ကူးယူချက် 🔗
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Thank you very much. Thank you for inviting me. And thank you all for attending this fourth in-person and online.
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I am very excited and honoured to be here today.
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And of course, as you can see from the title and the reasons why you're here is that for the next half hour or so,
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I will be speaking to you about autonomous weapons and of your responsibility.
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This presentation is based on an article that I am finalising,
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and I will try to explain things as clearly as possible for an audience that is not ready for the last of order,
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which is also why I prepared this short PowerPoint with some keywords that hopefully will help you follow along.
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My reasoning, which perhaps at times can be a bit complex, but I welcome all comments and questions and clarifications at the end.
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I should also add as a disclaimer that I'm recovering from a cold, so that sounds great.
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So if at some point my voice drops, please let me know.
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So before getting to my main argument, perhaps I give you a bit of background about how I got to this topic in the first place.
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Like many lawyers, I am not particularly familiar with the tech aspects of autonomous weapons.
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But what I do find interesting about the advent of these technologies is that they prompt
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dozens of international lawyers to dissect some old rules that we took for granted in a way.
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And they make us question different elements, and they make expression of these old rules could potentially apply in light of these challenges.
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For instance, if you take international law,
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it's now the advent of one of those weapons is making us question whether in order to violate the principle of distinction and the other
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rules and the standard is targeting decisions needs to be made by a human or that can be delegated to an artificial intelligence.
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And in the real world of international criminal law, I think the doctrine of secure responsibility offers also the opportunity to think about some
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elements of this doctrine that we didn't necessarily have the chance to to question before.
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Super responsibility is, as you are probably all aware,
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a criminal law doctrine that entails the responsibility by omission of a military commander
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or a civilian superior that failed to prevent or repress
Load full transcript
the crimes of their subordinates.
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We find it in the first initial part of law to the Geneva Conventions before removing the
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statutes of the International Criminal Court of the Tribunals of Primary Courts and so forth.
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And superior responsibility is a bit unique in international criminal law.
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And because of these, it has attracted some criticism, because it is a form of sui generis liability.
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It has been described as a fallback option.
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So when everything else fails for the charge, it wouldn't stick under any other motive liability towards people in leadership position.
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Then we go for a superior responsibility and in this sense, superior responsibility of courts with our moral preferences.
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Those that are in a leadership position that could have done something to prevent
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or punish the crimes of their subordinates and didn't do so be held to account.
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But on the other hand, the criticism is that there is a gap between the culpability of the superior.
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We simply omitted to act and the actual responsibility, which is for the crimes, the war crimes ordinance.
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Now in all of this, enter autonomous weapons you might know about.
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Different stakeholders have been engaged in a series of debates about this weapons.
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What characteristics should they have? How to regulate them?
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How can they be used in compliance with international law?
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From the perspective of criminal law,
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the debates are focussed on the difficulty or even impossibility prescribed criminal responsibility to an individual.
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When autonomous weapons are employed and it is called the so-called responsibility that is created by the use of autonomous weapons.
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Now various proposals have been put forward as solutions to this problem, real or perceived on their responsibility gap.
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And one of them is superior responsibility.
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And the way that superior responsibility has been designed as a solution to the problem of the responsibility is in one way to consider autonomous
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weapons themselves as subordinates whose crimes need to be prevented or repress or otherwise to rethink and change the doctrine so as to accommodate,
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in a way, machine criminality. Opportunities, violence.
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I am not particularly convinced by either of these solutions.
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And I will tell you why. In the course of my presentation, which is mostly a response to the first kind of proposals,
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those that to those that believe that we can interpret severe responsibility as entailing the responsibility
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of superiors for crimes committed by sort of the advanced weapons themselves or the subordinates.
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And I will focus on those that are, I believe, are the challenges or some of the challenges to the applicability of the doctrine in the circumstances.
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And this is the type of console that humans exercise over a part of most weapons is different from a qualitative perspective,
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from the type of control that is needed for a Super Hornet relationship to exist, which is needed for super responsibility to supply.
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Second, I argue that another challenge is represented by underlying findings that we need to be prevented because it
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means that have been committed by a punishable subordinate and needs to be a crime committed in settlements.
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And finally, I will explain.
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However, instead, if we focus on the superiors supervisory duties,
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we can still find some use for us in the doctrine of secure responsibility within the debate concerning one the.
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So let's start with the first element, the super organic relationship.
