Legal basis
Australia signed Additional Protocol I on 7 December 1978 and ratified it on 21 June 1991.
Following a period of informal process since its ratification of AP I, Australia implemented a formal legal review process in 2005. This process was implemented by Defence Instruction (General) 44-1: Legal Review of New Weapons, Means and Methods of Warfare. In May 2020, Australia updated its 2005 instruction with a new Guide (the Australian Guide) designed to elaborate specific responsibilities and enable the legal review of a defence capabilities that were assessed to be a new weapon, means or method of warfare.
The Australian guide was expanded in 2023 to include two new parts. Part 1 reflected the content of the May 2020 guide and was intended to inform those responsible for the procurement of new weapons of their responsibilities within Defence for conducting legal reviews. It also introduced a new Part 2 which explains the scope of Article 36 of AP I as traditionally interpreted and applied by Australia. Part 3, added in April 2024, includes additional considerations required in the review of weapons enhanced by artificial intelligence (AI) and expands the legal review process across the lifecycle of such capabilities. It is anticipated that new Parts will be added to address the legal review of new weapons, means and methods of warfare designed for use in the cyber and space domains.
In addition to expanding the Australian Guide, in 2023 a new legal review report form (AF 172: Article 36 Legal Review Report) was introduced to streamline and standardise the legal review reporting process.
Review authority
Legal reviews of new weapons, means and methods of warfare are undertaken by the Directorate of Operations and International Law of the Department of Defence.
Australia has introduced a one-day Article 36 Weapon Review Certification Course run by the Directorate of Operations and International Law to train ADF legal officers to conduct legal reviews. The course is in two parts, with the first part dedicated to the law and the second to practice. The Directorate of Operations and International Law intends to release a public version of this course.
Scope of review
During the preliminary step of the review process, the reviewer will determine whether a capability falls within Australia’s definitions of “weapon” or “means of warfare” or “method of warfare” as provided in the Australian Guide. The relevant definitions are as follows:
Weapon: any arms, munition, device, whether tangible or intangible, designed or intended to be used to cause:
- injury to, or death of, persons; or
- damage to, destruction of or neutralisation of objects.
Means of warfare: includes weapons as well as weapon systems, which includes all related equipment, materials, and delivery mechanisms necessary for a weapon to function as intended.
Methods of warfare: the manner in which weapons and certain capabilities are used in warfare to harm, destroy, or neutralise the enemy.
Materially modification: An existing capability is considered to be materially modified when its function, intended use, or anticipated effects are altered from that originally considered during an Article 36 legal review.
Standard of review
In Step 1 of the review process, the reviewer will assess whether the weapon, means or method of warfare is specifically prohibited or restricted by a treaty to which Australia is a party or by customary international humanitarian law.
In Step 2 of the review process, the reviewer will assess whether the weapon, means or method of warfare is generally prohibited or restricted under treaties to which Australia is party or by customary international humanitarian law, including:
- Is the weapon, means or methods of warfare indiscriminate by nature?
- Is the weapon, means, or methods of warfare of a nature to cause suffering or injury beyond what is necessary to achieve a legitimate military objective?
- Does the weapon, means or methods of warfare cause widespread, long-term and severe damage to the natural environment?
Conduct of review
The time frame for the conduct of a legal review is informed by the time frame for the acquisition of a new weapon, means and methods of warfare per the Australia Defence Force’s One Defence Capability System (ODCS). While a determination of legality through a legal review is required prior to use of a new weapon, means or method in armed conflict, they also serve as important tools to inform capability development and acquisition decisions during all ODCS.
The Australian Guide indicates that the following information is required to inform a legal review:
- a description of the capability and its function(s);
- its intended use(s);
- its anticipated effects;
- an explanation of how a capability is intended to cause injury/death to combatants and/or damage or neutralisation to objects;
- any characteristics or features that assist the capability with identifying and striking its intended target; and
- evidence the capability is able to accurately and effectively engage/prosecute its intended target.
Autonomous weapon systems
Part 3 of the Guide outlines ‘a functional review’ step which supplements the analysis under Part 2. Where a weapon function (such as target tracking, classification, selection and engagement) is enabled or performed by software or artificial intelligence (‘AI’), legal review seeks to determine whether the function (or functions) can be performed in accordance with Australia’s obligations under applicable international law. This functional review step first identifies the targeting rules under IHL that govern the specific AWS functions. It then determines whether a commander or operator can rely on the AWS to perform these functions, in the circumstances of the weapon’s normal or expected use, in compliance with those IHL rules. This determination considers different operational and environmental contexts. Lastly, it considers whether the AWS can be employed in accordance with other relevant laws and national policies.
Point of Contact
Directorate of Operations and International Law
Military Legal Service
Defence Legal
Department of Defence
PO Box 7911
Canberra BC ACT 2600
weapons.legalreview@defence.gov.au
defencelegal.dosl@defence.gov.au
References
Key documents
Australia’s Guide to the Legal Review of New Weapons, Means or Methods of Warfare
Department of Defence, 10 April 2024
AF172: Article 36 Legal Review Report
Department of Defence, 16 November 2023
Historical documents
- Defence Instruction (General) OPS 44-1: Legal Review of New Weapons, Means and Methods of Warfare
(Department of Defence, 21 June 1991) - Defence Instruction Administrative Policy
(Department of Defence, 25 July 2020) ¶¶ AG7.6–AG7.7 - Defence Legal Review of New Weapons Guide
(Department of Defence, May 2020) - The ADF Guide to the Legal Review of New Weapons, Means and Methods of Warfare
(Department of Defence, November 2023)
Further references
- Australia, The Australian Article 36 Review Process (20 August 2018) CCW/GGE.2/2018/WP.6
- Sarah-Jane White, “The Legal Review of Weapons, Means and Methods of Warfare” (Presentation to GGE LAWS, October 2020)
- Damian Copeland, “AWS Legal Review Series – A Functional Approach” Articles of War (4 March 2024)
