New technologies reveal ambiguities and hidden assumptions in international humanitarian law.
Alexis C. Madrigal
Science fiction, or actual U.S. military project? Half a world away from the battlefield, a soldier controls his avatar-robot that does the actual fighting on the ground. Another one wears a sticky fabric that enables her to climb a wall like a gecko or spider would. Returning from a traumatic mission, a pilot takes a memory-erasing drug to help ward off post-traumatic stress disorder. Mimicking the physiology of dolphins and sled-dogs, a sailor is able to work his post all week without sleep and only a few meals.
All of these scenarios are real military projects currently in various stages of research. This is the frontlines of the Human Enhancement Revolution -- we now know enough about biology, neuroscience, computing, robotics, and materials to hack the human body, reshaping it in our own image. And defense-related applications are a major driver of science and technology research.
But, as I reported earlier, we also face serious ethical, legal, social, and operational issues in enhancing warfighters. Here, I want to drill down on what the laws of war say about military human enhancements, as we find that other technologies such as robotics and cyberweapons run into serious problems in this area as well.
Should enhancement technologies -- which typically do not directly interact with anyone other than the human subject -- be nevertheless subject to a weapons legal-review? That is, is there a sense in which enhancements could be considered as "weapons" and therefore under the authority of certain laws?
In international humanitarian law (IHL), also known as the laws of war, the primary instruments relevant to human enhancements include: Hague Conventions (1899 and 1907), Geneva Conventions (1949 and Additional Protocols I, II, and III), Biological and Toxin Weapons Convention (1972), Chemical Weapons Convention (1993), and other law. Below, I discuss these agreements and what their implications may be for human enhancement.
1. Would human enhancements count as weapons under the Geneva Conventions?
Let's start with the basic requirement that new weapons must conform to IHL. Article 36 of the Geneva Conventions, Additional Protocol I of 1977, specifies:
In the study, development, acquisition or adoption of a new weapon, means or method of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party.
But does Article 36 apply to human enhancement technologies? That is, should they be considered as a "weapon" or "means or method of warfare" in the first place? Unlike other weapons contemplated by IHL, enhancements usually do not directly harm others, so it is not obvious that Article 36 of Additional Protocol I would apply here. If anyone's safety is immediately at risk, it would seem to be that of the individual warfighter -- thereby turning the debate into one about bioethics. To that extent, warfighters, whether enhanced or not, are not weapons as typically understood.
Yet in a broader sense, the warfighter is not only a weapon but perhaps a military's best and oldest weapon. Warfighters carry out missions, they sometimes kill enemies, and they represent one of the largest expenditures or investments of a military. They have cognitive and physical capabilities that no other technology currently has, and this can make them ethical, lethal, and versatile. The human fighter, engaged in hand-to-hand combat, would be the last remaining weapon when all others have been exhausted. So in this basic sense, the warfighter is undeniably a weapon or instrument of war.
If a military were to field a weaponized rhino in an urban battlefield that contains innocent civilians, we would be reasonably worried that the war-rhino does not comply with Article 36. Are weaponized humans any different, legally speaking?
Still, should Article 36 be interpreted to include warfighters themselves as weapons subject to regulation? There could be several reasons to think so. First, other organisms are plausibly weapons subject to an Article 36 review. Throughout history, humans have employed animals in the service of war, such as dogs, elephants, pigeons, sea lions, dolphins, and possibly rhinoceroses. Dogs, as the most commonly used animal, undergo rigorous training, validation, and inspections. If a military were to field a weaponized rhino in an urban battlefield that contains innocent civilians, we would be reasonably worried that the war-rhino does not comply with Article 36. If rhinos cannot reliably discriminate friends from foe, e.g., a rhino may target and charge a noncombatant child in violation of the principle of distinction. A similar charge would apply to autonomous robots in such a general environment in which distinction is important, as opposed to a "kill box" or area of such fierce fighting that all noncombatants can be presumed to have fled.
If autonomous robots are clearly regulatable weapons, then consider the spectrum of cyborgs -- part-human, part-machine -- that exists between robots and unenhanced humans. Replacing one body part, say a human knee, with a robotic part starts us on the cybernetic path. And as other body parts are replaced, the organism becomes less human and more robotic. Finally, after (hypothetically) replacing every body part, including the brain, the organism is entirely robotic with no trace of the original human. If we want to say that robots are weapons but humans are not, then we would be challenged to identify the point on that spectrum at which the human becomes a robot or a weapon.
The inability to draw such a line may not be a fatal blow to the claim that humans should be treated as weapons; after all, we cannot draw a precise line at which a man who is losing his hair becomes "bald", yet there's clearly a difference between a bald man and one who has a head full of hair. But a simpler solution may be to say that humans are weapons, especially given the reasons offered previously.
As it applies to military enhancements, integrated robotics may be one form of enhancement, but we can also consider scenarios involving biomedical enhancements such as pharmaceuticals and genetic engineering. Again, on one end of the spectrum would stand a normal, unenhanced human. One step toward the path of being fully enhanced may be a warfighter who drinks coffee or pops amphetamines ("go pills" in military-speak) as a cognitive stimulant or enhancer. Another step may be taking drugs that increase strength, erase fear, or eliminate the need for sleep. At the far, more radical end may be a warfighter so enhanced that s/he no longer resembles a human being, such as a creature with four muscular arms, fangs, fur, and other animal-like features. If a war-rhino should be subject to Article 36, then so should this radically enhanced human animal, so it would seem. And to avoid the difficult question of drawing the line at which the enhanced human becomes a weapon, a more intuitive position would be that the human animal is a weapon all along, at every point in the spectrum, especially given the previous reasons that are independent of this demarcation problem.
If we agree that enhanced human warfighters could be properly weapons subject to Article 36, what are the implications? Historically, new weapons and tactics needed to conform to at least the following: (1) principle of distinction, (2) principle of proportionality, and (3) prohibition on superfluous injury or unnecessary suffering, often abbreviated as SIrUS.