New weapons: accounting for the legal weapon review in R&D
International humanitarian law requires states to ensure that the use of "a new weapon, means or method of warfare" is authorised. To comply with this obligation, when new weapons are studied with a view to equipping their armed forces, they must undergo a legality review. Companies designing equipment for the armed forces must include this review at the research and development stage.
WHY SHOULD THE DEFENCE INDUSTRY TAKE THE REVIEW INTO CONSIDERATION?
While the manufacture, trading and intermediation of military equipment are regulated and require authorisation (the AFCI), the legality test must be incorporated from the research and development stage with the aim of designing technologies that the armed forces can actually acquire. Indeed, a weapon that would not pass the test would be excluded from any acquisition procedure. Taking this constraint into account from the research and development stage onwards ensures that the technology meets the characteristics required by the armed forces, and that any necessary corrections can be made.
FORBIDDEN WAPONS AND TECHNOLOGIES
Two types of limits exist on the type of weapons states may use:
the limits imposed by the general principles of the laws of armed conflict, which apply to all state;
and those imposed by specific legal instruments, treaties and conventions that apply to states that have agreed to be bound by them.
WEAPONS PROHIBITED BY THE GENERAL PRINCIPLES OF THE LAW OF ARMED CONFLICT
Among the principles of the laws of war taken into account for the legal review are the principle of the prohibition of unnecessary suffering and that of distinction
Despite the many disagreements one may find in the laws of armed conflict, certain principles have acquired the status of custom and apply universally to all states. Two of these are taken into account in the legal review of weapons: the principle of humanity, or the prohibition of unnecessary suffering; and the principle of distinction. In addition, the impact of weapons on the environment is also likely to influence control.
1. Weapons causing unnecessary suffering
Article 35 of Additional Protocol I to the Geneva Conventions sets out the principle of humanity as a framework for the weapons that may be used against combatants. It is thus " prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering."
This prohibition includes, but is not limited to, the following:
poison ;
blinding lasers;
weapon the primary effect of which is to injure by fragments with the result, for instance, of disseminating fragments of glass in the human body;
incendiary weapons, such as flamethrowers, those containing napalm, which causes severe burns, or white phosphorus, which can asphyxiate.
2. Weapons breaching the principle of distinction
Another cardinal principle of the law of armed conflict is the principle of distinction, which requires a distinction to be made between the civilian population and combatants, and between civilian objects and military objectives. Weapons that do not enable the armed forces to respect this principle would therefore de facto be illegal.
Article 51 of Additional Protocol I provides that:
Indiscriminate attacks are prohibited. Indiscriminate attacks are:
(…)
b) those which employ a method or means of combat which cannot be directed at a specific military objective; or
c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol;
Weapons prohibited under this principle include:
missiles without navigation systems, or with too wide a perimeter of attack. The British Manual of the Law of Armed Conflict includes in this list missiles "that are so inaccurate that they cannot be directed at a military target", citing as an example the Scuds used during the Gulf War;
bacteriological weapons, whose effects cannot be contained;
mines laid on the ground regardless of the target;
explosives attached to balloons with no directional control.
3. Weapons causing environmental damage
Two instruments are designed to protect the environment in armed conflict, each with a distinct objective. On the one hand, Article 35(3), Additional Protocol I, aims to prohibit "methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment." On the other hand, the Environmental Modification Convention (ENMOD) aims to prohibit the modification of the environment and weather for military purposes. Weapons whose use would impede respect for these principles would therefore be prohibited.
WEAPONS PROHIBITED BY TREATIES AND CONVENTIONS
In addition to general principles, other prohibitions are introduced by specific instruments, treaties and international conventions to which certain states have wished to adhere. Some insist on the prohibition of certain technologies, the use of which would in fact be contrary to the general law of armed conflict. Others extend the prohibition to weapons, means and methods that the general principles of international law would not prohibit.
In addition to the general principles, some prohibitions are also introduced by specific instruments, treaties and international conventions to which certain states have wished to adhere.
These include:
the 1972 Biological and Toxin Weapons Convention (BTWC);
the 1993 Chemical Weapons Convention (CWC); or
the 2008 Convention on Cluster Munitions.
This body of texts, to which France is a party, results in or insists on the prohibition of, among other things:
poison;
blinding lasers;
weapon the primary effect of which is to injure by fragments with the result, for instance, of disseminating fragments of glass in the human body. Already contrary to the principle of the prohibition of superfluous evils, these weapons were subsequently the subject of a convention dedicated to their prohibition;
cluster munitions, defined as a conventional munition that is designed to disperse or release explosive submunitions;
anti-personnel mines, defined as those designed “to be exploded by the presence, proximity or contact of a person and that will incapacitate, injure or kill one or more persons”
chemical weapons;
biological and bacteriological weapons.
THE LEGAL REVIEW
Each state develops its own procedure for complying with its obligations. Some countries, including the United States, the United Kingdom and France, have published their legal review procedures. In France, ministerial instruction n°6255/ARM/CAB of 31 October 2019, relating to the examination of the lawfulness of new weapons and new means and methods of warfare, details this procedure.
Which technologies?
Any offensive or defensive device designed directly or indirectly to kill, damage or neutralise people or property is subject to the legal review, including weapons and means of all types, whether lethal or not, intended for anti-personnel or anti-material use.
The scope is therefore broad, covering heavy, light and small-calibre weapons, as well as weapon systems and, more broadly, any technology designed to damage and neutralise property, injure and kill. The review also covers both technologies and doctrines of use.
“New” weapons, means and method
A weapon, means or method is deemed to be new if the army examining it does not have it.
When is the legal review conducted?
The legal review is carried out at the time of the study, development, acquisition or adoption of these new weapons, means or methods.
By whom?
The State is responsible for carrying out the review, and cannot delegate its implementation.
How?
The French legal review comprises two phases. A preliminary check, carried out by the Defense Staff (EMA) and the Directorate General of Armaments (DGA), consists firstly of determining whether the weapon falls within the scope of the review. If so, the actual legality check is carried out by a committee made up of the EMA, the DGA and the Legal Affairs Directorate.
There are three possible outcomes:
The weapon, means or method is deemed legal, and the examination is then closed.
The weapon, means or method is not contrary to international law in all circumstances. In this case, "technical adaptation of weapons projects or doctrines of use" may ensure that it is lawful.
The weapon, means or method is contrary to international law in all circumstances. In this case, it is rejected.
CONCLUSION
Companies developing military technologies face a number of challenges in incorporating the legal review.
Firstly, each state has its own procedure. A company wishing to offer its technology to several armed forces must therefore comply with each procedure.
In addition, companies have to take account the way in which each state interprets the obligations imposed on it. This is the case, for example, with the prohibition on "causing unnecessary suffering", the contours of which are not the subject of consensus. Among other things, this is the result of semantic variations from one text to another, with some prohibiting weapons likely to cause unnecessary suffering, while others prohibit weapons designed to do so. Similarly, some states adopt ambivalent positions on the value of treaties. This is the case, for example, of the United States, which does not recognise in Article 35(3) of Additional Protocol I, referred to above, a manifestation of customary law that would apply to all states.
Taking these challenges into account, and incorporating from the R&D stage the legal review that States are obliged to exercise over new weapons, therefore enables companies to direct their research and ensure that resources are allocated appropriately. The more innovative the technology being developed, the more essential it is to examine its legality.
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