E LAW - MURDOCH UNIVERSITY ELECTRONIC JOURNAL OF LAW
ISSN 1321-8247
Volume 7 Number 2 (June, 2000)
Copyright E Law and/or authors
File: sautenet72.txt
ftp://cleo.murdoch.edu.au/pub/elaw/issues/v7n2/sautenet72.txt
http://www.murdoch.edu.au/elaw/issues/v7n2/sautenet72.html
________________________________________________________________________
Legal Issues Concerning Military Use Of Non-Lethal Weapons
Vincent Sautenet
Contents
* The Need For Non-Lethal Technologies
o Foreword
o Development of Non-Lethal Weapons Programs
o Rationale Underlying these Programs
o Using Non-Lethal Weapons
* Description Of The Non-Lethal Weapons Arsenal
o Counter-Personnel Capabilities
+ Crowd Control
+ Incapacitation of Personnel
+ Area Denial to Personnel
+ Clearing Facilities of Personnel
o Counter-Material Capabilities
+ Area Denial to Vehicles
+ Disabling Vehicles, Vessels and Facilities
* Scenarios For The Employment Of The Non-Lethal Arsenal
o Deployment Prior to War
o Riot Control
o Counter-Terrorism
o Counterinsurgencies
o Peacekeeping and Peacemaking
o Conventional Warfare
* The Legality Of The Non-Lethal Arsenal
o The Legal Framework
+ Principles of the Law of Armed Conflict
+ International Instruments
o Legal Review of the Actual Non-Lethal Arsenal
* Precautions In The Use Of The Non-Lethal Arsenal
o The Need for Proper Training and Rules of Engagement
o Guidelines for Proper Training and Rules of Engagement
+ Training
+ Rules of Engagement
* Conclusion
* Bibliography
* Notes
Today, a new arms race may be about to dawn on the planet a
push for weapons that minimize, rather than maximize,
lethality.
Alvin and Heidi Toffler, War and Anti War: Survival at the
Dawn of the Twentieth Century. Boston, MA: Little, Brown and
Company (1993).
However attractive developments in warfare technology may
be, there is still the staggering reality that war fighting
is chaotic and unpredictable.
Paul G. O'Conner, "Waging War with Non-lethal Weapons". In
Challenge and Response: Anticipating US Military Security
Concern. Edited by Dr. Karl P. Magyar, et al. Maxwell AFB,
AL: Air University Press (1994).
The Need For Non-Lethal Technologies
Foreword
1. The changes in the nature of conflicts has led the military to finding
more adequate approaches so as to spare as much as possible the
civilian population involved. One way is to define very strict rules
of engagement. The corollary is the safety of the forces involved,
which is likely to be affected if the threshold of the use of force is
increased. In other words it is not always an easy task to eliminate
the possibility of non-combatant casualties without placing friendly
forces at risk. There is a difficult equation to resolve (see figure
one).
[Image]
With the traditional lethal arsenal, increasing the safety of the
non-combatants of 10 per cent also decreases the protection of the
forces of 10 per cent (see figure two).
[Image]
2. This is the result of the lack of alternative between verbal warnings
and resort to lethal force. This does not allow much flexibility to
the commander confronted with situations involving hostile crowd, in
which the distinction between combatants and non-combatants is
blurred. The idealistic solution would be a weapon which purpose is
not to kill, allowing the military commander to fill the gap: a weapon
which could be employed in situations where the use of traditional
weaponry would not be permitted or would be rendered difficult. Such
non-lethal technologies, associated with lethal firepower, would lead
to a better protection of the non-combatants, without affecting the
protection of the soldiers involved. The option to resort to lethal
force would still be available to protect the forces, and at the same
time the option to use non-lethal force would allow a better
protection of the non-combatants (see figure 3).
[Image]
Such a solution does exist, and is being seriously developed by
various military-related authorities in the world.
Development of Non-Lethal Weapons Programs
3. The most significant program[1] is actually the United States
Department of Defence (hereafter DoD) Non Lethal Program, launched in
1996 by the creation of the Joint Non-Lethal Directorate (hereafter
JNLWD). The relevant document is DoD Directive 3000, which sets the
entire American policy for non-lethal weapons, which are defined as
follows:
Non-lethal weapons that are explicitly designed and
primarily employed so as to incapacitate personnel or
materiel, while minimizing fatalities, permanent injuries to
personnel, and undesired damage to property and the
environment.
1. Unlike conventional lethal weapons that destroy their
targets principally through blast, penetration and
fragmentation, non-lethal weapons only employ means
other than gross physical destruction to prevent the
target from functioning.
2. Non-lethal weapons are intended to have one, or both,
of the following characteristics:
1. They have relatively reversible effects on
personnel or materiel.
2. They affect objects differently within their area
of influence.[2]
4. According to this workable definition several points must be
highlighted. The first point is the concept of non-lethal intent. If
non-lethal weapons, when properly employed, should significantly
minimize casualties, one cannot reasonably expect a "zero probability
of producing casualties".[3] This is the reason why some government
organization, such as the National Institute of Justice prefer the
term less than lethal[4] emphasising the fact that "enough
marshmallows will kill you if properly placed".[5] Beside this purely
semantic issue, the element that separates non-lethal weapons from the
conventional munitions is the intent. Any lawful weapon can be used in
an unlawful way. Unintended effects can -and must- only be addressed
through the employment strategies.
5. The second point is that non-lethal weapons are not restricted to
peace-keeping, peace-enforcement or humanitarian missions. They can be
used across a wider spectrum of military operations, to "enhance the
effectiveness and efficiency of military operations".[6]
6. The third point is that they can be used in conjunction with the
traditional arsenal, and shall not in any case "limit a commander's
inherent authority and obligation to use all necessary means
available".[7] According to the guiding principles of the Commandant
of the Marine Corps, the Executive Agent for the DoD Non-Lethal
Program, non-lethal weapons shall "Augment Deadly Force". The enemy
would quickly discern a lack of will to employ deadly force.
Accordingly the non-lethal weapons provide commanders with a wider
choice of options, in a continuum.[8] The wider range of options
"augments deadly force but does not replace it".[9]
7. The German definition of non-lethal weapons is a follows:
Technical means whose intention is to obviate (prevent or
stop) hostile operations without causing death or lasting
injury to human beings. In addition, secondary effects
caused by the use of those means to innocent people,
property or environment shall be minimised.[10]
It reinforces the fact that non-lethal weapons are primarily designed
not to cause harm to personnel, materiel, or the environment. The
intent is a crucial characteristic.
8. So as to the range of military operations covered by the German
program, it is hard to tell. As many of its European counterparts, the
German government does not grant an access to the relevant
information. The Western industrialized countries seem to have adopted
a wait-and-see approach, mainly doing paper studies.[11]
9. One can only assume that the various non-lethal programs will at least
cover the lower spectrum of the conflicts, and one could reasonably
presume that their use will expand to conventional warfare. The
interaction between friendly troops, neutral, or hostile civilian
population has become "a feature of the contemporary operational
landscape".[12] Non-lethal weapons could be used to lower casualties.
In fact this is really the driving factor for the development
non-lethal concepts and weaponry.
Rationale Underlying these Programs
10. Those not totally convinced of the utility to lower casualties[13]
would nevertheless consider the potential for winning CNN (Cable News
Network) wars. The development of such programs is inevitable, and
reinforced - if not initiated- by what is called the "CNN factor".[14]
No military commander likes to see civilian casualties caused by a
military operation widely broadcasted around the globe. The footage
from the so-called "Highway of Death" during the Persian Gulf War may
have been a "milestone in the history of non-lethality".[15]
11. The foreseeable CNN effect is one element to take into account before
launching an attack. An illustration of this was the decision of
attacking the Iraqi intelligence headquarters in the framework of the
US Desert Storm operation. President Bill Clinton, before approving
the attack, asked the chairman of the Joint Chiefs Staff to give him a
probable number of civilian casualties to expect. The "potential media
fallout" [16] from civilian casualties has undoubtedly become "a key
consideration in conducting modern warfare" [17] The neutralization of
the CNN factor shall not be ignored.
12. Another rationale is the will minimize the damage to the equipment of
the adversary. This is a purely economic factor. The cost of
rebuilding a country after war can be "as staggering as the conduct of
the war itself".[18] Given the United States history of rebuilding
after waging war, non-lethal technologies are undoubtedly of a great
utility.
