This article has been authored by Shivesh Saini , a second year student of University School of law and Legal Studies
PICTUTRE TAKEN FROM GETTY IMAGES
In contemporary times, there have been fiery debates centered around the immersion of autonomous weapon systems in modern warfare. Many commentators believe that this poses an excessive challenge to existing humanitarian conventions and other legal regimes. While the other fragment of scholars opined that this marked the beginning of sophisticated and tactical warfare which shall reduce human suffering. However, even if the latter view is accepted, one could not repudiate the increasing ‘legal singularity’ of owning these autonomous missiles. Due to this, the academicians foresee the need to address delinquency by applying the prevailing principles in whatever way possible. Considering this singularity, the question arises as to who should be held accountable and what are the prerequisites for the same. Besides, what if the perpetrator tries to absolve his liability for his/her war crimes through AWS. To answer these questions of legal concern, the widely recognized problem is to identify the requisite intent or knowledge by which the act was committed. Whether the Mens Rea behind that act is in line with the standards prescribed in Article 30 of the Rome statute. These obscurities should be adequately answered as they might impact the right to remedy for victims. After all, without accountability and evidence, any statute or regulation will be nothing but a mere brutum fulmen.
ARTICLE 30 : THE MAINSTAY FOR ESTABLISHING LIABILITY.
In the situation of willfully deploying the autonomous weapons, the perpetrator might be liable for Murder and crimes against humanity under Article 7 (1) (a) and Article 8 (2) (c) of the Rome statute respectively. Though, it is imperative to note that he could only be held liable when his Mens Rea would be coupled with the actus reus. An actus reus can simply be defined as a commission of an act, omission of an act or simply the combination of both that might include both involuntary and voluntary acts. As far as Mens rea is concerned, it strictly consists of elements of intent and knowledge. In simpler words, the act should be committed with intent or knowledge to constitute the liability. However, Recklessness and negligence are exceptions to Mens rea, which means that any act done with recklessness or negligence will not attract any liability unless and until it is explicitly mentioned in the law. Considering these exceptions, it should be duly observed that these exemptions will make the prosecution of the perpetrator more difficult in the case of AWS as these weapons are autonomous in nature. Moreover, AWS can act as a casual means of inflicting harm but still will not qualify as a legal person who can be held accountable in int. criminal law. In a simpler sense, even if the accused acted with malicious intent, it is difficult to satisfy the required threshold of Mens Rea where faults can exist even in normal usage. Thus, establishing liability in these cases will not be forthright and easy.
Nevertheless for imposing the liability, one had to look at the ingredients of Article 30. It smears on all the general provisions of the Rome statute and thereby acts as a default rule. Besides, it provides the comprehensive definition of ‘intent’ and ‘knowledge’ that needed to be substantiated to constitute the crime. Article 30 encompasses three groupings of Mens Rea- (a) Dolus Directus of 1st Degree (b) Dolus Directus of 2nd Degree and (c) Dolus eventualis. However, there is a conflict of opinion among scholars regarding the insertion of dolus eventualis within article 30. These gradations are further compromises of volition (desire) and cognitive elements (awareness). What determines the difference between these gradations is the relative presence of these two components. As stated above, the higher graduation is dolus directus of 1st degree which requires the willfulness of a perpetrator to commit an act. Merely the foreseeability of an act cannot constitute the liability. The situation was elucidated by PTC Chamber in Lubanga Case wherein it asserted that for intention and knowledge to exist, there must be the presence of a ‘volition element’ on the part of the accused. This volition element in the first gradation includes- (a). the suspect should know that his act will accomplish the material elements of the crime. (b) He should have the concrete intentions to accomplish the crime in question ( High volition element). These elements if proved will impose the liability of first degree. As regards to 2nd degree of dolus directus, the volition component should be weaker as compared to the first and hence, the cognitive element should lead here. Here, the accused must anticipate the act that will be the direct consequence of his actions.
Herewith, by analyzing both the gradations of Article 30, it is not difficult to conclude that the accused should be liable under the second gradation. The prosecution could argue that even if the AWS is autonomous, there is a high possibility that a perpetrator might foresee the consequences as he might be aware that the weapon might commit a crime and he made a conscious decision to launch the weapon. The perpetrator along with several co-perpetrators can be held liable under Article 25 (3) (c) of the Rome statute that elucidates upon the command responsibility. All that it needs to impose the liability is to demonstrate that there was a presence of knowledge on the part of co-perpetrators that they have contributed to the commissioning of a crime. For knowledge, the prosecution could argue that the accused was aware of the probable consequences unless and until some extra-ordinary circumstances will intercede. This second gradation of Article 30 somewhat resembles the German concept of Dolus directus where the volition component is too weak as compared to the cognitive element. This would mean that dolus directus of the second degree would also cover oblique intent within its preview. The view was accepted by PTC-II in the Bemba case where it asserted that the accused must be ‘aware’ that crime will be the outcome of his actions. Therefore, the mere presence of knowledge, as opposed to intent, will hold the perpetrator and co-perpetrators liable for launching the AWS.
