Shane Blank

The Active Denial System A Legal Review of The US Militarys Latest Non-Lethal Weaponry System

Shane K Blank Law of War 2012

I INTRODUCTION

The early twenty-first century has been a trying time for the US military Harkening

back to the days of the Redcoats and American rebels the US military has become the visually

obvious standardized army regularly engaged in combat scenarios with guerilla-like combatants

who are often visually indistinguishable from civilians Wbether engaged in skirmishes with Al

Qaeda the Taliban or Somali Pirates the US military is faced with the unenviable task of

abiding by the principles of distinction and targeting while simultaneously putting its own

personnel in precarious positions attempting to ascertain the combat status of nearby persons

The Active Denial System (ADS) a non-lethal electromagnetic weapon device attempts

to fill an important gap in the current US military arsenal With the ADS the US military gains

an important long-range non-lethal alternative to stop deter and turn back an advancing

adversary) But the question remains whether the current ADS design abides by the Law of

Armed Conflict (LOAC) This paper discusses and analyzes the various elements of LOAC as

applied to the ADS It begins with an oveniew ofADS history purpose and capabilities It then

considers the principles of distinction proportionality military necessity and unnecessary

suffering as applied to the ADS Finally several hypotheticals are presented to demonstrate the

application of LOAC principles to common scenarios the ADS is likely to be utilized in

j JOINT NON-LETHAL WEAPONS PROGRAl1 DEPARTMENT OF DEFENSE ACTIVE DENIAL SYSTEM (ADS) FACT SHEET wwwkirtlandafmilsharedimediaidocumentAFD-070404-026pdf (last visited Apr 7 2012) [hereinafter ADS FACT SHEET]

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II OVERVIEW OF THE ACTIVE DENIAL SYSTEM

A HISTORICAL DEVELOPMENT amp TECHNOLOGICAL CONCEPT

Since the early 1980s US military scientists have experimented vith the application of

non-lethal directed-energy weaponry in battlefield situations2 Scientists hypothesized that such

weapons could effectively repel human targets by inducing an intolerable burning sensation in

the targets skin-capable of causing instantaneous reflexive reactions vhich act to neutralize the

target3 In 2006 the culmination of this research was announced to the public dubbed the Active

Denial System (ADS) )

The technology behind the ADS is relatively complex The ADS is often mistakenly

called a microwave weapon by the layman when in fact it utilizes millimeter waves-an

important distinctions As compared to millimeter waves microwaves have a substantially longer

wavelength enabling deep invasive penetration of the target6 In contrast millimeter waves are

ultra-short wavelengths that necessarily limit their ability to penetrate the target 7 In eHect

millimeter waves are capable of penetrating only the surface layer of the targets skin whereas

microwaves are capable of penetrating deeply into the targets internal organs 8

2 Douglas V McKechnie Don t Daze Phase or Lase Afe Bra Fourth Amendment Excessive-Force Claims Future Nonlethal Weapons and Why Requiring an Injury Cannot Hithstand a Constitutional or Practical Challenge 60 U KAN L REV 139 184 (2011) see also JOINT NON-LETHAL PROGRA1 DEPARTMENT OF DEFENSE ACTIVE DENIAL SYSTEM FREQUENTLY ASKED QUESTIONS available at httpjnlwpdefensegov pressroomfaqy2htmlQ4 (last visited Apr 72012) [hereinafter ADS FREQUE1TLY ASKED QUESTIONS]

sId see also ADS CONCEPT amp TEClfOLOGY infra note 4 at 6 ~ Susan LeVine CTR FOR TECH amp NATL sect POLICY ~ArL DEF U-IV THE ACTIVE DENIAL SYSTEM A

REVOLUTIONARY NON-LETHAL WEAPON FOR TODAYS BATTLEFIELD 10 (2009) available at http wwwndueduCTNSPdocUploadedIDTP206520Active20Defense-20PO2060032pdf (last visited Apr 7 2012) [Hereinafter ADS CONCEPT amp TECHNOLOGY]

j Id at 2 ( Microwaves operate at a frequency of approximately 25 GHz with a corresponding wavelength of 47

inches see ADS CONCEPT amp TECHlOLOGY supra note 4 at 2 see also ADS FACT SHEET supra note 1 ~ Millimeter waves operate at a frequency of 95 GHz with a corresponding wavelength of approximately

