With Fear and Trembling:

With Fear and Trembling:

A Qualified Defense of “Non-Lethal” Weapons

Dr. Pauline M. Kaurin

Department of Philosophy

Administration 227K

Pacific Lutheran University

Tacoma, WA 98447

“At the heart of the promise of non-lethal weapons is the possibility of minimizing pain and death by providing flexible response tools for policing and military purposes.”[1]

“The main purpose and outcome of war is injuring.”[2]

What if one could wage war largely without killing people? What if one could wage war in such a way as to dramatically reduce both combatant and non-combatant casualties? It seems intuitive that weapons which promise generally not to kill, but rather to stun, stop or otherwise disable persons and materiel without irreversible effects would be ethically preferable, since they would reduce combat casualties, reduce collateral damage, spare non-combatants (especially) from unnecessary suffering and facilitate the restoration of the peace. Isn’t it obvious that not killing people is ethically preferable to killing them?

Nevertheless, there is a substantial body of criticism from a variety of sectors – academic, government, military, human rights groups, as well as scientists – of the conceptual desirability of non-lethal weapons, to what extent they are ‘non-lethal ‘and the strategic and tactical questions about how they would be employed. In this paper I argue that whether non-lethal weapons are more ethical than lethal ones depends, like with ethical questions about any weapon, upon how they are used. There is great potential for making warfare more humane and alleviating human suffering that cannot be ignored, but there are serious concerns about non-lethal weapons and their proliferation that must also be addressed.

I will claim that non-lethal weapons can be ethical, and in fact may be ethically preferable to conventional weapons, only if they are used to fulfill the following goals (in strict order of priority): 1) to provide the military with more flexible response time and options, allowing them more time and space to carefully make the strategic and ethical judgments necessary in war (like the distinction between combatants and non-combatants) and to respond with appropriate and proportional force; 2) to reduce unnecessary suffering on the part of non-combatants; 3) to facilitate the eventual restoration of peace and 4) to minimize combatant casualties.

Despite the potential that such weapons promise in terms of making warfare more humane, it is clear from the current discourse on non-lethal weapons, that my criteria would not necessarily be embraced. Therefore, I will also level criticisms against attempts (increasingly prevalent in the current non-lethal weapons discourse) to support the use of non-lethal weapons in any fashion that sees these weapons as: 1) a way to circumvent or make irrelevant moral distinctions like the combatant/non-combatant distinction; 2) an ‘easy’ technological fix to complex moral and strategic problems, whether in humanitarian, peace-keeping/building, anti-terrorism or domestic situations and/or 3) a method to make war more palatable and easier to use as both a military and political option. War is an enterprise that should be entered into with fear and trembling, with serious debate, discussion and consideration both of the aims to be achieved and the likely (and unlikely) consequences. Non-lethal weapons should be examined for their potential to ameliorate the effects of war, never to make the resort to it more ethically, politically or militarily attractive.

I. Nature of Non-Lethal Weapons

To begin, it is necessary to take up the issue of what constitutes a non- lethal weapon, which is by no means an easy or uncontroversial matter. Non-lethal weapons go by a variety of terms: non-lethal weapons (NLW), soft-kill, less-than- lethal; all of the terms are designed to denote a difference between these weapons and conventional weapons, which while not always lethal, are designed to be used in a lethal manner. As critics point out, NLW can be lethal, but they are not intended to be so. One way of defining NLW centers around two elements: 1) the physical properties of the weapon and 2) operational characteristics as having a potentially radical break with traditional warfare.[3] These weapons are not intended to kill or permanently injure, maim; any effects are intended to be temporary, minor and reversible. Another way of defining NLW is that they are intended to have one or both of the following characteristics: a- they have relatively reversible effects on personnel or material and b- they affect objects differently within their area of influence[4]

While some kinds of non-lethal weapons have been in existence for quite some time (batons used by police forces, tasers, sounds and lights as weapons of war, sanctions, psychological or information forms of warfare), the current generation of NLW was first tactically employed by US Marines in Somalia in the 1990’s. While the Marines did not have large numbers of these weapons available, they found them effective enough to cause General Anthony Zinni to become a proponent of their use and to argue for further research and development. The US Directorate on Non-Lethal Weapons was established in 1996 to head up the Department of Defense efforts to develop, evaluate and employ NLW in U.S. military operations. NLW have been effectively used in a crowd situation in Kosovo in 2000, as well is in Operations Iraqi Freedom and Enduring Freedom.

