Abstract
Non-lethal technology continues to attract the interest of States, individually and in the context of regional and universal organisations. Peace operations deployed in asymmetric threat environments are in need of equipment more suited to the requirements of such operations: non- or less-lethal weapons might offer a valuable alternative to firearms in certain scenarios, particularly when armed forces are involved in the protection of the civilian population as well as in law enforcement activities. It is important to distinguish between conduct of hostilities and law enforcement scenarios, as different legal paradigms apply with regard to the use of armed force. Moreover, whereas under the latter, there is at least an implicit obligation under human rights law to equip State officials with less-lethal weapons, the prevalent view is that no such duty exists under the former. What characterises the most recent developments in the field of the regulation of non- or less-lethal weapons is the effort to offer practical guidance as concerns testing, procurement, training and monitoring, on the assumption that, in a law-enforcement situation, the cumulative principles of legality, necessity, proportionality and precaution govern the use of force by State agents.
Mirko Sossai is Associate Professor of International Law at the Department of Law of the University of Roma Tre.
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Notes
- 1.
NATO 1999.
- 2.
See, inter alia, Boothby 2016, p. 216.
- 3.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) (AP I), Article 36.
- 4.
Fidler 1999, p. 97.
- 5.
See Casey-Maslen 2010, p. 9.
- 6.
- 7.
See the discussion during the 2018 session of the Group of Governmental Experts on emerging technologies in the area of lethal autonomous weapons systems (LAWS), as to the characterisation of this category: whereas
some delegations felt that lethality was an essential characteristic, […] several delegations expressed the view that a focus on lethality would fail to address injuries to persons or damage to objects that are protected by IHL, […] while others felt that the term ‘lethal’ as a characteristic needed to be further examined in the light of the fundamental notion of use of force, which triggers legal obligations under international law irrespective of lethality.
Group of Governmental Experts of the High Contracting Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (2018) Report of the 2018 session of the Group of Governmental Experts on Emerging Technologies in the Area of Lethal Autonomous Weapons Systems, UN Doc. CCW/GGE.1/2018/3, p. 12.
- 8.
- 9.
NATO 1999.
- 10.
Bernard 2016, p. 2.
- 11.
See AP I, above n 3, Articles 51(5)(b) and 57; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978), Article 13. The principles of proportionality and precautions in attack are considered customary in both international and non-international armed conflicts. See Henckaerts and Doswald-Beck 2005, pp. 46–51, Rules 14–15.
- 12.
Cf., inter alia, Muhammedally 2016, p. 232.
- 13.
Cf. NATO 2017.
- 14.
See, already, NATO 2004.
- 15.
Melzer and Gaggioli 2015, p. 63: “the generic concept of law enforcement comprises all territorial and extraterritorial measures taken by a State or other collective entity to maintain or restore public security, law and order or to otherwise exercise its authority or power over individuals, objects or territory”.
- 16.
On the use of NLW in maritime operations, see Annati 2014.
- 17.
ICRC 2011, p. 19.
- 18.
See, recently, Wills 2018.
- 19.
White 2014, p. 103.
- 20.
UN Security Council (2018) Resolution 2423 (2018), UN Doc. S/RES/2423, para 38.
- 21.
Kalsrud 2017, p. 1221.
- 22.
The 2015 Report of the UN High-level Independent Panel on Peace Operations held that UN peacekeeping operations “lack the specific equipment, intelligence, logistics, capabilities and speciali[s]ed military preparation required, among other aspects”. UN General Assembly/Security Council (2015) Report of the UN High-level Independent Panel on Peace Operations, UN Doc. A/70/95-S/2015/446, para 119. See also Davison 2013, p. 294.
- 23.
United Nations 2015, p. 76.
- 24.
Boothby 2012, p. 273.
- 25.
For the position that the NLW enterprise is worthy of continuation and even expansion to meet more fully its ambitious goals, see Koplow 2015, p. 238.
- 26.
Fidler 2013, pp. 332–334.
- 27.
Kaurin 2014, p. 57.
- 28.
On the relationship between jus ad bellum and jus in bello, see, inter alia, Sassoli 2007.
