Military Human Enhancement and International Law

Soldier 2.
0: Military Human
Enhancement and International Law
Heather A. Harrison Dinniss & Jann K. Kleffner
92 INT’L L. STUD. 432 (2016)
Volume 92 2016
Published by the Stockton Center for the Study of International Law

ISSN 2375-2831
International Law Studies 2016
Soldier 2.0: Military Human

Enhancement and International Law
Heather A. Harrison Dinniss* & Jann K. Kleffner**
CONTENTS
I. Introduction ................................................................................................ 433

II. Law of Armed Conflict ............................................................................. 436
A. Weapons Reviews ................................................................................ 436
B. Superfluous Injury and Unnecessary Suffering ............................... 439
C. Distinction, Proportionality and Precaution Issues........................ 443
D. Principle of Protection (Detention and Treatment of the Wounded
and Sick)................................................................................................ 446
1. Coercion ......................................................................................... 447
2. Experimental Treatments ............................................................ 448
3. Solving Medical Problems through Enhancement .................. 449
4. Detaining Enhanced Personnel .................................................. 451
III. Human Rights of Enhanced Humans ..................................................... 452
IV. Human Rights Law Implications for Human Enhancement
Technologies ............................................................................................... 455
A. The Right to Life ................................................................................. 455
B. Bodily Integrity, Torture, and Inhuman or Degrading Treatment
459
C. Privacy, Thought and Expression ..................................................... 463
* Senior Lecturer in International Law, Swedish Defence University.

** Professor of International Law and Head of the International Law Centre, Swedish
Defence University.
The thoughts and opinions expressed are those of the authors and not necessarily of
the U.S. government, the U.S. Department of the Navy or the U.S. Naval War College.
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Fair Trial Rights .......................................................................................... 468

V. Human Rights Aspects of Reintegrating Enhanced Soldiers into
Civilian Society............................................................................................ 471
A. Removal of Enhancements ................................................................ 471
B. Societal Rights and Discrimination ................................................... 472
VI. Accountability and Individual Criminal Responsibility ........................ 474
A. State Responsibility ............................................................................. 474
B. Individual Responsibility .................................................................... 476
1. Free Will ......................................................................................... 477
2. Excused and Diminished Responsibility ................................... 479
VII. Conclusion ............................................................................................ 482
I. INTRODUCTION
W hether it is science fiction classics such as Huxley’s Brave New World or

Heinlein’s Starship Troopers, beloved characters like Captain America or the
I
more modern versions shown in films such as 2012’s The Bourne Legacy, the
idea of human enhancement, particularly the enhancement of members of
the armed forces, is one that has inspired, alarmed and enthralled genera-
tions of authors, readers, movie-goers and real-world scientists alike.1 As
twenty-first century science takes great strides into making these imagined
worlds possible, armed forces and their legal advisors need to reflect careful-
ly on the implications of these technologies for the international legal
frameworks under which they operate. Of particular concern are the law of
armed conflict and human rights law and their application vis-á-vis techno-
logically enhanced armed force personnel and those who are subjected to
actions by such personnel.
1. ALDOUS HUXLEY, BRAVE NEW WORLD (1932); ROBERT A. HEINLEIN, STARSHIP

TROOPERS (1959); THE BOURNE LEGACY (Universal Pictures 2012). Marvel Comic’s
Captain America first appeared in a comic series of the same name in March 1941. See also
JEFFREY K. JOHNSON, SUPER-HISTORY: COMIC BOOK SUPERHEROES AND AMERICAN
SOCIETY 34–35 (2012).
433
For the purpose of the present analysis, human enhancement is defined

as the process of endowing an individual with an ability that goes beyond
the typical level or statistically normal range of functioning for humans
generally (or the personal unenhanced capabilities of a particular individu-
al), where the ability is either integrated into the body or is so closely worn
or connected that it confers an advantage similar to an internal or organic
enhancement that transforms the person.2 While the science is constantly
and rapidly evolving, human enhancement technologies can be broadly
divided into three main categories: biochemical, cybernetic (or brain-
machine interfaces) and prosthetic.3 Although there is a certain amount of
overlap between the categories (particularly between cybernetics and pros-
thetics), each category raises slightly different legal issues.
Biochemical enhancement refers to the use of drugs or other pharma-
cological agents to enhance specific functions in the body. In recent years,
one of the most talked about examples of biochemical enhancement is the
use of modafinil. A neuro-enhancing drug originally designed for the
treatment of narcolepsy, in otherwise healthy individuals modafinil acts as a
cognitive-enhancer, as well as increasing wakefulness and the ability to fo-
cus. Not only have these properties made it the underground drug of
choice of students taking examinations or writing essays,4 but modafinil has
also been approved for use by the armed forces of both the United States
and France, and has been investigated by the United Kingdom and Canada
(among others) for possible military use.5 While the ability to operate effec-
tively for long periods of time without the need for sleep has long been the
holy grail of potential military enhancement, biochemical enhancement of
any kind is not an automatic panacea. It raises complex legal issues in terms
of the treatment of enhanced soldiers detained by an adversary (for exam-
2. Patrick Lin, Ethical Blowback from Emerging Technologies, 9 JOURNAL OF MILITARY

ETHICS 313 (2010); Norman Daniels, Normal Functioning and the Treatment-Enhancement
Distinction, 9 CAMBRIDGE QUARTERLY OF HEALTHCARE ETHICS 309 (2000).
3. One might also point to genetic enhancement or gene therapy as a further possible
category of enhancement. However, it has not been included in this research, other than
as a passing reference, as it remains highly speculative.
4. See Helen Thomson, Narcolepsy Medication Modafinil is World’s First Safe “Smart Drug,”
THE GUARDIAN (Aug. 19, 2015), https://www.theguardian.com/science/2015/aug/20/
narcolepsy-medication-modafinil-worlds-first-safe-smart-drug.
5. William Saletan, The War on Sleep, SLATE (May 29, 2013), http://www.slate
.com/articles/health_and_science/superman/2013/05/sleep_deprivation_in_the_military
_modafinil_and_the_arms_race_for_soldiers.html.
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ple, whether sleep deprivation would still constitute inhuman and degrad-
ing treatment of personnel who have taken modafinil or a more permanent
variation thereof) and an individual’s ability to refuse to be subjected to the
enhancement, as well as issues regarding the effect on individual accounta-
bility for any actions taken while under the influence of an enhancement.
The need for sleep is not the only “human failing” that armed forces
are looking to manipulate with biochemical enhancement. Other drugs are
being investigated for their utility in reducing the incidence of post-
traumatic stress disorder and the reduction of fear—long implicated in the
commission of war crimes—as well as reducing traumatic memory for-
mation.6
The field of cybernetics has also provided many technological advances
of interest to the military. Brain-machine interfaces, also known as neural
interface systems, attempt to connect the brain directly to a machine with-
out the need for manual input, such as a keyboard, joystick or other device.
The interfaces use electrodes (whether surgically implanted in the brain or
merely resting on the scalp) to record and translate the user’s brain signals
into commands that operate computer-controlled devices. The technology
has been used both to actively control an external device (e.g., the ability to
operate drones with the mind7) and to passively sift information by using
the brain’s power to unconsciously detect anomalies in large amounts of
data.8
Prosthetic technology has made huge strides in the past two years. Sci-
entists have developed prosthetics capable of providing sensory feedback
6. Michael N. Tennison & Jonathan D. Moreno, Neuroscience, Ethics, and National Secu-
rity: The State of the Art, PLOS (Mar. 20, 2012), http://journals.plos.org/plosbiology/ar
ticle?id=10.1371/journal.pbio.1001289; Alain Brunet et al., Effect of Post-retrieval Propranolol
on Psychophysiologic Responding during Subsequent Script-driven Traumatic Imagery in Post-traumatic
Stress Disorder, 42 JOURNAL OF PSYCHIATRIC RESEARCH 503 (2008); Roger K. Pitman et
al., Pilot Study of Secondary Prevention of Post-traumatic Stress Disorder with Propranolol, 51 BIO-
LOGICAL PSYCHIATRY 189 (2002).
7. See, e.g., Pierre Bienaimé, Mind-Controlled Drones Are Already a Reality, BUSINESS IN-
SIDER (Oct. 24, 2014) http://www.businessinsider.com/drones-you-can-control-with-
your-mind-2014-10. In fact the technology has spread sufficiently enough that 2016 saw
the first mind-controlled drone race organised by the University of Florida.
8. See, e.g., the Cognitive Technology Threat Warning System (CT2WS) developed by
the U.S. Army and DARPA, which detects brainwaves in order to signal when the sub-
conscious evaluates a visual threat. Neal Ungerleider, DARPA’s Cybernetic Binoculars Tap
Soldiers’ Brains to Spot Threats, FAST COMPANY (Sept. 21, 2012), http://www.fastcom pa-
ny.com/3001501/darpas-cybernetic-binoculars-tap-soldiers-brains-spot-threats.
435
from replacement limbs;9 ways of linking prosthetics using neural interfaces

or nerve endings to provide thought-controlled movement;10 and visual
prosthetics to provide augmented vision for those with normal vision and
restore vision to those who have lost it.11 Armed forces are already using
exoskeletons such as Lockheed Martin’s Human Universal Load Carrier
and investigating prosthetics to enable soldiers to target their weapons
more accurately.12
In this article, we will address these three forms of military human en-
hancement technologies from an international legal perspective by examin-
ing, first, questions that arise under the law of armed conflict and, second,
questions that arise under international human rights law.
II. LAW OF ARMED CONFLICT
A. Weapons Reviews
In the study, development, acquisition or adoption of a new weapon or

new means and methods of warfare, a State which is a party to Additional
Protocol I (AP I) is under an affirmative obligation to determine whether
its employment would be prohibited under the Protocol or any other rule
of international law applicable to that State.13 A number of States not party
to AP I, including the United States, have adopted review mechanisms
along similar lines, albeit as a matter of policy rather than international legal
9. See David Talbot, An Artificial Hand with Real Feelings, MIT TECHNOLOGY REVIEW
(Dec. 5, 2013), https://www.technologyreview.com/s/522086/an-artificial-hand-with-real
-feelings/.
10. Id.; Katie Drummond, Prosthetics Breakthrough Might Fuse Nerves with Fake Limbs,
WIRED (Feb. 27, 2012), https://www.wired.com/2012/02/nerve-prosthetics/.
11. See, e.g., Philip Sherwell, Blind Man Describes Joy at Seeing Wife for First Time in Decade
Thanks to “Bionic Eye,” THE TELEGRAPH (LONDON) (Feb. 24, 2015), http://www.tele
graph.co.uk/news/worldnews/northamerica/usa/11433149/Blind-man-describes-joy-at-
seeing-wife-for-first-time-in-decade-thanks-to-bionic-eye.html.
12. Charles Choi, New Army Exoskeleton Makes Soldiers’ Gunshots More Accurate, POPU-
LAR SCIENCE (June 2, 2015), http://www.popsci.com/army-has-exoskeleton-makes-
soldiers-better-shots; Thomas Black, Iron Man Meets HULC as Lockheed Enters Exoskeleton
Race (Mar. 19, 2013), http://www.bloomberg.com/news/articles/2013-03-19/iron-man-
meets-hulc-as-lockheed-enters-exoskeletons-race.
13. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating
to the Protection of Victims of International Armed Conflicts art. 36, June 8, 1977, 1125
U.N.T.S. 3 [hereinafter Additional Protocol I].
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obligation.14 The first issue that arises in connection with the use of military
human enhancement technologies is whether and to what extent such
technologies trigger the requirement of a review as provided for in AP I
and/or domestic regulations and practice. An answer to that query hinges
in turn on the question of whether human enhancement technologies—or
more precisely a given specific human enhancement technology—qualify as
a weapon or means or method of warfare.
The term “weapon” is understood to refer to a means of warfare used
in combat operations that is capable of causing either injury to or death of
persons, or damage to or destruction of objects.15 As such, a weapon “con-
notes an offensive capability that can be applied to a military object or en-
emy combatant.”16 The term “means of warfare” is broader than a weapon
inasmuch as it “extends . . . to weapon systems or platforms employed for
the purposes of attack,”17 and includes associated equipment used directly
to deliver force during hostilities.18 Means of warfare, and its sub-category
of weapons, hence apply only in the context of attacks, that is “acts of vio-
lence against the adversary, whether in offence or in defence.”19 Finally,
methods of warfare refers to activities designed to adversely affect the en-
emy’s military operations or military capacity and extends to the various
general categories of operations (bombing, ground, close-air support, etc.),
14. U.S. Deputy Secretary of Defense, DoDD 5000.01, The Defense Acquisition Sys-
tem, encl. 1, ¶ E1.1.15 (2003), http://www.dtic.mil/whs/directives/corres/pdf/500001p.
pdf. See also OFFICE OF THE GENERAL COUNSEL, U.S. DEPARTMENT OF DEFENSE, LAW
OF WAR MANUAL §§ 6.2, 19.20.1.2 (2015); Maya Yaron, Address before the Group of
Experts Meeting on Lethal Autonomous Weapons Systems: Statement on Lethal Auton-
omous Weapons (Apr. 13, 2016), http://www.unog.ch/80256EDD006B8954/(httpass
ets)/A02C15B2E5B49AA1C1257F9B0029C454/$file/2016_LAWS_MX_GeneralDebate
_Statements_Israel.pdf.
15. See PROGRAM ON HUMANITARIAN POLICY AND CONFLICT RESEARCH, MANUAL
ON INTERNATIONAL LAW APPLICABLE TO AIR AND MISSILE WARFARE r. 1(ff) (2009)
[hereinafter AMW MANUAL]; PROGRAM ON HUMANITARIAN POLICY AND CONFLICT
RESEARCH, COMMENTARY ON THE MANUAL ON INTERNATIONAL LAW APPLICABLE TO
AIR AND MISSILE WARFARE 55 (2010).
16. Justin McClelland, The Review of Weapons in Accordance with Article 36 of Additional
Protocol I, 85 INTERNATIONAL REVIEW OF THE RED CROSS 397, 404 (2003). See also WIL-
LIAM H. BOOTHBY, WEAPONS AND THE LAW OF ARMED CONFLICT 4 (2009).
17. AMW MANUAL, supra note 15, r. 1(t).
18. BOOTHBY, supra note 16, at 4 n.7.
19. Additional Protocol I, supra note 13, art. 49(1).
437
as well as the specific tactics used for attack.20 A common shorthand for
methods of warfare is “the way in which [weapons] are used” in hostili-
ties.21
Despite the occasional assertion to the contrary,22 these working defini-
tions suggest that the enhanced human soldier, per se, is not to be consid-
ered a weapon, because it is not the person that constitutes the offensive
capability that can be applied to military objectives or enemy combatants.
At the current state of development in the realm of human enhancement
technologies, a distinction between the human, on the one hand, and the
enhancement technology, on the other, remains possible since the use of
the technology does not convert the human into an object that could be
considered a weapon. While further developments may lead us down a
path that makes that distinction more complicated, we do not seem to have
arrived at the crossroads where enhancement technologies transmute hu-
mans into mere objects for the purpose of the law of armed conflict.
A given human enhancement technology may very well, however, con-
stitute a weapon. This is the case when the technology is capable of causing
either injury to or death of persons, or damage to or destruction of objects.
Whether human enhancement technology possesses such offensive capa-
bilities depends on the specific technology in question. On the one hand, a
clear-cut instance where that question can be answered in the negative is
biochemical enhancements of members of the State’s own armed forces,
since the enhancement itself does not cause injury to or death of enemy
personnel nor damage to or destruction of objects. On the other hand, a
possible instance where the answer is in the affirmative would be a pros-
thetic enhancement that integrates an offensive capability that is itself a
weapon, such that the prosthetic is able to fire a munition or has the capa-
bility of a stun gun/taser.
Furthermore, human enhancement technologies may fall into the no-
tion of means of warfare. An example would be a neural interface system
20. AMW MANUAL, supra note 15, r. 1(v).

21. COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GE-
NEVA CONVENTIONS OF 12 AUGUST 1949, ¶ 1402 (Yves Sandoz, Christophe Swinarski &
Bruno Zimmermann eds., 1987); BOOTHBY, supra note 16, at 4 n.7.
22. See, e.g., PATRICK LIN, MAXWELL J. MEHLMAN & KEITH ABNEY, ENHANCED
WARFIGHTERS: RISK, ETHICS, AND POLICY 31–32 (2013), http://ethics.calpoly.edu/
greenwall_report.pdf.
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through which weaponized drones are operated since the cybernetic system
would form part of a weapons system employed for the purposes of attack.
Last, but not least, human enhancement technologies can be consid-
ered to be methods of warfare if and when their use constitutes an integral
part of offensive activities at the strategic and tactical levels. In other
words, if human enhancement technologies were to emerge as organiza-
tional features of, and techniques for, weapons and military units to deliver
force against opposing armed forces and military objectives, they will trig-
ger the review obligations under Article 36 of AP I and/or under domestic
regulations.
What, then, are the main substantive principles of the law of armed
conflict that would be utilized in such reviews and what idiosyncratic issues
are raised when these principles are applied to human enhancement tech-
nologies?
B. Superfluous Injury and Unnecessary Suffering
The principle concerning superfluous injury and unnecessary suffering

(SIrUS) has been recognized as one of the “cardinal principles” of interna-
tional law by the International Court of Justice (ICJ).23 First given form in
the preamble to the 1868 Declaration of St Petersburg, the principle, which
bans weapons, projectiles, materiel and methods of warfare that cause su-
perfluous injury or unnecessary suffering, has evolved through its restate-
ment in subsequent law of armed conflict treaties.24 It is also now recog-
nized as a rule of customary law applicable in both international and non-
international armed conflicts.25 However, the difference in language in con-
23. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J.
226, ¶ 238 (July 8) [hereinafter Nuclear Weapons].
24. For a description of the evolution of the different wording, see W. Hays Parks,
Conventional Weapons and Weapons Reviews, 8 YEARBOOK OF INTERNATIONAL HUMANITAR-
IAN LAW 55, 86–87 n.123 (2005). The most recent versions include Article 35(2) of Addi-
tional Protocol I which provides: “It is prohibited to employ weapons, projectiles and
material and methods of warfare of a nature to cause superfluous injury or unnecessary
suffering.” Identical wording is used in the preamble to the Convention on Prohibitions or
Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be
Excessively Injurious or to Have Indiscriminate Effects, Oct. 10, 1980, 1342 U.N.T.S. 137
[hereinafter CCW Convention].
25. 1 CUSTOMARY INTERNATIONAL HUMANITARIAN LAW r. 70 (Jean-Marie Hencka-
erts & Louise Doswald-Beck eds., 2005) [hereinafter CIHL].
439
secutive legal instruments containing the prohibition26 has made it difficult

to determine whether the prohibition should be interpreted as prohibiting
weapons “of a nature to cause” superfluous injury or unnecessary suffering
(an objective standard) or whether it prohibits those weapons that are “cal-
culated to cause” such injury. That is, the difference is between the neces-
sary effects of the weapon and the intent of the user in designing and using
it.27
It is this difference that may prove important not only when looking at
the impact of the enhancement techniques themselves, but also on any
countermeasures that will inevitably be developed in order to combat the
military advantage gained through enhancement. For example, any weapon
or technique designed to be used against enhanced soldiers that would
cause greater suffering than is militarily necessary when employed against
an unenhanced soldier would remain legal as its design and intended appli-
cation is against enhanced soldiers. However, if one adopts an effects-
based approach, the fact that the weapon may be used against unenhanced
soldiers (perhaps without knowledge of their unenhanced status) would
constitute a breach of the principle. The better view is that it is the intend-
ed design and normal effects of the weapon which is relevant to any as-
sessment of the SIrUS principle.
A question also arises as to how the enhancements of soldiers should
be viewed. For some enhancements, particularly those of a biochemical or
genetic nature,28 the question may be moot as there is no meaningful dis-
tinction between the soldier and the enhancement. However, for those
enhancements which are cybernetic or prosthetic in nature, a distinction
may be made between viewing the enhancement as a specific piece of
technology separate from the soldier and as the soldier and technology
combined into an integrated unit. To a certain extent this will be dependent
on the nature of the enhancement technology in question. As noted above,
26. Parks, supra note 24. See also BOOTHBY, supra note 16, at 55–61.
27. An ill-fated project by the International Committee of the Red Cross (ICRC) in
1997 attempted to introduce an effects-based methodology which relied solely on medical
evidence and, generally, the worst-case wounding effect of the weapon rather than the
intended or normal effect. Parks, supra note 24. The ICRC project was heavily criticized
for ignoring the balance to be struck with military necessity and was eventually withdrawn
in 2001. Id.
28. As noted in supra note 3, genetic enhancement is not generally addressed in this
study, however, it is worth observing in passing that, by definition, any genetic enhance-
ment would not introduce any component external to the human body.
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the separation in the law of armed conflict between personnel and materiel
means that enhanced soldiers themselves should not be viewed as weap-
ons; however, that is different from saying that the enhancement should
not be viewed as a means of warfare. Where the enhancement technology
is intimately connected with soldiers’ bodies and, in some cases, their
brains, questions about the appropriate countermeasures that may be taken
against those enhancements must be considered.
For example, if a brain-computer interface is viewed as a separate legit-
imate military objective, such that any physiological injury to the soldier
would be viewed as incidental or collateral to the destruction or neutraliza-
tion of the technology,29 a different calculation may result when viewing
the soldier and his or her enhancement as an integrated entity.
Clearly both the enhancement and the soldier may be considered legit-
imate targets. However, if it is permissible to kill the soldier or render him
or her hors de combat, is it then automatically permissible to overload an im-
planted chip such that it may cause brain damage through an electrical
overload of neural circuits? There are two issues at play in this situation.
First, the SIrUS principle generally allows for more serious injuries result-
ing from anti-materiel weapons (for example, the use of depleted uranium
shells in anti-tank weaponry or incendiary weapons against armored vehi-
cles and fortifications) than it would for weapons typically designed for
anti-personnel use.30 This is because the military advantage resulting from
destruction of the tank means the inevitable suffering of the tank’s crew is
not unnecessary. If one views the neural chip implanted in the brain of a
cybernetically enhanced soldier as military materiel separate from the indi-
vidual, the permissible level of injury and harm necessitated by the effects
of a weapon designed to counter that chip may be higher than that of a
weapon directed at unenhanced personnel. One might argue that any coun-
termeasure used against implantable brain chips is designed to destroy the
electronics in the implanted chip and any resulting brain damage to the
soldier would be incidental. But, as Boothby notes in relation to the matter
29. Note that this does not refer to collateral damage in the sense of proportionality
or precautions in attack, which refers only to civilians and civilian objects rather than
military personnel (who, with limited exceptions, may be targeted at all times).
30. See generally Christopher J. Greenwood, The Law of Weaponry at the Start of the New
Millennium, in THE LAW OF ARMED CONFLICT: INTO THE NEXT MILLENNIUM 185, 196
(Michael N. Schmitt & Leslie C. Green eds., 1998) (Vol. 71, U.S. Naval War College In-
ternational Law Studies).
441
of the design, purpose and intent of blinding laser weapons, if it can be

shown that a weapon will necessarily cause blindness when used in the
circumstances for which it was procured, it may be difficult to show that it
was not designed for that purpose.31 Any determination would be highly
fact-specific based on the technology employed, but a similar argument
may be made for countermeasures which result in permanent brain injury
or damage to neural circuitry.
A second point must also be considered. Abhorrence of particular
types of injury has been the driver for many of the bans of specific weap-
ons or uses of weapons as a method of war.32 For example, blinding laser
weapons were one of the few weapons that were prohibited before being
fielded on the grounds that permanently blinding a soldier was superfluous
and caused unnecessary suffering.33 One can foresee that any countermeas-
ure against implanted brain chips that would result in permanent brain
damage might also fall within this category.
However, it should be borne in mind that the two elements of the pro-
hibition on unnecessary suffering and superfluous injury are both compara-
tive terms. Clearly a certain amount (and in some cases a great deal) of suf-
fering and injury is permissible in armed conflict. What is prohibited is
suffering or injury that is in excess of that necessary to realize a legitimate
military goal (i.e., military necessity). Thus, if the only way to negate the
threat posed by enhanced soldiers using implantable brain chips is to over-
load the chips, the resulting brain damage may in fact be necessary and the
injury not superfluous.
Ironically, the prohibition against blinding laser weapons noted above
is unlikely to apply to a soldier with enhanced vision. Certainly those with
optical implants, or prostheses such as telescoping contact lenses, would
not be covered by Article 1 of the Protocol on Blinding Laser Weapons
which limits the prohibition to “unenhanced vision, that is to the naked eye
or to the eye with corrective eyesight devices.”34 Article 3 specifically excludes
31. BOOTHBY, supra note 16, at 210–11.

