CYIL vol. 14 (2023)

JAN ONDŘEJ CYIL 14 (2023) compliance with these rules and are also imputed for their violations. 22 This follows, for example, from Article 43 of Additional Protocol No. I from 1977. 23 According to this provision, “all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates”. The following Article 44 designates members of the armed forces as combatants who are obliged to observe the norms of international law applicable in armed conflicts. Autonomous weapon systems are of the nature of new weapons that are being developed for armed conflicts. These issues are regulated in Article 36 of Additional Protocol No. I. According to this provision, in the study, development, acquisition or adoption of a new weapon, means or method of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party. In regards to the Article 36 of Additional Protocol I, sometimes the question arises as to whether the given provision is an expression of customary international law. According to W. H. Boothbye ‘for states that are party to AP1, the obligation is explicit and set out in article 36 of that treaty. For states that are not party to AP1, the implied obligation should not necessarily be expressed in the same terms as article 36, but its existence is attested to by the practice of certain states before the adoption of AP1(USA).’ Furthermore, this author states: ‘however, relatively few states are believed to have a system for the legal review of weapons, e.g., United States, the United Kingdom, Belgium, The Netherlands, Norway, Sweden, Australia, France, Germany. It may be that some other states have such systems, but these are not widely known. The available evidence suggests, however, that many states have no such systems’ . 24 There are also other states that are not parties to Additional Protocol I, but have a mechanism for conducting analyses, e.g., India and Israel. The practice of some states (USA, India, Israel) in conducting legal analyses might be based on some other reasons rather than the fact that it would be a legally binding rule. From the point of view of the customary norm, the question is, how a large group of states carry out such analyses in practice. One can therefore doubt that this is a customary rule, but it can be stated that Article 36 represents a complementary rule that is intended to ensure and support the compliance with the basic rules of international humanitarian law. In particular, it is to ensure that new weapons are not indiscriminate in nature within the meaning of Article 51 of Additional Protocol No. I or cause excessive injury or unnecessary

22 DAVISON, N. A Legal Perspective: Autonomous Weapon Systems Under International Humanitarian Law. UNODA Occasional Papers, No. 30, p. 7. Available at: file:///H:/Downloads/autonomous_weapon_systems_ under_international_humanitarian_law%20(6).pdf [accessed 17. 5. 2023]. 23 International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3. Available at: https://www.refworld.org/docid/3ae6b36b4.html [accessed 15 May 2023]. 24 BOOTHBY, W. H. Weapons and the Law of Armed Conflict . Oxford: Oxford University Press, 2009, p. 341.

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