Current NLW include everything from low-impact bullets, foams, nets, lights, noise and gas grenades. In current development and testing are a variety of other kinds of weapons: directed energy systems, lasers (used as a deterrent or to temporarily blind), electromagnetic power to degrade equipment, (especially electronic), light weapons (which can send conflicting messages to the brain, causing the individual to feel very confused and unsteady), sticky foams (which can quickly spread over an area and immobilize persons and material), pheromones (which could attract bugs or other animals to overrun an area) and vinyl nets deployed by mines capable of stopping vehicles. Of particular interest for the future are systems that can disable or neutralize vehicles (especially at checkpoints), optical distracters (lasers with reversible optical effects), focused acoustics, Active Denial Technology (ADT) and laser induced plasmas.[5]

According to their proponents, the aim of all these weapons is to provide increased flexibility and response time on the part of troops and to find ways to neutralize a battlefield threat (or a person who could be potentially threatening) without having to resort to lethal force. The benefits of their use is pointed to in environments like the current action in Iraq where military units are operating in urban or mixed areas where is it not clear which individuals are combatants and which are non-combatants, at vehicle checkpoints where it is advisable to be able to assess the intent of individuals and vehicles from a safe distance (given the prevalence of IED and suicide bombing tactics) and in areas where one wants to lessen the impact of war on non-combatants to help “win hearts and minds” to help facilitate the restoration of the peace and foster long term stability in the region.

II. Limited Justification for NLW

Given the fact that NLW are designed to be able to affect certain military aims and objectives in ways that minimize harm to persons, materiel and the environment, it would seem that the case for them would be fairly easy to make. Lethal force is currently justified in warfare, so it appears that using something short of lethal force to achieve the same ends would be ethically and strategically preferable. However, we must remember that lethal force is not morally justified, per se, but only under certain circumstances (jus ad bellum) and to be used in certain ways (jus in bello). In both the Just War Tradition (JWT) and International Law the resort to lethal force in warfare is legitimate only in certain circumstances, for example, where justice cannot be obtained in any other way, or to protect those that cannot protect themselves. The core insight in both of these ways of thinking about war is that there are core moral and/or legal distinctions that must be made and maintained to justify the harm (death, injury, violation of autonomy etc.) that use of lethal force will bring. Warfare is not condemned as never morally and legally appropriate; it can be appropriate provided that certain moral and legal distinctions are kept in view – war versus murder, soldier versus murderer, combatant versus non-combatant, legitimate military target versus prohibited targets.

If, as even proponents will admit, NLW can and does cause harm to people, the environment and materiel, then it makes sense to claim that a similar argument relative to the use of lethal force should also apply – even if in a correlative manner – to NLW. Since NLW can cause harm (whether or not on the same scale is a subject of extensive debate and controversy), they can only be used legitimately provided that certain moral distinctions are maintained. In the qualified and restricted defense of NLW below, my aim is to give a justification for NLW that preserves, as closely as possible, similar moral distinctions that under gird the current thinking in JWT and International Law about conventional (i.e. lethal) warfare.

My claim is that NLW can be morally justifiable and possibly even ethically superior to conventional, lethal weapons provided that the following four criteria are followed; note that these criteria are listed in strict order of import and priority. First, and most importantly NLW are justified to provide more flexible response times to make strategic, moral and practical judgments about the facts of the situation, in particular to distinguish between combatants and non-combatants, as well as to have time to consider and respond with appropriate and proportional force. These types of weapons should augment (not try and provide a technological replacement for) the moral education and training of soldiers to maintain and support international law, conceptions of military honor and JWT.