IMPOSING THE ACCOUNTABILITY THROUGH DOLUS EVENTUALIS
As earlier discussed, there is a contention that whether Dolus eventualis or Recklessness should be included within the preview of Article 30. Recklessness or Dolus eventualis has a lower volitional component. PTC II, due to the much lower volitional element, had refused to acknowledge it as a part of Article 30 in the Bemba and Lubanga case. Those who oppose the idea of inclusion refer to the word ‘will occur’. They contend that the wording itself suggests that the perpetrator foresees the event with certainty. However, it should also be noted that the argument of inclusion of dolus eventualis found its support in many international authorities. The argument rests on the ground that both ICTY and ICTR have recognized the liability based on Recklessness. It should be understood that a high Mens Rea threshold might prove to be a problem in punishing the crimes committed through AWS. The concept of Intention is ‘notoriously vague’ where the accused can be absolved from the liability even if he is aware of the consequences. Therefore, efforts should be made to lower the Mens Rea threshold by applying the interpretation of tribunals in Delalic, Galic and Blaskic cases. In these precedents, the tribunals accepted recklessness as to the part of Mens Rea that is required to commit the war crime. Still, it is important to analyze the facts and context of these cases to assess their applicability. Hence, these precedents are considered in the article to illustrate the substantive facet of recklessness. After that, we will consider which of these case laws could best support the liability of the perpetrator responsible for the malevolent use of AWS.
The analysis part begins with analyzing the applicability of the Delalic case. The case involves four people who were accused of custodial violence and detainee abuse. ICTY in this case asserted that the necessary intent can be demonstrated where the violence is perpetrated in reckless disregard for human life. Though, it's a fact that ICTY acknowledged recklessness within the domain of Mens rea. Despite this, it should be noted that the Delalic case embodies the limited form of recklessness that is confined to detainees only. Applying the test laid down in the delalic verdict in the cases of operation of AWS will render the conclusion erroneous and flawed.
The next assessment of the notion of recklessness will begin with the Galic case that was presided over by the ICTY. The central question of the case was whether the reckless attack on the civilian population can be qualified to be known as a war crime. The Trial chamber in pursuance of this question held that the perpetrator who “wilfully” strike the civilian population will be established as a grave breach. This was done in accordance with article 85 of Additional protocol 1. However, after careful analysis, one can reveal the two fundamental flaws in the reasoning concluded by ICTY. The first such flaw is that ICTY accepted questionable ‘wilfulness’ explanation of ICRC Commentary to AP 1. Essentially, the ICRC Official French commentary used the word ‘intentionally’ in Article 85 and ‘volontaire’ in Article 11 whereas the English official commentary used the word ‘wilful’ on both occasions. This led to the erroneous interpretation and is a result of translation vagueness. Therefore, Based on the Galic reasoning, it is wrong to determine that recklessness will include within the domain of Mens Rea. The Galic recklessness threshold based on targeting civilians was expressly excluded by the Rome Statute. This exclusion can be emphasized by analysing the general articulation of the rule of proportionality enshrined in the Rome statute which explicitly used the word ‘intention’. Similarly, The mental element used in the Rome statute is much higher than the word ‘wilful’ used in ICRC commentary. Due to these reasons, this notion of Recklessness was discarded by state delegates and ICC in its subsequent verdicts. So, it will be imprudent on part of the tribunals and scholars to extend this Galic interpretation in AWS cases as it would violate Article 22(2) of the Rome statute which requires strict construction of definitions.
The next line of argument would move to the Blaskic case. Here, the perpetrator was held liable by ICTY for ordering, planning and committing war crimes in Bosnia and Herzegovina. In this precedent, the appeal chamber held that the mere awareness of likelihood is sufficient to hold the committer liable. The tribunal here established the liability of the wrongdoer under the command responsibility enshrined in Article 25 of the Rome statute. Therefore, it could be concluded that this precedent is best suited to hold the offender liable as dolus eventualis was finally accepted in context with command responsibility. In addition, this interpretation has also been recognised in the Rome statute as it permits the liability for wrongdoer “who orders, solicits or induces the commission" of a crime reflected in Article 25 of the statute. This provision allows the imposition of liability where the perpetrator "should have known” that his subordinates were about to commit a war crime. Hence, the article concludes that the interpretation of the Blaskic case is best suited and apt to be expanded and to be applied in the cases of Recklessness. Here, the prosecution has to prove that the perpetrator commits or orders to commit the launching of AWS even though he is aware that there is a likelihood that it can lead to the killings of innocent civilians. In simpler words, the assertion that the perpetrator was conscious of the existence of risk factors in launching the AWS and he nonetheless decides to proceed with it shall be enough to impose the liability.
The question of establishing liability through recklessness is unsettled for now in Public International Law. Also, there is no concrete set of rules to govern the functioning of AWS. These two sets of unsettled matters are addressed by the article to bring clarity to the issue. The article concludes that recklessness in cases of AWS can be included within the domain of Mens Rea in restricted circumstances. The detainee context in delalic and flawed reasoning in Galic cannot be applied and are even rejected by ICC in subsequent judgements. In a blaskic context, it will be mandatory for the prosecution to demonstrate that the attacker in some way reconciled himself with the potential consequence. Therefore, to constitute recklessness concretely, the assertion must be based on an authoritative law and text. Relying on the formulations and interpretations of Ad hoc tribunals would contribute much less to the intended cause of lowering the threshold of Article 30. Instead, the emphasis should be on inflicting the same liability for both the usage of both conventional and autonomous weapons. Even while operating the AWS, it is presumed that the perpetrator might have a satisfactory sum of knowledge that it can cause the damage to civilians disproportionality. Therefore, the presumption of knowledge should be the new rule added to the existing legal regime to impose the individual/ commander responsibility on the usage of these autonomous weapons.
Comments