1I64th of an inch-about the thickness of three sheets of paper see ADS CONCEPT amp TECHlOLOGY supra note 4 at 2 see also ADS FACT SHEET supra note I

See Jurgen Altmann Millimetre Waves ACOUSTIC FOR NON-LETHAL WEAPONS PHYSICS A1ALYSES AraquoD l--JFERENCES 14 (2008) available at httpwwwbundessriftung-friedensforschungdepdf-docs berichtaltmann2pdf [hereinafter ADS PHYSICS ANALYSES A1D INFERENCES]

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B SAFETY CONSIDERATIONS

Extensive twelve-year-Iong testing on the millimeter waves effect on human targets

suggest it is properly classified as a safe non-lethal alternative 9 There have been over 11000

human exposure to the ADS with only two known injuries having occurred that required

medical attention l0 In most cases the adverse effects of the ADS are limited to temporary skin

blisters II Additionally the millimeter waves used by the ADS have shown no associated

radioactive effect 12 Thus research shows there is approximately a one precent (1 ) chance of

injury from ADS exposure with normal self-protective behaviors-such as eye blink head

turning and aversion responses-minimizing the majority of potential injury 13 Furthermore it

should be noted that the burning sensation induced by the ADS immediately ceases when the

target moves out of the millimeter wave beam and that the ADS incorporates both hardware and

software systems limiting shot duration and beam power to achieve safe non-lethal repellant

effects 14

C PROPOSED PURPOSE

The US military has stated that the ADS has an effective range beyond small arms

range with a maximum range of approximately 500 meters IS Thus the ADS stands as the first

of its kind to offer safe non-lethal capabilities at ranges exceeding small arms 16 In fact the

ADS maximum range is nearly ten times that of other non-lethal weapon alternatives 17 The

Department of Defense has stated that the ADS unique long-range non-lethal capabilities are

9 See ADS FREQUENTLY ASKED QCESTIONS supra note 2 at Q 10 10 These injuries were both second-degree bums fd at QI0-11 II Jd at QI0 12 fd at Q8 13 fd at QIO u ld see also ADS FACT SHEET supra note 1 15 See ADS PHYSICS ANALYSIS AND INFERENCES supra note 8 at 15 16 See ADS FACT SHEET supra note I r See ADS FREQUENTLY ASKED QUESTIONS supra note 2 at Q2

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designed to protect the innocent minimize fatalities and limit collateral damagelg

Specifically the ADS is intended to support a full range of operations including crowd control

mob dispersaL checkpoint security area deniaL port protection infrastructure protection and

clarification of intent (identifying combatants from non-combatants)19

III DISTINCTION amp TARGETING

Though the principle of distinction has long been part of customary law it is codified in

Additional Protocol 1 Article 48

In order to ensure respect for and protection of the civilian population and civilian objects the Parties to the conflict shall at all times distinguish between the civilian population and combatants and bentmiddoteen civilian objects and military objectives and accordingly shall direct their operations only against military objectives

Thus in the context of weapon review the principle of distinction asks whether a

particular weapon system would be discriminate in not placing civilians at a greater risk than

alternative weapon systems While not as focused as a single sniper round being perhaps the

epitome of the LOAC principle of distinction the ADS is capable of highly focused directional

beams2o Despite being an energy-based weapon the ADS retains the accurate targeting abilities

of other conventional weapons at ranges exceeding 500 meters on clear days21 The beam

remains at a constant size out to a particular distance--dependent on the radius of the beam waist

-where it then begins to expand in size22 This expansion in the size of the beam is mitigated

however because the intensity of the beam would correspondingly drop in proportion to the

beams grow1h 23 Therefore the ADS beam is capable of precise fire aimed at specific targets

18 See ADS FACT SHEET supra note 1 19 See ADS FREQlENTLY ASKED QmSTIO)S supra note 2 at Q2 2U Id at Q7 11 See ADS PHYSICS At-ALYSIS AND INFERE)CES supra note 8 at 26

