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Why Command Responsibility May (not) Be a Solution to Address Responsibility Gaps in LAWS

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Abstract

The possible future use of lethal autonomous weapons systems (LAWS) and the challenges associated with assigning moral responsibility leads to several debates. Some authors argue that the highly autonomous capability of such systems may lead to a so-called responsibility gap in situations where LAWS cause serious violations of international humanitarian law. One proposed solution is the doctrine of command responsibility. Despite the doctrine’s original development to govern human interactions on the battlefield, it is worth considering whether the doctrine of command responsibility could provide a solution by applying the notion analogously to LAWS. A fundamental condition underpinning the doctrine’s application is the control requirement, stipulating that a superior must exert some degree of control over subordinates. The aim of this article is to provide an in-depth analysis of this control condition and assess whether it leads to the impossibility of applying the doctrine of command responsibility to LAWS. To this end, the first section briefly introduces the topic of LAWS and responsibility gaps. The subsequent section provides a concise overview of the doctrine itself and the conditions typically necessitated for its application. In the third section, a comprehensive scrutiny of the control requirement is undertaken through examination of key case law, examining how the concept has been interpreted. Finally, the fourth section delves into the evaluation of commanders’ potential to exert effective control over their (non-human) subordinates. Based on this, the feasibility of considering command responsibility as a viable solution is assessed, aiming to determine whether its application should be prima facie excluded or warrants further exploration.

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Notes

  1. Judgement Oct 1 1946 in trial of the major war criminals before the international military tribunal Nuremberg, 14 November 1945–1 October 1946, p. 223 (1947).

  2. See the final report by the UN Security Council’s Panel of Experts on Libya, ‘Final report of the Panel of Experts on Libya established pursuant to Security Council resolution 1973 (2011)’, pp. 1–48 (p. 17): https://documents-dds-ny.un.org/doc/UNDOC/GEN/N21/037/72/PDF/N2103772.pdf?OpenElement. For more information on this incident, see also the article in New Scientist available at: https://newscientist.com/article/2278852-drones-may-have-attacked-humans-fully-autonomously-for-the-first-time/?utm_campaign=The%20Batchutm_medium=email_hsmi=131230428_hsenc=p2ANqtz-_RgvIMImE2RtnFvZqP9qYNNAnYOBMd5FUht3Pus4eDRjIpvwPS0T0e3bVkCYwRqNgiwDcW6U8x-c0kZ-kfqSCrV1dJ-Qutm_content=131230428utm_source=hs_emailhttps://www.newscientist.com/article/2278852-drones-may-have-attacked-humans-fully-autonomously-for-the-first-time/?utm_campaign=The%20Batch&utm_medium=email&_hsmi=131230428&_hsenc=p2ANqtz-_RgvIMImE2RtnFvZqP9qYNNAnYOBMd5FUht3Pus4eDRjIpvwPS0T0e3bVkCYwRqNgiwDcW6U8x-c0kZ-kfqSCrV1dJ-Q&utm_content=131230428&utm_source=hs_email

  3. In philosophical discourses, several authors have criticized the existence of a responsibility gap or believe that the regular arguments given for it are inadequate. See e.g., (Nyholm, 2018; Simpson & Müller, 2016; Tigard, 2020; Galliott, 2020). For the remainder of this article this should not further detain us. Instead, the assumption that sophisticated LAWS might indeed create such responsibility gaps will underpin the rest of the article.

  4. Some recent proposals include: to hold the system itself responsible, to support the use of tort law or state responsibility, to adopt a form of strict liability in criminal law, and that human agents should hold themselves responsible.

  5. See among others: Bo et al. (2022, pp. 35–38); Schieman (2022); Schwarz (2021); McFarland (2020, pp. 162–164); Dickinson (2019, pp. 79–81); Margulies (2019, pp. 413–415); Nyholm (2018); Saxon (2016); Crootof (2016, pp. 1378–1381); Roff (2014, pp. 357–358); Schulzke (2013).

