GW Law Faculty Publications & Other Works

Document Type

Chapter

Publication Date

2018

Status

Forthcoming

Abstract

The rise of lethal autonomous weapons systems creates numerous problems for legal regimes meant to insure public accountability for unlawful uses of force. In particular, international humanitarian law has long relied on enforcement through individual criminal responsibility, which is complicated by autonomous weapons that fragment responsibility for decisions to deploy violence. Accordingly, there may often be no human being with the requisite level of intent to trigger individual responsibility under existing doctrine. In response, perhaps international criminal law could be reformed to account for such issues. Or, in the alternative, greater emphasis on other forms of accountability, such as tort liability and state responsibility might be useful supplements.

But largely absent from this debate is discussion of an alternative form of accountability that often gets overlooked or dismissed as inconsequential, one that we might term “administrative accountability.” This article provides a close look at this type of accountability and its potential. Such accountability might take the form of administrative procedures, inquiries, sanctions, and reforms that can be deployed within the military or the administrative state more broadly to respond to an incident in which a violation of international humanitarian law may have occurred. These procedures might result in after-the fact sanctions on individuals who may be implicated in harms even if they would not be deemed criminally responsible or even negligent within a tort law framework. They also might dictate organizational reforms of bureaucratic structures that affect systems of hierarchical or other types of control that are forward-looking in their focus. Administrative accountability may be particularly useful in the case of autonomous systems because the restrictions of criminal law, such as the intent requirement for most crimes, may not apply in many circumstances. Administrative accountability, in contrast, is far more flexible both in the process by which it unfolds and in the remedies available, offering the prospect of both individual sanctions as well as broader organizational reforms.

Obviously, such accountability depends on the willingness of actors within the administrative bureaucracy to pursue such accountability mechanisms. And at times, criminal accountability or tort liability may be more appropriate. But at the very least the potential for such administrative accountability should be part of any discussion about accountability for uses of autonomous and semi-autonomous weaponry. Moreover, because administrative bureaucracies are not monolithic, simply the creation of administrative procedures to investigate and impose non-criminal discipline for violations of international norms can create a cadre of experts within the government who internalize these values and foster a culture of broader compliance.

GW Paper Series

GWU Law School Public Law Research Paper No. 2018-42; GWU Legal Studies Research Paper No. 2018-42

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