- 29.
Nystuen 2008, p. 9.
- 30.
Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, opened for signature 10 April 1972, 1015 UNTS 163 (entered into force 26 March 1975); Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, opened for signature 13 January 1993, 1975 UNTS 45 (entered into force 29 April 1997) (CWC).
- 31.
Additional Protocol IV to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, opened for signature 13 October 1995, 1380 UNTS 370 (entered into force 30 July 1998), Article 1. See Carnahan and Robertson 1996.
- 32.
Casey-Maslen 2010, p. 73.
- 33.
NATO 2004, p. 3-9.
- 34.
Backstrom and Henderson 2012, pp. 500–501.
- 35.
- 36.
Fidler 1999, p. 84.
- 37.
NATO 2004, p. 5-2. The point has been made that employment of NLW against a group of persons in order to disperse the civilians and to identify the combatants, that are then targeted with conventional weapons, would be problematic from the viewpoint of the principle of distinction. See Davison 2013, pp. 293–294.
- 38.
United Nations 1990, Principle 3.
- 39.
UN Human Rights Committee (2018) General Comment No. 36 on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life, UN Doc. CCPR/C/GC/36, para 64.
- 40.
Murray 2016, p. 79.
- 41.
ICRC 2015, p. 36.
- 42.
Geiss and Siegrist 2011, pp. 42–43.
- 43.
Cf. NATO 2017.
- 44.
Dinstein 2016, p. 65.
- 45.
- 46.
One might question whether malodorants fall within the definition of toxic chemicals under the 1993 CWC, above n 30. It has been argued that they should be considered as falling within the category of riot control agents, at least in terms of their regulation. Cf. Crowley 2016.
- 47.
AP I, above n 3, Article 35(3). Moreover, cf. Henckaerts and Doswald-Beck 2005, p. 151, Rule 45. For the present purposes it is not relevant to enter into the discussion over the customary nature of the prohibition.
- 48.
Cf. Bothe et al. 1982, p. 196.
- 49.
Henckaerts and Doswald-Beck 2005, p. 241.
- 50.
Murray 2016, p. 166.
- 51.
UN General Assembly (2014) Human Rights Council: Resolution 25/38. The promotion and protection of human rights in the context of peaceful protests, UN Doc. A/HRC/RES/25/38, para 15.
- 52.
UN General Assembly (2017) Human Rights Council: Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment: Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment, UN Doc. A/72/178, para 51.
- 53.
Amnesty International and Omega Research Foundation 2015, p. 24. See also European Council Regulation (EC) No. 1236/2005 of 27 June 2005 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment, I OJ L 200/1.
- 54.
Geneva Academy of International Humanitarian Law and Human Rights 2018, p. 19.
- 55.
See Watkin 2006.
- 56.
CWC, above n 30, Articles I(5), II(9)(d).
- 57.
- 58.
Sossai 2010, p. 20. For the position that RCA reliance by UN forces would be potentially illegal, see Fry 2010. A 2004 amendment to Germany’s Law Implementing the Chemical Weapons Convention allows the use of RCAs “by the Federal Armed Forces in deployments within the framework of a system of mutual collective security”. See ICRC 2019.
- 59.
ECtHR, Abdullah Yaşa and Others v Turkey, Judgement, 16 July 2013, Application No. 44827/08, para 30. Moreover, the Court distinguished between the use of RCA and the launching of a tear-gas grenade at the demonstrators, by stressing that “firing a grenade by means of a launcher generates the risk of causing serious injury, as in the instant case, or indeed of killing someone, if the grenade launcher is used improperly”. Ibid., para 42. In addition, see ECtHR, Ataykaya v Turkey, Judgement, 22 July 2014, Application No. 50275/08, para 73:
The Court notes that the violation of the right to life of the applicant’s son, as guaranteed by Article 2 of the Convention, originates once again in a problem stemming from the absence of guarantees as to the proper use of tear-gas grenades. Consequently, the Court emphasises the need to strengthen those guarantees, without delay, in order to minimise the risks of death and injury related to the use of tear-gas grenades.
- 60.
See, e.g., ICRC 2013a.
- 61.
