Reviewing new and newly acquired weapons
Particularly relevant for engineers and organisations involved in the development of both civilian and military technology is Article 36 to Additional Protocol I (‘Article 36 Reviews’). These reviews examine the lawfulness of a new or newly acquired weapon before its introduction to the warfighting domain.
There are many subtleties to be aware of in conducting these reviews. For example, what constitutes a ‘weapon’ or ‘means or method of warfare’ is not always obvious; a communications system could be classified as such.
In Australia, the Department of Defence is responsible for conducting Article 36 Reviews in the case of new technologies such as autonomous and artificial intelligence systems and cyber capabilities. Article 36 Reviews also rely heavily on the specialist expertise of those in the defence industry. This can have significant ramifications for the IHL protections, responsibilities and risks to both individuals and organisations.
International criminal law and its application to people in the defence industry
International criminal law sets the standard to which members of the Australian Defence Force and others must operate, and is covered by section 268 of chapter 8 of the Criminal Code Act 1995 (Commonwealth of Australia). While the details are not covered in this article it may be argued that aspects of the laws and statutes could apply to defence industry personnel involved in weapons development.
Due to the specialist knowledge that a member of the defence industry could have, and the nature of their relationship with Defence, there is a risk they could incur individual criminal responsibility in relation to the provision of weapon systems. As noted above, what constitutes a weapon may not always be obvious.
Consider this as a hypothetical scenario; the actions of a company conducting an autonomous weapons development program. The Chief Technology Officer consciously disregards information that suggests (i) the targeting algorithms (Artificial Intelligence) may have biases in them, or (ii) the company did not institute a program to properly check for such bias.
An Article 36 Review will rely heavily on the specialist knowledge of the company. Consequently, a court may consider that moment where a specialist designed or oversaw that aspect of the performance, and assess this within the realm of attributing criminal responsibility. Under Australian law there may also be civil liability for the company and individuals involved.
“Ignorance of the law excuses no one” and people involved in the Australian defence industry must have an understanding of IHL. This is vital, apart from any moral reason, because of the potential liability they may face under domestic civil and criminal law, and international criminal law.