Nonlethal Weapons and Noncombatant Immunity: Can We Ever Justify Attacking Noncombatants?
CPT Chris Mayer
Because the children compromised the team’s position, it could be argued that they constituted a threat to Balwanz and his men. However, Balwanz made the decision not to shoot the children, and it seems that the idea of noncombatant immunity (NCI) guided his decision. The children were not combatants, so they could not be shot. However, would it have been morally permissible for the team to use nonlethal weapons against the children? As the development of nonlethal weapons (NLW) advances, addressing this type of question becomes more important. In this paper I will examine four distinct instances where NLWs might be used against noncombatants, and I will use these cases to determine the moral limitations of the use of NLWs. While evaluating these cases I will also highlight the conflict that naturally arises: a conflict between a conception of NCI based on rights and one based on consequentialist considerations.
1. NONCOMBATANT IMMUNITY
Admittedly, there are many different views about NCI; however, the basic idea that NCI promotes is that military forces should not attack noncombatants. That is, military forces cannot intentionally aim at noncombatants; noncombatants are not military targets. Additionally, even when aiming at military targets, military forces must consider the unintended harm to noncombatants that is often caused by legitimate military actions. If destroying one tank will seriously harm a thousand noncombatants, it is likely that destroying it is not morally permissible (unless of course there is something extremely special about this one tank). Principles such as the doctrine of double effect capture this intuition by not only prohibiting soldiers from intentionally aiming at noncombatants, but also by requiring soldiers to consider the harmful side-effects of legitimate military attacks.
The prohibitions of NCI are fairly easy to understand. However, the reasons why noncombatants should not be attacked are enlightening and must be understood for a full appreciation of NCI. One view, presented by Michael Walzer, presents the right to life and liberty as the foundation of NCI. Walzer maintains that people, based solely on the fact of their humanity, possess the right to life and liberty. Respecting the humanity of a person means not violating that person’s life and liberty; this means that you cannot intentionally attack a person. According to Walzer, the only people who can be intentionally attacked are soldiers in war who “lose the rights that they are supposedly defending” (Walzer 136).
Another possible justification for NCI is related to the claim that people have a prima facie right to self-defense. If an individual is attacked, it is thought that he can harm the attacker to protect himself. Applied to war, this principle tells us that it is morally permissible for soldiers to kill enemy solders and others who directly threaten them. Yet, soldiers are not required to wait until they are attacked; enemy soldiers can be viewed as potential threats, unless they are captured or wounded. By definition, noncombatants are not a threat, which means that it is not morally permissible for soldiers to attack them in war. Soldiers cannot claim self-defense as a justification for attacking noncombatants.
The last justification for NCI that I will offer concerns the fact that noncombatants do not consent to take part in the battle. Soldiers, even if they are forced to fight, at least partially consent to being a trained soldier on the battlefield. Noncombatants do not consent to being a full-scale participant in the war and typically try, as much as possible, to live life as they did before the war.
All three of these ideas provide a slightly different justification for NCI; however, each rests on the moral foundation of human rights. In this paper I make the assumption that in order for the concept of NCI to be viable, it must be based on a human rights standard, even though this view will frequently conflict with consequentialism. Although the consequentialist view is enticing, and seems to concur with many of our intuitions, to base NCI on a consequentialist foundation seems to contradict the very idea that NCI promotes. A consequentialist conception of NCI would seem to allow military forces to attack noncombatants in order to promote the safety of a greater number of noncombatants. Yet, this view of NCI is incoherent because immunity from intentional harm is possessed by each individual noncombatant, and to bargain it away by basing it on consequentialist calculations makes the concept nearly worthless. Therefore, it is the view of a NCI grounded in human rights that I will use when evaluating the four cases in the paper.
2. NONLETHAL WEAPONS
Nonlethal weapons vary in technology, sophistication, and effect on the intended target. Some nonlethal weapons, such as stun guns and stun grenades, are familiar to us. These weapons temporarily subdue the intended target without inflicting permanent damage. Other well-known weapons, such as tranquilizers and sleeping gas, have a more dramatic effect as their purpose is to incapacitate the target for a longer period of time. These weapons have been used by military and law enforcement organizations for many years.
