(e) In accordance with States’ obligations under international law, in the study, development, acquisition, or adoption of a new weapon, means or method of warfare, determination must be made whether its employment would, in some or all circumstances, be prohibited by international law[.]
Switzerland would like to recall the obligation of all States to “respect and ensure respect” for IHL (see common Article 1 to the Geneva Conventions) and the prohibition to use means and methods of warfare in contradiction to IHL. Therefore, an implementation of IHL in good faith requires an assessment whether means and methods of warfare can be used in conformity with IHL prior to their employment in international as well as non-international armed conflicts.
As a State party to Additional Protocol I to the Geneva Convention (AP I) Switzerland’s is directly bound by article 36 AP I to conduct legal reviews of new weapons. Switzerland’s obligation under Art. 36 AP I has been integrated into national legislation. The relevant ordinance and directives provide for legal review in three stages, requiring a positive declaration of conformity with international law during the initialization, before procurement and before the introduction of a new weapon system into the Armed Forces. This guarantees that no weapon system can be procured without legal clearance. In order to ensure that the competent authority is able to conduct an independent legal review, in Switzerland access is granted to all relevant information, in particular with regard to the military requirements and technical characteristics of the weapon system concerned. It may furthermore require extensive testing of a new weapon system and the involvement of experts to assess potential negative consequences on health or the environment.
The predictability of an AWS in different operational environments, its accuracy and potential self-learning capabilities pose particular challenges for the legal review of such weapons. HCPs should discuss how these challenges could be addressed.
