The essential feature Non-Lethal Weapons (NLW) is that they provide both the military and law enforcement agencies with the capability to use force, while minimizing the probability of severe or fatal injury. In the following essay, the question is raised why, absurdly enough, weapons, which are explicitly designed not to kill, should become the focus of far-reaching legal and/or arms control restrictions or even prohibitions.

By Dr. Friedhelm Krüger-Sprengel

Introduction:

In a number of states, including in Europe, non-lethal weapons have been developed. At present, a broad range of NLW are operationally available. NLW can be used by the military against in low intensity, asymmetric conflicts, peace keeping and anti-terrorism operations. NLW can also be used by law-enforcement agencies in cases of violent rioting and serious crime. Thus, NLW provide armed forces and law enforcement agencies with new response options -- in a tailored and graduated manner.

The author of the following essay “Non- Lethal Weapons and Disarmament“ is former Ministerialdirigent Dr. Friedhelm Krüger-Sprengel, a military jurist and consultant of the Fraunhofer Institut für Chemische Technologie (ICT). The text served as the basis for a presentation by Dr. Krüger-Sprengel at the “5^th European Symposium on Non- Lethal Weapons”, which took place on May 11-13, 2009 in Ettlingen, Germany. The symposium gathered researchers and experts from Austria, the Czech Republic, France, Italy, Portugal, Netherlands, Sweden, Norway, UK, Israel, USA, Russia and Germany.

In his introduction, the chairman of the 5^th European Symposium on NLW, Klaus-Dieter Thiel (Fraunhofer ICT) noted that the previous symposium in May 2007 had led to a series of important initiatives on NLW: NATO set up a “Quick Reaction Team, a Topical Group” on “Non- Lethal Capabilities (NLC)”. Also, the European Defense Agency (EDA) created a “NLC Project Team.”

In his presentation, Dr. Krüger-Sprengel focussed on the legal implication of NLW, in particular in respect to disarmament and weapons conventions and international humanitarian law. He argues that in light of the nature of future conflicts, NLW must be kept free from legal prohibitions and far-reaching restrictions through international disarmament treaties. Otherwise the concept of NLW would miss its very purpose: To secure minimum humanitarian protection in new kinds of conflict situations which often are not yet adequately encompassed by international humanitarian law . (Elisabeth Hellenbroich)

During the four previous Symposia, the basic legal aspects of NLW as well as seven legal key areas have been presented and discussed in detail. The aspect of past and future repercussions of agreements of disarmament including elements of arms reduction, arms limitations or arms control and verification had never dealt with a more fundamental approach. The questionnaire for the preparation of the fourth symposium included disarmament as one of the seven legal fundamentals.

Consequently the report 2007 of the Virtual Working Group stated in its summary: “The role of NLW in arms control and weapons conventions remains the next subject for study.”[1]

Meanwhile non-proliferation, limitation and disarmament of weapons have gained importance in a global world facing many armed conflicts. Political observers believe in renaissance of the idea of regional and global disarmament[2]. The legal aspects should therefore concentrate on a still missing building block on disarmament.

Possible problems following the present and future consequences of such kind of international steps shall be identified in this contribution. It has become a common denominator among political and legal experts that armed conflicts can no longer be fought under medieval conditions (see picture 1: Apocalyptic Knights by Albrecht Dürer,1497 – a Symbol for Unlimited War (LINK) ).

This fundamental belief sets new political priorities. The excessive use of conventional power is no longer acceptable even not for the morally good purpose of establishing democracy .[3]

A Category of Weapons under Development and Testing

The crucial question can be raised why at all a modern non lethal means for the use of force or conduct of conflicts should become a candidate for prohibition and disarmament”?

• In more than 100 years development of the humanitarian law of war only dealt with such kind of weapons which caused unnecessary and superfluous suffering . But NLW according to its definition are weapons which aim at avoiding these deadly or permanent sufferings.

• Usually prohibitions only referred to those weapons which proved their unnecessary sufferings in previous armed conflicts. NLW are on the contrary weapons still in its stage of development. Only a limited array of this new instrument has been used in active implementation. But doubtlessly NLW offer a large potential for limiting the collateral damages of conventional weaponry in all kind of armed conflicts.

