Siddharth Chaturvedi
Introduction
In recent times, the proliferation of Directed Energy Weapons has increased significantly throughout nations. As the name suggests, Direct Energy Weapons use energy instead of other technology, such as bullets or missiles. This kind of energy can be in the form of lasers, electromagnetic impulses, high-power microwaves and so forth. Several countries across the world have been investing in the development of Directed Energy Weapons. Testing, enhancement and regulation are the emerging focus of the USA’s Department of Defense. These contemporary weapons of warfare are being utilized for diverse purposes, such as neutralizing incoming ballistic missiles, deploying them in attacking enemy positions and a plethora of other purposes.
The DEW have stealth-like characteristics, they are hard to detect or intercept and may range from lethal to non-lethal as well. They can obliterate virtually communications, radio and radar systems, causing severe damage to critical navigation and information infrastructure in a matter of few minutes. Unlike conventional weapons of mass destruction, certain types of DEW have no potential effects on the physiology of humans.
However, the magnitude of the usage of Directed Energy Weapons and their recent advancement raises significant issues in relation to whether these weapons can be brought within the purview of any Arms Control Regime. This piece asserts that it is imperative to bring Directed Energy Weapons within the ambit of a new Arms Control Regime, considering the fact that existing laws fail to address the concerns emanating from the usage of Direct Energy Weapons. It does so by recognising the fact that there has been a huge growth in Directed Energy Weapons. Secondly, it explores the debate about categorisation of Directed Energy Weapons as a lethal weapon or a non lethal weapon. The piece draws the importance of International Humanitarian Law to point out the necessity of bringing Directed Energy Weapons within the ambit of a new Arms Control Regime. Lastly, it points out the reasons due to which existing laws will not be sufficient to deal with Arms Control Regime and concludes by emphasing the role of lawmakers while regulating the trade of Directed Energy Weapons.
The Growth of Directed Energy Weapons
The history of Directed Energy Weapons traces its genesis to the Cold War Era when there was a rambling arms race between Russia and USA. Popularly referred to as the ‘Stars Wars Campaign’, President Ronald Reagan had envisaged a world where nuclear weapons would be rendered obsolete due to the counter-attack by laser beams and other types of Directed energy weapons. It will be worth pointing out that during the Cold War Era, there was a series of treaties which were signed in order to prohibit an arms race between two superpowers. While much attention was paid to prohibiting the development of Inter-Continental Ballistic Missiles, the development of Directed Energy Weapons did not receive much attention. Thus, the exponential and unwarranted growth of these weapons remained unchecked during the Cold War and the post-Cold War era.
Non-lethal v. Lethal- Implications in the Regulatory Regime
There exists a grey area over whether Direct Energy Weapons should be categorized as Lethal Weapons or Non-Lethal Weapons. This dilemma exists due to multiple considerations of collateral damage, legitimizing missions, civilian casualties, international humanitarian standards of use of force, and certain ethical aspects of the use of DEW. There is a need to evaluate the issue of the applicability of laws to lethal and non-lethal weapons and how regulatory regimes should be evolved to embrace these types of weapons in warfare.
I) Non-Lethal Impact of Direct Energy Weapons
According to the US State Department of Defense, Non-lethal weapons are “weapons that are explicitly designed and primarily employed so as to incapacitate personnel or materiel, while minimizing fatalities, permanent injury to personnel, and undesired damage to property and the environment.” ICRC defines Non-Lethal Weapons “as those weapons which are designed to incapacitate rather than to kill.” To illustrate the idea of non-Lethal weapons, we may look at the ‘Vehicle-Mounted Active Denial System’, which is a U.S. mobile device using directed energy . It deploys heat rays in millimeter waves at the velocity of light, which permeates just about 1/64 of an inch in human skin, causing an instant sensation of heat. It is interesting to note that this Non-Lethal Direct Energy Weapon had also caused second-degree burns, which required immediate medical attention.
II) Lethal Impact of Direct Energy Weapons
The US Department of Justice defines Lethal Weapons as those weapons which are capable of inflicting bodily injury. A contrasting aspect to this is the lethal impact of microwaves that are used in certain other types of Directed Energy Weapons on the central nervous systems, causing symptoms of what is usually referred to as the Havana Syndrome. It becomes pertinent to identify the exact causes or triggers of this syndrome because these potentially harmful electromagnetic waves produce less traceable but grave effects on humans, such as nausea, anxiety, nervous breakdown, social dysfunction, etc. A comprehensive assessment by the US National Academies of Sciences, Engineering and Medicine produced conclusive evidence of a real impact of human harm due to radiations emanating from DEWs. The report highlighted the fact that prolonged exposure to Direct Energy Weapons can lead to skin burns and dermal damage and can potentially access nerves, glands and vessels.
