b. Weapon Reviews
Under the provisions of Art. 36 AP I, all contracting parties are obliged, when studying, developing, acquiring or adopting a new weapon, means or method of warfare, to determine whether its employment would, in some or all circumstances of employment, be prohibited by AP I or by any other rule of international law.
In March 2015, under the auspices of the Federal Ministry of Defence’s Directorate-General for Legal Affairs, an independent “Steering body for the legal review of new weapons and methods of warfare” was established within the Federal Ministry of Defence. It is composed of representatives of the Directorate-General for Legal Affairs, as well as of all competent entities at the Ministry that serve as points of contact, such as the Directorates-General for Equipment, Strategy and Operations, Forces Policy, Security and Defence Policy and Planning. The competent entities are meant to provide additional expertise, as well as initiate legal reviews of new weapon systems. The Joint Service Regulation A-2146/1 “Examination of new Weapons, Means and Methods of Warfare” stipulates the central provisions for the procedures.
The question of whether or not a new weapon or method of warfare can and should be introduced is ultimately determined based on the respective legal provisions, and on whether or not a sufficient number of scenarios can be imagined for legally permissible and useful employment of this weapon in actual military operations. This standard demonstrates that the legal review of a new weapon must be performed based not only on legal expertise, supported by technical and medical opinions and assessments, but must also take military and operational analyses into account. The large amount of information that needs to be exchanged across various areas of expertise was a compelling argument for the establishment of a formal review body within the Federal Ministry of Defence.
Dt. Komitee zum Humanitären Völkerrecht (ed.), National Implementation of International Humanitarian Law: Document on the Implementation of IHL in the German Legal System (Nomos, 2020) 36
