We are pleased to note that almost all proposals and working papers on the table stressed the importance of legal reviews of weapons. While not the sole solution for the challenges associated with increasing autonomy and weapon systems, legal reviews are a crucial instrument and thus can be part of the solutions, as you outlined in your introductory remarks. In view of the obligation of all states to respect and ensure respect for IHL, and the prohibition to use means and methods of warfare in contradiction to IHL, the implementation of IHL in good faith requires an assessment whether the means and methods of warfare can be used in conformity with IHL prior to their employment in international as well as non-international armed conflicts. Conducting legal reviews, as specified in Article 36 of [AP I], constitutes an important element in preventing or restricting the development and employment of new weapons that would, in some or all circumstances, be prohibited by international law. The legal review of weapons can on a national level help both identifying which [AWS] would be inherently illegal and also identifying which measures, either regarding use or regarding design, or to be taken to inch to ensure compliance with IHL of other [AWS], which are not inherently illegal. A well-designed weapons review mechanism has not only the potential to determine whether or not an [AWS] is designed in a way that it could be employed lawfully. According to Article 36 of [AP I], a weapons review should state whether a weapon would in some or all circumstances be prohibited under applicable international law. By clearly defining the circumstances under which the employment of a given [AWS] would be unlawful, it becomes apparent what measures need to be taken in order to enable the users to comply with IHL. Weapons reviewers, therefore, should also be empowered to impose measures to implement IHL with regard to the weapon system on the review. Such measures could be the drafting of weapons specific regulation or training requirements. In Switzerland, our standing practice is that legal clearance of a weapon can be subject to conditions if necessary, meaning the next step in the procurement process can only be reached once these conditions have been fulfilled. As an example, a weapon could only be introduced in the Armed Forces once the weapons specific regulation containing the necessary rules to implement IHL is in force.
[I]n view of the complexity of [AWS], for instance, the way they interact with the environment or functions, such as machine learning, the authority responsible for the review of weapons must take account of the specific challenges arising from greater autonomy. Amongst others, there is need of a sound understanding of the parameters of an [AWS], its functioning and impact. Moreover, the weapon reviewer may require specific technical expertise and/or advice to conduct its review. In this regard, getting access to the information necessary for making the assessment is of paramount importance. This, in turn may require a close collaboration with industry or exporting countries. Other helpful measures to overcome these challenges have been presented in the various working papers that are on the table, such as the importance of rigorous testing and evaluation to inform an assessment of how the weapon system will perform in the anticipated circumstances of its use, as proposed by the US-led paper, or the review and reassessment of any possible changes and modifications in the systems functioning proposed by the Austrian paper. In this regard, we have also noted the challenge the ICRC has just referred to a moment ago, with regard to the possibility that a legal review could be invalidated if a system would incorporate machine learning. This raises serious questions as to when and how such systems need to be re-reviewed, considering that in our understanding, changes to a system require a new legal review.
Lastly, and in view of the points raised in the working paper by the delegation of Palestine, we would state that the requirements for weapons review under Article 36 of [AP I] are comprehensive and sufficient. Also, we do not see much value in attempts to standardise on an international level national review processes since several states have already implemented a specific process that is tailored to their specific needs. What seems more promising than a one-size-fits-all approach would in our view, to be to support tailored approaches, for instance, through the exchange of good practices between national authorities, as [AWS] are gradually introduced in armed forces.
Statement by Switzerland under agenda item 5, topic 5 (9 March 2023, transcript)
