The ICRC welcomes attention that this issue has brought to developing and improving legal review processes.
The ICRC calls on all States to establish a weapon review mechanism or consider strengthening existing mechanisms to ensure that any new weapons that are developed and acquired can comply with IHL in all foreseeable circumstances of their use.
When developing or acquiring new weapons, States must determine whether the employment of the new weapon, means or method of warfare would, in some or all circumstances, be prohibited by international law.
This is an obligation under article 36 of [AP I].
But, in fact, all States have an interest in assessing the legality of new weapons, whether or not they are party to [AP I]. Such assessments contribute to ensuring that the State’s armed forces can conduct hostilities in accordance with that State’s international obligations, and flows from the obligation to ensure respect for IHL under common article 1 to the Geneva Conventions.
A legal review must consider treaty and customary prohibitions and restrictions on specific weapons, as well as the general IHL rules applicable to all weapons, means and methods of warfare.
These include the rules aimed at protecting civilians from the indiscriminate effects of weapons and combatants from superfluous injury and unnecessary suffering.
Legal reviews can help to improve compliance with IHL for all weapons, in light of rapid technological developments.
But legal reviews of AWS are also likely to raise their own challenges.
As with all weapons, the lawfulness of a weapon with autonomy in its critical functions depends on its specific characteristics and intended use.
The ability to carry out such a review entails fully understanding the weapon’s capabilities and foreseeing its effects, notably through verification and testing.
Since the commander or operator must make an assessment of the lawfulness of an attack using an [AWS] at an earlier stage than if the selection and attack of targets were under direct human control, the legal review must demand a very high level of confidence that, once activated, the [AWS] would predictably and reliably operate as intended. This raises unique challenges in ensuring that predictability and reliability are tested and verified for all foreseeable scenarios of use.
Statement by the ICRC under agenda item 6(b): further consideration of the human element (12 April 2018)
