New Technologies Symposium: Human Enhancement Technologies and the Law in War and Peace

[Rain Liivoja is an Associate Professor in the TC Beirne School of Law, University of Queensland. He is currently a Visiting Scholar with the Oxford Institute for Ethics, Law and Armed Conflict at the Blavatnik School of Government, University of Oxford. This post is part of our New Technologies and the Law in War and Peace Symposium]

The interest of armed forces in emerging technologies sustains a lively normative debate. One might say that, at least in the law of armed conflict scholarship, technology is the flavour of the month (or the decade). Much of the discussion has, however, taken place in disparate fora. Legal scholars increasingly specialise in cyber, autonomy or whatnot, and talk amongst themselves in respective interest groups. Meanwhile, discussions among ethicists and political scientist take place somewhere else altogether. In this light, New Technologies and the Law in War and Peace makes a welcome contribution to the field by bringing many diverging strands of conversation together. Bill Boothby must be commended for his editorial effort and for furnishing the volume with an introduction to the law of armed conflict for those less familiar with this branch of international law.

I want to focus on the book’s discussion of human enhancement. Broadly speaking, enhancement involves biomedical interventions to improve some human capability beyond what is necessary to achieve or sustain health. Or, as it is sometimes succinctly put, enhancement makes people better than well. Even in the specialised military context, enhancement encompasses a range of technologies, which this book covers in three separate chapters, written by three different authors.

The first, Chapter 7 by Ioana Maria Puscas, provides a technically rich yet highly accessible overview of the ways in which different aspects of human performance could be enhanced. The author wisely puts this discussion in a historical context, drawing on the excellent work by Łukasz Kamiński. After all, enhancement has been attempted for centuries, though more recently it has become much more sophisticated than giving soldiers Dutch courage (i.e. gin) before battle.

Unfortunately, the chapter does not problematise the very notion of enhancement and how it might be properly distinguished from prophylaxis or therapy. The author acknowledges that controversies surround the distinction between therapy and enhancement, especially owing to the difficulty in figuring out what constitutes ‘normal’ human functioning or performance. But she then goes on to say that in ‘countless’ instances the distinction is ‘unambiguously clear’. She gives the example of human vision, arguing that interventions to correct vision below 20/20 would be therapy whereas ‘vision that is beyond this level is an example of enhancement’.

Yet vision serves as a great example of the debatable distinction between therapy and enhancement. A person with 20/20 vision can see from 20 feet what an average person can see from 20 feet. This does not mean perfect vision: better than 20/20 vision occurs naturally in the human population. So, why should the improvement of vision beyond 20/20 necessarily be considered an enhancement? Also, consider two people having refractive surgery: one starts off with visual acuity of 20/40 (not great but acceptable for driving a car in many jurisdictions) and the other with 20/20 (‘normal’). Both end up with 20/10 vision (better than ‘normal’). Are both of these instances of enhancement? Only the second? I do not wish to suggest that the author should have attempted to resolve the debate about the therapy-enhancement divide. I merely want to point out that it is not as straightforward as it comes across. 

In terms of policy implication, the chapter is a tad alarmist. According to the author, human enhancement could be ‘profoundly disruptive’ to military life, potentially bringing about ‘acrimonious and hostile’ interpersonal relations and ‘unprecedented challenges’ to the fundamental values of armed forces; it could do ‘irreparable damage’ to the sense of community and create ‘countless practical difficulties’ to regulation. Many of these conclusions seem to be based on rather optimistic assessments of the technology and the prospects of creating a class of warfighters with profoundly improved cognitive or physical abilities. This does not seem terribly likely in the short or medium term.

The next chapter, Chapter 8 by Heather Harrison Dinniss, focuses specifically on some of the law of armed conflict and human rights law implications of enhancement, drawing on the author’s previously published work on this subject. The chapter provides a solid and stimulating legal analysis. Interestingly, while studies of this kind can often end up being doom and gloom scenarios of the erosion of law, the author rightly points out ways in which technology can assist warfighters in complying with the law.

I tend to agree with much of this chapter, so I only make two hair-splitting observations about the treatment of detainees. First, the author considers a situation where a prisoner of war has been pharmacologically enhanced and begins to experience withdrawal symptoms in captivity. As prisoners of war are only required to disclose specific information, which does not include medical information, the detaining power may have difficulty providing appropriate treatment. The author’s suggestion, as far as I understand it, is that this might trigger an obligation to repatriate the prisoner of war forthwith. I have some doubts. If a prisoner of war refuses to disclose information to the detaining power that is necessary for the adequate provision of health care, the prisoner may simply need to accept the consequences of such a refusal.