32. See, e.g., Protocol on Prohibitions or Restrictions on the Use of Incendiary Weap-
ons, Oct. 10, 1980, 1342 U.N.T.S. 171; Convention on the Prohibition of the Develop-
ment, Production, Stockpiling and Use of Chemical Weapons and on their Destruction,
Jan. 13, 1993, 1974 U.N.T.S. 45.
33. Protocol on Blinding Laser Weapons, Oct. 13, 1995, 1380 U.N.T.S. 370.
34. Emphasis added. A more difficult question may arise where the soldier’s vision
has been enhanced through genetic means, thus the soldier still relies on his or her naked
eye. The answer would perhaps depend on the nature and degree of the enhancement.
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from its ambit any blinding which takes place as an “incidental or collateral
effect of the legitimate military employment of laser systems used against
optical equipment.” A question remains about those with vision that has
been enhanced by other means. For example, Rain Liivoja raises the ques-
tion of whether eyesight which has been augmented through surgical ma-
nipulation would fall within this definition (particularly if it would leave
vision more susceptible to damage by laser).35 Similar questions may be
asked of eyesight which has been improved by other methods; for example,
“biohackers” have been experimenting with increasing their night vision by
using eye drops made from enzymes derived from deep-sea fish.36
C. Distinction, Proportionality and Precaution Issues
The principle of distinction requires that parties to an armed conflict dis-

tinguish between civilians and civilian objects on the one hand, and com-
batants and military objectives on the other; parties must only direct their
military operations against the latter.37 Along with the prohibition against
unnecessary suffering (discussed above), it is considered one of the cardinal
principles of international humanitarian law.38 The principle of proportion-
ality requires parties to refrain from, or cancel, attacks that are expected to
cause incidental civilian injury or death, or damage to civilian objects (also
known as collateral damage) which would be excessive in relation to the
concrete and direct military advantage anticipated to be gained from the
attack.39 Compliance with these principles is impacted by both the envi-
ronment and tempo of modern armed conflict, particularly in relation to
information flows and current limits on the ability of humans to process
such flows.
35. Rain Liivoja, Senior Lecturer and Branco Weiss Fellow, Melbourne Law School,
Remarks at the Swedish Defence University: Bioenhanced Soldiers and the Prohibition of
Unnecessary Suffering (Sept. 9, 2015).
36. The group dropped a chlorophyll analog (Chlorin e6) found in plants and some
deep-sea fish into the eyeballs to give improved night vision. Alejandro Alba, Group of
Biohackers Test Eye Drops to Give Humans Night Vision, NEW YORK DAILY NEWS (Apr. 5,
2015), http://nydn.us/1bZtIQa.
37. See, e.g., Additional Protocol I, supra note 13, art. 48; CIHL, supra note 25, rr. 1, 7.
38. Nuclear Weapons, supra note 23, ¶ 78.
39. The principle of proportionality runs as a thread through many of the substantive
provisions of IHL. See, e.g., Additional Protocol I, supra note 13, arts. 51(5)(b), 57(2)(a)(iii),
57(2)(b); CIHL, supra note 25, r. 14.
443
Today’s armed forces deal with vastly more raw data and information than
at any time in history.40 Headsets, video feeds, instant messaging and radio
transmissions all add to the cacophony of data that modern military forces
are facing. This unprecedented amount of raw data helps by permitting
more accurate targeting and in limiting collateral damage; however, these
advantages must be balanced against the dangers of soldiers succumbing to
the resulting “information overload,” which can lead to tragic mistakes.41
Work is ongoing in several research projects into increasing the brain’s
ability to multitask in order to be able to utilize the increased amount of
data without becoming overwhelmed by it. These applied cognition meth-
ods range from attempts to train and “rewire” the functioning of the atten-
tion system to promote “mindfulness,” to heads-up displays that monitor
brain activity in order to identify threats before they are recognized (or
overlooked) by the conscious brain.42
If such methods are successful, the requirement to take all feasible pre-
cautions in attack and to ensure that any targets struck are legitimate mili-
tary objectives will necessarily be revised to take account of what is feasible
when using the new technology. It should be noted that, as with past tech-
nological developments, most States consider that the law does not impose
an obligation to acquire such technologies; however, if the State possesses
the technologies it must field them when feasible.43 In this sense, the use of
human enhancement technologies may improve compliance with the re-
quirements emanating from distinction and proportionality and their mani-
40. One estimate puts the increase in data flow across the U.S. armed forces at 1,600
percent since the events of 9/11. Thom Shanker & Matt Richtel, In New Military, Data
Overload Can be Deadly, NEW YORK TIMES, Jan. 16, 2011, at A1, http://www.nytimes.com
/2011/01/17/technology/17brain.html?pagewanted=all&_r=0.
41. Id. When U.S. officials looked into an attack by American helicopters that left
twenty-three Afghan civilians dead, they found that informational overload was an under-
lying cause. Id.
42. See, e.g., Kalwinder Kaur, New Sensor System Improves Target Detection, AZO ROBOT-
ICS (Sept. 21, 2012), http://www.azorobotics.com/News.aspx?newsID=3237 (discussing
DARPA’s Cognitive Technology Threat Warning System program).
43. Customary international law places a general requirement on States to avoid and,
in any event, minimize collateral damage. One of the ways in which this is done is through
the choice of means and methods of attack. See generally CIHL, supra note 25, r. 17 (dis-
cussing the requirement to take “all feasible precautions” to minimize incidental damage).
See also HEATHER A. HARRISON DINNISS, CYBER WARFARE AND THE LAWS OF WAR 213–
15 (2012) (discussing new technologies and the choice of weapons as a feasible precau-
tion).
444
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festation in the realm of precautions, but does not directly affect the con-
tent of the legal rules.
Another project currently under investigation by scientists is to inhibit
or remove fear.44 This is another instance in which the science may have
interesting consequences for compliance with the principles of distinction,
proportionality and precautions by allowing the soldier to make decisions
without being motivated by fear. However, as noted, although such tech-
nologies may increase the likelihood of compliance with the existing laws, it
will not impact the content of the legal principles themselves.
At the far (and perhaps speculative) end of the enhancement spectrum,
exists the possibility of what Ingmar Persson and Julian Savulescu refer to
as “moral enhancement.”45 Although fraught with ethical issues and of
dubious practical use in the environment of an armed conflict, the theory
of moral bio-enhancement suggests that by amplifying those biological
factors which underlie a sense of justice and altruism, people will be com-
pelled to act in a way that is morally (and, in the present context, legally)
right.46 The obvious difficulty would be ensuring that soldiers are trained to
identify compliance with the law as the morally correct course of action, in
contrast to increasing the sense of empathy (which is the course of action
proposed by Persson and Savulescu in order to protect the environment),
which may result in soldiers unfit for combat. It should be noted that in
most popular science fiction treatments of the topic, the opposite is usually
postulated, i.e., the removal or minimization of empathy to create so-called
“super-soldiers”; it invariably ends badly.47 While a certain level of suppres-
44. JONATHAN D. MORENO, MIND WARS: BRAIN SCIENCE AND THE MILITARY IN
THE 21ST CENTURY 149–51 (2012).
45. INGMAR PERSSON & JULIAN SAVULESCU, UNFIT FOR THE FUTURE: THE NEED
FOR MORAL ENHANCEMENT (2012). While the concept of deliberately manipulating mo-
rality is speculative, it should be noted that the science behind it is not. A recent study
found that common drugs used in the treatment of depression and Parkinson’s disease
sway moral decision making when administered to healthy people. Hannah Devlin, Parkin-
son’s and Depression Drugs Can Alter Moral Judgment, Study Shows, THE GUARDIAN (July 2,
2015), http://www.theguardian.com/science/2015/jul/02/parkinsons-and-depression-dr
ugs-can-alter-moral-judgement-study-shows.
46. In their original study, Persson and Savulescu argued for moral enhancement
based on a need for protection of the natural environment. PERSSON & SAVULESCU, supra
note 45, at 107–34.
47. Lack of empathy is also associated with several psychological and personality dis-
orders and is characteristic of psychopathy (or antisocial personality disorder). For exam-
ples in film and television, see, e.g., ROBOCOP (Metro-Goldwyn-Mayer et al., 2014) or the
445
sion of empathy is necessarily provided in combat training to produce ef-

fective combatants, permanent biochemical suppression beyond the indi-
vidual soldier’s control risks producing troops that are unable to show the
required levels of compassion and humanity for the wounded, sick or
shipwrecked or for those who fall into their power, for example through
surrender or as detainees.
D. Principle of Protection (Detention and Treatment of the Wounded and Sick)
The principle of protection requires that all persons who are not—or who
are no longer—taking part in hostilities are treated humanely without any
adverse distinction based on race, nationality, religious belief or political
opinions, or any other distinction founded on similar criteria.48 When con-
sidering enhancement technologies, one of the areas in which the principle
raises particular issues is with regard to detention. These pertain primarily
to the detainee who has been enhanced, but also in certain circumstances
to the enhanced detainer. With regard to the latter, one can envisage situa-
tions where the use of particular enhancements by the detaining power on
their own armed forces would reduce the possibility of abuses occurring
through moral enhancement as discussed earlier or through methods such
as optical recording (recording of the video stream of an implanted optical
prosthetic could provide a view much like that of a headcam video feed)
designed to increase rule compliance by detention personnel.49 Although
the use of such technology is likely to raise questions regarding the human
rights of the personnel involved (particularly with regard to self-
character of Travis Verta in Continuum (Reunion Pictures & Shaw Media, 2012–2015), part
of a super-soldier program in which the character is implanted with a control chip that
lowers empathy and compassion while ramping up aggression, making him an unstable
psychopath. For a general discussion of the popular culture trope of the “super-soldier,”
see Super Soldier, TVTROPES, http://tvtropes.org/pmwiki/pmwiki.php/Main/SuperSold
ier (last visited Sept. 29, 2016).
48. CIHL, supra note 25, r. 88.
49. It is well established that people comply with rules, and monitor and regulate their
behavior when they believe that they are under surveillance. See, e.g., Sander van der Lin-
den, How the Illusion of Being Observed Can Make You a Better Person, SCIENTIFIC AMERICAN
(May 3, 2011), http://www.scientificamerican.com/article/how-the-illusion-of-being-obs
erved-can-make-you-better-person/. Jeremy Bentham’s thought experiment of the panop-
ticon and the subsequent discussion by Michel Foucault are classic treatments of the psy-
chological phenomena. MICHEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF
THE PRISON 201 (Alan Sheridan trans., 1977).
446
Soldier 2.0 Vol. 92
incrimination),50 it does not implicate the law of armed conflict per se.
Broadly speaking, the law of armed conflict generally does not concern
itself with the protection of a State’s own forces with regard to detention
issues. This is subject to only limited exceptions in the area of the protec-
tion of the wounded, sick and shipwrecked in international armed conflicts
(which extends to all those who are in need of care or assistance) and in
non-international armed conflicts (where the protection of persons hors de
combat extends to all members of armed forces).51
In applying the principle of protection to treatment of detainees,
whether military or civilian, the law of armed conflict is directly implicated
in a number of circumstances.
1. Coercion
Article 17 of the Third Geneva Convention (GC III) prohibits any form of
coercion being inflicted on prisoners of war (POWs) in order to obtain
information.52 Thus, enhancing a prisoner’s trust in his or her captors, by,
for example, increasing their levels of oxytocin, a hormone tied to social
bonding and sometimes referred to as the “cuddle hormone,”53 would fall
afoul of the sweeping and categorical prohibition of coercion. Coercion of
50. See discussion infra Section IV.D.

51. See generally Jann K. Kleffner, Friend or Foe? On the Protective Reach of the Law of Armed
Conflict, in ARMED CONFLICT AND INTERNATIONAL LAW: IN SEARCH OF THE HUMAN
FACE 285 (Mariëlle Matthee, Brigit Toebes & Marcel Brus eds., 2013) (noting that the
protection granted to the wounded, sick and shipwrecked extends to all those who are in
need of medical assistance or care, provided they refrain from all acts of hostility).
52. Convention (III) Relative to the Treatment of Prisoners of War art. 17, Aug. 12,
1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GC III] (“No physical or mental torture,
nor any other form of coercion, may be inflicted on prisoners of war to secure from them
information of any kind whatsoever. Prisoners of war who refuse to answer may not be
threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any
kind.”).
53. However, recent developments have also shown that oxytocin may have a dark
side. Researchers have shown that negative or stressful social experiences, such as being
bullied while certain structures in the brain have been activated by oxytocin, may make
memories of that experience last long past the event itself and perhaps trigger fear and
anxiety in the future. Lee Bowman, Oxytocin Studies Show Hormone’s Dark Side, ABC 10
NEWS (July 28, 2013), http://www.10news.com/lifestyle/health/medical-oxytocin-studies
-show-hormones-dark-side-07282013.
447
protected persons, e.g., civilian detainees, is similarly prohibited under the