More advanced nonlethal weapons also exist or are under development. For example, extreme light or sound can disorient people, which can prevent an attack or force an enemy to surrender. Other weapons produce inflatable devices, similar to beach balls, which immobilize people. This type of weapon would be useful for crowd control. The use of holograms has also been proposed. For example, in a hostage situation a respected figure of the hostage takers, such as a family member or religious leader, could appear and order the hostage takers to release the hostages (Bunker 15). Additionally, research is being done on the possibility of implanting thoughts into people’s minds (8). This could be used to get soldiers to surrender or to encourage noncombatants to evacuate a certain area.
discuss the ethical concerns associated with nonlethal weapons, I must first
mention the practical risks associated with using them. The Russian use of sleeping gas to rescue
hundreds of hostages serves as a useful example. Instead of putting everyone to sleep, the
gas, pumped in by Russian Special Forces, killed over one hundred hostages and most
of the terrorists (Hostage Siege). Another
example, which happened closer to home, occurred in the spring of 2003.
Although the cases above are different in many ways, what is similar about them is that those using the NLWs never intended to cause serious injury. Thus, it is clear that while the purpose of nonlethal weapons is to accomplish an objective without loss of life, nonlethal weapons are dangerous and can possibly have the same effect as lethal weapons. However, in the next section I want to focus solely on how NCI should constrain the use of NLWs. So, for the sake of isolating the ethical concerns associated with NLWs, I will assume that they are risk free and accomplish their purpose without any risk of fatalities or serious harm.
3. THE ETHICAL CONSIDERATIONS OF USING NONLETHAL WEAPONS
Nonlethal weapons provide military forces with a great degree of flexibility, and their increased use on the battlefield could potentially reduce the harm to noncombatants during war. What must be determined is when (if ever) is it permissible to intentionally target noncombatants with NLWs. In what follows I would like to consider whether the use of nonlethal weapons in certain cases would be justified. Let’s first look at the case with which I began the paper. Would it be morally permissible for the Special Forces team to use nonlethal weapons against the children? For example, imagine that the team possessed a tranquilizer gun or a memory-erasing weapon. These weapons would allow the team to subdue the children and escape. Would this action violate NCI? Despite the lack of serious harm caused by the use of tranquilizer or memory erasing weapons, these actions would violate the noncombatant immunity of the children. Clearly, firing a weapon at the children treats them as if they were combatants; they are being targeted for a military purpose. Also, by using NLWs against the children, the team would be restricting the children’s liberty. Something is being done to the children without their consent, and this seems to constitute harm in itself.
The children were simply exploring the countryside (which is something that they would have done whether there was a war or not) and noticed the soldiers; they had not adopted a military purpose. Had the children been part of a civil patrol formed to locate enemy soldiers, less justification would be needed to target them with NLWs. However, because the children were simply doing what children do, and had not consented to be part of the military effort, there does not seem to be a morally good reason to use a military weapon against them. Additionally, the children cannot be targeted because they do not pose a direct threat to the soldiers, but are a threat in the same way as is a citizen who pay taxes which help fund the weapon systems of the enemy forces. Being a direct threat entails actually pointing a weapon at someone, possessing the potential and likelihood of doing so (as soldiers do), or having some other significant and direct contribution to military activity. All others are not direct threats. This means that the team’s members could not claim self-defense as a justification for attacking the children with NLWs. Moreover, to use the NLWs against the children assumes that they will tell their parents; this is not a certainty. However, even if it was a certainty, the children are still not a direct threat.
