What measures have been taken by your State to implement those existing principles of international humanitarian law that are considered by your State as relevant to the use of munitions, including submunitions, that may become ERW?
In answering this question, States may like to address, among other issues, the following specific questions: …
(v) Does your State have a mechanism to review the legality of new weapons, methods of warfare and military doctrine? (If yes, what is the legal basis for those systems?)
1. The United Kingdom recognises that all explosive munitions are capable of becoming Explosive Remnants of War. This is because all explosive ordnance is capable of failing to explode as intended. The United Kingdom therefore considers that the question relates to the use of all explosive munitions, including cluster munitions, during an armed conflict. When planning or executing attacks using explosive ordnance during an armed conflict the United Kingdom applies the following principles:
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(vi) superfluous injury or unnecessary suffering – This principle prohibits the employment of weapons, projectiles or material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering. The application of this principle is achieved somewhat before the actual use of the equipment concerned through the legal review of new weapons referred to in paragraphs 11 and 12 below
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11. Following its ratification of AP1 in January 1998, the United Kingdom routinely reviews the legality of new weapons, means and methods of warfare in accordance with article 36 of that treaty. The joint service legal team at the Joint Doctrine and Concepts Centre [ … ] conducts these reviews. Legal advice is given throughout the development and procurement processes from the development of a weapon concept through to the procurement of new weaponry. Formalised advice is given at particular stages of procurement identified in internal instructions. In reviewing new weapons, means and methods of warfare the UK considers the following criteria:
(i) whether the weapon etc is of a nature to cause superfluous injury or unnecessary suffering
(ii) whether the weapon etc is intended, or whether it may be expected, to cause widespread, long-term and severe damage to the natural environment,
(iii) whether the weapon is discriminating, that is whether it can be directed at a specific military objective,
(iv) whether there are specific international law provisions which either prohibit the employment of the weapon or which limit the circumstances when it may lawfully be used.
12. In assessing the legality of new weapons, the UK considers a technical description of the weapon and a statement of the circumstances when it is intended to use it. Test and other data as to munition failure rates are considered and attention is drawn to the requirements of Protocol V to CCW where these seem relevant.
Responses to Document CCW/GGE/X/WG.1/WP.2, Entitled IHL and ERW, Dated 8 March 2005: Response from the United Kingdom of Great Britain and Northern Ireland (24 June 2005) CCW/GGE/XI/WG.1/WP.1 and Correction (30 June 2005) CCW/GGE/XI/WG.1/WP.1/Corr.1
