Abstract On October 2021, Colombia and the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) signed a Cooperation Agreement that closed the preliminary examination opened in 2004. This is the first agreement of its kind. This article analyses the evolution of the OTP’s reasoning in considering whether a state has genuinely administered justice in a transitional context. To do so, it chronologically analyses the Colombian case, which is the first peace process in the world developed entirely under the continued scrutiny of the ICC. Furthermore, the Colombian situation was the ICC’s most extended preliminary examination, influencing in turn, the transitional justice outcomes as well as the position of the OTP. The Cooperation Agreement offers, therefore, an outstanding opportunity to analyse from a practical point of view, debates that have been predominantly theoretical and will have future consequences elsewhere.
{"title":"International Criminal Court Standards in a Context of Transitional Justice","authors":"Carlos Gutiérrez-Rodríguez","doi":"10.1093/jicj/mqad033","DOIUrl":"https://doi.org/10.1093/jicj/mqad033","url":null,"abstract":"Abstract On October 2021, Colombia and the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) signed a Cooperation Agreement that closed the preliminary examination opened in 2004. This is the first agreement of its kind. This article analyses the evolution of the OTP’s reasoning in considering whether a state has genuinely administered justice in a transitional context. To do so, it chronologically analyses the Colombian case, which is the first peace process in the world developed entirely under the continued scrutiny of the ICC. Furthermore, the Colombian situation was the ICC’s most extended preliminary examination, influencing in turn, the transitional justice outcomes as well as the position of the OTP. The Cooperation Agreement offers, therefore, an outstanding opportunity to analyse from a practical point of view, debates that have been predominantly theoretical and will have future consequences elsewhere.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135247800","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract This article examines Australia’s obligation to investigate war crimes in the context of its obligations under the Rome Statute of the International Criminal Court (ICC). This obligation is contrasted with Australia’s investigation of war crimes to date, with a particular focus on the current investigations into alleged war crimes by Australian Defence Forces in Afghanistan. The article then discusses the jurisdiction of the ICC, and the important effect of the principle of complementarity under Article 17 of the Rome Statute. The article concludes by assessing the future of war crimes investigations in Australia, drawing attention to the lessons which can be learned moving forward — both domestically and by other states facing allegations of war crimes committed by their own forces.
{"title":"Australia’s Investigation of Alleged ADF War Crimes in Afghanistan","authors":"Julia Flint","doi":"10.1093/jicj/mqad032","DOIUrl":"https://doi.org/10.1093/jicj/mqad032","url":null,"abstract":"Abstract This article examines Australia’s obligation to investigate war crimes in the context of its obligations under the Rome Statute of the International Criminal Court (ICC). This obligation is contrasted with Australia’s investigation of war crimes to date, with a particular focus on the current investigations into alleged war crimes by Australian Defence Forces in Afghanistan. The article then discusses the jurisdiction of the ICC, and the important effect of the principle of complementarity under Article 17 of the Rome Statute. The article concludes by assessing the future of war crimes investigations in Australia, drawing attention to the lessons which can be learned moving forward — both domestically and by other states facing allegations of war crimes committed by their own forces.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135769912","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract With advancing technology, complex decision-making in warfare, including targeting, is increasingly assisted by machines. Although involving humans in decision-making is often seen as a safeguard against machine errors, it does not always prevent them. Machines can make incorrect determinations or delay them when time is critical. In these cases, human operators, influenced by automation bias (excessive trust in machines’ determinations, despite the availability of contradicting or different information from other sources) or complacency (excessive trust in machines’ determinations, leading to reduced vigilance), may fail to recognize machine errors, potentially resulting in conduct amounting to a war crime. Considering the role of automation bias and complacency in the determination of the criminal responsibility of systems’ operators is crucial, especially, for understanding the accountability framework for war crimes involving autonomous weapon systems (AWS). By exploring how automation bias and complacency affect the determination of criminal responsibility for humans who operate AWS, this article offers insights for lawmakers at the national and international levels to understand complexities and effectively shape legislative responses with respect to criminal responsibility. This article also examines automation bias and complacency in psychology, their relevance in military operations employing AWS, and their potential to exonerate human operators from criminal responsibility. It concludes by advocating for legislative, organizational, and technical measures to counteract automation bias and complacency.