Another issue here concerns the treatment of prisoners of war with experimental drugs. The author pertinently points out that Additional Protocol I prohibits categorically – i.e. even with their consent – medical experiments on prisoners of war. This raises the question, then, whether any experimental medical treatment constitutes prohibited medical experimentation. I would be inclined to answer in the negative. Prescribing drugs for non-approved purposes is hardly unusual, particularly in the management of uncommon conditions, such as rare cancers. All such ‘off-label’ uses of drugs are in a sense experimental. But I would be reluctant to view this as medical experimentation and therefore banned. In short, the approval of a drug by some national authority for some particular purpose should not necessarily be the determining factor. Rather, one needs to consider medical practice more broadly.

Finally, Chapter 13 by David Fidler deals with synthetic brain technologies, specifically artificial brain technologies and brain-computer interfaces (BCIs). This chapter is perhaps most interesting in terms of its discussion of the legal and societal ramification of brain technologies outside the context of an armed conflict. Indeed, the part of the chapter that deals with the law of armed conflict remains quite general.

In this context, it is the use of a BCI that may amount to enhancement. BCIs are invasive or non-invasive technologies that allow a computer to monitor neural activity, typically by means of EEG, such that a person can control a device by thinking about it. While the author presents this type of technology as a ‘over-the-horizon possibility’, simple consumer versions of BCIs are already available from multiple suppliers.

The author suggests that the existing law would continue to apply without much difficulty to the use of BCIs. He also argues that there is no particular reason to think BCIs would have prohibited effects under the law of armed conflict and that, even where integrated with weapon systems, any relevant issues would be picked up by a legal review of the weapon system.

This makes sense. But I also wonder whether this approach downplays some difficulties that would emerge in conducting legal reviews of BCI-controlled weapons systems. A traditional legal review assumes that a weapon can be assessed in the abstract – as a gadget – by relying on its technical characteristics, practical effects and the intended military use. But a BCI can make the warfighter a part of the weapon system, and the warfighter therefore needs to be assessed in conjunction with the weapon. This introduces a significant variable into the performance of the weapon system. Would it be enough to assess the performance of one weapon connected to one warfighter? Would one need to assess a representative sample of warfighters using a BCI to control the same type of weapon? In other words, a BCI would introduce variations in human performance directly into the weapon system and it is not entirely clear how the legal review process would address that development.

It would have been interesting to get the author’s take on a legal issue that, as far as I am aware, was the first to have been mentioned in the literature in relation to military uses of BCIs. Writing in 2008, Stephen White raised the problem of identifying the actus reus for the purposes of individual criminal responsibility in circumstances where a person, simply by means of mental processes, can effect physical change in the world. This possibility might require a rethink of the concepts of both actus reus and mens rea – something rather significant from the perspective of criminal law doctrine.

This chapter, inasmuch as it goes beyond human enhancement and looks at artificial brain technologies, overlaps with the discussion of autonomous technologies contained in a separate chapter by Bill Boothby. There is an attempt in this chapter – I think – to distinguish artificial brain technology from artificial intelligence (AI). I have great difficulty understanding that distinction. What the author calls an artificial brain seems to be what many others would call artificial general intelligence (AGI). Admittedly, AGI is different from the more pedestrian applications and methods of AI that are being implemented in military systems. But they are essentially part of the same pursuit – trying to replicate or improve upon processes associated with human cognition in artificial systems. Perhaps there would have been a better way to compare and contract Boothby and Fidler’s views on autonomy and AI than compartmentalising them into supposedly separate concepts.

To conclude, the book’s coverage of human enhancement is useful. A range of enhancement technologies is identified, along with many legal issues that arise from the use of these technologies in the interests of national security. The book also shows how reasonable people can disagree about the ways forward. Thus, Ioana Maria Puscas concludes that stricter regulation is needed to ensure that benefits of enhancement are realised whilst drawbacks are mitigated. Heather Harrison Dinniss, on the other hand, suggests that an analysis of the existing regulation should be prioritised over the assumptions that new technologies require new regulation.