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This is the main challenge, I think, to the applicability of the doctrine.
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And I will come back to this even if we look at the codification of the doctrine for various purposes.
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For instance, in the first part of the universe, various statutes,
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we see that the people that the doctrine refers to, the superiors in this audience are identified in various ways.
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There are two subordinate forces, the subordinates, people or persons.
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There are members of the armed forces under the superiors,
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command or otherwise persons under the effective command and control of a superior and so forth.
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Based on this wording, we never really had a thought that all of these words identified clearly individuals and therefore
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the superior subordinate relationship would be an interpersonal relationship between individuals.
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And I think that this interpretation still stands and is.
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In a way, it is undermined by going back to the origins of the doctrine of secure
responsibility.
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Because today we know that the doctrine applies to military superiors for commanders and non-military superiors.
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But the origins of this doctrine are in the military sphere.
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The doctrine of secure responsibility is the criminal law.
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Corollary of the principle of responsible command.
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And responsible command means that members must foster a command culture that is in line with that.
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A child must train their troops, must discipline them, must threaten them,
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sometimes a punishment so as to make sure that they will use force only in ways
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there are a lot of impermissible in line with international humanitarian law.
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Responsible also implies a certain level of organisation and position of discipline.
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Responsible command and responsible command structures are also invited.
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Of course, authority can be delegated, legal obligations can be delegated, but they can only be delegated to another responsible moral agent.
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And in case obligations are not complied with, someone will be responsible and obligations will be still overseen by someone.
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And so we have the responsibility of the superior as a consequence.
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I think there is really no question about the fact it was venomous.
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Weapons are not responsible for agents, so we should not be giving them any obligations under the law.
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We cannot not threaten them with punishment.
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Of course, they can be programmed in compliance with your show and should be programmed to be using not your show.
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But I don't think that this is the same thing as educating troops and fostering respect for the command culture,
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which is based on the principle of responsible mind, because certainly autonomous weapons do not understand the legal character prohibitions.
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It is also important to know that in order for a secure subordinate relationship to exist.
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We need what is called effective control of the superiors over the subordinates.
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We know this from the case law of international criminal courts and tribunals.
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Of course, you know that the term effective control in international law means many different things.
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In the context of super responsibility, it means something very specific.
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It means the material ability of the superior to prevent or repress the commission of the crimes or to submit the matter to the room before it is.
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And the case law, like international criminal courts in particular,
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lets us come up with a list of indicative factors that might show the existence of effective control.
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You can see them on the PowerPoint. For instance, they include the power to issue orders engaged in hostilities,
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the commander's capacity to ensure compliance with orders, supporting units to remove, replace this being investigations and so on.
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Now, according to some offers, this information can be translated to the type of relationship that a commander would have with this weapon.
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I think instead that this factors are quite clearly anthropocentric in nature.
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Of course they were in the first place developed having in mind the relationship between individuals.
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But I think that, for instance,
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adjusting an algorithm that guides an autonomous weapon or in deciding to withdraw it from one place and deployed elsewhere,
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are not initial effective control. It is not the same as redeploying troops.
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It is not the same as issuing orders for troops to act in compliance with a challenge.
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These decisions are decisions are similar to decisions made about any other type of weapon in the arsenal,
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and yet it is only in relation to autonomous weapons that it is suggested that these decisions instead
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show that the weapons themselves are subordinates for the purposes of security responsibility,
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and that someone most effective control over them, as it has over there, are supporting the troops.
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And I think this is a fundamental misconception of the nature of effective
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control as opposed to the relationship between humans and any type of weapon,
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including autonomous weapons. And the law, as it stands today, where autonomous weapons are used for warfare.
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They're not combatants. They're not somewhere between combatants and means of warfare.
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They are weapons tools. They are objects of the law.
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And they they're not subjects of the law. So they're not addressed by equal obligations or prohibitions.
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And the type of control that is exercised over these weapons is not different from the type of exercise or any other weapon.
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Here I refer you to the work of Tim MacFarland, who is a lawyer who also understands and knows about the tech side of autonomous weapons.
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So someone who has certain authority, I'd like me to speak about these things.
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And I think he's convincingly demonstrated that autonomous weapons do not differ in any legally
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relevant way on the basis of their physical properties or functional aspects from other
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types of weapons and the type of control that is exercised over how autonomous weapons are
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operated and how they're used is planned or executed is the same as any other weapon.