{"title":"Exploring the Impact of Automation Bias and Complacency on Individual Criminal Responsibility for War Crimes","authors":"Antonio Coco","doi":"10.1093/jicj/mqad034","DOIUrl":"https://doi.org/10.1093/jicj/mqad034","url":null,"abstract":"Abstract With advancing technology, complex decision-making in warfare, including targeting, is increasingly assisted by machines. Although involving humans in decision-making is often seen as a safeguard against machine errors, it does not always prevent them. Machines can make incorrect determinations or delay them when time is critical. In these cases, human operators, influenced by automation bias (excessive trust in machines’ determinations, despite the availability of contradicting or different information from other sources) or complacency (excessive trust in machines’ determinations, leading to reduced vigilance), may fail to recognize machine errors, potentially resulting in conduct amounting to a war crime. Considering the role of automation bias and complacency in the determination of the criminal responsibility of systems’ operators is crucial, especially, for understanding the accountability framework for war crimes involving autonomous weapon systems (AWS). By exploring how automation bias and complacency affect the determination of criminal responsibility for humans who operate AWS, this article offers insights for lawmakers at the national and international levels to understand complexities and effectively shape legislative responses with respect to criminal responsibility. This article also examines automation bias and complacency in psychology, their relevance in military operations employing AWS, and their potential to exonerate human operators from criminal responsibility. It concludes by advocating for legislative, organizational, and technical measures to counteract automation bias and complacency.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136061621","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract This article deals with establishing the criminal responsibility, through the model of commission by omission, of autonomous weapon systems (AWS) users in situations where failures to suspend AWS-driven attacks have caused a war crime. The author tackles the question of whether an omission to stop such an AWS may amount to the actus reus of war crimes of unlawful attacks and does so by establishing how the doctrine of commission by omission can be applied on the basis of the grave breaches regime in the First Additional Protocol to the Geneva Conventions and the Rome Statute of the International Criminal Court. In deconstructing the status of commission by omission under both these legal frameworks, this article analyses whether the substantive conditions of commission by omission, namely, the legal duty to act and the capacity to act, are met. The author suggests that ‘human control’, manifested in the ability to supervise, intervene and stop an AWS-driven attack, should be considered a necessary pre-condition for the imputation of criminal responsibility in at least some expected scenarios of AWS use. In the absence of such human control, there would be no accountability for unlawful attacks, including indiscriminate attacks, caused by AWS, which would lead to impunity for such crimes. On the one hand, the attribution of responsibility by omission has, therefore, crucial implications for closing the ‘responsibility gap’ within this context. On the other hand, based on the analysis of ‘control’ as the key principle for criminal responsibility by omission, the author argues that an additional treaty obligation should be adopted to ensure human control over AWS and preserve accountability for potential unlawful attacks.
{"title":"Criminal Responsibility by Omission for Failures to Stop Autonomous Weapon Systems","authors":"Marta Bo","doi":"10.1093/jicj/mqad029","DOIUrl":"https://doi.org/10.1093/jicj/mqad029","url":null,"abstract":"Abstract This article deals with establishing the criminal responsibility, through the model of commission by omission, of autonomous weapon systems (AWS) users in situations where failures to suspend AWS-driven attacks have caused a war crime. The author tackles the question of whether an omission to stop such an AWS may amount to the actus reus of war crimes of unlawful attacks and does so by establishing how the doctrine of commission by omission can be applied on the basis of the grave breaches regime in the First Additional Protocol to the Geneva Conventions and the Rome Statute of the International Criminal Court. In deconstructing the status of commission by omission under both these legal frameworks, this article analyses whether the substantive conditions of commission by omission, namely, the legal duty to act and the capacity to act, are met. The author suggests that ‘human control’, manifested in the ability to supervise, intervene and stop an AWS-driven attack, should be considered a necessary pre-condition for the imputation of criminal responsibility in at least some expected scenarios of AWS use. In the absence of such human control, there would be no accountability for unlawful attacks, including indiscriminate attacks, caused by AWS, which would lead to impunity for such crimes. On the one hand, the attribution of responsibility by omission has, therefore, crucial implications for closing the ‘responsibility gap’ within this context. On the other hand, based on the analysis of ‘control’ as the key principle for criminal responsibility by omission, the author argues that an additional treaty obligation should be adopted to ensure human control over AWS and preserve accountability for potential unlawful attacks.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-09-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135258397","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract As far back as 1994, Sir Arthur Watts QC, a pre-eminent international jurist of his time, put the matter of head of state immunity for international crimes in these unequivocal terms: ‘It can no longer be doubted that as a matter of general customary international law a Head of State will personally be liable to be called to account if there is sufficient evidence that he authorized or perpetrated such serious international crimes.’ Most senior jurists of Watt’s ilk who opined on the matter came to a similar conclusion. Yet, some concerning recent academic commentary wrongly suggests that there remains doubt around the question. For example, the Advisory Committee on Public International Law (CAVV), an academic thinktank that advises the Dutch government, suggested in its report on the accountability of President Putin that ‘in international legal practice, there is no clear-cut answer to the question of whether there is an exception to functional immunity for international crimes, including the crime of aggression’. This article uses the CAVV recommendation as a case study in certain mistakes and confusions that have long plagued the discourse on the immunity of state officials, especially heads of state, accused or suspected of international crimes.