Fourth Geneva Convention (GC IV).54
2. Experimental Treatments
Second, performing any invasive enhancement technique on detainees will

be in breach of the laws regulating the treatment of both POWs and civil-
ian detainees. Explicit treaty law found in GC III and GC IV and custom-
ary international law prohibits “[m]utilation, medical or scientific experi-
ments or any other medical procedure not indicated by the state of health
of the person concerned and not consistent with generally accepted medi-
cal standards.”55 Article 11(2) of AP I further develops that prohibition,
providing, inter alia, that it applies regardless of the consent of the person
concerned. Article 5(2)(e) of Additional Protocol II contains broader lan-
guage prohibiting “any medical procedure . . . not consistent with generally
accepted medical standards” with respect to persons detained in non-
international conflict; however, no specific wording regarding consent is
included. According to the International Committee of the Red Cross, an
amalgamation of these conventional rules is also reflective of customary
law applicable in both international and non-international armed conflicts.56
While the general rule is clear, specific scenarios may be envisaged
where the use of enhancement technology raises interesting legal issues.
One such issue turns on the experimental nature of the treatment. Whether
or not a particular enhancement or treatment is deemed to be experimental
has been the subject of review, particularly after the use of anthrax vaccina-
tions by the U.S. armed forces in the 1991 Gulf War.57 As a general rule,
54. Convention (IV) Relative to the Protection of Civilian Persons in Time of War
art. 31, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GC IV]. It should be
noted that this is not an absolute prohibition and exceptions exist where explicitly provid-
ed for in the Convention, for example in Articles 79–135, which regulate the treatment of
internees.
55. CIHL, supra note 25, r. 92. For specific treaty prohibitions, see Additional Proto-
col I, supra note 13, art. 11; GC III, supra note 52, art. 13; GC IV, supra note 54, art. 32;
Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the
Protection of Victims of Non-international Armed Conflicts art. 5(2)(e), June 8, 1977,
1125 U.N.T.S. 609.
56. CIHL, supra note 25, r. 92.
57. Catherine L. Annas & George J. Annas, Enhancing the Fighting Force: Medical Research
on American Soldiers, 25 JOURNAL OF CONTEMPORARY HEALTH LAW AND POLICY 283
448
Soldier 2.0 Vol. 92
however, if the treatment has been approved by the treating State’s stand-
ards authority, the procedure or treatment will not be viewed as experi-
mental.58
3. Solving Medical Problems through Enhancement
Another scenario raising interesting legal issues occurs when a detainee has
a medical problem or injury that can best be resolved by a form of en-
hancement. One can imagine a situation in which wounded or sick enemy
personnel require treatment and the standard treatment provided by the
detaining power to its own forces would involve the use of an enhance-
ment technique to block pain, promote rapid healing or enhance the im-
mune system.
The United States’ Defense Advanced Research Projects Agency
(DARPA) currently has research programs in photobiomodulation to ac-
celerate wound healing, vaccines that block pain within seconds and chem-
ical cascades to stop bleeding within minutes.59 In addition to these en-
hancements designed to address specific issues, DARPA has also been
seeking nanoplatforms that can be introduced into the body for medical
diagnostics, as well as being used to monitor and treat a broad range of
diseases.60 Although these programs are primarily focused on treatment
rather than enhancement, the technologies described can last for a pro-
longed period of time (the effects of the pain vaccine last for thirty days) or
(2009); Efthimios Parasidis, Human Enhancement and Experimental Research in the Military, 44
CONNECTICUT LAW REVIEW 1117 (2012).
58. This function is performed for example by the Food and Drug Administration in
the United States and Läkemedelsverket in Sweden. Rules relating to experimental treat-
ments and trials are coordinated across the European Union and conducted under EU
directives administered by the European Medicines Agency in accordance with standard-
ized internationally recognized “good clinical practice” rules. See, e.g., Commission Di-
rective 2005/28/EC of April 8, 2005, 2005 O.J. (L 91) 13 (laying down principles and
detailed guidelines for good clinical practice as regards investigational medicinal products
for human use) and incorporated directives.
59. JOEL GARREAU, RADICAL EVOLUTION: THE PROMISE AND PERIL OF ENHANC-
ING OUR MINDS, OUR BODIES—AND WHAT IT MEANS TO BE HUMAN 27–29 (2005).
60. DARPA News, DARPA Effort Targets Illness Faster, Safer and More Effectively,
ASD(R&E) S&T NEWS BULLETIN 6 (June 15, 2012), http://www.acq.osd.mil/chieftechn
ologist/publications/docs/ST_NewsBulletin-V2-I24(15JUN2012).pdf; In Vivo Nanoplat-
forms (IVN), DARPA, http://www.darpa.mil/program/in-vivo-nanoplatforms (last visited
Mar. 21 2016).
449
can be used prophylactically (in the case of the diagnostic nanoplatforms),

and thus fall within the enhancement paradigm. While these research pro-
grams are designed to ensure that U.S. personnel are diagnosed and treated
effectively, their utility in maintaining the health of detainees confined in
close quarters is immediately apparent.
As noted above, customary international law and Article 11 of AP I,
protect any person who is in the power of an adverse party, or who is in-
terned, detained or otherwise deprived of liberty as a result of an armed
conflict. It is prohibited to subject such a person “to any medical proce-
dure which is not indicated by the state of health of the person concerned
and which is not consistent with generally accepted medical standards
which would be applied under similar medical circumstances to persons
who are nationals of the party conducting the procedure and who are in no
way deprived of their liberty.”61 What constitutes generally accepted medi-
cal practice will be determined by medical ethics and the standards adopted
by professional medical bodies, for example, the World Medical Associa-
tion and the World Health Organization.62
In the case of the enhancement techniques being researched by
DARPA, although the particular treatment would be indicated by the med-
ical state of the detainee, intervention would not necessarily conform to
generally accepted medical standards owing to its innovative status. How-
ever, if national authorities for the detaining State have approved the tech-
nology or technique for treatment of its own soldiers and/or citizens as a
standard treatment and it conforms to the best medical interests of the
patient, it may be argued that in those circumstances its use would be con-
sistent with the law. In the commentary on the Copenhagen Guidelines on
the Handling of Detainees in International Military Operations, it is noted
that, although medical assistance should, wherever possible, be conducted
with the consent of the wounded or sick detainee, medical actions to pre-
serve the health of the detainee may be justified even where the detainee

62. See, e.g., World Medical Association, Declaration of Geneva (1948); World Medical
Association, International Code of Medical Ethics (1949); World Medical Association,
Regulations in Times of Armed Conflict and Other Situations of Violence (1956). See also
World Medical Association, Declaration of Helsinki, Ethical Principles for Medical Re-
search Involving Human Subjects (1964) (addressing experimental treatments).
450
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refuses to provide consent.63 It should be noted that this is not the case
with surgical interventions, where the person concerned may refuse an
operation even if the surgeon considers it essential to the person’s surviv-
al.64
In the case of POWs, nanoplatforms designed for medical diagnosis
may not only be permitted, but may also be preferred. Article 31, GC III
requires that POWs undergo medical inspections at least once a month,
specifically requiring that the most efficient methods available for the de-
tection of contagious diseases, as well as for the supervision of the general
health, nutrition and cleanliness of prisoners, be employed.65 With technol-
ogy costs inevitably decreasing over time, nanoplatforms may well become
the most efficient way of monitoring the health of detainees.
4. Detaining Enhanced Personnel
A third scenario emerges when personnel who have previously been en-
hanced are detained. For example, if a detainee is reliant on periodic inges-
tion of a particular substance to maintain their enhancement, management
of the withdrawal of the individual from that substance may be problemat-
ic. What legal consequences may flow from such a situation?
Under GC III, parties are required to repatriate seriously wounded or
sick POWs to their own country.66 This applies in particular to those whose
mental or physical fitness seems to have been gravely diminished; those
who are incurable; those who have recovered, but whose mental or physi-
cal fitness seems to have been gravely or permanently diminished; and
63. THE COPENHAGEN PROCESS ON THE HANDLING OF DETAINEES IN INTERNA-

TIONAL MILITARY OPERATIONS, THE COPENHAGEN PROCESS: PRINCIPLES & GUIDE-
LINES 14–15 (2012), http://um.dk/en/~/media/UM/English-site/Documents/Politics-
and-diplomacy/Copenhangen%20Process%20Principles%20and%20Guidelines.pdf.
65. GC III, supra note 52. Article 31 provides:
Medical inspections of prisoners of war shall be held at least once a month. They shall in-
clude the checking and the recording of the weight of each prisoner of war. Their purpose
shall be, in particular, to supervise the general state of health, nutrition and cleanliness of
prisoners and to detect contagious diseases, especially tuberculosis, malaria and venereal
disease. For this purpose the most efficient methods available shall be employed, e.g. pe-
riodic mass miniature radiography for the early detection of tuberculosis.
66. Id., art. 109.
451
those who require treatment and are unlikely to recover within a year.67
Prisoners who enter detention while enhanced, and subsequently lose their
enhanced capabilities, may appear to have a permanent diminishment in
their physical or mental capabilities. For detaining forces with no
knowledge of an individual soldier’s baseline levels (i.e., the standard unen-
hanced level of whatever capability or function is being measured for that
particular individual), forming an opinion about the difference between an
enhanced soldier and their unenhanced state will necessarily be based on
generalities. However, the purpose of the provisions is to facilitate the
timely repatriation of gravely sick or wounded soldiers who can no longer
return to active service. If the enhancement technology is such that without
their drugs or other means soldiers will return to a normal baseline state of
an unenhanced but otherwise fit-for-duty soldier, they would not qualify
for repatriation. However should the enhancement be such that lack of
maintenance would result in grave and permanent damage to the baseline
status of the prisoner and the detaining power is unable to provide the ap-
propriate treatment in its detention facilities, the prisoner must be trans-
ferred to a military or civilian medical facility where the appropriate treat-
ment can be provided.68
III. HUMAN RIGHTS OF ENHANCED HUMANS
At the outset of this section, it is pertinent to make a point about the sub-
ject of human rights. Despite the enhanced status of members of the mili-
tary or any other person who is the subject of an enhancement (whether
pharmacological, cybernetic, genetic or otherwise), they remain, at their
core, fundamentally human. The preamble of all the universal human rights
instruments refer to “all members of the human family” and in their open-
ing articles address the rights contained therein to “all human beings.”69
Like the universal instruments, regional human rights instruments also use
67. Id., art. 110.

68. Id., art. 30.
69. See, e.g., Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc.
A/RES/3/217(III) (Dec. 10, 1948) [hereinafter UDHR]; International Covenant on Civil
and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]; International
Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3 [here-
inafter ICESCR].
452
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inclusive language encompassing all persons or every human being,70 or in

the case of the European Convention on Human Rights (ECHR) secure
rights to “everyone.”71 Lest the argument be made that a genetic change,
technological implant or biological modification somehow remove the en-
hanced soldier from the human family, it should be recalled that the juris-
prudence of human rights bodies, such as the European Court of Human
Rights (ECtHR), have found breaches of protected rights of those whose
brains are not yet fully formed (in cases involving an unborn child), those
who have physiological differences, those who have genetic or chromoso-
mal abnormalities and those whose bodies have been changed by medical
intervention.72
In determining the contours of human rights for members of the
armed forces, the approach of the Inter-American human rights bodies,73
the European Union and the ECtHR has been to view them as citizens in
uniform. The jurisprudence of the latter court is particularly rich in this
respect, recognizing that human rights law applies in principle to members
of the armed forces, but also acknowledging in a 1976 judgment that when
interpreting and applying the ECHR “the Court must bear in mind the
particular characteristics of military life and its effects on the situation of
individual members of the armed forces.”74 The principle has been applied
in subsequent cases, with the ECtHR observing that the extent of protec-
tion given to members of the armed forces must take into account the
characteristics of military life, the nature of the activities they are required
70. See, e.g., American Convention on Human Rights, Nov. 22, 1969, 1144 U.N.T.S.
123 [hereinafter ACHR]; African Charter on Human and Peoples’ Rights, June 27, 1981,
1520 U.N.T.S. 217 [hereinafter ACHPR].
71. Convention for the Protection of Human Rights and Fundamental Freedoms art.
1, Nov. 4, 1950, 213 U.N.T.S. 222 [hereinafter ECHR].
72. For example, the following European cases all feature complaints in which the
subjects of the rights discussed are still regarded as rights holders. X v. United Kingdom,
App. No. 8416/79, 19 Eur. Comm’n H.R. Dec. & Rep. 244 (1980) (observing that appli-
cation of certain rights prenatally cannot be excluded); H.L. v. United Kingdom, 2004-IX
Eur. Ct. H.R. 197 (complainant with severe autism and learning difficulties); Zarzycki v.
Poland, App. No. 15351/03 (2013) (ECtHR), http://hudoc.echr.coe.int/eng?i=001-
117210 (complainant with forearm prostheses); Tešic v. Serbia, App. Nos. 4678/07,
50591/12 (2014) (ECtHR), http://hudoc.echr.coe.int/eng?i=001-140771 (complainant
with a pacemaker).
73. See, e.g., J.S.C.H. & M.G.S., Case 12.689, Inter-Am. Comm’n on H.R., Report No.
80/15, OEA/Ser.L./V/II.156, doc. 33 (2015).
74. Engel and Others v. Netherlands, 22 Eur. Ct. H.R. (ser. A) (1976).
453
to perform and the risk arising from those activities.75 This approach has
led the ECtHR to provide the State with a considerable degree of latitude
to restrict the human rights of the members of its armed forces during war
or other public emergency threatening the life of the nation.76 The Supreme
Court of the United Kingdom, on reviewing the approach of the ECtHR
to members of armed forces, observed:
These comments, however brief, do seem to make it clear that it would

not be compatible with the characteristics of military life to expect the
same standard of protection as would be afforded by article 2(1) [of the
ECHR] to civilians who had not undertaken the obligations and risks as-
sociated with life in the military. That is plainly so in the context of the
exercise of military discipline over members of the armed forces when
they are on active service. It is hard to see why servicemen and women
should not, as a general rule, be given the same protection against the risk
of death or injury by the provision of appropriate training and equipment
as members of the police, fire and other emergency services. But it is dif-
ferent when the serviceman or woman moves from recruitment and train-
ing to operations on active service, whether at home or overseas. It is
here that the national interest requires that the law should accord the
widest measure of appreciation to commanders on the ground who have
the responsibility of planning for and conducting operations there.77
From a practical standpoint, it should be noted that armed forces com-

posed of volunteers, as opposed to conscript armies, face additional pres-
sure to respect the human rights of their members in order to attract and
retain the desired level and quality of recruits. Although an adult volunteer
can be taken to have consented to certain aspects of military life and the
resulting curtailment of particular rights by the very act of enlistment, the
consent does not amount to a carte blanche waiver of all aspects of the
human rights applicable to the individual.78
International human rights fall into four basic categories: non-
derogable rights, rights which may be derogated from in war or public
emergency threatening the life of the nation, absolute rights and qualified
75. See, e.g., Grigoriades v. Greece, 1997-VII Eur. Ct. H.R.