Id at 20 23Id

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designed to protect the innocent minimize fatalities and limit collateral damagelg

Specifically the ADS is intended to support a full range of operations including crowd control

mob dispersaL checkpoint security area deniaL port protection infrastructure protection and

clarification of intent (identifying combatants from non-combatants)19

III DISTINCTION amp TARGETING

Though the principle of distinction has long been part of customary law it is codified in

Additional Protocol 1 Article 48

In order to ensure respect for and protection of the civilian population and civilian objects the Parties to the conflict shall at all times distinguish between the civilian population and combatants and bentmiddoteen civilian objects and military objectives and accordingly shall direct their operations only against military objectives

Thus in the context of weapon review the principle of distinction asks whether a

particular weapon system would be discriminate in not placing civilians at a greater risk than

alternative weapon systems While not as focused as a single sniper round being perhaps the

epitome of the LOAC principle of distinction the ADS is capable of highly focused directional

beams2o Despite being an energy-based weapon the ADS retains the accurate targeting abilities

of other conventional weapons at ranges exceeding 500 meters on clear days21 The beam

remains at a constant size out to a particular distance--dependent on the radius of the beam waist

-where it then begins to expand in size22 This expansion in the size of the beam is mitigated

however because the intensity of the beam would correspondingly drop in proportion to the

beams grow1h 23 Therefore the ADS beam is capable of precise fire aimed at specific targets

18 See ADS FACT SHEET supra note 1 19 See ADS FREQlENTLY ASKED QmSTIO)S supra note 2 at Q2 2U Id at Q7 11 See ADS PHYSICS At-ALYSIS AND INFERE)CES supra note 8 at 26

Id at 20 23Id

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Inherent to the concept of distinction is the duty to take reasonable steps to determine

whether or not a person or object is a legitimate target2-l Likevise Additional Protocol 1 Art

522 requires that all attacks be limited strictly to military objectives offering a definite military

advantage-the principle oftargeting25 Considering the language of Art 48 and Art 522 It is

important to emphasize the ADS does not eliminate the need for either distinction or targeting

simply because it utilizes non-lethal means of attack Neither Additional Protocol 1 Art nor

Art 48 carve out a special exception for non-lethal engagement Rather any military attack no

matter its type or consequence is to be limited in scope and directed only against enemy

combatants and military objectives offering a definite military advantage not against civilians

One advantage to the ADS when engaging against lawful target is the near absence of

collateral damage Though discussed more fully under the subsection of proportionality the

absence of collateral damage given the nature of the ADS as a non-lethal weaponry system

enables lawful targeting of certain objectives with the ADS that might otherwise violate the

principles of LOAC when using conventional weaponry-such as targeting one lone

unsuspecting (but highly dangerous) combatant in a group often or even twenty civilians

Perhaps the greatest benefit of the ADS under the principles of distinction and targeting

however is its ability to completely bypass any implications of civil objects and protected

structures per Additional Protocol 1 Art 52-55 26 Because the millimeter lave beam of the ADS

U Christopher Greenwood Customary law Status of the 1977 Geneva Protocols in Astrid lM Delissen and Gerard 1 Tanja Humanitarian law of Armed Conflict Challenges Ahead (Dordrecht Martinus Nijhoff 1991) 109

25 Additional Protocol 1 Art 522 states Attacks shall be limited strictly to military objectives Insofar as objects are concerned military objectives are limited to those objects which by their nature location purpose or use make an effective contribution to military action and whose total or partial destruction capture or neutralization otTers a detlnite military advantage

Chapter III ofAdditional Protocol I encompassing Articles 52 through 55 protect a wide range of civilian objects including cultural structures religious places of worship structures necessary for the survival of civilians and the environment at large

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has no appreciable effect on non-organic materials the ADS can fully engage combatants in and

around cultural structures places of worship and other protected civilian objects This comes as

an obvious boon to the US military who may have a more difficult time justifying the use of

damaging conventional weapons against isolated combatants in and around civilian objects

IV PROPORTIONALITY

The concept of proportionality is split amongst two articles ofAdditional Protocol 1

