Autonomous Cyber Capabilities and Individual Criminal Responsibility for War Crimes

Abstract

Weaponization of the pervasive cyber infrastructure and of nascent autonomous technologies poses difficult challenges for individual criminal responsibility for war crimes arising from the military use of these technologies. For cyber technologies, the problem is identifying the perpetrator of the conduct which corresponds to the actus reus of the relevant war crime. For autonomous technologies, there is the problem of the ‘responsibility gap’: if the impugned conduct is effectuated by an algorithm or by a human relying on an algorithm, there is no human being with the mens rea required for the crime. Autonomous cyber capabilities (ACC) compound these two very significant and quite different challenges. This chapter analyses the challenges posed by ACC to criminal responsibility for war crimes. It does so by considering the practicalities of war crimes prosecution and how these challenges might be addressed in practice. On this basis, it presents two arguments. First, the practical impact of the challenge of identifying perpetrators and of the responsibility gap on individual criminal responsibility may be mitigated in some cases by the practice of charging and adjudicating war crimes. Second, for the remaining cases, the impossibility of criminal responsibility should not be seen as diminishing the enforcement of international humanitarian law (IHL) but instead, as indicating the preferability of enforcing IHL in these cases by invoking the parallel responsibility of belligerents. This chapter does not deny the significance of the difficulty of identification or of the responsibility gap and nor does it take on the quixotic burden of resolving them. Instead, it argues for destabilising the unitary and fixed nature of these problems, and for seeing them as variable challenges which may manifest differently in different cases. This differentiated perspective allows for the recognition that in some cases these challenges do not pose insurmountable barriers to prosecution and allows for the refocussing of attention on the residual cases. In turn, the resilience of these challenges in ‘residual’ cases draws attention to the possibility that criminal responsibility is simply inappropriate in these cases, and that these cases are better addressed in terms of the underlying responsibility of belligerents.