It is the United Kingdom’s strong belief that the requirement for an anticipatory ban or restrictions on [LAWS] is mitigated by the legal obligation on States to determine whether the employment of such a weapon system would, in some or all circumstances, be prohibited by international law. It is for this reason, the UK supported the inclusion of legal review as one of the 2019 Guiding Principles. Furthermore, the Joint Proposal co-sponsored by Australia, Canada, Japan, the Republic of Korea, the United Kingdom, and the United States demonstrates the important and insightful role legal reviews will continue to have as States address the continually advancing technology on the battlefield.
Before addressing the GGE on legal reviews, I wish to reiterate the UK’s long-held position that there is no gap in the application of IHL in respect to LAWS. It’s my delegation’s submission that well-established legal principles already exist and, as acknowledged by Guiding Principle 1, those principles are very much applicable to the use of LAWS in armed conflict. Indeed, those well-established legal principles, which incidentally would be explored during the review process, provide a comprehensive and finely balanced set of criteria which regulate the conduct of the combatants and the manner in which they engage to tools of combat, that is their weapons. By way of example, the principle of distinction already makes it unlawful for combatants to target civilians, those combatants hor de combat, and non-combatants such as medical personnel and padres. And, the requirement to take precautions in attack is applicable regardless of weapon. These requirements, which attach to the humans conducting the combat, do not change due to the engagement of a weapon with autonomous function. The UK agrees with other delegations that decisions on who and what may be targeted, when and how they may be targeted are context-specific and to be determined on a case-by-case basis. The challenge, therefore, for States seeking to develop and use weapons utilizing autonomous functions is to ensure that these tools do not undermine the requirement on the commander to comply with existing legal principles of IHL. Only weapons which stand up to a context-specific, case-by-case assessments of lawful use may reach the battlefield. The legal review process is the gatekeeper in that regard.
At this point, it might be helpful to briefly explain the UK approach to legal reviews. As a State Party to [AP I], the UK mandates that its new weapons, means and methods of warfare are reviewed to determine whether they are capable, in some or all circumstances, of complying with IHL and other legal obligations. As a matter of UK policy, and mindful of our Article 36 obligations, new weapons must undergo a legal review at 3 key stages of the procurement cycle with the third stage being before the equipment enters service. In addition, a weapon system will become subject to further review during its life cycle where it undergoes significant modification. The result is that a weapon incapable of complying with IHL will never enter the UK inventory for use in armed conflict.
For those weapons without autonomous functionality, the review will seek technical descriptions and evidence from procurement staff to determine the following:
- whether the weapon is prohibited by specific treaty or other applicable rule of law;
- whether, in its normal or intended circumstances of use, it is of a nature to cause superfluous injury or unnecessary suffering;
- whether it is capable of being used discriminately; and
- whether it may be expected to cause widespread, long-term, and severe damage to the natural environment.
What other legal tests must a review apply when considering a weapon with autonomous functionality? The answer to that question will, in our view, depend on the anticipated circumstances of use and the type of autonomy within the weapon. In addition to the standard questions — which I have just outlined — the review will need to assess whether the [AWS] is capable of being used in accordance with the rules on proportionality and precautions in attack. Indeed, this is reflected throughout the US led Joint proposal to this group.
Those experts who undertake legal reviews will testify that a critical element of the assessment is the use case. Put at its simplest the legal review is about ensuring that the weapon is capable of being used lawfully, having regard to all of the principles of IHL, in the context of its use case. That this is a core expectation of compliance is evidenced across the proposals we have seen. We note that the Austrian proposal highlights as key the need to adequately assess the context in which the system is to be used including through evaluating the circumstances or conditions that would trigger an application of force in relation to the given environment and the time and duration of its use. We entirely agree with this position.
… [W] e also agree with a number of the proposals in the suggestion that even robust and comprehensive legal reviews, while a critical to ensuring lawfulness are not, on their own, a sufficient means of doing so. Legal reviews are only part of the picture. I started this intervention by highlighting that there is no gap in IHL. In light of that, the legal principles to be considered during a legal review and, of course, during the development and use of [AWS], already exist.
Legal review should ensure that weapons, including those with autonomous functionality, do not enter service unless they are capable of complying with IHL in some or all circumstances. IHL doesn’t stop there though, not only must the weapon be capable of being used lawfully, it must be used lawfully. Herein lies the importance of the other regulatory measures highlighted US led Joint Proposal co-sponsored by Australia, Canada, Japan, the Republic of Korea, the United Kingdom and the United States.
Statement by the United Kingdom under agenda item 5, topic 5 (9 March 2023, 1st intervention)
