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The Bio-enhanced Soldier In International Law: Classification And Obligations

10 February 2021


Bio-enhanced soldiers are the result of natural human capabilities’ artificial enhancement through technological development for war purposes. Today, the bio-enhancement of soldiers is on the path to realisation. The research focuses on various areas to be improved, from situational awareness to resilience, to remote hardware control. Regarding the conventions or the “laws of war”, how could such enhancements be characterised under the current parameters of International Humanitarian Law (IHL), and with what obligations must they comply?

Bio-enhancement: An explanation

Bio-enhancement is characterised as the process of endowing an individual with a capacity in a specific field that goes beyond the normal functional range of humans in general. This improvement can either be integrated into the body, closely worn, or connected to the body, so it would confer an advantage similar to an internal or organic enhancement, thus transforming the subjected person. Thus, bio-enhancements are the reshaping of the human body to meet our needs. Augmented capabilities could include situational awareness, strength and speed, imaging insight, communication, endurance, sleep resistance, control of virtual avatars outside the body, attention, memory and sense of smell. These could be increased to fit the perceived needs of the armed forces. They could also be achieved through the use of drugs or by direct implantation of the technology in the subject. The types of technology that would directly modify the subject’s cognitive abilities include: prosthetics connected to the brain, sensory equipment directly embedded in the subject, and neural strengthening technology. Furthermore, weapon systems could be integrated directly to the human subject, creating difficulty distinguishing between the soldier and the weapon. This is especially important when considering the laws of war.

Laws of War

The laws of armed conflict require each state to assess whether the weapon, means or method of warfare, are compatible with IHL. Such requirements are to be found in article 36 of the Geneva Conventions, Protocol I of 1977. The distinction is made between the various instruments. A “weapon” is defined as a means of warfare, used in combat operations capable of causing either injury or death to persons or damages to, or destruction of, objects. Hence, the definition of a weapon denotes that the object in question has offensive capability. The term ‘means of warfare’ is a broader concept than the previous, as it encompasses weapons systems or platforms employed for attack. This includes the equipment necessary to directly deliver force. Hence, the term “means of warfare” can be understood to mean the complete package used to deliver force, in opposition to “concept of a weapon” which is merely the core component of the system. The final definition to consider is the “method of warfare”. Method of warfare is defined as the activity used to adversely affect enemy military operations, and it encompasses the various general categories of operations and tactics. Consideration must also be given to how weapons systems will be used. Thus, it could be discerned that human enhancement would not fall under the first category subject to review. As such technologies are not specifically offensive in nature, they would not necessarily convert a human into an object that would be considered a weapon. However, it would not be clear-cut when a weapon is integrated into a component that seeks to strengthen the subject. Human augmentations could fall under the concept of the “means of warfare” as they could potentially control a weapon. It could thus, find itself part of a weapon system, and it would subject human enhancement to review. Beyond this, the ‘methods of warfare’ concept would be most likely to succeed in reviewing human improvement, as it is likely that they would form part of the strategic and tactical thinking in offensive operations. Therefore, if subject to review the human enhancement would have to comply with the legal obligations set out in IHL.

The Obligations

The first obligation is that the weapon under review would discriminate accurately enough to only target combatants or to be used against legitimate military targets. The second obligation is proportionality, meaning that the use of a weapon must be proportional to the military objective and must keep civilian casualties to a minimum. The final obligation is to avoid unnecessary suffering. This, however, can be rather problematic when it comes to countermeasures against enhanced soldiers as the standards neutralising personnel are different from those governing material. If the reinforced soldier in question falls under the category of “material”, then the level of severity for neutralising the system will be higher. It is therefore essential that a legal categorisation of reinforced soldiers is created from the outset. This could be problematic since states could have divergent understandings of how this category of soldiers should be classified, thus leading to countermeasures that would not comply with the laws of warfare regarding the minimising of suffering.

Human enhancement for military applications would, in certain circumstances, be caught under the obligations of compliance with IHL. This is because it could be seen either as means of warfare, or method of warfare, depending on the interpretation. States would have to review whether or not it is compatible with their obligations under the rules of warfare. Such obligations would demand discrimination between civilians and military targets, not to mention the principles of proportionality and unnecessary suffering. However, such would have to be considered on a case-by-case basis, as different technologies could encompass different legal classifications based on their purposes.

It should be noted that at present, soldier augmentation should be subject to greater debate in the international sphere to provide better protection for operators against countermeasures. Finally, and in view of what the future holds, other issues concerning enhanced soldiers come into play, such as human rights, or the reinsertion of enhanced humans into society at large.

Written by Aris VASSILIOU, Legal Researcher at Finabel – European Army Interoperability Centre


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