ABSTRACT
Establishing national mechanisms to review the legality of new weapons is especially relevant and urgent in view of emerging new weapons technologies. This article asserts the need for a international mechanism to review newly invented weapons that are wrongly termed as non- lethal.
Henry Dunant in his famous book ‘A Memory of Solferino’ wrote “Ensuring the legality of new weapons is crucial if the development, proliferation and use of cruel and indiscriminate weapons are to be prevented and if humanity is to be protected from new and frightful weapons of destruction.’’
Non-lethal weapons are characterized by some scholars as “weapons of mass protection” that constitute a “new arsenal for a new era of warfare.” The most frequently mentioned reason behind the development of the “non-lethal” weapons concept is the changing nature of military operations in the post-Cold War world in what are called “military operations other than war.” In addition, ethnic hatred and ineffective or non-existent governments have fueled the ferocious fires of civil war in many parts of the developing world, deepening the crisis for ethical and legal restraints on war. NLWs are not required to have a zero probability of producing fatalities or permanent injuries. Moreover, the term “non-lethal” suggests that the weapons in question are anti-personnel weapons only. The area of “non-lethal” weapons covers, however, more than anti-personnel weapons. It includes weapons designed for use against “anti-materiel” weapons. Medically, the intended and unintended health consequences of “non-lethal” weapons are not yet well understood. NLWs cause debilitating or permanent effects such as blindness or paralysis, long-term lethal consequences, or other unnecessary suffering. So, the labels “lethal” and “nonlethal” do not accurately reflect how weapons ought to be examined from an ethical perspective.
For a state that is party to Additional Protocol I of 1977, determining the legality of new weapons is a treaty obligation pursuant to Article 36 of the Protocol. Indeed, it is in each state’s interest to assess the lawfulness of its new weapons in order to ensure that it is able to comply with its international legal obligations during armed conflicts and other situations of violence. The ICRC is aware of only a handful of states that have such procedures in place, one of which is not party to Additional Protocol I.
In some nations there are no consistent and coherent standards applicable to all policing forces across the nations. The legal framework for the testing and approval for use of new forms of less than lethal weapons by police agencies is unclear. The difference in the interpretation of conventions also imposes ambiguities in the application of these weapons. The principles of distinction and proportionality, the principle of unnecessary suffering, rules governing hors de combat, and the so-called Martens clause are constantly violated. International humanitarian concerns about how NLWs might encourage military forces to violate the IHL principle of ‘hors de combat’ are also discussed in detail.
INTRODUCTION
Ethics and international law have since the late nineteenth century been losing a running battle with technological developments that have vastly increased the killing power of military forces. In addition, ethnic hatred and ineffective or non-existent governments have fueled the ferocious fires of civil war in many parts of the developing world, deepening the crisis for ethical and legal restraints on war. Military forces from various nations ordered into war-torn societies to keep the peace or distribute humanitarian aid often find themselves confronted with non-military functions, such as crowd control, that seem difficult to fulfill with traditional military weapons.
Any use of a lethal or non-lethal weapon in a combat situation is subject to the basic principles and provisions of international law. These include the principles of distinction and proportionality, the principle of unnecessary suffering, rules governing hors de combat, and the so-called Martens clause. Embedded in these principles and provisions is the idea of protection for civilians and protection for combatants.
Parties to an armed conflict are limited in their choice of weapons, means and methods of warfare by the rules of international humanitarian law (IHL) governing the conduct of hostilities. Relevant rules include the prohibition on using means and methods of warfare of a nature to cause superfluous injury or unnecessary suffering and the prohibition on using means of warfare that are incapable of distinguishing between civilians or civilian objects and military targets,[i] which are the ‘‘cardinal rules’’ of IHL applying to weapons.[ii] In addition, particular treaties and customary rules impose specific prohibitions or limitations on the use of certain weapons, for example anti-personnel mines and blinding laser weapons.
