AI-based Autonomous Weapons and Individual Criminal Responsibility under the Rome Statute

Objective: international law obligates states to prosecute those who have violated laws in armed conflicts, particularly when the international community now has International Criminal Court (ICC). That is why the aim of the paper is to discover the responsibility for the crimes made with the use of AI-based autonomous vehicles in accordance with the provisions of the Rome Statute of the ICC. Methods: doctrinal analysis allowed to research the positions of experts on the responsibility for the crimes made with the use of AI-based autonomous vehicles in accordance with the provisions of the Rome Statute of the ICC. Results: this paper argues that the ICC can only exercise jurisdiction over natural persons who allegedly have committed the crimes under its jurisdiction, as compared to autonomous weapons. This paper argues that the persons who facilitate the commission of the alleged crimes are highly likely to be criminally responsible for providing means for the alleged crimes to be committed by AI-based autonomous weapons under Article 25(3)(c) of the Rome Statute and concludes that the Rome Statute provides a solution even to AI-based autonomous weapons.


Introduction
War has become a tool for states to expand its territories where they have resorted to armed conflicts (Kalmanovitz, 2022;Kohama, 2019).During the armed conflict, various methods and means of warfare have been used which resulted into casualties for both or all sides, depending on how many parties or states have involved in the armed conflict (Bantekas, 2022).The warfare or types of weapons have evolved and changed tremendously, especially during and after the outbreak of both World Wars I and II (Fennell, 2019).Conventional weapons such as swords, knives, bows, gunpowder have been replaced with nuclear arms since then.Nonetheless, many states have now resorted to autonomous weapons via artificial intelligence (AI) as the latest technology to be used as its warfare (Human Rights Watch, 2020).Autonomous weapon is based on the AI which is the latest technology developed many countries and to be used as a weapon system that once activated, can select and engage targets without further intervention by a human operator (Horowitz, 2019).This type of weapon replaces ordinary human fighters (Hareth & Evans, 2023).

Autonomous Weapon in Artificial Intelligence
Autonomous weapon in artificial intelligence (AI) and robotics, autonomy simply refers to the ability to function for an extended period without the assistance of a human operator.
Since war is divisive, many military applications of AI and robotics are also contentious (Amoroso & Tamburrini, 2021).The development and use of lethal autonomous weapons systems capable of autonomously making life and death decisions regarding human targets is perhaps the most contentious aspect of this topic.Cruise missiles, some argue, are a type of lethal autonomous weapons system.The Patriot missile system, the AEGIS naval weapons system, the Phalanx weapons system, and the Israeli Harpy weapons system are all examples of lethal autonomous weapons systems in use today (Payne, 2021).Defensive weapons include the Patriot, AEGIS, and Phalanx systems (Bartneck et al., 2021).In short, not all military robots are lethal.
The term "military robot" encompasses a wide range of non-lethal applications (Bartneck et al., 2021;Krishnan, 2009).Autonomous robots might be employed in mine clearance, explosive ordnance disposal, command and control, reconnaissance, intelligence, mobile network nodes, rescue missions, supply and resupply missions, and support operations, among other things (Burgess, 2017).Debates about military robots may differ depending on the robot's role (Malle et al., 2019).It is important to define some commonly used terms to illustrate the robot's and human's role in relation to war.In AI and robotics, autonomy simply refers to the ability to function for an extended period without the assistance of a human operator (Totaro, 2023).Robots may have autonomy over their immediate decisions, but they generally do not have autonomy over their goal selection (Javdani et al., 2018).
A weapon is said to be "autonomous" in the "critical functions of targeting" if it can perform one or more of the following without the assistance of a human operator.If the weapon can choose which types of objects to engage, it will be autonomous in terms of defining its targets (Ekelhof, 2017).This capability is not currently available on AWS.If a weapon can use sensors to select a target without the assistance of a human operator, it is said to have autonomy in the targeting selection function.
Many existing weapons can select targets without the assistance of a human operator.
When a weapon can fire on a target without the intervention of a human operator, it is said to have autonomy in the engage function of targeting.Many existing weapons can engage previously selected targets.The Patriot anti-missile system, for example, can select targets autonomously but requires a human operator to press a confirm button before launching a missile.Once launched, the missile can hit its target without the assistance of a human operator.Human control of a Patriot missile is not possible due to the speeds involved (Bartneck et al., 2021).
Many other functions may be "autonomous" for an AWS.It may be able to take off and land autonomously, as well as navigate autonomously.However, this non-lethal "autonomy" is not generally regarded as morally dubious.Autonomous weapons are frequently referred to as "killer robots" in media reports.Some people object to the term's use.The phrase is described as a "insidious rhetorical trick" (Lokhorst & Van Den Hoven 2012).The "Campaign to Stop Killer Robots" believes otherwise.This is an umbrella organisation of human rights organisations seeking a global ban on lethal autonomous weapons systems (Bartneck et al., 2021).

