Part 4 – Legal considerations.
The Law of Armed Conflict
International law^32 encompasses many fields relevant to human augmentation, most
notably the Law of Armed Conflict (also known as international humanitarian law). This is
underpinned by the four fundamental principles of military necessity, humanity, distinction
and proportionality. Each of these principles could be affected by human augmentation
both positively and negatively. In a positive sense, it may improve compliance with the
principle of distinction by improving combatants’ ability to identify legitimate targets
through improved cognition and situational awareness. It could also improve compliance
with proportionality by allowing more precise targeting of threats, thus minimising
incidental or collateral damage. But use of human augmentation that modifies human
emotions may lead to contradictory outcomes: it could improve compliance with the
principle of military necessity by preventing wanton killing or destruction born out of fear
or desire for revenge; but it could also undermine compliance with the humanity principle
by suppressing emotions that prompt empathy, compassion and treatment of wounded
enemy or civilians. Development of human augmentation technology will need to carefully
consider international law to ensure that these issues are successfully navigated.Augmented combatants could constitute a new means or method of warfare if, for
example, soldiers became the delivery mechanism for nano or biotech weapons. Existing
conventions might prevent the latter, but consideration of the Biological and Toxin
Weapons Convention (BTWC) shows a level of ambiguity that could be exploited with
BTWC technology. The BTWC is not explicit on whether ‘agents’ are limited to microbial
size, nor if they are specific to those levelled at an adversary, or to enhance one’s own
personnel. Such ambiguity may need to be clarified as human augmentation becomes
more capable.Accountability and responsibility
Legal liability – whether criminal or civil – is often more complex in a military than a
civilian context because of armed forces’ hierarchical structures: superiors can be liable
for the acts of their subordinates. This has long been the case, but increasingly capable
human augmentation could amplify the importance of such issues. If, for example, a
commander orders a subordinate to take a stimulant with a known side effect of impaired
decision-making, the commander might incur some liability for any harm caused as a
result. Human augmentation may also make it difficult to establish proof of liability for
a crime. For example, combatants that would have ordinarily been found guilty of a
crime may be able to cite their use of human augmentation – as ordered by their chain
of command – as a key factor in their actions (whether true or not), thereby raising doubt
about the legal standard of proof required for their conviction. Questions as to whether
liability for the upkeep of augmentations such as prosthetics or irreversible implants lies
with the state or the augmented individual, both during and after the individual’s military
service may also arise.32 International law creates legal obligations for states through established customs or treaties.