Non-Lethal Weapons and the Possibility of Radical New Horizons for the Laws of War: Why Kill, Wound and Hurt (Combatants) at All?

48 Pages Posted: 4 Nov 2008

See all articles by Frederic Megret

Frederic Megret

McGill University - Faculty of Law

Date Written: July 1, 2008

Abstract

It is generally considered unquestionable that the waging of war must involve at the very least the possibility of killing, wounding, and hurting combatants under certain conditions. This article attempts to explore the continued validity of that assumption in light of the emergence of so-called non-lethal weapons. Drawing on the idea of 'necessity' in international humanitarian law, it begins by highlighting the essential contingentness of a concept of war based on lethality. Adopting constructivist insights to the study of war can allow one to reconceptualize war as a highly socially constructed and regulated activity that defines war as much as it is defined by it. From a theoretical point of view, the only legitimate goal of war, under a properly understood concept of necessity, should be 'incapacitation' rather than the 'destruction' of enemy forces. The article explores what it is that has made 'destruction' necessary in war historically and what might make a more systematic use of non-lethal weapons even between combatants a possibility. It argues that a mixture of technological, military, and political dilemmas have been obstacles to the ability to think of war as a 'meaningful' social activity if it does not involve at least the possibility of killing combatants, but that all these factors are susceptible to change. Furthermore, it argues that whether use of non-lethal technology should be made compulsory is ultimately a normative question, and that there are strong arguments that both the ethics of war and international humanitarian law are ever more intolerant of death, be it of combatants. Ultimately, wars that rely much more on non-lethal technology would be very different from war as we know it. International humanitarian law would have a key role in bringing about such a change.

Keywords: laws of war, humanitarian law, weapons, non-lethal weapons, necessity, proportionality, icrc

Suggested Citation

Mégret, Frédéric, Non-Lethal Weapons and the Possibility of Radical New Horizons for the Laws of War: Why Kill, Wound and Hurt (Combatants) at All? (July 1, 2008). Available at SSRN: https://ssrn.com/abstract=1295348 or http://dx.doi.org/10.2139/ssrn.1295348

Frédéric Mégret (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec
Canada

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