Using Non-Lethal Weapons
13. Operation United Shield, in Somalia, is considered as a landmark in
the DoD non-lethal experience. For the first time US forces (the US
Marine Corps 13th Marine Expeditionary Unit) were equipped and trained
to employ principally non-lethal means. The US armed forces also
deployed the non-lethal arsenal in Operation Restore Hope Democracy in
Haiti (between 1995 and 1996), and in 1996 and 1997 in the United
Nations Operation Joint Endeavour in Bosnia.[19]
14. This shows that many non-lethal items have been used since 1995.
Defense Planning Guidance FY 2000-2005 has concluded: "non-lethal
weapons have proven useful across the range of operations, including
both conventional combat operations and the many categories of
military operations other than war".[20] However "useful" these
technologies may be, their use necessarily attracts further comments.
A description of the functions of the non-lethal weapons shall
obviously be the starting point. The next elements of the present
study will give to the reader an overview of the various non-lethal
technologies actually available. The scenarios that will be provided
shall persuade -if there is a need for further persuasion- the
different military components of the tremendous potential of
non-lethal force. Nevertheless the legal dimensions shall not be left
aside. DoD directive 3000.3 is clear-cut on the need for such a legal
analysis of the new arsenal, which shall "ensure consistency with the
obligations assumed by the United States Government under all
applicable treaties, with customary international law, and in
particular the laws of war."[21]
15. The legality of the weapons themselves will be the basis for the legal
review. However a "zero probability of producing casualties"[22] shall
not be expected. As General Downing put it, "we can design a
projectile that will not kill a grown man, but will kill a child, or
someone who is old, infirm or sick."[23] Can such a "blind" weapon be
considered legal? Can a lawful weapon be used in an unlawful way? The
legal questions are tenuous and at the same time fundamental. The
soldier who will use the said "lawful" non-lethal weapon will
undoubtedly be interested in the legal effects of its use. The purpose
of the study is not to render these non-lethal weapons unusable. The
effect would be pervert. The issue -most of the time- is less an issue
of legality than an issue of proper training and proper rules of
engagement.
Description Of The Non-Lethal Weapons Arsenal
16. Non-lethal weapons can be classified by either their functions or
technology. The present study will be focused on the functional
elements of the non-lethal weapons arsenal, since its intent is more
to give the military or military-related potential reader a practical
overview of these new technologies, rather than a conceptual and
technical approach.
17. There are six functional areas established by the Joint Concept for
Non-Lethal Weapons, divided into two categories: counter-personnel and
counter-materiel (see figure 4).[24]
Figure 4: Core Capabilities
Counter Personnel Counter Materiel
Crowd Control Area Denial to Vehicles
Incapacitation of Personnel Disabling Vehicles, Vessels, and
Facilities
Area Denial to Personnel .
Clearing Facilities of
Personnel
These two major categories and the six functions will be described
below.[25] Tables including these functions will be provided to give
an overview of the actual arsenal.[26] However the study will as a
matter of fact be limited to the information labelled as "Approved for
Public Release", and mainly through the United States DoD Non-Lethal
Weapons Program, the "actual workhorse in the research and development
arena for non-lethal weapons".[27] Again this does not imply that
other Departments of Defense or other military agencies do not develop
such programs.
Counter-Personnel Capabilities
18. Non-lethal counter-personnel capabilities allow the use of military
force while reducing the risk of casualties among non-combatants or
-in some cases- amongst enemy forces.
Crowd Control
19. This capability will consist of the means to influence the behaviour
of a potentially hostile crowd, as well as the capability to control a
rioting mob, two scenarios widely encountered.
Incapacitation of Personnel
20. This capability will provide for a mean to capture specified
individuals, such as those hiding in a crowd, without arming the
individuals nearby. "Incapacitation" is achieved when weapon effects
result in either physical inability (real or perceived) or mental
disinclination to act in a hostile or threatening manner. The effects
should be reversible, in accordance with the guiding principles. They
could be directed at a group or at individuals.
Area Denial to Personnel
21. This capability can include physical barriers or systems which cause
discomfort to those who enter the denied area. It may provide
alternatives to anti-personnel landmines.[28]
Clearing Facilities of Personnel
22. This will facilitate military operations in urban terrain (MOUT) by
reducing the risks of non-combatants casualties and collateral damage
while simultaneously minimizing the advantages accruing to an enemy
defending a built-up area.
Table 1: Counter-Personnel Non-Lethal Weapons
TECHNOLOGY DESCRIPTION
Acoustics
Audible sound Low level annoying sounds to disperse
crowds.
Incapacitation, disorientation, nausea,
Infrasound vomiting, bowel spasms; effects stop
when generator is turned off, no
lingering physical damages.
Infrasound from non-linear
superposition of two
ultrasound beams (tested in Intolerable sensations.
Great Britain)
Very Low Frequency noise Disorientation, vomiting fits, bowel
spasms, uncontrollable defecation.
Biologicals
Incapacitates personnel, paralysing
Neural inhibitors synaptic pathways. Induces reversible
crippling effects
Chemicals
Quick-setting polymer foams. Immobilize
Adhesive agents targets and require special solvents to
remove. Mainly sticky foams.
Dense, rapidly expanding aqueous
Barriers bubbles. Isolates and immobilizes to
control evacuation or escape. May be
used with odours, dyes, etc.
Calmative agents Temporarily incapacitate personnel.
Hallucinogens Narcotics that disorient, confuse and
incapacitate.
Pepper spray, gases, etc. Causes
Irritants temporarily but intense and debilitating
pain.
Lubricants Turns dirt into chemical mud and makes
surfaces slippery.
Neuroblockers Tranquilizers darts and anesthetic
bullets. Causes incapacitation.
Loss of neurological control. The
Neuro-inhibitors nervous system “overheats” and gets out
of control.
Taggants Tracks personnel
Electromagnetics
Includes taser, dart and stun guns.
Electronic riffles Debilitates central nervous system,
short-circuiting human synoptic patways.
Causes incapacitation.
Pulsed High Power
Induces confusion, stupor or coma.
Microwaves (HPM)
Kinetics
Entanglement munitions Mainly nets.
Non-penetrating projectiles Stinger grenades, wax, wood and plastic
bullets.
Water cannons May be used with chemical additives.
Optics
Low energy lasers May be used to temporarily blind
personnel.
Optical munitions Flash bang grenades, pulsing light, etc.
Obscurants Inhibits observation.
Strobe lights Pulsed high-intensity light. Disorient.
Counter-Material Capabilities
23. Non-lethal counter-materiel capabilities would enhance operations by
reducing or eliminating the enemy's ability to use his equipment. It
will be less destructive than conventional weapons and more
productive. The risk of personnel casualties will be lowered.
Consequently political risks will be minimized.
Area Denial to Vehicles
24. This capability will mainly be used so as to deny land areas to
vehicles. It applies to wheeled, tracked, and surface-effects
vehicles, and may include physical barriers, systems which reduce the
trafficability of the terrain, or systems that render vehicles
temporarily inoperable within a zone of influence. They could also be
applied to air-space or sea-space.[29]
Disabling Vehicles, Vessels and Facilities
25. This capability covers a wide range of technologies, including systems
that alter the combustion properties of a carburant, the viscosity of
a lubricant, the ability of vehicles to gain traction. Other
technologies may attack rubber, tires, and insulation. Some non-lethal
devices may act as adhesives, others may offer the possibility to burn
out or shut down vehicles, vessels, aircraft electrical systems, fuse
the metal parts in key equipment.[30]
Table 2: Counter-materiel non-lethal weapons
TECHNOLOGY DESCRIPTION
Acoustics
Infrasound Disrupt metal and composite materials
Biologicals
Degrades roads and bridges surfaces,
Biodeteriorative microbes turns aviation fuel into jelly, “eats”
rubber of vehicle wheels.
Chemicals
Quick-setting polymer foams. Immobilize
targets and require special solvents to
Adhesive agents remove.
Super-caustics Acids that corrode or degrade structural
materials.
Contaminators Additives that cause fuel to gel or
solidify making it unusable.
Agents that change the molecular
Liquid metals structure of base metals or alloys,
significantly reducing their strength.
Embrittlement agents Could be used to attack critical metal
structures, aircrafts, ships, trucks,
metal treads.
Substances that cause lack of traction.
Lubricants Delivery by aircrafts. Can render roads,
ramps, railroads unusable for limited
time.
Taggants Tracks equipment, materiel.
Electromagnetics
Any variety of particles that can induce
Conductive particles short circuits in electrical or
electronic equipment.
Directed energy/Particle Destroys electronic systems. Changes
beams molecular structure of weapons rendering
them useless.