76. PETER J. ROWE, THE IMPACT OF HUMAN RIGHTS LAW ON ARMED FORCES 59
(2006).
77. Smith and Others v. Ministry of Defence [2013] UKSC 41, ¶ 71.
78. ROWE, supra note 76, at 9–13.
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rights. Qualified rights are rights which may be limited by law in certain
specified circumstances. Both derogable rights and qualified rights may be
significantly curtailed in respect of members of the armed forces. This is
particularly the case in times of armed conflict as many of the limitation
clauses contained in the relevant treaties specifically provide for limitations
and restrictions for reasons of national security and/or public safety. Abso-
lute rights (such as the prohibition against torture or cruel, inhuman or
degrading treatment) remain in full force at all times, unaffected by mem-
bership in an armed force or the existence of an ongoing armed conflict or
other situation affecting national security.
With these preliminary observations in mind, we will now address
some of the human rights implications that flow from human enhancement
technologies.
IV. HUMAN RIGHTS LAW IMPLICATIONS FOR HUMAN ENHANCEMENT

TECHNOLOGIES
It is clear that different enhancement technologies will impact the human

rights of individual soldiers in different ways. This section briefly examines
the impact of these technologies on some of the substantive rights set out
in international human rights instruments.
A. The Right to Life
The right to life applies to soldiers both in peacetime and during armed
conflict, although in the latter case the application is substantially curtailed
by both jurisdictional and contextual matters. While members of the armed
forces fall within the jurisdiction of their own State—whether serving at
home or abroad—incidents involving third parties who are subjected to the
actions of enhanced personnel deployed outside their own country will be
governed by the rules on the extraterritorial application of human rights
law, which in turn depend on whether an individual is subject to a State’s
jurisdiction.79
79. Jurisdiction in the context of human rights law carries a special meaning, on which
the jurisprudence of the ECtHR is still evolving. At present, for individuals to fall within
the jurisdiction of a State, either the territory in which they are located, or the individuals
themselves, must be under that State’s effective control. Case law establishes that individ-
uals held in detention by a State’s armed forces are within the effective control of that
455
The right to life is a non-derogable right, except in respect of deaths re-

sulting from lawful acts of war.80 However, as Rowe points out, “[t]he con-
cept of lawful acts of war is concerned with the obligations a State owes to
those (normally non-nationals) against whom it is engaged in an interna-
tional armed conflict and not its own soldiers.”81 The right to life not only
prohibits States from taking a life without justification, but also implies a
duty on the part of the State to establish a framework of laws and proce-
dures to protect life to the greatest extent reasonably possible under the
circumstances.82 It is in this obligation that the contextual restrictions on
the right to life for members of the armed forces become pertinent. Sol-
diers are expected (and expect) to risk—and even sacrifice—their lives if
necessary in the course of an armed conflict; however, this expectation
does not entirely preclude liability on the part of the State with respect to
the right to life of its own soldiers.
The UK Supreme Court had occasion to consider whether, and to what
extent, the right to life in Article 2 of the ECHR imposes positive obliga-
tions on the government to prevent the deaths of its own soldiers.83 The
Court concluded that, while it must avoid imposing positive obligations on
State. Al-Skeini v. United Kingdom, 2011-IV Eur. Ct. H.R. 99. As a general proposition,
the United States does not consider that human rights law applies extraterritorially: See, e.g.,
United States of America, Fourth Periodic Report of the United States to the U.N. Hu-
man Rights Committee, U.N. Doc. CCPR/C/USA/4, at 142 (May 22, 2012). That under-
standing has been reviewed by the United States in recent years and it now acknowledges
the Torture Convention “applies to certain areas beyond” its sovereign territory, and more
specifically to “all places that the State party controls as a governmental authority.” U.N.
Committee Against Torture, Concluding Observations on the Combined Third to Fifth Periodic
Reports of the United States of America, U.N. Doc. CAT/C/USA/CO/3-5, at 3 (Dec. 19,
2014).
80. See ICCPR, supra note 69, arts. 4, 6; ECHR, supra note 71, arts. 2, 15; ACHR, supra
note 70, arts. 4, 27. The ECHR specifically exempts lawful acts of war under the deroga-
tions provision of Article 15(2). In contrast, both the ICCPR and ACHR are expressed in
terms of a prohibition of arbitrary deprivation of life; death arising from lawful acts of war
are generally not considered arbitrary and therefore would not violate the right in the first
place, rather than requiring a derogation.
81. ROWE, supra note 76, at 137. It should be noted that this is not exclusively the
case.
82. The duty to take positive measures to protect the right to life derives both from
specific statements in the articles of the relevant international treaties that the right should
be protected by law and the general duty of States to ensure the rights recognized in the
various instruments.
83. Smith and Others, supra note 77.
456
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the State which are unrealistic or disproportionate in connection with the

planning or conduct of military operations during armed conflict, it must
give effect to those obligations where it would be reasonable to expect the
individual to be afforded the protection of Article 2.84 The Court then ex-
cluded from the ambit of the Article decisions taken at a high level of
command that are closely linked to the exercise of political judgment and
issues of policy, as well as decisions taken by those actively engaged in di-
rect contact with the enemy. However, the Court was prepared to find
there was room for claims to be brought in the middle ground, while ac-
knowledging a wide margin of appreciation was to be granted to authorities
and to those actively engaged in armed conflict.85 The Court concluded no
hard and fast rules could be established; that each case would require an
exercise of judgment based on its facts.86
The ECtHR itself has yet to consider a case based on the use of exper-
imental technologies by the military, or indeed the extent to which the right
to life in Article 2(1) offers any protection to armed forces members active-
ly engaged in armed conflicts. However, it has been generally recognized
that the right to life must be balanced against the public interest of the
State in conserving the fighting force. In the operational context, the State
possesses a wide margin of appreciation in respect of its determination of
the national interest. As noted above, the margin is significantly curtailed
when personnel are engaged in training, as opposed to active warfighting.87
84. Id. ¶ 76.

85. The concept or doctrine of the “margin of appreciation” describes the amount of
latitude that the court will grant to States before disallowing measures put in place by the
State that interfere with an individual’s rights. The doctrine encapsulates the Court’s
recognition that the measures that a State may consider necessary to interfere with an
individual’s human rights may differ from State to State even within democratic societies.
It also recognizes that national governments are best placed to determine what is neces-
sary for that State rather than an international court. Although primarily a function of the
jurisprudence of the ECtHR, the rationale underlying the doctrine has been applied by
other international human rights bodies such as the Inter-American Court of Human
Rights and the Human Rights Committee. See, e.g., Proposed Amendments to the Natural-
izations Provisions of the Constitution of Costa Rica, Advisory Opinion OC-4184, Inter-
Am. Ct. H.R. (ser. A) No. 4, ¶ 62 (Jan. 19, 1984); U.N. Human Rights Committee,
Hertzberg et al. v. Finland, Communication No. R.14/61, U.N. Doc. A/37/40, at 161, ¶
10.3 (Apr. 2, 1982).
86. Smith and Others, supra note 77, ¶ 76.
87. See, e.g., id. ¶¶ 67–76 (setting out the relevant case law of the Court).
457
In relation to enhancement technologies, the right to life may be in-

fringed where the use of a particular technology poses a risk to the individ-
ual soldier that results in his or her death. For example, fatal side effects of
experimental enhancement technologies may involve an infringement of
this right. Military experimentation, that is, the use of armed forces person-
nel as human test subjects, is replete with examples of horrific experiments
conducted on often unknowing and/or objecting personnel.88
The right to life may also be impacted indirectly by enhanced soldiers
who cause the wrongful death of others while under the influence of their
enhancement, whether occurring during training or while engaged in mili-
tary operations For example, in 2002, in what has become known as the
Tarnack Farms friendly-fire incident, a U.S. Air Force F-16 pilot dropped a
bomb on Canadian troops conducting a firing exercise, believing them to
be Taliban fighters.89 The pilots were returning to base following a ten-
hour night patrol when they reported what they believed to be surface-to-
air fire. In the incident that followed, a combination of reckless behavior,
bad communication and the fog of war led to one of the pilots dropping a
five-hundred pound laser-guided bomb on the Canadian troops, killing
four and wounding eight others. During the subsequent investigation and
disciplinary proceeding, the pilots raised as part of their defense the fact
that they had been told by superiors to use amphetamines during their mis-
sion and had taken dextroamphetamine prior to the incident. Although the
defense was not accepted and the two pilots involved were held responsi-
ble for not following standard operating procedures and the rules of en-
gagement, a number of medically qualified commentators have noted that
the use of amphetamines for longer missions required of pilots by the Air
Force is likely to have led to the pilots’ failure to wait for confirmation of
the targets’ identity and to believe they needed to act in self-defense.90 Not
only are States responsible for the acts of their armed forces, but they also
88. See generally Annas & Annas, supra note 57; Parasidis, supra note 57; George J. An-
nas, Protecting Soldiers from Friendly Fire: The Consent Requirement for Using Investigational Drugs
and Vaccines in Combat, 24 AMERICAN JOURNAL OF LAW & MEDICINE 245 (1998).
89. For a summary of the incident, see Annas & Annas, supra note 57, at 293–97. As
this only indirectly impacts the right to life, no further discussion will be included here.
90. See, e.g., id. at 296. Note, however, that others maintain that it should have im-
proved the pilots’ performance. Thom Shanker & Mary Duenwald, Bombing Error in Af-
ghanistan Puts a Spotlight on Pilots’ Pills, NEW YORK TIMES (Jan. 19, 2003), http://www.ny
times.com/2003/01/19/national/19SPEE.html.
458
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have an obligation where they know of a risk to the lives of those under
their jurisdiction.91
It should be noted that, as with any other possible breach of the right
to life, the right may also be infringed by a State’s failure to investigate ef-
fectively.92 Investigations must be independent, thorough and prompt, with
a sufficient element of public scrutiny of the investigation or its results to
ensure accountability.93 These obligations are unchanged with respect to
deaths that involve human enhancement technologies.
B. Bodily Integrity, Torture, and Inhuman or Degrading Treatment
The right of bodily integrity refers to the collection of rights (including the
right to life) concerned with the inviolability of the human body and right
of the person to determine what may be done to it. Referred to in slightly
different terms under different treaty regimes, these rights incorporate se-
curity of the person,94 the right to humane treatment,95 the prohibition
against slavery,96 and the prohibition against torture and inhuman or de-
grading treatment,97 as well as the prohibition against medical and scientific
experimentation without freely given consent.98 The prohibitions against
slavery, and torture and inhuman or degrading treatment are absolute
rights; States may not, under any circumstances, have recourse to such
treatment or condone it.99 States must, therefore, also take measures to
91. See, e.g., Osman v United Kingdom, 1998-VIII Eur. Ct. H.R. ¶¶ 115–22; Gonzalez
(“Cotton Field”) v. Mexico, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R.
(ser. C) No. 205 (Nov. 16, 2009) (Garcia-Sayan, J., concurring, ¶¶ 3–15).
92. See Human Rights Committee, General Comment No. 6: (Right to Life), U.N.
Doc. HRI/GEN/1/Rev.7, at 129, ¶ 4 (2004).
93. See generally Al-Skeini, supra note 79 (holding that deaths must be investigated effec-
tively and impartially); Velásquez Rodríguez v. Honduras, Merits, Judgment, Inter-Am. Ct.
H.R. (Ser. C) No. 4, ¶¶ 172–77 (July 29, 1988) (holding that States have the duty to inves-
tigate the right to life irrespective of the identity of the perpetrator).
94. UDHR, supra note 69, art. 3.
95. ACHR, supra note 70, art. 5.
96. UDHR, supra note 69, art. 4; ICCPR, supra note 69, art. 8; ECHR, supra note 71,
art. 4; ACHR, supra note 70, art. 6.
97. ICCPR, supra note 69, art. 7; ECHR, supra note 71, art. 3; ACHR, supra note 70,
art. 5(2).
98. ICCPR, supra note 69, art. 7.
99. With respect to the obligation not to condone, see, e.g., Articles 4–8 of the Con-
vention against Torture, which require States to make torture a crime under national laws
459
protect its service personnel against such treatment.100 These prohibitions,

