AWS Legal Review Series – Introduction
In recent years, discussions about the legal compliance of various novel military uses of technology have shone a spotlight on something that used to be the obscure province of military lawyers: the legal reviews of new weapons, means and methods of warfare. Also known as Article 36 reviews, they are a legal obligation of States party to Additional Protocol I (AP I) to the Geneva Conventions. Article 36 of AP l states,
In the study, development, acquisition or adoption of a new weapon, means or method of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party.
Rapid technological developments have inspired book-length engagement with the background, interpretation, and application of this provision, as well as the practice of States not party to AP I in carrying out similar reviews. Meanwhile, the peculiarities of conducting legal reviews of cyber capabilities have been discussed extensively (for example, here, here and here). The question of what amounts to a weapon, means or method of warfare has also garnered special attention in connection with cyber capabilities and human enhancement.
Against this background, it should come as no surprise that legal reviews feature prominently in ongoing debates about the regulation of autonomous weapon systems and military uses of artificial intelligence. Many argue that the existing law of armed conflict, including legal reviews as one of the implementing mechanisms, remains inadequate in the face of such technologies and that developing new law has become imperative. Many others think that more clarity about the existing law would be more helpful. But there is widespread agreement that the diffusion of autonomous functionality and artificial intelligence across military systems poses conceptual and methodological challenges for the practice of legal reviews.
Australia has taken a particular interest in these challenges. The Australian Department of Defence convened a multistakeholder expert meeting on the legal review of autonomous weapon systems in March 2023 and will organise a follow-up meeting in April 2024. This Articles of War series addresses some of the issues that arose during and after the first meeting, and that might be of broader interest. These include questions about the transparency of the weapons review process generally, the relevance of non-legal considerations in the review process, the methodology of approaching autonomous functionality, and the place of legal reviews in the debates about autonomous weapons under the auspices of the Convention on Certain Conventional Weapons.
Our series begins with a post by Colonel Damian Copeland advocating a functional approach to legal reviews of autonomous weapons. Next, Dr. J.F.R. Boddens Hosang explores the Netherlands’ experience with offering greater transparency in reviews of means and methods of warfare. Then, Group Captain Tim Wood includes his thoughts on non-legal considerations relevant to legal reviews. The series concludes with one of us discussing the significance of legal reviews in the deliberations of the Group of Governmental Experts on Lethal Autonomous Weapon Systems. We hope these posts provide Articles of War readers with a sense of both the current state of legal debate, as well as ideas for future developments in this pressing and timely subject
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Rain Liivoja is a Professor and Deputy Dean (Research) at the University of Queensland Law School, where he leads the Law and the Future of War research group.
Sean Watts is a Professor in the Department of Law at the United States Military Academy, Co-Director of the Lieber Institute for Law and Land Warfare at West Point, and Co-Editor-in-Chief of Articles of War.
Photo credit: Tech. Sgt. James Bentley
