43 Winter 2026 Review of weapons, means, and methods of warfare States are limited by international law in their ability to deploy military lethal force.51 As part of these limitations, article 36 of the First Additional Protocol to the Geneva Conventions (API) obligates States Parties to review new weapons, means and methods of warfare;52 and the United Nations Human Rights Committee has stated that ensuring protection of the right to life invites prophylactic impact assessment measures, including legality review for new weapons.53 Neither Israel nor the United States are State signatories of API, but the United States, unlike Israel, has resorted to review procedures without formal membership.54 Broadly, article 36 requires States to evaluate means of warfare during their “development, acquisition or adoption.” New technological tools that constitute means of warfare warrant, as well, a legal evaluation.55 As per decision support systems like the “Fire Factory” and “the Gospel,” they invite review as means of warfare, as they facilitate military actions and guide operational decisions.56 The legality review is challenging when dealing with means of warfare that are based on new technologies, given the lack of scientific certainty as to their impact.57 Hence, such review invites a multidisciplinary approach. In broad strokes, military AI systems should provide human-understandable explanations of their processes.58 This is required in order to alleviate technical concerns associated with the “black-box” effect, and adherence to international law obligations.59 Moreover, the evaluation of AI military tools should mitigate concerns regarding bias – be that in the design and development stage, or after deployment of systems. In addition, it is important to implement training and safety protocols that use diverse datasets in addition to requiring explainability, when possible, in order to identify whether certain decisions were biased. Naturally, until empirical data will show otherwise, we cannot dismiss the option that the evaluation of these new systems might lead to the conclusion that AI can actually be a powerful tool in upholding IHL principles, and improve decision making, in the sense of helping a military commander to better cover various sources of information in real time and at a fast pace. Conclusion There is room for prudence when deploying new military capabilities such as AI tools, since there is not yet a clear benchmark to follow. Some conclusions can be drawn, based on the experience of Israel. First, it is 46. Amichai Cohen & Yuval Shany, “Beyond the Grave Breaches Regime: The Duty to Investigate Alleged Violations of International Law Governing Armed Conflicts,” 14 YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW 37, 41-44 (2011) (“Cohen and Shany, the Duty to Investigate”). As per IHRL, see International Covenant on Civil and Political Rights (entered into force in 1976), (“ICCPR”) Article 2(1). 47. Supra note 28. 48. IDF Response as Sent to the Guardian (April 3, 2024), available at https://www.idf.il/189654 49. See the IDF’s letter in response to the request of the Association for Civil Rights in Israel regarding the use of the Gospel system, available (in Hebrew) at https://www. idf.il/media/4ecjskzb/%D7%9E%D7%A2%D7%A0 %D7%94-%D7%9C%D7%91%D7%A7%D7%A9%D7%94- %D7%91%D7%A0%D7%95%D7%A9%D7%90- %D7%9E%D7%99%D7%93%D7%A2-%D7%91%D7% A2%D7%A0%D7%99%D7%99%D7%9F- %D7%9E%D7%A2%D7%A8%D7%9B%D7%AA-%D7 %94%D7%91%D7%A9%D7%95%D7%A8%D7%94.pdf 50. Of course, there are other tools that can be referred to, most notably export control. Still this tool has some limitations. First, a main issue is the impartiality of the regulating body, as States are at times the client and the regulator. Second, export regimes are limited in terms of membership. Third, as technology is often dual-use, like chips, semiconductors, and encryption tools, it is hard to find definitions that encapsulate relevant components while avoiding over-burdening innovation. Fourth, supervising a technological tool is complex, given the intangible nature of the products, and the ability to easily transfer them across borders (unlike a physical of importance to maintain a human in the decision loop. Second, we need to consider how existing legal and operational norms can be applied to this new context. Third, there is a need for preliminary measures of evaluating the legality of such new technologies, until an agreed international benchmark will emerge. n Dr. Tal Mimran is an associate professor at the Zefat Academic College, and a research fellow at the Federmann Cyber Security Research Center in the Law Faculty of the Hebrew University of Jerusalem. Tal is also a Senior Research fellow at Tachlith Institute, a member of several NATO CCDCOE working groups, and an advisor to international organizations & companies on matters of international law and law & technology. In the past, Tal represented Israel before UN human rights bodies as a legal adviser in the Ministry of Justice, and served in reserve duty as an operational legal adviser (consulting the IDF chief of the southern command).
RkJQdWJsaXNoZXIy MjgzNzA=