GE.18-14285(E)
Second Session
Geneva, 27 - 31 August 2018
Item 6 of the provisional agenda
Other matters
The Australian Article 36 Review Process
Submitted by Australia
Introduction
1. Article 36 of the Protocol Additional to the Geneva Conventions of 12 August 1949,
and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977
(Additional Protocol 1), provides:
“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.”
2. As a State Party to Additional Protocol 1, Australia is obliged to determine whether
employment by Australia of a new weapon, means or method of warfare (hereinafter all
referred to as ‘weapon’) would, in some or all circumstances, be prohibited by Additional
Protocol 1 or any other rule of international law applicable to Australia. Article 36 obliges
State Parties to undertake weapon reviews, but defers to them to determine how they should
meet their obligation. This document provides an outline of Australia’s process for
conducting reviews of new weapons under Article 36 (hereinafter ‘Article 36 Reviews’).
This process is an example of one form of control measure that could be applied to the
development of Lethal Autonomous Weapon Systems (LAWS).
3. Australia’s position on Article 36 Reviews. Australia is committed to upholding its
obligations under international law. In accordance with Common Article 1,
1
Australia is
legally bound to respect and ensure respect for the Geneva Conventions of 12 August 1949
in all circumstances, including a good faith performance of the legal obligation required by
Article 36 of Additional Protocol 1.
2
Accordingly, Australia’s Chief of the Defence Force
(CDF) has mandated
3
that the actions of the Australian Defence Force (ADF) with respect
to the development and procurement of weapons and their intended use in armed conflict
are to be consistent with Australia’s obligations under all applicable treaties and customary
international law (CIL), in particular under the law of armed conflict (LOAC). Furthermore,
1
Common Article 1 of the Geneva Conventions of 12 August 1949.
2
See also Vienna Convention on the Law of Treaties, Article 26.
3
Defence Instruction (General) Operations 44-1 – ‘Legal Review of New Weapons’ – dated 02 June
2005 (DI(G) OPS 44-1).
CCW/GGE.2/2018/WP.6
Group of Governmental Experts of the High
Contracting Parties to the Convention on
Prohibitions or Restrictions on the Use of Certain
Conventional Weapons Which May Be Deemed to
Be Excessively Injurious
or to Have Indiscriminate Effects
30 August 2018
English only
CCW/GGE.2/2018/WP.6
2
CDF has directed that all new weapons that the ADF intends to study, develop, acquire or
adopt must undergo an Article 36 Review to determine whether they are consistent with
Australia’s international legal obligations prior to them being authorised for operational
use.
4. Who is responsible for conducting the Article 36 Review? The Director General
Australian Defence Force Legal Services (DG ADFLS - a one-star military lawyer) has
responsibility for conducting Article 36 Reviews in accordance with the CDF’s direction.
On behalf of DG ADFLS, Article 36 Reviews are conducted by weapons law experts in the
Directorate of Operations and Security Law (DOSL).
4
DOSL is a Defence Legal directorate
outside of the single service (Navy, Army, and Air Force) and ADF operational chains of
command to ensure its independence. DOSL conducts Article 36 Reviews in close
cooperation with those involved in the study, development, acquisition and/or use of a
weapon.
5. Why does DOSL undertake Article 36 Reviews? DOSL is staffed by senior tri-
service military (from the Navy, Army, and Air Force) and civilian lawyers with expertise
in weapons law. These lawyers receive internal and external education as well as on-the-job
training to enhance their weapons law proficiency, and/or to ensure their currency, for the
purposes of undertaking Article 36 Reviews. All Australian military and civilian lawyers in
DOSL are qualified legal practitioners with current practising certificates. The majority of
lawyers possess significant military and operational experience.
6. Having DOSL as the primary Directorate responsible for the conduct of Article 36
Reviews ensures retention of corporate knowledge
5
and experience, as well as promoting
standardisation of Article 36 Review processes and quality consistency. This includes
ensuring that DOSL as an entity retains in-depth knowledge of:
(a) Australian legal positions (i.e. based on weapons law Treaties, accepted CIL),
weapons law practices, weapons development and employment;
(b) the operation of weapons (i.e. historical weapons use, extant order of battle,
technical specifications, current strategy and methodology for use, functionality);
(c) weapons data (i.e. data capture points, requisite assessable data, data
interpretation, application of data to specifications, relevance of performance standards and
reliability to legal obligations, insufficient data processes);
(d) ballistic information (i.e. ballistics data, analysis and assessment, wound
ballistics methodology); and
(e) awareness of and access to subject matter experts.
7. In this context, DOSL is uniquely positioned within the Australian system to
conduct Article 36 Reviews of new weapons, as well as implement any necessary reforms
required for the review of emerging technologies such as autonomous weapon systems
(AWS). Periodic internal reviews, and the flexibility to adapt practices, ensures that the
Article 36 Review process remains relevant for new and emerging technologies.
