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How international law adapts to new weapons and technologies of warfare

The Paradox of Nonlethal Weapons by Fritz Allhoff and Why We Need New "Rules of War" by Brad Allenby and Carolyn Mattick, published in Slate on November 13 and November 12, raised some interesting and complex questions about new technologies of warfare and the law of armed conflict. 

One question was whether international humanitarian law is properly suited to emerging new means and methods of warfare. Another was why “lethal” weapons are preferable over those intended to be “non-lethal". 

These questions betray a serious misunderstanding of the nature of weapons and of the laws governing their use in conflict.

In our reponse to the two Slate articles, Neil Davison, a Geneva-based specialist in our Arms Unit, explains why the questions raised by the authors are flawed by detailing the rules of international humanitarian law that apply to weapons, the origins of certain restrictions and prohibitions, and the way in which the law adapts to the emergence of new weapons and technologies of warfare. 

 

International humanitarian law and weapons 

International humanitarian law has developed over the centuries to limit the adverse effects of armed conflict for humanitarian reasons. A core rule of international humanitarian law underlying the development, procurement and use of all weapons is that parties to an armed conflict do not have an unlimited choice of methods and means of warfare.  All weapons must be used – and indeed must be capable of being used – in accordance with international humanitarian law’s general limitations on the conduct of hostilities, notably the rules aimed at protecting civilians from direct or indiscriminate attacks and otherwise sparing them as far as possible the effects of the hostilities, and the rules aimed at protecting combatants from superfluous injury or unnecessary suffering. In fact, all new weapons require assessment and legal review before they are developed, acquired and introduced by the military to ensure that they are compatible with these core rules and thus to prevent the use of weapons that would violate international law.

In addition, certain weapons are subject to specific prohibitions or restrictions agreed by States in international treaties, due to their inherently indiscriminate or abhorrent effects. Some of these prohibitions or restrictions are very long standing.  For example deliberate poisoning has long provoked public abhorrence and even ancient civilisations banned poisoning in warfare.  In 1899 countries met in The Hague to prohibit poison or poisoned arms.  

After the First World War, with vivid images of the horrors of chemical warfare fresh in their minds, this was reinforced with a prohibition on the use of chemical and biological weapons. When agreeing the Geneva Protocol in 1925 countries noted that “the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids materials or devices, has been justly condemned by the general opinion of the civilized world.”

Further strengthening of these prohibitions occurred in 1972 with the agreement of the Biological and Toxic Weapons Convention and in 1993 with the establishment of the Chemical Weapons Convention.

Other international prohibitions that have been in existence for many years included those agreed by States to ban exploding bullets (1868) and expanding bullets (1899).  In recent years, countries have continued to develop new laws to prohibit or restrict weapons that have particularly adverse consequences for civilians including anti-personnel mines (1997) and cluster munitions (2008).  States have also prohibited the use of weapons which have been deemed to be excessively injurious or to have indiscriminate effects, including blinding laser weapons (1998).

New technologies and warfare 

Often when new technologies and weapons emerge there are concerns expressed that they are not covered by existing law.  In fact, as mentioned above, the opposite is true.  Existing international humanitarian law always applies to new weapons and employment of new technological developments in warfare.  

Nevertheless, some new technologies may raise questions of whether existing law is sufficiently clear or whether it needs to be elaborated to take account of specific challenges raised by new technologies.  The advent and expansion of ‘cyber warfare’ and the use of remote controlled systems, such as drones, and automated weapons raise some of these challenges.  As do considerations of developing autonomous weapon systems in the future. Still, the fact that a particular means or method of warfare is not specifically regulated, does not mean that it can be used without restriction.

From the ICRC’s perspective it is crucial to have an informed discussion about the potential adverse effects of new technologies in light of their specific characteristics and their foreseeable humanitarian impact, as well as their implications for international humanitarian law.  This is to ensure they are not employed prematurely, in a manner where respect for international humanitarian law cannot be guaranteed.  This type of international discussion is well underway. 

In sum, with new means and methods of warfare the important question is not whether a given technology is ‘good’ or ‘bad’ in itself, but to consider the particular characteristics of the weapon, the circumstances of its use, and its compatibility with international law.

So called “non-lethal” weapons 

The question of context is illustrated by the well-worn discussion about so called “non-lethal weapons”.  A range of old and new weapons technologies have been described and promoted collectively as “non-lethal weapons”.  However, it is misleading to characterise any weapon in terms of ‘lethality’ or ‘non-lethality’.  A hand gun can be used is a ‘non-lethal’ manner, for example by firing a warning shot in the air, just as a plastic bullet can kill at short range and ‘tear gas’ can kill in enclosed spaces.  The outcome of use of a weapon will be dependent on the characteristics of the particular weapon, the specific context of its use, and the individual vulnerabilities of the victim. 

In other words, for the purposes of international humanitarian law there are no new “non-lethal weapons”, only new weapons.  Each weapon, however it is labelled, must be assessed and reviewed individually to ensure its use would be compatible with international law. Generalisations are unhelpful as each weapon will have its own unique characteristic and injury mechanisms, which may vary from conventional ‘kinetic’ force to unconventional effects using chemicals, electricity, acoustic energy, and electromagnetic energy.

Furthermore, certain weapons may already be restricted or prohibited by internationally agreed treaties.  Sometimes the reasons for existing restrictions agreed by States may not be immediately apparent to the outside observer, but these become clear with further understanding of their origins.

The example of chemical riot control agents such as CS, CN and ‘pepper spray’, which are generally referred to collectively as ‘tear gas’, is a useful one.  When countries agreed to prohibit chemical weapons they recognised that they might still need to retain ‘tear gas’ for use in law enforcement.  However, they were concerned that ‘tear gas’ should never be used in armed conflict again for two main reasons.  

First is the risk of escalation to far more toxic chemical weapons.  The use of chemical weapons during the First World War began with the use of ‘tear gas’ by France.  In 1963, Egypt’s use of ‘tear gas’ in Yemen soon escalated to mustard gas.  And the extensive chemical warfare witnessed between Iran and Iraq during the 1980’s also began with the use of ‘tear gas’. 

The second reason is the risk that ‘tear gas’ might be used, not to limit the amount of force deployed, but to increase it.  Again, this is not a theoretical risk, but one that was demonstrated in widespread practice.

Indeed, it is a common misconception that weapons promoted as “non-lethal” will necessarily replace weapons seen to be more deadly.  In fact, history has shown that different types of weapons have often accompanied each other in armed conflict, with devastating consequences.

In any case, the solution for countries negotiating the Chemical Weapons Convention was to provide a specific definition of riot control agents, and to permit their use for law enforcement purposes while specifically prohibiting their use as a method of warfare.  

As new weapons emerge, however they are described and labelled, they must continue to be reviewed by countries in the same manner, based on their characteristics and their intended use, their compatibility with international law, regardless of any claim of “lethality” or “non-lethality”. 

Claims that the rules of international humanitarian law applying to weapons are out dated or static, or that they need to be re-written in the face of new technological developments, often betray a misunderstanding of their origins and their fundamental relevance despite technological and social change.  As the Spanish born, American educated philosopher George Santayana famously warned; ‘Those who cannot remember the past are condemned to repeat it’.