Accountability Gap: Autonomous Weapon Systems and Modes of Responsibility in International Law

By Chengeta, Thompson | Denver Journal of International Law and Policy, Fall 2016 | Go to article overview

Accountability Gap: Autonomous Weapon Systems and Modes of Responsibility in International Law


Chengeta, Thompson, Denver Journal of International Law and Policy


If the nature of a weapon renders responsibility for its consequences impossible, its use should be considered unethical and unlawful as an abhorrent weapon. (1)

I. INTRODUCTION

The development of unmanned systems that are remotely controlled and those with increased autonomy in making the decision to target or kill humans has been a worry to the international community for more than a decade now. The idea to develop Autonomous Weapon Systems (AWS)--machines that, once activated, are able to make the decision to kill humans without further human intervention--has sparked heated debates across the globe. (2) The old adage, "technology is a double-edged sword" (3) has never, in the history of weapons development, been more pertinent than it is with AWS. On the one hand, there are claims that AWS promise a potential to save lives--to make a change to the unacceptable current state of affairs in armed conflict and elsewhere--where force is used. (4) On the other hand, however, there are compelling reasons to believe that the deployment of AWS will result in the violation of the right to life, dignity, and other important rights. (5) Scholars, organizations and states are divided on how to respond to AWS. (6) One of the major issues of concern relates to accountability. In this paper, I focus on the challenges of accountability that are posed by AWS and the possible solutions to such.

AWS without 'Meaningful Human Control' are unpredictable on the battlefield or wherever they are used. (7) In the event of them violating the law--violations that are not intended by the person deploying them--it is not clear who is legally responsible, thereby creating an accountability gap. (8) Accountability is important in international law because where there is an accountability gap, the victims' right to a legal remedy is adversely affected.' There are four forms of accountability that I am going to discuss in this paper: individual, command, corporate, and state responsibility. (10) Under individual and corporate responsibility, there is civil and criminal liability.

In summary, the arguments I make in this paper are: the above mentioned forms of accountability are complementary to each other; they are not alternatives to the exclusion of the other. (11) For example, if AWS create an accountability gap-as far as the individual criminal responsibility of those deploying AWS on the battlefield is concerned--that specific gap is neither closed by suing the responsible individuals under civil responsibility nor holding the manufacturing company liable under corporate responsibility. (12)

Under individual responsibility, as long as there remains the possibility of AWS acting in an unpredictable manner, they may present an unresolvable challenge as far as the establishment of the accused person's mens rea is concerned. I also argue that the proposed system of 'split-responsibility' over use of a weapon--where responsibility is divided or shared between the fighter and other persons involved in the production of AWS like manufacturers--is not only foreign to international weapons law as the lex specialis on the use of weapons but also inappropriate and hence unwelcome. (13)

As for command responsibility, I argue that it is inapplicable to the relationship between AWS and those deploying them. No analogy may be drawn between the relationship of human commander versus a human subordinate and that of the human fighter versus a robot. The continued referral of a person deploying AWS as a commander gives a misleading impression that AWS are somewhat combatants or fighters. (14) AWS must be developed in a manner that they remain weapons in the hands of a fighter who is liable on the basis of individual responsibility in cases where crimes are committed. (15) It should not, and must not, be a case of a commander and subordinate where the notion of command responsibility is invoked. Command responsibility is only applicable to the extent of the responsibilities of a human commander over his or her human subordinates involved in the deployment or use of AWS. …

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