1. Law of Armed Conflict Non-Lethal Weapons
The Laws of Armed Conflict (LOAC) play an important role in the conduct of military operations.
LOAC regulates our conduct and in particular, our use of weapons.
Non-lethal weapons (NLW) (or less than lethal) such as water canon, baton and rubber bullets, have been used for domestic law enforcement for decades and, more recently NLW have been developed for military use.
The purpose of this presentation is to outline the application of LOAC to the use of force.
The application of force, regardless of its lethality, is the subject of LOAC. The military use of non-lethal weapons is not isolated from the considerations which apply to lethal weapons.
It is always important to consider the lawfulness of the use of non-lethal weapons during their procurement and employment.

2. Scope of Discussion Law of Armed Conflict (LOAC)
Non Lethal Weapons (NLW) and LOAC
General prohibitions
Specific prohibitions
Unlawful use of lawful weapons
Rules of Engagement and Training
Questions and Answers
This presentation will cover four areas:
First, we will briefly consider the LOAC relevant to the use of force. This will highlight the purpose and key principles of LOAC.
Next the presentation will outline the application of LOAC to the use of NLW.
Third we will outline the weapon review process necessary to consider whether a NLW is able to be lawfully used.
Finally, this presentation will touch on the value of ROE, and the importance of including ROE discussion/considerations in planning and training.

3. Purpose of LOAC
To protect both combatants and non-combatants from unnecessary suffering
To safeguard fundamental human rights
To facilitate the restoration of peace
To prohibit certain means and methods of warfare
The LOAC applies to Armed Conflict and is concerned with minimizing the impact of the conflict on both combatants and non-combatants.
The LOAC is based on International Agreements (Treaties/ Conventions binding on signatories), Customary International Law (practice and principles recognized by and binding on all States), and Judicial Decisions (International Military Tribunal Nuremburg (IMTN), IMTT (Tokyo), Int’l Court of Justice (ICJ), ICTY (Int’l Criminal Tribunal for the former Yugoslavia), International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC).
The LOAC, also know as IHL, seeks to ensure that the use of force against enemy combatants is not more than is necessary, and that the combatants who are hor de combat are protected.
Notably, the LOAC prohibit certain weapons, their unlawful use, or both.

4. Principles of LOAC Military Necessity Unnecessary Suffering
Proportionality
Distinction

5. Military Necessity Is it a legitimate military target?
Will a definite military advantage ensue?
Military Necessity – That degree and kind of force, not otherwise prohibited by the LOAC, required for the partial or complete submission of the enemy with a minimum expenditure of time, life and physical resources, may be applied. Protected persons and places – “Rendulic rule.”
Those objects which by their
nature,
location,
purpose or
use
make an effective contribution to military action and whose total or partial destruction, capture, or neutralization in the circumstances ruling at the time, offers a definite military advantage

6. Unnecessary Suffering
Applies to both combatants & civilian property
Can’t use lawful weapons to cause unnecessary suffering
Can’t deliberately attack civilians or civilian property
Unnecessary Suffering – Prohibits military action which is calculated to cause unnecessary suffering or superfluous injury. These are balanced against military necessity in employing a particular weapon and the likely suffering occasioned by that employment.
Hague IV, art. 23e: [I]t is especially forbidden to employ arms, projectiles, or material calculated to cause unnecessary suffering
This concept also extends to unnecessary destruction of property.
Combatants may not use arms that are per se calculated to cause unnecessary suffering (e.g., projectiles filled with glass, irregularly shaped bullets, dum-dum rounds, lances with barbed heads)

7. Proportionality
Potential loss of injury/loss of life to civilians or damage to civilian property
Versus
Military advantage to be gained
Proportionality – Launch of an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage(s) anticipated, is prohibited.
Proportionality does not mean proportionate response
-does not require you to bring a knife to a gunfight
-only need to conduct analysis if civilians/civilian property is nearby