One important question is why this criterion takes priority, even over the minimization of non-combatant harm, which seems to be a primary consideration in contemporary warfare. How will having more time help? Won’t it lead to hesitation on the part of soldiers which some argue is a deadly thing in combat (insofar as it can lead to casualties)? Rather than arguing for the necessity of more time, some proponents of NLW even go so far as to argue that NLW will reduce hesitation in combat, since the cost of acting is less.[6]

The advantage of this weaponry is that NLW could give options of anticipation of violence, as well as ways to slow down the escalation to lethal force, if not interrupt it at a crucial decision phase. In terms of humanitarian intervention, peacekeeping or asymmetrical conflicts where one is operating in areas where combatants and non-combatants are mixed, where one operates in urban or suburban contexts or in other kinds of fluid and fast changing environments, having time to make clear and accurate moral and strategic judgments and being able to control the level of violence in a given situation will be immeasurably helpful. NLW may also be useful in the case of counter-insurgency or other operations where winning ‘hearts and minds’ is crucial, where slowing down escalation of violence so that other options might come into play could avoid or reduce conflict and where limiting damage and the resultant disruptions to combatants is essential. In all of these cases, NLW provide the possibility of slowing down or altering the trajectory of violence such that the parties can make the necessary moral discriminations and judgments essential to the ethical waging of war. If one fails to make the correct moral judgments, there are serious and even catastrophic consequences which will impact the other three criteria; this criteria is has priority because establishing this criteria will provide the foundation to fulfill the other criteria effectively.

Second, to reduce unnecessary suffering on the part of non-combatants NLW may be particularly effective. Clearly with lethal weaponry, even the most precision targeted, causes things to blow up and explode, which means that especially in contemporary mixed environments, that non-combatants will be subjected to unnecessary suffering – on their own person, to their physical environment, to their communities with ensuing political and economic ramifications. If weapons exist that can achieve military objectives in a manner that reduces the kind of physical and other damage to non-combatants associated with war, clearly those have an ethical advantage. JWT, the Geneva and Hague Conventions and other international and domestic law (including the Uniform Code of Military Justice) all make clear that restrictions on war are designed to avoid any unnecessary suffering being inflicted on non-combatants. Non-lethal weapons, in so far as they do less damage, do damage that is more reversible and insofar as they open up response time for other less lethal or even non-violent (diplomacy, negotiation) options, can reduce unnecessary suffering of populations that are not legitimate military targets. In addition, non-lethal weapons could be conceptualized as being helpful on a macro scale to deter opponents by denial to support diplomatic efforts and to contain and limit acts of aggression that could lead to a larger war. In a war they may be used to minimize collateral damage, destroy the opponents’ lethal capabilities with minimal non-combatant damage and deaths, environmental impact, to minimize reconstruction and to maintain the moral high ground.[7]

Third, another core tenet of JWT and international law is that restrictions on warfare are designed to facilitate the restoration of the peace after the conflict. Clearly the use of unrestricted lethal force can create incredible physical, environmental, political and economic hardships for combatant and non-combatants alike, but total warfare can also create much deeper problems on both the individual and societal level. In all wars where particularly brutal tactics have been used, these ‘atrocity’ stories are told and kept alive within a family and often provide a context and motivation for private vengeance by other family members or friends. They also contribute to the societal narrative of the future relationship with the adversary, providing contexts and motivations for group hatreds, policies of estrangement, resistance to reconciliation and a desire for revenge that may feed into more conflict or another war. All of these things can and historically speaking have interfered with the restoration of the peace after the conflict. Any weapons that can reduce the brutality of tactics and minimize all impacts of war, but especially the kinds that leave lasting psychological and social scars, can more easily facilitate the restoration of the peace afterwards.

