In the year 2025, a rogue state--long suspected of developing biological weapons--now seems intent on using them against U.S. allies and interests. Anticipating such an event, we have developed a secret "counter-virus" that could infect and destroy their stockpile of bioweapons. Should we use it?
From a legal standpoint, it seems pretty straightforward that use of bioweapons by either party would violate the Biological Weapons Convention (BWC) and therefore be prohibited. From a policy standpoint, our first use of a bioweapon sets a most dangerous precedent for other states to justify their use of bioweapons--the very thing we want to prevent. But from an ethics standpoint, leaving the BWC aside, perhaps we are merely "practicing medicine" with a counter-virus--a vaccination of sorts--and surely this seems to be permissible.
A proper analysis, of course, goes much further. The lawyer also may point out that we've already violated the BWC by developing a counter-virus for war. The ethicist may argue that other options seem worse: A Stuxnet-like cyberattack may accidentally knock out containment systems and release the bioweapons, and incendiary bombs would kill both pathogens and people, potentially triggering an open war. The policy advisor, on the other hand, may prefer a more devastating, disproportionate attack to send a message to the world: We will not tolerate bio-threats, so don't even try it. But would this policy fuel animosity and thus be counterproductive to peace?
A new kind of wargaming
These are part of actual discussions last month at an unusual wargame sponsored by the U.S. Department of Defense's Rapid Reaction Technology Office and the U.S. Naval Academy. Hosted by the consultancy Noetic Group and directed by Dr. Peter W. Singer--author of Wired for War, a book partially responsible for raising global awareness about the "drone war" and its controversies--the event was part of the NeXTech wargaming series focused on emerging and future military technologies.
The technologies of interest are potential "game-changers": biotechnologies (e.g., human enhancements), energy (e.g., lasers and superefficient batteries), materials (e.g., 3D printing), hardware (e.g., robots), and software (e.g., electromagnetic and cyberweapons). But this particular wargame was dedicated to their ethics, policy, and legal issues, helping to identify friction points as well as to test how they can be integrated better in national-security planning and military-technology development.
As an invited participant to that and previous wargames, I will describe some of the scenarios we considered and their issues, which also gives a glimpse of the work that's still left to do. First, because the event was held under the Chatham House Rule, I won't attribute statements to any particular person. I will also simplify these scenarios and discussions, including substantial disagreements, for the sake of exposition.
To begin with, let's quickly define ethics, policy, and law, since this essay is about their interplay and surprising differences. Many decision-makers in both business and government treat ethics, policy, and law as if they were the same animal; and even if understood to be different, they are usually seen as walking lockstep with each other. But philosophers have long appreciated this distinction: what is legal isn't always ethical (such as the death penalty, some would say), and what is unethical isn't always illegal (such as adultery). Likewise, effective policy might be illegal or unethical (such as mutually assured destruction), and well-intentioned law or ethics may drive bad policies (such as a war on drugs, again some would say).
Contrary to popular opinion, ethics is more than "gut reactions" or intuitions, but it's about drawing out and applying broader principles that ought to guide our actions, such as maximizing happiness, respecting autonomy, doing no harm, or treating others as you'd want to be treated. Policy, in contrast, often takes a more pragmatic or realist approach, giving much weight to broader effects with an eye toward achieving certain goals; and so policy could diverge from ethics. And law is about complying with rules established and enforced by governments, under penalty of punishment. (As incomplete as these definitions are, they should be enough for our purposes here.)
In the following scenarios of future warfare, circa year 2025, I will tease out tensions among the three areas.
Scenario: Pain rays
Imagine if you were a U.S. soldier posted at a road checkpoint in a foreign land. You order an approaching car to halt, but the driver continues toward you. Maybe he doesn't understand you, or maybe he's a suicide-bomber. Either way, when he fails to comply one more time, you are left with little choice but to aim your rifle and shoot the driver. A "pain-ray"--or a microwave-like energy beam that causes pain so unbearable that any person would run away from it--would have been handy in this situation and others, such as crowd control. With that technology, we wouldn't need to escalate so quickly to deadly force, and that's good for us and the target.
This future is already here. We've had the pain-ray for decades but never used it in a conflict. Why? The answer reveals how ethics, policy, and law are critical to decisions to field a new technology or not, and why the Department of Defense is focusing more intently on these areas.
From a legal perspective, to use the pain-ray--as the U.S. military's Active Denial System has been called--against a mob that may contain both true combatants and merely angry protestors is likely illegal in war. A bedrock principle in the laws of armed conflict (LOAC), which is related to international humanitarian law and includes the Geneva and Hague Conventions, is the principle of distinction: Warring parties are never permitted to intentionally target noncombatants, even with nonlethal weapons and for the target's own good. End of story.