as well as the prohibition against medical and scientific experimentation
without free consent, are also non-derogable rights under both the Interna-
tional Covenant on Civil and Political Rights (ICCPR) and the ECHR.101
Enhancement of military personnel raises interesting questions with re-
spect to the right of bodily integrity on two different levels. The first is the
right of the soldier to consent to or refuse the enhancement and, second,
what effects the enhancement may have on the permissible treatment of
the soldier once enhanced.
The issue regarding the right to refuse an enhancement will largely de-
pend on the nature and status of the technology involved. While approved
medicines may become part of the standard pre-deployment medical re-
gime in the same manner as conventional vaccines, more experimental
technologies may raise legitimate concerns for the personnel involved. In-
deed, many of the issues raised by the use of experimental technologies
have been previously raised and debated with respect to the mandatory
administration of anthrax vaccines which had not yet been approved by the
States’ drug approval agencies.102 Whether a member of the armed forces
has the right to refuse such vaccines will depend on the extent of his or her
right to bodily integrity. The soldier who refuses the vaccine may be pre-
vented from deploying with his or her unit as a potential risk to military
efficiency, the lack of inoculation making him or her unfit for military ser-
vice in a particular region. For example, in 2003 approximately forty Aus-
tralian servicemen and women who were deploying to the Middle East
were ordered to return to Australia after refusing anthrax inoculations en
route.103 No disciplinary measures were taken in that case; however, in
and extradite or prosecute anyone present on their territory that is suspected of having
committed an act of torture. States have a duty to investigate allegations of torture
promptly, impartially and effectively (Articles 12 and 13) and where substantial evidence is
found, perpetrators of torture must be punished. Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S.
85.
100. Committee of Ministers, Human Rights of Members of the Armed Forces, Recommen-
dation CM/Rec(2010)4 (Feb. 24, 2010), https://wcd.coe.int/ViewDoc.jsp?id=1590149&
Site=CM.
101. ICCPR, supra note 69, art. 4(2); ECHR, supra note 71, art. 15.
102. See, e.g., ROWE, supra note 76, at 47.
103. Anthrax Jab Side-Effects Withheld, BBC NEWS (Feb. 21, 2004), http://news.bbc.
co.uk/2/hi/asia-pacific/3509037.stm.
460
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some States refusal has resulted in disciplinary action being taken against
the soldier involved.104
Certainly where the enhancement remains experimental, the soldier will
retain more rights to refuse the enhancement than if it has been approved
for use by the appropriate State authority.105 Regardless of the legal issues
involved, medical ethics require informed consent of the subject for any
experimental treatment. However, serious concerns have been raised by
some authors who argue that true informed consent has been impossible to
achieve in situations involving the military hierarchy,106 citing examples
where pressure (either real or perceived) from senior ranking officers for
soldiers to comply with requests or, in some cases, direct orders to subject
themselves to medical treatment, have removed any genuine ability to re-
fuse.107
The right to bodily integrity is also often expressed as a function of the
right to privacy. The jurisprudence of the ECtHR has provided leading
judgments on the scope and contours of the right. The right to privacy
requires that a State respect everyone’s “private and family life, their home
and correspondence.”108 The Court has noted that the term “private life”
includes the physical and psychological integrity of a person, as well as “as-
pects of an individual’s physical and social identity.”109 Courts in other ju-
104. See, e.g., Court-Martial for Refusing Anthrax Shot, NEW YORK TIMES (Apr. 5, 2003),
http://www.nytimes.com/2003/04/05/nyregion/court-martial-for-refusing-anthrax-shot.
html.
105. Such approval is granted in the United States by the Food and Drug Administra-
tion, the Medicines and Healthcare Products Regulatory Agency in the United Kingdom
and the Läkemedelsverket (Medical Products Agency) in Sweden.
106. See Jo Bird & Greta Bird, Human Rights and the Military: The “Chemical Soldier,” 30
ALTERNATIVE LAW JOURNAL 81, 81–85 (2005); Annas, supra note 88, at 253 n.42 (In the
accompanying text the author points out that, although in principle the soldiers had the
right to refuse a botulinum toxin vaccination, the right was not communicated to them in
the field.).
107. For example, the informed consent form used by the U.S. Air Force specifically
states that although taking Dexedrine is voluntary, refusal to take the amphetamines may
result in a pilot being grounded. Such an outcome would have a major impact on a pilot’s
career. See Naval Strike and Air Warfare Center, NAVMED P-6410, Performance Mainte-
nance during Continuous Flight Operations: A Guide for Flight Surgeons 21 (NAVMED
P-6410), Naval Strike and Air Warfare Center, 1 Jan 2000).
108. ECHR, supra note 71, art. 8. See also ICCPR, supra note 69, art. 17; ACHR, supra
note 70, art. 11; Charter of Fundamental Rights of the European Union arts. 7–9, Dec. 18,
2000, 2000 O.J. (C 364).
109. Pretty v. United Kingdom, 2002-III Eur. Ct. H.R. 154, ¶ 61.
461
risdictions have also viewed the right to refuse medical treatment as a func-
tion of the right to privacy.110 Given that the right to privacy also concerns
the physical integrity of a person, the right may be implicated where the
armed forces require members to undergo enhancements as a requirement
for deployment or to otherwise carry out their duties. Issues have arisen in
the past where the State has required its soldiers deployed in an area in
which it is suspected that the enemy may use chemical or biological weap-
ons to take medically prescribed tablets or inoculations to protect them
against the effects of such weapons.111 The right to privacy has also been
implicated in cases dealing with physical intrusions into the body, for ex-
ample, in the anthrax medication cases discussed above.112
The right is not absolute either for civilians or members of the armed
forces. For example, under the ECHR, States are permitted to restrict the
right of privacy provided that the restriction is in accordance with the law,
pursues a legitimate aim (for example, national security) and is necessary in
a democratic society.113
As to the permissible treatment of individual soldiers once enhanced,
the subject of sleep deprivation provides an interesting example of the type
of issue raised. Sleep deprivation has been denounced on multiple occa-
sions by U.N. human rights bodies,114 including the Committee against
Torture, judicially recognized by the ECtHR as a form of inhuman and
110. See, e.g., In re Quinlan, 70 N.J. 10, 40, 355 A.2d 647, 663 (1976) (basing a decision
to terminate treatment, inter alia, on a constitutional right to privacy).
111. ROWE, supra note 76, at 47.
112. Id.
113. ECHR, supra note 71, art. 8(2) (“There shall be no interference by a public au-
thority with the exercise of this right except such as is in accordance with the law and is
necessary in a democratic society in the interests of national security, public safety or the
economic wellbeing of the country, for the prevention of disorder or crime, for the pro-
tection of health or morals, or for the protection of the rights and freedoms of others.”).
Note that the jurisprudence of the court has also established that any interference with
individual rights must also be proportionate to the legitimate aim sought to be realized.
For an overview of the principle of proportionality as applied by human rights treaty bod-
ies, see Yutaka Arai-Takahashi, Proportionality, in THE OXFORD HANDBOOK OF INTERNA-
TIONAL HUMAN RIGHTS LAW 446–68 (Dinah Shelton ed., 2013).
114. See, e.g., Theo van Boven (Special Rapporteur on Torture and Other Cruel, In-
human or Degrading Treatment or Punishment), Sixth Report pursuant to General Assembly
Resolution 58/164 and Human Rights Commission Resolution 2004/41, U.N. Doc. A/59/324
(Sept. 1, 2004); U.N. Committee against Torture, Report of the Committee against Tor-
ture, ¶¶ 56, 257, U.N. Doc. A/52/44 (Supp.) (Sept. 10, 1997).
462
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degrading treatment,115 and prohibited as a method of interrogation by the

Supreme Court of Israel,116 among others.117 In the case of the ECtHR, the
Court recognized that sleep deprivation caused “intense physical and men-
tal suffering,”118 which surpassed the minimum level of severity to fall with-
in the scope of inhuman treatment under Article 3 of the ECHR. However,
the assessment of the minimum level of severity is relative and depends on
all the circumstances of a case, such as the nature and context of the treat-
ment, the manner and method of its execution, its duration, its physical and
mental effects, and, in some cases, the gender, age and state of health of
the victim.119 Enhancement techniques which reduce the need for sleep or
counteract the harmful effects of sleep deprivation in military personnel are
seen as the holy grail of many defense-funded research projects. Should a
technique be developed which allows personnel to require less sleep, or
drugs developed which counteract the deleterious effects of sleep depriva-
tion—lack of cognitive ability, mental agility etc.—it may call into question
the accepted categorization of sleep deprivation as a prohibited technique
constituting inhuman treatment or in some cases torture, at least in terms
of the prolongation and levels of deprivation for soldiers who are so en-
hanced.
C. Privacy, Thought and Expression
Human enhancement technologies which mediate and/or manipulate in-

formation between the outside world and the brain (such as cybernetic
implants or optical prosthetics) or which inhibit the brain’s ability to make
free choices (such as moral engineering) will also impact the human rights
of those using them. In particular, the rights to privacy and freedom of
thought, conscience, religion and expression find new challenges in these
emerging technologies.
115. Ireland v. United Kingdom, 25 Eur. Ct. H.R. (ser. A) at 58, ¶ 167 (1978).
116. HCJ 5100/94 Public Committee Against Torture in Israel v. State of Israel 53(4)
PD 817, ¶¶ 31–32 (1999) (Isr.), reprinted in 38 INTERNATIONAL LEGAL MATERIALS 1471
(stating that where sleep deprivation amounts to an end in itself for the purposes of break-
ing the suspect, rather than a side effect, it is prohibited).
117. See, e.g., R (on the application of Binyam Mohamed) v. Secretary of State for For-
eign and Commonwealth Affairs, [2010] EWCA (Civ) 65, [2011] Q.B. 218 (Eng.).
118. Ireland v. United Kingdom, supra note 115, ¶ 167.
119. Id. ¶ 162; Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A) at 32, ¶ 100
(1989).
463
In the fields of cybernetics and prosthetics, privacy issues may also be

raised by ocular implants or any other monitoring device which is connect-
ed to a system that has a data recording capability or provides for upload to
a network or the cloud. While external devices such as helmet cameras or
the dual-use Google Glass and its competitors can be removed by the user,
implant technology cannot and would therefore have the capacity for 24/7
image capture or recording. Strict policies will need to be in place in devel-
oping the implant technology and interface and in its use to protect the
privacy of both the user and those with whom they come in contact. Clear-
ly, the recording and outside observation of private family moments will
breach the soldier’s right to a private family life.120
The Universal Declaration of Human Rights (UDHR), ICCPR and
some regional human rights treaties provide everyone (including members
of the armed forces) the “freedom of thought, conscience and religion.”121
While it has thus far been exclusively used in cases dealing with freedom of
religion and the associated right to express that religion, in Kokkinakis v.
Greece the ECtHR noted “it is also a precious asset for atheists, agnostics,
sceptics and the unconcerned.”122 Although specific limitations may be
placed on the external manifestation of this right within the context of mili-
tary life,123 the protection in relation to the internal dimension of freedom
of thought—the forum internum—is absolute and not subject to State inter-
ference. Indeed, Article 18(2) of the ICCPR specifically provides that “[n]o
120. Although privacy is a qualified, rather than absolute, right and therefore subject
to the normal requirements of limitations on interferences with rights (lawful, necessary in
a democratic society to achieve a legitimate aim and proportionate to that aim), it is diffi-
cult to see what legitimate aim might be served that would make routine outside observa-
tion of intimate family moments necessary or proportionate.
121. UDHR, supra note 69, art. 18; ICCPR, supra note 69, art. 18; ECHR, supra note
71, art. 9. Other regional human rights instruments refer solely to freedom of conscience
and religion. Although it should be noted that while the ACHR deals solely with con-
science and religion in Article 12, freedom of thought is included with freedom of expres-
sion in the Article 13. ACHR, supra note 70. The ECHR provides that “[e]veryone has the
right to freedom of thought, conscience and religion; this right includes freedom to
change his religion or belief and freedom, either alone or in community with others and in
public or private, to manifest his religion or belief, in worship, teaching, practice and ob-
servance.” ECHR, supra, art. 9.
122. Kokkinakis v. Greece, 260 Eur. Ct. H.R. (ser. A) at 12, ¶ 31 (1993).
123. As long as the restrictions comply with the requirements of, for example, Article
9(2), ECHR that they are properly prescribed by law, pursue a legitimate aim (e.g., national
security) and are necessary in a democratic society.
464
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one shall be subject to coercion which would impair his freedom to have or
to adopt a religion or belief of his choice.” At first blush this right does not
appear to impact enhancement technologies; however, the advent of brain-
machine interfaces and the suggestion of moral enhancement raise the pos-
sibility of quite literally affecting a person’s ability to think freely. Persson
and Savulescu’s controversial argument for moral enhancement of human
beings goes directly to the very heart of the values protected by this right. 124
“At its most basic, . . . the right seeks to prevent state indoctrination of
individuals by permitting the holding, development, and refinement and
ultimately change of personal thought, conscience and religion.”125 If per-
sonnel are prevented from freely making moral judgments because of a
drug administered to them by State authorities, their fundamental freedoms
may well be violated.
While the current iteration of the problem sounds futuristic, the EC-
tHR has in fact had occasion to address the problem of thought control in
the past. In the Kokkinakis judgment, the Court appeared to suggest that a
breach of the right to freedom of thought, conscience and religion could
occur in cases of severe spiritual coercion or brainwashing, although the
Court suggested that it would also consider such acts to be in breach of
Article 3 (prohibiting torture, inhuman or degrading treatment) of the
ECHR.126 The ECtHR has also recognized the particular vulnerability of
124. PERSSON & SAVULESCU, supra note 45. As noted above, Persson and Savulescu
make the claim in relation to environmental damage and climate change (although they
also mention the threat of nuclear war), but there is the potential for application to the
military in the moral enhancement of soldiers, particularly, although not exclusively, with
those involved in detention after the scandals arising in the Iraq and Afghanistan conflicts.
While abuse of detainees offers the best and most obvious example of immoral behavior,
there are potentially many others which could affect the way soldiers operate, such as in
targeting. However, enhancement of empathy could, in fact, make targeting decisions,
particularly assessment of proportionality, harder on soldiers since it would be much more
difficult for soldiers to accept and live with any collateral damage.
125. JIM MURDOCH, PROTECTING THE RIGHT TO FREEDOM OF THOUGHT, CON-
SCIENCE AND RELIGION UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS 18
(Counsel of Europe Handbooks, 2012), http://www.coe.int/t/dgi/hr-natimplement/
Source/documentation/hb09_rightfreedom_en.pdf.
126. Kokkinakis, supra note 122.
465
military personnel to be influenced by senior officers by virtue of the mili-

