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New wars, new weapons? The obligation of States to assess the legality of means and methods of warfare

30-06-2002 Article, International Review of the Red Cross, No. 846, by Isabelle Daoust, Robin Coupland, Rikke Ishoey


Isabelle Daoust
is a lawyer and currently works as Legal Adviser in the ICRC's Mines-Arms Unit.
Robin Coupland is a surgeon and former coordinator of ICRC surgical activities; he now works as the ICRC's adviser on armed violence and the effects of weapons.
Rikke Ishoey is Legal Adviser at the Danish Red Cross. The views expressed in this article are those of the authors and do not neces-sarily reflect the position of the ICRC, the Danish Red Cross nor of the States cited herein. The authors wish to acknowledge, with thanks, the assistance of various government officials consulted in the preparation of this article. 

Given the rapid development of weapons technology, new weapons must be subjected to close scrutiny. The authors stress the importance of implementing Art. 36 of Additional Protocol I, which requires the States Parties to determine whether a new weapon or means or method of warfare is compatible with international law. After discussing the main elements of this provision, the authors propose a multidisciplinary approach to weapons reviews, reflecting the wide range of technical, military and health issues involved. The article also describes the practice of States in this area, especially the measures taken by Australia, Norway, Sweden and the United States. These measures range from the adoption of national procedures and guidelines to the setting up of evaluation committees, but they do have a number of points in common. In conclusion, the article calls for wider promotion of Art. 36, which only a small number of States have implemented.  

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