CYIL vol. 8 (2017)

KAROLINA WIERCZYŃSKA CYIL 8 ȍ2017Ȏ what the relevant jurisdiction is and whether there are any excuses referring to individual responsibility. Then a person could be sentenced and punished. As mentioned, the key provision of ICL (and domestic criminal law) is to identify the individual responsible for committing the crimes and punish him. The jurisdiction of international criminal tribunals is focused on natural persons, 36 therefore this becomes problematic when the violation was caused by a machine, not a human being. 3.1 Responsibility of the individual for the actions of the machine Clearly a machine shall not be granted legal personality, although such ideas were expressed in the literature. 37 The responsibility for the wrongdoings of the machine shall be attributed to an individual person. There are quite a few candidates for such legal responsibility depending on the involvement in the production and use of such a machine, for example software programmers, people who build or sell the hardware, military commanders, subordinates who deploy these systems, presidents and monarchs as being the supreme commanders of the armed forces and other political or military leaders. The attribution of responsibility is simple when we discuss or analyze clear situations of a commander who knew that the weaponized machine would be involved in serious violations, or the programmer who intentionally programmed the machine to take part in serious violations. They both could be subject to individual criminal responsibility for deploying such a weapon in an illegitimate manner. The commander and programmer would be equally responsible for the violation of IHL and ICL. The problem of attribution is connected with all the marginal situations where no intentional or recklessness action of an individual can be observed, 38 or when it is impossible to define the scope of the involvement of a person in the illegitimate action of a machine. The ICC Statute provides that a person could be criminally responsible only if he acts with intent and knowledge – specifically when he is engaged in certain criminal conduct and he is aware that certain consequences will occur in the ordinary course of events (Article 30). The responsibility cannot be attributed to the person who did not have an intent to commit a crime and did not know what could happen if certain criminalized conduct would be implemented. Additionally it must be observed that traditionally command responsibility doctrine was based on the presumption that the superior knows his subordinates, knows the means of warfare. It cannot be basically assumed in the context of drone warfare or 36 Although for example the charter of the Nuremberg tribunal (Charter of International Military Tribunal) provided in article 9 that the tribunal might declare that the group or organization of which the individual was a member was a criminal organization. Accordingly the tribunal declared for example The Gestapo or SS as criminal organizations, which led to their dissolution. The ICTY developed the doctrine of joint criminal enterprise to give response to a collective crime (see Prosecutor v. Milutinovic, Decision on Dragoljub Ojdanic’s Motion Challenging Jurisdiction Joint Criminal enterprise, IT-99-37-AR72, 21. 05. 2003), also the Rome Statute provides for the responsibility of the person if she/he contributed to the commission of the crime acting with common purpose (see art. 25 (3) (d) of the Statute), but as to the latter – it does not change the fact that the jurisdiction of present tribunals is limited to natural persons and does not cover collective subjects. 37 MCFARLAND, T., MCCORMACK, T. , Mind the Gap: Can Developers of Autonomous Weapons Systems be Liable for War Crimes?, 2014 (90) International Law Studies , p. 367. Marc Klambers on the contrary addresses the fact that robots have no moral agency and as result cannot be responsible, see KLAMBERG, M., International Law in the Age of Asymmetrical Warfare…, p. 168. 38 This was already noticed in the literature, see: CROOTOF, R., War Torts: Accountability for Autonomous Weapons…, op. cit., p. 1377; and the jurisprudence: ICTY, Prosecutor v. Blaškić, IT-95-14-T, Trial Chamber Judgment, 3. 03. 2000, para. 152.

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