8. Who conducts the Article 36 Review? Article 36 Reviews are primarily conducted
by a two-person team comprising a Legal Reviewer (a Major or Lieutenant Colonel military
lawyer, or equivalent) who prepares the Article 36 Review for assessment by an Article 36
Assessor (a Colonel military lawyer, or equivalent). As part of the review process, DOSL
will seek subject matter expertise input for technical guidance from Defence stakeholders
regarding the weapon being reviewed including; technical specifications, normal or
4
DOSL reports directly to DG ADFLS, and is responsible for the provision of strategic legal advice to the
Department of Defence. Where an Article 36 Review goes beyond the application of accepted principles of law,
addresses unsettled law, or there is some other sensitivity or consideration of note DOSL is obligated to seek
comment and/or approval from the Attorney General’s Department, the Department of Foreign Affairs and Trade
or the Australian Government Solicitor.
5
DOSL maintains a register of all Article 36 Reviews. DOSL holds a repository of all Article 36 Reviews it
conducts.
CCW/GGE.2/2018/WP.6
3
anticipated use, analysis and assessments of weapons effects, and any other areas of
expertise deemed relevant for the Article 36 Review. DOSL may also consult with the
Attorney Generals Department, the Department of Foreign Affairs and Trade, and the
Australian Government Solicitor for specific legal and ethical guidance. For sensitive
and/or technically complex weapons, the Article 36 Review may be undertaken by a multi-
disciplinary board rather than the traditional two-person legal team.
9. What is to be reviewed under an Article 36 Review? The Article 36 Review of a
weapon is a mandatory step before a weapon
6
is cleared for use by the ADF. This means
that an Article 36 Review is required for all proposed new weapons ‘to determine whether
the new weapons or their intended use in combat are consistent’
7
with Australia’s legal
obligations. Furthermore, an Article 36 Review is required for off-the-shelf acquisitions
(even if they have been reviewed and/or used by another State), adaptations and
modifications of existing weapons, and where Australia’s legal obligations relevant to that
weapon have changed (i.e. by signing a new treaty). As a matter of practice DOSL will also
review instruments and platforms which support the employment of a weapon, as well as
new methods of warfare contained within Defence doctrine, instructions or documented
procedures.
10. Single or multi-stage Article 36 Review process. Australia’s Article 36 Reviews
may be conducted as a single final review (including as a re-review), or as a multi-stage
review process - with one or more interim Article 36 Reviews culminating in a final Article
36 Review.
8
A final Article 36 Review is a full review of all relevant information, in
particular the technical specifications, test and evaluation data, and intended employment
literature to determine the legality of the weapon, means or method for operational use. A
single review would be undertaken where the study, development, acquisition or adoption
is simple, expedited or otherwise limited in scope. For more complex weapons procurement
processes it would be expected that a multiple stage process - involving one or more interim
reviews prior to a final review - would be required. Interim Article 36 Reviews provide
legal support and guidance to the various early stages of capability development,
commencing at the outset of the process,
9
and continuing through, until a final review is
undertaken. Interim reviews can and will be provided when required.
11. When does Australia conduct an Article 36 Review? Article 36 Reviews
commence once a request is made by those responsible for the study,
10
development,
acquisition or adoption of a new weapon, or the adaptation or modification of an existing
one. Article 36 Reviews are undertaken early in the capability development process,
primarily to avoid wasting capability development resources and government funds on
projects where the Article 36 Review may lead to a negative outcome or to the imposition
of significant operational restrictions. To ensure that those responsible for the various
methods of developing capability are aware of Article 36 Reviews, DOSL actively
informs/educates capability developers, scientists and managers on their responsibilities
consistent with Article 36 and Australia’s international legal obligations. Additionally, the
requirement to conduct Article 36 Reviews is explicitly stated in various Defence
6
For Australian purposes, DI(G) OPS 44-1 defines a weapon as ‘an offensive or defensive instrument of combat
used to destroy, injure, defeat or threaten’. According to DI(G) OPS 44-1 this is to be read broadly to cover: ‘any
device, method or circumstance’ that is intended to be used, and capable of causing, directly or indirectly, death or
injury to persons, or destruction of or damage to objects to destroy, injure or defeat an enemy’, and includes
weapon systems, damaging or injuring mechanisms, computer systems designed to attack enemy computer
systems, and targeting devices . A weapon system is defined as a: ‘combination of one or more weapons with all
related equipment, materials, services, personnel and means of delivery and deployment (if applicable) required
for self-sufficiency’.
7
DI(G) OPS 44-1, p.1.
8
This process is the same regardless of whether a two-person legal team or a multi-disciplinary board conducts the
Article 36 Review.
9
For instance, an ADF project, addressing an identified capability gap, at the project funding stage (i.e. seeking
funds to develop the project) could seek an interim Article 36 Review of available weapon systems on the market
to ensure the validity of the project being undertaken prior to it reaching the formal study, let alone acquisition,
stage.
10
Australia applies ‘study’ as the precursor or first substantive step in development, acquisition or adoption.
CCW/GGE.2/2018/WP.6
4
publications including on the Law of Armed Conflict
11
and the capability development and
life cycle manuals (2006 and 2015). Once a request for an Article 36 Review is made, DG
ADFLS is accountable for ensuring that the relevant interim or final Article 36 Review is
promptly conducted.
