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THE DEBATE ON NONLETHAL WEAPONS: WHY KILL AND WOUND AT ALL?
Frdric Mgret
Assistant-Professor, Faculty of Law, McGill University Canada Research Chair in the Law of Human Rights and Legal Pluralism
Sponsored By:
Funded By:
The Debate on Non-Lethal Weapons: Why Kill and Wound at All?
On the Edges of Conflict
ABSTRACT
IHL began with a focus on improving the fate of combatants. Modern warfare has seen a significant increase in civilian casualties, especially in urban settings. The emergence over the last decade of the debate on non-lethal weapons (NLWs) has given rise to partial and contradictory responses. NLWs present a possibly way of mitigating the harm done to both civilians and combatants. This paper explores whether conditions might emerge where NLWs become the norm thus changing the nature of warfare or, in other words, where war changes to the point of allowing greater use of NLWs. The idea that war could be waged without killing, wounding or hurting combatants is in a sense the last taboo of IHL. This paper argues that if weapons are to be used at all, then all other things being equal non-lethal ones might as well be used. If NLWs became available that allowed combatants to capture belligerents with minimum risk to them, then the result might be an increased pressure for mandatory or quasi-mandatory use of the weapon.
TABLE OF CONTENTS
I. INTRODUCTION.....................................................................................................3 II. A CRITIQUE OF IHL RELATING TO MEANS OF COMBAT....................... 5 III. PRIORITY CASES FOR THE USE OF NLWS .................................................. 7
A. B. C. A. B. C. Operations Short of War ................................................................................................ 7 Urban Warfare and the Problem of Mixed Combattant/Civilian Presence ....................... 7 Two Types of Warfare: Is Waging Lethal and Non-Lethal Combat Realistic?................. 8
IV. THE NEXT FRONTIER: NLWS BETWEEN COMBATANTS ? ..................... 9

Classical IHL: Restricting War to Combatants................................................................ 9 What Is Necessary in War?........................................................................................11 Hurdles and Openings ...................................................................................................13 1. Technology....................................................................................................................13 2. Cooperation Dilemmas..................................................................................................14 3. War and the International Military Power Structure......................................................15 D. The Normative Dimension ............................................................................................16 E. The Problems of Asymmetry: Towards Unilateralism in Humanitarian Law? ...............17
V. CONCLUSION....................................................................................................... 19
THE DEBATE ON NON-LETHAL WEAPONS: WHY KILL AND WOUND AT ALL?

Frdric Mgret
I. INTRODUCTION
Why can wars not be fought with paintball? Would a war without casualties still be a war? Whose interest might it be to wage war non-lethally? Is there such a thing as an inherently non-lethal weapon? Should combatants be protected persons? Is IHL asking too much or not enough of combatants? The emergence over the last decade of the debate on non-lethal weapons (NLWs), which has occasionally been taken up in the humanitarian context, has given rise to partial and contradictory responses. Attitudes seem to range from the unmitigated enthusiast (few) to the savvy skeptic (the majority), with little in between. There has been little systematic theoretical enquiry, in particular, as to how NLWs might fit into IHL, or how their rise might herald new forms of warfare. As a preliminary, non-lethal weapons are often viewed with a great deal of skepticism by professional international humanitarian lawyers. For example Louise Doswald- Beck exhibits a typical reservation when she describes present work on so called nonlethal weapons as insubstantial. 1 Occasionally, reservations about non-lethal weapons have made their way into international law, as when the Chemical Weapons Convention specifically prohibits the use or development of non-lethal chemical weapons. I share some of that skepticism. There can be a faddish nature to discussions about NLWs which at times lacks in seriousness. However, there can also be a certain conservatism in the refusal to tease out all the implications of the possible use of NLWs. The understandable humanitarian impulse not to be associated with the development of any weapon, can sometimes take precedence over more complex choices about what weapons might be preferable to others, and which should be developed as a matter of priority. For example, the CWC authorizes the use of tear gas for law enforcement purposes, but all non-lethal chemical weapons are prohibited in armed conflict. I will return to this point later, but surely if wars could be won with tear gas rather than all the arsenal of conventional weaponry then it is hard to see how that would not be desirable. Moreover, it should be pointed out that the popular distaste of NLWs often comes from their use by the police or prison authorities, where there is a risk that they will translate into a greater use of violence, than would have been the case otherwise. The situation in armed conflict is quite different, and indeed the reverse. It is a situation where a considerable degree of violence is assumed and any reduction in the intensity of that violence should be welcome. The point of view I want to adopt here is not one where NLWs might be used rather than no violence at all, but the realistic and typically humanitarian one that if weapons are to be used at all, then all other things being equal non-lethal ones might as well be used.
Assistant-Professor, Faculty of Law, McGill University Canada Research Chair in the Law of Human Rights and Legal Pluralism 1 Louise Doswald-Beck, Implementation of International Humanitarian Law in Future Wars, Naval War College Review, Winter 1999, Vol. LII, No. 1.
Another widespread criticism of NLWs is that as they exist today many are not really non-lethal, and possibly very ineffective and highly painful. Indeed, even improved NLWs would remain weapons and could be associated with all kinds of highly unpleasant consequences. Arguments about the imperfections of current NLWs, however, are just that. They are arguments against, for example, presenting certain NLWs as less dangerous than they really are, but they are hardly arguments against all NLWs (or the idea of NLWs and their greater use). In that respect, my argument is an intensely speculative one. I am not interested in whether current NLWs could become more central to the practice and very definition of warfare, but whether future NLWs (to be determined) might become so. It may be that no appropriate NLWs will ever be developed that has the potential to radically modify warfare, but inquiring theoretically about the conditions in which NLWs might have that effect seems highly worthwhile. Finally, the case is often made that NLWs have more sinister potentials such as favoring the powerful and technologically sophisticated, or legitimizing a greater use of force by making force less violent. I am hardly oblivious to the fact that at present NLWs seem to be the weapons of the powerful, and that they are not totally alien to certain strategies of Empire. I do not think global crowd control is a very appetizing image for the future of international society. By the same token, I am also painfully aware of the hugely destructive impact of waging conventional warfare in situations that are no longer conventional. The result is countless lives lost and untold suffering. Again, I think the issue should at least be discussed theoretically. This essay examines theoretical issues around outlawing lethal weapons. The debate can be rescued from its faddishness and its dubious promises at this stage only by being made into a speculative one, untied to any specific debate on particular weapons. I am not interested, therefore, in whether the larger deployment of NLWs is a realistic proposition politically in this day and age or whether NLWs have acquired the sort of technological characteristics that would (for various reasons to be considered here) make them adequate substitutes to lethal weapons, or whether IHL could today mandate the use of NLWs. When I say theoretical possibility, however, I do not of course merely mean an abstract and utopian possibility. What I am interested in is whether conditions might emerge where NLWs become the norm thus changing the nature of warfare or, in other words, where war changes to the point of allowing greater use of NLWs. I thus try to outline an intensely speculative and forward looking course that might have the potential to fundamentally renovate IHLs ambition. For the purposes of this paper, NLWs are defined as a variety of weapons that can intrinsically lay claim in descending order of priority to (i) not causing death, (ii) not causing any substantial injury, and (iii) not causing any substantial pain. For all of these functions, a weapon has to be either totally or very unlikely to cause any of these results. A weapon that could merely be used in a way that would not cause any of the above is not intrinsically a NLW but an ordinary weapon that might be used in a non-lethal way (in the way for example that an otherwise very deadly rifle can be used just to push someone off using its butt). NLWs are a bit of a misnomer therefore in that they are more or less NLWs, but the concept still retains an analytical trenchancy in that it captures the essence of weapons that have been specifically conceived with these goals in mind and have at least a certain success in achieving it. I begin by briefly outlining the current state of IHLs regulation of weapons and distinguishing its requirements from the NLWs issue (I). I then highlight a number of situations involving civilians that would deserve the deployment and use as a matter of priority (II). I argue, however, that ultimately the issue of the possible use of NLWs must be dealt with comprehensively in a way that tackles the issue of whether NLWs might not be used as between combatants (III).
II. A CRITIQUE OF IHL RELATING TO MEANS OF COMBAT