Lastly, NLW weapons could be ethical if they minimize combatant casualties. However, it is important to stress that this is the last criteria, such that if NLW that do not fulfill the first three it cannot be argued that NLW should be pursued and are ethical on this last ground alone. An important litmus test for JWT and the question of justified resort to war is the following: are you willing to suffer casualties in the pursuit of the objectives? If not, that objective and/or the motivation beyond the objective is probably of questionable justification, at least if it requires lethal force to bring it about. Insofar as NLW can be justified using the other three criteria, it would make sense that such weapons would also have (largely as a beneficial by-product rather than the main focus) the effect of reducing combatant casualties. If NLW have less impact on non-combatants and their environment, it should be the case that they will have less drastic impacts on the materiel and personnel of the opposing army, as well as one’s own. International law and the JWT have prohibited weaponry that inflict unnecessary (relative to military necessity) suffering on combatants and so NLW, insofar as they reduce overall impact on combatants, will reduce unnecessary suffering as well. In particular, if NLW reduce the amount of killing that combatants have to engage in, this will have beneficial effects –especially in terms of the psychological and moral impacts of war on the individual soldiers.

At this point, it is important to emphasize that my arguments in favor, under fairly limited conditions, of NLW all rely on the assumption that NLW limit the extent and scope of the damage incurred in warfare; this argument in no way changes ANY of the core moral and legal distinctions that have traditionally been a part of ethical warfare. The above line of argument provides a limited structure under which NLW development and use might proceed in a way that is consistent with JWT, international law on war, military law, conceptions of military honor and professionalism, as well as general social expectations about waging a just war. In one important sense the use of NLW would not and should not represent a new way of war; this is no revolution in war, at least not from a moral and legal perspective.

However, in looking closely at the literature on NLW (including by those who advocate and use NLW), it is not clear that this is in fact the direction that NLW and the discourse surrounding them are headed. In the next section, I examine some of the current and possible future directions of NLW and the discourse surrounding them, by way of caveat and critique, to argue that we must proceed with fear and trembling.

III. Caveats and Critiques – Fear and Trembling

If NLW are to be developed in a way that will not run afoul of the ethical and legal considerations that are essential to conducting just and legal warfare, there a three major caveats that must be observed. These caveats are not simply mere academic arguments, but are realistic concerns developing in a significant way or clearly articulated in the current discourse around NLW. Moreover, these caveats reflect what I see as systemic problems in the discourse on NLW, not merely isolated rhetorical overstatements by impassioned proponents of these new weapons.

The first and the most crucial caveat is that under NO circumstances can the development and use of NLW go forward in any way that attempts to use technology to circumvent or weaken the principle of discrimination (the combatant/non-combatant distinction). Despite the seductive view (held by a surprising number of people) of technology as a panacea that will allow us to avoid the hard choices of war, there can absolutely NO substitute for rendering of moral judgments and distinctions made by human agents in time of war. To try and avoid this is to enter dangerous moral ground, essentially abdicating moral responsibility for the harm, injury and death that are an essential part of war.

In JWT theory, as well as in the Geneva Conventions and other international law the principle of discrimination relates not just to killing non-combatants, but to intentionally targeting non-combatants and/or engaging in indiscriminate attacks.[8] Why? The principle of non-combatant immunity (NCI) does not just protect non-combatants from death, but it directs soldiers to treat non-combatants differently from soldiers[9] While the Doctrine of Double Effect does allow harm to non-combatants it can only be permissible when the harm is unintentional, outweighed by benefit of military action and combatants must incur risk to minimize non-combatant harm.

In addition, it is generally allowed that non-combatants have a right to self-defense, are by definition not a threat (at least not in the same way that another combatant is), do not consent to take part in war and therefore, have not abdicated their right to life or autonomy.[10] Not allowing non-combatants to make choices or exercise their own autonomy is a serious matter and is harm in itself; attacking non-combatants – even

to save them from a greater harm – is a violation of NCI. Soldiers are prohibited from treating non-combatants as part of the battleground just because they happen to be in the way. In such cases, targeting non-combatants is really for the convenience of the military, not justified for any moral reason.

