U.S. military use of non-lethal weapons: reality vs. perceptions.

• Author: LeVine, Susan D.
• Position: Frederick K. Cox International Law Center Symposium: International Regulation of Emerging Military Technologies

On 31 March 2003, U.S. warfighters manned a checkpoint near Najaf, Iraq, mindful that a suicide bomber had just killed four U.S. soldiers at another Iraqi checkpoint. When a van failed to heed verbal warnings to stop, they used their only other option. They fired on the van, killing seven women and children. While these actions may have been lawful, these types of situations present U.S. forces with horrific moral dilemmas. U.S. forces require alternatives to simply shouting or shooting. Non-lethal weapons fill gaps between verbal warnings and lethal force. They have been urgently needed and used by U.S. forces in Somalia, Kosovo, Iraq, Afghanistan, and Haiti. Non-lethal weapons have saved civilian lives, as one battalion commander in Iraq noted--and also saved the lives of US warfighters. The need for non-lethal weapons grows as warfare and disasters increasingly occur in population centers, as well as, at sea, as small boats become the asymmetric weapon of choice.

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Since 1996, the U.S. Department of Defense has developed and fielded non-lethal weapons. Non-lethal weapons are "developed and used with the intent to minimize the probability of producing fatalities, significant or permanent injuries." This intent is supported by an unequalled effort focused on explicit user needs and a thorough understanding of the human effects of non-lethal weapons employment. DoD policy also states that non-lethal weapons, "are not intended to, eliminate risk of those actions entirely," meaning that non-lethal weapons do not come with a 100% guarantee of no injury or death. Additionally, non-lethal weapons undergo extensive legal review to ensure compliance with U.S. domestic law and international legal obligations, including the law of war.

Yet, despite their need, underlying good intentions and lawfulness, and rigorous human effects analyses, non-lethal weapons--and associated technologies that are used to make them--continue to face objections and misperceptions, just like other transformative innovations. The reality, though, is that US warfighters, who repeatedly face life-and-death situations in a complex operating environment, want and need non-lethal weapons.

Contents I. Introduction II. Growing Operational Necessity A. Somalia--the Prologue B. You Can't Kill Your Way to Victory--The Need for Non-Lethals Expands C. Future--The Needs Grow III. Intent--and Unequalled Effort A. Determining the "Goalposts" for Effectiveness--Explicit User Needs B. Characterizing Human Effects--How Close They Get to the Goalposts C. Incorporating Human Effects Research into Systems Design D. Conducting Independent Reviews IV. Legal and Non-Lethal A. Unnecessary Suffering B. Discrimination C. Specific Law or Treaty Prohibiting Use V. Misperceptions and Resistance--Common to Many Innovations VI. Not Easy, Not Always Seen ... but Needed "Getting a new idea adopted, even when it has obvious advantages, is difficult"

--Everett M. Rogers, Diffusion of Innovations (3)

1. INTRODUCTION

   On 31 March 2003, U.S. warfighters manned a checkpoint near Najaf, Iraq, mindful that a suicide bomber had just killed four U.S. soldiers at another Iraqi checkpoint. When a van failed to heed verbal warnings to stop, they used their only other option. They fired on the van, killing seven women and children. (4) Such incidents continued, with US warfighters unable to tell if an advancing driver was a suicide bomber, or an innocent civilian fleeing danger or unable to understand the signs. But, checkpoint casualties eventually declined with warfighters' use of non-lethal systems, like dazzling lasers for warning and vehicle stopping devices. (5)

   Non-lethal weapons fill gaps between verbal warnings and lethal force. They are often urgently needed by U.S. forces, and since 1996, the U.S. Department of Defense (DoD) Non-Lethal Weapons program has helped meet those needs. (6) According to DoD policy, these non-lethal weapons are "developed and used with the intent to minimize the probability of producing fatalities, significant or permanent injuries," while recognizing they, "are not intended to, eliminate risk of those actions entirely." (7) Moreover, non-lethal weapons are developed and used in compliance with U.S. laws and treaties. (8) Yet, despite their growing need, the good intentions behind their development, and their lawfulness, non-lethal weapons continue to face objections and misperceptions.

   This article will address the growing operational necessity for non-lethal weapons, the specific intent behind their development, e.g., the minimization of civilian casualties, and the legal review process to which all non-lethal weapons are subject. Finally, this article will address common misperceptions of the development and use of non-lethal weapons in the hope that these misperceptions may be corrected and allow interested readers to understand that the intent behind non-lethal weapons is to put more humane alternatives in the hands of our warfighters rather than leaving them with the stark choice between "shouting and shooting."