Autonomous Weapon at the International Level
When many countries around the world criticise autonomous weapons, it only raises one critical issue: the risks of their use for humankind as well as military and war purposes.
According to those who promote the benefits of autonomous weapons, the AI technology poses risks and benefits.The norms in deciding to regulate this contentious area of technology are the analysis of risks and benefits for lethal and non-lethal purposes.
This would raise ethical and legal concerns about the use of autonomous weapons under international law.Before delving deeper into the autonomous weapon based on artificial intelligence as a method of warfare, it is necessary to review the series of incidents that led to legal regulation in this area.
Autonomous weapons based on artificial intelligence were previously discussed in 2010, when Philip Alston, then Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions, raised the issue in his interim report to the United Nations (UN) General Assembly 65th Session.Alston affirmed that "automated technologies are becoming increasingly sophisticated, and artificial intelligence reasoning and decision-making abilities are actively being researched and receive significant funding.States' militaries and defence industry developers are collaborating to develop 'fully autonomous capability', which will allow unmanned aerial vehicles to make and execute complex decisions, including the identification of human targets and the ability to kill them" 1 .Subsequently, in 2013, Christof Heyns, who was Special Rapporteur for Extrajudicial, Summary or Arbitrary Executions at the time, released a report that articulated further on the issues raised by what he called "lethal autonomous robotics".For the first time at the United Nations General Assembly, countries from around the world issued a joint statement on autonomous weapons systems.This was the largest cross-regional group statement ever made during UN discussions on the issue, with 70 states participating.While discussions at the UN CCW have yielded no results, the statement at the UNGA demonstrates states' widespread commitment to moving forward with a new international framework for autonomous weapons systems.The statement, delivered on behalf of the group by Ambassador Alexander Kmentt, Director of the Disarmament, Arms Control, and Non-proliferation Department at the Austrian Ministry of Foreign Affairs, consolidates key elements of the urgently needed international response, inter alia, "[r]ecognising that autonomous weapons systems raise serious humanitarian, legal, security, technological, and ethical concerns; [r] ecognise the importance of maintaining human responsibility and accountability when using force; and [t]he importance of internationally agreed rules and limits, including a combination of prohibitions and regulations on autonomous weapons systems" 2 are emphasised.

International Law on Autonomous Weapons
The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects as amended on 21 December 2001, or the Convention on Certain Conventional Weapons (CCW) 3 is often widely recognised as the Inhumane Weapons Convention.The Convention's goal is to prohibit or limit the use of specific types of weapons that are thought to cause unnecessary or unjustifiable suffering to combatants or to affect civilians indiscriminately.The CCW's distinct structure aims to ensure adaptability in dealing with new developments in armed conflicts and weapon technologies.
The Framework Convention sets out the general operating provisions, such as rules for joining the regime and the ability to negotiate and adopt new protocols.The Protocols to the Convention contain substantive prohibitions and restrictions on specific types of weapons.The Convention, which included three annexed protocols, was adopted on 10 October 1980, and opened for signature on 10 April 1981 for a one-year period.The Convention was signed by 50 states and went into effect on December 2, 1983.There were initially three protocols namely Protocol I on 'Non-Detectable Fragments'; Protocol II on the 'Prohibitions or Restrictions on the Use of Mines, Booby Traps and Other Devices' and Protocol III on the 'Prohibitions or Restrictions on the Use of Incendiary Weapons'.

