This entry has been drafted by a member of the APILS team on the basis of publicly available materials. Its content has been neither peer reviewed nor checked for accuracy by any government official.
Overview
Legal review practices in the US pre-date the adoption of AP I. The US is not a State party to AP I and does not regard Article 36 as reflecting customary international law. It engages in a robust practice of conducting reviews of the legality of weapons as a matter of domestic policy, and regards such reviews as good practice to facilitate the implementation of international law applicable to weapons and their use in armed conflict. Each of the military services is responsible for reviewing weapon systems it develops or acquires. The review process considers the following three questions: first, whether the weapon falls within a class of weapons that is specifically prohibited by customary international law and treaty law applicable to the US; second, whether the weapon’s intended use is calculated to cause superfluous injury or unnecessary suffering; and third, whether the weapon is inherently indiscriminate. Further, if the weapon is not prohibited, the review should also consider whether there are other restrictions (eg, domestic law and policy) on the weapon’s use that are specific to that type of weapon. Finally, it may be appropriate to advise whether further measures should be taken that would assist in ensuring compliance with law of war obligations related to the type of weapon being acquired or procured.
US Department of Defence (‘DoD’) DoD Directive 2311.01: DoD Law of War Program establishes DoD policy that ‘[t]he intended acquisition, procurement, or modification of weapons or weapon systems is reviewed for consistency with the law of war’. In January 2023, the DoD also revised DoD Directive 3000.09: Autonomy in Weapon Systems (‘Directive 3000.09’). This directive does not set out practice in conducting legal reviews; rather, it establishes DoD policy and assigns responsibilities for developing and using autonomous and semi-autonomous functions in weapon systems, including armed platforms that are remotely operated or operated by onboard personnel. Among other things, it provides that such systems will undergo rigorous hardware and software verification and validation (‘V&V’) and realistic system developmental and operational testing and evaluation (‘T&E’); and establishes guidelines designed to minimise the probability and consequences of failures in autonomous and semi-autonomous weapon systems that could lead to unintended engagements. Directive 3000.09 also establishes the Autonomous Weapon Systems Working Group to support senior authorities in the DoD in considering the full range of relevant DoD interests during the review of AWS and to advise on potential issues presented by such weapons during a potential senior-level policy review in accordance with the directive that would be supplementary to a legal review.
References
Key documents
- DoD Directive 2060.01: Implementation of, and Compliance with, Arms Control Agreements
(23 June 2020) - DoD Directive 2311.01: DoD Law of War Program
(2 July 2020) s 1.4(a) - DoD Directive 3000.03E: DoD Executive Agent for Non-Lethal Weapons (NLW), and NLW Policy
(25 April 2013; incorporating Change 2, 31 August 2018) encl 2, ss 4, 11(c) and 13 (l) - DoD Directive 3000.09: Autonomy in Weapons Systems
(25 January 2023) - DoD Directive 5000.01: The Defense Acquisition System
(9 September 2020; incorporating Change 1, 28 July 2022) s 1.2(v) - Department of the Air Force Instruction 51-401: The Law of War
(3 August 2018) pt 2 - Department of the Army Regulation 27-53: Legal Review of Weapons and Weapon Systems
(23 September 2019) - Secretary of the Navy Instruction 5000.2F: Defense Acquisition System and Joint Capabilities Integration and Development System Implementation
(26 March 2019) encl 3, ss 10–11
Historical documents
- DoD Directive 3000.09: Autonomy in Weapon Systems
(21 November 2012; cancelled by DoD Directive 3000.09, 25 January 2023) - DoD Instruction 5500.15: Review of Legality of Weapons Under International Law
(16 October 1974, cancelled by DoD Instruction 5000.2, 23 February 1991) - DoD Instruction 5000.2: Operation of the Defense Acquisition System
(23 February 1991; cancelled by DoD Instruction 5000.2, …) - DoD Instruction 5000.2: Operation of the Defense Acquisition System
(5 April 2002; cancelled by DoD Instruction 5000.2, 12 May 2003) - DoD Instruction 5000.2: Operation of the Defense Acquisition System
(12 May 2003; cancelled by DoD Instruction 5000.2, 8 December 2008) - DoD Instruction 5000.2: Operation of the Defense Acquisition System
(8 December 2008; cancelled by DoD Instruction 5000.2) - DoD Directive 5000.01: The Defense Acquisition System
(15 March 1996, cancelled by DoD Directive 5000.1, 23 October 2000) ¶ 4.2.10 - Department of the Air Force Instruction 51-402: Weapons Review
(13 May 1994; cancelled by Department of the Air Force Instruction 51-402, 27 July 2011) - Department of the Air Force Instruction 51-402: Legal Reviews of Weapons and Cyber Capabilities
(27 July 2011; cancelled by Department of the Air Force Instruction 51-402, 6 August 2018) - Department of the Army Regulation 27-53: Review of Legality of Weapons Under International Law
(1 January 1979; cancelled by Department of the Army Regulation 27-53, 23 September 2019)
Further resources
- Department of Defense, Law of War Manual (June 2015, updated July 2023) ch 6
- Department of the Army and United States Marine Corps, FM 6-27/MCTP 11-10C: The Commander’s Handbook on the Law of Land Warfare (August 2019)
- Department of Defense, Response to Stockholm International Peace Research Institute (SIPRI) “Questionnaire on Article 36 Review Process” (1 September 2017)
- Documents Reflecting U.S. Practice Related to Emerging Technologies in the Area of Lethal Autonomous Weapons Systems (11 June 2021)
- Vincent Boulanin and Maaike Verbruggen, SIPRI Compendium on Article 36 Reviews (SIPRI, December, 2017) 18–25
- W Hays Parks, “Conventional Weapons and Weapons Reviews” (2005) 8 Yearbook of International Humanitarian Law 55–142
- Michael W Meier, “Weapons Reviews: Current and Future Challenges” in Baldwin De Vidts and Gian Luca Beruto (eds), Weapons and the International Rule of Law: 39th Round Table on Current Issues of International Humanitarian Law (Sanremo, 8th–10th September 2016) (Franco Angeli, 2017) 93–100
