[January 2, 2009

NONLETHAL WEAPONS, JUST WAR THEORY, AND INTERNATIONAL LAW

John W. Lango

Professor

Department of Philosophy

Hunter College of the City University of New York

695 Park Avenue, New York, NY 10065 USA

john.lango@hunter.cuny.edu

Questioning the Noncombatant Immunity Principle

In response to contemporary forms of armed conflict, including genocidal civil wars and global terrorism, some just war theorists are presently engaged in projects of rethinking just war principles.^{^[1]} In this talk, I shall focus on the following question. Should the just war principle of noncombatant immunity be revised, so as to allow uses of nonlethal weapons?^{^[2]} The word "should" is used as a moral term. I am a specialist in moral philosophy, and my purpose is to examine moral issues.

This talk is derived from a draft of a much longer paper. Consequently, I am mainly able to explain here the results of my exploration of the stated question. Much of the reasoning that led to those results had to be omitted.

There are different kinds of nonlethal weapons. The website of the Joint Non-Lethal Weapons Program (JNLWP) of the U.S. Department of Defense has some examples: ones that are currently available include "rubber bullets" and "mechanical barriers", ones that are under development include "non-lethal flash bang munitions" and "a pre-emplaced net with a barbed spike system that stops cars and trucks", and ones that are being researched include "focused acoustics" and "non-blinding laser devices".^{^[3]} Additionally, there is the prospect of developing incapacitating chemical and biological weapons.

There are different definitions of the term "nonlethal weapon". According to the JNLWP website, "non-lethal weapons are defined as 'weapons that are explicitly designed and primarily employed so as to incapacitate personnel or materiel, while minimizing fatalities, permanent injury to personnel, and undesired damage to property and the environment.'"^{^[4]} For brevity, I shall simply accept this definition.

To focus on moral questions involving nonlethal weapons, I have to set aside technological questions about them -- for instance, questions about their effectiveness. Even if sufficiently effective kinds of them have yet to be developed, answers to moral questions involving them ought to be presently investigated.

The noncombatant immunity principle has been understood differently by different just war theorists. For instance, it is, according to Nicholas Wheeler, "the absolute principle that civilians are not legitimate targets of war".^{^[5]} Accordingly, I shall accept provisionally the following formulation of it. In the conduct of war, the intentional targeting of noncombatants is morally prohibited.

In a variety of scenarios featuring nonlethal weapons, noncombatants are intentionally targeted. Let us imagine such a scenario. Last July in Afghanistan, a Taliban leader entered a building that was perhaps filled with civilians, and a U.S. air strike designed to kill him was aborted.^{^[6]} But imagine instead that combatants and noncombatants in the building and the environs had been intentionally incapacitated by nonlethal weapons, and the Taliban leader had been captured by a special forces operation. Clearly, in this nonlethal weapons scenario, this noncombatant immunity principle is violated.

Concerning the scenario, we might judge that it is morally obligatory to protect the noncombatants from harm, and also that it is morally permissible to neutralize the Taliban leader. My view is that such moral judgments about particular cases featuring nonlethal weapons might be used to revise the noncombatant immunity principle, so as to allow uses of nonlethal weapons.

By contrast, in a recent article by Chris Mayer in the Journal of Military Ethics, entitled "Nonlethal Weapons and Noncombatant Immunity: Is It Permissible to Target Noncombatants?", it is unquestioningly presupposed that "the concept of noncombatant immunity prohibits the intentional targeting of noncombatants."^{^[7]} Thus Mayer would, I believe, claim that the imagined use of nonlethal weapons in the scenario is prohibited by the noncombatant immunity principle.

Just War Theory

To question the noncombatant immunity principle adequately, I need to sketch some of my views about just war theory. Traditional just war principles ought to be generalized, so as to be applicable to military actions of all sorts -- for instance, armed humanitarian interventions and counterinsurgency operations. Having discussed such a generalized just war theory elsewhere, I shall presuppose it here.^{^[8]}

Just war principles can be elucidated by means of moral principles of greater generality. Accordingly, I shall presuppose a general principle of nonmaleficence -- namely, that it is morally obligatory not to intentionally or knowingly cause or seriously risk causing grievous harms. (In deriving this talk from a draft of a much longer paper, I have omitted discussions of other general moral principles -- for example, a general principle of beneficence.)

Which types of harms are grievous and which are not? Clearly, grave injury and death are grievous harms, but scrapes and bruises are not. Since there is no space to pursue this question further, it is presupposed that there is a threshold (or thresholds) above which harms are grievous and below which they are not.

