Revisiting Omission Liability at the ICC in the Wake of Evolving Weapons Technology

[Shashiskala Gurpur is the Director of Symbiosis Law School and Dean, Faculty of Law, Symbiosis International (Deemed) University. Aakarsh Banyal is a student of law at Symbiosis Law School, Pune, India.]

Introduction

Facebook
CEO’s apology over the company’s failure to remove posts which incited widespread
violence in Myanmar stands testament to the possibility of mass violence being
perpetuated through the use of technology. Such instances demonstrate that
reprehensible consequences may also flow from an individual’s failure to act/omission, especially in
the context of evolving technology. The Fourth Industrial Revolution pushes the
technological boundaries even further where Artificial Intelligence in the area
of weapons systems become a practicable reality.

Kai
Ambos, in his Treatise
on International Criminal Law
, specified
that the Rome Statute [hereinafter, ‘ICCSt.’]  does not make a reference to general omission liability because a
consensus could not be reached by delegates during the deliberations over
content of the ICCSt. Therefore, omission liability in the ICCSt. stays
restricted to Art. 28 and some genuine crimes of omission (eg. starvation under
Art. 8(2)(b)(xxv), ICCSt.).

As a
result, only in specific cases, which fall under the purview of Art. 28, ICCSt.
(pertaining to command/superior responsibility), an individual can be held
responsible for her failure to act. Aside from this, individual criminal
responsibility has generally been
reserved for positive acts/commission under Art. 25(3), ICCSt. Never before has
the need for a general omission liability based on an individual’s failure to
act at the ICC been more strongly felt than now with the rapid advance of
technology.

The
authors attempt to lay out a workable interpretative schema and the possible pitfalls
that ought to be avoided in order to effectively tackle the issue of AI-driven
atrocities at the ICC. Part II offers a context to the article and emphasises
the need for a general omission liability. Part III establishes the scope for
the inclusion by the ICC of a general omission liability through reliance on
the drafting history of the ICCSt. Parts IV and V explore the case for such
inclusion by weighing some of the sources of law the ICC may rely on, ie.,
customary international law and general principles, to derive a general omission
liability for individuals within international criminal law.

  1. Necessity of General Omission Liability
    vis-à-vis Autonomous Weapons Systems

The
heightened significance of incorporating a general omission liability within
the ICCSt. is inextricably linked to the emergence of advanced weapons
technology such as Lethal Autonomous Weapons Systems (“LAWS”). These weapons are capable of making decisions without any
human involvement. Military powers such as China, Israel, Russia, South Korea,
the United Kingdom, and the United States are increasingly investing in the
development of various autonomous weapons systems, as per the recent Human Rights Watch report. Furthermore, Russia, US and UK have expressed significant opprobrium towards negotiating a treaty which
seeks to ban such autonomous weapons systems. 
They cite humanitarian and strategic advantages
that accompany increased automation, inter
alia
.

Most
conventional weapons systems have a human at the helm of operation and
decision-making (humans-in-the-loop).
However, the current
discourse
sways towards reducing human control
to the point of mere “abortive
measures (humans-on-the-loop). In
such cases, an individual’s failure to
abort
an attack by these weaponscan
lead to outcomes that merit individual criminal responsibility. Hence, imputing
criminal responsibility to individuals who do not abort such attacks takes
pre-eminence.

The difficulty
in attaching criminal responsibility in this fashion is that omission liability
exists within the confines of Art. 28, ICCSt. An accountability
gap
thus gets created since, ‘LAWS-human’
relationship is not synonymous with a ‘human
superior-human subordinate
’ relationship, the latter being key requirement
to trigger responsibility under Art. 28, ICCSt. In addition, the ICC can only
try natural persons and hence, the possible entry of private corporations also
widens this accountability gap by virtue of nonexistence criminal
responsibility at the level of corporation and Art. 28, ICCSt.’s ineffectuality
at the level of individuals.