“Even if using NLW against the non-combatants saves more lives in the long run, something, specifically a military action, is being done to the non-combatants for military purposes. It makes the idea of NCI meaningless because the restrictions can be set aside anytime a military force can show that less harm will occur if it is permitted to use NLW against non-combatants.”[11]

Col. George Fenton, Director of the U.S. Joint Non Lethal Weapon Directorate observes that he …’would like a magic dust that would put everyone in a building to sleep, combatants and non-combatants’[12] Now clearly even the strongest proponents of NLW recognize that this is not currently possible, but what if it were? Regardless of whether such a scenario is possible, this quote (and others like it from proponents of NLW) tells us something important about the underlying thinking and assumptions that are operating in this conversation. The question is not really whether it is possible, but whether (regardless of possibility or remoteness) it is a good, moral idea? Once we look at the issue in this light, a desire to ignore or circumvent the crucial moral questions that are an essential part of any discussion of justification of warfare seems to be emerging. In reference to Vietnam and Somalia, John Alexander, arguably one of the most vocal proponents of NLW, argues that “non-lethal weapons offer a chance for soldiers to avoid facing such dilemmas in the future. The psychological burden of killing the innocent or even tacitly supportive civilians should not be thrust upon young troops when there viable alternatives are available.”[13] Another writer observes that, “…such combat-at- close quarters with civilians and hostages part of the mix – could call for non-lethal chemical weapons to sort out the real ‘bad guys; from non-combatants, human shields and those forced to take up arms”[14]

These quotes, which are representative of the arguments frequently made by proponents of NLW, demonstrate clear attempts to avoid facing certain crucial moral questions. First, such views hold that these moral questions (especially the question of discrimination between combatant and non-combatant) lose their ethical import since NLW tend not to kill – one could incapacitate people and then sort out who is who later. Second, such views reveal an important misperception, that somehow weapons could have the ability to sort out or help sort out the combatants from the non-combatants – clearly that is a task for moral judgment, which requires humans – well trained, thoughtful and ethically minded humans. Third, these ways of thinking frequently claim that NLW are by their nature discriminate, or more discriminate than conventional weapons, which ostensibly frees up the humans using them from having to engage in certain kinds of moral and legal judgments.

Is there something about NLW that are inherently discriminate? Although some weapons are clearly indiscriminate (nuclear weapons because of the scale and scope of destruction which renders the effects difficult to control even if you could – for the sake of argument – target discriminately), what makes a weapon discriminate is the moral judgment of the person using it. In order to be ethically justifiable, NLW must be able to be used in ways that it is possible to discriminate between combatants and non-combatants. While one can argue (as I did above) that NLW can do less severe damage, that argument addresses the scale and scope of destruction, not discrimination. What about NLW like gases or foams that could spread over a large area and whose effects are difficult to target and control where they go? It is perfectly possible that NLW could do less damage and still be indiscriminate, therefore, would still be problematic under JWT and international law.

NLW can also still be intentionally used against non-combatant populations and targets in opposition to both JWT and international law. This raises the question of what justifies targeting persons who are not combatants, regardless of the effects. To answer this question we must separate two issues around the question of discrimination, two issues which are frequently conflated in the NLW discourse. First, there is the question of discrimination in targeting which is required by the Principle of Discrimination in JWT and international law. As soon as we ask the question as to when targeting of non-combatants is permissible, we have stepped over a crucial moral line. Remember that the reason for the Principle of Discrimination and NCI is to protect non-combatants from being targeted as objects of war, as targets of combatants. Is there any evidence to suggest that NLW (which can be intentionally targeted against non-combatants) has any ethical advantage here? Is the problem the killing or the targeting? As we saw above, the prohibition is not simply on the intentional killing on non-combatants, but on the intentional targeting of them. Indiscriminate attacks, attacks which cannot be directly solely against military targets are prohibited. Therefore, it is not clear that NLW offer any ethical advantage because they can be – like conventional weapons – targeted just as easily against non-combatants as they can against combatants.

Second, there is the question of discrimination in effect, which could include concerns around collateral damage and the Doctrine of Double Effect. It is in this sense of discrimination that NLW could have an ethical advantage, because on the whole, they tend to do less lethal and serious damage to both combatants and non-combatants. When used properly, that is with good intelligence, moral judgment and restraint; they would likely produce less collateral damage.