• NLW are means for police forces and are mainly in use by police forces. Regarding police forces national law is applicable national states authorities decide on the rules and set the frame.

• Disarmament agreements are focussed on international security and the conditions and threats from international armed conflict

• Finally law of armed conflict and disarmament law have always been agreed upon after , not before bad experience was made. Up to now in international activity no major misuses are recorded, on the national level only single events like the Moscow theater operation in 2004 and irregular implementation of Tasers by police forces in the USA and Canada have rightly been criticised.[4]

In sum:

Nevertheless new international agreements could be initiated which might, in contrast to past state practice, also involve restrictions and disarmament for NLW.

The Impact of Strategic and Conventional Security

But the international political climate sets the path for new disarmament steps on strategic and conventional levels. In the end this international effort will also cover certain types of weapons and logically also NLW because of their nature and definition as weapons.

Politicians demand as a first step the start of strategic nuclear reduction talks between United States and Russia. Existent agreements will run out this year and as a minimum the prolongation or similar obligations must be assured. In a second step other established nuclear powers like France, United Kingdom, China, India and Pakistan are under pressure to join the nuclear disarmament trail because there is a need of effective means for a guaranteed nuclear Non-Proliferation regime.

Similar political and legal pressures are directed towards conventional disarmament in Europe. NLW - being weapons by definition – can legally not be fully separated from other types of conventional weaponry. Of course the present agreements on reduction, limitations and verifications of forces in Europe have up to now not been ratified neither by Nato countries nor Russia. They will soon be set into force and will also lower heavy weaponry like battle tanks, artillery pieces, and combat helicopters.

The political impact of these moves in the disarmament scenario will surely give incentives to prohibition and limitation of smaller weapons. Additional pressure grows for United States, Russia, and China to accept the agreement on the prohibition of personal land mines and cluster bombs. Both means of warfare touch upon NLW

Support for Strengthening and Development of the NATO Concept for NLW Policy

It is not only the revitalisation of the disarmament policy which justifies a study of possible NLW repercussions.

This year the above mentioned policy concept runs into the tenth year of its existence. Several working groups within Nato discussed specific capabilities of NLW like the effectiveness and medical implications. The text of the concepts expressively states, that after due time of experience member states of Nato should report and share their experience in the implementation of this new category of weapons. At the NATO Defense College in Rome the studies for an enforcement of NLW have begun last summer.[5]

Indeed time seems ripe for such a restart. In the last decade the conflict scenario changed and increased in a revolutionary way. The conflict conditions were symbolized by the suicide attacks and the following global war against terror with local scenarios in Afghanistan, Iraq, Pakistan and in other areas of the world especially in parts of Africa. The NATO-concept establishes NLW as a new and moderate form of force in national and international armed conflict, a means for stabilizing peace and supporting growth of a solid society. This instrument should not be limited by arms prohibitions or disarmament. Only a wide consensus on the undiminished legality of this new instrument would guarantee that the present and future non-lethal options could enhance security and stability as an aim of modern military and police law enforcement operations. This is why in July 2008 the NATO Defence College in Rome has initiated a research for the adaptation and development of the NATO Concept for NLW Policy, which should accompany the growth - instead of any limitation - of NLW technology in the future.

No Disarmament Restraints for Non-Lethal Force

All sceptical anti - weapons protests and disarmament deliberations miss one decisive aspect: The political, moral technical and last not least the humanitarian impetus to create weapons based on a new technology which enables forces to operate in new force scenarios without the traditional killing and damage of ordinary conventional weaponry.

The overall concept of anti-lethality would continue to serve as a yardstick for measuring existing arms control conventions and present efforts for new legal limitations. This scrutinizing should also refer to existing treaty law and rules of engagement. Therefore the basic yardstick for the treatment of NLW remains a definition, which contains the anti-lethality principal. This condition is fully met by the Nato-definition of the 1999 policy concept [6] which is stated too in a leaflet describing the statutes of the European Working Group NLW, the sponsor and host of this symposium.