Cf. Crowley 2016.
- 62.
The ICRC has expressed criticism with respect to the conclusions reached in ECtHR, Finogenov and others v Russia, Judgement, 20 December 2011, Applications Nos. 18299/03 and 27311/03: in relation to the use of Fentanyl by the Russian special forces during the Moscow theatre siege incident of 2002,
the Court was not provided information about the specific toxic chemicals used and thus was in a difficult position to judge whether the adverse effects of their use should have been foreseen. The dangerous effects of anaesthetic and sedative chemicals are well known, and were illustrated by the deaths of 129 hostages in this incident and permanent disabilities suffered by survivors. In addition, it is evident that the ‘dose’ of a chemical delivered cannot be controlled in such a tactical situation and that it is extremely difficult, if not impossible, in such situations to provide the immediate medical care that might be characterised as adequate to protect life.
ICRC 2013a, p. 155.
- 63.
OPCW (2017) Joint Paper Aerosolisation of Central Nervous System-Acting Chemicals for Law Enforcement Purposes, Doc. C-22/NAT.5.
- 64.
See Daoust et al. 2002.
- 65.
ICRC 2006.
- 66.
Casey-Maslen et al. 2014, p. 412.
- 67.
United Nations 1990, Principle 3.
- 68.
UN General Assembly (2017) Human Rights Council: Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment: Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment, UN Doc. A/72/178, p. 20.
- 69.
UN Human Rights Committee (2018) General Comment No. 36 on Article 6 of the International Covenant on Civil and Political Rights, on the right to life, UN Doc. CCPR/C/GC/36, para 14. In addition, see Casey-Maslen and Connolly 2017, p. 156.
- 70.
UN General Assembly (2018) Human Rights Council: Resolution 38/11 The promotion and protection of human rights in the context of peaceful protests, UN Doc. A/HRC/RES/38/11, para 16.
- 71.
UN General Assembly (2014) Human Rights Council: Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, UN Doc. A/HRC/26/36.
- 72.
Geneva Academy of International Humanitarian Law and Human Rights 2018, p. 15.
- 73.
See Megret 2008, p. 46.
- 74.
ICRC 2006, p. 951.
- 75.
United Nations 1990, Principle 2.
- 76.
Cf. ECtHR, McCann and Others v The United Kingdom, Grand Chamber Judgement, 27 September 1995, Application No. 18984/91, para 194.
- 77.
See UN Human Rights Committee (2018) General Comment No. 36 on Article 6 of the International Covenant on Civil and Political Rights, on the right to life, UN Doc. CCPR/C/GC/36, para 13: among the measures intended to prevent arbitrary deprivations of life, the Committee mentions, “supplying of forces responsible for crowd control with effective ‘less-lethal’ means and adequate protective equipment in order to obviate their need to resort to lethal force”. Moreover, see UN General Assembly (2016) Human Rights Council: Joint Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, para 54.
- 78.
Cf. Boothby 2016, p. 237.
- 79.
- 80.
See the comments by David Koplow, quoted in Davison and Lewer 2005, p. 27.
- 81.
ICRC 2013b, p. iv.
- 82.
Geiss 2015, p. 19.
- 83.
Melzer 2009, p. 78; Goodman 2013. Contra, Schmitt 2013. Moreover, see UN Human Rights Committee (2018) General Comment No. 36 on Article 6 of the International Covenant on Civil and Political Rights, on the right to life, UN Doc. CCPR/C/GC/36, para 64: “States parties should, in general, disclose the criteria for attacking with lethal force individuals or objects whose targeting is expected to result in deprivation of life, including […] whether less harmful alternatives were considered”. It is noteworthy that the text adopted by the Committee on the first reading contained a reference to the notion of “non-lethal”: “whether non-lethal alternatives for attaining the same military objective were considered”.
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Sossai, M. (2020). The Demands of Future Operations and the Promise of Non- or Less-Lethal Weapons. In: Gill, T., Geiß, R., Krieger, H., Paulussen, C. (eds) Yearbook of International Humanitarian Law, Volume 21 (2018). Yearbook of International Humanitarian Law, vol 21. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-343-6_1
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