I have recently published an article on the equal application of international law to enhanced soldiers. The paper is an outcome of a research project at the Federmann Cyber Security Center led by Yuval Shany and Noam Lubell that examines different aspects of human enhancement in the military context.
The definition of enhanced soldiers (and human enhancement more generally) is the subject of much debate. While this is a highly interesting and intricate debate, in this blog post I rely on an imperfect definition of enhanced soldiers as soldiers that undergo procedures to improve their capabilities "besides what is necessary to achieve, sustain, or restore health". There is a wide spectrum of potential military human enhancement technologies that range from pharmaceutical enhancements to the cybernetic enhancement of a soldiers' brain. Equally, there is a wide spectrum of enhanced capabilities that include, inter alia, increases to a soldiers' strength, cognition, and endurance. It is expected that enhanced soldiers will soon become an integral part of militaries around the world. My paper focuses on the question of the equal application of international humanitarian law (IHL) and international human rights law (IHRL) to regular and enhanced soldiers. Think, for example, of an enhanced soldier that feels significantly less pain than a regular soldier. Should the threshold of what amounts to torture or inhumane treatment be the same for such a soldier as it is for a regular soldier or individual. Or think of enhanced soldiers that require much less sleep than regular soldiers – should the threshold for inhumane treatment as a result of sleep deprivation be similar for the enhanced and non-enhanced soldier? Is it inhumane to prevent sleep from those who do not need to sleep? While some scholars seem to adopt such a position, the paper takes a different approach. It argues for a one-directional approach according to which differences between soldiers could be used to improve the protection of those who are more vulnerable but cannot justify harsher treatment of enhanced soldiers with superior capabilities. I hope that those who find this question interesting will take the time to read the full paper where I try to defend this position. In this blog post, however, I would like to focus on some broader issues.
As is often the case, I have been workshopping the paper in different forums to receive feedback. I benefited tremendously from the discussions of my paper in these meetings. Much of the debate, naturally, focused on the main argument of the paper. Nonetheless, I found that I was repeatedly asked questions that that are relevant to the study of law, war and technology beyond this specific project. Here I want to focus on some of these questions.
On Imagination and Reality
Law and technology is strongly orientated to the future. This makes the study of law and technology so exciting, but it also carries costs. One potential cost is a tendency to focus on transformative changes rather than on smaller, more incremental, changes. I begin my paper with a non-orthodox example from the late 19th century but acknowledge the vast use of sci-fi and fantasy in academic writing on law and technology. Later in the paper I also use such an example, from X-Men, to demonstrate one of my arguments. These examples follow the popular imagination of future technological changes. They often include a radical change in reality. When most people hear the term enhanced solider, they imagine Robocop, Wolverine, the Six-Million-Dollar man or Captain America. As a result, I was often asked questions about the legal personality of enhanced soldiers and on the human/posthuman divide. At what point, on the spectrum of enhancement, should a human being should be classified in a different category with significant legal implications?
This is clearly an interesting discussion that is an inevitable part of the ethical and legal debates about enhanced soldiers. Nonetheless, there is a danger that focusing on this end of the spectrum yields insufficient attention to more limited, but immediate, technological advancements. The near future of enhanced soldiers will not introduce Robocop-type soldiers into the battlefield. But it will likely feature soldiers whose capabilities are improved in less radical ways. There is much benefit in focusing on the near future in scholarly work that aims to engage with the regulation of new technologies.
A good example of a similar phenomenon is found in discussions about artificial intelligence in the military context. The vast majority of these discussions focused on the potential integration of fully autonomous weapons (or lethal autonomous weapons systems) in the military. A quick google scholar search demonstrates the enormous interest in this subject. Although interest in autonomous weapons is justified and there are increasing signs that we are closer to their use on the battlefield, other important applications of AI in the military context have received much less attention despite the significant implications, and imminence, of their deployment. It is only recently that scholars have begun to look beyond the question of autonomous weapons to explore a wider array of questions regarding AI applications in a military context.
