3.2 Procedure for assessing new weapons
IHL legal framework
Article 36 of Protocol I additional to the Geneva Conventions, which partly reflects customary international law,27 provides that in the study, development, acquisition or adoption of a new weapon, means or method of warfare, every state party is required to assess the extent to which it is lawful. Every state is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by Protocol I or by any other rule of international law. Protocol I does not specify how exactly this determination of the lawfulness of weapons, means and methods of warfare should be carried out. As a result, every state must adopt the administrative, regulatory and other measures that will allow it to fulfil its obligations under Article 36.
Overview of IHL implementation by Switzerland
The procedure for assessing new weapons is set out in the DDPS Ordinance of 26 March 2018 on the Acquisition, Use and Decommissioning of Military Equipment (Art. 11, SR 514.20). Under this ordinance, the ‘Law of Armed Conflict’ section of the Armed Forces Staff is responsible for determining whether new means or methods of warfare are prohibited by customary international law or international treaties applicable to Switzerland. To enable them to carry out this assessment independently of the acquisition process, the Armed Forces Staff has access to relevant information, including information on military requirements and the technical features of the weapon in question. It also has the authority to bring in experts to assess potential negative consequences of the use of a new weapon on health or the environment.
Good practices
Under the aforementioned DDPS Ordinance, the procedure for assessing new weapons in the light of international law consists of three steps. It provides that a weapons system must be declared compliant with international law before it is designed, developed or procured and finally introduced into the Armed Forces.
- Before the weapon is designed, the authority must identify which rules of international law must be observed and define how the assessment will be conducted and the requirements that must be met.
- Before the weapon is developed or procured, the authority must assess whether the new weapon can be used in compliance with international law, draw up appropriate regulations and design concepts of operation and training.
- Before the weapon is introduced into the Armed Forces, the authority must determine whether the regulations, concepts of operation and training are sufficient to ensure that the new weapon will be used in compliance with international law.
This three-stage assessment process ensures that all issues of international law are addressed when acquiring or developing new means and methods of warfare.
27 For Switzerland, as a state party to AP I, Article 36 of the Protocol is the applicable rule under which it must determine the lawfulness of new weapons. A number of elements suggest that Article 36 may now be considered part of customary international law. Switzerland believes that there is at least a general obligation to determine the lawfulness of new weapons and methods of warfare under common Article 1 of the Geneva Conventions and in line with the general pacta sunt servanda principle. Because states are prohibited from using means and methods of warfare in contravention of IHL, Switzerland believes that good faith implementation of the relevant provisions requires states to systematically assess new weapons and new means and methods of warfare to ensure that they can be used in compliance with IHL in international and non-international armed conflicts.
The implementation of international humanitarian law by Switzerland: Voluntary report of the Federal Council (12 August 2020) 15