tary’s hierarchical structure.127
Closely linked to the right of freedom of thought is the right to free-
dom of expression. For example, Article 10 of the ECHR provides: “Eve-
ryone has the right to freedom of expression. This right shall include free-
dom to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers. . . .”128 Other interna-
tional and regional human rights instruments contain similar or broader
wording.129 Under the American Convention on Human Rights (ACHR),
where freedom of thought and expression are contained in the same article,
the Inter-American Court of Human Rights has recognized the closely
linked “dual aspect” of the right,130 and interpreted it more broadly as a
right of substantive access to information, rather than mere prevention of
interference.131 Needless to say, in respect of its application to members of
the armed forces this right is often qualified.132 Although none of the hu-
man rights instruments specifically mention the armed forces per se, most
provide that the right may be restricted for reasons (among others) of na-
tional security.133 The exception is most commonly used in the military
context for such things as preventing publication of information (usually
books or papers) by members of the armed forces that may compromise
national security.134 However, where soldiers are equipped with cybernetic
implants (brain-machine interfaces) which mediate between an information
source and the brain, the right to “receive and impart information without
interference from a public authority” gains a new dimension.
127. Larissis and Others v. Greece, 1998-I Eur. Ct. H.R. 362. See also FRANCISCO
FORREST MARTIN ET AL., INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN LAW:
TREATIES, CASES AND ANALYSIS 747 (2006).
128. Emphasis added.
129. See, e.g., UDHR, supra note 69, art. 19; ICCPR, supra note 69, art. 19; ACHR, su-
pra note 70, art. 13; ACHPR, supra note 70, art. 9.
130. Compulsory Membership in an Association Prescribed by Law for the Practice
of Journalism (Arts. 13 and 29 American Convention on Human Rights), Advisory Opin-
ion OC-5/85, Inter-Amer. Ct. H.R. (ser. A) No. 5, ¶ 30 (Nov. 13, 1985).
131. Rayes v. Chile, Merits, Reparations, and Costs, Judgment, Inter-Amer. Ct. H.R.
(ser. C) No. 151, ¶¶ 61–103 (Sept. 19, 2006).
133. Interestingly, this limitation does not occur in the ACHPR. ROWE, supra note 76,
at 56. Additional limitations include that such restrictions must be prescribed by law and
necessary in a democratic society.
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There are many technologies which provide additional information to

armed forces personnel, e.g., heads-up displays for fighter pilots and the Q-
warrior augmented reality helmets from BAE Systems,135 which are unlikely
to impact this right. However, there are technologies in development which
are intended to filter data in order to prevent information overload.136 This
may be particularly relevant where the implant or prosthetic removes visual
information from view, or is designed to provide targeting information to
the soldier. According to reports, software has been devised in Germany
which allows for the deletion of visual information by smart glass or con-
tact lens.137 As one futurist was quoted as saying, “[s]o if you decide you
don’t like homeless people in your city, and you use this software and im-
plant it in your contact lenses, then you won’t see them at all.”138 One can
imagine that States may be tempted to remove “extraneous” information
from their already information-overloaded troops to enable them to con-
centrate on the task at hand.
While it is likely that the interference with this right will be governed by
the national security exception (where available), law and policy makers
should be aware of the impact of the technology on freedom of expression
to ensure that a balance between the two is preserved. In particular, there
should be a recognition that this type of technology will impact not only on
the human rights of the personnel involved, but also the ability of those
personnel to comply with such law of armed conflict principles as precau-
tions in attack and proportionality.
135. See Allen Mcouffee, At Last, a Google Glass for the Battlefield, WIRED (Feb. 24,
2014), http://www.wired.com/2014/02/battlefield-glass/.
136. See, e.g., the DARPA-initiated augmented cognition program. COMMITTEE ON
OPPORTUNITIES IN NEUROSCIENCE FOR FUTURE ARMY APPLICATIONS, OPPORTUNITIES
IN NEUROSCIENCE FOR FUTURE ARMY APPLICATIONS 117 (2009), http://www.ncbi.
nlm.nih.gov/books/NBK207983/.
137. Evgeny Morozov, The Perils of Perfection, NEW YORK TIMES, Mar. 3, 2013, at SR1,
http://www.nytimes.com/2013/03/03/opinion/sunday/the-perils-of-perfection.html?_r
=0; Edward Champion, Thirty-five Arguments against Google Glass, RELUCTANT HABITS (Mar.
14, 2013), http://www.edrants.com/thirty-five-arguments-against-google-glass/.
138. Parag Khanna & Ayesha Khanna, The Pleasure and Danger of Augmented Reality, BIG
THINK, http://bigthink.com/hybrid-reality/the-pleasure-and-danger-of-augmented-reality
(last visited Feb. 15, 2016).
467
Fair Trial Rights
The right of everyone, including members of the armed forces, to a fair

trial is provided by, inter alia, Articles 10 and 11(1) of the UDHR, Article 9
of the ICCPR, Articles 5 and 6 of the ECHR, Articles 8 and 25 of the
ACHR, and Article 7 of the African Charter on Human and Peoples’
Rights. These guarantees provide that in the determination of their civil
rights and obligations, or of a criminal charge against them, everyone is
entitled to a fair and public hearing within a reasonable time by an inde-
pendent and impartial tribunal established by law. In addition to the specif-
ic rights enumerated in the text of the articles, additional guarantees have
been developed through the jurisprudence of courts and tribunals.139 Addi-
tional rights are also found elsewhere in the conventions: no punishment
without law (Article 7, ECHR; Article 9, ACHR) and the right not to be
tried or punished twice for the same offense (ne bis in idem) (Article 4, Pro-
tocol 7 to the ECHR140).
Military justice is a complex field in which a great variety of national
systems operate.141 States vary in the way they differentiate between military
disciplinary matters and criminal offenses, in the type and composition of
the courts dealing with military offenses, and in the putative independence
of the staff investigating, prosecuting or reviewing cases vis-á-vis the chain
of command. Each type of system raises different challenges for the human
rights of armed forces members; however, the impact of human enhance-
ment technologies on fair trial rights guaranteed under the various human
rights treaties is the same regardless of the military or civilian status of the
court. That said, there are certain technologies which may have an impact
139. For example, under the European system these include the right to have access
to a court, the right to remain silent and not incriminate oneself, the right to equality of
arms and the right to an adversarial proceeding. See generally Human Rights Committee,
General Comment 32, Article 14: Right to Equality before Courts and Tribunals and to a
Fair Trial, U.N. Doc. CCPR/C/GC/32 (Aug. 23, 2007).
140. Protocol 7 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms, Nov. 22, 1984, E.T.S. 117.
141. For a description of different types of military justice systems and the human
rights of the armed forces in the States participating in the Organization for Security and
Co-operation in Europe, see OFFICE FOR DEMOCRATIC INSTITUTIONS AND HUMAN
RIGHTS, ORGANIZATION FOR SECURITY AND CO-OPERATION IN EUROPE, HANDBOOK
ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS OF ARMED FORCES PERSONNEL
(2008).
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on fair trial rights that are more likely to be initially implemented by the
military.
Articles 14(3)(g) of the ICCPR and 8(2)(g) of the ACHR contain an ex-
press right not to be compelled to testify against oneself or to confess guilt.
Within the European system the right to silence and the privilege against
self-incrimination are not found in the text of the ECHR, but have been
developed through the case law of the ECtHR.142 The Court has noted that
“the . . . right to silence and the right not to incriminate oneself are general-
ly recognized international standards which lie at the heart of a fair proce-
dure under Article 6.”143 As always, it will depend on the nature of the
technology involved; however, it is foreseeable that certain brain-machine
interfaces and implants (such as ocular implants) may impact on this right
for military personnel. For example, if an ocular implant is recording and
transmitting everything that a soldier sees, a question arises over whether
this will impact the privilege against self-incrimination in any subsequent
proceeding regarding incidents portrayed in the footage. Generally speak-
ing, the privilege against self-incrimination can operate to prevent the use
of compelled information in subsequent criminal proceedings.144 Objective
evidence such as video footage (for example, from a helmet or body cam-
era) does not fall within this right, as it is not communicative evidence and
can be compelled to be provided by the user for a legitimate purpose. Ar-
guably, however, one might draw a distinction between those implants that
require some form of cognitive processing of the data by the individual and
those which are merely a direct video feed and operate in much the same
way as a helmet camera.
More traditional protections of this right, namely against the use of
more directly coercive practices by the government to extract self-
incriminatory evidence, will also adapt to the new technologies involved.
Evidence obtained through the use of biochemical enhancers, such as oxy-
tocin and other chemicals intended to make detainees more cooperative,
will raise the same legal issues from a human rights perspective as the use
142. See, e.g., K v. Austria, App. No. 16002/90, (ECtHR), http://hudoc.echr.coe.int/

eng?i=001-57830 (noting the ECHR’s right against self-incrimination).
143. Heaney and McGuinness v. Ireland, 2000-XII Eur. Ct. H.R. 419, ¶ 40.
144. Note that the exercise of this privilege differs across jurisdictions. In respect of
the ICC, see Rome Statute of the International Criminal Court arts. 67(1)(g), 69(7), July 17,
1998, 2187 U.N.T.S. 90. For an account of the English domestic legal tradition, see PAUL
ROBERTS & ADRIAN ZUCKERMAN, CRIMINAL EVIDENCE ch. 4 (2004).
469
of truth serums has in the past.145 They are also likely to be open to the
same criticisms, i.e., they make a person more susceptible to outside sug-
gestion, thereby increasing the likelihood that the person would recall false
memories and thus falsely incriminate themselves (or others). Use of bio-
chemical enhancers would be specifically prohibited by the fundamental
rights and freedoms contained in the Swedish Instrument of Government,
which specifically provides protection against any “medical influence aimed
at extorting or suppressing statements.”146 While the Swedish approach is
generally considered to be reflective of customary law,147 it is interesting to
note that in March, 2013, a judge in the United States approved the use of
“truth serum” on James Holmes, the defendant in the Aurora, Colorado
mass shooting incident.148
Other enhancements which affect memory recall will also create issues
for fair trial rights. For example, research is ongoing into the use of beta-
blockers and other pharmaceuticals to reduce the impact of traumatic
memory formation.149 Other proof-of-concept research is currently being
carried out involving the manipulation of mouse memories to add emo-
tional content.150 Both projects have potential military application in the
145. See, e.g., John M. MacDonald, Truth Serum, 46 JOURNAL OF CRIMINAL LAW,
CRIMINOLOGY, AND POLICE SCIENCE 259 (1955) (on the effectiveness of “truth” serums
generally); The Legal Prohibition against Torture, HRW (last updated June 1, 2004), https://w
ww.hrw.org/news/2003/03/11/legal-prohibition-against-torture#serums. See generally Jal-
loh v. Germany, 2006-IX Eur. Ct. H. R. 281, ¶¶ 103–23 (ruling that the use of a drug to
compel evidence—in this case an emetic—violated the right to a fair trial).
146. REGERINGSFORMEN [RF] [CONSTITUTION] 2, 5 (Swed.), reprinted in The Instrument
of Government, SVERIGES RIKSSDAG, https://www.riksdagen.se/en/How-the-Riksdag-wo
rks/Democracy/The-Constitution/The-Instrument-of-Government/ (then follow “The
Instrument of Government” hyperlink) (last visited Feb. 10, 2016).
147. See, e.g., the broad wording of Article 55(1)(b) of the Rome Statute, which is
considered reflective of customary international law and provides that a person “shall not
be subjected to any form of coercion, duress or threat, to torture or to any other form of
cruel, inhuman or degrading treatment or punishment” (emphasis added).
148. Ed Pilkington, Judge Approves Use of “Truth Serum” on Accused Aurora Shooter James
Holmes, THE GUARDIAN (Mar. 12, 2013), http://www.theguardian.com/world/2013/
mar/12/judge-approves-truth-serum-james-holmes. Truth serum was approved for the
purposes of determining the insanity or otherwise of the accused in the event that he
claimed an insanity defense.
149. Jim Giles, Beta-blockers Tackle Memories of Horror, NATURE, 436, 448–49 (28 July
2005).
150. Nick Bilton, Computer-Brain Interfaces Making Big Leaps, NEW YORK TIMES, Aug. 4,
2013, at B4, http://bits.blogs.nytimes.com/2013/08/04/disruptions-rather-than-time-co
470
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reduction of incidents of post-traumatic stress disorder in military person-

nel returning from combat tours. However, the fact that a soldier has un-
dergone any form of memory manipulation will create doubt as to their
reliability as a witness, either in their own defense or against another in a
court action.
V. HUMAN RIGHTS ASPECTS OF REINTEGRATING ENHANCED

