NON-LETHAL WEAPONS

THE PRINCIPLE OF PROPORTIONALITY IN ARMED CONFLICT AND THE RIGHT TO HEALTH IN LAW ENFORCEMENT

Abstract

If thinking about weapons, one generally thinks about lethal technology.
However, an abundance of so-called non-lethal weapons, a technology not
aimed at killing but merely incapacitating the human target or military objective,
is also being deployed both within and outside the ambit of armed conflict. Since
non-lethal weapons do not necessarily implicate a zero chance of mortality, but
often lead to severe wounds and tremendous suffering, the use and deployment
of such weapons raise strong humanitarian and human rights concerns.
The prohibition to cause superfluous injuries and unnecessary suffering, as well
as the prohibition of indiscriminate attacks are, amongst others, one of the most
relevant provisions potentially having an influence on the deployment of nonlethal
technology in armed conflict. However, the invocation of the principle of
proportionality may lead to the justification of the use of non-lethal weapons
on the grounds that the military advantage anticipated was greater than the
human suffering caused. Insofar, one must ask whether there is a “red-line”;
where the almost inflationary invocation of the principle of proportionality may
defeat the object and purpose of the Geneva Conventions and therefore render
the deployment and use of non-lethal technology illegal.
Apart from the battlefield, non-lethal weapons are also being deployed in lawenforcement
scenarios, where human rights law plays a pivotal role. In this
regard, one must not look merely at the prohibition of torture and inhuman
or degrading suffering and the right to life but also at the right to health, a
presumably underestimated principle curbing and shaping the use of non-lethal
technology outside the ambit of armed conflict.