First Additional Protocol 1 Art 515(b) describes what might constitute the violation of

proportionality

An attack which may be expected to cause incidental loss ofcivilian lift injury 10 civilians damage to civilian objects or a combination thereof thich would be excessive in relation to the concrete and direct military advantage anticipated

Furthermore Additional Protocol 1 Art 572(b) required that

An attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or that the attack may be expected to cause incidental loss ofhuman Ite injury to civilians damage to civilian objects or a combination thereof which would be excessive in relation to the concrete and direct military advantage anticipated

Thus by its nature the concept of proportionality is relevant only to attacks that involve

civilians as collateral damage 27 Furthermore the principle of proportionality acts as a sort of

balancing test between the direct military advantage anticipated by the attack and the loss of

civilian life or destruction of civilian objects28 Directly related to proportionality then is the

concept of discrimination whereby the use of indiscriminate weapons such as cluster bombs or

high-yield explosives necessarily raise issues of proportionality As mentioned under the

r Gary D Solis THE LAW OF ARVIED CONFLICT INTERNATIONAL HCtvtANiTARIAN LAW IN WAR 274 (2010) [Hereinafter LAW OF WARl

2X ld

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targeting analysis above proportionality plays a key factor in whether a target is a legitimate

military objective in light of the expected civilian collateral damage 29

The ADS adds the most value to the US militarys arsenal under the principle of

proportionality~providing the military much more flexibility in highly urbanized areas Because

the loss of civilian life or destruction of civilian objects must be clearly disproportionate to the

military advantage anticipated it will be rare indeed when the ADS is view as being an excessive

use of force relative to the military advantages gained30 In fact given the ADS extremely low

possibility of medically significant harm it is difficult to say the ADS presents any

complications under the principle of proportionality Additional Protocol I Art 525(b)

specifically reference attacks which are expected to cause incidental loss of civilian life injury

to civilians [or] damages to civilian objects Both incidental loss of life and damage to

civilian objects are essentially nullified by the nature of the ADS as a non-lethal weaponry

system The ADS has no documented cases of death nor does it have any appreciable effect on

non-organic materialsY Thus the question seemingly falls on the scope of what constitutes an

injury to civilians

Given the context in which Additional Protocol 1 is used--ombat situations using any

number of conventional weaponry~it is difficult to say Additional Protocol 1 meant anything

more than medically significant injuries to civilians32 The painful burning sensations of the

ADS alone would not seem to rise to that level of injury for which Art 515(b) is ordinarily

invoked Still even if such an injury were suftIcient to invoke Art 515(b) it must still be an

29d at 275 30d at 274 (emphasis added) 31 See ADS CONCEPT amp TECHlOLOGY supra note 4 at 5-7 3 Certainly Additional Protocol 1 would not contemplate the harm done to a civilian who was merely pushed

down by a soldier trying to clear the way In that same vein the arbitrary damage done by the ADS-a limited-duration burning sensation-would seem an insignificant concern of the original drafters of Additional Protocol 1

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injury which is excessive to the military advantage anticipated Understanding that civilians can

never be the direct object of an attack under the principles of distinction and targeting it is

difficult to imagine a scenario where the minuscule non-medically-significant harm produced by

the ADS would ever outweigh its use when targeting any military objective whatsoever

I do not ignore the fact that the ADS system has two documented cases of medically

significant injuries 33 However it should first be noted that these injuries occurred before the

implementation of software upgrades and compliance process that have since mitigated the

possibility of the sort of prolonged exposure necessary to inflict such injury34 Furthermore Art

515(b) states that it is only those attacks which are expected to cause injury to civilians that

violate proportionality35 Given that the millimeter wave beam of the ADS has only a 1 chance

of producing medically significant injuries it is difficult to suggest the US militarys use of the

ADS would ever invoke an expectation that it might cause actual injury to civilians 36

