Voluntary Report on the Implementation of IHL in Ukraine

3. Legal review of weapons under Article 36 of Additional Protocol I. What is done?

The obligation to conduct a legal review of weapons is established by Article 36 of Additional Protocol I, that defines an obligation of the State during the study, development, acquisition or adoption of a new weapon, means or method of warfare to determine whether its employment would, in some or all circumstances, be prohibited by Additional Protocol I or by any other applicable rule of international law¹⁸⁴.

In fulfilment of these obligations, the MoDU in 2024 is working on developing a clear and comprehensive system of legal review of weapons. This will be established as part of the weapons acquisition process. The system will consist of a legal act to regulate the review process and a commission of experts (a lawyer, a doctor and a weapon specialist). They will be involved in the review process based on a formula provided in the legal act.

The review process will first concentrate on whether a certain weapon corresponds to the obligations of Ukraine under existing international treaties to which Ukraine is a party, including prohibition of weapons of mass destruction and the prohibition of certain conventional weapons.

As for conventional weapons, the review process will determine whether a weapon falls under prohibitions established by the Protocols to the 1980 Convention on Certain Conventional Weapons (non-detectable fragments¹⁸⁵, blinding laser weapons¹⁸⁶). It will also address the limitations established by the Protocols to the same Convention (mines, booby-traps and other devices¹⁸⁷, incendiary weapons¹⁸⁸). The review process will also address other conventional and customary prohibitions and limitations, such as expanding bullets, poison and poisonous weapons and others. The review process will also address specific limitations for submarine mines, torpedoes, riot control agents, as well as weapons likely to cause widespread environmental damage.

It will then proceed to verify whether a weapon is in accordance with the general principles of IHL. This approach will enable better integration of the review process into the existing weapons acquisition processes, as it will first evaluate the particular type of a weapon as it is described in the legislation of Ukraine and will only then address the more general questions applicable to all types of weapons.

At each stage of the review process, the commission will be able to conclude that a certain weapon is either prohibited and cannot be adopted by the MoDU system or is subject to certain conventional restrictions and that it can be adopted and utilised with view of such restrictions. The commission will make further recommendations on the permissible modes of application of that weapon.

Although the systematic review process is still being developed, it already exists in practice on an ad hoc basis and is run by the MoDU Legal Department. In 2024 the MoDU Legal Department performed a review of the anti-infantry explosive devices PVP-50, PVP-100 and PVP-200. It has been concluded that as long as these devices are remotely-controlled and cannot be equipped with a victim-activated detonator, they are not subject to conventional limitations under Ottawa Convention. Their use is regulated by the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 (Protocol  to the Convention on Prohibitions or Restrictions on the use of Certain Conventional Weapons), which may be deemed to be excessively injurious or to have indiscriminate effects. Therefore, such devices can be adopted by the AFU and utilized in accordance with the provisions of Amended Protocol II.

The renewed systematic legal review of weapons and its adoption as a legal act is expected before the end of 2024. Yet even prior to such completion, the MoDU Legal Department works closely on the monitoring of new weapons and ensuring that they are in compliance with IHL requirements, including the provisions of Article 36 of Additional Protocol I.

Ministry of Defense of Ukraine, Voluntary Report on Implementation of International Humanitarian Law (2024)