  6. Since the doctrine also applies to civilian leaders, the generic expression “superior responsibility” is often preferred. In terms of content, however, there is no difference between the two expressions and in practice they are often used interchangeably (see Prosecutor v. Sefer Halilović Case No. IT-01-48-A, para 51; Prosecutor v. Naser Orić Case No. IT-03-68-T, para 308). The only exception is article 28 of the ICC Statute, where a distinction is made between military and non-military superiors (see infra). Because this article is set in a military context, the term “command responsibility” will be used primarily. When referring to case law, the original terminology will be used.

  7. Direct liability, depending on the type of offence, must be based on intent or recklessness and there must be a direct causal link between the action and the outcome. Since the commander is not directly involved in the commission of the crime by LAWS and has no guilty mind, it seems very unlikely that the establishment of direct individual criminal liability is possible. See: Dickinson (2019); Chengeta (2016, pp. 16–27); Crootof (2016, p. 1376); Egeland (2016, p. 106); Saxon (2016, p. 28).

  8. See: ICTY Prosecutor v. Rasim Delić Case No. IT-04-83-T, para 59 and Mettraux (2009a, p. 18). This has been the majority view in case law. However, there are also authors and judges who argue that the superior is not responsible for the same crimes as subordinates but for a separate crime of omission. For a clear explanation of the difference between the two views, see: Sander (2010).

  9. See for example: the recent recommendation by UN Secretary-General António Guterres, in his 2023 New Agenda for Peace, for the establishment of a legally binding instrument by 2026 to prohibit LAWS lacking human control or compliance with IHL, and to regulate all other types of autonomous weapons systems; the Group of Governmental Experts that was tasked with investigating issues related to emerging technologies concerning LAWS within the framework of the UN Convention on Certain Conventional Weapons; REAIM Summit on responsible AI in the military domain (February 2023, The Hague); Political declaration by the United States, ‘Responsible Military Use of Artificial Intelligence and Autonomy’ (February 2023).

  10. The term autonomous weapons systems (AWS) is often used interchangeably with LAWS. To clarify, while ‘LAWS’ specifically pertains to systems designed to exert force against humans, ‘AWS’ encompasses a wider spectrum targeting both humans and objects. Throughout this article, the term LAWS will be used. Note that Taddeo and Blanchard observe that it is conceivable for an AWS to produce lethal effects due to a possible disconnect between intentions and consequences (2022b, p. 3).

  11. Recent discourse involves deliberations on the extent and existence of responsibility gaps in addition to potential remedies. Some notable recent contributions on the topic of responsibility gaps and autonomous weapons systems include: Königs (2022); Schieman (2022); Taddeo & Blanchard (2022b); Taylor (2021); Roach & Eckert (2020); Himmelreich (2019); Smith (2019); Nyholm (2018); Robillard (2018); Santoni de Sio & van den Hoven (2018); Simpson & Müller (2016).

  12. For a detailed analysis on predictability and understandability in LAWS, see Holland (2020).

  13. Various definitions are currently in circulation, differing in their scope and inclusions, such as the consideration of kinetic force, cyber aspects, defensive systems, and anti-materiel capabilities. For a comprehensive overview of these diverse approaches and definitions, see Taddeo & Blanchard (2022a) as well as the report by UNIDIR (The weaponization of increasingly autonomous technologies: Concerns, characteristics and definitional approaches, 2017).

  14. Different categories of uncrewed weaponry systems exist, accompanied by a range of potential levels of machine autonomy. Notably, Noel Sharkey outlines five autonomy levels, the ISO-IEC22989 Standard distinguishes six levels of automation, and a common distinction is made between systems with human involvement “in,” “on,” or “out” of the loop. For a comprehensive understanding of autonomy gradients and a clear demarcation between technical and human autonomy, see: Umbrello (2022, pp. 50–58).

