Article 36 reviews and addressing Lethal Autonomous Weapons Systems

By Elizabeth Minor

For the CCW’s latest informal meeting of experts on LAWS, this briefing paper looks at national level legal reviews of new weapons, means and methods of warfare under the framework of article 36 of Additional Protocol I to the Geneva Conventions, in the context of international discussions on autonomous weapons systems.

A number of states have suggested that action around national legal reviews could constitute a basis for addressing the serious concerns that LAWS raise, as articulated by states, international organisations and civil society. Attention to improving and widening the implementation of weapons reviews, and states’ sharing of their procedures, is welcome and necessary.

This paper provides an analysis suggesting that national reviews are, however, insufficient to deal with LAWS. It argues that multilateral agreement is essential in this area in order to provide clear boundaries for all states on technologies and practices that would fundamentally alter the use of force.

CCW activity around weapons reviews could usefully be separated from consideration of LAWS, and widened to consider the topic of reviews in relation to all weapons, means and methods of warfare. Indeed, proposals for the CCW to focus on weapons reviews have been made previously by civil society and international organisations, prior to the adoption of autonomous weapons as a topic for discussion at the CCW.

In summary:

International rules must be agreed on LAWS, given their global implications and the serious concerns expressed about them by states, international organisations and civil society: decisions must not reside solely with states considering the acquisition of LAWS.
Without such rules, national reviews are currently an insufficient response to LAWS. Narrow interpretations and inconsistent outcomes across states, of which there is a high risk in this context, could lead to the introduction of unacceptable technologies.
The challenge of LAWS relates to the unprecedented shift in human control over the use of force that they would facilitate, rather than to specific weapons systems. National reviews may be too narrowly conceived in current practice to address the broad concerns raised by LAWS, including ethical, political and legal issues beyond IHL. It would be inappropriate to delegate these decisions away from multilateral discussions on to weapon reviewers – and this type of concern about the limits to effectiveness of weapon reviews is part of the reason the CCW was developed in the first place.
Only a small minority of states are currently known to conduct weapon reviews. Continuing discussion of LAWS towards multilateral agreement would be a more direct and effective approach to addressing LAWS than increasing implementation of reviews more generally, which will require significant development of capacity around the world. The CCW has a role in making rules on weapons issues where national reviews may prove insufficient, and this is a reason why LAWS are on the CCW agenda.
More prominence should be given to weapon reviews in national and international discussion on the relationship between society, technology and violence. Focus on the importance of legal reviews and the need to raise standards and build common understandings is therefore useful and necessary. For its full and effective consideration, this topic should be separated from discussion of LAWS.
The International Human Rights Clinic at Harvard Law School in partnership with Article 36 has been investigating how lessons from other regulatory regimes could contribute to a conversation on how humanitarian concerns can be better addressed in weapon reviews. These suggest the benefits of: multidisciplinary reviews; considering implications for human health; considering making certain results or processes public; including multiple phases of analysis in reviews; putting procedures in place to conduct ongoing review automatically and to trigger further review where new evidence of harm comes to light; involving independent bodies in enforcing compliance; and establishing clear lines of political accountability for the outcome of review processes

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Article 36 reviews and addressing Lethal Autonomous Weapons Systems

Briefing paper

April 2016