早在1994年，当时杰出的国际法学家亚瑟·沃茨爵士(Sir Arthur Watts QC)就明确提出了国家元首对国际罪行的豁免问题:“毫无疑问，作为一般习惯国际法的问题，如果有足够的证据表明国家元首本人授权或犯下了这种严重的国际罪行，那么他本人将有责任被追究责任。”大多数与瓦特同级的资深法学家在这个问题上都得出了类似的结论。然而，最近一些有关的学术评论错误地暗示，围绕这个问题仍然存在疑问。例如，向荷兰政府提供咨询意见的学术智库国际公法咨询委员会(CAVV)在其关于普京总统问责制的报告中指出，"在国际法律实践中，对于包括侵略罪在内的国际罪行是否存在职能豁免例外的问题，没有明确的答案"。本文以人权委员会的建议为案例，研究长期困扰国家官员、特别是国家元首、被指控或涉嫌犯有国际罪行的人的豁免问题的某些错误和混淆。
{"title":"International Law Rejects Immunity for International Crimes — Full Stop","authors":"Chile Eboe-Osuji","doi":"10.1093/jicj/mqad028","DOIUrl":"https://doi.org/10.1093/jicj/mqad028","url":null,"abstract":"Abstract As far back as 1994, Sir Arthur Watts QC, a pre-eminent international jurist of his time, put the matter of head of state immunity for international crimes in these unequivocal terms: ‘It can no longer be doubted that as a matter of general customary international law a Head of State will personally be liable to be called to account if there is sufficient evidence that he authorized or perpetrated such serious international crimes.’ Most senior jurists of Watt’s ilk who opined on the matter came to a similar conclusion. Yet, some concerning recent academic commentary wrongly suggests that there remains doubt around the question. For example, the Advisory Committee on Public International Law (CAVV), an academic thinktank that advises the Dutch government, suggested in its report on the accountability of President Putin that ‘in international legal practice, there is no clear-cut answer to the question of whether there is an exception to functional immunity for international crimes, including the crime of aggression’. This article uses the CAVV recommendation as a case study in certain mistakes and confusions that have long plagued the discourse on the immunity of state officials, especially heads of state, accused or suspected of international crimes.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136072658","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Armed conflicts have increasingly been characterized by a phenomenon of massive violence against civilians. Beyond a certain point, the question becomes whether such violence is properly characterized as incidental to the pursuit of hostilities or should be seen as conceptually detached from it. This article looks at the competing cases for dealing with this phenomenon of massive violence against civilians from the perspective of war crimes or crimes against humanity. The focus of war crimes particularly when committed as part of a policy at the International Criminal Court has further diminished the difference with crimes against humanity. This article finds that, given the dense overlap of both categories when it comes to massive violence against civilians in times of war, the expressivist finalities of international criminal justice are better served by emphasizing the fundamental nature of such violence as a crime against humanity. This better makes sense of the genealogy of international criminal law as emerging from a tradition of human rights and recuses any notion that systematic attacks against civilians have, in fact and in principle, anything to do with the pursuit of war.