  15. I adopt the term from Rebecca Crootof. For a good explanation on the distinction with “easy cases” see Crootof (2016, pp. 1376–1377). For an application of the distinction to autonomous cyber weapons, see Buchan & Tsagourias (2020, p. 648).

  16. For a more detailed explanation on the resemblance of the relationship between a commander and a human subordinate to that between a commander and a nonhuman subordinate, see Buchan & Tsagourias (2020, pp. 649–650). For a recent strong rejection of the analogous application, see Spadaro (2023).

  17. It is sometimes claimed that the ICC Statute requires an additional fourth criterion, namely the so-called causality requirement whereby the commission of the crime occurs “as a result of his or her failure to exercise proper control over such forces” (ICC Statute, art. 28 (a)). However, there is much debate in the literature as to whether the requirement of causality applies to the doctrine of command responsibility, whether the requirement is also implicit in customary international law, and the extent to which the recent ICC jurisprudence contradicts the rulings of the ad hoc tribunals. For that reason, I will not elaborate on the ICC Statute’s requirement but will limit myself for the remainder of this article to discussing the three standard conditions generally adopted for establishing command responsibility. For a concise overview see Case Matrix Network (2016, pp. 83–89).

  18. See in this regard ICTY 16 November 1998, Prosecutor v. Delalić and others Case No. IT-96-21-T, para 377: “The doctrine of command responsibility is ultimately predicated upon the power of the superior to control the acts of his subordinates”; ICTY Prosecutor v. Rasim Delić Case No. IT-04-83-T, para 57.

  19. See in the statement of the Trial Chamber in ICTY Prosecutor v. Sefer Halilović Case No. IT-01-48-T, para 59: “A degree of control which falls short of the threshold of effective control is insufficient for liability to attach under Article 7 (3). ‘Substantial influence’ over subordinates which does not meet the threshold of effective control is not sufficient under customary law to serve as a means of exercising command responsibility, and, therefore, to impose criminal liability”.

  20. ICTY Prosecutor v. Delalić and others Case No. IT-96-21-T, para 383; ICTR Prosecutor v. Laurent Semanza Case No. ICTR-97-20-T, para 403; ICTR Prosecutor v. Jean de Dieu Kamuhanda Case No. ICTR-95-54A-T, para 606.

  21. ICTR Prosecutor v. Juvénal Kajelijeli Case No. ICTR-98-44A-T, para 776; ICTR Prosecutor v. Ignace Bagilishema Case No. ICTR-95-1A-T, para 45; ICTR Prosecutor v. Laurent Semanza Case No. ICTR-97-20-T, para 404; ICTR Prosecutor v. Jean de Dieu Kamuhanda Case No. ICTR-95-54A-T, para 607.

  22. Although there is sometimes debate about the precise scope of the mens rea standard in the ICC Statute, the Bemba case has confirmed that an application of strict liability is not permissible: “The Chamber, reiterates what it has stated earlier in this decision, that the Rome Statute does not endorse the concept of strict liability. To this end, attribution of criminal responsibility for any of the crimes that fall within the jurisdiction of the Court depends on the existence of the relevant state of mind or degree of fault” (ICC Bemba (Decision Pursuant to Article 61(7(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo) Case No. ICC-01/05-01-08, para 427).

  23. ICTY Prosecutor v. Milorad Krnojelac Case No. IT-97-25-A, para 155; ICTY Prosecutor v. Delalić and others Case No. IT-96-21-A, para 241; ICTR Prosecutor v. Ignace Bagilishema Case No. ICTR-95-1A-A, para 28; ICTY Prosecutor v. Enver Hadžihasanović and Amir Kubura Case No. IT-01-47-A, para 28.

  24. ICTY Prosecutor v. Delalić and others Case No. IT-96-21-A, para 226; ICTY Prosecutor v. Tihomir Blaskić Case No. IT-95-14-A, para 62.

