Why Command Responsibility May (not) Be a Solution to Address Responsibility Gaps in LAWS

Abstract

The possible future use of lethal autonomous weapons systems (LAWS) and the challenges associated with assigning moral responsibility leads to several debates. Some authors argue that the highly autonomous capability of such systems may lead to a so-called responsibility gap in situations where LAWS cause serious violations of international humanitarian law. One proposed solution is the doctrine of command responsibility. Despite the doctrine’s original development to govern human interactions on the battlefield, it is worth considering whether the doctrine of command responsibility could provide a solution by applying the notion analogously to LAWS. A fundamental condition underpinning the doctrine’s application is the control requirement, stipulating that a superior must exert some degree of control over subordinates. The aim of this article is to provide an in-depth analysis of this control condition and assess whether it leads to the impossibility of applying the doctrine of command responsibility to LAWS. To this end, the first section briefly introduces the topic of LAWS and responsibility gaps. The subsequent section provides a concise overview of the doctrine itself and the conditions typically necessitated for its application. In the third section, a comprehensive scrutiny of the control requirement is undertaken through examination of key case law, examining how the concept has been interpreted. Finally, the fourth section delves into the evaluation of commanders’ potential to exert effective control over their (non-human) subordinates. Based on this, the feasibility of considering command responsibility as a viable solution is assessed, aiming to determine whether its application should be prima facie excluded or warrants further exploration.