Pulse generators producing gigawatts of
power could be used to explode
ammunition dumps or paralyze electronic
Non-nuclear electromagnetic systems. Vulnerable systems include
pulse electronic ignition systems, radars,
communications, data processing,
navigation, and electronic triggers of
explosive devices.
Pulsed High Power
Disrupt and neutralizes electronics.
Microwaves (HPM) Shuts down engines, explode ammunition.
Kinetics
Ceramic shards Damages aircraft engines and degrades
air vehicle stealthiness.
Nets, meshes, cables, chains, etc.
Entanglement munitions Disables treads, propellers,
rotor-blades, and axles trapping
targets.
Optics
High energy lasers Destroy optical sensors
Includes laser rifles and anti-air laser
Low energy lasers canons. Overloads and disables
electro-optical sensors.
Optical munitions Anti-sensor munitions.
Obscurants Inhibits observation.
Scenarios For The Employment Of The Non-Lethal Arsenal
26. The civilian reader, and all the more so the military officer, shall
at this point appreciate the great potential of the non-lethal
arsenal. There shall be no need for further persuasion. Non-lethal
weapons do not change the basic nature of military operations, they
only add a new dimension by introducing new instruments in the
commander's military toolbox, enhancing operations.[31] As noted by
the U.S. Naval Postgraduate School Non-Lethal Weapons System
Engineering Study Team, there exist "a myriad of potentially promising
technologies".[32] While military operations other than war (MOOTW) is
a "growing arena of operations"[33] favourable to non-lethality,
non-lethal weapons cover the entire spectrum of military operations,
and may also be deployed prior to war.
Deployment Prior to War
27. Non-lethal weapons can be used at a tactical level, but also at a
strategic level, as a mean of delaying or defeating a potential enemy.
Employed in a coordinated way and aimed at the enemy's centres of
gravity, non-lethal weapons could cause paralysis within the enemy's
system, preventing aggressive actions, stopping a war from occurring,
or weakening the enemy's strategic war fighting capabilities.[34] In
other words, and as framed by Dr. Alexander, non-lethal weapons can be
used in a way to degrade the enemy's war fighting capabilities "to the
point that prolonged armed conflict is clearly not viable".[35]
28. It would only take a couple of electromagnetic non-lethal weapons (to
disrupt, neutralize or destroy electronics), contaminators and
biodeteriorative microbes (to render fuel unusable and degrade roads
and bridges surfaces), lubricants, etc. Such a preemptive strike with
such counter-materiel non-lethal technologies is not science fiction.
Land and sea-based aircrafts, as well as unmanned aerial vehicles,
could carry out such an attack. The scenario envisaged is close to the
one envisaged in the Joint Concept for Non-Lethal Weapons study[36]
and is to be considered as a serious option.
Riot Control
29. The example we may take is a scenario in which people, after various
incidents, begin to gather in front of an Embassy. In such cases,
depending on the intensity of the previous events, none of the people
may be armed, or only some of them, not requiring resort to lethal
force. They shout at the guards, hurl a few rocks. Then someone throws
a homemade bomb, another person fires at the guards, killing one. The
guards reply with aqueous foams laced with irritants, but the mass of
the rioters do not seem to withdraw. A small unmanned-aerial-vehicle
(UAV) appears, drops pepper spray and non-penetrating projectiles such
as Stinger grenades, wax, wood and plastic bullets. The crowd flees
the area.
Counter-Terrorism
30. In such operations the ideal weapon would be a weapon that
instantaneously and selectively disable the hostage takers, without
arming the victims. Non-lethal weapons do not seem to go that far.
However, as a typical and conventional hostage rescue usually involves
a violent plan that will almost inevitably harm the hostages
themselves, non-lethal weapons provide for a satisfactory alternative.
The actual counter-personnel technologies, such as acoustics, would
allow a "clean" intervention. The first step is to isolate the
neighborhood. Then armored personnel carriers mounting special
antennas can take positions. The vehicle crewman throws a switch, and
the system propagates an acoustic energy beam, which the antenna
directs against the building. The system is shut down. The operation
can be completed: the hostage takers and hostages are incapacitated,
the former can be neutralized, and the latter can be rescued.
Counterinsurgencies
31. As noted in a military study on non-lethal weapons, "the key to
winning a counterinsurgency is winning the hearts and minds of the
affected population".[37] In the event of a counterinsurgency
operation, it is often difficult to distinguish between friendly and
non-friendly people. Insurgents that are interspersed with innocent
civilians are hard to target with conventional weapons. In Vietnam the
only option when patrols were the targets of snipers firing from a
friendly village was either to fire back -and eventually take the risk
to generate friendly casualties- or to withdraw. Both options are not
satisfactory to win the heart of the population. Non-lethal weapons
offer the option to neutralize and capture. Capturing rather than
killing presents the advantage of possibly garnering intelligence from
the prisoner, a "critical element in defeating an insurgency".[38]
Peacekeeping and Peacemaking
32. Technologies have been developed to counter infrared and electronic
threats. However little has been done to defeat a sole sniper with a
rifle. A small number of snipers can nevertheless wreak havoc on an
entire city -as they did in Sarajevo-, bring down helicopters -as they
did in Mogadishu-, and destroy the morale of a normally effective
combat force.[39] To fill that gap, some military would suggest that
"a relatively simple laser device strapped on a helicopter could be
scanned to blind anyone looking in the direction of the aircraft
(emphasis added)" or that "likewise a laser scanned around a compound
or guard shack could blind anyone attempting to target the site
(emphasis added)".[40] To avoid the blinding aspect, there exist
systems which -using the optical reflection signature from the back of
the eye- are capable of locating anyone persistently looking at a
target. This would allow a human operator to neutralize the observer
with an anti-personnel non-lethal weapon other than a blinding laser.
Incapacitating rather than injuring or killing will necessarily be in
conformity with a peacekeeping operation.
33. In more critical situations such as peacemaking, where armed factions
might be opposed to others, -with sometime heavy equipment- other
non-lethal weapons could be useful to avoid confrontations. Some
non-lethal weapons are especially designed to provide for an
alternative to anti-personnel landmines, and even to anti-handling
devices. The peacemakers cannot physically control all the territory,
and such automatic devices could be placed in the remaining parts. The
Company Tasertron, the American exclusive manufacturer of non-lethal
Taser police and military weapons, has developed such a technology
with its partner Primex Technologies. It is called the Non-Lethal
Taser Area Denial Device.[41]
34. The complete system will be composed of seven or more independent
Taser modules, to avoid any failure. When the device is triggered by
any of the sensors, high voltage barbed darts will be fired, capable
of penetrating 2 inches or more of clothing. The intruder(s) will be
immediately incapacitated, and a coded alarm will be send to the
nearby troops to proceed to the capture. Such a system will be easily
reloaded, and could be deactivated from a remote position to avoid
accidental triggering by civilians. According to the company the
"missions" of the system are as follows:
Contribution to the Taser Area Denial Device to Mission
Accomplishment
o It would eliminate casualties of non-combatants.
o It would reduce the number of troops required to
maintain the security of an area.
o It could protect Anti-Tank mines from removal by
infantry.
o It would stop an intruding enemy force or delay a major
mass attack.
o It would give our troops early warning of an attack.
o It would prevent accidental death or injury to our
troops.
o It would permit the capture and interrogation of enemy
troops.
The advantages are numerous. The company even provides for a figure
describing the device:
[Image]
Conventional Warfare
35. The weapons used in the "Prior to war" scenario can be used, as well
as the entire non-lethal arsenal. Non-lethal weapons provide a natural
complement to the conventional weaponry within the military strategy.
The characteristics of theses fairly new technologies are prodigious.
While conventional munitions destroy everything within the radius of
the weapon, a non-lethal weapon precisely attacks specific components
of the enemy's infrastructure or military force.[42] As an example,
anti-electronic devices, while having a very wide radius of effect, do
not harm people or other infrastructure. This greater radius is
undoubtedly an advantage for military strategy. On a lower scale a
non-lethal weapon can neutralize a hostile element, while only
temporarily incapacitating friendly troops or civilians.
The Legality Of The Non-Lethal Arsenal
36. Assuring compliance with international instruments certainly
"complicates the debate".[43] However, the introduction of any new
class of weapons necessarily introduces legal considerations.