Thus, general omission liability stands to
provide the wherewithal required to hold individuals responsible for committing
crimes through the deployment of LAWS. To instantize, if an autonomous robot
were about to shoot indiscriminately and the operator would not call off such
an attack, the ICC could ascribe liability to the operator via general omission liability, provided other requirements are
duly met (jurisdiction, elements of crimes, etc.). A limitation of the authors’
approach is a paradigm where LAWS are devoid of any human intervention (humans-out-of-the-loop) because in this
case, pinning liability requires extension of ICC’s personal jurisdiction to
include LAWS themselves.

Revisiting the Preparatory Works on Omission Liability

The
recognition of a general omission liability was deliberated upon by the drafters
of the ICCSt. The 1995 Draft Statute for an ICC recognised commission by omission outside of command/superior
responsibility. In addition, the 1998 Report of the Preparatory Committee referred to an “intentional omission” liability
demanding a pre-existing legal obligation. Despite these indications, a general
liability for omissions was not included in the final draft of the ICCSt. Saland (then-Chairman, Working Group on General Principles of Criminal Law) justified this exclusion as a bid to allow scope for future case law of the ICC
to develop this concept.

To that
end, it is clear that the non-inclusion
of omission liability is not indicative of the intention to exclude such a mode of liability. This
observation is corroborated by the ICC’s dictum in Prosecutor v. Katanga (see para. 287 ) and Prosecutor v. Lubanga (see para. 351), whereinthe possibility of culpability through actions as well as omissions was obliquely
read into the ‘conduct’ of the accuseds.

One might contend that Art. 28, ICCSt.
constitutes lex specialis (law
governing specific subject matter) in relation to omission liability, thereby
rejecting its recognition in a more general form. To this end, Karadžić’s motion (see para. 2, 19-20) which put forth this argument was dismissed by the International Criminal Tribunal for the former Yugoslavia

[hereinafter, ‘ICTY’]

Appeals Chamber on the ground that omission is merely a
contour of the actus reus of a crime.
Thus, the preparatory works favour the growth of omission liability within the
ICC’s jurisprudence, as Saland remarked.

A case to incorporate general omission
liability must be made via reliance
on the recognised sources of law in the ICCSt. Article 21 of the ICCSt.
recognises customary international law and general principles as sources which
the ICC may resort to during trial. The following sections will weigh the
benefits and drawbacks of each of the aforementioned sources vis-à-vis omission liability.

Customary International Law vis-à-vis Omission Liability

As noted
by Schabas, Art. 21(1)(b), ICCSt. contains an expression of customary
international law, which has been traditionally described as being comprised of
State practice and opinio juris. As
observed in the North Sea Continental Shelf case, “[n]ot
only must the acts concerned amount to a settled practice, but they must also
be such, or be carried out in such a way, as to be evidence of a belief that
this practice is rendered obligatory by the existence of a rule of law
requiring it
.”

Even so, the threshold of evidence required to
establish State Practice and opinio juris is not set in stone. Based on
Kirgis’ sliding
scale
approach, a
case-by-case analysis has to be undertaken to establish a customary rule and the
weight accorded to each of the two elements can differ, provided that evidence of
these elements is incontrovertible.

The pronouncements of the British
Military Court
and the U.S.
Military Tribunal
are proof of State practice inasmuch
as they recognised liability for omissions beyond command/superior
responsibility (Art. 28, ICCSt.), thereby favouring the interpretation in the
direction of general omission liability.
However, the pronouncements referenced hereinabove are dated and quite possibly,
inadequate to firmly institute State Practice.

With
respect to opinio juris, Art. 86,
Additional Protocol I
[hereinafter, AP I’] states that the High Contracting Parties “shall
repress grave breaches, […] which result from a failure to act when under a
duty to do so
”. The ICTY has previously
relied on Art. 86, AP I to ascertain opinio
juris
. However, this provision cannot be regarded as a true reflection of opinio juris for the purpose of general omission liability as it is
limited to “grave breaches” and not
all international crimes.