{"title":"Massive Violence Against Civilians in War","authors":"Frédéric Mégret","doi":"10.1093/jicj/mqad030","DOIUrl":"https://doi.org/10.1093/jicj/mqad030","url":null,"abstract":"Abstract Armed conflicts have increasingly been characterized by a phenomenon of massive violence against civilians. Beyond a certain point, the question becomes whether such violence is properly characterized as incidental to the pursuit of hostilities or should be seen as conceptually detached from it. This article looks at the competing cases for dealing with this phenomenon of massive violence against civilians from the perspective of war crimes or crimes against humanity. The focus of war crimes particularly when committed as part of a policy at the International Criminal Court has further diminished the difference with crimes against humanity. This article finds that, given the dense overlap of both categories when it comes to massive violence against civilians in times of war, the expressivist finalities of international criminal justice are better served by emphasizing the fundamental nature of such violence as a crime against humanity. This better makes sense of the genealogy of international criminal law as emerging from a tradition of human rights and recuses any notion that systematic attacks against civilians have, in fact and in principle, anything to do with the pursuit of war.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-09-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136362180","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Current discussions on the military use of artificial intelligence (AI), in particular concerning autonomous weapons systems, have largely focused on the challenges for the attribution of individual criminal responsibility for war crimes whenever such systems do not perform as initially intended by human operators. Yet, recent observations evidence the pressing need to shift the discussion on the responsibility gap further to include challenges raised by the intentional use of AI systems for the commission of war crimes and other international crimes. Additionally, the increasing development and use of AI systems, based on data-driven learning (DDL) methods, demands particular attention due to the difficulty these systems’ lack of predictability and explainability poses in terms of anticipation of their effects. Against this background, this article complements the present discussion on the responsibility gap by discussing some concerns that the intentional use of DDL systems for the commission of international crimes raises regarding the required mental element and thus, the ascription of individual criminal responsibility. Ultimately, this article proposes preliminary avenues to address these concerns.
{"title":"Data-driven Learning Systems and the Commission of International Crimes","authors":"Anna Rosalie Greipl","doi":"10.1093/jicj/mqad031","DOIUrl":"https://doi.org/10.1093/jicj/mqad031","url":null,"abstract":"Abstract Current discussions on the military use of artificial intelligence (AI), in particular concerning autonomous weapons systems, have largely focused on the challenges for the attribution of individual criminal responsibility for war crimes whenever such systems do not perform as initially intended by human operators. Yet, recent observations evidence the pressing need to shift the discussion on the responsibility gap further to include challenges raised by the intentional use of AI systems for the commission of war crimes and other international crimes. Additionally, the increasing development and use of AI systems, based on data-driven learning (DDL) methods, demands particular attention due to the difficulty these systems’ lack of predictability and explainability poses in terms of anticipation of their effects. Against this background, this article complements the present discussion on the responsibility gap by discussing some concerns that the intentional use of DDL systems for the commission of international crimes raises regarding the required mental element and thus, the ascription of individual criminal responsibility. Ultimately, this article proposes preliminary avenues to address these concerns.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-09-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135403226","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article identifies and evaluates key international legal aspects concerning three notions that have figured in debates on war crimes involving an autonomous weapon system (AWS): responsibility, liability and accountability. It focuses on the general contours of the existing international law of armed conflict, also known as international humanitarian law (IHL), and related fields, concepts and institutions. Regarding responsibility, this article examines, on one hand, the international responsibility of a state for an internationally wrongful act related to a breach of a rule of IHL involving an AWS that may form the basis of a war crime and, on the other hand, individual criminal responsibility for a war crime involving an AWS. As for liability, this article outlines three international legal concepts of state liability potentially related to a war crime involving an AWS. Finally, this article sets out an, at least, legally adjacent concept of accountability that involves an explanation of the conduct related to a war crime involving an AWS and imposing political, legal, social or other consequences where such an explanation is absent or insufficient.