However, as soon as they are used in conjunction with traditional lethal weaponry (which is what most proponents are in fact advocating), this argument may go out the window. If one where to use NLW to soften up targets prior to the application of lethal force, this could and probably would cause more damage in the end, not less. In reference to the use of NLW by police and troops in Northern Ireland, Victor Wallace argued that in low intensity conflicts, the evidence suggests that the number of people killed maybe greater (than wounded) when firearms are in use against individuals who are immobilized, incapable of defending themselves or in a confined space (where NLW are used first to immobilize or confine.) This means that the availability of NLW does not necessarily effect (at least in a good way) the kill rates by police forces and may in fact make them worse.[15] Riot control chemicals, though NLW, could also be problematic since the opponent might confuse them for lethal chemical weapons and respond in ‘kind’ leading to an escalation of the conflict quickly moving from non-lethal to lethal.[16] How does this support the argument that NLW are more humane and better able to discriminate or be used discriminately? In fact, this could lead to inflicting of unnecessary suffering, even if these weapons do not kill, also problematic from a JWT and international law perspective. Finally, coercion with NLW (like sanctions) can be more inhumane and less discriminate than coercion with conventional weaponry, especially that which can be targeted in line with the Principle of Discrimination and Non-Combatant Immunity.[17]

If we look at the other side of the Principle of Discrimination, there is also the consideration of the moral equality of soldiers.[18] If one uses NLW can the opponent defend themselves? If they can, will that create an escalation of weaponry to lethal weapons, thereby eliminating the primary advantage of NLW (killing fewer people, inflicting less damage)? If the opponent cannot defend herself, then this undermines an important aspect of moral warfare, one which effects the moral justification both for war in the first place and for how one wages war.

The second caveat is motivated by a more subtle concern underlying all of these arguments: that NLW are increasingly been seen as a technological way to erode or avoid dealing with moral principles and distinctions in war, like the principle of discrimination. Since soldiers are not killing people, one might claim, making these discriminations do not carry the same moral weight and urgency. The development and use of NLW should not be (but I am afraid increasing is) seen as an easy technological fix to increasingly complex combat and strategic situations – humanitarian interventions, peacekeeping, nation-building, anti-terrorism, domestic policing or assistance rendering missions. In other words, some are looking for a technological solution to what is essentially a moral problem: war as the infliction of injury and harm to exercise one’s will over another.

NLW should not be primarily seen technologically, but philosophically, in terms of the force containment and de-escalation processes. The problem here is really the nature of these ‘new’ kinds of conflicts; therefore, we need not just different weapons, but different kinds of judgments and discernments about how to ethically engage in these conflicts. In the US especially, “…technology is our first answer to the lethal hazards of waging war…”[19] The promise of technology is seen as a way to do several crucial things: 1) minimize combatant deaths to assuage public opinion and to increase legitimacy; 2) achieve force protection through an increased reliance on machines that can be effective from safer distances and 3) attain a presumed ‘quantum leap’ in cost effectiveness.

This focus on technology as a key to dealing with the new strategic environments, in lieu of developing new ethical insights, is reflected in various military doctrines which inform current and future military planning. The Revolution in Military Affairs (RMA) looks at future wars as conducted from a distance with standoff weapons and satellite remote sensors; this seems to offer Americans an answer to enduring strategic dilemmas – whether intolerance of casualties, impatience or shrinking military man power base since according to the RMA information and technology are the key to success.[20] The Military Technology Revolution (MTR) and the new strategic environments are seen as requiring greater emphasis on non-lethality as basis for military doctrine and operation. This is due to increasing concern about combatant and non-combatant causalities, the CNN effect and the mixed environments of many current operations. Lewer and Schofield point out that since there is no longer a clear distinction between military and civilian operations; non-lethality is becoming the basis for permanent and regular interference at a national and sub national level when the West believes that its interests are at stake.[21]

In all of these expressions of military doctrine and policy making, there is a strong focus on non-lethality motivated by causality aversion, highest among senior US military leaders and civilian political and policy leaders.[22] The increased use of civilian contractors in conflicts also supports this casualty aversion principle.[23] John Alexander, one of foremost proponents of NLW suggests that NLW can be used when “we wish to stop people from doing things we find wrong, but to do so without creating widows and orphans in the process.”[24] This reflects what proponents view as the core issue, that technology can solve this problem.

