Section 5 — Weapon reviews
1. In para 1 we see the need to invoke article 36 of [API]. The new para would read as follows: “In accordance with the obligations of States under international law, in relation to Art. 36 of [API], in the study, development, acquisition, or adoption of a new weapon, means or method of warfare, determination must be made whether its employment would, in some or all circumstances, be prohibited by international law”.
2. In para 3 we should reach for GGE agreed language. The revised para would read as follows: “Legal review at the national level of the study, development, acquisition or adoption of a new weapon, means or method of warfare is essential to assess whether potential weapons systems incorporating emerging technologies in the area of [LAWS], can be used in compliance with applicable international law, including IHL”.
3. In para 4 we should avoid imposing on States concrete procedures since Article 36 does not mention any requirements in this respect, and moreover, with reference to 4(a) — specific criteria for LAWS are not yet known and 4(d) — it is more appropriate to use GGE agreed language. Thus, after rephrasing 4(d), it would read as follows: “A weapon system based on emerging technologies in the area of [LAWS], must not be used if it is of a nature to cause superfluous injury or unnecessary suffering, or if it is inherently indiscriminate, or is otherwise incapable of being used in accordance with the requirements and principles of IHL”. In addition, as regards 4(e), the GGE does not address existing weapons systems. We question the rationale of adopting weapon reviews to LAWS, as we lack the viable knowledge about their capabilities and limitations. It would be premature to accept such language. Further discussions and clarifications are needed.
4. We suggest rephrasing para 5 as follows: “Risk mitigation measures can include: rigorous testing and evaluation of systems, legal reviews, readily understandable human-machine interfaces and controls, training personnel, establishing doctrine and procedures, and circumscribing weapons use through appropriate rules of engagement”.
5. In para 7 we suggest the following: “Encourage States to identify guidelines and good practices to consider using in conducting legal reviews of [AWS]”
General remarks and comments of with reference to Chair’s paper by Poland (September 2021)
