AI and war crimes: potential liability of company executives

Executives of companies supplying AI systems to identify military targets could face criminal liability when they knowingly contribute to war crimes. This is the argument advanced by Rosa Villar Orero, a PhD candidate at the University of Aberdeen, in “Contemporary accomplices? Considering the potential liability of AI targeting system providers under the Rome Statute”, published on the ICRC’s Humanitarian Law & Policy Blog on 29 October 2026. The commentary proposes applying Article 25(3)(d)(ii) of the Rome Statute to executives with effective decision-making power over supply. The potential liability concerns natural persons, consistent with the Statute’s scope as described by the author.

According to Villar Orero, this provision offers a possible avenue compared with Article 25(3)(c), which requires a purpose of facilitating the crime that may be difficult to prove in commercial transactions. Her analysis identifies five elements: a crime within the International Criminal Court’s jurisdiction; a group acting with a common purpose; a contribution to the crime; an intentional contribution; and knowledge of the group’s criminal intention. For the contribution, she proposes a material increase in risk as the criterion: the system would not necessarily have to be indispensable to the crime. Intent would concern supplying the system, while knowledge of the group’s intentions would still need to be established.

Villar Orero identifies a disagreement between Katanga and Mbarushimana over the knowledge required: awareness of each crime or of the group’s general criminal intentions. She supports the latter reading, leaving a decisive aspect of her proposed interpretation contested. The analysis does not report a ruling establishing liability for executives of AI suppliers. Its account of the Statute and the cited decisions rests on the commentary; the primary texts have not been independently examined.