For a state that is party to Additional Protocol I of 1977, determining the legality of new weapons is a treaty obligation pursuant to Article 36 of the Protocol, which requires each state to determine whether the employment of ‘‘a weapon, means or method of warfare’’ that it studies, develops, acquires or adopts would, ‘‘in some or all circumstances’’, be prohibited by international law applicable to the state. But it also makes good policy sense for all states, regardless of whether or not they are party to the Protocol, to carry out legal reviews of new weapons. Indeed, it is in each state’s interest to assess the lawfulness of its new weapons in order to ensure that it is able to comply with its international legal obligations during armed conflicts and situations of violence.
Weapon Review Mechanism
The 27th International Conference of the Red Cross and Red Crescent in 1999 and the 28th Conference in 2003 called on states to establish mechanisms and procedures to determine the conformity of weapons with international law. In particular, the 28th Conference declared that ‘‘in light of the rapid development of weapons technology and in order to protect civilians from the indiscriminate effects of weapons and combatants from unnecessary suffering and prohibited weapons, all new weapons, means and methods of warfare should be subject to rigorous and multidisciplinary review.’’[iii]
The obligation to review the legality of new weapons implies at least two things. First, a state should have in place some form of permanent procedure to that effect, in other words a standing mechanism that can be automatically activated at any time that a state is developing or acquiring a new weapon. Second, for the authority responsible for developing or acquiring new weapons such a procedure should be made mandatory, by law or by administrative directive. A proposed means of warfare cannot be examined in isolation from the way in which it is to be used – that is, without also taking into account the method of warfare associated with it. This raises three questions. The first is whether the reviewing authority should consider only the proposed or intended use of the weapon, or whether it should also consider other foreseeable uses and effects – the weapon’s effects resulting from a combination of its design and the manner in which it is used. Article 36 of Additional Protocol I appears to support the broader approach, since it requires a state to determine whether the use of a new weapon would be prohibited ‘‘in some or all circumstances’’.
RECENT INSTANCES
- An association of lawyers in Indian administered Kashmir will ‘facilitate’ the process of filing review petition in a court against its judgement which had legalized the use of pepper gas and pellet bombs against protestors in the disputed state.[iv]
- Amnesty International continues to be concerned by the use of less-than-lethal weapons, particularly Conducted Energy Devices (CEDs) such as TASERS. While some police forces have adopted stricter standards that limit the use of such devices to situations where there is a clear and serious imminent threat to life, most do not. Amnesty International has frequently expressed concern that the use of these weapons may, in some circumstances, be tantamount to torture or ill-treatment.This Committee has also expressed concern that the use of such weapons may constitute a form of torture.[v] There are no consistent and coherent standards applicable to all policing forces across the country, as some are subject to federal government jurisdiction and others to provincial and territorial governments. Guidelines developed by the federal government in October 2010 are not binding and do not adopt a threshold of harm standard which would justify the use of a TASER. Amnesty International has suggested that the Federal Guidelines should be amended to require that CED’s will only be used in situations involving an “imminent threat of death or serious (potentially life threatening) injury which cannot be contained by less extreme options.” The legal framework for the testing and approval for use of new forms of less than lethal by police agencies in Canada, such as sonic devices, is unclear. Some of these weapons pose a potential risk of resulting in torture or ill-treatment when used. Just as their lethal counterparts sometimes fail to kill, non-lethal weapons can sometimes be deadly. The description, therefore, applies to the intent rather than the effect.[vi]
- The ICRC reported that the destruction and disruption of electricity caused Iraqi civilians great hardships in forms of disease and other adverse health consequences.[vii] Calling a weapon “non-lethal” does not remove its potential consequences from scrutiny under IHL.
- The Chechen assault on the Nord-Ost Theatre in Moscow, and the crisis involving approximately 830 hostages, ended when Russian security forces pumped an incapacitating chemical, believed to be a derivative of the opiate fentanyl, into the theatre as a prelude to storming the building. Russian forces killed all the terrorists and rescued hundreds of hostages. The fentanyl, however, killed approximately 130 hostages — a fatality rate of 16%, more than twice the fatality rate of “lethal” chemical weapons used on World War I battlefields.[viii]The use of an incapacitating chemical to end the Moscow hostage crisis hit the debate about NLWs and international law like a thunderbolt.
POTENTIAL DRAWBACKS
The advantages outlined above potentially offer significant enhancements to our ability to bring about desired political outcomes via military means. However, employment of these types of weapons does present numerous challenges and concerns as described below.
