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Abstract
The concept of noncombatant immunity prohibits the intentional targeting of noncombatants. The availability of nonlethal weapons (NLW) may weaken this prohibition, especially since using NLWs against noncombatants may, in some cases, actually save the noncombatants’ lives. Given the advancement of NLWs, I argue that their probable appearance on the battlefield demands close scrutiny due to the moral problems associated with their use. In this paper, I examine four distinct cases and determine whether the use of NLWs is morally permissible. While it seems that the reduced harm caused by NLWs makes their use more acceptable, adhering to noncombatant immunity requires more than not killing noncombatants. It also requires that military forces treat noncombatants a certain way. In the cases I present, to use NLWs against noncombatants treats them as combatants and coerces them to do something against their will. While a consequentialist foundation for noncombatant immunity may permit this action, a rights-based concept of noncombatant immunity does not. I contend that only a rights-based concept of noncombatant immunity is viable, and that the availability of NLWs should not significantly alter the prohibitions prescribed by noncombatant immunity.
The views expressed in this paper are those of the author and do not reflect the official policy position of the Multi-National Security Transition Command-Iraq, Department of the Army, Department of Defense, or the US Government.
The views expressed in this paper are those of the author and do not reflect the official policy position of the Multi-National Security Transition Command-Iraq, Department of the Army, Department of Defense, or the US Government.
Acknowledgements
I want to thank Dr. Richard Schoonhoven for his suggestions on a draft of this paper that helped me clarify the rights/consequentialist conflict, expand the analysis of each case, and make a distinction between the Russian and NYC cases.
Notes
The views expressed in this paper are those of the author and do not reflect the official policy position of the Multi-National Security Transition Command-Iraq, Department of the Army, Department of Defense, or the US Government.
1. Even though ‘our right not to be attacked is a feature of normal human relationships’, it is permissible to attack and harm soldiers because of the nature of war and the fact that soldiers are acting as agents of the state. Noncombatants, even if they are citizens of the enemy state, maintain the immunity that soldiers lose (Walzer Citation2000: 136, 145).
2. There is, of course, a limit to the risk that soldiers are required to take. While members of the military do lose noncombatant rights, they are owed a certain respect as people and should not be treated as expendable military equipment. One day, they will return to life as noncombatants and will live among those they used to defend.
3. Noncombatants who pick up weapons lose their noncombatant immunity. It is only this sort of action, either voluntary or involuntary, that causes a person to lose her noncombatant immunity. The fact that a noncombatant cheers for her side to win, or speaks out against an occupying army, does not cause that person to lose the protection that noncombatant immunity provides.
4. To further define what a being a direct threat entails, consider those who collected cans and nylons during World War II. They were certainly contributing to the war effort, but they should not have been targeted since their contribution was not a direct threat. In certain situations, it may be permissible to use NLWs against noncombatants who are rioting. The noncombatants would constitute a threat, but not one serious enough to allow the use of lethal weapons.
5. Persuading the noncombatants to leave, or offering them compensation for leaving, would be morally acceptable. Under these circumstances, the noncombatants are choosing to leave, despite the fact that the presence of war, and the threat of unintended harm, is somewhat coercive.
6. Removing the noncombatants from the scene may eliminate the bad publicity that a military force would receive due to collateral damage, and it may also allow a military force to attack a target that it could not attack (due to its own rules of engagement) when the noncombatants were present. Thus, the combatants are acting against the noncombatants for a military purpose. This is a violation of NCI.
7. This can only be done when notifying the noncombatants does not make the mission impossible to accomplish.
8. Forcing the enemy to kill noncombatants usually promotes the guerrilla's cause because the enemy is blamed for the deaths.
9. This was the problem with the Russian use of tear gas that I referred to earlier. The tear gas targeted everyone in the theater; it was not possible to single out the terrorists.
10. The situation is different when the noncombatants intentionally aid enemy combatants through their actions. In this instance, the noncombatants would begin to lose some of their noncombatant rights. Depending on the degree of their assistance and the value of the target, combatants might be allowed to use NLWs against the noncombatants or, at the very least, would not possess as strong of an obligation to minimize harm to the noncombatants.
11. The consequentialist view is enticing because not only does it increase the number of potential targets, but it also may reduce noncombatant casualties. Again, this involves noncombatants in the war in a way that they shouldn't be.
12. If the NLW were a precision weapon, it would seem morally preferable to use it against the enemy combatant versus a lethal weapon. The risk of unintended harm would be lower since the NLW would not kill any bystanders that were accidentally hit.
13. For example, if after bombing the factory, the production capability of the factory was destroyed, but many of workers were alive and hiding in the employee lounge, we wouldn't launch a second attack to destroy the lounge and kill the workers. The workers are also not susceptible to attack while in their houses (even if supplied by the factory) or off duty.
14. At the very least, the factory workers should receive some sort of warning in advance of the attack. Ignoring warnings, or even working in a building designated as a military target, means that noncombatants assume greater risk.