456 Revista del Instituto Español de Estudios Estratégicos Núm. 2 / 2013 committed by people who are not held responsible pursuant to these provisions as its own)31. Should a state be held responsible when the party who sends out or who orders the robot to carry out its mission, or who launches it, is one of its organs or a person whose conduct may be attributed to the state in question (what Professor Sharkey calls “the last point of contact”)?32 Is the state liable if the robot’s IT program has been designed by one of its organs or a person whose conduct may be attributed to it? Is this the case if the robot (designed by a third party or with a third-party program) is used by the state’s army or its operational units or by a person whose conduct may be liable under international law? What happens to individual responsibility? IHL stipulates that military commanders shall be held liable if: “they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach reference is made to the Geneva Conventions or the Protocol itself and if they did not take all feasible measures within their power to prevent or repress the breach”33. Yet it remains unclear whether military commanders, as Special Rapporteur Heyns asserts, “will be in a position to understand the complex programming of LARs lethal autonomous robotics sufficiently well to warrant criminal liability”34 It cannot be excluded, given their nature -and if they are not banned- that these autonomous weapons systems would be governed by a regime of strict or absolute liability. At any rate, besides this, the ambiguity that exists regarding the attribution of liability in the case of violations of international law likewise imposes the need for these weapons systems to be the subject of an in-depth examination that would establish the applicable legal framework. 31 Articles 4-11 of the Draft Articles of the International Law Commission (ILC) on Responsibility of States for Internationally Wrongful Acts, International Law Commission. Report on the work undertaken in its 53rd session (23 April to 1 June and 2 July to 10 August 2001). General Assembly: Official records. Fifty-sixth session. Supplement No. 10 (56/10), United Nations, New York, 2001, pp. 10-405. For a commentary on these records see: GUTIÉRREZ ESPADA, Cesáreo: El hecho ilícito internacional, Madrid: Dykinson, 2005, pp. 75-108. 32 “The evitability of autonomous…” cit., pp. 790. 33 Article 86.2 of Protocol I. 34 Report of the Special Rapporteur…Christof Heyns cit., p. 16, paragraph 78.
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