Symposium on the CCW GGE LAWS: What’s in a Prohibition? The Framing of the Final Set of Elements within Existing IHL

[Sally Longworth is a Senior Lecturer in Public International Law at Stockholm University and Researcher in public international law at the Swedish Defence Research Agency (FOI). The views expressed in this post are her own and do not reflect the position or understanding of Sweden. This post is the third in a series of analyses on aspects of the recent adoption of the 2024-2026 CCW GGE LAWS report.]

A common refrain from certain High Contracting Parties in the GGE LAWS is that the Group was not “creating new law”, that the set of elements should reflect existing international legal standards and not develop them. In many ways, this position is a paradox. Whilst the Group was not mandated to negotiate a treaty or to otherwise prejudge the nature of the set of elements of an instrument that was finally agreed, there is a process of development of international legal norms when the States party to an instrument come together and agree by consensus on their understanding of the scope and meaning of particular terms or obligations reflected in the treaty they are all bound by (namely the Convention on Conventional Weapons and its Protocols, see further ILC Draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties 2018) or in customary international law (see further ILC Draft conclusions on identification of customary international law 2018). That said, a close analysis of the language of the final set of elements adopted by the GGE in the early hours of 5 September highlights areas where this aim of reflecting existing law has clearly been achieved and others where there are questions, most notably in elements that were not included in the final set.

This blog post analyses paragraphs 26 to 33 of the final set of elements against the requirements under existing international humanitarian law (IHL). These paragraphs generated significantly fewer debates than many other parts of the set of elements (see further analysis here and here). They reflect a clear area on which there is State convergence. Their worth in framing the whole of the elements within the requirements of existing international law should not be underestimated either. At the same time, compromises made to the language in the final discussions do risk undermining or raising doubts regarding established legal requirements and may be worth revisiting in any next stages in the development of the legal requirements applicable to LAWS.

Paragraphs Closely Connected with Existing International Legal Requirements

Paragraphs 26 and 30 were introduced in the November 2024 rolling text. No alterations were made to either paragraph during the subsequent sessions and their texts were adopted by consensus in the final set of elements in September 2026. These two paragraphs most clearly reflect existing IHL requirements.

Paragraph 26 restates that the right of the parties to an armed conflict to choose methods or means of warfare is not unlimited. This is set out in the third preamble paragraph of the Convention on Conventional Weapons 1980 (CCW), in Article 35(1) Additional Protocol I to the Geneva Convention 1977 (API) and Article 22 of Hague Regulations (IV) 1907. The ICRC’s Commentary to Article 35(1) API states that paragraph reaffirms the law (para. 1382), and this can be considered to be an obligation under customary international law also (see International Court of Justice, Nuclear Weapons Advisory Opinion 1996, para. 78).

Paragraph 30 similarly restates the Marten’s clause, set out in identical language to preamble paragraph 4 to the CCW. These requirements are also included in Article 1(2) API. The only difference with paragraph 30 is that two additional commas have been added to the text. The first is between “the principles of international law” and “derived from established custom”, which could arguably change the meaning slightly. This seems to have been a drafting error rather than any intention to give new meaning to the clause. The second additional comma appears before the “and” between “the principles of humanity” and “from the dictates of public conscience”, and follows grammar generally accepted today to connect two independent clauses in a sentence (see, for example, here).

Paragraph 27 restates several important framing requirements for understanding the whole of the final set of elements. Firstly, it restates the scope of application of IHL, namely to armed conflict, as set out in Article 1 CCW as amended in 2001 and Common Articles 2 and 3 of the Geneva Conventions of 1949 (see further Article 1(3) and (4) API and Article 1(1) APII).

Paragraph 27 further provides that IHL governs the use of all weapons, means and methods of warfare, those of “the past, those of the present, and those of the future, including those incorporating emerging technologies in the area of LAWS”. This reflects the technology neutral stance of IHL. The provisions applicable to the use of “means and methods of warfare” do not specify what type of weapon they refer to, but are drafted broadly so as to cover all weapons and their use. Where specific weapons are mentioned, such as in the provisions in the CCW and its Protocols, these provisions are termed as restrictions on the use and/or prohibitions on particular types of use (see further preamble paragraph 8 CCW). In explicitly stating IHL applies to weapons, means and methods of warfare “of the future”, this paragraph also restates rule of law principles that law guides future conduct, rather than applying retrospectively.

