3. The UK takes its obligations under IHL extremely seriously. As required by Additional Protocol 1 to the Geneva Convention, the UK conducts legal reviews of weapons in accordance with Article 36 of the Protocol. The UK is aware that despite the large numbers of States being signatories to the first Protocol, not all formally conduct legal weapons reviews. Conversely there are States who are not signatories to the Protocol who conduct Article 36 style legal weapons review as a matter of good practice. We would like to encourage others by sharing UK practice and joining the debate in this area.
4. The UK’s article 36 reviews are conducted by a team of military lawyers from all three armed Services who work closely with the equipment project teams. This can mean attending demonstration days, technical meetings and talking to the companies who design and build the equipment. The lawyers engage with the project teams early in the procurement cycle, but will aim to conduct legal reviews at three stages. These stages are designed to ensure that a legal review is provided prior to major decisions being made about progress and spending, so that the requirements of IHL are part of the decision making process. The details of individual UK Article 36 reviews are confidential due to factors including the classified nature of the equipment reviewed, the accompanying legal advice and the sensitive commercial and contractual nature of the related procurement processes. However, we can describe the areas considered.
5. UK legal reviews examine five main areas:
- Whether the weapon is prohibited, or whether its use is restricted by any specific treaty provision or other applicable rule of international law;
- Whether the weapon is of a nature to cause superfluous injury or unnecessary suffering;
- Whether it is capable of being used discriminately;
- Whether it may be expected to cause widespread, long-term and severe damage to the natural environment; and
- Whether it is likely to be affected by current and possible future trends in the development of international humanitarian law;
6. All weapons, including systems displaying any level of autonomy, would have to meet the required standards for all five of the areas of consideration.
7. All weapons can be used unlawfully. The Article 36 review cannot stop a weapon being used unlawfully by an unscrupulous user intent on breaking the law, or by a badly trained operator. However, it can ensure that a weapon is capable of being used lawfully before it is sanctioned for use by the military. The danger of misuse by an operator addressed, inter alia, by training, Rules of Engagement and Concepts of Operation.
Statement by the United Kingdom: Possible Challenges to IHL due to Increasing Degrees of Autonomy (April 2015)