The cardinal rule relating to means of warfare is that the right of the Parties to a conflict to choose them is not unlimited. The emphasis of IHL when it comes to means of combat has been, as emphasized in article 35 of Protocol I, on distinction, and the need to avoid superfluous injury and unnecessary suffering rather than non-lethality strictly. Distinction is the idea that weapons should be susceptible to ordinary use allowing them to distinguish between targets, particularly legitimate targets and protected ones. The principle of avoiding superfluous injury or unnecessary suffering is a principle that is cardinal to the IHL regime concerning means of warfare. Despite these rules (or maybe thanks to them), IHL has historically displayed quite a high level of tolerance for weapons of all sorts. War and IHL have been addicted to various forms of conventional explosive devices: bombs, bullets, canons, shrapnel, and explosions. IHL has tried to regulate per se a range of other weapons (e.g.: chemical or biological weapons) but has done very little to challenge massive stockpiles and use of conventional ones.2 The inability or unwillingness to impose a higher onus on weapons developers is linked to complex reasons which it is the purpose of this article to explore. However, as a preliminary point, one might link this failure to the dwindling conceptual fortunes of the idea that there are weapons that might be inherently anything.3 If, famously, nuclear weapons cannot be inherently in violation of IHL (because they can be small and used tactically in a desert, for example, against a deeply buried target that could not be destroyed in any other way ), then it is hard to imagine what weapons might be. Indeed, having had only limited ambitions at the stage of regulating the development of means of combat (for example by distinguishing between the sort of weapons that can be used in one context and not in the other), IHL transfers a hefty dose of the regulatory burden to the domain of methods of combat (how rather than which weapons are used). Means and methods of combat then, become together one of the crucial pillars of how war is regulated. The theoretically sound idea is that it is always a combination of an instrument and a use that makes behavior contrary to the laws of war. However, my sense is that too much has been delegated to methods at the expense of a strong regulation of means. What is at stake in means and methods is more than a combination of two unrelated items, and there are elements of interaction involved between the two. Theoretically, it may well be that one can use an otherwise perfectly inoffensive NLW in a dangerous way or use inoffensively a very lethal weapon (VLW), but it is also easier to use non-lethally an NLW and dangerously a VLW. Tools, after all, are designed for a certain use, and beg to be used for that use (just as certain uses will look for certain tools). So means and methods are to an extent linked through symbolic and practical connections, and the ability to implement methods of warfare that minimize casualties and suffering is crucially tied up with the arsenal of means of combat.
The 1980 Weapons Convention remains of quite limited impact in this respect, applying as it does only to a very narrow type of conventional weapons. The Landmines Convention is more noteworthy for having at a stroke largely eliminated a whole category of conventional weapons. The truth remains, however, that most guns, bombs, canons and missiles are legal under IHL. 3 Or indeed, that there is anything that is inherently anything, in line maybe with the move to a postontological age
One can use the proverbial sledgehammer ever so carefully to crack a nut, but chances are that in the course of doing so (especially in a context where, for example, one has to crack a great many nuts in little time) one will more than crack quite a few nuts. The answer should not be (or not only be) to use the sledgehammer carefully, but to come with a nutcracker (I apologize for the unpleasantness of the proverbs imagery in the context). For example, just to raise an implausible but theoretically sound example, if an army only had bombers equipped with bombs suitable for carpet bombing at its disposal, then it could only engage in the illegal combat method of carpet bombing (if it were to engage in any bombing). NLWs, in this context, might be used in ways that make them lethal, but there is also a high prospect that a war waged with them would be substantially less murderous. For example, just as it is very unlikely (although not impossible) that nuclear weapons would be used in a humanitarian way, it is very unlikely (although not impossible) that laughing gas would be used in a way that is un-humanitarian. I raise these preliminary points to make the case that there is still a powerful sense in trying to regulate weapons for what they are intrinsically, and not simply regulating the ways they might be used. In this, IHL has always been very persistent and has indeed occasionally anticipated some technological developments (e.g.: blinding lasers). There is no reason in principle or in terms of regulatory capability why it could not take a stronger stance in favor of NLWs. The question, therefore, is why it has not taken such a stance. A first argument might be that NLWs were not available. Later in this essay I will make the point that technological availability is susceptible to choices and decisions, but suffice it to say at this stage that the argument is not carrying much weight since the issue is what IHL should do if they were available, and indeed maybe even what it should do to make them available. Another argument is that IHL has been more concerned with prohibiting certain weapons that do not satisfy minimum standards, than actively promoting certain weapons that satisfy maximal standards, but that begs the question of why. A more potent reason for IHLs lack of endorsement of NLWs is that the superfluous injury or unnecessary suffering principle is in essence a very relative and subtle standard, which has often been interpreted in a way that is very consonant with the understanding that the military has of it, rather, for example, than to challenge weapons continued lethality. This has arguably led to some specious distinctions between, say, dum-dum bullets (famously outlawed in the 19th Century) and ordinary bullets (e.g.: the 5.56 caliber used by most armies), where the former are held to inflict unnecessary suffering but not the latter despite very similar results. In order to renovate and reinvigorate thinking about means of combat, I think it may be necessary to locate the superfluous and the unnecessary principles within a larger constellation of ideas about IHL, particularly two founding principles that bear some relation to them: necessity and proportionality. Although necessity has at times been interpreted as a fundamentally permissive idea, it is also the fundamentally restrictive principle that one should, in war, only do that which is strictly necessary. The principle of necessity must therefore perforce apply to the choice of means of combat, and what is unnecessary or superfluous must inevitably be evaluated from the point of view of what is necessary in war. As a preliminary, I would like to note that necessity is a largely socially constructed concept, and has indeed known of several interpretations across the ages. Military necessity (and the same applies to superfluous injury or unnecessary suffering), is highly dependent on politics and morality, as well as concepts about the use and value of war, the nature of military affairs, and indeed the nature of humanitarian norms themselves. There is no pure military concept of
necessity that could be distinguished from what military force is about or what values it should abide by, and indeed it is rightly for IHL to ultimately lay a claim to define what is necessary. Having started to deconstruct the principles of superfluous injury and unnecessary suffering and opened them up to more complex criticism, I now turn to understanding when conventional lethal weapons are arguably not or no longer necessary, and might thus pave the way to a stronger stance by IHL in favor of NLWs.
III. PRIORITY CASES FOR THE USE OF NLWS

Necessity should obviously not be seen as a univocal principle but as a form of mediation between a military capability and the actual behavior of a military force. What is necessary in some contexts, in other words, may not be necessary in others, and there should at least be environments where necessity is a poor justification for the use of conventional weapons (even if they are used with moderation), and where NLWs, when available, are more adapted.
A. OPERATIONS SHORT OF WAR