An objection to this line of reasoning might be that because the nonlethal weapons will not seriously harm the children, using NLWs against them is not really a violation of their NCI. Additionally, less overall harm will result if the NLWs are used. This objection misunderstands NCI because it not only prohibits serious physical harm, but it also prohibits treating noncombatants as if they possessed some sort of military status. By definition, noncombatants have done nothing that makes them participants in the war, which means that there is no justifiable reason for military forces to attack them. In a sense they are involved in the war because their country is at war and enemy forces have crossed their border, yet their status is not the same as the soldier’s. Soldiers have willingly or unwillingly made themselves targets by training and being equipped to kill the enemy. They possess a military status because their very purpose is to target the enemy’s military forces. Noncombatants do not possess this status, but are instead like fans at a game. Even though your opponent’s fans are cheering for their team, these fans cannot be harmed, even if this would help defeat your opponent. They are off limits because they enjoy a different status from the players that they support. In the case at hand, the children did compromise the team’s mission; however, this does not make it permissible for the team to target the children. Even though the war rages around them and they have stumbled upon the enemy, the children are still noncombatants.
The more difficult judgment comes when deciding whether to use NLWs against noncombatants who will be unintentionally harmed due to a legitimate military action. For instance, suppose that an attack on a legitimate military target will damage adjacent houses and likely kill their occupants. Would it be morally permissible to use NLWs to force the inhabitants of those houses to leave the area? It seems that any action that reduces noncombatant harm would be morally permissible. However, because of the nature of NCI, using NLWs to remove noncombatants from the path of unintended harm is a violation of NCI; you are still using a weapon against noncombatants for a military purpose. Yet despite this, one would think that the average person would prefer being “attacked” by NLWs rather than possible death or serious injury caused by a legitimate attack. However, this might be assuming too much. If the individual had been warned beforehand about a possible attack, perhaps by flyers dropped from a plane, and still chose to stay, then to use NLWs to force her from her home amounts to coercion, which means that it is also a violation of her liberty. This coercion, for some, might be worse than the harm caused by the legitimate attack.
When conducting an operation that may cause unintended harm to noncombatants, due care should be taken when attacking the target, and, as I mentioned before, the people should be warned that they are in danger because they live next to a legitimate military target. However, to use NLWs to coerce the noncombatants’ movement not only seems paternalistic, but it treats them as if they possessed a military status rather than the right to be left alone as much as possible. Noncombatant immunity allows noncombatants to live life, as much as possible, as they did before the war; this includes allowing them to make their own choices. There may be good reasons why the noncombatants choose to remain next to the munitions factory. Whatever their reasons are, noncombatants do not owe an explanation to the enemy. Therefore, because the purpose of NCI is to safeguard the basic rights of noncombatants, attacking noncombatants to save them from unintended harm, even when using NLWs, is still a violation of NCI.
A case where force against noncombatants may seem acceptable is the often discussed munitions factory case. Because of the necessity of destroying targets such as munitions factories, it is thought to be morally permissible to destroy the factory even when the workers are inside. The factory workers give up some of the protection of NCI while in the factory because it is a legitimate military target. But, we wouldn’t want to say that they are full combatants. Their involvement with the factory gives them an altered status which, while not allowing military forces to attack them directly, does allow military forces to take less care than they do with other noncombatants. For example, typically, the presence of noncombatants inside of a building would mean that it is not morally permissible for military forces to attack the building. This prohibition may also apply if the noncombatants are not in the building, but will be harmed by the attack. More latitude is allowed when attacking a factory, but it still must be remembered that the harm caused to the factory workers is foreseen but unintended, even though the missile may be aimed at their assembly line. So, the workers maintain immunity from enemy targeting, which suggests that it is morally impermissible for the military forces to use NLWs in the hopes of getting the factory workers to leave the factory. While the factory workers should receive some sort of warning in advance of the attack, their status as noncombatants means that military forces cannot target them with NLWs. To attack them with NLWs amounts to coercion and violates the right to autonomy that the workers possess. If they choose to ignore warnings, they do at their own risk. It is not up to the enemy to determine if they have good reasons for doing so.