  25. ICTY Prosecutor v. Delalić and others Case No. IT-96-21-A, para 226.

  26. ICTY Prosecutor v. Enver Hadžihasanović and Amir Kubura Case No. IT-01-47-A, para 29; ICTY Prosecutor v. Delalić and others Case No. IT-96-21-A, para 239; ICTY Prosecutor v. Pavle Strugar Case No. IT-01-42-A, para 298.

  27. ICTR Prosecutor v. Ignace Bagilishema Case No. ICTR-95-1A-A, para 42; ICTR Ferdinand Nahimana and others v. Prosecutor Case No. ICTR-99-52-A, para 840; ICTY Prosecutor v. Milorad Krnojelac Case No. IT-97-25-A, para 154. It is not necessary for the information to contain specific details of unlawful acts that will be or have been committed by subordinates.

  28. ICTY Prosecutor v. Delalić and others Case No. IT-96-21-A, para 238.

  29. Ibid.

  30. In the Bagilishema case, the Court makes a distinction “between the fact that the Accused had information about the general situation that prevailed in Rwanda at the time, and the fact that he had in his possession general information which put him on notice that his subordinates might commit crimes” (ICTR Prosecutor v. Ignace Bagilishema Case No. ICTR-95-1A-A, para 42). See also ICTY Prosecutor v. Naser Orić Case No. IT-03-68-A, para 59 (“The Appeals Chamber stresses that knowledge of a crime and knowledge of a person’s criminal conduct are, in law and in fact, distinct matters”) and ICTY Prosecutor v. Enver Hadžihasanović and Amir Kubura Case No. IT-01-47-T, para 90.

  31. Compare paragraphs (a) and (b) of the ICC Statute, art. 28.

  32. ICC Statute, art. 28 (a) (i).

  33. Command liability must involve at least gross negligence. For a clear explanation of the difference between intent, recklessness, culpable or gross negligence and simple negligence, see Cassese (2009, p. 433).

  34. ICTY Prosecutor v. Tihomir Blaskić Case No. IT-95-14-A, para 63; ICTY Prosecutor v. Delalić and others Case No. IT-96-21-A, para 239; ICTY Prosecutor v. Sefer Halilović Case No. IT-01-48-T, para 71; ICTR Prosecutor v. Ignace Bagilishema Case No. ICTR-95-1A-A, para 35.

  35. On the relationship between these two conditions see, among others, van der Wilt & Nybondas (2021).

  36. ICTY Prosecutor v. Delalić and others Case No. IT-96-21-T, para 395.

  37. ICTY Prosecutor v. Tihomir Blaskić Case No. IT-95-14-A, para 417; ICTY Prosecutor v. Delalić and others Case No. IT-96-21-T, para 394; ICTY Prosecutor v. Zlatko Aleksovski Case No. IT-95-14/1-A, para 76.

  38. ICTY Prosecutor v. Delalić and others Case No. IT-96-21-T, para 395; ICTR Prosecutor v. Clément Kayishema and Obed Ruzindana Case No. ICTR-95-1-A, para 302; ICTY Prosecutor v. Zlatko Aleksovski Case No. IT-95-14/1-T, para 81; ICTR Prosecutor v. Laurent Semanza Case No. ICTR-97-20-T, para 406; ICTY Prosecutor v. Sefer Halilović Case No. IT-01-48-A, para 63.