A first type of situation where the case for NLW deployment as a matter of priority is strong are those operations which, although they may be carried out by the military, in fact bear little relation to warfare and indeed, for the purposes of IHL, do not qualify as conflicts. The types of situations I have in mind are varied and increasingly common. Any context where troops are, for example, deployed to perform public order and police functions rather than strictly military offensive ones would seem to qualify. Such situations might include a classic peacekeeping force or an international military presence tasked to monitor a states reconstruction. They might also involve situations of occupation where by and large hostilities have abated and the occupying force is increasingly exercising sovereign functions rather than more traditional military ones. There is a very real risk that, in such situations, armies with the continued presence in their hands of the same weapons that were designed to fight full warfare will continue to rely on force of habit and training combined. In this context, there will likely be a slippery slope potential to the presence of weapons unsuited to the task, leading the military to administer greater degrees of violence than is necessary and therefore allowed. As has been argued, the possession of weapons is in a sense an invitation to use them, so that lethal potential tends to bring about actual lethality. This is why, in light of the change of mission at hand, equipping soldiers with NLW might be a particularly adequate strategy. There are already a few examples of this. For example, KFOR troops have fired foam baton rounds, sponge grenades and multi-rubber balls in Kosovo.
B. URBAN WARFARE PRESENCE
AND THE
PROBLEM
OF
MIXED COMBATANT/CIVILIAN
A more complex case is that of combat operations, but which occur in zones that have a high concentration of civilians. As is well known, some rebel or insurrectional groups have increasingly resorted to violent tactics within such zones, at the risk of endangering their own civilians. The one context in which necessity has become most restrictive in the contemporary laws of war is when it comes to protected persons, most importantly civilians. Whilst the laws of war still seem to contemplate a considerable degree of death and misery between combatants (I will return
to this issue infra), harm to civilians is considered totally unnecessary in and by itself, and is at most necessary (although even that is a bit of a misnomer) if it can be assessed retrospectively as having been the collateral and unintended consequence of trying to secure a concrete and direct overall military advantage that was clearly more important than the harm caused to civilians. This is apparently the concession that IHL still feels it has to make to the reality of war. Accordingly, this is still one of the domains where IHL could be doing better. The number of collateral casualties has risen significantly in recent years and now accounts for the larger part of civilian casualties caused by some conflicts. Even with armies that have internalized the need not to target civilians directly, indirect casualties in the course of very violent warfare, particularly in urban settings, can still cause civilian casualties that are horrific. The accumulation of a lot of tactically legal collateral damage can add up to a tremendous amount of strategic collateral casualties. No matter how well conventional weapons are used, IHL has not been able to eliminate that residual risk of harm to civilians. NLWs may provide the missing piece of the puzzle. There is at present a gap between what the IHL of protected persons and the IHL of means of combat require. IHL creates two very dichotomous regimes, one for combatants (who can be fought) and one for non-combatants (who should not suffer). But that strong duality of personal status is not matched by any similar dichotomy in terms of means of combat. In other words, combatants should avoid harming civilians, but they may still essentially use the same means of warfare that they use in an open battlefield against combatants, in the course of urban warfare. More pressure may come to bear in terms of methods of combat as a result (be extra careful when using these means in places where they would be dangerous), but it may be unrealistic to think that certain weapons are ever suited to the task of fighting in zones where civilians are considerably at risk. Allowing the same powerful conventional weapons systems that are used against combatants in a zone where there are no civilians to be used in a zone where there are civilians is an invitation to blunders and disproportionality, to maximizing in other words the superfluous injury and unnecessary suffering of weapons that have otherwise passed the minimum humanitarian threshold as weapons. In other terms, one could say that there is an increasing tension between the relatively permissive regime regarding means of combat (even moderated by insistence on proper method), and the increasingly prohibitive regime regarding protected persons. This suggests that the former should develop solutions to be able to adapt to the requirements of the latter (surely it is this way round since the IHL of protected persons is axiologically prior to that of means of combat).
C. TWO TYPES OF WARFARE: IS WAGING LETHAL AND NON-LETHAL COMBAT REALISTIC?

The strongest argument that one could raise against partial introduction of NLWs on mixed scenes of battle, as I understand it, is that it anticipates a rather unrealistic scenario, one where two types of combat and non-combat situations, combatants and non-combatants, operate in neatly separate spheres. One common characteristic of the situations anticipated above is that they may often be mixed and require adaptability of both means and tactics to rapidly evolving manifestations of violence. The NLW argument in mixed situations does not really explain whether, in order to avoid casualties to civilians, troops should also use NLWs against combatants (I will return to this). Here interesting arguments are bound to arise from military sources, which I can see as being of two kinds, one less and the other more serious.
The first idea is the relatively trivial argument about the difficulty of carrying two types of weapons if one is going to have to treat combat in civilian zones differently than combat on the battlefield. The beauty of relying on methods of combat, military specialists might argue, is that they simply rely on human adaptability and creativity, and thus do not impose an excessively onerous duty to come equipped for all weathers. These arguments remind me of arguments that were once used in colonial wars to argue against the outlawing of dum-dum bullets (because it would force the British to have two types of ammunition, one against the civilized and the other against savages). At any rate, these arguments are not particularly convincing in view of the fact that armies are otherwise very adept at coming equipped for all eventuality and, most importantly, that if the humanitarian stakes have been appraised correctly then this seems worth the effort. A second argument is that, regardless of the equipment issue, it is very difficult to fight two types of combat at the same time. To be more precise it is difficult to be simultaneously fighting a nonlethal war against civilians and a lethal one against foes. The argument, therefore, is that the military should go into battle with the weapon adapted for the worst eventuality, on the principle that he who can do more can do less whereas the converse is probably not true. This is a marginally more convincing argument. I recognize that these mixed situations pose complex problems even though there is probably (I will return to this later) a normative case that even there NLW might be warranted. But I take them as evidence that, ultimately, the problem of use of NLW when dealing with non-combatants or in mixed situations is difficult without also examining what is in a sense the most complex problem of all: whether one might not conceive of a type of warfare between combatants that operated substantially or entirely via the use of NLWs.
IV. THE NEXT FRONTIER: NLWS BETWEEN COMBATANTS?

The idea that war could be waged without killing, wounding or hurting combatants is in a sense the last taboo of IHL. In this section, I want to question the taboo and suggest that the emergence of NLWs might have the potential to help us in this task. My main hypothesis is that IHL and the nature of war are studied too much in isolation. This is as a result of the classic humanitarian misconception that war is a social artifact that pre-exists IHL and which IHL then regulates, when IHL is in fact partly constitutive of war even as it seeks to regulate it. Contrary to the popular view of war as a chaos waiting to be regulated by IHL, war has only ever existed as part of and embedded in deep normative understandings about what it is about, which can be gleaned perhaps first and foremost through its legal limitations. Contemporary war, in fact, one of the most densely regulated international social activities there is.4 This insight can provide an entry point into the fundamentally relative character of both humanitarian norms and the war reality they circumscribe.
A. CLASSICAL IHL: RESTRICTING WAR TO COMBATANTS
Compare for example the size of the document it takes to comprehensively regulate the law of the sea (UNCLOS) or diplomatic relations (Vienna Convention), to the cascades of international humanitarian law treaties. Violence attracts the law like no other social phenomenon.
Historically, IHL can be analyzed as a project to tame war, whilst still recognizing it for what it is. To use a Koskenniemian image, if the laws of war are too utopian, then they risk losing any claim to regulating war and become irrelevant. Collectively and structurally, the laws of war must by necessity be premised on the continued usefulness of something called war.5 That is the minimum incompressible. If a core of what it means to wage war is not retained, the jus in bello become merely a humanitarian route to the prohibition of war, and may well lapse into mere morality (which is what they have sought so consistently to escape since the 19th century). If there is no possibility of waging war according to international humanitarian law, moreover, then there is no need for laws of war. IHL has navigated that path successfully over the last century. It is all too obvious that, for all its rejection of violence, it is historically and ontologically profoundly indebted and wedded to at least the lingering legitimacy of certain forms of violence. However, as a result of that recognition of the continuing relevance of war, IHL has been entrusted with the task of regulating it. By the same token, there is no reason to think that what constitutes apology and utopia in the domain of war necessarily remain constant over time; on the contrary, the two act as poles that create a field of dense normative exchanges. The history of IHL reveals just such dynamic exchanges. The laws of war have proceeded through a series of gradual limitations and prohibitions. These limitations and prohibitions limit and regulate warfare, but they also redefine it. In other words, things that used to fit within the definition of war are now not only violations of the laws of war (bad-war), but also in a deeper sense non-war things that occur using the cover of war, but should really have nothing to do with it.6 In that process, the laws of war have, as has been mentioned already, proceeded in the last 50 years first and foremost through the definition of separate statuses and regimes for combatants and non-combatants. War is to be fought between combatants, ideally trained military personnel. The fundamental dichotomy introduced by these rules (as opposed to the complex details of their application in certain ambiguous contexts) could hardly be improved upon from the point of view of the laws of war: one is either a combatant or a non-combatant, and if one were to do without the category of combatants then one would have to do without warfare altogether (games need participants). This is not the limit of the laws of wars regulatory thrust. Drawing on what is in fact an even older tradition of restraint in war, IHL imposes a whole series of limits to what can be done as between combatants. Many rules exist to delineate appropriate tactics, immunize combatants themselves from excessive suffering, and to protect them as soon as they seek to move out of combat (POW status). The prohibition on the use of certain weapons (not simply against combatants, but de facto also against them) is part of that regime. However, there does remain a core that at least until now has remained virtually unassailable: the actual killing and wounding of combatants (as long as it is done within the already existing parameters of international humanitarian law). Combatants, in particular, hold a privilege of belligerency in the sense that they are allowed to kill other combatants and cannot, in most cases, be punished for having done so. This, it seems, is the irreducible core of the laws of war
5
See for example the Preamble to the Hague Convention of 1899 to the effect that it has been inspired by the desire to diminish the evils of war, as far as military requirements permit (my emphasis). 6 Indeed, further evidence that much of this behavior is alien to war is provided by the fact that such behavior is increasingly prosecuted as a crime against humanity rather than simply a war crime.
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and it remains a sizeable core.7 The suggestion is that if combatants could not kill, wound and inflict suffering on other combatants (in at least some conditions), then the laws of war would have effectively sawn the branch on which they were sitting and consigned themselves to irrelevance via utopian ambition. This is why it remains of the utmost importance for many international humanitarian lawyers to recognize (and, indirectly, maybe sanctify) the killing of warriors,8 in the spirit of slightly disenchanted pragmatism that has always characterized the humanitarian sensitivity. I suspect, however, that even though it is a very consensual proposition, there is in fact nothing unavoidable about this residual concession to the violence of war, and that indeed new ways can be conceived, partly through better conceptualization of NLWs, that might open up new horizons of ambition for IHL.
B. WHAT IS NECESSARY IN WAR?

