While not the sole solution for the challenges associated with increasing autonomy in weapons systems, legal reviews are a crucial instrument and thus can be part of the solution. A well-designed weapons review mechanism has not only the potential to determine whether or not an AWS is designed in a way that it could be employed lawfully.
According to Article 36 AP I, a weapons review should state whether a weapon ”would, in some or all circumstances, be prohibited“ under applicable international law. By clearly defining the circumstances under which the employment of a given AWS would be unlawful, it becomes apparent what measures need to be taken in order to enable the users to comply with IHL.
Weapons reviewers therefore should also be empowered to impose measures to implement IHL with regards to the weapon system under review. Such measures could be the drafting of weapon specific regulation or training requirements. In Switzerland, our standing practice is that legal clearance of a weapon can be subject to conditions if necessary – meaning the next step in the procurement process can only be reached once these conditions have been fulfilled. As an example, a weapon could only be introduced in the Armed Forces once the weapon specific regulation containing the necessary rules to implement IHL is in force.
In view of the complexity of autonomous weapons systems, for instance the way they interact with the environment or functions such as machine learning, the authority responsible for the review of weapons must take into account the specific challenges arising from greater autonomy.
Amongst others there is need of a sound understanding of the parameters of an AWS, its functioning and impact. Moreover, the weapon reviewer may require specific technical expertise and or advice to conduct its review. In this regard, getting access to the information necessary for making the assessments is of paramount importance. This in turn may require a close collaboration with industry or exporting countries.
Other helpful measures to overcome these challenges include rigorous testing and evaluation as well as the review and reassessment of any possible changes and modifications in the system’s functioning.
Statement by Switzerland (GGE LAWS, 7 March 2024) (transcript)
