So in answer to the question, “Can legal reviews by themselves ensure compliance with IHL?”, we don’t see it in of itself, sufficient to ensure compliance. We see legal reviews as an important check and balance within a broader system of control as reflective of state’s obligations under [Common] Article 1, in terms of respecting and ensuring respect for IHL. I think from the Australian perspective, our 2018 paper on the systems of control articulates some of our views as to the mechanisms, including weapon reviews, that apply across the continuum of the use of force to ensure compliance in that particular context.
So question two raises an issue, which is not new, in that with weapon reviews of non-autonomous weapons there is the risk of inconsistency. And this flows from the very deliberate intention of Article 36 to be a national process, and from the fact that Article 36 itself does not require states to adopt any particular method or to disclose the results of the weapon review process. But, having said that, the challenges that [AWS] do present in terms of the weapon review do promote — and I’m very pleased to hear a large number of delegations refer to the benefit of an exchange of best practice and a recognition that there is benefit in terms of achieving some common commonality both in process and in standards that are applied.
Already, for those states that do conduct weapon review processes, there is a degree of commonality in the process that they apply and much of that is reflected in the ICRC’s very useful guide to the legal review of new weapons, means methods of warfare. And so I think we already start from a positive position in terms of common approaches. The difficult question though, is how then do we address the additional challenges in dealing with autonomy as a characteristic of a weapon system.
Question three raises a very interesting point and in our view, I don’t think that a common definition of a [LAWS], or an [AWS], is essential to enable a state to undertake a weapon review of an [AWS]. The reason I say that is that the Article 36 obligation is triggered by the state’s study, development, acquisition or adoption of a new weapon, means or method of warfare. And so from our perspective, what is important is the state’s national definition of the term new weapons, means or method of warfare. And so where an [AWS] falls within that state’s definition, that is what enables the state to make a decision as to the requirement for a weapon review. And so in that respect, we would say that the third question, an internationally recognised definition is not necessary.
Statement by Australia under agenda item 5, topic 5 (9 March 2023, 2nd intervention, transcript)
