Theories of Individual Criminal Responsibility for Unlawful Attacks with Autonomous Weapons Clause Samples

Theories of Individual Criminal Responsibility for Unlawful Attacks with Autonomous Weapons. Preliminarily, two general kinds of individual criminal responsibility may arise when soldiers and/or their commanders violate international humanitarian and/or international human rights law. First, ‘direct’ responsibility arises from an individual’s acts or omissions that contribute to the commission of crimes.62 Second, ‘superior’ or ‘command’ responsibility emanates from the failure of military or civilian superiors to perform their duty to prevent their subordinates from committing such crimes, and/or the failure to fulfill the obligation to punish the perpetrators thereafter.63 Thus, in the ‘Čelebići’ case, the ICTY Appeals Chamber held that the superior ‘would be tried for failure to act in respect of the offences of his subordinates in the perpetration of which he did not directly participate.’64 61 Prosecutor v. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Judgment, IT-04-82-T, 10 July 2008, paras. 601 and 607 – 608. Similarly, when sentencing ▇▇▇▇▇▇ ▇▇▇▇▇, former Minister of Interior for the Federal Republic of Yugoslavia, for his responsibility for, inter alia, crimes against humanity that occurred in Kosovo, the Trial Chamber recognized that ▇▇▇▇▇ acted ‘in the midst of a complicated situation, including the defence of the country against NATO bombing and some combat operations against the KLA.’ Prosecutor v. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, et. al., Judgment, IT-05-87-T, 26 February 2009, para. 1201. 62 Prosecutor v. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Judgment, IT-98-29, Trial Chamber, 3 December 2003, para. 169. 63 Prosecutor v. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Judgment, IT-04-81-A, Appeals Chamber, 28 February 2013, paras. 86 – 87. 64 Prosecutor v. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, et. al., Judgment, Appeals Chamber, para. 225 (emphasis added). Moreover, each theory of individual criminal liability contains objective and subjective elements:65 the actus reus – the physical act necessary for the offence -- and the mens rea – the necessary mental element.66 The principle of individual guilt requires that an accused can be convicted of a crime only if her mens rea comprises the actus reus of the crime.67 A conviction absent mens ▇▇▇ would violate the presumption of innocence.68 Thus, to convict an accused of a crime, she must, at a minimum, have had knowledge of the facts that made her conduct criminal.69 Similarly, at the ICC conviction can occur ‘only if the material elements are committed with intent and knowledge.’70 This conjunctive approach requires the accused to possess a volitional element encompassing two po...
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