Instead of being an absolute principle, the nonmaleficence principle is a prima facie principle. When agents responsible for the conduct of war deliberate about whether to cause or seriously risk causing grievous harms, they ought to make the presumption that they must not. To override this presumption, they have the burden of proving that they may. The jus in bello principles constitutes a set of moral criteria for determining whether this burden of proof has been satisfied. To override the general nonmaleficence principle in the conduct of war, the jus in bello principles must be applied.^{^[9]}

Among the jus in bello principles is a moral principle of economy of force -- namely, that combatants must use the minimum force necessary to realize their military objectives.^{^[10]} The force economy principle is different from the jus in bello principle of proportionality. For sometimes even the minimum necessary force is disproportionate, and sometimes a proportionate use of force is not the minimum necessary force. Combining the two principles, what is morally obligatory is that combatants use the minimum proportionate force necessary to realize their military objectives. Therefore, when the nonmaleficence principle is overridden in the conduct of war, it is morally permissible to intentionally or knowingly cause or seriously risk causing some grievous harms, but only the least necessary (and proportionate) amount of them.

The Combatant Nonimmunity Principle

Complementary to the noncombatant immunity principle, there is a principle of combatant nonimmunity -- namely, that, in the conduct of war, the intentional targeting of enemy combatants is morally permitted. Hence, complementary to the question asked by the subtitle of Mayer's article, there is the question: is it permissible to target enemy combatants with nonlethal weapons?

In the conduct of war, enemy combatants perform acts that are grievously harmful to people (and their property and the environment). A crucial point is that, in the conduct of war, soldiers must attempt (as much as possible) to stop enemy combatants from grievously harming people. This idea of stopping is at the heart of just war theory. (In deriving this talk from a draft of a much longer paper, I had to omit most of the reasoning in support of this idea of stopping.) Thus, in "Just-War Criteria," James Childress claimed that, in the conduct of war, "the immediate object is not to kill or even to injure any particular person, but to incapacitate or restrain him."^{^[11]} Similarly, in The Just War, Paul Ramsey asserted: "The objective of combat is the incapacitation of a combatant [...] it is not the killing of a man [...] the difference is to be found in the intention".^{^[12]} Indeed, the combatant nonimmunity principle morally permits the intentional targeting of enemy combatants, but unbridled harm is not morally permitted.

According to the force economy principle, soldiers must use the minimum forceful necessary means, in striving to realize the end (or goal) of stopping enemy combatants from grievously harming people. Very frequently, in the history of modern warfare, the minimum forceful necessary means has been the means of gravely injuring or killing enemy combatants. However, anticipating especially future developments of nonlethal weapons, let me voice a suggestion. In the (future) conduct of war, the minimum forceful necessary means might occasionally, if not frequently, be the means of incapacitating enemy combatants by nonlethal weapons. Under such occasional, if not frequent, circumstances, the use of nonlethal weapons to stop enemy combatants would be morally obligatory, because of the force economy principle; and so, also because of the force economy principle, the use of lethal weapons to stop them would be morally prohibited.

The Noncombatant Nonimmunity Principle

Having considered the nonimmunity of combatants, I shall now question the immunity of noncombatants. According to the noncombatant immunity principle, noncombatants must not be intentionally targeted. Nevertheless, they are not completely morally immune from harm. When some just war theorists formulate the principle, they include a qualification about foreseen but unintended harm. However, the locution "foreseen but unintended" is (potentially) misleading. For agents can foresee that (it is highly likely that) a harm will happen, even when they do not cause (or seriously risk causing) it to happen (e.g., injuries and deaths from a hurricane). By contrast, when agents cause a harm to happen, having foreseen that it would happen, they knowingly cause it to happen. And, when they seriously risk causing a harm to happen, having foreseen that it is highly likely that it would happen, they knowingly seriously risk causing it to happen. Hence, instead of the locution "foreseen but unintended", I prefer the locution "knowingly but not intentionally".

Accordingly, I shall supplement my original formulation of the noncombatant immunity principle by a principle of noncombatant nonimmunity: Sometimes, in the conduct of war, it is morally permissible to knowingly but not intentionally cause or seriously risk causing grievous harms to noncombatants.

Alternatively, when Michael Walzer formulated a noncombatant immunity principle, he included not only a qualification about foreseen but unintended harm but also qualifications about proportionality, force economy, and risk acceptance.^{^[13]} Instead, for the sake of clarity, I shall discuss my original formulation and separate noncombatant nonimmunity, proportionality, and force economy principles.