III) Should Direct Energy Weapons be categorized as Lethal Weapons or Non-Lethal Weapons?
The range of directed energy weapons is so diverse that it becomes hard to ascertain a specific line of discourse to define and distinguish the ambit of non-lethal from lethal weapons. However, efforts must be made to address this grey area since these weapons are at the cusp of deployment and widespread usage. To unleash the emerging capacities and foster the growth of revolutionary technologies, as well as aid in framing regulatory regimes and disarmament, it is quite pertinent to solve the current dilemma.
International legal principles have mandated parameters for the proportional use of force, in line with Article 51 of the Charter of the United Nations, where proportionality as a doctrine was propounded in the Caroline and McLeod cases. Proportionality as a principle of customary international law has been recognised in the Nuclear Weapons Case by the International Court of Justice (“ICJ”). The Court in Nuclear Weapons Case had observed that the use of force, which is proportionate in nature, is required to meet the requirements of rules of International Humanitarian Law. The state practices of various countries, such as the United Kingdom, suggest that one needs to minimize the harm caused to the civilian population by using weapons which are likely to cause less destruction. It becomes clear that the principle of proportionality requires that militaries cautiously control the use of Direct Energy Weapons and make their deployment in a manner to minimize risks, injury and hazards.
It will be worth mentioning the approach of ICRC while categorizing a weapon as causing superfluous injury or not. This approach of ICRC has been well summarized by David P Fidler. The ICRC takes into consideration whether the weapon-specific disease or abnormal psychological state, field mortality of more than 25%, large wounds and effects for which there is no well-recognised and proven treatment. Though Direct Energy Weapons meet two criteria, that abnormal psychological state and no recognised proven treatment, the other two criteria are not met. However, in the author’s opinion, this approach can be discarded considering the fact that it takes into account only traditional weapons and not the new ones like Direct Energy Weapons. These weapons may not cause mortality but at least cause significant harm in the long run.
It is essential to keep in mind that Article 35 of the Protocol Additional (I) to Geneva Conventions clearly states that “ In any armed conflict, the right of parties to the conflict to choose methods or means or warfare is not unlimited.” The same Article also prohibits the usage of weapons which cause ‘superfluous injury or unnecessary suffering.’ In the Yugoslavia Case, it was stated by the Military Tribunal that “employment of weapons calculated to cause unnecessary suffering is regarded as a violation of laws and customs of war giving rise to individual criminal responsibility.” The potential of Directed Energy Weapons can definitely be seen as causing suffering since they can be used in order to temporarily disable satellite operations. Thus, it becomes abundantly clear that these Directed Energy Weapons can be used during the time of war to cause large-scale disruption to humanity. It must also be recalled at this juncture, that in the case before ICJ considering the use of nuclear weapons, it was held by it that at the heart of International Humanitarian Law lies the “overriding consideration of humanity.” Therefore, in light of the above legal developments, the authors suggest that Direct Energy Weapons must be considered to be “Lethal” in nature. This assertion can also be supported by the fact that above discussion regarding a Non-Lethal Weapon Vehicle-Mounted Active Denial System had also caused second degree burns which required medical attention. Thus, any difference between Non-Lethal Weapon and Lethal Weapons appears to be superficial.
Regulating the Trade of Directed Energy Weapons
With the global Directed Energy Weapons Market expected to reach almost sixty billion dollars by the end of 2027, there is a strong case to regulate its movement across territories and continents. The industry of Directed Energy Weapons has shown exponential growth and is expected to gain an increased share in the Asia Pacific Region. Many global companies, such as Lockheed Martin, have already launched their products using DEW applications which are being inducted into specific segments of the United States Military, such as the Navy.
