BY ORDER OF THE SECRETARY OF THE AIR FORCE AIR FORCE INSTRUCTION 51-402 27 JULY 2011 Law LEGAL REVIEWS OF WEAPONS AND CYBER CAPABILITIES COMPLIANCE WITH THIS PUBLICATION IS MANDATORY ACCESSIBILITY This publication is available on the e-Publishing website at www epublishing af mil for downloading or ordering RELEASABILITY There are no releasability restrictions on this publication OPR AF JAO Supersedes AFI 51-402 13 May 1994 Certified by AF JAO Col Craig Miller Pages 7 This Instruction implements Air Force Policy Directive AFPD 51-4 Compliance with the Law of Armed Conflict and is consistent with Department of Defense Directive DoDD 2311 01E DoD Law of War Program DoDD 3000 3 DoD Policy on Non-Lethal Weapons DoDD 5000 1 The Defense Acquisition System and AFPD 63-1 Acquisition and Sustainment Life Cycle Management It prescribes guidance and procedures for the review of Air Force weapons and cyber capabilities to ensure legality under domestic and international law including the Law of Armed Conflict LOAC This Instruction applies to all United States Air Force USAF Air Force Reserve USAFR and Air National Guard ANG military and civilian personnel Refer recommended changes and questions about this publication to the Office of Primary Responsibility OPR using the AF Form 847 Recommendation for Change of Publication route AF Form 847 from the field through appropriate functional chain of command Ensure that all records created as a result of processes prescribed in this publication are maintained in accordance with Air Force Manual AFMAN 33-363 Management of Records and disposed of in accordance with the Air Force Records Disposition Schedule RDS located at https www my af mil afrims afrims afrims rims cfm This publication may be supplemented at any level but all direct Supplements must be routed to the OPR of this publication for coordination prior to certification and approval No waivers may be granted for any part of this publication SUMMARY OF CHANGES This document has been substantially revised and must be completely reviewed This revision reflects a change in the Air Force definition of “weapon” and requires a legal review of cyber capabilities intended for use in cyberspace operations 2 AFI51-402 27 July 2011 1 Functional Responsibilities This Instruction establishes the following responsibilities and authorities for weapons reviews and legal reviews of cyber capabilities 1 1 The Judge Advocate General AF JA will 1 1 1 Ensure all weapons being developed bought built modified or otherwise being acquired by the Air Force that are not within a Special Access Program are reviewed for legality under LOAC domestic law and international law prior to their possible acquisition for use in a conflict or other military operation This authority may be delegated to the Director Operations and International Law Directorate AF JAO 1 1 2 Ensure all cyber capabilities being developed bought built modified or otherwise acquired by the Air Force that are not within a Special Access Program are reviewed for legality under LOAC domestic law and international law prior to their acquisition for use in a conflict or other military operation This authority may be delegated to AF JAO or to Major Command MAJCOM Staff Judge Advocates SJA MAJCOM SJAs may not further delegate this authority without the express authorization of AF JA A copy of each completed cyber capability legal review will be forwarded to AF JAO 1 2 General Counsel SAF GC In coordination with AF JA as appropriate SAF GC shall accomplish a legal review of each weapon or cyber capability developed within a Special Access Program 1 3 The Operations and International Law Directorate Office of The Judge Advocate General AF JAO will 1 3 1 Upon request conduct a timely legal review of all weapons and cyber capabilities whether a new weapon or cyber capability at an early stage of the acquisition process or a contemplated modification of an existing weapon or cyber capability to ensure legality under LOAC domestic law and international law prior to their acquisition for use in a conflict or other military operation 1 3 2 Maintain permanent files of all Air Force weapons and cyber capabilities legal reviews 1 3 3 Monitor changes in international law relevant to weapons and cyber capabilities including treaties to which the United States is a party and notify appropriate agencies offices of such changes and the impact on any previous legal reviews 1 4 Staff Operations Plans and Requirements AF A3 5 assists AF JAO in obtaining information on the characteristics and accuracy of weapons and cyber capabilities under review following the procedures outlined in paragraph 2 below 1 5 The Assistant Secretary of the Air Force for Acquisition SAF AQ will 1 5 1 Ensure AF JA reviews for legality all weapons whether new acquisitions or modifications of existing weapons at the earliest possible stage in the acquisition process including the research and development stage 1 5 2 Assist AF JA in obtaining information on the lethal characteristics and accuracy of weapons under review following the procedures outlined in paragraph 2 below 1 6 MAJCOMs and Field Operating Agencies FOAs will AFI51-402 27 July 2011 3 1 6 1 Through their SJA ensure commanders directors of Air Force components engaged in weapons research development testing engineering manufacturing or acquisition provide AF JAO with all the information required to accomplish a thorough and accurate legal review of each new or modified weapon 1 6 2 Ensure commanders directors of Air Force components engaged in cyberspace operations provide their SJA all the