Casualty aversion provides motivation for pursuing and using NLW, but it also informs how they may be used. In the case of the Marines in Somalia, leaders made the point that no Marine should be put at risk in an attempt to deploy NLW. This also reflects the risk aversion philosophy that under girds much of the discourse about NLW and raises important questions about how much risk combatants should incur to shield non-combatants. If troops are not to be risked to use NLW, when would you use them?[25]

Presumably many of the situations in which proponents claim NLW would be especially helpful are more dangerous in some ways than conventional combat. In that case, NLW are not necessarily the technological panacea for which many are hoping.

The third caveat is that the development and use of NLW should NOT be seen (either directly or indirectly) as a way to make war and its effects more palatable or easier to use ethically, militarily or politically. Should these weapons make the resort to force easier, more publicly palatable, less risky, less costly (in any way), then we have crossed a crucial moral line. The resort to force should always be morally difficult and entered into seriously, with clear and realistic expectations about its ramifications. The historical record demonstrates that humans tend to underestimate the cost and risk of war, and are often overly optimistic about how new technologies will make war less costly (especially for their side). In retrospect, this optimism has often been shown to be wrong, sometimes in radical ways.

A major concern with NLW is that, because they result in less killing and damage, they are more likely to make the resort to force politically and militarily more attractive and feasible. Take for example a case where a NLW is used that causes no direct harm, but gives the enemy leadership in effect a private warning without being exposed to public ridicule from their internal supporters or like-minded bystanders[26] What about war being a public act? What about the requirement in JWT that there be a public declaration of war? In cases like this, low risk weapons could make interventions more tempting and increase conflict rather than reduce it. This could possibly legitimize what might otherwise (if lethal force were used) be an unwarranted use of force and make the resort to force more routine. David Fidler argues that NLW may expand rather than limit ‘just causes’ for using force, reversing the trend in international law to limit the legitimate use of force; anticipatory self-defense might be viewed more favorably if NLW used and they could be used to enforce sanctions.

It is possible that there is a ‘perfect storm’ emerging: the fact that war currently involves killing and dying, combined with the CNN and Somalia effects, does currently make politicians think hard about using force, and there is already a battle against the public perception of the possibility and desirability of a ‘costless’ or ‘bloodless’ war. It may be desirable (politically, militarily and diplomatically) to use force to exert our will and look strong, but we don’t want to look bad by killing or seriously harming others especially non-combatants and the public is presumed to have a low tolerance for combatant casualties. NLW could make this situation significantly worse by providing what seems to be an easy answer to a difficult problem.

Because of the public’s faith in and expectations that new weapons systems mean fewer casualties, and politicians and soldiers are aware that positive and friendly domestic and world opinion is a vital factor in fighting a war, any means to limit casualties on all sides will be carefully examined. The 1991 Gulf War with its short duration and low casualties created unrealistic expectations among public and military about what could be done and how little it would cost[27] The military cannot protect Americans and innocents abroad with no casualties and force protection as a priority – this expectation is a hopeful but misplaced expectation.[28] “The idea of actually being able to impose one’s will through force…without significant human costs is incredibly appealing – at least in part because of the underlying assumption that any opposition to such coercive action would emerge due to the concern not that is was unwarranted or unjustified, but rather that it resulted in too many battle deaths…” [29] Therefore, in contemporary conflicts the foremost consideration has become to minimize casualties, to the point where success or failure has hinged on this rather than the question of whether the action was justified to not.[30] This obscures the crucial fact that there are moral limitations on the use of force that is not just concerned with the effects of the use of force.

In addition, the use of NLW in this context further create a false sense of public expectations about what war entails and a false sense of security and confidence in soldiers/military and policy makers about the costs of war. This could also change the very nature of war by focusing all discourse about war in terms of risk aversion as the primary consideration. General John Shalikashvili cautions, “I do not want to see us evolve to a point where we have expectations in this country of a war where nobody gets killed on either side and where we don’t have any collateral damage on the other side.”[31] There is substantial reason to think that we are (especially since the Gulf War) already fairly far along this road.

