Guest Post- A Better Way to Protect Civilians and Combatants than Weapons Bans: Strict Adherence to the Core Principles of the Law of War

Maj. Gen. Charles J. Dunlap, Jr., USAF (Ret.),  Executive Director, Center on Law, Ethics and National Security and Professor of the practice of Law, Duke University.

Maj. Gen. Charles J. Dunlap, Jr., USAF (Ret.), 
Executive Director, Center on Law, Ethics and National Security and Professor of the practice of Law, Duke University.

Ms. Kelly Geoghegan, Deputy Legal Advisor of the ICRC - an organization for which I have great respect and admiration - has written on its behalf something of a rejoinder to my blog posts entitled In “Is it Really Better to be Dead than Blind?” (January 2015) and “To Ban New Weapons or Regulate Their Use?” (April 2015).  In Geoghegan’ s piece entitled “On the Utility of Weapon Bans and Restrictions - Anti-personnel Mines, Cluster Munitions and Blinding Lasers” (November 2015), the ICRC argues – not without some reason - that weapons’ bans “saved many civilian lives, and reduced suffering among combatants.”

While I applaud parts of the ICRC’s response, it never really rebuts the main arguments of my essays (and in several ways confirms them).  In truth, weapons’ bans are much based on emotions rather than facts, and thus can operate in ways that put both civilians and combatants at unnecessary peril.  How?  They can deny combatants effective means that are, in fact, able to be used in strict conformance with the core principles of the law of war (e.g., distinction, proportionality, humanity), and consequently incentivize warfighters to resort to ‘legal’ but more destructive weaponry.  In addition, because bans rely upon an understanding of technology frozen in time at the point they were imposed, they can quickly become out-of-date and block the development of new non- and low-lethality technologies that could markedly reduce the risk to civilians and combatants alike. 

The ICRC seems to assume that because some nations may not use the weapons in compliance with core law of war principles, the weapons should, therefore, be completely banned in all circumstances and for all countries.  This misses the obvious question: if a belligerent is disposed to violate a core principle of the law of war, why should we think they would obey a weapons’ ban?  Put another way, how does more law help if basic legal prohibitions are violated?

Let’s begin where the ICRC starts in their rebuttal: with a curious defense of the ban on non-lethal “tear gas” which armies are prohibited from using as a means or method or warfare, despite their clear potential to be a more humane alternative to much more deadly weaponry.

According to the ICRC, the ban on “tear gas” is the result of what it thinks happened during World War I.  It claims that the use of “tear gas” during that conflict “quickly escalated to the use of other methods of chemical warfare, including chlorine and mustard gas.” 

There are, however, multiple reasons why these claims do not support a ban on tear gas today, beginning with the fact that the so-called “tear gas” used in World War I - xylyl bromide – is a much different compound then the most commonly riot control agent currently in use: 2-chlorobenzylidene malononitrile or “CS” gas.  CS was developed decades after World War I (in the 1950s) and has been successfully used for many years – without “escalation” - by security forces all over the world.

Why the popularity?  The U.S. National Institutes of Health (NIH) reports that “law enforcement agencies have found [CS] invaluable” in controlling dangerous situations “without the need for lethal force.”  Furthermore, CS has been “widely used for decades with little data on permanent damage.”  Significantly, the NIH observes that in “over 30 years of active use of 1% CS gas no lawsuits for damages have been awarded in the litigious environment of the United States.”

The ICRC assumption that the World War I experience with tear gas’s alleged “escalation” of the “humanitarian toll of armed conflict…formed the rationale behind the Chemical Weapons Convention’s prohibition of riot control agents as a method of warfare” simply does not square with the facts in several respects.  A January 2015 report by the BBC World Service Magazine examined the history behind the ban on gas and found that it was much the result of exactly what I argued in my original posts: unreasoning psychological (even primordial) fear, not of “tear gas,” per se, but of poison writ large - as opposed to actual scientific evidence of unnecessary suffering or death.

Irrationality looms large in the ban on gas.  The BBC points out, for example, that as early as 1915 physicians were finding “large numbers of officers and men who thought they had been gassed, but displayed no physical symptoms.” These supposed “victims” were “cured" with “a placebo.”  Of course, there were many deaths from poison gas, but “more than half were Russian, many of whom may not even have been equipped with masks.” 