Thus the ADS seemingly could only ever violate the principle of proportionality where it

has also violated the principles of distinction and targeting Because there must be a clearly

excessive harm to civilian life or objects relative to the military advantage gained it is only when

the ADS has been used in speculative circumstances that it might violate proportionality For

example using the ADS to clear a crowded road of civilians-where there is only a vague

suspicion that one of them may be dangerous--could potentially violate proportionality because

even a 1 change of significant injury to civilians would likely outweigh a purely speculative

anticipated military advantage The military in this scenario fails distinction and targeting

33 Recall that there were two second-degree bum cases during initial studies of the ADS See ADS FREQUENTLY ASKED QUESTIONS supra note 2 at Q II

3-1ld 35 See LAW OF WAR supra note 27 at See also Additional Protocol 1 art 515(b) (an attack which may be

expected to cause injury to civilians which would be excessive in relation to the concrete and direct military advantage anticipate [violates the principle of proportionality])

36 See ADS FREQUEXfLY ASKED QUESTIONS supra note 2 at QII (emphasis added) -8shy

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because it targets civilians first with hopes of achieving a military advantage second likewise it

fails proportionality because the military advantage sought is too attenuated from the harm

befalling the targeted civilians In fact Art 515(b) requires that the anticipated military

advantage be both concrete and direct and so ADS engagement based upon purely speculative

intel would likely always be seen as excessive no matter how minimal the possibility of harm to

civilians might be

V MILITARY NECESSITY

In attempting to limit the means of warfare in a way that respects basic humanitarian

notions the Hague Convention IV Art 22 states

( The right ofbelligerents to adopt means ofinjuring the enemy is not unlimited

The great French military leader Napoleon Bonaparte summarized the principle of

military necessity when he said every injury done to the enemy even though permitted by the

rules is excusable only so far as it is absolutely necessary everything beyond that is criminaL37

Accordingly military necessity is inextricably linked to the core principles of unnecessary

suffering and proportionality38 For purposes of weapon system analysis military necessity is a

consideration of the strategic usefulness of a particular weapon system weighed against the

counterbalancing principle of unnecessary suffering39 In essence a balancing test is applied to

determine whether the positive strategic usefulness of a particular weapon system outweighs the

negative suffering it is likely to cause Military necessity aims to block the notion that war

permits doing whatever it takes to win4o

Geoffrey FA Best WAR AND LAW SINCE 1945242 (Oxford Clarendon Press 1994) 3R See LAW OF WAR supra note at 259 39 For example a legal review of depleted uranium rounds balanced the hazards it caused (suffering) against the

potential utility such rounds have in anti-ann or engagements (military necessity) Balanced against one another the review detennined the necessity for such rounds outweighed the suffering caused-thus such rounds did not constitute unnecessarv suffering Id at 263

~o Id at 259 ~

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At its core the ADS was created as a viable non-lethal alternative to conventional

weaponry which limits the collateral suffering caused to civilians while providing an option of

neutralizing enemy combatants over mortally wounding them4l In essence the ADS was created

to maximize the US militarys non-lethal effectiveness while minimizing suffering

The high military utility of the ADS cannot be overstated Previous non-lethal

alternatives while generally effective were severely limited in range--often less than 50

meters42 Equally such weapons rarely carried a universal effect with physical distance enemy

body armor operator accuracy and other such variables mitigating the practical usefulness of

these weapons 43 Consequently highly urbanized environments coupled with enemy combatants

who often fail to distinguish themselves from ordinary civilians left the US military with little

flexibility in dealing with potential belligerents coming in close proximity to military operations

in places like Iraq Afghanistan Somalia Bosnia and KoSOVO 44 This new-age complex

battlefield necessitated the development of a non-lethal alternative with extended range and

universal effectiveness the ADS was the culmination of that effort

The ADS is the first of its kind to offer universally effective non-lethal neutralization

capabilities at ranges exceeding that of conventional small arms 45 Thus in much the same way

that uranium rounds--one of the few known munitions to have appreciable effects on enemy

armor-were said to have a military utility far outweighing the known hazards that exist so too

could that rationale satisfy a legal review of the ADS46 In fact while uranium rounds are known

~l See ADS COlCEPT amp TECH0IOLOGY supra note 4 at 1-2 n Id at 2 nId ~~ Id ~5 See ADS PHYSICS ANALYSIS AND IJFERENCES supra note 8 at 14-15 ~6 See LAW OF WAR supra note 27 at 263

