b. The procedure for evaluating new types of weapons
According to art. 36 of the 1977 First Additional Protocol to the Geneva Conventions, States parties have an obligation to determine whether a new weapon under development, acquisition or adoption process could violate IHL59. This obligation applies both in times of peace and armed conflicts and must consider not only the intrinsic characteristics of the armament, but also how, when and where it can be used. The obligation to evaluate new weapons is particularly important in light of the rapid development of new technologies for military purposes.
The Italian Military Code (Legislative Decree of March 15, 2010, n. 66 and Presidential Decree of March 15, 2010, n. 90), while not explicitly mentioning compliance with IHL conventions, provides for detailed and transparent public control procedures on the approval of each weapon system (art. 536). In detail, the procedure for verifying programs relating to the renewal and modernisation of weapon systems directly intended for national defence, requires approval by law if extraordinary funding is needed, or a decree by the Minister of Defense in case of programs financed through an ordinary budget. In this case, the opinion of the Parliament Defense Commissions (of both Chambers) must first be acquired60. The Commissions can express a contrary opinion and formulate specific conditions which, in the event that the Government does not want to comply with them, lead to a further parliamentary passage for a definitive opinion of the Chambers. In the event of a negative opinion expressed by a majority and duly motivated, the program will not be adopted61.
Good Practices: In the commentary to the Eleven Guiding Principles relating to the use of Lethal Autonomous Weapons Systems (LAWS) developed by the Group of Governmental Experts in 2019, Italy argued that ‘the development, deployment and use of any weapons system, including possible lethal autonomous weapons systems, must comply with the rules and principles of International Humanitarian Law (IHL)’. Similarly, in a 2019 statement within the Group of Experts, Italy confirmed that IHL continues to fully apply to all weapon systems, including the development and potential use of LAWS.
59 For details, see the support document published by the ICRC, A Guide to the Legal Review of New Weapons, Means and Methods of Warfare (2006).
60 This process takes place in agreement with the Minister of Economy and Finance if the renewal and modernisation programs are multi-year in duration.
61 The opinions expressed during the latest legislature are available on the website https://temi.camera.it/leg18/temi/tl18_programmi_d_arma.html.
Commission for the study and development of international humanitarian law (ed), Voluntary report on the implementation of international humanitarian law in Italy (2023) 36