  39. See ICC Prosecutor v. Jean-Pierre Bemba Gombo (Trial Chamber) Case No. ICC-01/05-01-08, para 201; ICTR Prosecutor v. Laurent Semanza Case No. ICTR-97-20-T, para 407; ICTY Prosecutor v. Radovan Karadzić Case No. IT-95-5/18-T, para 589; ICTY Prosecutor v. Momčilo Perisić Case No. IT-04-81-T, para 154; ICTY Prosecutor v. Naser Orić Case No. IT-03-68-T, para 326; ICTY Prosecutor v. Pavle Strugar Case No. IT-01-42-T, para 373; ICTY Prosecutor v. Tihomir Blaskić Case No. IT-95-14-A, paras 83-84; ICTY Prosecutor v. Radoslav Brdanin Case No. IT-99-36-T, para 279; ICTY Prosecutor v. Tihomir Blaskić Case No. IT-95-14-T, para 336; Jessberger & Werle (2020, p. 274); Cassese et al. (2013, p. 191).

  40. ICTY Prosecutor v. Delalić and others Case No. IT-96-21-T, para 377: “[I]t is, therefore, the Trial Chamber’s conclusion that a superior, whether military or civilian, may be held liable under the principle of superior responsibility on the basis of his de facto position of authority”.

  41. In this regard, see the ICTR Appeals Chamber: “The test for effective control is not the possession of de jure authority, but rather the material ability to prevent or punish the proven offences. Possession of de jure authority may obviously imply such material ability, but it is neither necessary nor sufficient to prove effective control” (ICTR Ferdinand Nahimana and others v. Prosecutor Case No. ICTR-99-52-A, para 625). This is also discussed further insightfully in: ICTY Prosecutor v. Enver Hadžihasanović and Amir Kubura Case No. IT-01-47-A, paras 18–21; ICTY Prosecutor v. Radoslav Brdanin Case No. IT-99-36-T, para 276; ICTY Prosecutor v. Rasim Delić Case No. IT-04-83-T, para 59; ICTY Prosecutor v. Vujadin Popović and others Case No. IT-05-88-T, paras 1038 and 2028; ICTY Prosecutor v. Radovan Karadzić Case No. IT-95-5/18-T, para 581.

  42. ICTR Prosecutor v. Clément Kayishema and Obed Ruzindana Case No. ICTR-95-1-A, para 294; ICTR Ferdinand Nahimana and others v. Prosecutor Case No. ICTR-99-52-A, para 625; ICTR Prosecutor v. Jean de Dieu Kamuhanda Case No. ICTR-95-54A-T, para 605; ICTR Prosecutor v. Théoneste Bagosora and others Case No. ICTR-98-41-T, para 2012; ICTY Prosecutor v. Delalić and others Case No. IT-96-21-A, para 256; ICTY Prosecutor v. Delalić and others Case No. IT-96-21-T, para 378; ICTY Prosecutor v. Blagojević and Jokić Case No. IT-02-60-T, para 791; ICTY Prosecutor v. Milorad Krnojelac Case No. IT-97-25-T, para 93.

  43. In this regard, see the Trial Chamber in the Čelebići case: “Great care must be taken lest an injustice be committed in holding individuals responsible for the acts of others in situations where the link of control is absent or too remote” (ICTY Prosecutor v. Delalić and others Case No. IT-96-21-T, para 377).

  44. ICTY Prosecutor v. Tihomir Blaskić Case No. IT-95-14-A, para 69; ICTY Prosecutor v. Pavle Strugar Appeal Chamber Case No. IT-01-42-A, para 254; ICTY Prosecutor v. Sefer Halilović Case No. IT-01-48-T, para 191; ICTY Prosecutor v. Enver Hadžihasanović and Amir Kubura Case No. IT-01-47-1, para 231; ICC Bemba (Decision Pursuant to Article 61(7(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo) Case No. ICC-01/05-01-08, para 416; ICTR Ferdinand Nahimana and others v. Prosecutor Case No. ICTR-99-52-A, para 788.

  45. ICC Bemba (Decision Pursuant to Article 61(7(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo) Case No. ICC-01/05-01-08, para 417; ICTY Prosecutor v. Sefer Halilović Case No. IT-01-48-A, para 207; ICTY Prosecutor v. Rasim Delić Case No. IT-04-83-T, paras 62 and 368; ICTY Prosecutor v. Radovan Karadzić Case No. IT-95-5/18-T, para 581.

