This paper is submitted under the responsibility of the Chair. The following are elements for discussion for possible inclusion in the report of the GGE, which will be prepared at a later stage. This paper does not prejudge the outcome of the 2021 GGE session, or the course of the discussion to follow.
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(4) Weapon reviews
1. 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.
2. All States that have not yet done so are encouraged to consider joining Additional Protocol I to the Geneva Conventions of 12 August 1949.
3. Legal reviews, at the national level, in the study, development, acquisition or adoption of a new weapon, means or method of warfare are a useful tool to assess nationally whether potential weapons systems based on emerging technologies in the area of lethal autonomous weapons systems, including autonomous weapons systems, would be prohibited by any rule of international law applicable to that State in all or some circumstances.
4. The following elements of practice can be applied in the conduct of legal reviews, at the national level, in the study, development, acquisition, or adoption of autonomous weapons systems:
(a) States should consider key challenges in the regulation and nature of the systems through a regular evaluation process based on a set of criteria relevant for autonomous weapons systems.
(b) A weapon system under development or modification which significantly changes the use of existing weapons systems, should be reviewed as applicable to ensure compliance with international humanitarian law.
(c) New concepts or operational contexts for the employment of existing weapons can be reviewed, when such concepts or operational contexts differ significantly from the authorized uses that were considered when those systems were previously reviewed or that may result in different effects.
The legal review should consider whether the weapon is of a nature to cause superfluous injury or unnecessary suffering, or if it inherently indiscriminate, or is otherwise incapable of being using in accordance with the requirements and principles of IHL, including with the principles of distinction and proportionality.. Analyzing whether a weapon is “inherently indiscriminate,” should consider whether the weapon cannot be directed at a specific military objective and whether its effects cannot be limited as required by IHL. In considering whether a weapon system is consistent with the prohibitions against weapons of a nature to cause superfluous injury or unnecessary suffering or against weapons that are by nature indiscriminate, it may be useful for instance to compare the weapon system to existing weapons systems not falling under these prohibitions.
(d) In light of the particular challenges of autonomous weapons systems, including potential for self-learning that could introduce a risk of unpredictability, weapons reviews should be conducted with a full understanding of the weapons’ capabilities and limitations, in light of its normal or expected uses and sufficient confidence about its effects in those circumstances.
(e) Persons conducting the legal review should understand the likely effects of employing the weapon in different operational contexts. Such expectation should be produced through realistic system developmental and operational test and evaluation.
5. Where feasible and appropriate, inter-disciplinary legal, military and ethical perspectives must be integrated in research and development of autonomous weapons systems, including through independent ethics reviews bearing in mind national security considerations and restrictions on commercial proprietary information.
6. States are encouraged to identify, adopt and implement guidelines and to share, on a voluntary basis, information and good practice on the conduct of legal reviews of autonomous weapon systems.