{"title":"War Crimes Involving Autonomous Weapons","authors":"D. Lewis","doi":"10.1093/jicj/mqad027","DOIUrl":"https://doi.org/10.1093/jicj/mqad027","url":null,"abstract":"\u0000 This article identifies and evaluates key international legal aspects concerning three notions that have figured in debates on war crimes involving an autonomous weapon system (AWS): responsibility, liability and accountability. It focuses on the general contours of the existing international law of armed conflict, also known as international humanitarian law (IHL), and related fields, concepts and institutions. Regarding responsibility, this article examines, on one hand, the international responsibility of a state for an internationally wrongful act related to a breach of a rule of IHL involving an AWS that may form the basis of a war crime and, on the other hand, individual criminal responsibility for a war crime involving an AWS. As for liability, this article outlines three international legal concepts of state liability potentially related to a war crime involving an AWS. Finally, this article sets out an, at least, legally adjacent concept of accountability that involves an explanation of the conduct related to a war crime involving an AWS and imposing political, legal, social or other consequences where such an explanation is absent or insufficient.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2023-08-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41557799","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Since its hailing as the ‘supreme international crime’ during the Nuremberg Trials, aggression has largely been neglected relative to other core international crimes. However, the escalation of the Russo-Ukrainian War starting in early 2022 is being held as an opportunity to breathe new life into this de facto dormant norm. This article seeks to address novel concerns as to the scope of liability permitted by the crime of aggression, which arise from Russia’s enthusiastic use of private military and security companies (PMSCs) in this conflict. It first overviews the relevant terminology applicable to the use of private armed personnel. It then asserts the value of pursuing accountability for both aggression and PMSCs. The article continues by evaluating the requirements of aggression’s ‘leadership element’, which seeks to restrict liability to high-level leaders. As an illustrative case study, it applies this to the Wagner Group’s military operations in Ukraine. This article confirms that senior corporate officers of PMSCs may, in principle, satisfy the leadership requirement of aggression, opening up the door for their liability and urging closer scrutiny of such matters.
{"title":"Profiteers of Misery","authors":"Jeremy Pizzi","doi":"10.1093/jicj/mqad022","DOIUrl":"https://doi.org/10.1093/jicj/mqad022","url":null,"abstract":"\u0000 Since its hailing as the ‘supreme international crime’ during the Nuremberg Trials, aggression has largely been neglected relative to other core international crimes. However, the escalation of the Russo-Ukrainian War starting in early 2022 is being held as an opportunity to breathe new life into this de facto dormant norm. This article seeks to address novel concerns as to the scope of liability permitted by the crime of aggression, which arise from Russia’s enthusiastic use of private military and security companies (PMSCs) in this conflict. It first overviews the relevant terminology applicable to the use of private armed personnel. It then asserts the value of pursuing accountability for both aggression and PMSCs. The article continues by evaluating the requirements of aggression’s ‘leadership element’, which seeks to restrict liability to high-level leaders. As an illustrative case study, it applies this to the Wagner Group’s military operations in Ukraine. This article confirms that senior corporate officers of PMSCs may, in principle, satisfy the leadership requirement of aggression, opening up the door for their liability and urging closer scrutiny of such matters.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2023-08-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47510568","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract The doctrine of superior responsibility is occasionally presented as a potential solution to the ‘responsibility gap’ allegedly created when the employment of autonomous weapon systems (AWS) results in violations of international humanitarian law, which would amount to war crimes. This article analyses several challenges to the applicability of the doctrine of superior responsibility in these circumstances. In fact, superior responsibility is premised on the existence of a superior–subordinate relationship between individuals. The type of control required for this relationship to exist is different from the kind of control exercised over weapons, including AWS. Additionally, the doctrine requires the commission of an underlying crime in all its elements by a punishable subordinate. Nonetheless, superior responsibility remains a useful framework to demarcate the scope of the supervisory duties of the superior in relation to the prevention of war crimes. Understanding the limitations of this doctrine will be important in guiding the discussions concerning the level of human control that should be retained over AWS.
{"title":"A Weapon is No Subordinate","authors":"Alessandra Spadaro","doi":"10.1093/jicj/mqad025","DOIUrl":"https://doi.org/10.1093/jicj/mqad025","url":null,"abstract":"Abstract The doctrine of superior responsibility is occasionally presented as a potential solution to the ‘responsibility gap’ allegedly created when the employment of autonomous weapon systems (AWS) results in violations of international humanitarian law, which would amount to war crimes. This article analyses several challenges to the applicability of the doctrine of superior responsibility in these circumstances. In fact, superior responsibility is premised on the existence of a superior–subordinate relationship between individuals. The type of control required for this relationship to exist is different from the kind of control exercised over weapons, including AWS. Additionally, the doctrine requires the commission of an underlying crime in all its elements by a punishable subordinate. Nonetheless, superior responsibility remains a useful framework to demarcate the scope of the supervisory duties of the superior in relation to the prevention of war crimes. Understanding the limitations of this doctrine will be important in guiding the discussions concerning the level of human control that should be retained over AWS.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-08-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136327941","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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