Intentionally Targeting Noncombatants

Should the intentional targeting of noncombatants be morally prohibited? Should the noncombatant immunity principle be revised, so as to allow uses of nonlethal weapons? A starting point for answering these questions is found in a remark by A. J. Coates: "Traditionally, the distinction [between combatants and noncombatants] is seen to arise out of the moral prohibition on the taking of innocent life."^{^[14]}

Apparently, before effective nonlethal weapons were sufficiently contemplated, many just war theorists assumed (roughly) that to target means to (intend to) kill. For example, in Just and Unjust Wars, Walzer's initial formulation of the noncombatant immunity principle was that noncombatants "can never be the objects or the targets of military activity"'; but, in expanding this formulation in terms of the principle of double effect, he referred to "unintended but foreseeable deaths" of noncombatants.^{^[15]}

I have accepted provisionally a formulation of the noncombatant immunity principle that contains the term "targeting": the intentional targeting of noncombatants is morally prohibited. Apparently, what some just war theorists would mean by asserting that the intentional targeting of noncombatants is morally prohibited is (roughly) that the intentional killing of noncombatants is morally prohibited.

Now that effective nonlethal weapons have been envisaged, it should be evident that there is no conceptual (or logically necessary) connection between targeting and killing. There is no conceptual connection between intentionally targeting and intentionally killing. For, using nonlethal weapons, there can be intentional targeting without intentional killing.

Therefore, my proposal is that what I provisionally accepted as the noncombatant immunity principle should be reformulated or revised as follows. In the conduct of war, the intentional grave injuring or killing of noncombatants is morally prohibited. I shall term it the delimited noncombatant immunity principle. Presumably, for some just war theorists, it makes (somewhat) explicit what was meant in the provisionally accepted formulation; whereas, for other just war theorists, it amounts to a revision.

Intentionally Incapacitating Noncombatants

By contrast, Mayer advocates a broader noncombatant immunity principle, one that is "based on a human rights standard"^{^[16]}-- namely (in my own words), that, in the conduct of war, the intentional violation of the human rights of noncombatants to life and liberty (or autonomy) is morally prohibited.^{^[17]} Notice that, for those just war theorists who interpret "intentional targeting" as (roughly) meaning "intentional killing", Mayer's principle is revisionary.

Accordingly, let me summarize Mayer's answer to his question of whether it is morally permissible to intentionally target noncombatants with nonlethal weapons. When noncombatants are intentionally incapacitated by means of nonlethal weapons, their human right to liberty (or autonomy) is violated. Therefore, it is morally obligatory not to intentionally incapacitate them by means of nonlethal weapons.

In partial agreement with Mayer, I shall presuppose that human beings are grievously harmed when their human rights are violated. Indeed, when noncombatants are intentionally incapacitated by means of nonlethal weapons, some of their human rights are violated -- in particular, the right to liberty, but also other rights, including the right to freedom of movement.

Accordingly, my somewhat different answer to his question is summarized as follows. Because of the nonmaleficence principle, responsible agents ought to make the moral presumption that they must not intentionally incapacitate noncombatants by means of nonlethal weapons. To override this moral presumption, they have the burden of proving that they may. And, to satisfy this burden of proof, the jus in bello principles have to be applied.

Sometimes the proportionality principle is applicable as follows. The grievous harms intentionally caused to noncombatants by means of nonlethal weapons are outweighed by the great benefits of stopping enemy combatants from grievously harming people. In particular, the harms of intentionally violating certain rights of noncombatants -- e.g., their right to liberty -- are outweighed by the benefits of preserving people's right to life.

To illustrate such weighing, I shall augment the above Afghanistan scenario as follows. Imagine that the Taliban leader is about to launch a terrorist attack that would slaughter many innocent people. Frequently (but not necessarily always), the benefits of preserving those people's right to life would outweigh the harms to noncombatants of intentional incapacitation -- for instance, the intentional violation of their right to liberty. (But, since uses of nonlethal weapons might inadvertently cause grave injuries to or deaths of noncombatants, sometimes the harms of using them can outweigh the benefits.)