The events mentioned above give a clear call to the nation-states to develop a new mechanism in order to control and regulate the trade of Directed Energy Weapons. The Arms Trade Treaty, which entered into force in the year 2014, prohibits the transfer or exports of certain conventional weapons such as “battle tanks, warships, combat aircraft, etc.” However, the treaty has failed to mention anything about weapons which can be deemed as “unconventional” in nature, such as unmanned aerial vehicle systems, Directed energy weapons and so on. At the same, major states, such as India, have refused to join this treaty as the nation believes that it fails to address many of the issues that surround the export of weapons to terror states. Thus, in order to fit in Directed Energy Weapons and other disruptive technologies which pose a threat to humanity, a significant number of changes will be required in the Treaty. However, this may prove to be a difficult task since this will require amending Article 1 of the Treaty itself, which declares that this treaty shall govern the “regulation of the international trade in conventional arms.” Therefore, states will have to agree on broadening the scope of the treaty by amending Article 1 of the Treaty.
The Need for a Separate Arms Control Regime for Directed Energy Weapons
In today’s standing, there are different multilateral agreements aimed at controlling or restricting the usage of highly destructive weapons (particularly nuclear weapons). There are a number of multilateral treaties which are aimed at controlling the development of nuclear weapons. The most prominent among those treaties is the Nuclear Non-Proliferation Treaty, which prohibits the development of nuclear weapons, notwithstanding its criticism regarding giving exclusivity to the Security Council regarding the same. Another treaty, referred to as Intermediate-Range Nuclear Forces Treaty, aims at the reduction of different kinds of weapons such as “ballistic missiles, cruise missiles, intermediate missiles” and so on. Thus, a multitude of bilateral treaties and multilateral series have focused on prohibiting and controlling the development of missiles and nuclear weapons. These treaties, as stated earlier, do not leave any scope for bringing Directed Energy Weapons within their ambit.
At the same time, there exists a possibility of bringing Directed Energy Weapons within the ambit of the Missile Technology Control Regime. This hope arises due to the fact that the MTCR regime includes a wide range of weapons, such as nuclear weapons, Chemical Weapons and Biological Weapons. MTCR Regime has also expanded its list to include unmanned aerial vehicles which are capable of carrying cruise missile systems, target drones and reconnaissance drones. It must be kept in mind that the basic idea of bringing these within the purview of MTCR, these weapons are to prohibit “the weapons of mass destruction”. However, there is little literature to support the assertion that direct energy weapons can potentially cause mass destruction. Indeed, the definition provided by UN Commission for Conventional Armament states that “atomic explosive weapons, radioactive material weapons, lethal chemical and biological weapons, and any weapons developed in the future which have characteristics comparable in destructive effect to those of the atomic bomb or other weapons mentioned above”, however, the scale of its destruction has still to be assessed and quantified in its comparison with other kinds of weapons which have been mentioned in the MTCR Regime. There is also an urgent need to revamp the Laser Protocols. This is due to the fact that the Laser Protocol focuses exclusively on preventing blindness resulting from the deployment of laser weapons. It becomes clear that Laser Protocols cannot alone complement the applicability of International Law, specifically International Humanitarian Law. Thus, in view of existing treaties not being able to address the regulation of Direct Energy Weapons, it becomes necessary to have a separate arms control regime.
Conclusion
The current legal structure, through multilateral treaties and international conventions, as it exists in the world today, provides little or no scope for fitting in a comprehensive set of provisions for the control and regulation of Directed Energy Weapons. Therefore, there is an urgent need to frame a new ‘Arms Control Regime’, which exclusively focuses on newly emerging technologies such as Directed Energy Weapons, Unmanned Aerial Vehicles and other kinds of modern weapons of warfare. The weapons mentioned above are now just not a part of H.G. Well’s fictional universe but very much a part of the real world. The law has to be abreast of the changes occurring otherwise, the lawmakers would have to rely on ex-post regulation, which lets the market and its operating forces shape the law.
The theatre of warfare in the 21st Century has changed significantly since the Cold War era. The weapons, which were epitomized and hailed for bringing peace in the world, i.e., the nuclear weapons, are increasingly losing their credibility of bringing deterrence, considering the phenomenal growth of newly emerging disruptive technologies. New regulation for Directed Energy Weapons also fits in well with the idea of disarmament and control regime, bringing stability to the proliferation of Directed Energy Weapons. One hopes that this piece does well to address some of the challenges facing the regulators in relation to newly emerging technologies and gives a fillip to frame a new arms control regime. The need for a separate arms control regime is a much needed step since some have also recommended the usage of Direct Energy Weapons to kill people during armed conflict. However, it remains to be seen as to how well lawmakers across the globe address the challenge of regulating Direct Energy Weapons through a multilateral regime and how they ensure that Direct Energy Weapons operate within the realm of the law.
The author is a student at Dharmashastra National Law University, Jabalpur.
NUALS Law Journal 