8. Distinction Distinguish between civilians and combatants
Weapons that are not able to distinguish between civilian and non-civilian are prohbited
Distinction – Parties to a conflict must always and at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians (Art 48 and 52 of AP1 – no reservations have been made). “Attacks” in AP1 mean “acts of violence against an adversary.” Weapons which are not able to distinguish between combatants and civilians are prohibited.
Note that Art 51(3) of AP1 recognizes that civilians lose their protected status when and for such time that they take a direct part in hostilities. “Direct part in hostilities” is not defined, however, it is generally understood to mean “acts, which by their nature and purpose are intended to cause actual harm to enemy personnel or materiel.”
The “grandfather of all principles”, it forms much of the basis for the 1949 Geneva Conventions.
Customary international law principle contained in GP I, article 48:
“Parties to the conflict shall at all times distinguish between civilian the civilian population & combatants & between civilian objects & military objectives & accordingly shall direct their operations only against military objectives”.

9. Spectrum of Responses
The availability of NLW provides Operating Forces additional capabilities and broadens the spectrum of available responses to accomplish mission requirements.
Within the NLW spectrum are also a number of options which may help to diffuse situations, control situations, remove the instigators, and attain objectives without destruction.

10. What is Appropriate Force?
Photograph is illustrative of the concept.
Any audience comments with regard to this photograph?
Is the individual in the foreground a “combatant” or civilian?
What about the type of weapon he may be throwing, if any?

11. What Tools are Available?
Note focal point of each photograph – i.e., single individual. Remove the agitators (center of gravity to foster mob mentaility) from the environment. Diffuse the situation. Important to treat firmly, but with respect. Intel asset, may later reenter environment with alternate point of view (or not).

12. Modern Military Environment
Civilians take an active and direct part in hostilities
Distinction difficult
Operations in urban areas
amongst civilians
Today’s realities – civilians take an active part and do not fit the 1949 GC definition of combatant.
Additional Protocol I, Article 44(3) definition drops the requirement for a fixed recognizable sign – must carry arms openly during military engagement and when deploying for an attack. U.S. – provision diminishes the distinction between combatant and civilians – not viewed as CIL.
Unprivileged belligerents – a.k.a. unlawful combatants – not entitled to POW status and may be prosecuted under the domestic law of the captor.

13. Non-Lethal Weapons
Weapons, devices and munitions that are explicitly designed and primarily employed to incapacitate targeted personnel or material immediately, while minimizing fatalities, permanent injury to personnel, and undesired damage to property in the target area or environment. NLW are intended to have reversible effects.

14. Key Points of Definition
Incapacitate targeted personnel
Minimize fatalities or permanent injury
Intended to have reversible effects
Incapacitate – cease activity and render ineffective to continue.
Minimize fatalities or permanent injury.
Intended to be reversible – total reversibility is desired outcome. This is key. Many benefits of NLW are centered on fact that personnel may later return to populace without permanent injury.

15. NLW General Prohibitions
Unnecessary suffering
Indiscriminate targeting
Unnecessary suffering is a foundation principle of IHL.
Indiscriminate Attacks are prohibited. Art 51(4)(a) of AP1 considers the following to be indiscriminate:
an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians and civilian objects;
an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
Martens Clause – Even back in the 19th Century, the drafters of the Hague convention recognized that it was not possible to cover all aspects of the war within treaties and conventions. They did however recognise that the treaties represented principles of international law that should be followed:
The Martens Clause was first inserted into the preamble of the 1899 Hague Convention (II) and is nearly replicated in Art 1 to AP1 and and Preamble to AP2 and provides that : “Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilised nations, from the laws of humanity and the requirements of the public conscience.”

16. Weapons Reviews
Art 36, Additional Protocol One requires the review of all weapon systems
Assessment is made in light of IHL and on the basis of the normal use of the weapon, anticipated at the time of evaluation
The correct standard is whether the employment of a weapon for its normal or expected use inevitably would cause injury or suffering manifestly disproportionate to its military effectiveness. Balancing test, not performed in isolation. States cannot reasonably be expected to foresee all possible uses or misuses of a weapon.
U.S. weapons reviewed before award of the engineering and manufacturing development contract and again before the award of the initial production contract.