Of more relevance to enhanced soldiers, we see that focusing on transformative changes emphasizes otherness. Otherness is a well-known concern in international law and particularly in IHL. It enables harsher treatment of those who are considered as the "other". It is important to focus on the humanity of enhanced soldiers when discussing the legal rules that apply to them in order to take full account of their interests in relevant normative discussions. The humanity of enhanced soldiers brings me to the second part of this short blog post.
IHL, Power Differences, and the Peril and Promise of New Technology in Warfare
A second question that I was often asked when presenting the paper focused on the unequal effects of enhanced soldiers on parties to a conflict. Enhanced soldiers benefit powerful states and therefore, so the argument goes, IHL should provide negative incentives for their use including perhaps harsher treatment of enhanced soldiers.
The distributional effect of new technologies in warfare is an important and challenging issue that is much broader than the narrow issue of enhanced soldiers or technology in war more generally. It emphasizes the rather limited aspiration of IHL to mitigate suffering in warfare without intervening in the power differences between the parties to the conflict. It reenforces the necessity of looking beyond IHL and reclaiming the importance of preventing war – of the importance of jus ad bellum. In a similar way, the question challenges us to broaden our view beyond what is conceived as realistic in a specific moment; beyond the challenge of effectively preventing the development of new technologies due to their adverse effect on weaker parties. Here, however, I want to take this important challenge and focus on two aspects that those who raise the challenge do not fully consider.
IHL's starting point is an armed conflict – a reality that almost always entails enormous suffering. It is based on the acceptance, to some extent, of this reality, of violence, while focusing on its mitigation. There is a danger that such acceptance will legitimize violence, especially when it is aimed at legitimate targets. It is highly important to think of the "big picture", but it is equally important to consider its potential costs. Recently, Naz Modirzadeh published an important paper on passion in IHL scholarship. It suggests that the current literature on IHL lacks passion, that it is too technical, doctrinal and distant. I want to address here a related aspect of passion and IHL, the importance of fighting internalization of the legitimizing aspects of IHL, to experience the humanity of soldiers and enhanced soldiers even when they are legitimate targets in warfare. When considering normative questions in IHL, I often remind myself of how I felt when I first read All Quiet on the Western Front, or of the descriptions of the experiences of individual soldiers in Just and Unjust Wars. The existence of an individual beyond the (highly important) broad political, moral and legal questions must remain at the forefront of our thinking. In contrast to other emerging technologies, the human is an integral part of the enhanced soldier. Any discussion of negative and positive incentives in this regard must consider the interests of the enhanced soldier.
The second issue relates to the peril and promise of emerging technologies. The discussion of emerging technologies in war often focuses on the potential adverse effects of these technologies on the other party to the conflict. I also find myself often focusing on these concerns when thinking of new technologies such as autonomous weapons, enhanced soldiers, cyber warfare, or drones. I believe that there are two aspects that contribute to the focus on the perils of new technologies. The first is the deep distrust in states behavior and the fear that they will use powerful new technologies to significantly increase suffering in warfare. For example, there is a danger that the added protection that new technologies provide to soldiers reduces the burden of using force and incentivizes states (and potentially other actors) to use force more often. The second is some version of technophobia, that increases the weight of potential adverse effects of technology. While the first concern is justified and should be addressed in any discussion of new technologies in warfare, the second concern should be overcome in these discussions. It is important to explore in any discussion of new technologies in warfare its potential to mitigate suffering in warfare. For example, the existence of precision guided munitions has the potential to reduce the number of civilian casualties in warfare, including a potential obligation to use such weapons in certain circumstances. Soldiers are prone to mistakes, as the many instances of friendly fire casualties demonstrate. Enhanced soldiers might mitigate some of the deficiencies of regular soldiers and have the potential to reduce unnecessary suffering in warfare. Such a promise should be taken into account when discussing the effect of new technologies on power differences in war. If the alternative of the new technology is a reality that maintains enormous gaps between the waring parties without new technologies that effectively reduce the number of mistakes, it is questionable to what extent the introduction of such technologies is undesirable. The million-dollar question is how to find a proper balance between the promise and perils of new technologies. There is no easy answer to this question, but the path should include an attempt to take all relevant considerations into account, while differentiating between justified concerns and unsubstantiated fears.