The International Criminal Court (ICC) and Its Jurisdiction
The Rome Statute was adopted by the international community on July 1998 4 and came into force in 2002 5 which established the International Criminal Court (ICC) which mentions under Preamble 10 and Article 1 of the Rome Statute.The ICC became the first and the most awaited permanent international criminal court (Pella, 1950) to end impunity of international crimes (Schabas, 2009) of genocide, crimes against humanity, war crimes and the crime of aggression as provided under Articles 6, 7, 8, 8bis and 15ter respectively.The ICC was created after a series of ad hoc tribunals established by the international community since the outbreak of the World War II by the victors allies which were the International Military Tribunal (IMT) in Nuremberg through the London Agreement 6 and the International Military Tribunal for the Far East (IMTFE) in Tokyo through a declaration made by General MacArthur, the Supreme Commander of the Allied Powers of the World War II 7 and two of the United Nations Security Council (UNSC) International Criminal Tribunal for the Former Yugoslavia (ICTY) 8 and Rwanda (ICTR) 9 acting under Chapter VII of the UN Charter in the 1990s. 10  Unlike the International Court of Justice (ICJ) which only has jurisdiction over states, 11   the ICC only has jurisdiction over natural persons as stipulated under Article 25(1) of the Rome Statute who must be over 18 years old at the time of the commission of the crimes, or else they will be considered as under age as stipulated under Article 26 of the Rome Statute.Similarly, other parts of the Rome Statute also specifically mention the word 'person', among others, Article 1 which states that '…shall have the power to exercise its jurisdiction over persons…', Article 20 which mentions '…no person…' and '…the person…', Article 22 which elucidates '…a person' and '…the person…' as well as Article 23 which refers '…a person'.
Since these crimes are international crimes in nature, states have the obligation to investigate and prosecute them (Hassan & Osman, 2019).If states are either unable or unwilling to do so, the ICC will take over to exercise its jurisdiction over these crimes under the complementary principle as stipulated under Article 17 of the Rome Statute.
In other words, national authorities will be the forum conveniens; latin words mean the most appropriate court to solve a particular dispute or case, has first-hand jurisdiction and are either able and willing to investigate or prosecute the individual perpetrators of the alleged crimes.

Individual Criminal Responsibility Under the ICC Jurisdiction
As mentioned under Article 10 of the Rome Statute, '[n]othing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute 12 .As we have discussed in the previous parts of this paper, there are several treaties which have been adopted by the international community to regulate autonomous weapons based on AI.Moreover, Article 21 of the Rome Statute allows the ICC to apply, 'where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict' to decide cases brought before it 13 .Although the Rome Statute does not restrict the development of international law and its applicability to the ICC when deciding any cases brought before it, still the one who will be investigated and stand trials before it is only natural persons in accordance with Article 25(1) of the Rome Statute, regardless of his or her official positions as the head of state, head of government or other officials as enumerated under Article 27(1) of the Rome Statute.
The notion of prosecuting persons or individuals regardless of his or her official positions for committing international crimes by the ICC is not new but has been practiced by numerous international tribunals such as the IMT under Articles 6 and 7 of the IMT Charter, the IMTFE under Articles 5 and 6 of the IMTFE Charter, the ICTY pursuant to Articles 6 and 7 of ICTY the Statute and the ICTR by virtue of Articles 5 and 6 of the ICTR Statute.As for the ICC, Article 25(3) of the Rome Statute further provides six (6) different modes or situations for a person to be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court which contains both basic rules of individual criminal responsibility and rules expanding attribution (Ambos, 2016).