- Non-lethal weapons may produce unrealistic expectations
The first concern is that the weapons might present unrealistic expectations about the prospects for bloodless war. The problem arises from the term “non-lethal” itself, leading some in the defense community to advocate adoption of substitute terms such as “less-lethal” or “sub-lethal effects weapons.”
Non-lethal weapons shall not be required to have a zero probability of producing fatalities or permanent injuries. However, while complete avoidance of these effects is not guaranteed or expected, when properly employed, non-lethal weapons should significantly reduce them as compared with physically destroying the same target.[ix]
- Non-lethal weapons offer the potential for the enemy to fight again.
A second concern regarding non-lethal weapons is the potential for opposing forces to return to the battlefield to fight again. Mercy on the battlefield sometimes backfires. For example, some of the prisoners paroled by General Grant at Vicksburg during the U.S. Civil War fought him again in later battles.[x]Clausewitz warned that, in general, the enemy’s “fighting forces must be destroyed: that is, they must be put in such a condition that they can no longer carry on the fight.”[xi] This is an issue that must be considered if increasing reliance on non-lethal weapons becomes a reality.
- The availability of non-lethal technology may lure adventurism.
A possible criticism of reliance on non-lethal weapons is that they may make us more prone to commit to military action that may have negative economic or diplomatic consequences or may escalate to become an unintended major conflict. The argument goes that since bloodshed and destruction can be greatly reduced with these weapons, we may be tempted to intervene at an earlier point. Moreover, lack of training can increase the level of lethality to even causing death.
- More than Anti Personnel.
The area of “non-lethal” weapons covers, however, more than anti-personnel weapons. It includes weapons designed for use against vehicles, equipment, materiel, and computer systems (collectively “anti-materiel” weapons).” Describing these anti-materiel weapons as “non-lethal” does not accurately reflect their purpose or nature. In addition, use of some of these anti-materiel “non-lethal” weapons can be lethal as vehicle, equipment, or materiel failure places the human operators in mortal danger.
- Combination of lethal and non lethal weapons.
As noted before, the term “nonlethal” is not an accurate description of these weapons because they can be lethal and they include anti-materiel weapons. Further, military commanders looking at the battlefields of the future may want to combine “nonlethal” and “lethal” weapons to achieve more effective destruction of the enemy. The existence of true “non-lethal” weapons would not alter the way military forces approach their objectives. It is unlikely that military commanders would equip their forces only with “non-lethal” weapons. Use of truly “non-lethal” weapons may actually increase the effectiveness and lethality of traditional weapons during armed conflict.
Weapons and International Treaties
The conventional, biological, and chemical arms control regimes severely limit the potential use of “non-lethal” weapons. This limitation further reinforces the problems noted with the concept of “non-lethal” weapons earlier in the Article. Calling weapons “non-lethal” does not render them susceptible to a lower standard of international legal scrutiny in connection with arms control regimes. However, some important potential “non-lethal” weapons technologies, such as acoustic and electromagnetic weapons, are not affected by the existing arms control disciplines because they do not fall into any of the current treaties on conventional, biological, and chemical weapons.
While relevant principles can be extracted from the conventional weapons regime that can be applied to acoustic and electromagnetic weapons, such application is not required under any existing treaty. At present, international legal analysis of the use of these weapons will primarily fall under principles of customary international law, such as the duty not to cause superfluous injury or unnecessary suffering.[xii]
Developments in weapons technology, especially aircraft, made civilian populations increasingly vulnerable to military attack. Civilians also suffered terribly when attacked by armies and governments that had no intention of honoring the laws of war. But civilians also face threats from forces committed to IHL because civilian fatalities are caused by smart weapons. In addition, military forces often attack or destroy facilities, such as power plants, that are important to the health and well-being of civilian populations. ‘[xiii]
In some situations, “non-lethal” weapons pose familiar problems. During the Persian Gulf War, allied forces used “non-lethal” anti-materiel weapons to disrupt the Iraqi electricity infrastructure.[xiv]
The ICRC reported that the destruction and disruption of electricity caused Iraqi civilians great hardships in forms of disease and other adverse health consequences.[xv] Calling a weapon “non-lethal” does not remove its potential consequences from scrutiny under IHL.
