In this forever changing world, now more than ever checks and balances are needed within Defence to ensure the safety of civilians and personnel, and to hold defence companies accountable to the state. With Defence’s increased reliance on autonomous weapon capabilities, legal compliance has become a central component of capability development.
Lawful by Design (LBD) is a new initiative by legal advisory firm Article 36 Legal, which will encourage defence companies, whether they are primes or small and medium enterprises (SME), to abide by International Humanitarian Law (IHL).
LBD aims to achieve this in two ways. The first method is through aiding industry in identifying and incorporating legal requirements as a core design parameter, rather than introducing them in the final stage.
The second approach is to persuade defence acquisition agencies, like the Australian Defence Force’s (ADF) Capability Acquisition and Sustainment Group (CASG), to require evidence of IHL compliance at the tender stage of acquisition.
LBD, Copeland believes, is the only initiative of its kind within the Anglosphere and Europe, and quite possibly the world.
Copeland has a PhD focused on the Article 36 legal review of autonomous weapons and has conducted legal reviews for Defence for over 15 years. He also chairs an international forum on the legal review of emerging technologies, which most recently convened at the United Nations in Geneva.
“What Lawful by Design proposes is a shift in mindset—bringing legal considerations, especially IHL, into the earliest stages of development, before critical design decisions are locked in,” he said.
Compared to a decade ago, defence procurement is occurring at a rapid pace and due to this, Copeland believes LBD is vital, now more than ever.
Under Australia’s procurement framework, which includes the CASG, companies will need to showcase how they have identified and mitigated legal risks as part of their tender responses.
“The global context has shifted. There is growing political, legal, and public scrutiny around the use of defence technologies,” Copeland noted. “We’re seeing a clear movement towards embedding legal and ethical considerations directly into the pipeline.”
There is not a formal certification for defence companies to receive IHL compliance. However, Article 36 legal reviews have become standard practice in a wide range of jurisdictions since the late 20th century. Australia formally instituted these reviews in 2005.
According to international law, the obligation of legal reviews rests on the state – not companies. Therefore, LBD wishes to address this gap through engagement with the industry.
“For conventional, human-operated systems, the legal risk is typically operational rather than embedded in the system itself,” Copeland explained. “But with the increasing role of AI—whether in targeting, decision-making, or autonomous engagement—the legal and ethical risks become inherent to the system. That’s why IHL compliance must be built into the architecture, not retrofitted.”
Lawful by Design officially launches 12 June 2025.