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to have potentially serious health effects given their mildly radioactive nature the ADS has no

known health effects vhen used properlyY

As the only non-lethal weapon system universally effective at ranges exceeding

conventional small arms the military utility of the ADS is tremendous 48 It provides a means of

effective force protection while greatly diminishing the possibility of collateral civilian harm49

To such an extent the ADS stands as the epitome of military necessity providing long-rang nonshy

lethal capabilities that yield no superfluous injury to civilians and protected objects 5o

VI UNNECESSARY SUFFERING

The obverse to military necessity the principle of unnecessary suffering is defined in

Additional Protocol 1 Art 352 vhich states

It is prohibited to employ lveapons projectiles and material and methods of wwfare ofa natllre to calise superfluous injury or unnecessary suffering

In further defining the parameters of the principle of unnecessary suffering Hague

Regulation IV Art 23( e) states that it is especially forbidden

To employ arms projectiles or material calculated to cause unnecessary suffering

During the development of new weapon system Additional Protocol 1 Art 36 requires

an adopting party to conduct the necessary testing to ensure such weapon system is in

compliance with the prohibition against unnecessary suffering51 But a nev weapon system is

not banned merely because it causes great or even horrendous suffering or injury52 Rather

what is prohibited is the creation of a weapon system which increases suffering without

r See ADS CONCEPT amp TECHKOLOGY supra note 4 at 5-7 -18 See ADS PHYSICS ANALYSIS AlD IMERENCES supra note 8 at 14-15 -19 See ADS CONCEPT amp TECHNOLOGY supra note 4 at 2 50 See ADS PHYSICS ANALYSIS AND INFERENCES supra note 8 at 14-15 51 See LAW OF WAR supra note at 271 52 See LAW OF WAR supra note 27 at 270

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increasing military advantage in any appreciable way53 In other words it is those weapons

which cause injury for the sake of injury (and not military utility) that are prohibited 54

Extensive testing on the ADS has been conducted demonstrating an extremely low

probability of medically significant injury-an occurrence rate of than 1 55 Of the two

injuries which required medical attention both individuals recovered fully without

complication 56 Thus the ADS satisfies the criteria of Hague Convention IV Art 23( e)

prohibiting the development ohveapons calculated to cause unnecessary sufTering In fact the

ADS was specifically created to cause minor non-lethal effects against targets 57 Thus while the

intensity of neurological pain associated with ADS can be quite high there are almost no

lingering effects and the pain experienced ceases immediately after the target is removed from

the ADS beam 58

As already suggested in the preceding subsection on military necessity the ADS provides

a tremendous military advantage offering effective non-lethal neutralization capabilities at

ranges exceeding conventional small arms59 Equally the ADS system was designed and tested

to cause minimal skin irritation no appreciable effect on the eyes and no effect on internal

reproductive organs60 Furthermore the ADS has shown no correlative effect to cancer61 To such

an extent the ADS was specifically designed to minimize the suffering caused to a target beyond

the temporary pain associated with the millimeter wave beam62 Said differently The ADS

53 Jd 5 lei 55 There have been over 11000 exposures of some 720 participants Of those 11000 exposures there were eight

cases of second-degree bums six of which consisted of pea-size blisters Only two required medical attention both of whom recovered fully without complication See ADS CONCEPT amp TECHNOLOGY supra note 4 at 7

56 Id 5- See ADS CONCEPT amp TECHNOLOGY supra note 4 at 5-7 58 See ADS ASKED QCESTIONS supra note 2 at Q 10-11 Q 17 5Y See ADS PHYSICS A)ILYSIS AND supra note 8 at 14-15 60 See ADS CONCEPT amp TECHNOLOGY supra note 4 at 7 61 d

62 See ADS FREQUENTLY ASKED QUESTIONS supra note 2 at Q 13 -12shy

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produces a temporary pain suffIcient to achieve the intended neutralizing eiIect and no more 63

