The legal review of weapons: what defense companies need to know
International humanitarian law (IHL) requires states to ensure that the use of new weapons, means, or methods of warfare complies with legal standards. This obligation includes conducting a legal review of weapons before they are developed, acquired, or deployed. For companies designing military technologies, integrating this review at the research and development (R&D) stage is essential and strategic.
Why should the defense industry prioritize the legal review of weapons?
Military equipment manufacturers must account for the legal review early in the development process. While activities such as manufacturing, trading, and brokering military technologies require authorizations (e.g., AFCI), the legal review ensures that armed forces can acquire and use the technology without violating IHL.
Weapons that fail the legal review are excluded from acquisition procedures. Addressing legal constraints at the R&D stage enables companies to design technologies that meet military requirements and proactively make necessary adjustments.
Weapons and technologies prohibited by international humanitarian law
Two primary legal frameworks limit the types of weapons that states may use:
General principles of the law of armed conflict
These universal principles apply to all states under customary international law.Specific treaties and conventions
These agreements bind only states that have ratified them and often extend prohibitions beyond customary law.
Weapons prohibited by general principles of the law of armed conflict
The legal review considers key principles that regulate warfare, including the prohibition of unnecessary suffering, distinction between civilians and combatants, and environmental protection.
1. Prohibition of unnecessary suffering
Weapons must not cause superfluous injury or unnecessary suffering. Article 35 of Additional Protocol I to the Geneva Conventions prohibits:
Poison;
Blinding lasers;
Weapons that disperse harmful fragments, such as glass shards;
Incendiary weapons like flamethrowers and napalm.
2. Principle of distinction
Weapons must enable armed forces to distinguish between combatants and civilians. Those that fail to meet this requirement are illegal. Examples include:
Missiles without navigation systems or with excessively wide attack perimeters;
Bacteriological weapons with uncontrollable effects;
Indiscriminate use of landmines.
3. Environmental protection
Weapons causing widespread, long-term, and severe environmental harm are prohibited under Article 35(3) of Additional Protocol I and the Environmental Modification Convention (ENMOD). Examples include technologies that modify the weather for military purposes.
Weapons prohibited by treaties and conventions
In addition to general principles, specific treaties introduce further prohibitions. Key instruments include:
The 1972 Biological and Toxin Weapons Convention (BTWC);
The 1993 Chemical Weapons Convention (CWC);
The 2008 Convention on Cluster Munitions.
These treaties prohibit weapons such as:
Biological and chemical weapons;
Cluster munitions;
Anti-personnel mines;
Poison and blinding lasers.
France, as a signatory, ensures compliance with these instruments through its legal review procedures.
How does the legal review of weapons work?
Each state conducts its legal review according to its own procedure. For example, France has established a two-phase review process, detailed in Ministerial Instruction No. 6255/ARM/CAB of October 31, 2019.
Scope of the legal review
The review covers all offensive and defensive technologies designed to kill, damage, or neutralize people or property. This includes:
Light and heavy weapons;
Small-caliber arms;
Weapon systems and associated doctrines of use.
A weapon, means, or method is considered "new" if it is not already in use by the reviewing state’s armed forces.
Stages of the review
Preliminary check
Conducted by the Defense Staff (EMA) and the Directorate General of Armaments (DGA) to determine if the technology falls under the scope of the legal review.Comprehensive legal review
Carried out by a committee including EMA, DGA, and the Legal Affairs Directorate. Three outcomes are possible:Approval;
Conditional approval with technical modifications;
Rejection due to inherent illegality.
Challenges for companies conducting legal reviews
Military technology companies face several challenges when incorporating the legal review:
Diverse procedures
Each state has its own legal review process. Companies targeting multiple markets must comply with varying standards.Interpretation variability
Legal principles like the prohibition of unnecessary suffering are interpreted differently by states. For example:Some texts prohibit weapons likely to cause unnecessary suffering, while others prohibit weapons designedto do so.
The United States does not recognize certain IHL provisions, such as Article 35(3) of Additional Protocol I, as binding customary law.
Resource allocation
Addressing legal requirements during R&D ensures resources are invested efficiently and technologies meet compliance standards early on.
Recommendations for defense companies developing military technologies
To overcome these challenges and ensure compliance, defense companies should follow these recommendations:
1. Integrate the legal review early in the R&D process
Evaluating the legality of technologies during the design phase reduces the risk of costly modifications later.
2. Conduct internal pre-assessments
Establish an internal process to evaluate new technologies against IHL principles before submitting them for an official review. This can highlight issues early and save time.
3. Collaborate with legal experts
Work with legal consultants specializing in IHL to navigate the complexities of compliance. These experts can provide insights into specific treaties and principles.
4. Monitor international legal developments
Stay updated on changes in international humanitarian law, including amendments to treaties and evolving interpretations of key principles.
5. Develop multi-jurisdictional strategies
If targeting multiple countries, ensure compliance with the legal review processes of each state. Understand how interpretations of IHL differ across jurisdictions.
6. Prioritize transparency and documentation
Maintain thorough records of all efforts to ensure compliance. Documentation can demonstrate good faith and protect the company in case of disputes.
7. Train R&D teams
Educate technical teams on the basics of IHL and legal review requirements. Awareness can help them design compliant technologies from the outset.
Conclusion: why defense companies must prioritize the legal review of weapons
Incorporating the legal review of weapons during R&D is critical for companies developing military technologies. By aligning with international humanitarian law and each state’s procedures, companies can mitigate legal risks, enhance credibility, and improve market readiness. As innovations in military technology advance, the legal review becomes indispensable for ensuring ethical and lawful development.