Paragraph 28 provides important context for understanding the paragraphs relating to responsibility and accountability that appear later in the set of elements (about which Jessica Dorsey will post later in this symposium) and builds on the established legal requirements set out in paragraph 26. This paragraph was subject to the most changes of all the opening paragraphs under review in this blog. Its origins can be traced to the July 2024 rolling text, which included that:

Humans must at all times remain accountable in accordance with applicable international law for decisions on the use of force.

This underwent significant development in the November 2024 text and developed to:

States must ensure that humans at all times remain responsible and accountable in accordance with applicable international law for decisions with regard to LAWS.

The text that appears in the final elements was first included in the May 2025 rolling text:

IHL imposes obligations on States, parties to armed conflict, and individuals, not on machines.

This text did not undergo any further changes and was adopted by consensus in the September 2026 report. The accountability and responsibility text was moved and expanded on in later parts of the elements (see Jessica Dorsey later in this symposium). These developments reflect the persistent problem in the negotiations in trying to capture “the human element”, but retains and reaffirms the important notion that it is the obligation of humans to ensure respect for IHL (including in the use of weapons systems), set out in Common Article 1 to the Geneva Conventions of 1949, Article 1(1) API and identified rules of customary international law (see ICRC’s Customary International Humanitarian Law Study Rules 139 and 144). That IHL imposes obligations on the parties to the armed conflict in non-international armed conflicts, as well as international armed conflicts, and on individuals within the whole jurisdiction of the State in which the armed conflict is taking place is also firmly established in both treaty (see, for example, Common Articles 1 and 3 to the Geneva Conventions of 1949, and ICRC Commentary to GCIV Common Article 1, paras. 221-223) and customary international law (ICRC Study Rule 139, see also Rule 149). This further reflects the scope of the CCW and its Protocols (Article 1 of the 2001 Amendment to the CCW). The clarifying factor that IHL does not impose obligations on machines settles to an extent debates regarding responsibility in the use of autonomous weapons systems to the extent that it is firmly established that this remains with humans.

Paragraph 29 builds on this in providing that IHL applies fully to the development and use of LAWS. This paragraph was introduced in July 2024 and underwent minor changes during the negotiations. The original text in July 2024 included “deployment” together with “development and use”, but this was dropped in the November 2024 version of the text. The only other change was the deletion of “therefore”. The language of “development” and “use” does align with existing IHL standards, such as Article 36 API (about which Netta Goussac will post later in this symposium). “Deployment” is referenced together with “design, development” and “testing” in paragraph 37, however, and as noted, paragraph 29 is a framing paragraph in which paragraph 37 must be understood.

The Difference Between a Prohibition and “Must Not” – Paragraphs 31-33

One of the most significant changes to this part of the final elements came following the first reading of the revised text on Thursday 3 September. During the reading of the report in formal session in the afternoon of 3 September, Russia raised its objection with the phrasing of paragraphs 31 to 33 as prohibitions. Russia argued that the GGE was not mandated to negotiate a treaty and using the language of “prohibition” was therefore not appropriate. This was argued to be only a matter of style and not an effort to change the meaning.

This was by no means the first time that Russia had raised this point and there had been discussions around changes to the language of “prohibitions” in the March 2025 meetings, among others, with efforts made by the Chair to accommodate Russia’s view being met by disagreement by other States, such as Mexico, the Philippines and Algeria. The rolling text of June 2026 retained the phrasing “it is prohibited”, as did the first draft of the report from 3 September. However, during the informal sessions on 3 and 4 September, agreement was reached on changing the language.

The difficulty comes not from any change to meaning necessarily resulting from the change of language, but from the stated aim of reflecting existing international law. The prohibitions set out in paragraphs 31-33 of the final agreed elements are based on clearly established prohibitions under IHL. For example, the prohibition on using means and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering traces its origins to the St Peterburg’s Declaration of 1868 and was described as one of the cardinal principles of IHL “constituting the fabric of [IHL]” by the ICJ (see Nuclear Weapons Advisory Opinion para. 78), together with the prohibition of using weapons that are incapable of distinguishing between civilian and military targets – namely inherently indiscriminate weapons also referenced in paragraph 31 (see further to Article 51(4) API, ICRC Customary International Law Study Rule 70 and Rule 71). A further cardinal principle identified by the ICJ was the prohibition of making civilians the object of attack (para. 78) and reflected in paragraph 32 of the final set of elements. The ICJ went on to note that “these fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law” (para. 79). Phrasing these paragraphs as “it is prohibited” would have more clearly encompassed the absolute nature of the existing IHL obligations. Changing the language to “must not” raises the question whether something different is in fact meant with the change and if this does indeed have the same meaning as the clearly established prohibition. It further creates unclarity regarding exactly who these paragraphs are addressed to, undoing some of the important work done in paragraph 28.

