Why do countries conduct legal reviews?

For the 174 countries that are party to the First Additional Protocol (AP I) of the Geneva Conventions, there is an express obligation found in article 36. For those countries that are not parties to AP I, legal reviews are conducted as an indirect obligation to ensure compliance with other international law. For example, if a country is a party to the Cluster Munitions Convention, a legal review is conducted to ensure compliance with this convention. In both cases, countries develop national policies or issue directives describing the legal review process.

When are legal reviews conducted?

Legal reviews are conducted when a country acquires a new weapon. For those bound by AP I, this occurs during the ‘study, development, acquisition or adoption’ which generally aligns with the defence capability acquisition processes.

International law does not provide a definition of a weapon for the purposes of a legal review; therefore, countries typically create their own national definitions within their legal review policies. These definitions usually describe weapons as capabilities intended to:

(a) kill or injure combatants or

(b) destroy or damage military objectives.

In most cases, legal reviews are conducted prior to a final government decision whether to acquire a new weapon.

How are legal reviews conducted?

Legal reviews are conducted either by a legal review committee containing multi-disciplinary experts (including technical, medical, scientific, legal, operational) or by a single reviewer with advice from multi-disciplinary experts.

A legal review may be a single determination made prior to the acquisition of a new weapon or a multi-stage determination process during the study, development, acquisition or adoption.

Regardless of the methodology, a legal review will traditionally follow these steps:

1. Preliminary Step: The preliminary step will determine whether there is a legal obligation to conduct a legal review of a specific capability. This is usually determined by reference to the national definition of ‘weapon, means or methods of warfare’.

   Once the decision to conduct a legal review has been made, the Preliminary Step will also identify that weapon’s ‘normal or expected use’ and gather relevant technical and other data needed to conduct the review.

2. Step 1: Is the weapon subject to a specific prohibition or restriction?

   Each country has different international law obligations. This step will assess the capability against the reviewing country’s international law obligations and identify any specific treaty or customary international law that prohibits or restricts the weapon.

   For example, if the reviewing country is a party to the Cluster Munitions Convention, the legal review will consider whether the weapon falls within the treaty definition of a cluster munition and is therefore prohibited.

3. Step 2 – Is the weapon subject to a general prohibition?

   International law prohibits all weapons that cause certain effects. These general prohibitions are:

   a. weapons that are of a nature of cause superfluous injury of unnecessary suffering;

   b. weapons that are, by nature, indiscriminate; and

   c. weapons that cause long-term, wide-spread harm to the natural environment.

4. Step 3 – Are there any other relevant considerations?
   While the legal review is concerned primarily with international law, it is also necessary to consider other matters that may impact the country’s acquisition of a specific weapon. This may include soft-law or political undertakings, the development of new law and national policies.

5. Final Step – Legal Review Report

   The legal review determination is generally captured in a legal review report. There is no obligation to make the contents of the report public and the determination is not binding on another country. This is often regarded as legal advice which informs government decision-makers responsible for weapon acquisitions.