Possible NLW Candidates for Disarmament Measures

As common denominator of new modern warfare -so called new wars - only few basic humanitarian rules are widely accepted by traditional state powers but in no way by terrorist forces or forces in failed states. The lack of security causing the world wide spread instable situations and the use of force by terrorists or conflicting groups in failed or dismembered states offers incentives for a postponement of any convention on limiting terror as well as an additional protocol of the Geneva Conventions on the Law of Armed Conflict.

One has to conclude that the powerful and leading state parties prefer a “wait and see” approach. Governments are not sufficiently sure if possible changes or amendments of the international law of war turn out to be acceptable and necessary for future humanitarian protection in new kinds of armed conflict. The law in scenarios with a mixture of national and international police forces, armed forces and irregular fighters guided by an utmost controversial religious code of conduct demand a new set of rules. These would not be dominated solely by traditional western values.[7]

But from this situation in new wars and from the violations of the traditional law of armed conflict one should not conclude, that further limitations on weapons including NLW would not be initiated in a foreseeable future. Protest against the discussion of NLW already arose at the occasion of the 4^th Symposium at Ettlingen and will go on in the future, too.

The modern forms of disarmament conventions prohibit or restrain the research, production and the use in times of peace and war for means and methods of force. Typical types of such agreements containing articles dealing with disarmament and prohibition are the conventions on biological and chemical weapons. As far as these and similar agreements would be applicable for non-lethal weapons, they could seriously damage the humanitarian protection which is presently offered by the use of NLW.

It is primarily the chemical weapons convention which restricts certain implementation in military operations. Beyond regarding the conventional weapons scenario recently an agreement was concluded in 1997 on a ban of anti-person land mines, the Ottawa convention. This was a successful result of efforts of newly formed political movements.

From a NLW point of view such mines which would cause no lethal effects should not be prohibited. Personal mines could be constructed in a way that they only imply the use of nets or explosives creating clouds , which could be additionally supervised. There is no stringent need to prohibit such methods neither for police nor armed military forces.

Similar international steps are presently undertaken in favour of a ban for cluster munition, which is already signed by many states [8] and recently ratified by Belgium. Both weapons systems could be- as far as the means of delivery are considered - implemented in combination with non-lethal means

Since the idea of peace and democracy through disarmament instead of military force is gaining weight it is important that with the help of NLW all state armed forces are equipped with means which enable them to secure peace and stability without unacceptable collateral damage.

The armed conflict between the state of Israel and the resistance movement of Hamas caused huge collateral damage in the Gaza-Strip in January 2009. To many politicians the size of more than 1000 civilian losses was unacceptable and out of proportionality in relation to the previous missile attacks against Israel territory. The technology-centered warfare in the wars against Hisbollah, against Hamas and the US warfare in Afghanistan has been criticised even in allied western countries. Thus US and Israel are the political losers. Even the reliance on the rule of proportionality is put into question by them.[9] [10] The general public criticism went further. Also condemned was the implementation of ammunition which simply sets clouds screening the air and by this means hiding armed forces without causing any civilian losses or damage. Even if these clouds had been originated by burning phosphor it would not breach applicable international law. The originating clouds on the other side can be evaluated as a legal non-lethal means of warfare.

The cluster must not necessarily be lethal or dangerous for soft targets. Such ammunition used for cloud screening or other non- lethal purposes would not be banned.)

Conclusion: Future Exemptions from Disarmament for defined NLW

The basic demand and final aim of any discussion of prospects of disarmament and prohibition must be to keep NLW free from legal prohibitions and disarmament law. Otherwise the concept of NLW would miss its very purpose to secure a minimum of humanitarian protection in new kinds of war facing legal loopholes.

Many questions remain open and should be subject to intensified additional studies. As follows:

• Which types if any non-lethal weapons might become candidates for future restrictions or disarmament?

• Which specific rules and prohibitions are already obligatory for

NLW now?

• Would such a law be practicable as long as differences remain in national law for police forces and international rules for armed forces?

• Could an international agency list all types of NLW for police and armed forces?