Non-lethal weapons shall not be an exception.[44]
37. In the U.S. a long standing Defense Department regulation requires
that any weapon undergo a legal review by the Judge Advocate General
of the military department to ensure that the weapon's intended use is
consistent with the "obligation assumed by the United Stated
government under all applicable treaties, with customary international
law, and, in particular, with the law of war".[45] Assessing the
legality of a new weapon is undoubtedly a necessary step. It does not
suggest ways to prohibiting them. As noted by the Independent Task
Force Study on Non-Lethal Weapons, 1995: "It would [...] be a tragic
irony if nations used lethal means against noncombatants because
non-lethal means were banned by international conventions".[46]
38. In assessing the legality of a new weapon, three issues have to be
addressed:
1. Would the weapon cause superfluous injury or unnecessary
suffering?
2. Would the weapon be controlled so as to strike only a lawful
target and therefore be discriminate in its effects?
3. Do rules or law already exist that prohibit its use?[47]
39. The two first issues refer to the basic principles of the law of armed
conflict, the prohibition of superfluous injury or unnecessary
suffering and the prohibition of indiscriminate attacks; the third
issue refers to the existing international instruments specifically
prohibiting certain weapons. This is the legal framework that will be
used in the following analysis. Since the non-lethal arsenal is
continuingly developing, the principles and relevant international
instruments will first be exposed, so as to provide for guidelines to
update a future analysis. Then the technologie described in Chapter
Two will be scrutinized.
The Legal Framework
Principles of the Law of Armed Conflict
40. According to article 36 of the Additional Protocol I to the Geneva
Conventions of 12 August 1977[48] (hereafter Protocol I), any High
Contracting Party has the obligation to assess the legality of a new
weapon in light of the provision of the protocol or other
international instruments. The main relevant provisions are articles
35 and [51]
41. Article 35 expressly prohibits arms that cause superfluous injury or
unnecessary suffering. Article 51 prohibits arms that are
indiscriminate in their effects. Even a leading country like the
United States -which did not ratify Protocol I- recognizes these
principles as "legally binding as customary law".[49] The
International Court of Justice, in its advisory opinion on nuclear
weapons, confirmed the meaning of these rules: certain weapons can be
illegal, whether a specific treaty prohibits them or not.[50]
The "superfluous injury or unnecessary suffering" principle
42. As far back as 1625, in De Jure Belli Ac Pacis, Grotius demonstrated
the necessity of temperamenta belli (or imposing limitations on the
destructive power of weapons to be used). The Hague Regulation of 1907
repeated this principle in article 22, stating: "the right of
belligerents to adopt means of injuring the enemy is not unlimited."51
Since then maxims such as "Kriegsraison geht vor Kriegsmanier" ("the
necessity of war take precedence over the rules of war") or "Not kennt
kein Gebot" ("necessity knows no law") do not seem to have prospered.
The prohibition of superfluous injury or unnecessary suffering is a
corollary of the above limitations. The object of combat is to disarm
the enemy; therefore it is prohibited to use any means or methods that
exceed what is necessary for rendering the enemy hors de combat. This
has always been applied to the existing weapons and to the development
of new technologies. It has been affirmed as early as 1868 in the
Saint Petersburg Declaration, in which the Parties "reserve to
themselves to come to an understanding [...] in view of future
improvements which science may effect in the armament of troops, in
order to maintain the principles which they have established, and to
conciliate the necessities of war with the laws of humanity."[52]
The "discrimination" principle
43. This is a fundamental principle of the law of armed conflict, if not
"the most fundamental".[53] Specifically applied to weapons, this
principle prohibits the means or methods of warfare that cannot be
directed against a specific military objective and are thus of a
nature to strike military objectives and civilians or civilians
objectives without distinction (article 51 par. 4, Protocol I). An
example given by the U.S. is SCUD missiles during the Gulf War.[54]
International Instruments
44. Only the most relevant conventions to non-lethal weapons will be
scrutinized (see infra table).
Table: Conventions Relevant to Non-lethal Weapons
Geneva Protocol for the Prohibition of the Use in War of
Asphyxiating, Poisonous, or Other Gases, and of Bacteriological
Warfare, of 17 June 1925
Biological Weapons Convention of 10 April 1972.
Chemical Weapons Convention of 13 January 1993.
Environnemental Modification Convention of 18 May 1977.
Nairobi International Telecommunications Convention of 10 January
1986.
45. The Geneva Protocol for the Prohibition of the Use in War of
Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods
of Warfare of June 1925 ("Geneva Protocol") limits use (but not
expressly possession) of chemical and biological weapons. The U.S.
understands this limitation as a first use ban of lethal or
incapacitating chemical weapons. In 1969 the U.S. renounced all
methods of bacteriological (biological) warfare, renunciation
subsequently codified in the 1972 Biological Convention (discussed
infra). At the time of ratification of the Geneva Protocol the U.S.
renounced first use of riot control agents or herbicides in war except
in defensive military modes to safe lives (we underline). This policy
remains in effect in Executive Order 11850 notwithstanding U.S.
signature of the 1993 Chemical Weapons Convention, discussed infra.
Consistent with this, riot control agents have been authorized for use
in recent operations such as Somalia and Haiti.[55]
46. The Convention on the Prohibition of the Development, Production and
Stockpiling of Bacteriological (Biological) and Toxin Weapons and on
Their Destruction of 10 April 1972 ("Biological Weapons
Convention")avows:
"never in any circumstances to develop, produce, stockpile
or otherwise acquire or retain [...] microbial or other
biological agents, or toxins whatever their origin or method
of production, of types and in quantities that have no
justification for prophylactic, protective or other peaceful
purpose, [or] weapons, equipment or means of delivery
designed to use such agents or toxins for hostile purposes
or in armed conflict."
No distinction is made with regard to the lethal or non-lethal intent
of the user.[56]
47. The Convention on the Prohibition of the Development, Production,
Stockpiling and Use of Chemical Weapons and on Their Destruction of 13
January 1993 ("Chemical Weapons Convention") prohibits, "under any
circumstances", the development, production or other acquisition,
stockpiling or retention of chemical weapons. While chemical weapons
are defined as those "specifically designed to cause death or other
harm" and "any chemical which through its chemical action on life
processes can cause death, temporary incapacitation or permanent harms
to human and animals", the intent was to prohibit the use of chemicals
for anti-personnel and anti-materiel purposes, lethal or non-lethal.
It also prohibits riot control agents as a "method of warfare". As far
as the U.S. Army is concerned, Executive Order 11850, as already
mentioned, remains in effect, even if the Clinton Administration has
suggested that the Convention would limit the use of riot control
agents where combatants are present. [57]
48. The Convention on the Prohibition of Military or any Other Hostile Use
of Environmental Modification Techniques of 18 May 1977 ("ENMOD
Convention") regulates use of environmental modification techniques as
a method of warfare. It defines environmental modification techniques
as "changing through deliberate manipulation of natural process the
dynamics, composition, or structure of the earth, including its biota,
lithosphere, hydrosphere, and atmosphere, or of outer space". ENMOD
prohibits techniques having "widespread" (several hundreds of square
meters), "long-lasting" (months), or "severe" (serious or significant
disruption or harm to human life, natural and economic resources, or
other assets) environmental effects as the means of destruction,
damage, or injury to any other State Party.
49. The Nairobi International Telecommunications Convention of 10 January
1986 ("Nairobi Convention") restricts the use of electromagnetic
weapons. Article 35 (1) prohibits "harmful interference" with the
radio services or communications of Member States. The U.S. is not
party to this treaty. However it has implemented its provisions by
incorporating them into U.S. law (47 U.S Code 502). Treaty provisions
do not apply during "wartime", which is not defined.
Legal Review of the Actual Non-Lethal Arsenal
50. To date the Navy Judge Advocate General has completed reviews of
several non-lethal weapons.[58] Unfortunately, despite many repeated
attempts to access these studies, the author had no other alternative
than forging his own legal review.[59]
51. The clearest way was to assess the legality of the non-lethal arsenal
technology by considering the effects of each technology. The effects
of both anti-personnel and anti-materiel core capabilities will be
assessed, mainly through their biological effects on human beings. A
very complete military study clearly shows that the effects of most
non-lethal weapons will vary, depending on the size, weight, gender,
age, and/or health of the targeted person.[60] The variability of
human responses will also be taken into account below, as far as the
use of the legal weapons is concerned.
ACOUSTICS
52. Effects on the anti-personnel acoustic non-lethal weapons are mainly
annoying effects. However it is not clear whether some infrasound
emissions could not have deafening effects.[61] Laboratories studies
are definitely needed.[62] An interesting analogy shall be drawn with
laser weapons.[63]
MICROBES
53. Microbes (biodeteriotative microbes) did not receive approval for
development by the U.S. Deputy Assistant Judge Advocate General. This
technology was held to violate the Biological Weapons Convention.[64]
This does not require further comment, as any other sage decision.
