Part 4 – Legal considerationsAutonomy and consent
Consent in the military is necessarily different to consent in wider society due to the
unique relationship between subordinates and their superiors. It could be difficult for
military personnel to give sufficiently voluntary and informed consent due to a tendency
to follow orders over individual interest.^33 Would a Serviceperson who refused to be
augmented be guilty of disobeying a lawful command? If augmented against their will,
would it amount to an assault or human rights abuse? How can Defence exploit the
benefits of human augmentation without inadvertently abusing the trust of its people?
Human rights is an example of a legal field which may need to adapt as technologies
become integrated with, rather than merely used by, people.
Variance and compliance
States’ freedom to decide whether to enter into treaties means that their international
law obligations vary. Similarly, domestic laws vary significantly between states. It will
therefore be difficult to establish an international ‘level playing field’ for using human
augmentation technologies. Even if there were an internationally agreed legal framework,
recent history has shown that a state’s willingness to observe it is not guaranteed. There
are obvious implications for interoperability with allies and freedom of manoeuvre relative
to potential adversaries. The uneven legal landscape should be considered when
planning to use or counter human augmentation capabilities.
Legal evolution
Some human augmentation technologies, such as wearables or exoskeletons, are likely
to be incorporated relatively easily into existing legal frameworks. Others, such as human
genome editing, will be more contentious and may be either prohibited or restricted by
existing law. Novel technology with potential for military use, which causes serious ethical
concerns, can be expected to spark calls for new international law to prohibit or restrict
it, as illustrated by the current discussions about lethal autonomous weapons systems
in the United Nations.^34 Countering human augmentation technologies introduced by an
adversary could also be considered offensive rather than defensive actions depending on
the legal definitions agreed internationally.
Law is not immutable, so what is permitted or prohibited today might not be in the future.
Existing law can evolve and new law be created in response to changes in societal values
and technological developments. However, the creation or amendment of law tends to
happen slowly, and the law usually lags some way behind technology. Those involved
in developing or procuring military human augmentation capabilities should engage early
and frequently with relevant legal experts.
33 Mehlman, M., et al., (2013), Case Legal Studies Research Paper No. 2013-2, ‘Enhanced Warfighters:
Risk, Ethics, and Policy’.
34 It should not, however, be assumed that new technology requires new regulation as existing regulation
(including legal reviews under Article 36 of the First 1977 Protocol Additional to the Geneva Conventions of
1949) may be sufficient.