Possible ethical problems with military use of non-lethal weapons.

• Author: Coleman, Stephen
• Position: Frederick K. Cox International Law Center Symposium: International Regulation of Emerging Military Technologies

The development and use of new technologies raises a number of ethical issues, particularly when the discussion focuses on new military technologies. However, a simple examination of the legal implications of the use of new military technologies fails to include the ethical issues surrounding these technologies, especially since law almost inevitably lags behind technological developments. The case of non-lethal weapons is an interesting one. Existing international law covers the use of some specific types of non-lethal weapons while remaining silent on others. While there are many reasons why it might be attractive to equip military personnel with non-lethal weapons, particularly when those military personnel are engaged in "operations other than war", many problematic issues about such a decision exist which ought to be highlighted. This paper notes some of these problems, including issues that might arise in international law with regard to the principle of discrimination when non-lethal weapons are used, and problems that can arise due to differences between the ways non-lethal weapons are tested during development and how those non-lethal weapons are used in the real world. This second problem is highlighted through discussion of the problems that have arisen through police use of non-lethal weapons in domestic law enforcement situations.

CONTENTS I. INTRODUCTION II. INTERNATIONAL LAW AND WEAPONS USE III. LEGAL GAP WITH NEW WEAPONS TECHNOLOGIES IV. DISCREPANCY BETWEEN INTENT AND APPLICATION OF NON LETHAL WEAPONS I. INTRODUCTION

The development and use of new technologies raises a number of ethical issues, particularly when the discussion focuses on new military technologies. However, a simple examination of the legal implications of the use of new military technologies fails to include the ethical issues surrounding these technologies for two key reasons. First, while there is an intimate relationship between the disciplines of law and ethics, the questions raised by these two disciplines are not the same. Whatever the future may hold, it is impossible to get a sense of what the laws governing the use of a new technology ought to be without considering the ethical issues raised by that new technology. Second, the law almost inevitably lags behind the development of new technologies, so it is usually only after a new technology has actually been developed that lawmakers start to consider how that technology ought to be regulated in law.

The case of non-lethal weapons (NLW) is an interesting one. Existing international law covers the use of some specific types of NLW while remaining silent use of other types of NLW, other than general provisions applicable to all weaponry used in armed conflicts. There are many reasons why it might be attractive to equip military personnel with NLW, particularly when those military personnel are engaged in operations other than war, a category which includes such things as peacekeeping and peace enforcement missions, armed humanitarian interventions, and even counter-insurgency operations. However, while there are attractions in the idea of issuing NLW to military personnel, many problematic issues about such a decision exist which ought to be highlighted.

The term non-lethal weapon is itself rather controversial, leading many writers to use other terms when discussing these types of weapons. These weapons have been described as soft-kill weapons, less-than-lethal weapons, and sub-lethal weapons, among other terms. (2) All of these terms are somewhat problematic for various reasons, chief of which is the fact that virtually any weapon can have lethal effects in some situations. So, while recognizing that the term is problematic, non-lethal weapons will be used here since it is a term in general use. For the purposes of this discussion, the term NLW will be used only to describe weapons whose effects are intended to be temporary, relatively minor, and reversible. Thus, the definition includes weapons intended to have non-lethal effects, but are known to be lethal if used in some circumstances. The definition specifically excludes weapons intended to maim or cause permanent physical damage of some sort to their intended targets, even if they do not kill.

As was mentioned earlier, law and ethics are very different, but many people still seem to conflate the two, thinking that everything that is legal must therefore be ethical, and everything that is illegal must therefore be unethical. Such thoughts are particularly common amongst people who work within the legal system itself, but they are also frequently found among members of occupations whose actions are greatly restrained by law, such as members of the military. While law and ethics are often closely related, they are far from being the same thing, and it is not difficult to find examples of situations where the demands of law and the demands of ethics come into conflict. Something can be: (1) legal, but unethical, such as the apartheid laws of South Africa; (b) illegal, but ethical, such as exceeding the speed limit to get a critically injured person to the hospital; or (c) ethical, but not enforced by law--almost everyone agrees that parents ought to love their children, but there are no laws that require it, nor could there be any such laws. (3)

While the demands of law and ethics do sometimes conflict with each other, it is far more usual for them to coincide, and this overlap is only to be expected. While some laws are enacted simply to maintain stable social interactions or provide social goods, many laws--especially criminal laws--articulate ethical principles which are deemed to be particularly important. Laws against mala in se crimes or torts--such as murder, rape, arson, theft, robbery, assault, and battery--exist because of a prior ethical view that it is wrong to murder, assault, and steal. Typically, both domestic and international law heavily regulate military conduct; however, in terms of the discussion of the issues raised by the use of NLW, it is international law that is the most important, particularly the law of armed conflict (LOAC). (4) While modern LOAC mostly derives from international treaties, conventions, or customary international law, it should be recognized that these treaties and customs also have an ethical basis, in that they are founded on the requirements of an ethics of war which has been discussed and defined over the centuries and has come to be known as just war theory.

2. INTERNATIONAL LAW AND WEAPONS USE

   Just war theory is traditionally taken to have two aspects: jus ad bellum, which addresses the right to resort to war rather than attempting to resolve a dispute by other means; and jus in bello, which addresses the conduct of those who are actually fighting in armed conflict, be they uniformed combatants, paramilitary forces, or even civilians who have taken up arms. (5) When discussing military use of NLW, only jus in bello is of interest. Jus in bello consists of two main principles by which the participants in the war must abide: (1) discrimination; and (2) proportionality. (6) These two principles have been incorporated into LOAC in a number of ways. There are general principles in LOAC which ban indiscriminate and/or disproportionate attacks no matter what weapon is used, as well as treaties which ban the use of certain types of weaponry because these weapons are considered either to be indiscriminate or to cause disproportional harm, or both. Anti-personnel land mines, for example, are banned because their effect is indiscriminate. (7) Biological weapons and cluster munitions probably fall into this category as well. (8) Some of the protocols in the Convention on Certain Conventional Weapons (1980) ban the use of weapons considered to cause disproportionate harm. This includes protocols banning the use of weapons that disperse undetectable fragments and the use of permanently blinding laser weapons. (9) In fact, the full name of the Convention--The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects--clearly demonstrates that the aim of the treaty is to enforce the jus in bello principles of discrimination and proportionality, at least as far as those principles apply to particular types of weapons. (10) However, treaties such as these are an imperfect attempt to...