To reflect on what is strictly necessary is to reflect on the changing nature of war and, indeed, the very definition of war. But what is necessary must per necessity be a normative concept incorporating humanitarian ambitions, and cannot merely be outsourced to military calculus or political inclination. Before we examine the evolving nature of necessity, I want to raise an illustration as an example of what is at stake. Let us assume that a gas emerged that had the effect of paralyzing everyone who inhaled it for 24 hours, but leaving no sequel whatsoever. Let us assume, furthermore, that this gas could be spread on a battlefield with relative ease, making it very easy for an advancing army, after having spread it, to simply move in and take countless prisoners. And just to be perfectly safe, let us assume that the gas provoked nothing but a pleasant dream filled sleep. Would it still be open to an army that had access to such gas to use otherwise perfectly legal conventional lethal weapons to engage in classical combat (assuming that it wanted to given the availability of the other weapon, of course)? The humanitarians answer would probably be mixed. There would be an initial reluctance to the use of gas, followed by a more principled skepticism vis--vis the dangers of any new weapon. But if one gives it thought there is probably no morally tenable argument why one should oppose such a development. Indeed, one should probably welcome it. From the point of view of IHL, there is certainly a case that, within certain parameters, one should use the less murderous weapon. What does this mean exactly? It may be that such a development is impossible even though it might be desirable. Or it may be that such a development is not desirable even though it might be possible. But the question is a complex one that raises technological, moral, juridical, military, economic and political questions that cannot be eluded. What is the fundamental configuration of war in which NLWs might come to have greater use, and how might it emerge (if at all)?
An army, for example, can be quite generous in its killing, as long as there is some military advantage to be gained. Whilst there is an obligation to take prisoners once enemy combatants surrender, there is certainly no obligation to implement warfare in a way that would maximize prisoner intake. 8 I cannot help thinking here that is some sort of sacrificial symbolic exchange involved. Combatants are killed on the altar of humanitarianism; it is because the beast that it can be appeased to not take the lives of non-combatants.
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At the heart of the debate on what humanitarian law can achieve in relation to war is what war is. At a certain level, IHL is dependent on social understandings external to it about what war is, but as I have already stressed it is also constitutive of war, and in fact claims a monopoly of definition of the right kind of war (in its jus in bello dimension). Contra sovereign attempts to define what war is for oneself, IHL offers the promise of a common and universal language of what war should be for all. IHL is the ambition to (re)define war in a way compatible with both a certain recognition of the inevitability of violence and humanitarian impulses. In traditional IHL, war is often exclusively envisaged as a state of fact (a conflict) that triggers the application of the law. But the truth is more complicated: IHL designates a particular type of normative activity (via a sense of its legitimate actors) as in a sense minimally legitimate (in that it is at least worthy of humanitarian protection, even if it is otherwise illegal). The regulatory and the constitutive are but one. This captures the crucial intuition that war is a social construct (i.e.: not chaos) and therefore capable of evolving understandings. War could be essentially the killing, wounding and hurting of combatants; or it could be something involving substantially less violence; indeed, war for a long time incorporated the killing, wounding and hurting of non-combatants. From a purely instrumentalist, value-neutral point of view, one might argue (views obviously differ on this) that the killing, wounding and hurting of civilians is in fact necessary in that it brings one closer to ones war objectives (for example by terrorizing the population). However IHL (rightly) intervenes at this stage to say that necessity here must be given a normative meaning. Necessity perforce involves a certain concept of justifiability which is itself a mediation between practical and moral imperatives. A large part of IHLs import in the last fifty years has been to distinguish genocides and crimes against humanity (generalized and systematic attacks) from what it means to wage a conflict.9 Understandings about war have evolved with time. This suggests that, in the same way that IHL has gradually described the killing of non-combatants as un-necessary (and therefore un-warlike, outside the proper realm of war), there is a case that it could more severely constrain the killing of combatants whilst still, under certain conditions, retaining a claim to being a meaningful form of regulation. The essential point here seems to be that war is not carried out fundamentally for the purpose of killing, wounding and hurting combatants. Rather, these activities are necessarily means to an end (or if not, arguably should be; I will return to this point later). That end can be articulated in all kinds of ways and has given rise to multiple debates over the centuries. Most definitions would agree that war is the imposition of ones will on another subject through violence (if violence was not involved at all, then war would be deprived of its specificity and we would simply be talking about the ordinary exercise of power). Clausewitz famously held that war was the continuation of politics by other means, those other means presumably including first and foremost violence. But the point is we need not take a definitive position on these issues, to understand that the goal of war is, at any rate, not strictly killing, wounding and hurting, however much these activities have contingently and historically seemed the best, even the only, way to inflict violence and achieve superiority. Violence is a contingent concept which is itself highly embedded in concepts of legitimacy and legality.
Contra Hutu indictees who claimed that they were in fact fighting a war against Tutsi enemies, the ICTR has recast their deeds as essentially genocidal and only very peripherally involving acts of war.
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Of course, I conceive of the possibility that warfare may be seen by some of its actors as more than simply the fact of imposing ones will on another state. The killing, hurting may become in itself a central goal of warfare to the extent that it causes untold suffering which will increase the social and political cost of being at war for the enemy state. War might be an exercise in testing each sides endurance to pain. Killing might become more than a means to a goal, a goal in itself. It might be used to instill a sense of fear in the opposite army. Or killing might be part of a more or less ritualized spectacle of violence designed to mark other sovereigns. But these are understandings of war against which IHL should and will stand up. The only goal of military violence should be incapacitation, not the death, wounds or suffering in themselves. Killing, wounding and hurting may be conducive to the goal of winning a war, but they are not strictly that goal. States waging war (rather than, say, a genocidal campaign) are not (or should not) per se interested in creating legions of widows and orphans, amputees and trauma victims in the enemy camp. They are interested in winning the war. Killing is stricto sensu unnecessary if one can win a conflict just as efficiently without killing. What is true of killing is also true of injury and suffering, and the extent to which they are superfluous or unnecessary. It serves no conceivable useful military purpose per se that a soldier who is shot in the spine will be wheelchair bound for the rest of his life. All injury or suffering can to an extent be seen as superfluous, especially if it would have been avoidable. The measure of what is superfluous or unnecessary is by nature relative to the circumstances of a situation and the means an army has to win its battles. But if an armed force can or could win a battle without inflicting any injury and/or suffering, then any injury and/or suffering that does occur would be superfluous. In most cases, states will be indifferent to the plight of the combatant victims on the enemy side. Indeed, it is not the killing, wounding or hurting in themselves that help a military win a battle, but, as already suggested, the fact that soldiers are incapacitated from going on with combat. Being killed, wounded or hurt is only one of the ways in which one can be forced to cease combat. Other ways include being detained, prevented or discouraged from fighting, or being unable to fight as a result of weapon malfunction or disorganization. The killing, wounding and hurting of combatants is thus not per se necessary. It is only necessary for the purposes of winning the war, and on the basis of complex schemes of understanding that suggest that the best way to win that war, in any given circumstance, is by maximizing, or at least not minimizing death, injury and pain to combatants. If any substantial element were to change in that complex equation, then the need to kill combatants at all might itself be revised.
C. HURDLES AND OPENINGS