Thus its lack of supert1uous injury and high military utility satisfies the prohibition against

unnecessary suffering 6~

VII PRACTICAL APPLICATIONS

The following section presents a number of hypothetical situations for which the ADS

might be used In each the principles of the LOAC are examined and applied to the ADS The

first portion presents the hypothetical scenario in italics followed by a second section analyzing

the ADS under the LOAC

A SCENARIO 1-NAVY ENGAGEMENT WITH SOMALI PIRATES

The USS Zumwalt has intercepted a mid-sizedjishing vessel This vessel was overrun

by Somali pirates rho nOli hold a number ofpeople hostage Ajter many hours negotiations

have broken dmvn and the men aboard the USS Zumwalt are placed in a precarious position-

the Somali pirates have executed one hostage and have stated they will kill more if their demands

are not met immediately Considering the available options a member of us Naval Command

notes that the USS Zumwalt is ou(fitted lvith the latest Active Denial System (ADS) turret

Afraid the pirates will kill another hostage soon orders are given to unleash the ADS on the

pirates while having a small force board the ship to apprehend the pirates The ADS system

neutralizes both the pirates and nearby civilians as collateral providing the boarding force just

enough time to apprehend the pirates Aftw ofthe civilian hostages sufler second-degree burns

from the prolonged exposure ofthe ADS necessary to give the boarding force enough time to get

into position No fatalities resulted

63 See ADS COJCEPT amp 6-1 See LAW OF WAR supra note

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B SCENARIO 2-LONE COMBATANT HELD UP INSIDE RELIGIOUS STRUCTURE

A contingent ofsoldiers from the 3rd Infantly Division enter a heavily urbanized suburb

ofBaghdad While sweeping the area for hostiles the 3-d Infantry is jired upon jrOm what

appears to be a religious rnosque The 3rd bantry is able to identify the location ofa lone

enen] sniper taking cover in a second-story windmv ofthe mosque Unable to reach Central

Command to determine ifthe building is a prime target for heavy-caliberire the 3rd infantry

elects to use the ADS The ADS is directed at the windmv andjires upon it The intense beam

prevents the sniperfrom peering out the window giving a member ofthe 3rd bfantry enough

time to reposition into a better vantage point Using the ADS as a sort ofjire-for-effect

suppression device the 3rd itfantry sniper makes it to the top ofa nearby building with the

enemy combatant in vielE The 3rd infantry sniperjires a single round infO the head of[he enemy

combatant killing him instantl

The highlight of this fact pattern shows the ability of the ADS to essentially ignore the

requirements under Additional Protocol 1 Art 52-55 which prohibit the attack of protected

civilian objects under the principles of distinction and targeting Certainly either completely

destroying a religious mosque or heavily damaging it with sustained heavy-caliber fire while not

necessarily violating proportionality due to a right of self-defense would damage the US

militarys image amongst the Iraqi people7o This highlights another boon to the ADS system

using less destructive energy-based weapons to improve public perceptionl Even outside of the

principles of the LOAC the ADS has the critically important capability of minimizing collateral

injury to both persons and objects In the case of an entrenched enemy combatant as the fact

~II See LAW OF WAR supra note 27 at 273 502 1 See ADS CONCEPT amp TECHNOLOGY supra note 4 at 2

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B SCENARIO 2-LONE COMBATANT HELD UP INSIDE RELIGIOUS STRUCTURE

A contingent ofsoldiers from the 3rd Infantly Division enter a heavily urbanized suburb

ofBaghdad While sweeping the area for hostiles the 3-d Infantry is jired upon jrOm what

appears to be a religious rnosque The 3rd bantry is able to identify the location ofa lone

enen] sniper taking cover in a second-story windmv ofthe mosque Unable to reach Central

