Legal reviews of weapons systems using emerging technologies in the area of LAWS, which are carried out with reregard to their research, development, acquisition, employment, as well as methods and means of warfare, is useful in determining whether they are prohibited by international law applicable to the country concerned.
On the other hand, the specific means of conducting legal reviews are up to each country to decide. Therefore, it would be useful to identify guidelines and good practices regarding considerations during legal reviews, as well as risks identification and mitigation measures that can be considered at each stage of design, development, testing, and deployment, in order to help countries establish their national systems.
Article 36 of [AP I] establishes the obligation to determine whether the use of new weapons is prohibited by international law at any stage of research, development, acquisition, or adoption. In determining whether a new weapon falls within the scope of prohibition or restrictions among weapon systems using emerging technologies pertaining to LAWS, the weapons screening system of each country is important. It is therefore meaningful to share good practices in a manner that takes into account the security situation of each country.
We appreciate the inclusion of legal reviews as a topic on your indicative timetable. The GGE’s mandate, of course, is to consider proposals and to elaborate by consensus possible measures. We believe that legal reviews are a particularly important measure in the context of [AWS] to ensure compliance with [IHL]. Reflecting on the opening statements and interventions provided by all of the distinguished delegates on the need for precautionary measures, we believe elaborating on legal reviews should attract consensus among GGE delegations. Legal reviews are a critical part of ensuring compliance with IHL. We wanted to appreciate the Philippines delegation’s favourable comments just now on paragraph 24 of our Principles and Good Practices proposal that we submitted with Australia, Canada, Japan, the Republic of Korea and the United Kingdom in 2022, in which we proposed good practices for legal reviews, which the GGE could endorse as measures for strengthening compliance with IHL. We’ve also included legal reviews in Draft Article 1 of our revised proposal submitted as a measure during development that is important in implementing tier one of the two tier approach, identifying prohibited categories of weapons. As we have heard during the discussion this week, there are diverse understandings of what constitutes a prohibited weapon with autonomous functions. Many delegations also underline the need for a careful consideration of the context and all the relevant facts and circumstances in determining whether a weapon system would be prohibited.
Mr. Chair, your questions yesterday afternoon also elucidated the need for greater clarity and consideration of the facts in particular cases. When there is not a clear definition or a common understanding of prohibited weapons, the domestic national process of reviewing specific cases to determine whether weapons are prohibited legal reviews becomes all the more important. In the revised joint proposal the United States and our co-sponsors submitted earlier this week, we have sought to be clear about what the legal review of weapons with autonomous functions during development should seek to identify as prohibited.
First, subparagraph 1 of Article 1 of our revised proposal provides concrete design prohibitions to prevent the design and use of [AWS] that cannot be used in compliance with IHL. We discussed yesterday subparagraph 1 prohibiting weapons designed to target civilians or to spread terror among the civilian population. As another example, and relevant to our discussions regarding meaningful human control, subparagraph 1(c) of Draft Article 1 states that [AWS] must not be designed to “conduct engagements that would not be the responsibility of the commanders and operators using the system”. During the legal review of a proposed [AWS], the lawyers would review the design documents and other plans for the development of the weapon to ensure that there is no effort to design the weapon system in a manner contrary to these prohibitions. We have tried to frame these prohibitions in a technology agnostic way, so that they would apply regardless of the specific technical means at issue. So the legal review would not be limited to identifying a specific prohibited technology, but would instead be looking for the objective design intent reflected in the plans for the development and use of the weapon.
Secondly, our joint proposal in subparagraph 2 of Article 1 provides a specific standard for the legal review to apply to ensure that the [AWS] can be used consistent with IHL. The [AWS’s] “effects in attacks are capable of being anticipated and controlled as required in the circumstances of [their] use, by the principles of distinction and proportionality”. These standards directly address the concern put forth by some delegations regarding the potential dangers of unpredictability and LAWS, but does so in a way that is grounded in [IHL]. The legal review is not only a critical measure specified in subparagraph 2 of Draft Article 1, but the legal review will itself assess whether the elements of subparagraph 2 of that Draft Article have been met. For example, the legal adviser will ask whether there has been rigorous testing and evaluation and will ask for the reports demonstrating that this testing and evaluation had been done. As mentioned in our previous interventions in detail, the legal adviser would review the precautions and features outlined in subparagraph 2 of Draft Article 1. Thus, the legal review will play a critical reinforcing role in ensuring that the [AWS] is not prohibited by its nature from use in accordance with IHL. Our joint proposal also provides concrete guidance for the legal review of [AWS] in Draft Articles 2 through 6. These IHL prohibitions and regulatory measures, which apply to the use of the weapon system, will be relevant for the legal review during development to consider. During the legal reviews, the lawyers will consider the concept of employment of the weapon system, the plan for how the weapon is likely to be used, and will advise on the consistency of such plans with IHL, including the clarifications articulated in Draft Articles 2 through 5. The legal adviser will also advise on the need for the measures in Draft Article 6, such as the need to issue guidance for the proper use of the weapon system. And later, when this doctrine, training and procedures for the use of the weapon are developed, the legal adviser will all to review these documents to ensure their consistency with IHL.
… [T] he legal review of [AWS] affords an opportunity, before the weapons system is deployed, to carefully consider whether the weapon is prohibited by IHL, as well as IHL requirements in the use of the weapons system, including precautions to reduce risks to civilians and civilian objects. It also reinforces a number of measures needed to effectively implement IHL, such as rigorous testing and evaluation. The legal review of the weapons system is an opportunity to ensure that designers and developers of the weapon and others tasked with ensuring the reliability of the weapon system have applied their expertise. Similarly, these reviews also provide a mechanism for considering and reviewing additional doctrine, training and procedures that would help ensure the weapons system is used consistent with IHL. Legal review is not just one touch point in the development process, it cuts across the lifecycle of the weapon systems, and helps ensure that later aspects of the lifecycle of the weapon system are being considered, and that necessary steps will be taken to meet IHL requirements.
Lastly, my delegation also wish just to respond to your opening comments about ethical concerns and their relationship with legal reviews. My delegation believes you’re absolutely correct that often times, lawyers conducting a legal review will also provide prudential and ethical advice regarding a matter, including a potential weapon system to be deployed. We also agree that ethical principles underlie [IHL] and are the basis for IHL principles. And that these principles could be an important part of the ethical advice that lawyers would give in reviewing an [AWS]. Lastly, I would also point out that the legal adviser would also point to specific ethical standards that have been adopted by the department, in our case, the Department of Defence, as official policy. So this would include, for example, the DoD AI ethical principles when reviewing weapon systems with AI capabilities. So mainly, we just really wanted to agree and reinforce your point that ethical considerations could absolutely be part of the legal review in practice.
Statement by Japan under agenda item 5, topic 5 (9 March 2023)
