This guiding principle reaffirms the principle in Article 36 of the 1977 Additional Protocol I to the 1949 Geneva Conventions. The United States is not a party to the Additional Protocol I and does not regard Article 36 as reflecting customary law, but engages in robust practice of conducting reviews of the legality of weapons. Such reviews are a good practice to facilitate the implementation of international law applicable to weapons and their use in armed conflict.
“Emerging technologies” are novel by definition and thus may be construed as “new” under this principle. The use of autonomy in weapon systems, however, is not necessarily new. There is substantial State practice in using autonomous functions and features in weapon systems for decades.
In that light, the United States proposes the following good practices for the legal review of weapons systems based on emerging technologies in the area of LAWS for the GGE’s consideration.
- Legal advisers should be consulted regularly in the development or acquisition process as decisions that could pose legal issues are being made so that legal issues can be identified and more in-depth reviews can be conducted where necessary.
- A weapon system under modification should be reviewed to determine whether the modification poses any legal issues.
- New concepts for the employment of existing weapons should also be reviewed, when such concepts differ significantly from the intended uses that were considered when those systems were previously reviewed.
- The nature of the legal review and advice should be tailored to the stage of the process of developing or acquiring the weapon.
- Providing legal advice early in the development or acquisition process allows IHL considerations to be taken into account early in the life cycle of the weapon.
- At the end of the development or acquisition process, formal legal opinions can memorialize relevant conclusions and analysis while also being useful to consider in subsequent reviews.
- The legal review should consider the international law obligations applicable to the State intending to develop or acquire the weapon system, including prohibitions or other restrictions applicable to specific types of weapons, and whether the intended or expected uses of the weapon system can be consistent with those obligations under IHL.
- The legal review should consider whether the weapon is illegal per se, i.e., whether the use of the weapon is prohibited in all circumstances.
- The legal review should consider whether the weapon is of a nature to cause superfluous injury or unnecessary suffering, or if it is inherently indiscriminate, or is otherwise incapable of being used in accordance with the requirements and principles of IHL.
- Analyzing whether a weapon is “inherently indiscriminate,” should consider whether the weapon is capable of being used in accordance with the principles of distinction and proportionality.
- In considering whether a weapon with new autonomous features or functions is consistent with the prohibitions against weapons calculated to cause superfluous injury or against weapons that are inherently indiscriminate, it may be useful to compare the weapon to existing weapons not falling under these prohibitions.
- The legal review should advise those developing or acquiring the weapon system or its concepts of employment to consider potential measures to reduce the likelihood that use of the weapon will cause harm to civilians or civilian objects.
- Persons conducting the legal review should understand the likely effects of employing the weapon in different operational contexts. Such expectation should be produced through realistic system developmental and operational test and evaluation.
- Bearing in mind national security considerations or commercial restrictions on proprietary information, States should share good practices on weapons reviews or legal reviews of particular weapons where appropriate.
U.S. Commentaries on the Guiding Principles (GGE LAWS, 1 September 2020) 7-9