The Missing Elements

A further noteworthy point in this part of the final set of elements is paragraphs that were included in the various drafts between July 2024 and September 2026, but which did not make it into the final report.

In the May 2025 rolling text, the following paragraph was added:

States undertake not to manufacture, otherwise acquire, stockpile, or transfer LAWS that cannot be used in compliance with IHL.

This text underwent significant changes in December 2025. The first part was changed from “undertake not to” to “shall refrain from”, and a further sentence added, which stated: “The retention, acquisition, or transfer of LAWS that cannot be used in compliance with IHL shall be permitted solely for the purposes of training and the development of countermeasures, only in the minimum quantity necessary, and shall be destroyed once they are no longer required for the purposes for which they were retained”. This second sentence was removed in the version of the rolling text considered in the March 2026 meeting, as the Chair commented it was better for future work than trying to address in the GGE and removing it brings the text more in line with existing IHL. The July 2026 rolling text and the Additional suggestions from the Chair on sub-section A in August 2026 still included the text, but it was not included in the first draft of the final report circulated on 3 September. One of the main purposes in including the paragraph originally had been to ensure against LAWS that cannot be used in accordance with IHL falling into the hands of other actors. Reference to the risk of acquisition by terrorists was added to paragraph 37 in the very final stages during the informal sessions of 4 September. However, this will likely be an area which several States are likely to want to address in the future.

A further prohibition that did not make it into the final text was:

It is prohibited to use LAWS if their effects in attack cannot be anticipated and limited, as required by IHL in the circumstances of their use.

This is the text that appeared in the rolling text from June 2026. The original text on which this was based was interestingly not phrased as a prohibition in its first iteration in the July 2024:

LAWS must not be deployed or used if their effects in attacks cannot be anticipated and controlled, as required by international humanitarian law in the circumstances of their use.

The text was updated to a prohibition by the November 2024 rolling text with only small changes made thereafter until it attained its final version that appeared in the June 2026 rolling text. Israel, the US and Russia all objected to its formulation and inclusion in the first reading of the Chair’s report on 3 September. Notwithstanding that Austria and Panama responded that they considered this to be reflective of a prohibition established in existing IHL and text that had been agreed for a long time, the paragraph was not included in the final set of elements. The text clearly mirrors existing IHL obligations, reflected in Article 51(4)(c) API, the ICRC Customary IHL Study Rule 12(c) and the ICJ’s rulings (see Nuclear Weapons Advisory Opinion para. 78). Means of methods of combat the effects of which cannot be limited is not, however, included in the definition of indiscriminate use of weapons in Article 3(8) of Amended Protocol II to the CCW. Notably, the US and Israel are not parties to API, but both are to the Amended Protocol II to the CCW, which explains in part their more restrictive approach. Russia is a party to both treaties, however.

Paragraph 31 of the final set of elements includes that LAWS which are inherently indiscriminate must not be used, which would cover where their effects cannot be limited in accordance with IHL based on the customary international law norm. In addition, the anticipated effects of the LAWS is referenced in paragraph 38 of the final set of elements, which paragraph 31 provides a framework of understanding. Nevertheless, this is again a further area that States may wish to revisit in the future.

Conclusion

Overall, broad agreement was found on these paragraphs, which is not surprising given how closely they do reflect some fundamental requirements of IHL. They lay the bedrock by which the other elements can elaborate the more detailed application of the norms to LAWS. That said, there are clear areas where States could have gone further in actually restating existing IHL, not least in recognition that LAWS whose effects cannot be anticipated and limited would be unlawful, and more closely aligning to established treaty text. The changes in language from prohibitions to “must not” is a further weakening of the text and a further area that States may want to address for the sake of clarity in the future.