Command to determine ifthe building is a prime target for heavy-caliberire the 3rd infantry

elects to use the ADS The ADS is directed at the windmv andjires upon it The intense beam

prevents the sniperfrom peering out the window giving a member ofthe 3rd bfantry enough

time to reposition into a better vantage point Using the ADS as a sort ofjire-for-effect

suppression device the 3rd itfantry sniper makes it to the top ofa nearby building with the

enemy combatant in vielE The 3rd infantry sniperjires a single round infO the head of[he enemy

combatant killing him instantl

The highlight of this fact pattern shows the ability of the ADS to essentially ignore the

requirements under Additional Protocol 1 Art 52-55 which prohibit the attack of protected

civilian objects under the principles of distinction and targeting Certainly either completely

destroying a religious mosque or heavily damaging it with sustained heavy-caliber fire while not

necessarily violating proportionality due to a right of self-defense would damage the US

militarys image amongst the Iraqi people7o This highlights another boon to the ADS system

using less destructive energy-based weapons to improve public perceptionl Even outside of the

principles of the LOAC the ADS has the critically important capability of minimizing collateral

injury to both persons and objects In the case of an entrenched enemy combatant as the fact

~II See LAW OF WAR supra note 27 at 273 502 1 See ADS CONCEPT amp TECHNOLOGY supra note 4 at 2

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convoy orders his men tofire the ADS at the approaching man Tflifh the ADS causing the man to

fall to the ground in pain tIS soldiers move in to apprehend him fa identUy his purpose The

soldiers discover he has several pounds ofexposive strapped inside ofhis vest jacket

Highlighting its repellant effect the ADS is capable not only of suppressive effects but

also in establishing a protective border around sensitive military operations Once again public

perception is important in highly congested environments-the US military does not want to be

seen as marauders or oppressive occupiers Rather the ADS provides an efficient alternative to

engaging unknOvn targets without the use of deadly force and its public consequences In some

respects it mitigates the negative connotation of shoot first ask questions later

Understandably US personnel often find themselves in precarious positions when dealing with

unidentified targets With the ADS and assuming the proper rules of engagement for legitimate

self-defense are observed uS personnel really can shoot first and ask questions to a neutralized

but unharmed target afterwards73

A key benefit of the ADS becomes immediately obvious soldiers can follow the now-

standardized escalation of force vith more assurance and certaintyJ-l Where it is a close call

soldiers no longer need to take the same level of pause when preparing to use the ADS as

compared to conventional weaponry Removing the implications of deadly force in place of

effective non-lethal force soldiers are now able to neutralize targets rather than mortally

wounding them--often at ranges exceeding their conventional small arms 75

3 Note that this does not ignore the concept of proper escalation of force Rather it is merely a play on words that a soldier can shoot at a target using ADS and still have the opportunity to ask questions later-something not nonnally available in conventional firefights See LAW OF WAR supra note at 502 504

7~ ld at 504 See ADS PHYSICS ANALYSIS A]D I~FERE]CES supra note 8 at 22

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Shane Blank

Conversely this may raise one potential cause for concern when implementing the ADS

into the US military arsenal a tendency to ignore the clear mandates of both distinction and

targeting While soldiers vho follow the rules of engagement are safely within the principles of

the LOAC the ADS does not impart the ability to fire upon civilians indiscriminately merely

because there is some fleeting suspicion that they may be dangerous its non-lethal nature does

not abrogate the mandates of either Additional Protocol 1 Art 48 or Additional Protocol 1 Art

522 Rather US military personnel retain middotthe duty to take reasonable steps to detem1ine

whether or not a person or object is a legitimate target76 In sum a likely favorable

proportionality analysis of the ADS does not entirely mitigate a review of both distinction and

targeting

VIII CONCLUSION

The ADS presents a myriad of nev non-lethal capabilities to the current US military

arsenal Among them the ADS provides the US military with long-range non-lethal

neutralization options while minimizing the collateral damage suffered by both civilians and

protected objects The limited collateral effect of the ADS will serve the US military well as it

attempts to maintain a positive public perception of its wartime efforts in Iraq Afghanistan

Somalia and elsewhere Used properly the ADS not only conforms to the principles of the

LOAC but serves as a shining example to many of its protections The ADS system is the

epitome of providing high military advantage while substantially reducing the cost of collateral

suffering

-6 Christopher Greenwood Customary Law Status of the 1977 Geneva Protocols in Astrid lM Delissen and Gerard l Tanja eds Humanitarian Law ofAnned Conflict Challenges Ahead (Dordrecht Martinus Nijhoff 1991) 109

-18shy