Customary International Humanitarian Law and Article 36 of Additional Protocol I to the Geneva Conventions: A Stopgap Regulator of Autonomous Weapons Systems?

Abstract Autonomous Weapons Systems (AWS) are already in use around the world by various militaries. However, the law governing such systems in the scope of international humanitarian law (IHL) currently lacks specific binding international treaties. Nevertheless, the existing framework is not silent on the topic of new weapons. Article 36 of Additional Protocol I to the Geneva Conventions provides an obligation for states to review new weapons. Consequently, as AWS are being adopted, acquired, and developed, the wide reach of 174 state parties of Article 36, therefore prima facie, represents a reasonable chance of providing some AWS regulation in the meantime. Nevertheless, Article 36 is generic to all new weapons and therefore unable to address concerns specific to AWS. Therefore, considering the vast difference of AWS to weapons which rely on a human operator, it is not unreasonable to state that there is a need for additional regulation. Hence, various non-binding guidelines and recommendations, such as the ‘11 Guiding Principles’ agreed upon by the Convention on Certain Conventional Weapons Group of Government Experts and the International Committee of the Red Cross’ Position on Autonomous Weapons Systems, could conceivably be considered to fill this void at least partly, albeit in a non-binding manner. When considered together with Article 36, these non-binding legal instruments could add predictability and consistency to the state parties’ reviews. Consequently, this paper will examine whether Article 36, in combination with the various non-binding instruments and national positions of state parties to Additional Protocol I, is viable as a binding stopgap measure to regulate AWS. As a result, the structure of the article is trifold. The first part focuses on Article 36, the second on the non-binding guiding instruments, and finally, when both are considered together, whether Article 36 could fulfil such a stopgap role.