CHEMICALS
54. Only problematic chemicals will be analyzed. For anti-materiel
chemicals, the concern is more on their delivery.
(i) Sticky Foam
Sticky foam does not rely on any toxic properties to disrupt
human life processes. It cannot be considered as a riot control
agent, which is a chemical prohibited by the Chemical Weapons
Convention when its toxic properties are intended as the primary
means of inflicting temporary disability. It is its binding
property -not its toxicity- that characterizes this weapon.
However possible delayed effects - such as cancer, neural, or
reproductive consequences of certain chemicals need to be
considered. For example one of the components of sticky foam,
butadiene, has been shown to cause cancer in animals.[65]
This would certainly fall under the unnecessary suffering or
superfluous injury principle. Sticky foams also raise an
international environmental law issue, under the Montreal
Protocol on Substances that Deplete the Ozone Layer.
Dichlorodifluoromethane or Freon-12 is an ingredient comprising
30-32% of Sticky Foam. Freon-12 is placed on a list of controlled
substances, phased out on an accelerated basis.[66] Sticky foam
could be deleted from the non-lethal technologies. If maintained,
extreme caution shall be taken in their use.
(ii) Barrier Foam
Under the Chemical Weapons Convention barrier foam, classified as
a riot control agent, may not be used against combatants in armed
conflicts.[67]
Otherwise it appears to be legal. Extreme caution shall be taken
in its use.
(iii) Pepper Spray
Pepper spray is composed of oleoresin capsicum (a natural extract
of chili pepper), ingredient that causes a burning sensation upon
contact, inflammation and tearing of the eyes. When inhaled it
can cause swelling to the mucous membranes and a sensation of
shortness of breath.[68]
Tested on animals, effects are salivation, lacrimination, urine
stains, and dark material around the facial area. No lethal
consequences were shown. The animals (rats and mice) were
submitted to a whole body exposure, in a confined place. Such
extreme conditions are not very likely to happen, but pepper
spray still appears to be on the borderline of legality. Extreme
caution shall be taken in its use.
(iv) Neuro-inhibitors
They have the same effect as chemicals used in anesthetics
blocks. They impede the transmission of signals between nerves.
The danger is the same that with anesthetics. It is a question of
proper dosage. Neuro-inhibitors shall not be outlawed. Although,
like gastrointestinal convulsive, hallucinogens, calmative
agents, they could be considered as "temporary incapacitants" and
therefore defined as chemicals prohibited by the Chemical Weapons
Convention for any purpose.[69]
This does not seem to be the case, since only vomiting agents
have been stricken from the U.S. list of non-lethal technologies
for this reason.[70]
Extreme caution shall be taken in their use.
ELECTROMAGNETICS
55. Most of the electromagnetic anti-personnel technologies use electrical
neuro-inhibition.[71] The potential risk would be the inadvertent
stimulation of one of the body's life sustaining systems.[72]
Fortunately the cardiac tissues respond to a different wavelength than
the conscious nervous system. A person can be neutralized without
impairing functionality of the cardiac system. Like chemical
neuro-inhibitors, it is a question of proper dosage. They shall not be
outlawed, but extreme caution shall be taken in their use.
KINETICS
56. Weapons using kinetic force simply knock down the target by imparting
sufficient momentum to the body of the target to knock it to the
ground or to stun severely. If the cost and effectiveness of kinetic
force instruments are significant advantages, "force metering and
placement impact are significant problems".[73]
57. Materials such as rubber or wood do not seem to be too dangerous.
However it has been shown that even rubber bullets could be
lethal.[74] The trade-off between effectiveness and injury is
intricate. For example the kinetic force required to drop a 200 pounds
individual is not the same as the kinetic force required to drop a 100
pounds individual. Even if properly dosed, the effect will not be the
same if it hits the legs, or if it hits the head or the central
sternum. There are presently no "firmly established, universal design
criteria to ensure that the terminal effect will be below the
threshold of unacceptable injury against a specified range of the
populace".[75] If they do not appear to be unlawful according to the
principles governing weapons or according to the international
instruments, extreme caution shall be taken in their use.
OPTICS
58. Obviously the main concern is the use of lasers. There is a multitude
of different laser devices, as demonstrated by the various uses
described in Chapter Two. Blinding lasers are, under the Fourth
Protocol to the 1980 Convention on Certain Conventional Weapons
("Protocol on Blinding Laser Weapons", prohibited.[76]
59. The main concern is whether or not the laser developed technology
falls under the category of non-blinding lasers or not. Even the U.S.,
under the pressure from several international agencies, adopted a ban
on « lasers weapons specifically designed, as their sole combat
function or as one of their combat functions, to cause permanent
blindness to unenhanced vision".[77] A proposal to this effect was
included in the working paper submitted by the U.S.A.[78]
60. It is worth noting that among the organizations calling for the 1995
ban, there were also military associations such as the Blinded
Veterans Association or the World Veterans Association,[79] some of
their members themselves victims of similar effects due to the use of
gases in former conflicts. Combatants have their own code of conduct,
in which being injured by a non-visible weapon such as gas or laser
does not appear in good position. They fear more these technologies
than facing a bullet. Since laser devices appeared to have a dual use
(i.e. use against optical systems and against eyesight), the term
"specifically designed" finally used in article 1 also appeared to be
at the center of the debate.[80] However the semantic issue was not
resolved, since no one suggested describing the technical
characteristics of such a weapon.[81]
61. The protocol is nevertheless clear on the fact that the transfer of
laser weapons designed to cause "permanent blindness" is prohibited.
Controlling the production would have required verification measures,
and that there was no time to negotiate the issue. According to the
above analysis, none of the non-lethal laser weapons described in
Chapter Two appear to be strictly prohibited. This is according to the
characteristic given by the U.S. Department of Defense. Projects such
as the "Eye-Safe Illuminators" developed by the Science and
Engineering Associates [82] seem to be in conformity with the actual
state of international law. Their effects are illumination, glare,
flashblinding and psychological impact. Through their effects they can
(1) provide unequivocal warning; (2) create hesitation, delay,
distraction; (3) reduce combat and firearm proficiency. The Non-Lethal
Eye-Safe Illuminators are said to be "as eye-safe as the sun", they
"do not blind".[83] But while trying to sell its "Eye-Safe
Illuminators", the company points out that if their non-lethal laser
device does not blind, this is not true of all laser technologies. It
is clearly mentioned that the highest power lasers -like those
employed for anti-materiel purposes- could burn the skin as well as
the eyes. Also "as safe as the sun" has been defined as blinding "if
one stares into the laser illuminators for several seconds or views it
through magnifying optics". If one would certainly quit staring at the
device when the first sensation of burn arises, the other -staring
through "magnifying optics"- would have no other alternative that
being blind... Again, extreme caution shall be taken in their use.
Precautions In The Use Of The Non-Lethal Arsenal
62. It is alleged that U.S. Marines, in Somalia, were unable to fully
utilize sticky foams "as coating someone entirely in it could have
been lethal if it covered the faces of the Somalians.[84] This is
more, however, a matter of the legality of the use of this weapon than
a matter of the legality of the weapon itself. This is particularly
alarming -although predictable-especially when developments towards
unmanned aerial vehicles (UAV) delivery is seriously considered as an
option for crowd control or area denial.[85]
63. If soldiers on the ground are not able to avoid firing at the target
face, how could an airplane, controlled by a video camera, fire at the
legs? And even if the UAV delivery is not considered as an option, one
can easily imagine how hard it would be not to fire at the face of a
child standing near the targeted legs of an adult. This situation is
very likely to happen in the scenarios envisaged by the U.S. DoD. This
is exactly what "precautions in the use of non-lethal weapons" is all
about. Fundamental concepts of training and employment are needed, and
are certainly "more critical than the technology itself".[86] Lawful
weapons can be used in an unlawful way.
The Need for Proper Training and Rules of Engagement
64. In the previous chapter the legality of the non-lethal arsenal has
been under scrutiny, mainly according to the law of armed conflict,
and only regarding the arsenal itself. The use of the remaining legal
technologies has not been analyzed. However it is not a reason to
circumvent the issue. The law of armed conflict is not the sole corpus
of law. International human rights law is also obviously concerned.