  46. See ICTY Prosecutor v. Mladen Naletilic and Vinko Martinovic Case No. IT-98-34-T, para 69: “Even a rank-less individual commanding a small group of men can have superior responsibility”.

  47. Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vuković Case No. IT-96-23-T & IT-96-23/1-T, para 399; ICTY Prosecutor v. Sefer Halilović Case No. IT-01-48-T, para 61; ICTY Prosecutor v. Fatmir Limaj and others Case No. IT-03-66-T, para 522; ICTY Prosecutor v. Rasim Delić Case No. IT-04-83-T, para 54; ICTY Prosecutor v. Vujadin Popović and others Case No. IT-05-88-T, para 1039.

  48. ICTY Prosecutor v. Tihomir Blaskić Case No. IT-95-14-A, para 66; ICTY Prosecutor v. Tihomir Blaskić Case No. IT-95-14-T, para 303; ICTY Prosecutor v. Naser Orić Case No. IT-03-68-T, para 313; ICTY Prosecutor v. Milorad Krnojelac Case No. IT-97-25-T, para 93; ICTY Prosecutor v. Mladen Naletilic and Vinko Martinovic Case No. IT-98-34-T, para 69; ICTY Prosecutor v. Fatmir Limaj and others Case No. IT-03-66-T, para 522.

  49. For this, see ICTY Prosecutor v. Enver Hadžihasanović and Amir Kubura Case No. IT-01-47-A, para 217: “The Appeals chamber disputes the relevance of the criterion identified by the Trial Chamber as an indicator of the existence of effective control. Hadžihasanović’s effective control cannot be established by process of elimination. The absence of any other authority over the El Mujahedin detachment in no way implies that Hadžihasanović exercised effective control in this case”.

  50. ICTY Prosecutor v. Delalić and others Case No. IT-96-21-A, para 252 (own emphasis).

  51. ICTY Prosecutor v. Pavle Strugar Case No. IT-01-42-T, para 366; ICTY Prosecutor v. Sefer Halilović Case No. IT-01-48-T, para 63 (own emphasis). See also: ICTY Prosecutor v. Dario Kordić and Mario Čerkez Case No. IT-95-14/2-T, para 415; ICTY Prosecutor v. Fatmir Limaj and others Case No. IT-03-66-T, para 522; ICTY Prosecutor v. Radovan Karadzić Case No. IT-95-5/18-T, para 583.

  52. For a brief explanation of the hierarchical levels in the chain of command, see: ICTY Prosecutor v. Dario Kordić and Mario Čerkez Case No. IT-95-14/2-T, para 419.

  53. ICTY Prosecutor v. Delalić and others Case No. IT-96-21-A, para 266. This has also been repeated in the cases ICTY Prosecutor v. Radoslav Brdanin Case No. IT-99-36-T, para 373 and ICTY Prosecutor v. Dario Kordić and Mario Čerkez Case No. IT-95-14/2-T, paras 415 and 840.

  54. ICTY Prosecutor v. Delalić and others Case No. IT-96-21-A, para 263 (own emphasis).

  55. ICTY Prosecutor v. Enver Hadžihasanović and Amir Kubura Case No. IT-01-47-A, para 200.

  56. See also: ICTY Prosecutor v. Rasim Delić Case No. IT-04-83-T, para 60.

  57. In the words of the Appeal Court: “The Appeals Chamber does not dispute that the 3rd Corps may have benefited from the El Mujahedin detachment, and that a circumstance of this kind may entail some form of responsibility, if the particulars of such responsibility are adequately pleaded in an Indictment. The Appeals Chamber nevertheless questions the relevance of that consideration for demonstrating the existence of Hadžihasanović’s effective control over the El Mujahedin detachment. The Appeals Chamber clarifies (…) that the responsibility of a superior under Article 7 (3) of the Statute is only triggered by a superior’s failure to prevent and punish the crimes of his subordinates of which he has the requisite knowledge. Thus, even if Hadžihasanović benefited militarily from the El Mujahedin detachment, his responsibility as a superior under Article 7 (3) of the Statute would be, eventually, triggered only upon a showing that the members of the El Mujahedin detachment were his subordinates” (ICTY Prosecutor v. Enver Hadžihasanović and Amir Kubura Case No. IT-01-47-A, para 213).