Furthermore, sometimes the proportionality principle is applicable paternalistically. For the grievous harms intentionally caused to noncombatants by means of nonlethal weapons might be outweighed by the great benefits to those noncombatants themselves. For instance, the harms of violating their right to liberty might be outweighed by the benefits of preserving their right to life. (Cf. the issue of paternalism versus respect for autonomy in medical ethics.) To illustrate this weighing, let us imagine a different Afghanistan scenario. A Taliban leader is in a building that is empty of noncombatants, but some noncombatants are in the environs. During a special forces operation designed to kill or capture the Taliban leader, those noncombatants are intentionally incapacitated by nonlethal weapons, in order to keep them from entering the building.

The Noncombatant Targeting Principle

Let us review. In the conduct of war, (1) noncombatants must never be intentionally gravely injured or killed, but (2) sometimes they may be knowingly but not intentionally grievously harmed and (3) sometimes they may be intentionally grievously harmed (but not lethally or gravely injuriously). The first clause expresses the delimited noncombatant immunity principle, and the second clause expresses the noncombatant nonimmunity principle. The third clause should also be read as expressing a principle. Accordingly, to supplement the two principles expressed by the first two clauses, my proposal is that there should be the following principle. Sometimes, in the conduct of war, it is morally permissible to intentionally cause grievous harms that are neither lethal nor gravely injurious to noncombatants. I shall call it the principle of noncombatant targeting.

Which types of grievous harms are gravely injurious or lethal, and which are not? Since there is no space to discuss this difficult question fully, I shall presuppose that there is a threshold (or thresholds) above which grievous harms are gravely injurious or lethal, and below which they are not. This threshold is morally crucial, because grievous harms above it are morally prohibited, whereas grievous harms below it are sometimes morally permissible.

Such thresholds between the prohibited and the sometimes permissible occur elsewhere in moral philosophy. For example, some opponents of the death penalty hold that, although convicted criminals must never be executed, they may sometimes be sentenced to life imprisonment. (Arguably, execution violates the human right to life, and imprisonment violates the human right to freedom of movement.) Also, some critics of coercive interrogation hold that, although suspected terrorists must never be subjected to torture, they may sometimes be subjected to arbitrary detention. (Presumably, the former violates Article 5 of the Universal Declaration of Human Rights, and the latter violates Article 9.)

In conclusion, it is essential to understand how the noncombatant targeting principle and the force economy principle are interrelated. In the conduct of war, sometimes it is morally permissible -- because of the noncombatant nonimmunity principle -- to knowingly but not intentionally cause (or seriously risk causing) grievous harms to noncombatants, including grave injuries and deaths. Furthermore, sometimes it is morally permissible -- because of the noncombatant targeting principle -- to intentionally cause grievous harms to noncombatants, but not grave injuries or deaths. Presently, while using lethal weapons to stop combatants from grievously harming people, soldiers often knowingly but not intentionally cause grave injuries to or deaths of noncombatants. (Also, in thus using lethal weapons, soldiers seriously risk causing grave injuries to or deaths of noncombatants.) Alternatively, in the (future) conduct of war, soldiers might use nonlethal weapons both to stop combatants from grievously harming people and to intentionally incapacitate noncombatants, thereby violating the right to liberty, and other human rights, including the right to freedom of movement. (Also, in thus using nonlethal weapons, soldiers seriously risking causing grave injuries to or deaths of noncombatants.)

Which of these two alternatives is morally preferable? Because of the force economy principle, soldiers must cause the least necessary amount of grievous harms to noncombatants. My suggested answer is that, in the (future) conduct of war, the minimum forceful necessary means might occasionally, if not frequently, be the means of intentionally incapacitating combatants and noncombatants by means of nonlethal weapons.

International Law

A noncombatant immunity principle was embodied in the 1977 Protocols to the Geneva Conventions.

In particular, in Part IV (entitled "Civilian Population") of Protocol I, the gist of Article 48 (entitled "Basic rule") is that "the Parties to the conflict shall at all times distinguish between civilian population and combatants [ . . . ] and accordingly shall direct their operations only against military objectives." Should this basic rule be revised (or clarified), so as to (explicitly) allow sometimes the use of nonlethal weapons against civilians?

To interpret the basic rule, other articles need to be examined. According to Article 51 (entitled "Protection of the civilian population"), the "civilian population as such, as well as individual civilians, shall not be the object of attack." And the term "attack" is defined in Article 49 (entitled "Definition of attacks and scope of application"): "'Attacks' means acts of violence against the adversary, whether in offence or in defence." Should this definition be revised (or clarified), so as to be limited to acts of violence that are intentionally lethal or gravely injurious?

Because of the time limit for my talk, I cannot attempt to answer these difficult questions. But I welcome suggestions about how they should be answered from members of the audience during the discussion period.

NOTES