The International Court of Justice (hereafter ICJ), in its Advisory
Opinion on the Legality of the Threat or Use of Nuclear Weapons,
addressed the relationship between these two branches of public
international law as regard to the right to life:
The Court observes that the protection of the International
Covenant of Civil and Political Rights does not cease in
times of war, except by operation of Article 4 of the
Covenant whereby certain provisions may be derogated from in
a time of national emergency. Respect for the right to life
is not, however, such a provision. In principle, the right
not arbitrarily to be deprived of one's life applies also in
hostilities. The test of what is an arbitrary deprivation of
life, however, then falls to be determined by the applicable
lex specialis, namely, the law applicable in armed conflict
which is designed to regulate the conduct of hostilities.
Thus whether a particular loss of life, through the use of a
certain weapon in warfare, is to be considered an arbitrary
deprivation of life contrary to Article 6 of the Covenant,
can only be decided by reference to the law applicable in
armed conflict and not deduced from the terms of the
Covenant itself.[87]
65. It is true that the use of a certain weapon in warfare cannot be
addressed by the sole terms of the Covenant itself. Accordingly, as
developed by Sir Nigel Rodley, the body of international humanitarian
law, could be used, both in international and non-international armed
conflicts.[88] Nevertheless this does not necessarily imply that at
the regional level other instruments cannot properly address the
issue. In fact the European Court of Human Rights has developed rules,
necessity and proportionality, as regards killings as necessary
measures of law enforcement. These rules can be regarded as "essential
adjuncts in delimiting the scope of the exceptions to the right to
life".[89] The necessity principle is provided for in the formulation
of article 2 of the European Convention on Human Rights: the use of
force is to be "no more than absolutely necessary"[90] to achieve the
stated purposes. The concept of necessity applies to nature of the law
enforcement objective.
66. In Stewart v. United Kingdom,[91] the European Commission of Human
Rights stated that for the use of force to be "no more than absolutely
necessary" to achieve the objectives permitted by article 2, it had to
be "strictly proportionate to the achievement of the permitted
purpose".[92] In this case the use of a non-lethal device (plastic
baton round or rubber bullet), which in fact killed a 13 years old
boy, was deemed "proportionate", and therefore the application was
declared inadmissible. The Commission apparently took into account the
fact that the soldier who fired the shot was "trained and
experienced", that he had "aimed at the leg of the rioter" near the
victim, but that this aim had been "disturbed at the moment of
discharge".[93] If the soldier had not been properly trained, and if
he had not be subjected to proper rules of engagement (not firing at
the head), the Commission would certainly have concluded otherwise.
Guidelines for Proper Training and Rules of Engagement
Training
67. The non-lethal arsenal requires "quick decisions in stressful
situations".[94] The individual troop may have to decide when to
switch from non-lethal to lethal and back to non-lethal force in a
given situation. It would be regrettable if a soldier shoots at a
fleeing individual with sticky foam and then accidentally -in the
stressfulness of the situation- shoots the individual down with a
lethal bullet. According to the present state of the technology, this
could easily happen, since the M203 used to fire the sticky foam
device is nothing more than a M16 with an additional trigger (see
infra).
40 mm Grenade Launcher (used for sticky foam)
[Image]
M203 (M16 coupled with the 40 mm Grenade Launcher)
[Image]
68. As noted by the U.S. Departement of Defense in the Multiservice
Procedure for the Tactical Employment of Nonlethal Weapons, "[t]he
successfulness accomplishment of any operation in which nonlethal
measures are employed requires extensive preparation [...] training
with the nonlethal capability set is critical".[95] It devoted an
entire chapter to the issue.[96]
69. The training of instructors seems to be the first step. The Marine
Corps and the Army developed a Program of Instruction (POI) for a
Nonlethal Individual Instructor Course (hereafter NIWIC), which
apparently is the only formal DoD nonlethal training course at the
present time.[97] The NIWIC is a "train the trainer" program designed
to provide commanders non-lethal instructors within their command. It
includes subcourses on the concept of force continuum, crowd
dynamics/crowd control techniques, communication skills, oleoresin
capsicum aerosol training, proper placement of foam, etc. Live fire
exercises with the non-lethal arsenal are obviously a major part of
the program. At the end the instructors will have the task to train
the units, but also the leaders. It appears that for most of the
non-lethal weapons, and especially those classified under "specialty
impact munitions", headshots are "unacceptable". This should also be
true regarding sticky foam, as the reality of field operations has
already shown.[98] As the DoD puts it, an understanding of the topics
covered in the NIWIC is "recommended". However an "indepth
understanding" of the ROE is crucial.
Rules of Engagement
70. Rules of engagement (hereafter ROE) are "one of the cornerstones" of
the operational law discipline.[99] The success or the failure of any
operation largely depends on the ROE, although at last it is the
responsibility of the commander. There are basically two definitions
of the ROE:
o Technical definition (strategic/operational level): ROE are
directives issued by competent military authority to delineate
the circumstances and limitations under which its own naval,
ground, and air forces will initiate and/or continue combat
engagement with other forces encountered. They are the means by
which the National Command Authority (NCA) and operational
commanders regulate the use of armed force in the context of
applicable political and military policy and domestic and
international law.
o The practical (operational/tactical level) definition of ROE: ROE
are the commander's rules for the use of force.[100]
Their purpose is to impose political, practical (military), and legal
limitations to commanders.[101]
71. The political aspect is what could be described as the policy of the
concerned State, i.e. the way a State intends to play by the rules.
Military speaking ROE define the mission by limiting the use of force
in a manner consistent with the overall military objective: when/at
whom/fire at all/which weapon shall be used. The legal purposes derive
from the nature of the mission. For many contemporary mission -and
especially peace operation- the mission is stated in a legal document
such as a U.N. Security Council Resolution (for example UNSCR 940 in
Haiti). They also largely depend on the laws of war, although their
purpose is not to be a substitute for/or a restatement of the Hague
and Geneva Conventions, but to provide guidance to commanders and
soldiers concerning the use of force. They must be as simple and as
explicit as possible. A good example is "RAMP": Return fire with aimed
fire; Anticipate attack; Measure the amount of force that you use, if
time and circumstances permit; Protect with deadly force only human
life, and property designed by your commander.[102]
72. During Operation United Shield in Somalia the troops were able to use
most of the non-lethal arsenal. They had been trained for that purpose
and unclassified ROE were released.[103] The resort to non-lethal
force was not really clearly framed. As noted by Lorenz they were
"based on the assumption that there is a clear-cut distinction between
the use of deadly force and all other means of force [...] approach
not consistent with the practice in the civilian law enforcement
field, where the use of force is viewed as a continuum of action
rather than a black or white alternative" (we underline).[104]
73. The use of non-lethal weapons was apparently restricted to situations
where the use of deadly force was permitted. In such a case nothings
really encourages a soldier to resort to less lethal means, if he has
to wait until his own life is at risk. Even with the best training,
such ROE almost render non-lethal weapons useless.
Conclusion
74. Non-lethal weapons, by filling the gap between verbal warnings and
resort to lethal force, allow much more flexibility to the commander
confronted with situations where the use of traditional weaponry would
not be permitted or would be rendered difficult. They have proven
useful across a wide range of operations. They are primarily designed
not to cause harm to personnel, materiel, or the environment; however
lethal consequences might be expected. They are to be used in a force
continuum and as such improper training and/or improper rules of
engagement could lead to death. As shown in the legal review and in
the chapter related to the use of the non-lethal arsenal, extreme
cautions should be taken: even legal weapons can be used in an
unlawful way. The availability of the data did not allow an in-depth
study of their potential effects, but as quoted at the beginning of
the present study, war fighting is "chaotic and unpredictable.[105]
75. This uncertainty does not imply that non-lethal weapons shall be
banned. In fact their use shall largely be encouraged. In Gülec v.
Turkey the European Court on Human Rights even went as far as
"condemning" Turkey for not using non-lethal means, in a situation
where it would have proven useful:
The Court, like the Commission, accepts that the use of
force may be justified in the present case under paragraph 2
(c) of Article 2, but it goes without saying that a balance
must be struck between the aim pursued and the means
employed to achieve it. The gendarmes used a very powerful
weapon because they apparently did not have truncheons, riot
shields, water cannon, rubber bullets or tear gas. The lack
of such equipment is all the more incomprehensible and
unacceptable because the province of Sirnak, as the
Government pointed out, is in a region in which a state of
emergency has been declared, where at the materiel time
disorder could have been expected.[106]
It concluded: "in the circumstances of the case the force used to
disperse the demonstrators, which caused the death of Ahmet Güleç, was
not absolutely necessary within the meaning of Article 2".[107]
76. The approach of the Court may persuade other regional or international
bodies to encourage the development of non-lethal means, or at least
less-than-lethal means, depending on the semantic approach (and
willingness) of the States.