  58. ICTY Prosecutor v. Enver Hadžihasanović and Amir Kubura Case No. IT-01-47-A, para 228.

  59. Ibid, para 232.

  60. ICTY Prosecutor v. Pavle Strugar Case No. IT-01-42-T, paras 395-396.

  61. It should be mentioned in this regard that article 36 of the Additional Protocol I (1977) imposes a duty on all states to conduct legal reviews of all new weapons, means and methods of warfare (thus, including autonomous weapons) before they are used in an armed conflict to determine whether their use is prohibited by international law. Under this article some degree of predictability and foreseeability of the effects of the weapon is already required in order to meet the legal thresholds as well as to allow the reviewing authority to determine whether the weapon is capable of being used lawfully. For an overview of the challenges that arise for weapon review processes for increasingly autonomous systems and best practice, see Boulanin (2015).

  62. An anonymous reviewer has pointed out a further weakening in Chengeta’s argument: as Chengeta does not fully consider the human agents that are part of AWS (since we are not discussing autonomous weapons), it would have been more convincing if Chengeta had limited the observation to “autonomous weapons” instead.

  63. An anonymous reviewer suggested in this regard that autonomous weapons systems could potentially be constrained by control programs which, for example, could prevent a weapon launch unless every person in a blast radius is identified as a combatant.

  64. See Crootof (2016, p. 1379): “The elements currently required for indirect liability do not map well onto a situation where no human being acts intentionally or recklessly (…) it is not clear what would constitute ‘effective control’ over autonomous weapon systems. When a commander gives a subordiante an order, the commander remains responsible for taking necessary precautions against that subordiante committing an unlawful act; he oversees the subordinate and can punish any violation the subordinate commits. This de facto control is necessary for indirect liability (…) Accordingly, some have concluded that because commanders could never exercise effective control over autonomous weapon systems, their usage creates a legal loophole, allowing commanders to authorize uses of force without having to take responssibility for them.” See also Roff (2014, p. 357): “Looking at the case of LARs, the effective control criterion would actually exculpate leaders from legal responsibility because of the commanders’ inability to control the machines.”.

  65. ICTY 10 June 2010, Prosecutor v. Vujadin Popović and others Case No. IT-05-88-T, para 2023 (own emphasis).

  66. Note that this would be highly unlikely based on what we have seen in the previous subsections since no country would have an interest in a system that would function without restrictive engagement parameters.

  67. The latter fact seems trivial but could become interesting, since it is unlikely that an automated weapons system will consist of a single system. It is more likely that it will consist of multiple systems or will operate as part of a swarm. For more information on this, see McFarland (2020, pp. 54–56).

  68. See Asaro (2012).

  69. See in this regard also Mariarosaria Taddeo and Alexander Blanchard who highlight the potential for confusion between decision-making power and information access, exemplified by situations where lower ranking personnel might possess clearer insights about technology deployment risks than higher ranking command officials (Taddeo & Blanchard, 2022a, b, p. 13).

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  1. Department of Behavioural Sciences, Royal Military Academy, Brussels, Belgium

    Ann-Katrien Oimann

  2. Department of Philosophy, KU Leuven, Leuven, Belgium

    Ann-Katrien Oimann

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Oimann, AK. Why Command Responsibility May (not) Be a Solution to Address Responsibility Gaps in LAWS. Criminal Law, Philosophy (2023). https://doi.org/10.1007/s11572-023-09710-7

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