No one will evaluate artificial intelligence for war crimes

The history of prosecution of so-called war crimes is far from unfailing success. Philip Sands portrays his origins in the contemporary world in his dazzling East-West StreetBy giving literary form to the birth of categories like genocide and crimes against humanity. And while Sands himself is critical but also optimistic about the prospects for the international application of humanitarian law, the reality is one of failure with some nuances. Both UN law and the 1949 Geneva Convention on the Prevention of the Crime of Genocide are limited in scope. And, above all, these have been implemented recently. No matter how much the Nuremberg, Auschwitz, Frankfurt or Jerusalem trials echo, and no matter how much the quoting of Arendt (to read or not to read is the least important thing) is now almost mandatory, the prosecution of the perpetration of war crimes. History of (crimes not justified by military necessity, including murder, inhuman treatment of people, torture, intentional suffering or destruction and/or appropriation of other people’s property) or some in the vast desert of impunity against humanity It’s like oases.

The reality of international application of humanitarian law is one of failure with some nuances

A brief review allows us to verify this. Hideki Tojo was tried, convicted, and hanged in 1948 for being responsible for Japanese crimes in World War II, but it was not until 2002 that the President or Prime Minister, Slobodan Milosevic, was charged with crimes against humanity. Another trial began for , who died before learning of his condemnation. Of the International Criminal Tribunal for the former Yugoslavia. It was not until 1998 that the statute governing the International Criminal Court was approved in Rome, a court that has been operating since 2002 but whose sovereignty has never been recognized by countries such as the United States, Russia, China, Israel, Cuba, Not given. India or Iran. In theory, to conflict with its own sovereignty. In practice, other interests can be imagined: the United States, Russia, India, China, or Israel possessing nuclear weapons. Nor is the ICC’s history exactly one of a bright path toward ending impunity for perpetrators of crimes against humanity. Responsible for very complex investigations with outcomes not always satisfactory, all trials, as well as all ongoing investigations of the Court except one (Bangladesh), are linked to African countries, which have very limited representation (and no ​​​A model of criminal proceedings in which the principles of international humanitarian law can be applied. Meanwhile, preliminary investigation procedures involve countries that have not recognized the Court itself, such as Venezuela, Ukraine, Colombia, Iraq or Afghanistan. Since 2015, it has also investigated possible war crimes and crimes against humanity in Palestine, the results of which are non-existent if the objective was criminal prosecution of the crimes, and downright painful if the objective were their prevention. Both beautiful and naive.

Everything therefore plays against international law in the humanitarian sphere, by virtue of its complex combination with the sovereignty of states. From the Nuremberg trials to the present, international law has been a fight against the legal and psychological structures of impunity. Hiding behind principles such as obedience due to the “two demons” or a chain of command that is difficult to reconstruct, agents of violence have always sought to limit or legitimize their criminal actions, denying, qualifying or justifying them on the basis that Of military necessity. From the Spanish policy of repatriating citizens to Cuba in 1896, to the Israeli occupation of Gaza that began after the Hamas attacks of October 7, 2023, to the genocides the Herero and Nama went through at the hands of the German colonial administration of Namibia in 1907. Be it Srebrenica, Rwanda or Darfur, genocide of civilians, forced displacement of unarmed populations, imprisoning and bombing non-combatant populations, demographic replacement or forced colonization are typical practices of contemporary wars and conflicts that have almost always occurred. Managed to get away with it, and the reality of the current investigation does not invite optimism.

Today, moreover, a new agent of violence, artificial intelligence, has arisen. In its war in Gaza, the Israeli military uses AI as the basis of a program, lavenderWhich marks combat objectives (people, that is) and which is combined with other tracking, detection and automation mechanisms for military bombing. Ultimately, it is the AI ​​algorithm that identifies the victims, kills them in their own homes and at night, thereby killing an unknown number of civilians. And if the moral questions raised by all this are complex, the legal questions are no less complex. Who can be prosecuted for war crimes, for causing suffering not justified by military necessity, when these are determined by an algorithm? Stracera, the prosecutor in the trial against the Juntas in Argentina, says what chain of command will have to be rebuilt in the future, when responsibilities must be established for bombings carried out on unarmed civilians by self-regulated drones? Would the future Eichmann be able to hide behind an artificial shirking of responsibility to absolve himself of the crime? Obviously, technology does not replace the principle of responsibility, which points towards general staff, operational heads and governments. But who will the International Criminal Court be able to bring to justice when it comes to trying crimes committed in its use? lavenderIs international humanitarian law ready to face this new reality?

Without the possibility of retrospective justice, whether national or international, victims of abuses and war crimes and crimes against humanity will be left vulnerable and, ultimately, at risk of the most bloody impunity. Is this really what those applying artificial intelligence as a tool of war today are looking for?

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javier rodrigo He is a historian, professor at the Autonomous University of Barcelona and coordinator of its degree in Contemporary History, Politics and Economy.

The history of prosecution of so-called war crimes is far from unfailing success. Philip Sands portrays his origins in the contemporary world in his dazzling East-West StreetBy giving literary form to the birth of categories like genocide and crimes…