2. GROWING OPERATIONAL NECESSITY

   1. Somalia--the Prologue

      DoD's nonlethal weapons program grew out of the tactical needs of the U.S. operations in Somalia, between 1992 and 1995. Here, conflict and chaos occurred amongst the people--a change in the operational experience for Cold War-equipped forces, and a harbinger of things to come. With only verbal warnings and lethal force, U.S. forces were unable to stop the people from throwing rocks and Molotov cocktails, (9) openly looting military equipment, (10) and storming food trucks. (11) Somalis knew U.S. forces only used lethal force for self-defense.

      But, when self-defense was warranted, U.S. forces often faced horrific moral dilemmas. In the battle of Mogadishu, on 3-4 October 1993, Somali children walked down the street, pointing out U.S. Army Rangers' positions to a hidden shooter. (12) U.S. forces also faced a Somali gunman completely covered by civilians; he lay prone between two kneeling women and had four children sitting on him. (13) While these civilians forfeited their protection against direct attack under the law because of their willful actions, U.S. service members should have more alternatives available than resorting to lethal force.

      It is legal to engage civilians who are directly participating in hostilities. (14) However, "[killing these women and children did not come easily to American soldiers, but in the effort to stay alive, kill them they did, and at close range," wrote Robert F. Baumann, Lawrence A. Yates, and Versalle F. Washington in the Army study, "My Clan Against the World"--US and Coalition Forces in Somalia 1992-1991. (15)

      In preparing for the 1995 U.N. withdrawal from Somalia, U.S. Marines adopted non-lethal weapons. Marines saw them as helping minimize civilian casualties, while countering looters and rioters, who sought credit for "driving the Americans back into the sea." (16) Marine reservists, who used them in law enforcement, trained Marines to use oleoresin capsicum "pepper" spray; non-lethal shotgun rounds; non-lethal grenades projecting small rubber balls; road spikes or "caltrops"; and other devices. They were seen as force options, in addition to lethal force, but were not intended to replace the use of lethal force. (17)

      These non-lethal weapons deterred hostile crowds. While they had limited use in the withdrawal, Marines communicated their capabilities to the Somali population in advance. The U.N. withdrew from Somalia smoothly and without casualties. (18) Afterwards, task force commander, Lieutenant Gen. Anthony Zinni, USMC, reported, "Our experience in Somalia with non-lethal weapons offered ample testimony to the tremendous flexibility they offer to warriors on the field of battle." (19)

      Despite being well received by many users, non-lethal weapons were misperceived by others. Varying critics saw them as unworkable, unethical, and eroding the warrior ethos (20)--the first of many misperceptions that were to follow.

      But, the strongest supporters were warriors who knew war's moral dilemmas, particularly when lethal force was the only option. Referring to non-lethal weapons, then-Commandant of the Marine Corps, Gen. Charles Krulak, wrote in 1995, "[t]heir use better enables us to respond proportionately and with greater flexibility to the wide range of threats we can expect to face today and in the future." (21)

      More emphatic was Gen. John J. Sheehan, USMC, then-Supreme Allied Commander Atlantic and Commander, U.S. Atlantic Command: "This nation should no longer tolerate dedicated, professional troops equipped with the wrong tools for new, more complex missions.... Non-lethal weapons must be part of today's tool kit." (22)

   2. You Can't Kill Your Way to Victory--The Need for Non-Lethals Expands

      In 1996, the Non-Lethal Weapons Program was established, with Gen. Krulak readily accepting executive agent responsibilities. DoD issued policy noting that non-lethal weapons, "should enhance the capability of U.S. Forces to ... take military action in situations where use of lethal force is not the preferred option." Additionally, the policy stated that "The availability of non-lethal weapons shall not limit a commander's inherent authority and obligation to use all necessary means available and to take all appropriate action in self-defense." (23)

      It was fortuitous. In the world ahead, U.S. forces' need for non-lethal weapons would increase significantly and their use would expand in scope as illustrated below:

      * Sevce, Kosovo: A small number of U.S. forces fired non-lethal munitions, sponge grenades and stinger rounds, to stop a much larger, rock-throwing crowd. (24)

      * Al Kut, Iraq: In a city of 300,000, a Marine infantry battalion used non-lethal weapons almost daily to control crowds, often angry due to late fuel trucks. Eventually, just the breakout of the OC, or pepper spray cylinder, caused crowds to disperse. "Many Iraqi...