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For instance, in operations, decisions will be made about what type of weapon to use,
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what type of explosives to employ for a certain attack, but the range of the weapon at the blast radius and so forth.
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And in a way, these are all decisions are dissimilar from deciding what level of autonomy to use in a certain operation.
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When autonomous weapons are employed. In the realm of autonomous weapons.
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Specifically, we speak about autonomy in the sense that a weapon can be a human supervise or will be autonomous or semi-autonomous.
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And autonomy is basically a function of human control over the weapon.
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But it is still a function of control that is a technical type of control over a tool.
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It is not the type of control that our commander over there, troops.
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So we also speak about, for instance,
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meaningful human control or sufficient levels of human control that our states are still trying to decide what exactly they mean by this.
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But all of these notions are employed to mean the level of human control that is needed.
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Some of these weapons, the main sort of tools that do what you want them to do.
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And so it is on the basis of all of this these arguments and this research that I end up
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concluding that a weapon is not a subordinate for the purposes of severe responsibility.
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I do think that the doctrine remains applicable with respect to human subordinates that operate or supervise a weapon and their superiors.
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But still, then the responsibility of the human operator needs to be established in order
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for the derivative responsibility of their superior to also be established.
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And this brings me to my second point, which is about the underlying problem.
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And I think in relation to the underlying crime that needs to be prevented or repressed by the superior.
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There are two issues that arise. The first is that the subordinate needs to be susceptible of punishment.
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And the second is that the crime has been committed in all its other means.
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So as I mentioned before, autonomous weapons are not considered to enjoy a legal personality.
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They're not addressed by crime rules or international humanitarian law.
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They cannot be punished based on criminal law.
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It is true that in some jurisdictions we have entities that are not individuals that have been granted legal personally do for instance,
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corporations in some states. But if we take, for instance, the doctrine of respondent superior in the United States,
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according to which a corporation itself can be punished under criminal law for
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the acts that its agents have undertook undertaken on behalf of the corporation.
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I think this is presents basically the opposite problem that we have with the weapons, because in the case of corporations,
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the responsibility of the corporation still extends from the actions of a not for a person, the agent.
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But in the case of autonomous weapons, still, we have to send a firm responsibility to an individual for the acts of autonomous weapons,
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including on the basis of secure responsibility. We should also keep in mind, having said in many other jurisdictions, for instance, in Germany.
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Criminal law is instead rooted on the principle of blind worthiness.
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And this means that an actor must be able to decide between doing right and doing wrong, and can only be punished if it is blameworthy.
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Hasn't decided to do something wrong. And this principle excludes the criminal responsibility of legal entities and
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would also exclude the responsibility of machines no matter how much they may be,
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because they will never be able to be blameworthy in this sense.
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The principle of worthiness would also affect, however,
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the possibility to hold a human or greater celebrity responsible if either was not possible for them to store the weapon,
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for instance, because they were out of the movie or if they do not
understand how the technology.
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Besides to to to ask because it's a wonder isn't this machine learning or observing was workings are inexplicable to the operator in these
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circumstances the operator would not be worthy of the weapon on and as a consequence would be held that operators superior responsible.
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We would be further exacerbating even further the gap between the culpability of the superior and their responsibility,
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which I mentioned at the beginning. Consider also that severe responsibility arises for failure to repress,
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which includes punishment and estimating the crimes of the competent authorities.
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And because punishment is.
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Sort of the most visceral quality of legal personalities and autonomous weapons cannot be punished because their punishment could be,
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for instance, reprogramming or deactivating.
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And this wouldn't pursue any of the of the goals that we normally associate with punishment in criminal law.
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Then it would mean that the superior cannot simply exercise this duty.
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If you cannot punish the weapons with criminal exercise weapons.
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It can also not to make of the matter and the authorities, because the weapon cannot be one of doubt and so forth.
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And this means that if the material ability of the superior to punish is not there,
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there is also no effective control in the sense of superior responsibility.
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Which brings me back to the initial point. That, however, is not as important as.
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Relatedly, when we think about the underlying crime for which the superiors responsibility would arise.
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We should ask ourselves whether this has to be a crime committed know incitements or the objective elements of our core arms race.
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The mental or subjective element. Or real. And the actual element usually.
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And generally the answer to this question is, yes, we do need all of the elements of a crime to be committed.
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Otherwise, it's a crime. Not every roadblock is a crime after all.