• Could the NATO Concept for NLW-Policy further develop towards an international agreement on NLW? A comprehensive code for new wars?

• If the answer is positive, would this approach comprise all or only specific existing non-lethal?

• How far can existing conventions be interpreted and reviewed in a way that they correspond to NLW?

• Do NATO-States report to the competent NATO authorities on their national experience with equipment and implementation of NLW?

• What could be the consequences with regard to the recent efforts to strengthen the NLW Concept of 1999?

The effort has recently been made by the research department of the NATO Defense College in Rome. The decisive starting point should be the confirmation of the present definition of NLW. Only under this condition the concept of a legally and fundamentally different new category of weapons can be strengthened and further developed Their additional and alternative use should be seen as changing military and police operations with the help of new technology. This strategy could bring collateral damages in harmony with the traditional rule of proportionality.

The slides of this talk in PDF can be found here.  

Footnotes:

Non-Lethal Weapons, NLW, military, law enforcement agencies, disarmament, NATO, European Defense Agency, international humanitarian law, Fraunhofer Institut für Chemische Technologie

1 Friedhelm Krüger-Sprengel. Fraunhofer Institut Chemische Technologie. Non-Lethal Weapons: Fulfilling the Promise? Proceedings of the 4th European Symposium on Non-Lethal Weapons Ettlingen 2007 p.1-7

2 Frank-Walter Steinmeier. German Minister of Foreign Affairs in Frankfurter Allgemeine Zeitung (FAZ) January 1, 2009 . In his report to the Deutscher Bundestag he demanded a decade of disarmament policy addressing US President Obama and Russian president Medvedev.

Frank-Walter Steinmeier. Im engen Schulterschluss. Offener Brief an Barak Obama , in Der Spiegel, January 12,2009 p.28,29. He demanded beyond nuclear weapons the enclusion of conventional wepons in disarmament steps.

3 A. Kissinger, George Shultz, William Perry, Sam Nunn. :Realists are calling for the Unrealistic, in World Security Network Newsletter, August 14,2008. They demanded more disarmament instead of more democracy,p.1,3

4 Toronto Star, February 8,2009 p. A14 : In the editorials of this newspaper a report is published with the heading : “Tasers being used to achieve compliance” The reported case refers to the implementation of tasers against a 14 year old girl by mindless public law enforcement.

5 NATO Defense College Research Division. A seminar in Rome 9 June 2008 took stock of the present state as regards NATO and identified actions to be taken if the Alliance is serious to field NLW capabilities. A Research Paper with the output of the seminar was announced.

6 Non-Lethal Weapons (NATO Definition): Non-Lethal Weapons are weapons, which are explicitly designed and developed to incapacitate or repel personnel with a low probability of fatality or permanent injury, or to disable equipment with minimal undesired damage or impact on the environment.

7 See above note 3: Democracy through disarmament! and

Heike Krieger. Krieg oder Frieden in Afghanistan - eine völkerrechtliche Perspektive (War or Peace in Afghanistan an International Law Perspective. Presentation in the Symposium of the Bundesakademie für Sicherheitspolitik Berlin, December 1, 2008 .The need for new rules in new wars was a consequence. Acts of warfare during a formal status of peace could generally not be considered as war crimes. But the question remains, if killing of government officials, who support subversive activities, can be a legal action of foreign assistant forces.

8 In December 2008 the ban of cluster munitions was signed by 111 states, but the decisive powers like USA, China, Russia, Israel, India, and Pakistan refrained from signing. Certain non- lethal ammunitions are explicitly excluded from the ban.

9 Reinhard Müller. Totaler Krieg verboten (Total War prohibited ), in FAZ, January 8, 2009

10 Lothar Rühl. Israel gegen Hamas (Israel against Hamaz), in FAZ, January 9, 2009

Links:

http://www.solon-line.de/das-rechtliche-fundament-nicht-lethaler-waffen-nlw.html http://www.solon-line.de/nicht-todliche-wirksysteme-sicherheit-durch-de-eskalation.html

Editorial note: The orginal manuscript contains some pictures which we cannot publish here due to copyright issues.