Greater ambiguity lies with the understanding of the terms ‘means or methods of warfare’. These definitions most commonly encompass all those objects that are intended to directly cause harm to persons or damage to objects. States’ national definitions include a broad range of weapons-from traditional weapons, such as firearms, to munitions, missiles, non- or less-lethal weapons, and delivery systems. For example, in 2017, the Netherlands and Switzerland stated that ‘what else should fall under the category of means apart from, of course, weapons (…), that is what needs to be reviewed, is up for debate’.Īrguably, the term ‘weapons’ has been the easiest of the three terms to define. Drafters of the Protocol intentionally left the scope open to be sufficiently inclusive of a wide variety of military items, and to prevent States from evading or circumventing this prohibition by developing or defining new war-waging tools with distinct capabilities.Īt the same time, this choice may have created some inconsistency in the Protocol’s application and lack of clarity in regards to which items shall be reviewed. There is no common definition of these terms nor does another provision or the preamble of the Protocol provide context to clarify their meaning. ![]() The AP1 itself does not define the key terms: ‘a new weapon, means or method of warfare’. Terminology of weapons under pressure: fleshing out the scope of Article 36 review We need not a review of weapons, but a review of ‘technologies of warfare’, as the ICRC also calls them, a term that is adaptive to the modern battlefield, inclusive of both current and future military developments, and highlights a broad scope of review in the spirit of Article 36’s rationale. We need to move on from describing Article 36 as strictly requiring a weapons review and acknowledge that the choice of non-weaponized technologies may influence militaries’ offensive and defensive capabilities just as much as the choice of weapons. In the words of Mary Ellen O’Connell: ‘we need a radical shift about how we think of weapons!’ We need a shift to consider technologies that may be far removed from the battlefield, are not weaponized in the traditional sense, and nevertheless, significantly contribute to the conduct of hostilities. So let’s take a step back and unpack a question that is often glossed over and assumed by international legal scholars and State experts: what specifically are the ‘weapons, means or methods of warfare’ about which these regular debates are held? This narrative, however, is overly simplistic. ![]() There is a prevailing tendency among States and scholars to call it the ‘weapons review’, as if non-weaponized items were excluded. ![]() To answer this question, I point to and examine a key provision in international humanitarian law that reflects the limited freedom of States to select means or methods of warfare: Additional Protocol I (API) Article 36, which obliges State Parties to ensure that the question of the legality of ‘a new weapon, means or methods of warfare’ is reviewed with care during development or acquisition and before use and deployment. Non-weaponized AI technologies, such as decision aids or military human enhancement technologies, are frequently overlooked and lack a suitable forum.īut is this weapons-focused approach justified from a legal perspective? Despite the lack of a shared definition, LAWS are most commonly referred to as weapon systems that can select and attack targets without human intervention, a focus on weaponization that is even tautologically emphasized by the inclusion of ‘lethal’ in the name of the technology in question. However, despite the multitude of different AI applications, international fora – for example, the Convention on Certain Conventional Weapons (CCW) Group of Governmental Experts (GGE) on Lethal Autonomous Weapons Systems (LAWS) – focus exclusively on AI applications to weaponized systems. ![]() The emergence of artificial intelligence (AI) technologies and their use in conflicts is a topic of rising importance in international debates. Shifting the narrative: not weapons, but technologies of warfare.
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