This article explores the interface between a pre-deployment common law duty of care and Article 36 of Additional Protocol I to the Geneva Conventions (API) pre-deployment review procedure in relation to autonomous weapons. It considers whether State and private actors (e.g. manufacturers of autonomous weapons; and telecommunications companies) involved in pre-deployment activities owe a duty of care to combatants and civilians. Part II examines the UK Supreme Court’s judgment in Smith and Others v. MOD to identify the basis upon which a pre-deployment common law duty of care can be established and extended to pre-deployment activities relating to autonomous weapons. Part III maps out the nature of a pre-deployment duty of care in relation to autonomous weapons and the content of specific duties. Part IV then examines the nature of the pre-deployment review procedure under Article 36 of API, and the extent to which it establishes a legally enforceable obligation in relation to autonomous weapons. While Article 36 does not require international supervision, it does necessitate domestic implementation of the obligation to review. Consideration is given as to whether it can be enforced at the domestic level by combatants and civilians.
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