclear weapons advisory opinion 87, 88, 91, 92, 95–​96, 110n Nullum crimen 108–​112, 129, 199 Ordering 33, 38, 43, 170, 171–​172, 173, 174, 180, 181, 182–​183, 185, 187, 188, 191–​192, 196, 200, 209, 229, 252, 253 Organisationsherrschaft 172–​184, 191, 253 Orić 217, 218, 220, 222, 223, 227 Perpetration 152–​193 Indirect 168–​184, 191–​192, 252–​253 Indirect co-​perpetration 184–​186 Individual 162–​163, 187–​188, 189, 192, 252 Joint 164–​168, 190

293

Index Programming 28–​34, 37, 39, 44–​48, 126, 127, 147, 148, 149, 150, 152, 187, 188, 189, 190, 191, 192, 244, 246, 249, 251, 252, 253, 255 Recklessness 136, 143, 144 Reconciliation 65, 68 Remote-​controlled 9, 13, 15, 19, 27, 40, 43 Retribution 60–​61, 68, 135 Roechling 209–​210, 213 Ruto et al. 182 Seromba 161, 169 Sèvres, treaty of 54 Shimoda et al. 74 Simić 61 SirUS 86 Soliciting 170 ss Lotus Case (France v. Turkey) 70 Stakić  Trial Chamber Judgment 161 Appeals Chamber Judgment 161, 184 Stashynsky 158n Strugar 139, 227 Stuxnet 20, 23n, 127 St. Petersburg Declaration 77–​78, 84 Superfluous injury or unnecessary suffering 76–​89, 96, 99, 101, 102, 103,

106, 108, 109, 110, 114. 117, 118, 119, 120, 121, 123, 124–​125, 128, 129, 130, 251, 255 Superior responsibility 194–​248, 253–​254 S.W. v. the United Kingdom 110 Tadić  Interlocutory appeal 115–​116, 120 Appeals Chamber Judgment 138–​139, 163, 169n Targeting 49, 75, 88, 89, 91, 92, 93, 94–​96, 127, 250 uav 13, 17–​18, 27 ugv 15, 19 Versailles, treaty of 53–​54, 199 Volition 136, 139, 140, 143, 144, 147, 149–​150, 168, 190 Von Leeb. See High Command War crime 9, 54, 70, 74, 98, 99, 100, 111, 112, 115, 128, 147, 204, 206, 213, 215, 250, 256 Weapons law 73, 74–​75, 88, 90, 91, 94, 96, 97, 116, 251 Yamashita 200–​202, 203, 204, 206, 208, 210n, 211