The legal weapon review outlined in Article 36 of the Geneva Additional Protocol of 1949 requires that “In the study, development, acquisition or adoption of a new weapon, means or method of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party.” Yet, the procedure makes it very clear that the responsibility lies with the State itself to determine, if in the particular State`s point of view a weapon or for the purpose of this GGE a weapon system would be compatible to be operated within the applicable existing legal norms. This is closely linked to the challenge of how States interpret existing norms (including IL, IHL and the dictates of public conscience). In the absence of a specific legal norm, States could differentiate in their assessment, if a weapon system is compatible with IL, potentially opening the door to uncertainties in the application of norms by using different standards. For reasons that go well beyond this paper, it is clear that detailed information of weapons development, including potential capabilities, is unlikely to be shared in real time with the broader international community. History shows that detailed insight into weapon reviews is provided, if ever, only years after a particular weapon system was considered for development. In the light of emerging technologies advancing at an unprecedented pace, such insights would be possibly shared at a stage when the information exchange might be too late to influence policy decisions in other states.
Contribution of Austria to the Chair’s request on the Guiding Principles on emerging technologies in
the area of LAWS (1 September 2020) 3-4
