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Guest Post: To Ban New Weapons or Regulate Their Use?

In January, I highlighted the apparent anomaly of international law’s ban on laser weapons that are “specifically designed … to cause permanent blindness” while permitting lasers that actually incinerate their human targets (so long as the law of armed conflict is otherwise observed). I argued that the centerpiece of ICRC’s justification for banning blinding lasers — that blinded persons are “virtually unable to work or to function independently” and that there could be “no recovery [from blindness] and no prosthetic device can replace sight” — was fundamentally flawed. At the core of this anomaly sits the question: is it wise for international law to ban a specific technology based on the science and emotions from a particular moment in history?

Counter to the ICRC’s view, I believe that the facts show that visually disabled persons can — and do — live productive, happy lives despite their infirmities and are continually breaking barriers as to what they can accomplish. Furthermore, today’s technologies are increasingly allowing recovery, and prosthetics like bionic eyes are no longer relegated to science fiction. Accordingly, I challenged the notion implicit in the ICRC’s out-of-date, if not heartless, rationale for barring blinding lasers where lethal ones are permitted by asking: is it really better to be dead than blind? Logic, of course, dictates the answer is “no,” but the law against blinding lasers indicates otherwise.

More specifically, I asked whether we are in a legal environment where belligerents are obliged to employ lethal (but lawful) weaponry when — but for the law’s prohibitions — today’s science could provide a less lethal (or nonlethal) means that the meets military needs? Indeed, are nations finding themselves obliged to use “lawful” weapons in circumstances where an “unlawful” weapons would actually would pose less risk to civilians?

My view is that conscientious adherence to the four core principles of the law of armed conflict — distinction, military necessity, the avoidance of unnecessary suffering, and proportionality — may not only obviate the need for most of the prohibitions of specific weaponry, but also avoid the paradox that requires nations to use far more deadly (though lawful) means to wage war.

Part of the problem lies with the fact that international law may condemn a particular weapon based on a technological “snapshot in time” and cannot accommodate later advancements that may undermine the original scientific premise of reducing casualties.  Certainly when chemical and were outlawed, it was not well understood that chemicals or even biologics might have battlefield uses that could quite dramatically reduce death and injury. For example, can we really say that microorganisms cannot be developed that could be employed in a targeted and self-limiting non-lethal anti-material mode to destroy military equipment and infrastructure without the risk of death or injury to humans that “legal” kinetic weapons pose?

A plainly frustrated Jonathan Alexander argues in an insightful essay in the Harvard International Review that “[w]ithout envisioning the possibility that some chemical and biological agents could actually be used to reduce casualties, emotionally based and broadly worded treaties were enacted to forbid the use of such agents” for low and nonlethal weapons development. He adds that “existing protocols leave no alternative to unnecessary killing” and concludes that existing “treaties often provide a false sense of security and can prevent prudent research.” 

It is undoubtedly true that emotions — more than logic or science — were significant in achieving the bans on chemical and biological weapons that do not always make sense today. As just one illustration, riot control agents cannot be used in combat, but they are permitted in many law enforcement situations.

Thus, instead of being able to use tear gas to evict resisting troops from trenches, militaries must seek other means that are far more lethal and inhumane.

For example, in 1991, when US forces were confronted by Iraqi troops who “chose to stay in their trenches or behind obstacles and fight during the breaching operations,” American tanks were fitted with plows that — in a technique permissible under international humanitarian law (IHL) — were used to bury Iraqi infantrymen alive in their trenches. The result was a ghastly scene of a “bunch of buried trenches with people’s arms and legs sticking out of them.”

Is being buried alive somehow less horrific than being subjected to temporary incapacitation via chemical means? Existing law implies “yes, ” though common sense loudly says “no.”

Why does emotionalism so often seem to dominate international lawmaking in this area? Writing in The Week, Harold Mass acknowledges that “[b]ombs, missiles, and other munitions achieve very similar results” as chemical weapons in terms of their physical destructiveness, but he also recognizes that “chemical weapons evoke a strong emotional response.” Quoting historian Jonathan Tucker, Mass argues that the “‘chemical weapons taboo’ appears to have originated in the innate human aversion to poisonous substances.” No doubt this same sort of fear-of-poison emotionalism applies equally to biological weaponry.

Tucker adds another aspect to the emotionalism factor by asserting that “established nations also look at such [chemical] weapons as cowardly and ignoble — as a ‘duplicitous use of poison by the weak to defeat the strong without a fair physical fight.’” Of course, international law, qua law, is not to blame here as it assiduously tries to avoid favoring either the “strong” or the “weak” in armed conflicts, and does not (or should not) attempt to orchestrate some sort of “fair physical fight” that would rapidly delegitimize law in military thinking. As Mark Bowden puts it, “anyone who has ever been in combat will tell you, the last thing you want is a fair fight.” Still, Tucker does seem to have a point as to the real (but often illogical) thinking behind some weapons’ bans.