Of the British soldiers who were injured by gas (not “tear gas,” mind you, but mainly poisonous mustard gas) the BBC says that “overwhelming majority…went on to make good recoveries.”  Strikingly, the BBC recounts the conclusion of a physician who said he could not “see the difference between killing a man with a chemical substance and rending him to pieces with high explosives.”  That doctor further insists that the “first-named form of death, as a matter of fact, is the most merciful."  The BBC also reports this critical insight:

Other terrible weapons were developed [during World War I]. The flamethrower appear on the Western Front in 1915, two months before gas.  Others weapons, like the machine gun, were honed to new levels of murderous perfection.  The biggest killer of all was artillery.  Yet it was only the use of all gas that was outlawed by the Geneva Protocol of 1925.

Why?  In addition to the psychological fears, the ban on chemical weapons may be explained by the BBC’s observation that “some argue” that “the only reason countries were prepared to ban [gas]…[was] that it was ineffective.”  In short, the ICRC is mistaken in its claim that “tear gas” (either in its World War I formulation or as it is composed today) “devastatingly escalated the humanitarian toll of armed conflict” or played any role in justifying the ban in 1925.  Nor is there any evidence that tear gas had anything to do with the lethal gasses the ICRC points out that were used more recently against civilians in Yemen or Iraq.  In those situations, the users – Saddam Hussein among them – fully intended to use lethal means because they wanted to kill people. 

What is more is that the use of lethal chemical weapons in those situations would be unlawful even if international bans on gas and chemical weapons did not exist as the core elements of the law of war already prohibit targeting civilians as well as indiscriminate attacks, regardless of the weapon used.  This further illustrates the illogic of the ICRC’s argument that the bans on other weapons (e.g., anti-personnel mines, cluster munitions and blinding lasers) are likewise justified because they are “prone to having indiscriminate effects on civilians or causing unnecessary suffering to combatants.” 

In reality, any weapon (think, e.g., about a “dumb” but lawful 2,000 lb. gravity bomb) used in contravention to the core requirements of the law of war will not just be “prone” to unlawfully harming civilians, it will inevitably do so.  Again, the point being that those belligerents “prone” to not observing even the basics of the law of war are hardly going to be deterred by some additional law banning specific weapons.

Furthermore, regarding anti-personnel mines, the ICRC response claims that their “use and annual casualty rates have dropped dramatically” as a result of the Ottawa Convention’s prohibition of the devices.  I would argue that the dramatic rise in the use of improvised explosive devices (IEDs) – the anti-personnel “landmine” of terrorists – very much contradicts the ICRC’s assertion.  In 2014, for example, the Guardian reported that 53,000 civilians – a 70% rise - were killed by IEDs in just the previous three years.  The problem of modern conflict is not any absence or shortage of law; rather, it is the enforcement of the law against belligerents increasingly indifferent to it.

Factually, virtually all of the unintended victims of landmines to which the ICRC refers are the result of obsolete but persistent “dumb” landmines used in violation not only of the core basics of the law of war, but also Protocol II to Convention on Conventional Weapons (CCW).  The ICRC cites no evidence of any significant number of unintended casualties from modern “smart,” self-neutralizing landmines, deployed in strict adherence to the law of war and the CCW. 

As I pointed out in my original essay, it is counterfactual to argue that there are not legitimate uses of modern, self-neutralizing antipersonnel landmines (used in compliance with existing law of war) as they can operate to actually save lives.  Even more importantly, the ICRC’s essay never addresses another key contention of my earlier posts, that is, that the Ottawa Convention’s ban on landmines leads to the development and use of ‘legal’ alternatives that can be even more devastatingly and more lethal (e.g., thermobaric weapons).  Finally, the ICRC does not address the inevitable human toll when soldiers must be deployed to do the job sophisticated but inanimate landmine technology could accomplish.

The ICRC’s discussion of cluster munitions is another classic example of what is wrong with weapons’ bans.  It justifies the ban on a weapon with great military utility principally because of the experience with unexploded cluster bomb sub-munitions from the 1960s and 1970s.  The fact of the matter is that technology has evolved over the last 50 years to vastly decrease the failure rate of cluster sub-munitions which was the main cause of the unintended harm.  Where is the evidence that cluster munitions manufactured in the U.S. in the 21st century, and used in compliance with the core principles of the law of war, are causing excessive civilian casualties?  The ICRC offers none because there is none.