Equally important is the possibility that the development of “nonlethal” weapons will encourage military forces to attack civilians and civilian targets more rather than less. Military forces might perceive that attacking civilians and civilian targets with “non-lethal” weapons is acceptable because the intent is to incapacitate or demoralize rather than kill. In some contexts, incapacitating or demoralizing civilians might make the use of “lethal” weapons against opposing military forces easier.
Behind the IHL prohibition is the principle that military forces must discriminate between military and civilian targets.'[xvi] Important to the IHL analysis will be whether “non-lethal” weapons can only be, or are being, used indiscriminately. A “non-lethal” weapon that cannot be used in a discriminate way would cause IHL concerns. Thus, if an acoustic weapon intended to incapacitate military forces cannot be used without also incapacitating civilians, such a “non-lethal” weapon cannot satisfy IHL. But one can easily see that people wanting to use the “non-lethal” weapon would argue that its indiscriminate use does not violate IHL because the intent is not to kill and the civilians are only temporarily incapacitated. In other words, the indiscriminate use of a “non-lethal” weapon causes acceptable collateral damage to civilians.
IHL prohibits military forces from attacking combatants who are incapacitated or disarmed and no longer present a military threat (hors de combat).’[xvii]This aspect of IHL is clearly relevant to the use of “non-lethal” weapons on the battlefield,’2″ and “non-lethal” weapons raise a number of questions in this regard.
First, it is not clear how a soldier will be able to determine in the heat of the battle whether an enemy combatant is hors de combat as a result of the use of a “non-lethal” weapon. How much incapacitation is necessary to render a combatant hors de combat? Just as a soldier wounded by a “lethal” weapon may still pose a military threat to his enemy, an incapacitated soldier may also constitute a threat. Perhaps this observation suggests that the identification of a combatant hors de combat is difficult regardless whether “lethal” or “non-lethal” weapons are used, and that “non-lethal” weapons do not complicate this already difficult task. Much would depend, of course, on the particular physical effects of a “non-lethal” weapon, so it is difficult to speculate much. But the easier it is to recognize incapacitation the stronger will be the physical effect of the “non-lethal” weapon, perhaps raising other questions under.
IHL protections for combatants hors de combat have not been widely respected in twentieth century wars. Military forces in all likelihood will see incapacitation through “non-lethal” weapons as a means to maximize the impact of “lethal” force. The tactic might be to hit enemy troops first with “non-lethals” and to follow up this attack with “lethal” force. This combination tactic might maximize battle impact on the enemy while reducing casualties for the attacking side.
Principle of superfluous injury and unnecessary suffering
This principle has been behind a number of prohibitions of specific weapons systems, such as exploding bullets, blinding laser weapons, and anti-personnel land mines. At first glance, it would seem that “non-lethal” weapons cause no concerns for this IHL principle because the intended physical effects are assumed to be temporary. It remains important for the integrity of IHL to apply the superfluous injury or unnecessary suffering principle to “non-lethal” weapons because the assumption of temporary incapacitation may not be warranted. One concern for this principle of IHL is that the health effects of many potential “non-lethal” weapons are, as mentioned earlier, not known. The superfluous injury/unnecessary suffering principle should guide development of “non-lethal” weapons to ensure that the physical effects of the weapons are not severe or permanent. The ICRC advocates using this objective approach to analyze all new
weapons, including “non-lethal” weapons.
The categorization of weapons as lethal and non lethal is not correct as it leaves some scope for wrongful use of weapons to an extent by which fatality can be caused and so the categorization of weapons shall be done as causing superfluous injury, potentially causing superfluous injury and not causing superfluous injury.
Conclusion
The feel-good term “non-lethal” masks the extent to which these weapons create significant concerns for arms control, international law on the use of force, international humanitarian law, and other areas of international law. The need to review and scrutinize “non-lethal” weapons under international law is manifest, and it can never be taken for granted that the development or uses of “non-lethal” weapons are legitimate under international law.