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Jeffrey M. Widder, Donald J. Butz, and Janice M. Milosh, Assessing the
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Miscellaneous
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Notes
[1] The U.S. Department of Defence is the only one to grant an access to
its non-lethal technologies program, through a complete database of
information widely available to the public. Department of Defense Joint
Non-Lethal Weapons Program Home Page,
, accessed February 2000.
[2] U.S Department of Defense Directive number 3000.3, July 9, 1996,
,
accessed February 2000.
[3] Ibid, page 2.
[4] National Institute of Justice Initiative on Less-Than-Lethal Weapons,
National Institute of Justice Research in Brief, March 1993.
[5] Non-Lethal Weapons Give Peacekeepers Flexibility, Aviation Week and
Space Technology, 7 December 1992, page 50.
[6] Dod Directive 3000.3, supra note 2, page 2.
[7] Ibid.
[8] Joint Concept for Non-Lethal Weapons, January 1998, page 7, at
,
accessed February 2000.
[9] Ibid.
[10] Non-Lethal Defense III Conference, Non-Lethal Activities at ICT, at
, accessed February 2000.
[11] Reports from Russia indicate that there is considerable interest in
non-lethal technologies. See for example R. Kokosky, "Non-Lethal Weapons: A
Case Study of New Technology Developments", in SIPRI Yearbook 1994: World
Armaments and Disarmament (Stockholm/Oxford: SIPRI/Oxford University Press,
1994), pp. 367-386.
[12] See Joint Concept for Non-Lethal Weapons, supra note 8, page 3.
[13] Martin N. Stanton, « What Prices Sticky Foam », Parameters, Autumn
1996. At
,
accessed February 2000.
[14] Stech, Frank J., "Winning CNN Wars", Parameters, Autumn 1994. pp.
37-56. At ,
accessed February 2000.
[15] Mark R. Thomas, Major, US Air Force. "Non-Lethal Weaponry: A Framework
for Future Integration", Air Command and Staff College Air University,
Maxwell Air Force Base, Alabama, April 1998. At
, accessed March
2000.
[16] Capt. Edward P. O'Connel and 1st Lt. John T. Dillaplain, "Nonlethal
concepts: Implications for Air Force Intelligence", Airpower Journal,
Winter 94. At
,
accessed February 2000.
[17] See supra note 13.
[18] Paul G. O'Conner, "Waging War with Non-Lethal Weapons". In Challenge
and Response: Anticipating US Military Security Concern. Edited by Dr. Karl
P. Magyar, et al. Maxwell AFB, AL: Air University Press (1994), page 335.
[19] Nick Lewer, "Non-Lethal Weapons", Forum for Applied Research and
Public Policy, summer 1999, exclusively online at
, accessed February 2000.
[20] Cited in "Non-Lethal Technologies: Progress and Prospects",
Independent Task Force Report, Council on Foreign Relations, at
, accessed February 2000.
[21] Dod Directive 3000.3, supra note 2, page 3.
[22] Ibid, page 2.
[23] "One On One", Defense News 9, N° 14 (11-17 April 1994), page 30.
[24] See supra note 8, Joint Concept for Non-Lethal Weapons, January 1998,
pp. 11-12.
[25] In light of the Non-Lethal Weapons Multi-Service Procedure for The
Tactical Employment of Non-Lethal Weapons, Army, Marine Corps, Navy, FM
90-40. At
,
accessed March 2000.
[26] Table compiled from the following documents: - USAF Colonel Joseph
Siniscalchi, Non-Lethal Technologies: Implications for Military Strategy,
Occasional Paper No. 3, Center for Strategy and Technology, Air War
College, Air University, Maxwell Air Force Base, Alabama, March 1998, at
, accessed February
2000. - USAF Major Mark R. Thomas, Non-Lethal Weaponry: A Framework for
Future Integration, AU/ACSC/279/1998-04, Air Command and Staff College, Air
University, Maxwell Air Force Base, Alabama, April 1998, at
, accessed March
2000. - Joint Concept for Non-Lethal Weapons, January 1998, supra note 8. -
Non-Lethal Weapons Multi-Service Procedure for The Tactical Employment of
Non-Lethal Weapons, Army, Marine Corps, Navy, FM 90-40, supra note 25.
[27] Speech of Martin R. Steele, Lieutenant General, U.S. Marine Corps,
Deputy Chief of Staff, at the Non-Lethal Defense III Conference, Johns
Hopkins University, 25 February 1998, page 4. At
,
accessed February 2000.
[28] See James F. McNulty, A Non-Lethal Alternative to Anti-Personnel Land
Mines, Non-Lethal Defense III, Johns Hopkins Applied Physics Laboratory,
February 25-26 1998. At ,
accessed February 2000.
[29] For air-space or sea-space the documents are rare. However it is clear
that such technologies are being developed. The non-lethality is not clear
when applied to aircrafts. If a pilot enters a zone of influence of a
system which renders the aircraft/helicopter inoperable, this may cause
-obviously- a problem.
[30] Again, regarding aircrafts, the non-lethality is dubious.
[31] Joint Concept for Non-Lethal Weapons, January 1998, supra note 8, page
13.
[32] A Scenario Based Methodology for the Selection of Non-Lethal Weapons,
Non-Lethal Weapons System Engineering Study Team, Combat Systems Science
and Technology Curriculum, Naval Postgraduate School, Monterey, CA, page 2.
At , accessed February 2000.
[33] USAF Major Mark R. Thomas, Non-Lethal Weaponry: A Framework for Future
Integration, page 16, supra note 26.
[34] Klaaren, Maj Jonathan W., and Maj Ronald S. Mitchell, "Nonlethal
Technology and Airpower: A Winning Combination for Strategic Paralysis",
Airpower Journal, Special Edition 1995, pp. 42-51. At
http://www.airpower.maxwell.af.mil/airchronicles/apj/mitchkla.html,
accessed February 2000.
[35] John B. Alexander, Non-Lethal Weapons as Force Options for the Army,
LA-UR-94-861 (Los Alamos, NM: Los Alamos National Laboratory, March 1994),
page 6. Quoted in USAF Major Mark R. Thomas, Non-Lethal Weaponry: A
Framework for Future Integration, page 19. See supra note 26.
[36] Joint Concept for Non-Lethal Weapons, January 1998. See supra note 8,
page 15.
[37] Cook, Maj Joseph W., III., Maj David P. Fiely, and Maj Maura T.
McGowan. "Nonlethal Weapons: Technologies, Legalities, and Potential
Policies," Special Edition 1995, pp. 77-91. At
,
accessed March 2000.
[38] Ibid.
[39] Ibid.
[40] Ibid. The added emphasis shall be explained latter, when dealing with
the question of the legality of the non-lethal arsenal.
[41] James F. Mc Nulty, A Non-Lethal Alternative to Anti-Personnel
Landmines, supra note 28.
[42] On the characteristics of non-lethal weapons, see Non-Lethal
Technologies: Implications for Military Strategy, supra note 26.
[43] Non-Lethal Technologies: Implications for Military Strategy, supra
note 26.
[44] Col John Barry, LTC Michael Everett, Lt Col Allen Peck, "Nonlethal
Military Means: New Leverage for a New Era", National Security Program
Policy Analysis Paper 94-01, John F. Kennedy School of Government, Harvard
University, 1994.
[45] U.S. Defense Department, "Review of Legality of Weapons under
International Law", Instruction 5500.15, 16 October 1974.
[46] "Non-Lethal Technologies: Military Options and Implications", Report
of an Independent Task Force, New York, NY, Council on Foreign Relations,
1995.
[47] Lt Margaret-Anne Coppernoll, "The Non-Lethal Weapons Debate", Military
Press, Spring 1999. At
, accessed
February 2000.
[48] Protocol Additional to the Geneva Conventions of 12 August 1949, and
Relating to the Protection of Victims of Non-International Armed Conflicts,
Dec. 12, 1977, 1125 U.N.T.S. 609, 16 I.L.M
[49] See Chapter 7, The Law of War, serving as a framework for U.S. Judge
Advocates. At
,
accessed March 2000.
[50] Legality of the Threat or Use of Nuclear Weapons, General List N° 95,
Advisory Opinion of the International Court of Justice, 8 July 1996, par.
78-79 (35 I.L.M. 809 [1996]).
