Does the government conduct legal reviews under Article 36 of Additional Protocol I to determine whether new weapons, means or methods of warfare may be employed in accordance with Australia’s international legal obligations?
Article 36 of Additional Protocol I 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.
As a party to Additional Protocol I, Australia is committed to upholding its treaty obligations. Australia’s Article 36 obligation is given practical effect in ADF policy, which requires the legal review of new and materially modified ADF weapons, means or methods of warfare prior to introduction into service. Such reviews are conducted by the Directorate of Operations and International Law, which forms part of Defence Legal, within the Department of Defence.
At what point(s) in the capability development and acquisition process does the government conduct legal reviews? Are there any forums, conferences or practices designed to share information and good practice on Article 36 reviews between states?
Defence Legal, within the Department of Defence, is responsible for the conduct of Article 36 reviews pursuant to Australia’s international legal obligations.
Defence Legal works with the Department of Defence’s Capability Acquisition and Sustainment Group (‘CASG’), along with the service headquarters, to provide legal advice throughout the development and, more commonly, acquisition process. Defence Legal is routinely engaged by CASG or the services when a capability need has been identified, and asked to provide guidance on the specific legal issues that should be considered when Defence is engaging with industry regarding the development or acquisition of a weapon or a platform to fill a capability need.
Involvement in the preliminary or conceptual stage of weapon development or acquisition enables Defence Legal to shape the development and acquisition process, thereby ensuring that options which may not comply with Australia’s international legal obligations are ruled out at the earliest juncture.
Australia is deeply committed to the sharing of ‘good practices’ regarding the conduct of Article 36 reviews.
Australia has been an active participant in discussions in the United Nations via the ‘Group of Government Experts’ (‘GGE’) meetings on Lethal Autonomous Weapon systems (‘LAWS’). In the furtherance of discussions concerning applicable IHL, Australia submitted a working paper in 2018 to the LAWS GGE outlining a method for adhering to Article 36 obligations.62
Defence Legal personnel have also participated in discussions with international organisations and NGOs on the conduct of Article 36 reviews, particularly in the context of new and emerging technology. In addition, Defence Legal participated in a virtual information exchange on implementation of weapons reviews facilitated by the United Nations Office of Disarmament Affairs in September 2020.
In addition, Australia hosted the First Expert Meeting on the Legal Review of Autonomous Weapon Systems in Sydney in March 2023 and the Second Expert Meeting in Sydney in April 2024. These meetings provide the opportunity for subject matter experts from government, academia, NGOs and industry from over 20 States to examine novel challenges and best practices for conducting legal reviews of weapons with autonomous functions.
62 Australia, ‘Convention on Certain Conventional Weapons (CCW), Lethal Autonomous Weapons Systems National Commentary – Australia’ (National Commentary, August 2020) https://documents.unoda.org/wp-content/uploads/2020/08/20200820-Australia.pdf.
Australian Government, Report on Australia’s Implementation of International Humanitarian Law at the Domestic Level (23 October 2024) 32–33