Establishing national mechanisms to review the legality of new weapons is especially relevant and urgent in view of emerging new weapons technologies such as directed energy, incapacitants, behavior change agents, acoustics and nanotechnology, to name but a few.[xviii] Weapons review mechanisms would also be relevant in reassessing existing weapons stocked in a state’s arsenal in the light of new or emerging norms of international law, such as when a state becomes party to a treaty prohibiting or limiting the use of a certain weapon.
Moreover these national mechanisms shall be established under the canopy of an international body to which reports on approved weapons would be sent by the national mechanisms for further review.
“Non-lethal” weapons emerge into a situation already marked by great tension between international law and the realities of international politics. Nowhere is this tension more serious than in times of armed conflict. This is why there should and will be tension between international law and the development and use of “non-lethal” weapons. Without this tension, benign motivations behind “non-lethal” weapons development will quickly be drowned or corrupted into malevolent designs that adversely affect the lives and hopes of peoples.
[i] See, e.g., J.-M. Henckaerts and L. Doswald-Beck (eds.), Customary International Humanitarian Law,
ICRC/Cambridge University Press, Cambridge, 2005, Rules 70 and 71.
[ii] In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the International Court
of Justice referred to these basic IHL rules as ‘‘cardinal principles’’: 8 July 1996, [1996] ICJ Rep., pg. 257,
178.
[iii] See Final Goal 2.5 of the Agenda for Humanitarian Action adopted by the 28th International Conference
of the Red Cross and Red Crescent (2003).
[v] CANADA – Briefing the UN Committee Against Torture, Amnesty International, 48th Session, 2012, pg. 30
[vi] NON-LETHAL WEAPONS: SETTING OUR PHASERS ON STUN?, Potential Strategic Blessings and Curses of Non-Lethal Weapons on the Battlefield by Erik L. Nutley, Lieutenant Colonel, USAF, August 2003, Occasional Paper No. 34, Center for Strategy and Technology Air War College Air University Maxwell Air Force Base, Alabama, pg.2
[vii] See ICRC, Water in Iraq (ICRC Special Brochure, July 1996).
[viii] Alexander Kelle, “Science, technology and the CBW control regimes,” Disarmament Forum, 2005, p. 8, p. 10. For a report on health problems suff ered by the hostage survivors two years later, see Anna Rudnitskaya, “Nord-Ost tragedy goes on,” Th e Moscow News, Issue No. 41, 2004, at <https://english.mn.ru/ english/issue.php?2004-41-2>
[ix] DOD Policy Directive (DODPD) 3000.3, Policy for Non-lethal Weapons, 9 July 1996, 3.1.
[x] C. T. Clyne, “Andersonville and Other Civil War Prisons, North and South,” available from https://users.aol.com/cinticwrt/anders.html
[xi] Carl Von Clausewitz, On War, trans. Michael Howard and Peter Paret (Princeton N. J.: Princeton University Press, 1976), 90.
[xii] David P. Fidler, The International Legal Implications of Non Lethal Weapons, Indiana University Maurer School of Law, 1999, p. 75
[xiii] See Geneva Protocol I art. 54, para. 2 (“It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them … to the civilian population or to the adverse Party, whatever the motive …. “).
[xiv] Similar weapons were available to NATO forces in the Kosovo air campaign. See Stephen S. Rosenfeld, ‘Turning Off the Lights in Belgrade,’ WASH. POST, May 7, 1999, at A39 (reporting on the U.S. Air Force’s unveiling of “a secret ‘blackout’ bomb that evidently short-circuits the equipment but does not actually physically destroy it. This is what is meant by threats to ‘turn
off the lights in Belgrade.'”).
[xv] See ICRC, Water in Iraq (ICRC Special Brochure, July 1996).
[xvi] See Geneva Protocol I, art. 48 (“In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”).
[xvii] See, e.g., Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, art. 3(1), 6 U.S.T. 3114, 3116, 75 U.N.T.S. 31, 32
[xviii] See, e.g., D. P. Fidler, ‘‘The meaning of Moscow: ‘‘Non-lethal’’ weapons and international law in the early 21st century’’, International Review of the Red Cross, Vol. 87, no. 859, 2005, p. 525