The
palpable obstacle in arguing that omission liability is a rule of customary
international law lies in the sparse evidence of State practice, combined with
the limited utility of Art. 86(1), AP I as opinio
juris
. Hence, controvertible State Practice and opinio juris would increasingly add to the fallibility of such an
argument.

General
Principles vis-à-vis Omission
Liability

Art. 21(1)(c), ICCSt. paves the way for the
ICC to interpret law based on “general
principles of law derived by the Court from national laws of legal systems of
the world…
”. A scrutiny of principal legal systems reveals that omission
liability has a firm foundation as a general principle, as evidenced by Duttwiler’s
findings
on the point.

Duttwiler reviewed a number of States in
common law, civil law, Sharia law, and “Far-East
jurisdictions. Broadly, and across numerous jurisdictions, liability for
omissions existed when there was a legal duty to act. The legal orders of
countries such as Germany, Spain, Japan, China, UK, USA, etc. were relied on.
In an effort to supplement Duttwiler’s findings, the authors have attempted to
study the legal systems of Finland, Latvia, Lithuania, Greece, Fiji, and Israel where omission has been criminalised, provided there exists a legal
duty to act. The overall survey reveals a tenable case for general omission
liability to be made via Art.
21(1)(c), ICCSt.

In reality however, any such case has to be
developed within the rigours of an ongoing trial, and not as an academic
exercise. Previously, the ICTY inProsecutor v. Erdemović (see para. 56-71)embarked on an investigation into relevant legal systems to derive a
general principle concerning duress as a defence wherein a sample of about 20
States was used to determine a general principle. The apparent shortcoming of
this approach is that national laws of only 20 States were reviewed to
ascertain a general principle, excluding the possibility of a thorough
investigation into multiple legal orders.

As pointed by Neha
Jain,
the inherent limitations with respect to
language, availability of resources, and time may cause the Court to engage in
cherry-picking national laws, which “as a
practical matter,
[are] accessible to
[them]” (Prosecutor v. Erdemović, para
57). Thus, the procedure employed in Erdemović
hints at “convenience sampling”, a
technique in which only those samples are chosen which are convenient to assess
and thus, may breed bias.

In addition, reliance on legislations to
infer a legal system’s position on a given proposition also impedes a
comprehensive effort to arrive at a principle. For instance, Erdemović’s case majorly looked at
legislations, which means judicial and scholarly opinions which also carry the
potential to alter the final outcome may go unnoticed.

To the same effect, Werle and Jeßberger posit that “the determination of
general principles of law
[…], particularly if it is to be carried out
with the appropriate methodological sophistication, is not practical under
conditions of an ongoing legal case.
” Thus, given that the development of
omission liability has been left to the case law of the ICC (see Part III), an
exhaustive assessment of national legal systems under Art. 21(1)(c), ICCSt.
will need to be undertaken cautiously.

Concluding
remarks

The ICC
is often confronted with a diverse range of facts and circumstances. It follows
that in order to effectively address the legal issues that arise in light of
the impending tech-based atrocities, there must be scope for such omissions to
be penalised. The defensive stance taken by the military powers over a complete
ban coupled with the highly destructive power of LAWS merit individual criminal
responsibility for individuals deploying these LAWS at the ICC. Even though all
stages of LAWS’ development may not be covered by this approach, omission
liability ensures accountability at the level of operationalisation of LAWS in
the battlefield.

Thus, despite
the silence of the ICCSt. in this regard, the ICC could fill this gap by
drawing from the various sources of applicable law. On balance, it appears that
reliance on customary international law might be misplaced as the elements of
State practice and opinio juris
cannot be strongly established. A more viable route to institute general omission
liability is through general principles, with care being taken to avoid the
sampling biases.

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Shashishkala Gurpur and Aakarsh Banyal