[51] See Convention (IV) Respecting the Laws and Customs of War on Land,
Oct. 18, 1907, 205 Consol. T.S. 277, reprinted in The Hague Conventions and
Declarations of 1899 and 1907, at 157-62 (John B. Scott ed., 1918).
[52] Declaration Renouncing the Use, in Time of War, of certain Explosive
Projectiles. Saint Petersburg, 29 November/11 December 1868.
[53] See U.S. Operational Law Handbook, Chapter 7, The Law of War, serving
as a framework for U.S. Judge Advocates. See supra note 49.
[54] Ibid.
[55] From U.S. DoDTradoc Pamphlet 525-73, Military Operations: Concept for
Nonlethal Capabilities in Army Operations, Appendix C.
[56] Ibid.
[57] Ibid.
[58] U.S. Navy Dept., Judge Advocate General [hereafter JAG], memoranda:
"Legal Review of Stinger Grenades," 25 January 1995; "Legal Review of 12
Gauge Shotgun Bean Bag/Rubber Pellet/Wood Baton Rounds," 30 January 1995;
"Legal Review of 40 mm Rubber Pellet/Foam Rubber Multiple Baton/Bean
Bag/Wood Multiple Baton Rounds," 30 January 1995; "Legal Review of
Sticky/Restraining Foam," 6 February 1995; "Legal Review of Barrier Foam,"
6 February 1995; and "Legal Review of 40 mm Practice M781 Round Modified
with Foam Rubber Projectile," 7 February 1995. For the M781 see "Mortar
Systems Information (M931)," FSAC Mortar Office Home Page,
(29 June 1998).
Cited in Lt Margaret-Anne Coppernoll, "The Non-Lethal Weapons Debate",
supra note 47.
[59] The author nevertheless is very grateful to the various U.S. military
officers for their contribution to this study, either by the materials they
published, or directly through the numerous contacts via electronic mail.
[60] Michael R. Murphy, Biological Effects of Non-Lethal Weapons: Issues
and Solutions, Directed Energy Bioeffects Division, Human Effectiveness
Directorate, Air Force Research Laboratory, Brooks Air Force Base, Texas.
At , accessed March 2000.
[61] See supra, note 60.
[62] H. Edwin Boesch, Jr. Bruce T. Benwell, and Vincent J. Ellis, A High
Power Electrically Driven Impulse Acoustic Source for Target Effects
Experiments and Area Denial Applications, Army Research Laboratory,
Adelphi, MD. At , accessed March
2000.
[63] See infra under "Optics".
[64] 21. U.S. Navy Dept., Deputy Assistant JAG, "Legal Review of Proposed
Chemical Based Nonlethal Weapons," proposal 10 March 1997, final review and
approval 30 November 1997. Cited in Lt Margaret-Anne Coppernoll, "The
Non-Lethal Weapons Debate", supra note 47.
[65] Michael R. Murphy, Biological Effects of Non-Lethal Weapons: Issues
and Solutions, supra note 60.
[66] Ltc Margaret-Anne Coppernoll, Legal and Ethical Guiding Principles and
Constraints Concerning Non-Lethal Weapons Technology and Employment,
Defense Manpower Center, DoD Center-Monterey Bay. At
, accessed March 2000.
[67] Ibid.
[68] David K. Dubay, Health Risk Analysis of First Defense(r) Pepper Spray
Using an Acute Whole Body Inhalation Exposure, Defense Technology
Corporation. At , accessed March
2000.
[69] Ltc Margaret-Anne Copernoll, Legal and Ethical Guiding Principles and
Constraints Concerning Non-Lethal Weapons Technology and Employment. See
supra note 65.
[70] Tradoc Pamphlet 525-73, Military Operations: Concept for Nonlethal
Capabilities in Army Operations, Appendix C. See supra note 55.
[71] They include taser guns and sticky shockers. For a complete
description of sticky shockers, see Edward Vasel, Sticky Shocker, at at
, accessed March 2000.
[72] Rick Smith, The Missing Tools are "Off the Shelf", at
, accessed March 2000.
[73] Ibid.
[74] George Lucey and Louis Jasper, Vortex Ring Generator, U.S. Army
Research Laboratory, DE Effects and Mitigation Branch, Adelphi, MD. At
, accessed March 2000.
[75] Jeffrey M. Widder, Donald J. Butz, and Janice M. Milosh, Assessing the
Blunt Trauma Potential of Free Flying Projectiles for Development and
Safety Certification of Non-Lethal Kinetic Energy Impactors, Battelle
Columbus Operations, 505 King Avenue, Columbus OH 43201, at
, accessed March 2000.
[76] Adopted on 13 October 1995 at the first Review Conference of the 1980
Convention on Certain Conventional Weapons, CWC/CONF.I/7.
[77] Lt. Col. Greg Schneider, "Nonlethal Weapons: Considerations for
Decision-Makers", National Defense Fellow Research Paper (unpublished),
Program in Arms Control, Disarmament, and International Security,
University of Illinois, June 1996. Cited in USAF Colonel Joseph
Siniscalchi, Non-Lethal Technologies: Implications for Military Strategy,
supra note 26.
[78] Doc. CCW/CONF.I/MCIII/WP.3, 27 September 1995.
[79] For a complete analysis of the Protocol on Blinding Laser Weapons, see
Louise Doswald-Beck, "New Protocol on Blinding Laser Weapons",
International Review of the Red Cross, N°312, May 1996, page 272-299. At
,
accessed April 2000.
[80] Ibid.
[81] The ICRC was also of the opinion that the Protocol should not attempt
a technical description, as this would be extremely difficult to do and
would therefore considerably delay the adoption of a Protocol. See supra
note 78.
[82] Eric J. Cramer and John D. German, Eye Safe Illuminators as Non-Lethal
Weapons, Science and Engineering Associates, Inc., at
, accessed March 2000.
[83] Ibid.
[84] Rick Smith, The Missing Tools are "Off the Shelf". See supra note 70.
[85] Unmanned Aerial Vehicle (UAV) Non-Lethal(NL) Payload Delivery System,
Naval Warfare Center Dahlgren Division, Dahlgren Laboratory, VA. At
, accessed March 2000.
[86] Ltc Margaret-Anne Coppernoll, Legal and Ethical Guiding Principles and
Constraints Concerning Non-Lethal Weapons Technology and Employment. Supra
note 66.
[87] ICJ Rep. (1996), I, para. 25; reprinted in ILM 814 (1996).
[88] Nigel S. Rodley, The Treatment of Prisoners Under International Law,
Oxford University Press (1999), pp. 188-190.
[89] For a complete analysis of both principles, see Nigel S. Rodley, The
Treatment of Prisoners Under International Law, pp. 182-188. Ibid.
[90] European Convention on Human Rights, article 2 (c), right to life.
[91] Application no. 10044/82, Decision of the European Commission of Human
Rights as to Admissibility (1984).
[92] Ibid, para. 19.
[93] Ibid, paras. 20-29.
[94] Ltc Margaret-Anne Coppernoll, Legal and Ethical Guiding Principles and
Constraints Concerning Non-Lethal Weapons Technology and Employment, supra
note 66.
[95] Non-Lethal Weapons Multi-Service Procedure for The Tactical Employment
of Non-Lethal Weapons, supra note 25.
[96] Ibid. Chapter IV: "Training with the nonlethal capability set".
[97] It is at least the only "Approved for Public Release" training
program. It can be accessed at .
[98] See supra note 83, and text accompanying note.
[99] U.S. Operational Law Handbook, Chapter 8: Rules of Engagement. At <
http://carlisle-www.army.mil/usacsl/divisions/pki/legal/oplaw/n-chpr8.htm>,
accessed February 2000.
[100] Ibid.
[101] J. Ashley Roach, Rules of Engagement, Naval War College Review,
January-February 1983.
[102] Mark S. Martins, Rules of Engagement for Land Forces: A Matter of
Training, not Lawyering, 143 Military Law Review 1 (1994).
[103] Joint Task Force UNITED SHIELD, Rules of Engagement, unclassified ROE
card ser. 1, 11 January 1995, cited in Lorenz, "Non-Lethal Force: The
Slippery Slope to War?", Parameters, Autumn 1996, page 62. At
,
accessed February 2000.
[104] Ibid., page 73.
[105] Paul G. O'Conner, "Waging War with Non-lethal Weapons". In Challenge
and Response: Anticipating US Military Security Concern. Edited by Dr. Karl
P. Magyar, et al. Maxwell AFB, AL: Air University Press (1994).
[106] Gülec v. Turkey, 27 July 1998, (54/1997/838/1044), para. 71.
[107] Ibid, para. 72.