THE SHIFT OF CRIMINAL LIABILITY IN THE DIGITAL SPACE: AN ANALYTICAL STUDY OF THE 'AUTONOMOUS AGENT' DILEMMA IN LIGHT OF IRAQ'S CYBERCRIME LEGISLATION

• Nadhim Jawad Rashid Al-Mamore

Objective: This analytical study aims to deconstruct the 'autonomous agent' dilemma and examine the effect of the 'Black Box' problem on producing the phenomenon of the 'shift of criminal liability' away from the human element, while projecting this dilemma onto the Iraqi legislative framework represented by the Penal Code No. 111 of 1969 and the draft Anti Cybercrime Law. Method: To achieve this objective, the study employs both the foundational analytical methodology and the comparative methodology, through an inductive survey of contemporary Anglo-American and Latin criminal theories. Results: The study arrives at pivotal findings, most notably: the existence of a structural impunity gap in Iraqi law resulting from the collapse of the elements of both the physical and mental elements (knowledge and will), and the severance of the causal nexus in human terms when the machine deviates autonomously in addition to the incapacity of traditional criminal participation doctrines to accommodate algorithmic conduct. Novelty: Accordingly, the study concludes by presenting a proposed legislative strategy for the Iraqi legislator, requiring the abandonment of the traditional punitive policy based on absent human intent, and the adoption of a system of 'presumed liability based on the creation of digital risks,' along with the activation of criminal liability for legal persons (developing companies) and the introduction of qualitative cyber precautionary measures, such as algorithmic quarantine and the programmatic execution of deviant code.

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