The Paradox of Nonlethal Weapons

“The Paradox of Nonlethal Weapons”

Fritz Allhoff, CLB Fellow

International law constrains the weapons available in warfare. For example, Article 35 of Additional Protocol I to the Geneva Conventions states: “Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means.” But why? Broadly speaking, there have been three answers. The first is that some weapons should be avoided because they cause “superfluous and unnecessary suffering” (International Committee for the Red Cross [ICRC], Rule 70). The second is that some weapons should be avoided because they are “inhumane” (Id.) And the third is that some weapons should be avoided because we want our opponents to avoid them as well; there are game-theoretic norms based upon self-interest and reciprocity.

A stock example of a banned weapon is the serrated bayonet. The Germans used these as late as World War I, but their use was discontinued amid protests that they were unnecessarily brutal. An unserrated bayonet was sufficient to remove an adversary from the battlefield: the serrations simply caused gratuitous internal damage when the bayonet was withdrawn. They had fallen out of favor in the United States fifty years earlier. President Grant, reflecting on the brutality, noted that “they produce increased suffering without any corresponding advantage to those using them.” And similar stories could be told about other banned weapons: barbed lances, explosive and hollow point bullets, explosive charges containing clear glass, and so on.

These are all examples of lethal weapons. Importantly, though, there are myriad restrictions on the use of nonlethal weapons as well. And this gives rise to what I’ll call the “paradox of nonlethal weapons.” The paradox is simply that, sometimes, international law allows soldiers to kill, but not to disable. Or, in other words, some nonlethal weapons may be prohibited, while, at the same time, some lethal weaponry is not. As Donald Rumsfeld put it, “in many instances, our forces are allowed to shoot somebody and kill them, but they’re not allowed to use a nonlethal riot control agent.”

Before reflecting on this, let me briefly mention some categories of nonlethal weapons. Biological and chemical weapons are obviously important categories. For example, Venezuelan equine encephalitis is very debilitating, causing headaches, high fever, and fatigue. Furthermore, it has a very low mortality rate (< 1 %). Both the United States and the U.S.S.R. successfully weaponized it before ending their biological weapons programs. However, the Biological Weapons Convention (1972) prevents the use of biological agents like this. And we might wonder whether that is a good thing: would it be better to debilitate an enemy army or to bomb it? The BWC takes the former off the table, leaving the latter.

Chemical weapons are restricted by the Chemical Weapons Convention (1993); these include agents like 2-chlorobezalmalononitrile and 2-chloroacetophenone, both of which cause coughing, choking, nausea, and vomiting. The curiosity here, though, is that the CWC constrains militaries, not law enforcement. So police—who, in some relevant senses, are far less trained than soldiers—have can use riot control agents, but armies cannot. In the Moscow Theater Crisis (2002), a few dozen Chechen soldiers took almost 1000 hostages, demanding the removal of Russian forces from Chechnya. After a two-day siege, the Spetsnaz (i.e., Russian special forces) pumped some chemical agent—probably fentanyl or 3-methylfentanyl—into the theater, killing 129 hostages. But a fair question here is whether the problem was in application or principle: if they failed to recognize that the concentrations would be higher near the vents than further inside the room—as commentators have suggested—that’s just a foolish mistake that shouldn’t recur.

Another category of restricted weapons is blinding lasers; these are controlled by the United Nations Protocol on Blinding Laser Weapons (1995). Here the argument is different from that of serrated bayonets, namely that blinding lasers are inhumane, as opposed to indicative of superfluous injury and unnecessary suffering. (The ICRC decries weapons that cause “specific and permanent disability, or specific disfigurement.”) But the problem is that, at least in some cases, it can be licit to shoot and kill an adversary, if not blind him. Do we really think that blindness is worse than death? In psychologist Jonathan Haidt’s book The Happiness Hypothesis, for example, he notes that serious injury (e.g., blindness, amputation, etc.) barely affects self-reported welfare levels; i.e., post-injury welfare reports quickly return to pre-injury levels.  Things like traffic and discordant noise affect welfare far more than injury. The argument for blinding lasers can be made even more strongly when we introduce weapons that only cause temporary blindness (e.g., dazzlers).

In addition to these more traditional kinds of weapons, some newer nonlethal technologies are provocative. For example, Active Denial Systems (ADS) emit electromagnetic waves that penetrate skin to a depth of .4 mm and heat it to 130° Farenheit, a temperature that “exceeds the pain threshold but does not exceed the threshold for tissue damage.” ADS can be used to disperse crowds, to deny enemies use of their weapons, to remove civilians from the battlefield, and so on. Militaries are of course interested in neuroweapons as well. These could include using fMRI to detect deception—though, of course there is a lot of skepticism about this program. But they could also include transcranial magnetic stimulation, which focuses an intense magnetic field and—painlessly and temporarily—disrupts cognitive functionality of the target. The issue with many of these technologies, though, is usefulness: ADS works better on football fields than Afghani mountains, and neuroweapons, at least for now, require a proximity that is not always (or ever) realistic.

Regardless of the specific technologies, though, the general question is this: why should there be limits on nonlethal weapons at the same time that lethal weapons are allowed? This leads to the curious—and perhaps perverse—outcome that enemy combatants can be killed, but not even temporarily disabled. Perhaps the thought is supposed to be that nonlethal weapons would make going to war too easy, and that restrictions force states to make a harder choice, namely that of killing or not going to war at all. Faced with this choice—the optimist supposes—states may well choose the latter. I’m just less sanguine; a cursory look at the history of warfare suggests that states are only too willing to kill, and it is far from obvious to me that restricting nonlethal weapons will ultimately result in less death and injury.