12. What is the source of Australia’s Article 36 Reviews? The primary source of
Article 36 Reviews for Australia is the procurement process. Procurement of new weapons
follows the Capability Life Cycle (CLC). The CLC is the process of introducing,
sustaining, upgrading and replacing Defence capability. Normally a multi-stage Article 36
Review process is required to support the movement of weapons through the various CLC
phases (Strategy and Concepts,
12
Risk Mitigation and Requirement Setting,
13
Acquisition,
14
and In-Service).
15
As such it would be usual for Article 36 Reviews to occur at the major
‘gates’ (i.e. decision-points) of the CLC, including preliminary advice on the legality of a
capability (or capabilities) and any serious legal impediments impacting on the project (gate
‘0’); and then whether any of the proposed weapon options (gate ‘1’), or the specified
weapon option (gate ‘2’), would be unlikely to satisfy the legal requirements of the Article
36 Review process.
A Typical Multi-Stage Article 36 Review Process
13. Alternative avenues for Article 36 Reviews include: (i) rapid acquisition processes
(operational procurement), (ii) Service identified new methods or means, and (iii) any
policy mandates contained in new Defence Publications containing doctrine, instructions or
policies on new weapons or means, and the methods applied to them. Usually a single final
Article 36 Review would be sufficient for these alternate sources of weapons for review.
11
Australian Defence Doctrine Publication 06.4 —Law of Armed Conflict, dated 11 May 2006, at p.4-1, paragraph
4.2.
12
The purpose of this phase is to identify Defence capability needs.
13
The purpose of this phase is to progress capability options through the investment approval process.
14
The Acquisition Phase involves placing a contract with industry to acquire the required capability,
executing that contract and introducing the capability into service.
15
This phase involves supporting the capability through its in-service life including disposal (which
includes withdrawing the capability from service, managing the transition to a replacement (if
required) and final disposal of the Product).
Strategy &
Concepts
Risk mitigation &
Requirement
Setting
Acquisition
In-Service
Final
Article 36
Review
Gate ‘1’
Interim
Article 36
Review
Gate ‘0’
Interim
Article 36
Review
Gate ‘2’
Interim
Article 36
Review
CCW/GGE.2/2018/WP.6
5
14. What is considered in an Article 36 Review? The Article 36 Review
comprehensively considers Australia's legal obligations under specific and general
prohibitions found in LOAC, as well as obligations that are of a more regulatory nature.
15. An Article 36 Review will typically consider the following matters:
(a) A determination as to whether the capability is a weapon.
16
(b) An articulation of the normal use of the weapon at the time of evaluation.
(c) An articulation of the weapons specific technical details.
(d) An assessment of whether the weapon complies with the legal principles
outlined by International Court of Justice (ICJ) in its Advisory Opinion on the Threat or
Use of Nuclear Weapons.
17
The two-fold test requires an assessment of whether:
i. there is any international customary or treaty law applicable to Australia that
contains a specific prohibition against the threat or use of a weapon in general
or in certain circumstances.
18
ii. in the absence of a specific prohibition, is there a general prohibition against
the threat or use of a weapon in general or in certain circumstances, such that it
is:
of a nature to cause superfluous injury or unnecessary suffering;
capable of being used discriminately;
capable of being used proportionately;
expected to cause widespread, long term and severe damage to the natural
environment;
19
and
likely to be affected by current and possible future trends in the
development of international humanitarian law.
(e) An assessment of whether the weapon is contrary to the public interest, the
principles of humanity and the dictates of public conscience.
20
(f) An Article 36 Review conclusion with associated decision on clearance (or
not) of the weapon. The provided legal advice will normally be one of three options:
i. Article 36 clearance; or
ii. Article 36 clearance, but with conditions or limitations; or
iii. The weapon does not have Article 36 clearance.
16. Where the Article 36 Review provides a conditional clearance (or no clearance),
appropriate guidance can be provided to indicate what is necessary for the weapon to
achieve unconditional Article 36 clearance. On occasion, an outcome of the Article 36
Review may be a requirement that Defence supplement its existing orders, doctrine and
publications in order to ensure that the weapon is used in accordance with Australia's legal
obligations.
16
If a capability is determined not to be a weapon then a record will be made in writing that the capability does not
require an Article 36 Review.
17
Legality of the Threat or Use of Nuclear Weapons - Advisory Opinion of 8 July 1996", International Court of
Justice
18
Among other things, DOSL consider any reservations or declarations that Australia has entered upon ratification
of the treaty. DOSL also consider the prohibitions or restrictions on the use of specific weapons, means and
methods of warfare pursuant to CIL. DOSL assess both the weapon per se, and its anticipated use, against such
treaty law and CIL.
19
Additional Protocol 1, Article 35(3).
20
Additional Protocol 1, Article 1(2). Australia applies the Martens Clause in the narrow sense of preserving
customary international law. That is the Martens clause ‘prevents the assumption that anything which is not
explicitly prohibited by the relevant treaties is therefore permitted.’