Having identified that the concept of necessity is perforce influenced by deeply contextual circumstances, one has of course not thereby made the argument that NLWs should be used on a more systematic basis. One cannot simply write off the circumstances from the equation. But one can try to explain them to understand under what conditions a culture of warfare based on or more oriented towards non-lethality might emerge. At least three factors have made killing, wounding and hurting at least appear as necessary traditionally.
1. TECHNOLOGY
It is not for nothing that the example suggested in the opening of this section is currently implausible. It is because armies have not developed the weapons that would allow them to
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achieve what the military wants to achieve in non-lethal ways, that they still do so through the coarse administration of violence that is characteristic of even the most sophisticated instances of contemporary warfare. Causing suffering, killing, or wounding are therefore arguably all at least partly results of imperfect technology. But if weapons existed that could cause no suffering and reach the same result, then most humanitarians would probably have no hesitation in recommending their use. An analogy can be drawn from surgery: surgery traditionally involves some degree of inevitable consensual violence (against the body) resulting in pain, but by the time anesthetics are invented, then one would rightly be shocked if they were not used when they should have been. The same thing is true of NLWs. Under the present circumstances it seems rather implausible that a war or even a battle could be won with tear gas, but the consensus about what is right in warfare might evolve substantially if NLWs did appear that allowed to capture combatants with minimum risk to them. The increasing availability would then increase the pressure for mandatory or quasi-mandatory use. Moreover, it also bears examining what it is that makes the technology inadequate. The technology might be inadequate in some circumstances, but not others. Technology is only ever inadequate in relation to a particular goal. It may be that non-lethal technology would only be considered adequate if it had at least the incapacitation potential of similarly accessible lethal technologies. In itself that seems improbable, although not impossible. Then again, non-lethal technologies might be sufficient for at least some enemies (say enemies who have a limited lethal weapon capability), and there is no reason to think that non-lethal technologies are always necessarily less efficient then lethal ones (their development by the worlds major armies suggests that they are among the most efficient, task-specific weapons for at least some uses). It should be noted, moreover, that technological advancement is not simply a given, but something that might be stimulated in certain directions if these could plausibly help better reach goals of great humanitarian significance. It is important not to reify technology, and realize that technological progress is itself the result of choices. Technology is also a function of investments and priorities and what types of technologies are willed. The idea that the technology is simply not there cannot be the end of the debate. I will return in the conclusion to the contribution that IHL might make to more forcefully structuring weapons design in an effort to change the nature of warfare.
2. COOPERATION DILEMMAS
A second factor is contextual, political, and involves traditional problems of cooperation between rival actors. Obviously states have a strong interest in preserving the lives of their combatants, if for no other reason because combatants are a source of power (but in many cases also out of principle and pressure from public opinion). They thus have an interest in NLWs being used against their own. Whether they have an interest in using NLWs against enemy armies is another question and will in most cases depend on expectations of reciprocity. Two parties to a conflict would, all other things being equal, have an interest in using NLWs, but each party in such a scenario also has a strong interest in being the first one to use lethal weapons. This is a classic prisoners dilemma situation and it may in some cases prove intractable and a serious impediment to the use of NLWs. However, we also know from historical experience and the specialized literature that such dilemmas are intrinsic to the entire history of the laws of war and can, given the right circumstances, be overcome (at least such is the general assumption that IHL is based on). The
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short term interest gained in pursuing a deviant strategy may rapidly be offset by countermeasures, reprisals and the general opening up of new lows of restraint in warfare. How two states might precariously remain in the sort of situation where they abide by the same norms will be dependent on a host of factors including transparency, the self-defeating nature of nonreciprocity, and the existence of trustworthy institutions to regulate and guarantee behavior (e.g.: ICRC). It seems likely that the further a humanitarian norm of combat from what the any given state would have chosen as their preferred means, the more institutional mechanisms will need to be put in place to guarantee behavior. It is nonetheless possible to imagine a situation where mutual interest, rules and institutions are sufficiently strong that states quite willingly engage in a very limited form of warfare. If states are already not using dum-dum bullets, chemical weapons and mines, one would have to prove what is intrinsically different about conventional lethal weapons that would make their non-use impossible (or NLWs use possible). It may be that there would be something particularly tempting about being the first one to use lethal weapons in an environment which had started under the auspices of non-lethality. However, one can also imagine all kinds of ways in which one could guarantee against such breaking of the rules (as long as some sort of conventional lethal second strike capability is retained for example, the cost of cheating could be kept sufficiently onerous).
3. WAR AND THE INTERNATIONAL MILITARY POWER STRUCTURE

Here a third series of factors may enter into account related to the distributive effect of any rules relating to means of combat. Historical research tends to show that weapons that are prime candidates for regulation (apart from those that there is a humanitarian interest in regulating) are those that are roughly equally available technologically. This means that a prohibition or limitation has roughly equal effects across the board, and no state is being particularly put at a relative disadvantage by regulation. For example, chemical weapons and mines were good candidates for prohibition because all armies (or at least a great many, the majority) had or could have had them. Conversely, weapons or modes of delivering them that give certain states a key military advantage because they are rare (technological or economic scarcity) are unlikely to be regulated, because the burden of the regulatory cost would not be shared evenly. This explains, conversely, why weapons that are the object of a monopoly or an oligopolistic ownership are harder to regulate per se and why aerial bombing or nuclear weapons have never been outlawed (and why the US for example is against the banning of landmines). The interests of states who possess these weapons (or who possess them in proportionally much larger numbers than others) to conserve their superiority far exceeds the collective interest in regulation, not to mention the ability of non-detaining states to impose a less-technology intensive approach. This suggests (slightly troublesomely, of course) that IHL is never as strong as when its regulatory efforts do not disrupt the underlying distribution of power and military capabilities. These are of course immensely complex systemic effects and this conceit is only provided as a helpful generalization. However, it may capture one first reason why it could be difficult to generalize the adoption of NLWs. Conventional lethal weapons are widely available and might, all other things being equal, make good targets for regulation. But the problem is that the replacement solution, NLWs, may, in some circumstances at least, be both quite expensive and technology intensive. To generalize, say powerful, technologically advanced and rich states preferences for NLWs via international law, therefore, might lead to objectively put other states at a disadvantage, which would certainly prompt their resistance. States are relatively more equal in
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relation to conventional and lethal weapons which means that the continuing wide use of such weapons in warfare does not per se put any party at a disadvantage. The status quo may not be absolutely satisfying (in that all states would prefer, in the absolute, to not use conventional lethal weapons), but it is at least sufficiently built into the system to not distort the competition for lethal comparative advantage.
D. THE NORMATIVE DIMENSION