Requiring soldiers to use lethal weapons, when this may potentially cause greater, or at least more serious, harm to the noncombatants, seems to violate NCI. However, when due care is taken to minimize noncombatant causalities, and when it is necessary to capture or kill the guerrillas, directly attacking the guerrillas is the course of action most in line with NCI. It is here where the clash between the rights and consequentialist perspectives is apparent. The consequentialist would be willing to target noncombatants with nonlethal weapons if this reduced the probability of serious harm to the noncombatants. Yet these calculations ignore the fact that NCI attaches itself to each person, and is thus a concept best considered from an individual rather than a group perspective. Shooting tear gas into an apartment building, or using a NLW to temporarily stun a crowd, treats the noncombatants as if they were soldiers. It also, in a way, makes the noncombatants accomplices to the goal of subduing the guerrillas. This is something that they have not consented to, and it may go against their deepest values. Even if using the NLWs against the noncombatants saves more lives in the long run, something, specifically a military action, is being done to the noncombatants for military purposes. This doesn’t treat the noncombatant as a biased spectator, but instead allows military forces to treat the noncombatant in the same manner that they are treating the enemy soldier. Therefore, in cases where the enemy is intermingled with noncombatants, adhering to NCI requires soldiers to either let the guerrillas escape, or to target the guerrillas with a precision weapon, which in many cases will be a lethal one.
With the increased presence of NLWs on the battlefield, it will be tempting to use them against noncombatants in situations where the use of military force has previously been prohibited. Those calling for the use of NLWs in these situations will employ consequentialist justifications. Admittedly, in many of the cases that I discussed, maintaining a rights based concept of NCI seemed counterintuitive, as harm to noncombatants could be reduced if only military forces could use NLWs against them. However, using a rights based foundation for NCI provides the best protection for noncombatants and seems to be the most compatible with the prohibition that NCI promotes. Noncombatant immunity does not simply protect the noncombatant from death, but it directs military forces to, as much as possible, treat noncombatants differently from soldiers by respecting the rights of the noncombatants. This means that there is a strong presumption against military forces taking any sort of action, lethal or nonlethal, against noncombatants. Because of this presumption, the use of NLWs against noncombatants should be limited. In each of the four cases that I have examined, I have claimed that a rights based version of NCI prohibits the use of NLWs. This suggests that the availability of NLWs on the battlefield should not be a reason to erode the protection that NCI currently offers. With this in mind, military forces should put a great deal of effort and thought into determining how best, both practically and morally, to use NLWs on the battlefield.
 This information was obtained from the Nightstalkers.com website, which is a site for the 160th Special Operations Aviation Regiment.
 There are of course cases, such as attacking a munitions factory, where this prohibition is not as strict. However, it is important to note that one is not aiming at killing the factory workers, but is instead trying to destroy the factory and it just so happens that the workers are deemed part of the factory when they are working. I will refer back to this example throughout the paper.
 Even though “our right not to be attacked is a feature of normal human relationships”, it is permissible to attack and harm soldiers because of the nature of war and the fact that soldiers are fighting to resolve a state dispute. However, noncombatants maintain the immunity that soldiers lose, even if they are citizens of the enemy state. Therefore, in war it is morally wrong to intentionally attack noncombatants because to do so would violate their rights to life and liberty. Walzer 136 and 145.
 Noncombatants who pick up weapons lose their noncombatant immunity. It is only this sort of threat, either voluntary or involuntary, that causes a person to lose his noncombatant immunity. The fact that a person helps the enemy’s morale, or provides the enemy with shelter, does not cause that person to lose his noncombatant immunity.
 There are other types of nonlethal weapons. What I wanted to do in this section was provide a general description of some of the nonlethal weapons that are available (or may be available in the future).
 Persuading the noncombatants to leave, or offering them compensation for leaving, would be morally acceptable. Under these circumstances, the noncombatants are choosing to leave, although the presence of war, and the threat of unintended harm, is somewhat coercive.
 Again, we wouldn’t want to say that they are full combatants. For example, if, after bombing the factory, the production capability of the factory was destroyed, but many of workers were alive and hiding in the employee lounge, we wouldn’t launch a second attack to destroy the lounge and the workers. They are also not susceptible to attack while in their houses, or any time outside the factory.
 I want to thank Dr. Richard Schoonhoven for his suggestions on a draft of this paper that helped me clarify the rights/consequentialist conflict, expand the analysis of each case, and make a distinction between the Russian and NYC cases.
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