The ICRC also claims that 97% of the people killed by cluster munitions in Syria in the 2012-2013 timeframe were civilians.  Even if true, it proves nothing, except that some regimes are willing to deliberately kill civilians - including their own people - with whatever weapons they have.  Where is the evidence that Assad’s forces were even attempting to use cluster munitions in compliance with the core principles of the law of war?  Were they not actually trying to kill civilians as a form of illicit collective punishment?  Where is the evidence that more law would have made a difference?  Even if cluster munitions did not exist, does anyone think that other weaponry would not have been used to inflict such “punishment”?

Regarding the  ICRC’s defense of the prohibition of blinding lasers (lethal incinerating lasers are, paradoxically, legal), it is surprising that there was really nothing offered to counter the basic philosophical disagreement captured in the title of my January piece: is it really better to be dead than blind?  In their original (1994) rationale for banning blinding lasers, the ICRC asserted that blinding results in “near total dependence [of those blind] on others…[and it] renders a person virtually unable to work or to function independently.”  It also claimed there can be “no recovery and no prosthetic device can replace sight.” 

Virtually none of this is true today.  Contrary to the ICRC’s belief, there are hundreds of thousands if not millions of visually disabled people who live happy, productive, and even (almost) fully independent lives.  Moreover, today’s technology proves that there are, in fact, prosthetic devices that can restore a measure of sight, if not total sight – and it is foreseeable that bionic eyes will be even more capable in the future.  Yet once a ban like that against blinding lasers is in place, a belligerent is obliged to use deadly weaponry.  In other words, I stick by my thesis that as unfortunate as blindness is, it is still better to be blind than dead.

All of this makes it clear that the law of war ought to be technologically agnostic.  Banning a specific weapon that can, in fact, be used in compliance with the core principles of the law of war invites science to come up with other ‘legal’ weapons equally or more devastating.  But more than that, we are inhibiting the ability of science to produce new means that can accomplish the necessary military mission, but do so in a less destructive and less lethal manner, or even without any of permanent physical injuries conventional weaponry cause.

All of this said, I do have some agreement with the ICRC views in that I believe that there are weapons bans that may be appropriate.  If, for example, there is no circumstance where a weapon could be used in a discriminate manner (which may be the case with some biological pathogens) a total ban is completely appropriate.  But we need to build into bans a process by which they can be systematically revisited to ensure they do not unintentionally cause results different than what was expected when imposed, and do not inhibit the development of less- and non-lethal means and methods of warfare that subsequent scientific discoveries could produce.  When a ban operates to bar safer but effective military means, the law’s credibility is diminished.

To be clear, I am not arguing that all the extant bans be undone.  Apart from everything else, it is imperative these days to avoid anything that could be interpreted as precipitating a further unravelling of the entire law of war cannon.  True, some of these bans no longer bear logical relation to the actual amelioration of unintended harm, but are rather mainly political artifacts.  Political artifacts are not, however, necessarily nefarious as they can serve to remind belligerents of importance of the law of war writ large.  Furthermore, the ICRC can rightly claim that some outright weapons’ bans can complicate the ability of rogue regimes (who never intend to use them in accordance with the law) from getting access to them.

The ICRC also deserves much praise for the fantastic and courageous work it does with respect to landmine removal as well as with the problem of unexploded ordinance, including cluster munitions.  Battlefields will always be littered with dangerous detritus, but that intractable problem has been exacerbated by weapons that do not operate as designed, and by belligerents who use them in an unlawful manner.  This underlines the importance of the work of ICRC’s has done – and continues to do – to help make many areas safe again.

Nevertheless, while weapons bans may have utility in certain circumstances, the better course for advanced nations like the U.S. and its allies is to avoid becoming a party to them.  The fact is that such rule-of-law nations can – and do – employ complex weapons systems in full compliance with the core principles of the law of war.  They carefully train their forces to follow the law, and hold them accountable when that does not occur.  They also have prohibitions on the transfer of arms to rogue regimes.  At the same time, if not barred by outright bans, the U.S. and other highly-developed countries have the ability to take advantage of advances in science to develop weaponry that can accomplish the military mission in less deadly ways.  It makes humanitarian sense, therefore, to avoid agreements that could limit their ability to do so.

Still, let’s give credit where credit is due.  In my view, it says all the right things about the ICRC that they agreed to post this essay.  It represents an authentic commitment to a collaborative dialogue on complicated law of war issues.  While we may not agree on all the specifics, it is inarguable that we all find common ground in the desire to ameliorate the horror of war as much as possible.  Only by working together can we hope to achieve that aim.

The views expressed in this article are the author's own and do not necessarily reflect those of the ICRC.