Independently of the dense substratum of interest and understandings concerning what is feasible in humanitarian terms, there remains an irreducible dimension of the normative, which those inspired by humanitarian ideals are right historically to have claimed theirs, and which can fill some real gaps in interesting ways. Of course, it would be self-defeating to put the regulatory cursor at a level that is too high for states to consider it as realistically binding, but nor should humanitarianism sacrifice its ideals for the sake of apology (or risk losing its soul by becoming virtually indistinguishable from a purely military-instrumental approach to war). First, it should be said that the normative interest in protecting combatants is of course, all other things being equal, inherently high. There is no doubt that the death of combatants, although it is often overshadowed these days by the death of non-combatants, is a continuing tragedy of warfare, just as it was at the time of Solferino, when Henry Dunant stumbled upon the appalling scene of thousands of wounded soldiers left to die. Harm done to combatants is harm done to them, to their relatives and to the whole of society. IHL began with a focus on improving the fate of such combatants, and one may think that it would be an opportune epilogue (?) to more than a century of normative developments, for IHL to make a grand return to this issue. Second, norms cannot entirely be a substitute for absence of interest of a state in abiding by them, but norms can mediate between various contradictory interests and are arguably a good in themselves. The process of elucidating the right norm, in this respect, and of upholding it internationally can be part and parcel of how that norm becomes enforced, even against contingently adverse expressions of the national interest of states. One of the consequences of delethalizing war (and thus creating all kinds of incentives to cheat by reverting to lethality against an unsuspecting enemy) is possibly that considerably more resources would need to be put into international norm enforcement, but that is the direction in which IHL has already been headed in the last two decades. Third, although pure normative consensus on what is desirable is hardly likely to translate automatically into state preferences, it is important to underline the constructivist impact of international norms regarding warfare. These norms shape expectations of what is acceptable in war, they do not simply ratify already existing expectations. Provided a new humanitarian rule is not pitched too unrealistically high, it is perfectly conceivable and indeed desirable that a new norm will exert an upward pressure (what would be the point of having a norm otherwise?). Behavior that was once considered totally acceptable has since become totally unacceptable, despite some of the essential building blocks of the international system (states, sovereignty, interest) remaining the same. Humanitarian norms in the long run are geared towards slowly but deeply transformative goals through gradual internalization by all actors of the system.
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E. THE PROBLEMS OF ASYMMETRY: TOWARDS UNILATERALISM IN HUMANITARIAN LAW?

