Is it Really Better to be Dead than Blind?

Late last year, the U.S. Navy announced that its $40 million laser weapon is finally ready for combat aboard the special operations staging ship USS Ponce. The laser, which “zaps and burns” at the cost of just 59 cents a shot, is designed for use against aircraft and small ships which “cannot outrun” the concentrated beams of light.

News of the weapon’s pending deployment to the Persian Gulf appeared in a December article in The Washington Post by Christian Davenport, and it drew some thoughtful comment by Julian Ku over at Opinio Juris. Allow me to augment Julian’s observations by noting – with some frustration – the distortions of the law that appear in Davenport’s piece, and add some philosophical reflections about the prohibitions that do exist.

First, the legal miscues: Davenport quotes Rear Adm. Matthew L. Klunder, chief of naval research, as saying that it took a year for the Pentagon to develop rules of engagement (ROE) for the weapon, and that DoD “would comply with the Geneva Convention, which prohibits weapons that blind.” Actually, the Admiral may be right about the Pentagon’s tardy ROE production, but he is wrong about the law.

To begin with, the prohibitions related to laser weapons are not part of the “Geneva Convention,” but rather are contained in Protocol IV to the 1980 Convention on Certain Conventional Weapons (CCW). The CCW amounts to what most international lawyers would call “Hague Law” and is not what is known as “Geneva Law.” 

More importantly, no part of the law of armed conflict prohibits, per se, “weapons that blind.” As Julian points out, what is prohibited by Article 3 of Protocol IV are laser weapons “specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision, that is, to the naked eye or to the eye with corrective eyesight devices.”

Obviously lasers (and other fully lawful weapons) can blind, even if they aren’t designed for that purpose or have it as their sole combat function. As the Protocol itself makes clear, “[b]linding as an incidental or collateral effect of the legitimate military employment of laser systems, including laser systems used against optical equipment, is not covered by the prohibition of this Protocol.” Thus, Julian aptly observes that “Article 3 [of Protocol IV] is enough cover for the U.S. Navy to justify its use in combat.”

Accordingly, while the Protocol does require the U.S. to “take all feasible precautions to avoid the incidence of permanent blindness to unenhanced vision” it does not – regardless of what the Admiral may think – bar all “weapons that blind.” Klunder’s bungled statement is the kind of thing that will confuse the public when, inevitably, a laser (or other) weapon not designed to blind nevertheless blinds someone as a collateral effect of a lawful use.

But that isn’t all that Klunder gets wrong. He also says that DoD is going to “honor the [Geneva] conventions with this laser system” because the Navy is not “going to use it to directly point and kill people.” Maybe DoD has crafted their ROE to prohibit such uses as a matter of policy, but prohibiting the use of a lethal laser would not be something international law as it currently stands demands.

To be clear, the key prohibition in Protocol IV relates to laser weapons that are designed to blind, but does not speak to those that might be designed to kill via “zapping and burning” or however. While the US is a party to Protocol III of the CCW (which restricts the use of incendiary weapons vis-a-vis civilians) it does not prohibit incendiary weapons used in an anti-personnel mode to actually kill combatants. Nor does international law generally contain such a prohibition. In short, so long as lasers are not employed in a way “calculated to cause unnecessary suffering,” enemy sailors may be legitimately – and lethally – targeted for destruction with a laser.

This is what makes the comment of Patrick Wilcken, a trade and human rights researcher at Amnesty International, so bizarre. Davenport quotes Wilcken as saying that lasers should be “very strictly regulated and controlled so that [they are] never used against a human target where there is a risk of eye damage.”

“Risk of eye damage”? Is Amnesty International (whose anti-drone screed was discredited by a devastating critique by David Axe) unaware that the law actually permits lethal use against a human target?

Sure, one might understandably wonder about the logic of international law prohibiting lasers designed to blind while allowing lasers that aim to kill. The ICRC tries to reconcile this apparent anomaly by offering a rather incongruous rationale to answer the obvious question: “Isn’t it better to blind than kill? The centerpiece of ICRC’s unimpressive response is, frankly, not just a cruelly jaundiced and insensitive view of the disabled, but one almost antediluvian in its appreciation of modern science. Here’s what the ICRC says:

Unlike other injuries, blinding results in very severe disability and near total dependence on others. Because sight provides us with some 80-90% of our sensory stimulation, blinding renders a person virtually unable to work or to function independently. This usually leads to a dramatic loss of self-esteem and severe psychological depression. (Italics added.)

Unable to work? Unable to function independently? Even if true, doesn’t life itself still have value? It seems that to the ICRC’s way of thinking, it’s better to be dead than disabled. This will be news to the millions – and those who love them – who have productive, happy lives despite their infirmities.

The ICRC also makes the debatable claim that “[s]ixty percent of war casualties both survive and fully recover over time” but “[w]ith blinding from lasers there would be no recovery and no prosthetic device can replace sight.” This just isn’t accurate. The reality is that today there are extraordinary developments in the treatment of blindness that will continue to undermine the notion that there can be “no recovery” or that “no prosthetic device can replace sight.”

All of this highlights the complications that can arise when international law departs from focusing on principles and chooses instead to simply denounce particular technologies. Given the pace of accelerated scientific development, the assumptions upon which the law relies to justify barring certain technologies could become quickly obsolete in ways that challenge the wisdom of the prohibition. Indeed, this may already be happening. Are we finding ourselves in a legal environment where belligerents are obliged to employ lethal (but lawful) weaponry when – but for the law’s condemnation – less-lethal or nonlethal means are available that might just as effectively meet the military’s needs? That’s the question for Part II of this discussion.

  

About the Author(s)

Charles J. Dunlap, Jr.

Professor of the Practice of Law and Executive Director of the Center on Law, Ethics and National Security at Duke Law School He retired from the Air Force in 2010 as a Major General.