7 - Weapons Reviews under the System of AP I

Summary

Chapter 7 examines the obligation of States under Article 82 of Additional Protocol I to provide for legal advisers to military commanders. It tests the argument that providing such advisers is sufficient to ensure that new weapons will be reviewed as a matter of law. It concludes that, while in certain scenarios an Article 82 adviser can perform an ad hoc weapons review, a State generally cannot avail itself of an argument that providing for legal advisers under Article 82 is also sufficient to meet the requirements of Article 36. This is so because compliance with the latter requires adopting a certain internal approach or coherent national measures whenever a State develops or purchases a new weapon. Above all, the acquisition agencies involved in the procurement process should be aware of the Article 36 legal review requirement. Therefore, and unless a State can produce evidence of a functioning review process, it cannot be presumed that compliance with Article 82 equally implies due respect for the State’s obligations under Article 36. [170 words]