A very problematic issue, however, is the fact already alluded to that NLWs may be in the arsenal of some states and not others (or of some states and not rebel groups), creating strong disincentives for their use, at least in cases where they would make the NLW wielding party to a conflict more vulnerable. IHL might still in this situation encourage two states with similar levels of NLW development to bilateralize their humanitarian obligations (essentially undertaking more humanitarian obligations than they would as the result of a similar ability to fight war at a certain humanitarian, non-lethal level). But might IHL ever mandate states to use NLWs even against a foe that could not be expected to? This is obviously a central concern and could provide a strong limitation on the generalization of NLWs, at least until they become so efficient technologically and widespread as to satisfy the relatively onerous conditions set out earlier for the emergence of a norm making their use imperative. Is there any way that asymmetry could be transcended normatively before it is made to go altogether by real world developments (the problem being that it might not disappear any time soon)? The problem of asymmetry is a mixed technology/interest/norm issue and there is a case on all grounds that NLWs should be deployed even against an enemy using lethal ones. First, at the technological level it may be that NLWs in any particular circumstance are more efficient, or at least as efficient as lethal ones. In such a case there is no military reason and probably some strong normative reasons why NLWs should not be use. Second, even in cases where NLWs may put states at a relative disadvantage, considerations of interest may still militate in favor of their use. Although I am not particularly interested in instrumental military justifications for adhering to humanitarian standards, it has to be noted that civilian casualties have increasingly come to be seen not only as a moral tragedy but also as a significant hindrance to the success of at least some military missions, for example those that are purportedly carried out for the benefit of a local population or where winning the hearts and minds locally is seen as a crucial component of success. The moral advantage gained by using NLWs and thus gaining the higher moral ground might more than offset the pure military-technological shortfall. The above, however, are very peculiar situations and still leave vast areas of asymmetry where the use of NLWs would seem unlikely. I believe, however, that a comprehensive argument can still be made normatively for use of NLWs even in situations where using them against lethalweapon wielding enemies would entail a certain cost (as long as that cost remains reasonable). Although I have highlighted conditions of reciprocity as very significant empirical factors in precipitating the adoption of a normative regime, it also has to be stressed that one of the key developments of IHL in the last decades has been to distance itself normatively from any insistence on reciprocity (as reflected, classically, in the desuetude of reprisals). The fundamental trend, in harmony with the humanization of international humanitarian law once described by Theodor Meron, 10 is for humanitarian norms to be less and less indexed along synallagmatic and reciprocal lines. Against reciprocity, it is thus increasingly conceivable to imagine an international humanitarian law that would be set in motion by the pegging of behavior to high
10
Theodor Meron, The humanization of humanitarian law, American Journal of International Law, vol. 94 (2000), Issue 2, pp. 239-278.
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standards considered desirable in and of themselves. Once the connection with reciprocity has been substantially severed, it is theoretically not inconceivable that one party to a conflict would submit itself to whatever higher standards are advocated for successfully by the international community. Indeed, this is by and large what is already happening in many conflict environments in which an IHL abiding party is confronted with a non-IHL abiding party, and where (despite the temptation to do so) the former does not resort to the same means as the latter. Of course, such normative asymmetry can become unsustainable if it creates a gap that is too broad, but in many situations the abiding states adherence to IHL norms will withstand the provocation of the non-abiding state. There may, in addition, be a number of specific situations in which the pressure to be good even in the face of an enemy that misbehaves may increase normatively. Perhaps one of the strongest cases for the use of NLWs is that of the inequality of parties, both military and normative (in respects other than the use of NLWs). At the military level, whenever a side to a conflict is much stronger than the other, then morality (if not quite IHL) militates in favor of a relatively benign warfare. If a party to a conflict is considerably stronger than its enemy (so that for example, loss of the war is very unlikely), it can and therefore should more readily endorse the full spectrum of obligations even when the enemy is refusing to do so. It is in very hard disputed struggles between very equal parties that one can perhaps more readily understand that the cost of abiding by IHL, let alone higher obligations such as those implicit in the use of NLWs, is felt as very difficult to bear. A certain victory conversely should incite to a certain noblesse oblige, and the gallantry of less rather than more lethal means. There may also be normative asymmetries. A legal occupier, for example, clearly does not have the same obligations as the occupied. The idea that one is facing an equal party (as in normal conflict) recedes, and so does the idea that one can deploy all the considerable means and methods of warfare put at ones disposal by IHL. I have elsewhere sketched the possibility of asymmetrical normative warfare in contexts of humanitarian intervention for example, and I can see how the argument could be carefully extended. This consequently suggests room for a certain asymmetry in relation to the development and use of NLWs, potential for strategies of early adoption, and what might be called humanitarian precursors (i.e.: states that endorse the highest humanitarian standard that they are technologically capable of, rather than wait for that standard to be binding on them through norm externalization). I have in mind situations where it would be the ability to use certain weapons which would create the responsibility (rather than only an across-the-board responsibility that would force states to have the ability to use certain weapons). Although this might be resisted by some states on the grounds that it creates differential application of humanitarian norms, differential application of the laws of war is already the practical (although not normative) experience of war. The normative superstructure of war seems relatively well equipped to deal with such situations. IHL, moreover, has already experienced this with modulated application of its norms via Protocol I and national liberation movements; this was a very contentious move because it seemed to allow certain groups to potentially dispense themselves of a certain minimum; but a move to argue slightly higher obligations above and beyond the bare minimum would undoubtedly be received differently. All in all, if IHL has successfully evolved away from reprisals, it could yet evolve towards requiring more exacting standards from states that have the ability to conform to them.
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V. CONCLUSION
Although probably not for tomorrow, I have tried to argue that a more systematic use of NLWs is not theoretically as implausible as it may appear at first or is made to be. There is certainly a case that NLWs should be used when civilians might be put at risk. The more intriguing issue is whether NLWs might also be used as against (or between) combatants (an issue which obviously has some bearing on whether they are ever used, be it accidentally, against non-combatants). I have tried to explore what it is that currently makes this implausible, and I have found no conclusive element to suggest why NLWs might never be used more systematically. Strictly speaking, killing, wounding and hurting are only necessary within certain parameters. The technology is probably inadequate today, but it could improve. At any rate, technology is not all there is to the debate. What is at stake is the ability to impose a certain level of regulatory burden. Whether that burden can be imposed depends on a host of factors, such as expectations of reciprocity and whether the generalization of NLWs would have significant power distribution effects. But the important point is that IHL has always been about imposing limitations to what can be done in warfare, that it has long and occasionally successfully done so in relation to all sorts of means of combat, and that it could one day take the further step of imposing NLWs. Apart from the social conditions in which such practices might become generalized, it is worth pointing out that there is a strictly normative ambition to all of this debate and that IHL should not be faulted for at least trying, in conditions where its success is at least plausible, to raise the level of humanitarian exigencies. One may question whether this sort of debate is really necessary at a time when IHL is already finding it tremendously difficult to have states (not to mention other actors) honor their existing commitments. I would argue that it may be precisely because of these difficulties that IHL should seek to up the ante. Conventional warfare, even in its otherwise rigorously legal form, has in a sense always contained the seeds of its own occasionally excessive violence. The explosions, the flying shrapnel, the tearing of tissues, the bleeding, all combine to create a climate of violence and fear which then tremendously increases the overall level of violence, both legal and illegal, until violence becomes disconnected from the goal of war, or becomes the goal of war itself. Moreover, one could argue that IHL has always in a sense suffered from its deep compromise (some would say affinity) with violence. This compromise was inevitable at IHLs origin and during much of its development, but IHL could gain significantly as project by gradually distancing itself from what had until recently been seen as a matter of course. In bringing war a step closer to police actions, IHL would merely be pursuing and bringing to its logical consequence the already mentioned phenomenon of the humanization of international humanitarian law. The license to kill combatants (or, for their state, to expose them to combat) has always been a slightly dubious exception to the states otherwise imperious duty to preserve the right to life. IHL is, in terms of human rights, an exorbitant concession to the reality of war and thus of certain forms of organized violence. The greater use of NLWs in substantially minimizing the risk of death or injury would go a long way to ensuring that human dignity is not sacrificed for the sake of violent collective projects. IHL would also be more in tune with the jus ad bellum objective of abolishing war altogether, in that it would increasingly marginalize various ways of waging war as contrary to sound humanitarian principles. A war fought using only NLWs would not only be the same old war fought differently. It would come close to being a new kind of war, a blunted, more limited and perhaps much more chivalrous one. It could herald a return to earlier forms of warfare seen as extended forms of
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highly regulated duels,11 rather than the sort of all-out, total conflict that has unfortunately become a too frequent characteristic of war in the 20th Century. In a sense, it has been one of the great tragedies of modernity that this ontological limitation of war (war is not the throwing of all national resources into battle, but a carefully staged exhibition of violence as power) has only been partly replaced by the mass of contemporary humanitarian rules. There are analogies to the broad movement highlighted here that can help us obtain a sense of the broader picture. The movement to pacify war to the point of not allowing weapons whose goal is to kill, wound or hurt, can be seen as in direct connection with the similar movement that has occurred over the last century domestically in many countries. It is domestically, not internationally, that the trend towards NLWs was spearheaded long ago and has profoundly modified the nature of certain police tasks. It used to be the case (and it used to be the case that it was legitimate), for example, that the police controlled riots by charging them with horses and using their sabers, not to mention the many cases of shooting at crowds. But we know that the gradual move has been to adopt means and methods of combat that minimize the risk of injury or death of civilians. This is of course consonant with a particular vision of what the police does when it arrests people or controls crowds, which is itself embedded in certain concepts of what is adequate domestically, the asymmetry of the positions of the police and ordinary citizens, and concepts of human rights. It is nonetheless interesting that a major shift has occurred over the last century or so (one which would have no doubt seemed very unlikely to some of those who lived in other eras) which has consisted in a gradual lessening of the use of force required, necessary and legitimate in dealing with delinquency or unrest. At a certain level, one can analyze this shift as a manifestation of the humanizing of police work, thanks to human rights principles in particular and a sense that the use of even legitimate force is limited by certain standards. It is perhaps also revealing that the use of much less lethal force corresponds to a shift in the level of exposure to danger: the old style of riot control, for example, was one that imposed a high risk to civilians (being charged) against a comparatively low risk to the police (horse mounted charging); the new form of riot control is, in the best of worlds of course, about having the states forces take at least moderate risks to themselves in order to minimize lethal risks to the population. Shifts in risk assumption are inherent in this phenomenon, and involve putting the risk squarely on highly trained professionals in the discharge of a public service rather than the delinquent. The willingness to take risks is supposed to be maintained even in situations where citizens are using unfair means (i.e.: throwing stones that might significantly wound the police, when the police cannot resort to such means). We know of course that this system is fragile, and there are countless instances of the police losing its temper, or simply indulging in wanton violence because of bad training, but such at least is the theory. We only need to be concerned here with the fact that the theory is not totally unrealistic, that there are indeed some factual configurations where this is how events unfold, and that the norms do exert a natural pull. Of course the transferability of this model to war zones is in many ways counterintuitive. The international is not the domestic, the military is not the police, and guerilleros are not ordinary delinquents. But there is a case that many wars are no longer conflicts between equal parties, technologically, militarily and even normatively, and that this increasing asymmetry is not
11
It is interesting that international humanitarian lawyers sometimes argue that this is precisely not what they are seeking. See Frits Kalshoven and Liesbeth Zegveld, Constraints on the Waging of War, Geneva, ICRC, 2001, p. 12 ( () humanitarian law does not by any means purport to turn war into a fashionable and basically humane activity, comparable more or less to a medieval jousting tournament ).
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necessarily merely a tragedy for the laws of war, in that it could indeed provide the impetus for the assumption of greater responsibilities by at least some actors. If one were to chart the normative and political course that should be taken to move war towards abolishing the killing of the combatants, a series of intermediary steps can be conceived towards the de-lethalization of war. I have argued that on the demand side (demand for less violence), sites where civilians are present would increase the pressure to use NLWs, even when combatants might be present. On the supply side, a good case for use of NLW in combat operations is one where those weapons are already available. IHL might not actually go as far as to mandate only use of NLWs, but it could at least have the audacity to require their use when they are available and suited to the task. At present, it is not absolutely clear that IHL mandates this and the general acceptance of the use of lethal conventional weapons suggests otherwise. A better understanding of how the principle of necessity applies to means of combat could in the long run precipitate significant changes. Beyond that, IHL could require the development and use of NLW capability whenever such capability is at least as efficient in incapacitating combatants as the lethal sort. In a final stage of de-lethalization of warfare, it is not impossible to imagine forms of war that would retain the gist of war-as-a-contest-of-violent-force whilst only allowing for very minimal use of force, in a context of high norm enforcement (e.g.: wars fought with paintball, where the normative regime is sufficiently strong that soldiers surrender once they have been hit). The end goal of the humanization of warfare might be its quasi-virtualization, because a sufficiently strong normative regime has emerged to fight mock wars obviating the need to actually fight them. I want to conclude with a few thoughts on why humanitarians are not more willing, despite the sort of argument I have outlined here, to engage these possibilities, and what it would mean for them to do so. This is no doubt a complex question. A certain degree of conservatism is involved, as mentioned in the introduction. IHL today is often, with a few exceptions, more backward than forward looking, bent on saving what can still be saved amidst the feeling of an overarching and never-ending crisis, and tempted by the cult of canonical texts. The fear that novelty will be used to circumvent long-standing prohibitions (a legitimate one, obviously) has at times translated into a principled hostility to developments that might in fact take the humanitarian ethos further. International humanitarian lawyers in this day and age will often see themselves as above all defending the acquis humanitaire, rather than anticipating radical future steps. This can make it difficult for the right questions to be asked at an early stage. Another issue is that the humanitarian ethos has, for better or for worse, been captured over the last century by armies of lawyers (not to mention the lawyers of armies). International humanitarian lawyers are trained to think in terms of rules, and in terms of what is needed to honor these rules, much more than they are advocates of pure values (if the values were all that was needed, there would be no need for rules). This creates a risk of rigidification and ossification. It may therefore be necessary at regular intervals to shake off rules that have become fossilized and no longer allow the humanitarian ethos to breathe freely. The problem with rules is not only that they are insufficiently respected, but also partly that they may become the wrong rules, or at least insufficiently ambitious ones. Yet another problem is that international humanitarian law has always been reactive, rather than, with a few exceptions, proactive. In the never ending cat-and-mouse game played between IHL and war, war has all too often been ahead by a significant measure. Moreover, in line with its deeply pragmatic credentials, IHL has always been more in the manner of a minimum than a maximum. Humanitarian lawyers have been more interested in prohibiting certain weapons, than
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they have been in encouraging others. The danger is that IHL may lose a sense of having an end, or an ambition, and always arrive on the scene of battle a train too late. But there is a deeper conceptual problem involved in the relationship of IHL to war. IHL often sees itself as taking war as is and then attempting to regulate it. There is of course a Faustian bargain quality to the regulatory function that IHL prides itself in serving vis--vis war: IHL is only allowed to regulate war by accepting the principle of war, and indeed taking war for what it is. The danger as noted by many before me is that the laws of war will merely become indistinguishable from war (as understood, say, the by the military or states) through excessive apology. I suspect that historically IHL has been led on to accept a little too many of wars supposed characteristics than is necessary, and has conceded too readily and for too long, in particular, that combatants can be killed and that lethal weapons are unavoidable in warfare (although I obviously recognize that for most historical purposes, there were many other issues that had to be dealt with before one reached that last frontier). The time may, at any rate, have come for one last push and for the humanitarian project to come full circle. In order to become less focused on regulating war and more interested in transforming it, IHL must rediscover the extent to which it has a key role and responsibility in framing what war is (by virtue of saying what it should be). This means that international humanitarian lawyers must recapture what has never been easy to acknowledge, namely that they are well-meaning, sophisticated but ultimately social engineers of warfare. Only in proactively using the laws of war to challenge the very definition of war as opportunities emerge to alter it can IHL recapture its radical potential. This could open new avenues at the level of means of combat. The dominant position taken by IHL in terms of means of combat has been to largely take the arms production complex as is and impose minimal requirements on the development of new weapons such as the ability to discriminate requirements and the minimization of unnecessary suffering or superfluous injury. This is what has allowed objectively for the development of massive conventional weapons systems that are a source of countless suffering. An alternative strategy might be to more forcefully take position in favor of certain classes of weapon as generally conducive to a profound modification of the very nature of war. The emphasis might become less exclusively on the requirement of discrimination or necessity, and more generally on a criterion of attenuation of warfare. By taking a strong stance in favor of at least the long-term development of non-lethal capability, IHL could switch gear dramatically. It would be taking a more consistent position not only in favor of a humanizing of warfare seen as somehow intrinsically violent, but in favor of radical change in the nature of warfare. I have sought to argue that there are still considerable residual pockets of violence in war that IHL can and should deal with as a matter of priority in the next decades. In doing so, IHL would be entirely true to its historical mission, as it is increasingly shaped by the evolution of the world, the growing significance of human rights, and maybe some lingering sense of a gradual pacification of mores.
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THE DEBATE ON NONLETHAL WEAPONS: WHY KILL AND WOUND AT ALL?

