The Belgian Commission for the Legal Review of New Weapons was established by the General Order-J/836 issued by the Chief of Defence on 18th July 2002. The establishment of the Commission aimed at formalizing the respect of the obligation coming out of article 36.
The Belgian Commission is a permanent advisory body that reports to the Chief of Defence. Its task is to advice the Chief of Defence about the legality of any new weapon, means or method of warfare that is under study or which is being developed by the Armed Forces or that the Armed Forces plan to acquire.
In order to be efficient, the Commission has to be seized at the earliest stage of the process and, in any case, before any acquisition.
The General Order furthermore compels any Defence member to fully cooperate with the Commission.
The scope of application of the General Order is very broad and uses the language of article 36. It includes the review of any new weapon, means or method of warfare that was not already used by the Belgian Armed Forces at the date of its publication.
For its application, the term « weapon » includes any type of weapon, lethal and non-lethal, including any weapon system, projectile, ammunition, powder or explosive designed to put a person and/or material hors de combat. It is considered that means of warfare also fall under this definition.
The terms « method of warfare » are not directly defined in the General Order and have to be understood as the tactics and techniques designed to fight the enemy.
In assessing the new weapon, the Commission will consider any international law obligation, including but not limited to obligations deriving from IHL. The Commission will of course also consider domestic legislation which is, in many instances, less permissive that international law.
The Commission is made up of six permanent members coming from the Ministry of Defence and is chaired by a Legal Advisor appointed by the General Director of the Legal Department. The other members are a Secretary (who is also coming from the Legal Department), the Law of Armed Conflict Advisor of the Assistant Chief of Staff Operations and Training, the Senior Political Military Advisor on weapons treaties of the Assistant Chief of Staff Strategy, the Senior Military Advisor on Research and Technology of the Defence Staff and a Military Doctor appointed by the Chief of the Medical Component. In this way, the composition of the Commission allows for a multidisciplinary approach.
Aside those permanent members are the expert(s) responsible of the development or acquisition program regarding the new weapon. The Commission might also decide to consult or hear other experts, as academics.
Any person responsible of a program aiming at studying, developing or acquiring a new weapon, means or method of warfare has to notify the General Director of the Legal Department as soon as possible of its intention to do so and to provide him with all available information regarding this new weapon (1). The General Director then transmits the request to the Commission (2) unless he considers, based on an in-depth examination, that the new device does not fall under the weapon or means or method of warfare definition.
Once seized of the request, the Commission conducts the necessary steps in order to deliver a motivated advice on the legality of the new weapon. The Commission will usually hear experts, being responsible for the program or not, and can request the support of any member of the Defence Personnel as well as of any specialist inside or outside the Defence organization (3).
Once the Commission has collected relevant information, the Secretary drafts the advice upon which the Commission will decide. Decision making usually requires unanimity. After its adoption, the advice is transmitted to the General Director of the Legal Department (4) who will then transmit it to the Chief of Defence (5). If the Commission was not able to vote unanimously in favor of one or some findings of the advice, the different opinions will be clearly mentioned. The General Director will express his view(s) on the topic too. Any advice leading to a recommendation expressing the prohibition or the restriction of the use of the weapon will have to be particularly reliable and motivated, as the aim of this given advice is to enable the Chief of Defence to take actions as requested by international law in this domain. The findings of the Commission are of an advisory nature and are not binding, but usually they will be followed.
Lastly, the Chief of Defence will give orders based on the content of the advice to the person(s) responsible of the program (6). Those instructions may request, for instance, the implementation of directives describing the manner the weapon has to be used in order to respect international law obligations.
If any new information is made available after the advice was given, the advice of the Commission will be reviewed following the same procedure. The General Director of the Legal Department may also decide on its own to re-open a case and to ask for an actualization of the review.
I will now turn on the challenges that Legal Review Commissions might face, especially regarding LAWS.
One of the first main challenges would certainly be the technical assessment of those weapons.
Belgium has developed an expertise in a few technical areas through the Weapon Systems and Ballistics Department of the Royal Military Academy. Regarding Non-Lethal Weapons, in particular, this Department has developed mechanical tests, namely shooting on surrogates, and numerical models simulating impacts on the human body. These tests allow to assess the effect of kinetic energy non-lethal projectiles on the human body and are part of a greater effort at international level in order to achieve the standardization of the risk assessment of those weapons. Relying on those studies, the Belgian Commission was able to suggest ways to use those weapons that would not contravene international law, and recommended the adoption of guidelines for the users of those weapons, notably regarding security distances.
Regarding LAWS, the used technology would be so advanced and so highly complex that the members of the Commission would, first of all, have to be particularly aware of the specificities of the weapon and its functioning before being able to legally review it. In order to fulfill its duty, the Commission might be forced to rely more and more on experts. But not all the States would have the internal resources to develop such an expertise. States would therefore most probably have to rely on information emanating from the
industry, with all the legitimate questions that might arise from this situation. The very question of the legal review itself then comes in mind. Regarding their particularities, LAWS might indeed require legal review commissions to consider with new eyes several international law principles, notably the principle of proportionality and the principle of accountability. The Martens clause, which is already taken into consideration in regard to more conventional weapons, would probably also be put in a new light.
Finally, the re-assessment of LAWS when new information that might cast doubt on their legality would be made available would also be challenging because of the ethical issues raised by such weapons.
During the General Debate on Monday, numerous States have called for the sharing of information on legal review and good practices. Belgium shares this point of view and takes part, to this end, in the initiative led by the United Kingdom through the Weapons Review Forum.
The Belgian Commission of the Legal Review of New Weapons (CCW Informal Meeting of Experts on LAWS, 13 April 2016)