17. NLW Specific Prohibitions
CS Gas
Lasers v Illuminators
Microbes
CS gas is a chemical substance used for Riot Control (RCA) and therefore falls within the bounds of the 1925 Geneva Protocol and the 1993 Chemical Weapons Convention. These conventions prohibit the use of chemical weapons as a “method of warfare.” However, the CWC expressly allows the use of CS for law enforcement purposes. RCAs are defined in the CWC as “any chemical not listed in the Schedule which can produce rapidly in humans, sensory irritation or disabling physical effects which disappear within a short time following exposure” [Art II (7)].
The term “method of warfare” is not defined in the CWC. While it is not contentious that forces must be involved in an armed conflict, either international or non-international, it becomes more difficult in other operations such as peace operations.
The US does not consider “method of warfare” to include certain “defensive” military uses of RCAs in armed conflict to save lives. US Executive Order includes the use of RCAs such as:
use of RCAs in riot control situations in areas under direct and distinct US military control, to include controlling rioting prisoners of war;
use of RCAs in situations in which civilians are used to mask or screen attacks and civilian casualties can be reduced or avoided;
use of RCAs in rescue missions in remotely isolated areas, of downed air crew and passengers, and escaping prisoners;
use of RCAs in rear echelon areas outside the zone of immediate combat to protect convoys from civil disturbances, terrorists and paramilitary organizations.
ALSO use of RCA ok in: peacetime military operations within an area of ongoing armed conflict when the United States is not a party to the conflict;
• consensual peacekeeping operations when the use of force is authorized by the receiving state, including operations pursuant to Chapter VI of the United Nations Charter; and
• peacekeeping operations when force is authorized by the Security Council under Chapter VII of the United Nations Charter.401
Lasers are prohibited under the Fourth Protocol to the Certain Weapons Convention prohibiting the use of Blinding Laser Weapons.
States Parties did not conclude that blinding is illegal, nor that blinding caused by a laser device or a blinding laser weapon is calculated to cause superfluous injury (i.e., unnecessary suffering).
Permanent blindness is defined as “irreversible and uncorrectable loss of vision which is seriously disabling with no prospect of recovery. Serious disability is equivalent to visual acuity of less than 20/200 Snellen measured in both eyes.” If a laser device does not meet each of these criteria, it is not a blinding laser weapon. The United States military has no laser systems that meet the definition of blinding laser weapons.
The BWC prohibits the development, production, stockpiling of biological agents for use as weapons. Microbes are designed for anti-materiel use. Therefore it is necessary to consider whether the 1925 Geneva Protocol regarding the use of “bacteriological means of warfare” and the BWC prohibition on “microbial and other biological means” excludes the use of these weapons against materiel. There is no international consensus on this point. Some domestic legislation prohibits the use of biological agents as weapons, regardless of their target.

18. Unlawful use of Lawful Weapons
Tasers
Sticky foam
Kinetics
Tasers – extremely painful, repeated use without ability to comply, ventricular fibrillation, use on children, pregnant women, elderly.
Lessons learned with Rodney King case in US – lots of public outcry/sympathy for victim. Considerable personal injury judgment paid by local government. Some evidence that batteries not fully charged.
Sticky foam – carcinogenic, abrasive solvents for removal, suffocation.
Kinetics – fatal head injuries.

19. Rules of Engagement Planning and Training
Planning for contingencies. All personal are absolutely clear about what to expect and how to react to ALL reasonably anticipated situations. Train to expect surprises. Reverse roles – troops need to understand position of demonstrators. Exercise, exercise, exercise. Professionalism, control, composure – keys to effective use of NLW.

20. ROE Issues ROE Avoiding Disaster Self - Defense Defense of Others
US Military
Foreign Military
Civilians
Limited Property Defense
Avoiding Disaster
Crowd Control
Distribution points
Firm but Fair.
Fully Inform populace. Keep it simple.
Evaluate constantly. Measure conformity to directions from authority. Agitators.
Control. Firm, rapid, measured responses.

21. Distribution Best Practices
Facilitating Aid Distribution is a key Aspect of the HA/DR Mission
Keep the following general principles in mind :
INFORM
EVALUATE
CONTROL 21

22. Questions and Answers