While many acknowledge that the ‘bloodless’ war is not currently possible, very few are seriously addressing the question of whether the concept (regardless of realistic it is) is a good one, even though the concept seems to be driving more and more discourse around war in general and NLW in particular. What if you could remove permanent suffering and death from war – is that a good idea? Is it still war? Elaine Scarry argues that the basic nature and structure of war involves injuring; reciprocal injuring is part of the analytical definition of what makes it different from other pursuits, like games, sports or criminal activity.[32] This desire for an increasingly ‘bloodless’ war (even if it is an unrealistic desire) may increasingly turn war into a spectator sport, especially for the public who has minimal contact and participation with war, and increasingly numb citizens to the moral and other costs of war. War does and should cost. NLW should make war more humane, not costless. Even if it were possible to make it costless, it would be morally problematic to do so.

IV. “Compared to What?”

Intended as both a flippant and serious response to his critics, John Alexander argues that NLW have to be considered in the context of the question: “compared to what?” Proponents of NLW like Alexander have contended that any weapon causing damage short of killing is more acceptable than conventional weapons (i.e. ‘lethal’). As there can be no fate for individuals worse than death, the argument goes, and lethal weapons are acceptable in war, then weapons short of lethal should be at minimum acceptable, if not preferable. Underlying the question “compared to what?” is an important assumption that must be examined: that it is always better to injure than kill, to restrain rather than inflict injury on, to violate autonomy if that means saving a life or lives.

However, it is not clear that this assumption is true – either from a non-combatant’s position, or from the position of the combatant, particularly where the combatant is committed to a warrior or professional military culture with existential aspects. For Achilles, there is a fate much worse than death – a life of safety lived in obscurity; for the women left behind after the fall of Troy, being left alive in slavery, privation and sexual exploitation are arguably fates worse than death. In both of these cases, an honorable death would be viewed by the participants of the Trojan War as a much better alternative than certain kind of being left alive.

These examples do not even begin to address the kinds of damage that NLW can do to people and their bodies without killing them. While generally intended to have reversible effects, NLW can have substantial and permanent impacts in different ways on different people. Using NLW in the contemporary mixed environments can be problematic; a NLW that may have minimal effect on the nervous systems of a healthy combatant may have profound effects on the nervous system of an infirm person or a child. In cases where NLW use chemicals, gases or energy, it may be hard to predict and know how different people will be affected, in both the short and long term. Being permanently blinded or sustaining severe neurological damage may lead to severe lifestyle, social, economic and personal costs, in much the same way that lethal weapons lead to serious (but not fatal) injuries and effects that have to be accounted for in looking at the costs (tangible and intangible) of war.

The ‘compared to what?” line of argument also neglects the point that minimization of casualties is not the only moral consideration in war. It is not the case that as long as you could keep death, pain and suffering to a minimum, there would be no other important moral questions in war. Even with a minimization of casualties, there are other kinds of harm (violation of autonomy for one) that must be considered, both as an integral element and an effect of war. In addition, there are moral problems with war (even with extensive use of NLW and low casualties) as a means to resolve or address political and social problems. Further, there are questions about the moral and existential status and nature of the warrior culture, questions about the place of war in the identity of social groups and states and the place of war in the general human condition that would have to be asked and addressed regardless of what the effects of particular weapons of war might be.

Conclusion

Where do we go from here? In this paper I have argued for a qualified yes to the question of whether non-lethal weapons are morally preferable to conventional, lethal weapons. NLW can and should be pursued with fear and trembling but only if they can meet certain criteria in line with JWT and international law and provided that certain tendencies currently prevalent in the discourse in NLW are rejected and avoided as a basis for either argument or policymaking. What is needed is a much more careful and nuanced discourse about NLW, not simply a discussion about their effects, but about how NLW effect the fundamental moral questions, principles and distinctions in warfare.

NOTES