As we and many other states have mentioned, the ability to exercise human control and judgments during the development and use of [AWS] is key to ensure compliance with obligations under international law, in particular [IHL]. Conducting a legal review of [AWS] in line with Guiding Principle (e) is one of the ways in which we can ensure that human judgement and control is retained. We note that conducting a legal review is not only a legal obligation for state parties to AP 1, but that all states are under the obligation to determine, in advance, whether a weapon system they use can be deployed in accordance with international law. It logically follows that a crucial aspect of this review must be to assess the presence of human judgement and control in the weapons system. As the Palestinians have referred to in the working paper, the application of specific machine learning techniques could lead to the opaque functioning of [AWS]. This poses a significant challenge to ascertain the implementation of human judgement and control in those systems. Therefore, the legal review must establish whether the commander or operator has sufficient understanding of the system’s way of operating, its effect, and likely interaction with its environment. By doing so, commanders and operators can predict and explain the behaviour of the weapon system, ensuring compliance with [IHL].
An important precondition for performing adequate reviews is the need to be mindful of rapidly evolving technological developments related to [AWS]. When the weapons system is modified, so that the functioning of the system significantly changes, for example, through alterations of its underlying algorithms, additional reviews must be performed. We think the new working paper submitted by Austria provides useful elements and language regarding this topic. To conclude, we encourage states to adopt national legislation to review and determine whether a weapons system can be deployed in accordance with international law, in particular [IHL]. In addition, we explicitly invite states to disclose the results of such weapon reviews, in so far this is compatible with confidentiality obligations, and operational considerations. This enables states to learn from each other. At the same time sharing results of weapon reviews can function as an important trust building measure.
Statement by the Netherlands under agenda item 5, topic 5 (9 March 2023, 1st intervention, transcript)
