16. An important aspect of the review process is an Article 36 Review. In accordance with Australia’s obligation as a party to Protocol I Additional to the Geneva Convention, an Article 36 Review must be undertaken before a new weapon system can be introduced into service. To achieve this, all weapons, means or methods of warfare (collectively referred to as ‘weapons’) that the Australian Defence Force intends to use in warfare must undergo a legal review before operational use.
17. This review is a legal assessment to determine whether a weapon is (i) cleared, (ii) cleared subject to conditions, or (iii) not cleared for operational use. A key element of the Article 36 review is determining whether the weapon or its intended use in combat is consistent with Australia’s international legal obligations, including under customary international law. Where appropriate this will include whether acquiring, developing or adopting the weapon is contrary to the public interest (for instance, is contrary to a legal trend), principles of humanity or the dictates of public conscience. The latter aspect reflects the application of the Marten[s] Clause, of which Australia takes a narrow view.
18. For more information, please refer to the attached Australian non-paper on Article 36 reviews that was submitted to the GGE on LAWS in August 2018.
19. Stages two and three may occur over the period of years and be repeated multiple times, to ensure compliance with the weapon system’s set requirements.
Australia’s System of Control and Application for Autonomous Weapon Systems: Submitted by Australia (26 March 2019) CCW/GGE.1/2019/WP.2/Rev.1