I. If that person commits the crime 14
As for the first mode of criminal liability under the Article 25(3)(a) of the Rome Statute, it provides that a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person '[c]ommits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible' 15 .It is universally accepted criminal law principle 16 as held by the International Military Tribunal (IMT) at Nuremberg on the principle of individual criminal responsibility that '[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced' 17 .Under this mode of individual criminal responsibility, it 'refers to three forms of perpetration: on one's own, as a co [-]perpetrator or through another person (perpetration by means) 18 .

II. If that person orders, solicits or induces the commission of the crime
As for the second mode of criminal liability under the Article 25(3)(b) of the Rome Statute, it provides that a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person '[o]rders, solicits or induces the commission of such a crime which in fact occurs or is attempted' 19 ; 14 Rome Statute, art 25(3)(a).

III. If that person facilitates the commission of the crime
As for the third mode of criminal liability under the Article 25(3)(c) of the Rome Statute, it provides that a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person facilitates the commission of the crimes by aiding, abetting or otherwise assisting in its commission or its attempted commission, including providing the means for its commission; IV.If that person in any way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose As for the fourth mode of criminal liability under the Article 25(3)(d) of the Rome Statute, it provides that a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person "[i]n any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose" 20 .Such contribution shall be intentional and shall either '[b]e made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court' 21 or ' [b]e made in the knowledge of the intention of the group to commit the crime' 22 ; V. In respect of the crime of genocide, directly and publicly incites others to commit genocide; and VI.Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person's intentions.However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose.that the armed forces of a State are capable of carrying out hostilities in line with their international responsibilities (Lawand, 2006) As for autonomous weapons based on AI which are fully unmanned, orders from the operators have been pre-programmed and as such, the legal responsibility for any actions must be expected to transfer from the operators to the system conducted by the AI.However, a question of legal obligations will arise; whether any decisions made by the weapon will be borne by the weapon or its operators?In this sense, no one can be held accountable if he or she is willing to offend or behave passively.However, a weapon system's designer, programmer, or manufacturer could also be held liable only to the extent if they willfully to contributed to the crime commission (McFarland & McCormack, 2014).

Individual Criminal Responsibility and the Autonomous Weapons Based on AI
Since autonomous weapons, particularly those which are free of human intervention where AI entirely controls them, there are no choice for human actors to exercise empathy or judgment (Gunawan et al., 2022).Human influence over weapons systems and force use need to meet legal and ethical demands, as mentioned by the International Committee of the Red Cross (ICRC) in its statement on the Meeting of Experts on Lethal Autonomous Weapons Systems (LAWS) in Geneva on 11 April 2017 to the CCW.

Conclusion
The advancement of technology has reached a high standard and demand by the international community in order to protect its boarders and citizens not only from being invaded and attacked by outsiders, but also to protect their troops from being targeted and killed.
24 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in the Armed Forces in the Field (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 31. 25Ibid. 26

Ibid.
This led to the creation of the new technology in weaponry of autonomous weapons based on AI.However, such technology does not free from any responsibility under international law and has received many criticisms and concerns by the international community due to attacks by to be taken and done by autonomous weapons based on AI which could still incur casualties from the non-military objectives.Since the creation of the ICC in 2002 via the Rome Statute, the latter provides a solution even to the most advanced weapons such as unmanned autonomous weapons based on AI whereby individuals behind the creation and manning such weapons would be criminally liable if they went beyond the borders allowed under the law in order to win the war or involved in armed conflicts.Научная новизна: в статье изучены актуальные вопросы, связанные с ответственностью за преступления, совершенные с использованием автономных устройств на основе искусственного интеллекта, согласно положениям Римского статута Международного уголовного суда.
Just after a recommendation by the Advisory Board on Disarmament Matters at the 68th session of the United Nations General Assembly, the Convention on the Prohibition or Restrictions on the Use of Certain Conventional Weapons Which May Be Considered Excessively Injurious or to Have Indiscriminate Effects, as revised on 21 December 2001, began discussing autonomous weapons systems in 2014.To address this issue, the Group of Governmental Experts on Emerging Technologies in the Area of Lethal Autonomous Weapons Systems (GGE on LAWS) was formed in 2016.While the group has continued to meet since then, no concrete steps towards a normative framework on autonomous weapons have been taken as of September 2022.