The Debate on Non-Lethal Weapons: Why Kill and Wound at All?

On the Edges of Conflict

The Debate on Non-Lethal Weapons: Why Kill and Wound at All?

On the Edges of Conflict

IV. THE NEXT FRONTIER: NLWS BETWEEN COMBATANTS ? ..................... 9

The Debate on Non-Lethal Weapons: Why Kill and Wound at All?

On the Edges of Conflict

THE DEBATE ON NON-LETHAL WEAPONS: WHY KILL AND WOUND AT ALL?

The Debate on Non-Lethal Weapons: Why Kill and Wound at All?

On the Edges of Conflict

The Debate on Non-Lethal Weapons: Why Kill and Wound at All?

On the Edges of Conflict

II. A CRITIQUE OF IHL RELATING TO MEANS OF COMBAT

The Debate on Non-Lethal Weapons: Why Kill and Wound at All?

On the Edges of Conflict

The Debate on Non-Lethal Weapons: Why Kill and Wound at All?

On the Edges of Conflict

III. PRIORITY CASES FOR THE USE OF NLWS

A. OPERATIONS SHORT OF WAR

B. URBAN WARFARE PRESENCE

The Debate on Non-Lethal Weapons: Why Kill and Wound at All?

On the Edges of Conflict

C. TWO TYPES OF WARFARE: IS WAGING LETHAL AND NON-LETHAL COMBAT REALISTIC?

The Debate on Non-Lethal Weapons: Why Kill and Wound at All?

On the Edges of Conflict

IV. THE NEXT FRONTIER: NLWS BETWEEN COMBATANTS?

A. CLASSICAL IHL: RESTRICTING WAR TO COMBATANTS

The Debate on Non-Lethal Weapons: Why Kill and Wound at All?

On the Edges of Conflict

The Debate on Non-Lethal Weapons: Why Kill and Wound at All?

On the Edges of Conflict

B. WHAT IS NECESSARY IN WAR?

The Debate on Non-Lethal Weapons: Why Kill and Wound at All?

On the Edges of Conflict

The Debate on Non-Lethal Weapons: Why Kill and Wound at All?

On the Edges of Conflict

C. HURDLES AND OPENINGS

The Debate on Non-Lethal Weapons: Why Kill and Wound at All?

On the Edges of Conflict

The Debate on Non-Lethal Weapons: Why Kill and Wound at All?

On the Edges of Conflict

3. WAR AND THE INTERNATIONAL MILITARY POWER STRUCTURE

The Debate on Non-Lethal Weapons: Why Kill and Wound at All?

On the Edges of Conflict

D. THE NORMATIVE DIMENSION

The Debate on Non-Lethal Weapons: Why Kill and Wound at All?

On the Edges of Conflict

E. THE PROBLEMS OF ASYMMETRY: TOWARDS UNILATERALISM IN HUMANITARIAN LAW?

The Debate on Non-Lethal Weapons: Why Kill and Wound at All?

On the Edges of Conflict

The Debate on Non-Lethal Weapons: Why Kill and Wound at All?

On the Edges of Conflict

The Debate on Non-Lethal Weapons: Why Kill and Wound at All?

On the Edges of Conflict

The Debate on Non-Lethal Weapons: Why Kill and Wound at All?

On the Edges of Conflict

The Debate on Non-Lethal Weapons: Why Kill and Wound at All?

On the Edges of Conflict

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