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. Bibliography U.S. DEPARTMENT OF DEFENSE Defense Joint Non-Lethal Weapons Program Home Page, at , accessed February 2000. U.S. Defense Department, "Review of Legality of Weapons under International Law", Instruction 5500.15, 16 October 1974. U.S Department of Defense Directive number 3000.3, July 9, 1996, ; accessed February 2000. U.S. DoDTradoc Pamphlet 525-73, Military Operations: Concept for Nonlethal Capabilities in Army Operations, Appendix C. U.S. Operational Law Handbook, Chapter 7, The Law of War, serving as a framework for U.S. Judge Advocates. At , accessed March 2000. 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. Joint Task Force UNITED SHIELD, Rules of Engagement, unclassified ROE card ser. 1, 11 January 1995. 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. MILITARY AND OTHER STUDIES National Institute of Justice Initiative on Less-Than-Lethal Weapons, National Institute of Justice Research in Brief, March 1993. 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. 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. 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). "Non-Lethal Technologies: Military Options and Implications", Report of an Independent Task Force, New York, NY, Council on Foreign Relations, 1995. Joint Concept for Non-Lethal Weapons, January 1998, at , accessed February 2000. 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. 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. "Non-Lethal Technologies: Progress and Prospects", Independent Task Force Report, Council on Foreign Relations, at , accessed February 2000. Nick Lewer, "Non-Lethal Weapons", Forum for Applied Research and Public Policy, summer 1999, exclusively online at , accessed February 2000. Lt Margaret-Anne Coppernoll, "The Non-Lethal Weapons Debate", Military Press, Spring 1999. At , accessed February 2000. NON-LETHAL DEFENSE III CONFERENCE Non-Lethal Defense III Conference, Non-Lethal Activities at ICT, at , accessed February 2000. 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. 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. Eric J. Cramer and John D. German, Eye Safe Illuminators as Non-Lethal Weapons, Science and Engineering Associates, Inc., at , accessed March 2000. 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. George Lucey and Louis Jasper, Vortex Ring Generator, U.S. Army Research Laboratory, DE Effects and Mitigation Branch, Adelphi, MD. At , accessed March 2000. 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. 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. Rick Smith, The Missing Tools are "Off the Shelf", at , accessed March 2000. Edward Vasel, Sticky Shocker, at , accessed March 2000. 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. 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. At , accessed February 2000. Unmanned Aerial Vehicle (UAV) Non-Lethal(NL) Payload Delivery System, Naval Warfare Center Dahlgren Division, Dahlgren Laboratory, VA. At , accessed March 2000. MILITARY REVIEWS Airpower Journal 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. 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. 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. Aviation Week and Space Technology Non-Lethal Weapons Give Peacekeepers Flexibility, Aviation Week and Space Technology, 7 December 1992. Parameters Lorenz, "Non-Lethal Force: The Slippery Slope to War?", Parameters, Autumn 1996, page 62. At , accessed February 2000. Martin N. Stanton, « What Price Sticky Foam », Parameters, Autumn 1996. At , accessed February 2000. Stech, Frank J., "Winning CNN Wars", Parameters, Autumn 1994. pp. 37-56. At , accessed February 2000. Miscellaneous J. Ashley Roach, Rules of Engagement, Naval War College Review, January-February 1983. "One On One", Defense News 9, N° 14 (11-17 April 1994), page 30. Mark S. Martins, Rules of Engagement for Land Forces: A Matter of Training, not Lawyering, 143 Military Law Review 1 (1994). 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. 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]). Nigel S. Rodley, The Treatment of Prisoners Under International Law, Oxford University Press (1999), pp. 188-190. 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.