Enter Drones

Extending this anthropological elucidation might explain some of the often unreasoned hostility towards drones, even though Bowden (and many others) have concluded drones are typically far more protective of civilians than other methods of warfare. What is the source of the emotional enmity towards drones?

Here’s a possible answer: Rob Dunn points out that many of today’s greatest fears are rooted in “our legacy of ancient fears, the result of having spent millions of years running from predators.” He goes on to explain that our ancestors “[e]xposed and relatively defenseless … stood a good chance of being eaten by bigger, badder, species.” He adds that “our ability to spot predators or flee from them” has influenced millions of years of evolution, and that today the fear of being hunted still persists.

Given this background, it makes military sense for the US Air Force to call its primary armed drones “Predators” and “Reapers” because the systems are intended to not just destroy the enemy, but also to tap into their primordial fear of being relentlessly hunted. In light of the desperate measures to which terrorists are resorting to avoid drones, it is clear that the weapon system is having a real psychological effect. Nevertheless, to some observers they remain an anathema, despite being strongly supported by the American electorate — notwithstanding concerns about civilian casualties (which have, in fact, dwindled significantly in recent years).

What About Landmines?

Emotionalism, not technological truth, also triumphed in the campaign against anti-personnel landmines that resulted in what is commonly known as the Ottawa Convention. The US is not — and should not be — a party to this well-intentioned but counterproductive treaty. Of course, everyone is horrified by the terrible results of “dumb” landmines that litter battlefields around the world. But such emotionalism aside, adherence to Protocol II of the Convention on Certain Conventional Weapons (CCW), together with the use of modern “smart” mine technology, make battlefields and their dangerous detritus (which goes far beyond landmines) as safe as can be expected without depriving military forces of a tool that can, ironically, save lives.

The Ottawa Convention is premised on what is, militarily speaking, yesterday’s technology (i.e., persistent, “dumb” anti-personnel landmines that are not self-destructing or self-neutralizing). While there are distinctions between the two treaties, for countries like the US that employ “smart” mines, and who comply with the CCW, the Ottawa Convention adds no protection for civilians. As David Koplow makes clear in his book, smart mines did not, do not, and would not cause the kind of unintended casualties that the Ottawa Convention intended to address. Yet it bars them.

Furthermore, it is simply inaccurate to suggest that “smart” anti-personnel landmines compliant with the CCW cannot be used in a way that is less destructive than other battlefield munitions. Additionally, they are a combat multiplier, a critical factor in an era of smaller militaries. It is simply wrong to deprive young Americans being sent in harms’ way of technologies that can comply with the core principles of IHL and facilitate mission accomplishment with less risk.

Also, as I’ve written elsewhere, parties to the Ottawa Convention can find themselves denied methodologies that could save civilian lives. For example, a CBU-89 is an air-dropped weapon that contains self-neutralizing anti-tank and anti-personnel mines. When used against an airfield, it can temporally deprive the enemy of its use, without long-term damage because the mines self-neutralize after a specified period. Parties to the Ottawa Convention, however, may have no other feasible option but to rupture the runway with high-explosives leaving it unavailable for post-conflict relief flights and economic re-constitution — both things that save lives in the real world.

Other weapons

Does the Ottawa Convention make war more humane than does the CCW? Don’t count on it. Consider the problem of enemy forces ensconced in caves. As I’ve explained before:

One solution would be to scatter mines around the entrances. Since that is foreclosed to parties of the Ottawa Convention, commanders from states who are parties to the Convention may need to entomb the caves’ occupants by blowing up the entrance – a disconcerting action not necessarily at odds with international law. Another solution, provided by science, is thermobaric weaponry. One description of how this weapon works says it is “among the most horrific weapons in any army’s collection: the thermobaric bomb, a fearsome explosive that sets fire to the air above its target, then sucks the oxygen out of anyone unfortunate enough to have lived through the initial blast.” Again, this is merely to illustrate that when the focus of a treaty is on a certain weapon, as opposed to effects, the result can be unintended and a source concern.

Which is worse: a high-tech, self-neutralizing mine, or a thermobaric weapon? The law would suggest the former, but logic would again readily say the latter. Unfortunately, recent Administration policy decisions — which make no effort to distinguish between “smart” and “dumb” mine technology — will generally put US troops in much the same quandary as state parties to the Ottawa Convention.