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According to Simon, said, when it comes to autonomous weapons,
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it would be sufficient for only the off the rails to be committed without the requirements.
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So, for instance, they can take the problem of infecting civilians.
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It's intentionally attacking civilians. If an autonomous weapon does it.
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So this argument goes it is sufficient that civilians have been attacked.
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It's not sufficient. It's not necessary to prove that the machine did so with intent.
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I don't think that there is any reason to change the interpretation of what we mean by a commission when it comes to autonomous weapons.
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The commission of a crime, I think, implies that it needs to be committed properly in all its elements.
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The only partial exception is represented when the subordinate can avail itself of an excuse.
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But in the interests of science and ecosystem, it's even more complex than what I've been saying so far.
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It will only result. Under criminal law as extensive.
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However, I think that is pretty clear that autonomous weapons cannot form the required rea for a crime.
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They cannot act with intent. Because again, the answer is linked to the notions of blame, worthiness and culpability.
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And I think that these are here into human notions.
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And if autonomous weapons or then unable to form demonstrate are maybe the correct analogy is with dangerous animals.
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But then if you look at countries that do have laws on dangerous animals, for instance,
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that you take the responsibility of the owner of dangerous animals is some form of strict liability.
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It is not a horrible of severe responsibility. The fact also that an underlying crime must have been committed in all its elements, of course,
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affects the possibility of the for the operator to be held responsible as well because they might also not informed the required real.
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And as a consequence, this person's superior would not be responsible for the wrongdoings of the weapons.
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Now, so far, I've told you about all the reasons why I think it's your responsibility is not the way to go.
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I still think that it can be useful in the discussions concerning autonomous weapons.
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If we think about the supervisory duties of the superior, so we should think about those obligations that stem from the union to prevent.
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Again from the case of international criminal courts and tribunals,
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we have some examples of measures that can be taken to prevent the crimes of the subordinates.
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And I think that at least some of these measures can be
interpreted, again, of course,
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with respect to human subordinates so as to keep weapons within human control and the human chain of command and control.
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For instance, if you take the obligation to give adequate training child to the subordinates.
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I think, of course, this means making sure that the subordinates.
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Again, I'm talking about humans are aware of the rules of international humanitarian law,
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but it also means making sure that they're trained in how to use the means and methods of warfare, their disposal in compliance with ISIL.
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And if this means of warfare and autonomous weapons, it means we need to understand how the system works.
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They need to understand how to operate it, then supervise it.
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They need to understand when it is not functioning and what to do when it is not functioning.
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And in turn, the commander must be able to understand sufficiently how this technology works so that it can be employed in accordance with show.
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And then, if anything goes wrong, it should be preventing the use of the weapon.
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Tate also issuing orders aimed at bringing the relevant practice in accordance with international humanitarian law.
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This can be done in different ways when it comes to homeless veterans, for instance.
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Commanders can order their subordinates to use a specific level of motivation for asserting that they can
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circumscribe the geographical or temporal use of the weapon so that it is used in compliance with bilateral.
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Spirits also have a duty to prevent further or recurring crimes.
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And in this sense, securing reports about the use of the weapons in past attacks is important because the first sign that a weapon was functions,
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that this might not be a war crime.
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But then at that point, the operator is on notice and their commander is on notice as well that something is potentially going wrong.
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And at that point, the commander might even have to order that the weapon not be used until it can be reprogrammed or adjusted.
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Now to conclude. I understand the appeal of superior responsibility as a solution to the responsibility gap.
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But I do not think that in its current formulation, the doctrine allows us to do so.
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I told you why. Of course, the doctrine could change as a matter of a treaty or customary law.
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I don't see this happening, but even if it did,
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I think we would run the risk of turning severe responsibility in the form of strict liability for criminal negligence,
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so that anyone who is in putative control of the weapon would be responsible as a superior for whatever malfunctioning happens.
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And I don't really think that this is a development that we should wish for.
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So instead of closing the responsibility gap, I think this would create further problems to the culpability of the superior.
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And I think that instead of creative interpretations of criminal law,
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we should focus on supervisory duties and making sure that the weapons remain under adequate disposal of humans,
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under a human chain of command and control. So that one person is responsible and that person superior can also be responsible.
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So at the end of the day, the responsible thing is supposed.
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When we mix the technical specifications of the weapon, we agree on a sufficient level of human control and not by interpreting criminal law.
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In other words. Thank you so much for your attention.