2
70 states deliver joint statement on autonomous weapons systems at UN General Assembly.https://www.stopkillerrobots.org/news/70-states-deliver-joint-statement-on-autonomous-weapons-systems-at-ungeneral-assembly 3 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (adopted 10 October 1980, entered into force 2 December 1983) 1342 UNTS 137.However, there were later additions of the Protocols namely Protocol IV on the 'Blinding Laser Weapons' which was adopted on 13 October 1995 during the First Review Conference of the States parties to the Convention pursuant to Article 8(3)(b) of the CCW and entered into force on 30 July 1998 as well as Protocol on the 'Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices' as amended on 3 May 1996 (Amended Protocol II) adopted at the First Review Conference, pursuant to Article 8 (1)(b) of the CCW and entered into force on 3 December 1998.There was also an amendment to Article 1 which extends the scope of application of the CCW to also cover situations of non-international armed conflict, adopted at the Second Review Conference in December 2001 pursuant to Article 8 (1)(b) of the CCW and entered into force on 18 May 2004.Lastly, Protocol V on the 'Explosive Remnants of War;' the first multilaterally negotiated instrument to deal with the problem of unexploded and abandoned ordnance was adopted on 28 November 2003 by the Meeting of the States Parties to the Convention pursuant to Article 5 (3) of the CCW and entered into force on 12 November 2006.

4
United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Final Documents: Rome Statute of the International Criminal Court and Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court [With an Annex Containing the Resolutions Adopted by the Conference], vol.I (Rome, 15 June -17 July 1998) UN Doc A/CONF.183/13.5 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3. Hereafter, Rome Statute.6 Agreement by the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Union of Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the European Axis, (signed at London on 8 August 1945, with Charter of the International Military Tribunal, entered into force 8 August 1945).

16
See Prosecutor v Dusco Tadic (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction)IT-94-1 (2 October 1995) [128]-[137].In[134]  of this Decision, the ICTY stated that '[a]ll of these factors confirm that customary international law imposes criminal liability for serious violations of common Article 3, as supplemented by other general principles and rules on the protection of victims of internal armed conflict, and for breaching certain fundamental principles and rules regarding means and methods of combat in civil strife'. 17Trial of the Major War Criminals Before the International Military Tribunal (Nuremberg 14 November 1945 -1 October 1946) vol I (Nuremberg 1947). 18Kai Ambos, 'Article 25: Individual Criminal Responsibility' in Otto Triffterer and Kai Ambos (eds), The Rome Statute of the International Criminal Court: A Commentary (3rd edn, Nomos 2016) 984. 19Rome Statute, art 25(3)(b).
If linking those individuals or persons responsible to the crime can be very difficult, particularly when they are geographically and structurally remote from the scene of the crime, what more the 'perpetrators' of the ICC crimes are allegedly committed by autonomous weapons of AI which are not human beings.Article 36 of Additional Protocol I to the Geneva Conventions 1949 23 states that reviewing the legality of the intended deployment of the new weapon is an obligation of a state.It is crucial to ensure 20 Rome Statute, art 25(3)(a). 21Rome Statute, art 25(3)(d)(i).

22
Ibid, art 25(3)(d)(ii). 23Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977, entered into force 7 December 1978).
. Article 36(2) of Additional Protocol I further mention that, when developing new weapon technology, lawyers and politicians need to maintain in respect of the law and accountability for those who seriously violate the law as stipulated under Article 49 of the Geneva Convention I 24 .Under Article 49 of the Geneva Convention I, is states that "[t]he High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention" 25 .Moreover, it mentions that "[e]ach High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a 'prima facie' case" 26 .