Artificial Intelligence and Command Responsibility Under the Rome Statute: Reassessing Knowledge and Effective Control
TL;DR
This article proposes that the ‘should have known’ standard under Article 28(a) be interpreted to encompass risk awareness of AI system limitations, and that effective control extend to the organisational and technological conditions governing AI deployment.
Abstract
The expanding role of artificial intelligence in military decision-making poses interpretive challenges for command responsibility under Article 28 of the Rome Statute. Existing scholarship has largely addressed this problem through international humanitarian law and the so-called ‘accountability gap’, leaving its implications for international criminal responsibility underexplored. This article argues that artificial intelligence does not render command responsibility obsolete but requires a more context-sensitive application of its two central elements: knowledge and effective control. It proposes that the ‘should have known’ standard under Article 28(a) be interpreted to encompass risk awareness of AI system limitations, and that effective control extend to the organisational and technological conditions governing AI deployment. These reinterpretations are integrated within a layered model of responsibility operating across operational, command, and institutional levels. The distinction between Article 28(a) and 28(b) also acquires particular significance in AI-enabled contexts, where civilian decision-makers play a growing role in AI procurement.