This is in contrast to previous US government positions on weapons conventions that recognize military realties. For example, the US reservation to CCW’s Protocol III prohibitions on the use of incendiary devices in areas with concentrations of civilians acknowledges that incendiaries may need to be used where “it is judged that such use would cause fewer casualties and/or less collateral damage than alternative weapons.” When would that be? Think of a biological weapons of mass destruction facility where high temperatures may be need to destroy deadly pathogens and where an attack with high-explosives might spew contaminates into the atmosphere, and the wisdom of the US reservation is evident.

Similarly, the US has rightly declined to become a party to the Convention on Cluster Munitions because cluster munitions can be employed in a way that reduces the risk to civilians more than other, “lawful” munitions might. As the US Department of Defense points out:

Cluster munitions are legitimate weapons with clear military utility in combat. They provide distinct advantages against a range of targets, where their use reduces risks to U.S. forces and can save U.S. lives. These weapons can also reduce unintended harm to civilians during combat, by producing less collateral damage to civilians and civilian infrastructure than unitary weapons. Because future adversaries will likely use civilian shields for military targets – for example by locating a military target on the roof of an occupied building – use of unitary weapons could result in more civilian casualties and damage than cluster munitions. Blanket elimination of cluster munitions is therefore unacceptable due not only to negative military consequences but also due to potential negative consequences for civilians. [Emphasis added.]

Regardless of the facts, it is unrealistic to expect that the international bans already in place will be modified so as to permit their use, even if employed (in full compliance with the core principles of IHL) in a way that could save lives and limbs. But shouldn’t we try to avoid neo-Ludditism as we look to the future?

The Future of War

We are on the cusp of new campaigns against high-technology weaponry that could produce results as flawed as those in the past. Consider Human Rights Watch’s uncharacteristically ill-reasoned campaign against autonomous weapons. Mike Schmitt politely eviscerates their polemic, not just with erudite legal analysis, but also with reason and common sense informed by his practical experience as a military lawyer.

One wants to be optimistic about the upcoming UN meeting on autonomous weaponry as there are genuine legal and ethical issues worthy of examination, but I think that there is a real danger that this discussion — like that about drones — will be driven by emotions, not facts.

Likewise, in the aftermath of the Sony hack there has been plenty of hype — and emotionalism — about cyberthreats, including calls for a treaty banning the use of cyber for “warfare purposes.” While there are certainly arguments on both sides of this issue, my very strong view is that cyber techniques, if employed compliant with the norms of the law of armed conflict, have great potential to be an alternative to more violent and destructive means.

This is not to underestimate that potential costs and tribulations of cyberwar, but to suggest that more international law on this subject is likely not to reduce the human cost, but would merely operate more to disarm the parties who would have used the techniques properly in the first place than to curb abuses.

Gabrielle Blum has argued that “humanitarian zeal” has produced “the law’s current absolutist stance [that] prevents parties in conflict from lawfully pursuing actions that might lessen the harms of war.” I agree, and would underline that this zeal is too often based on emotions and fears inappropriate to the modern contexts to which they are applied in a distressingly undifferentiated manner.

Aiding and abetting this undesired outcome are lawyers and others who, however learned in the law, lack depth of understanding about the technologies they wish to regulate, or are ill-informed of the military techniques and strategies for employing them. Too often there is too little consideration of the unintended consequences of well-intended prohibitions. IHL must always be carefully evaluated and challenged — “red teamed” in military terms — in order to understand how an unscrupulous belligerent might exploit the law.

The solution to this problem is more than just better informed and appropriately dispassionate lawyers and policymakers; it must also include an abandonment of the effort to demonize specific technologies. We should emphasize effects rather than weapons, and we should insist on strict compliance with the core principles of IHL. In short, if a particular technology is used in compliance with those principles, it ought to be lawful.

Some readers no doubt will be understandably concerned about the proverbial slippery slope, but the slope of the perceived legitimacy of international law can get quite slippery when those in the military — not to mention the body politic — find it barring technologies that can save civilians, along with combatant lives, on both sides.

Moreover, exactly who are we concerned about sliding down the slope? It ought to be sobering that neither the Ottawa Convention, nor any international treaty has even slightly diminished the use of mine-like weapons. Just look at the improvised explosive devices that have killed more than 2,500 Americans.

In a world in which the worst atrocities are typically committed with low-tech, “legal” weaponry, and where adversaries exist who burn prisoners alive and use “mentally challenged” children as suicide bombers, law-abiding nations need to be able to bring bear the most effective technologies available or can be developed, provided the weaponry can be used in conformance with the fundamentals of IHL. Denying such capabilities to nations because of prohibitions based on outdated science or unreasoning emotionalism could, paradoxically, promote the nefarious interests of those who would never respect IHL in the first place.

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About the Author

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.