information required to accomplish a thorough and accurate legal review of each new or modified cyber capability MAJCOM SJAs will provide AF JAO with all the information required to accomplish the legal review unless authority is delegated in writing to the MAJCOM SJA to conduct the legal review pursuant to paragraph 1 1 2 of this Instruction In that case the MAJCOM SJA will conduct a timely thorough and accurate legal review and provide a copy to AF JAO for its files 1 7 Air Force Security Forces Center AFSFC assists AF JAO in obtaining information on the characteristics and accuracy of weapons under review following the procedures outlined in paragraph 2 below 2 Request for Legal Review of Weapons and Cyber Capabilities 2 1 Upon cognizant legal authority's request Air Force personnel will provide the following information so that a judge advocate or General Counsel in the instance of a special access program may complete the reviews required by this Instruction 2 1 1 A general description of the weapon or cyber capability submitted for legal review 2 1 2 Statements of intended use such as types of targets or concept of operations 2 1 3 The reasonably anticipated effects of employment to include all tests computer modeling laboratory studies and other technical analysis and results that contribute to the assessment of reasonably anticipated effects 3 Contents of the Legal Review of Weapons and Cyber Capabilities 3 1 A legal review conducted under this Instruction will include at a minimum 3 1 1 Whether there is a specific rule of law whether by treaty obligation of the United States or accepted by the United States as customary international law prohibiting or restricting the use of the weapon or cyber capability in question 3 1 2 If there is no express prohibition the following questions are considered 3 1 2 1 Whether the weapon or cyber capability is calculated to cause superfluous injury in violation of Article 23 e of the Annex to Hague Convention IV and 3 1 2 2 Whether the weapon or cyber capability is capable of being directed against a specific military objective and if not is of a nature to cause an effect on military objectives and civilians or civilian objects without distinction 3 2 The fact that another Service or the forces of another country have adopted the weapon or cyber capability may be considered in determining the legality of such weapon or cyber capability but such fact shall not be binding for purposes of any legal review conducted under this Instruction 4 AFI51-402 27 July 2011 3 3 Legal issues associated with employment are beyond the scope of a weapon or cyber capability legal review As part of a targeting analysis the unit or individual employing the weapon or the cyber capability must ensure that their actions comply with domestic and international law including LOAC RICHARD C HARDING Lieutenant General USAF The Judge Advocate General AFI51-402 27 July 2011 5 Attachment 1 GLOSSARY OF REFERENCES AND SUPPORTING INFORMATION References AF Policy Directive 51-4 Compliance with the Law of Armed Conflict 26 April 1993 AF Policy Directive 63-1 Acquisition and Sustainment Life Cycle Management 3 April 2009 DoD Directive 2311 01E DoD Law of War Program May 9 2006 DoD Directive 3000 3 DoD Policy on Non-Lethal Weapons July 9 1996 DoD Directive 5000 1 The Defense Acquisition System May 12 2003 Adopted Forms AF Form 847 Recommendation for Change of Publication Abbreviations and Acronyms AFMAN—Air Force Manual AFPAM—Air Force Pamphlet AFPD—Air Force Policy Directive AFSFC—Air Force Security Forces Center ANG—Air National Guard FOA—Field Operating Agency LOAC—Law of Armed Conflict MAJCOM—Major Command OPR—Office of Primary Responsibility RDS—Records Disposition Schedule SJA—Staff Judge Advocate USAF—United States Air Force Terms Cyber Capability —For the purposes of this Instruction an Air Force cyber capability requiring a legal review prior to employment is any device or software payload intended to disrupt deny degrade negate impair or destroy adversarial computer systems data activities or capabilities Cyber capabilities do not include a device or software that is solely intended to provide access to an adversarial computer system for data exploitation Cyberspace Operations— A cyberspace operation is the employment of cyber capabilities where the primary purpose is to achieve objectives in or through cyberspace Such operations include computer network operations and activities to operate and defend the Global Information Grid 6 AFI51-402 27 July 2011 Weapons —Weapons are devices designed to kill injure disable or temporarily incapacitate people or destroy damage or temporarily incapacitate property or materiel Weapons do not include devices developed and used for training or launch platforms to include aircraft and intercontinental ballistic missiles AFI51-402 27 July 2011 7 Attachment 2 TEMPLATE FORMAT FOR REQUESTING REVIEWS Figure A2 1 Sample Request for Weapons or Cyber Capabilities Legal Review MEMORANDUM FOR ____ JA FROM 123 XXX CC 110 Wacissa Road Eglin AFB FL 32542-6807 SUBJECT Request for Legal Review of the Weapon Cyber Capability 1 Per AFI 51-402 Legal Reviews of Weapons and Cyber Capabilities request your office conduct a legal review of the ___________ be completed by 30 May 2010 2 Our point of contact for additional information or questions is Lt Amy Nition She can be reached by phone at DSN 875-7775 ext 222 or by email amy nition@eglin af mil JAMES BOSS Col USAF Commander Attachments 1 2 3 4 Technical Description Concept of Operations Report of Effects Testing Video or Other Information of Actual Results