SOLDIERS INTO CIVILIAN SOCIETY
Once enhanced soldiers have completed their service and seek to return to
civilian life, attention will have to be given to both the rights of the soldiers
returning and to the wider societal impact of the presence of enhanced
veterans in the population.
A. Removal of Enhancements
One of the major issues to be addressed will be what happens to the en-
hancements of enhanced soldiers once they leave the armed forces. Lin and
his co-authors have raised the question of whether soldiers should be re-
quired to have any enhancements removed before integration back into
civilian society so as not to give enhanced personnel an unfair advantage in
the civilian workplace.151 However, the legal situation regarding removal of
enhancements is far from certain. For example, the ownership of medical
devices (and even of the data received from them) differs across jurisdic-
tions. From an ownership perspective, there may be a difference between
implantable technology and prosthetics (albeit intimately connected ones).
While some technologies may rightly be considered materiel of the armed
forces and be required to be relinquished on exit from the armed forces—
perhaps to be replaced by a more civilian-appropriate version, for example,
in the case of a forearm prosthesis—other technologies may more properly
be viewed as having become the property of the individual soldier.152
mputers-might-become-panacea-to-hurt/ (reporting that the scientists were able to add

negative emotion to a neutral memory and make a mouse believe that it had been given an
electric shock at a different location from that where the shock had actually occurred).
151. LIN, MEHLMAN & ABNEY, supra note 22, at 71. This issue is discussed in more
detail in Section V.B infra.
152. To take a current example, pacemakers and implantable defibrillators become
the property of the patient.
471
Careful research will be required to establish the physiological effects

of the removal of any enhancements embedded within the body. For ex-
ample, any cybernetic or brain-machine interface implanted in the brain
may disrupt the normal functioning of neural pathways as the brain adapts
to the new technology.153 It is possible that subsequent removal of the im-
plant may cause neurological damage if the brain is unable to reestablish its
previous pathways or otherwise compensate for the loss of the technology.
Thus, the removal of the enhancement could potentially violate the sol-
dier’s rights to bodily integrity and an adequate standard of healthcare,154 or
in severe cases amount to inhuman or degrading treatment.
In addition to any physiological harm, close attention must also be paid
to the psychological effects of removing enhancements. Depending on the
type of enhancement and the length of time the soldier has been using it,
enhanced abilities may become part of the soldier’s personal identity such
that removal of them would be unduly traumatic. Any removal may impact
the rights to bodily integrity and privacy (in respect of the soldier’s psycho-
logical identity), and in some cases cruel, inhuman or degrading treatment.
Thus, care must be taken even when replacing a militarily-optimized en-
hancement for a more civilian-appropriate one to ensure similar functional-
ity is provided. For example, a cutting-edge, mind-controlled forearm pros-
thetic, which has the ability to relate sensation back to the brain, should not
be replaced with an inert mechanical claw.
B. Societal Rights and Discrimination
The concern about the impact of reintegrating military veterans into civil-
ian society extends also to their treatment by mainstream society. If en-
hanced veterans were to present a significant threat to unenhanced workers
in terms, for example, of lost job opportunities, the societal tendency to
153. Functional plasticity, that is the brain’s (limited) ability to adapt and form new
neural pathways, is well documented, particularly in instances of traumatic stress. Given
that members of the armed forces are routinely deployed into situations which expose
them to high levels of traumatic stress, this is of increased importance to military patients.
154. UDHR, supra note 69, art. 25; ICESCR, supra note 69, art. 12. See also European
Social Charter art. 13(1), Feb. 26, 1965, 529 U.N.T.S. 89 (ensuring a right to healthcare).
Healthcare is understood to include the preservation of mental and physical health
through medical services. See also DIRECTORATE GENERAL OF HUMAN RIGHTS AND LE-
GAL AFFAIRS, COUNCIL OF EUROPE, HUMAN RIGHTS OF MEMBERS OF THE ARMED
FORCES 61, CM/Rec, at 4 (2010).
472
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discriminate against perceived outsiders is likely to emerge. Of course, such

a reaction will be based in part on the level of penetration of the particular
technology from the military into the civilian society; those enhancements
which began as civilian technologies and were subsequently adopted by the
military may be better accepted.
States have a duty to secure to their citizens (including members of the
armed forces) their rights and freedoms without discrimination. For exam-
ple, the UDHR provides for “equal protection against any discrimination in
violation of this Declaration.”155 Article 26 of the ICCPR provides, “the
law shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race,
colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status.” The ECHR contains almost identi-
cal wording with the addition of “association with a national minority” as a
protected class.156 The ACHR refers to “other social condition” rather than
status.157
Discriminating against an enhanced veteran would not necessarily con-
stitute prohibited grounds for discrimination under any of the applicable
human rights instruments. However, while enhancement does not fall with-
in any of the named categories, none of the lists of grounds for discrimina-
tion in the conventions are exhaustive.158 In Kjeldsen, Busk Madsen and Peder-
sen v. Denmark the ECtHR suggested that “status” referred to “a personal
characteristic by which persons or groups of persons are distinguishable
from each other.”159 Although it may be dependent on the particular tech-
nology involved, enhancements may well come within that definition and
fall into the “or other status” category set out in the conventions. It should
155. UDHR, supra note 69, art. 7. See also Protocol No. 12 to the Convention for the
Protection of Human Rights and Fundamental Freedoms art. 1, Nov. 4, 2000, E.T.S. No.
177 (creating a “free-standing” non-discrimination provision).
156. ECHR, supra note 71, art. 14.
157. ACHR, supra note 70, art. 1(1).
158. See, e.g., Committee on Economic, Social and Cultural Rights, General Comment
No. 20: Non-Discrimination in Economic, Social and Cultural Rights (art. 2, para. 2, of
the International Covenant on Economic, Social and Cultural Rights), U.N. Doc.
E/C.12/GC/20, ¶¶ 15, 20–35 (July 2, 2009) (discussing the need for a flexible approach
to “other status” and further examples of prohibited grounds of discrimination including,
inter alia, disability, nationality, age and health status).
159. Kjeldsen, Busk Madsen and Pedersen v. Denmark, 23 Eur. Ct. H.R. (ser. A) at
24–25, ¶ 56 (1976).
473
be noted that the principle of non-discrimination is not an absolute right.

For example, it will not be violated if the distinction between individuals in
analogous situations has an objective and reasonable justification, which
must be assessed in relation to the aim and effects of the measures taken. 160
The aim must be legitimate and the measures proportionate to that aim.
Thus, for example, a person denied employment because of an optical im-
plant capable of image recording may not have a claim he or she has been
discriminated against if the job involves working with sensitive or classified
information. Preventing the risk that the implant may provide access to
information to third parties is likely to be considered a legitimate objective
and the decision to employ a person without such an enhancement is likely
to be considered an appropriate and proportionate solution.
VI. ACCOUNTABILITY AND INDIVIDUAL CRIMINAL RESPONSIBILITY
A. State Responsibility
A State considering the use of enhanced soldiers must also consider its
responsibility for the acts of its organs under the doctrine of State respon-
sibility.161 The State remains responsible for acts carried out by State organs
(including individuals) in their official capacity regardless of whether that
State organ was acting ultra vires or contrary to instructions, or if the State
knew of its actions.162 The same rules apply to persons and entities that are
empowered to exercise elements of governmental authority, but who are
not State organs (for example, State contractors, such as prison guards,
who are engaged to provide services).163
160. HUMAN RIGHTS OF MEMBERS OF THE ARMED FORCES, supra note 154.
161. While this article deals primarily with the impact of enhancement of the armed
forces, the issues addressed apply equally to members of the intelligence services and other
State organs. To cite a fictional example, the main characters in the Bourne series of mov-
ies (played by Matt Damon & Jeremy Renner) featuring enhanced individuals have both
worked in different programs run by the intelligence services of the United States.
162. Draft Articles on Responsibility of States for Internationally Wrongful Acts art.
7, Report of the International Law Commission, 53d Sess., Apr. 23–June 1, July 2–Aug.
10, 2001, U.N. Doc. A/56/10, GAOR 56th Sess., Supp. No. 10 (2001), reprinted in [2001] 2
YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 32, U.N. Doc. A/CN.4
/SER.A/2001/Add.1 (Part 2).
163. Id., arts. 5, 7.
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The rules of State responsibility deal with the responsibility of States

for internationally wrongful acts attributable to them. It thus involves two
elements: first, that the act is attributable to the State and, second, that the
act constitutes a breach of an international obligation of the State.164 Hu-
man enhancement technologies may play a role in determining whether or
not this obligation has been breached. That is, an illegal act committed by
an enhanced soldier might not be an internationally wrongful act because
of the circumstances of his or her enhancement.
As a matter of general public international law, the law of State respon-
sibility does not concern itself with subjective criteria such as the mental
element, but is premised on the idea of objective liability.165 It is the act or
omission of the State which matters, regardless of any intent or fault. How-
ever, whether or not there has been a breach of a primary rule may depend
on the intention or knowledge of the relevant State organs or agents.166 For
example, the crime of genocide requires the specified acts to be committed
with the intent to destroy, in whole or in part, a particular group.167 If the
enhancement technology under consideration has destroyed the individu-
als’ capacity to form the requisite intent,168 it will not be possible to estab-
lish that the breach of an international obligation by the State has oc-
curred.169
Likewise with primary obligations containing a knowledge requirement;
in the Corfu Channel case, Albania was held responsible to the United King-
dom for damage to two Royal Navy warships which struck mines laid in its
territorial waters, because it knew or ought to have known of the mines’
presence and failed to warn other States.170 When dealing with the subject
164. Id., art. 2.

165. See generally JAMES CRAWFORD, STATE RESPONSIBILITY: THE GENERAL PART
60–61 (2013).
166. JAMES CRAWFORD, THE INTERNATIONAL LAW COMMISSION’S ARTICLES ON
STATE RESPONSIBILITY: INTRODUCTION, TEXT, AND COMMENTARIES 81–82 (2002).
167. Convention on the Prevention and Punishment of the Crime of Genocide art. 2,
Dec. 9, 1948, 102 Stat. 3045, 78 U.N.T.S. 277.
168. See Section VI.B infra for a discussion of individual responsibility.
169. On the question of the need, or lack thereof, to attribute intent in the context of
State responsibility for genocide, see Marko Milanovic, State Responsibility for Genocide, 17
EUROPEAN JOURNAL OF INTERNATIONAL LAW 553, 553–604, 567–69 (2006); Andre
Nollkaemper, Concurrence between Individual Responsibility and State Responsibility in International
Law, 52 INTERNATIONAL AND COMPARATIVE LAW QUARTERLY 615, 633 (2003).
170. Corfu Channel (U.K. v. Alb.), Judgment, 1949 I.C.J. 4 (Apr. 9).
475
of human enhancement, and particularly with cybernetics, it must be asked

what it means to know something.
Similar questions arise with a State that provides aid or assistance or di-
rection and control in the commission of an internationally wrongful act by
another State.171 For the providing State to be held responsible, the aid,
assistance, direction or control must be provided with knowledge of the
unlawfulness of the subsequent act by the second State. For example, in
the Bosnian Genocide case, the ICJ found that while there was little doubt
that the atrocities committed in Srebrenica were committed with resources
possessed as a result of the “general policy of aid and assistance” by Serbia
and Montenegro, it was not established that Serbia was aware that the
“perpetrators had the specific intent characterizing genocide.”172 The
standard required by Article 16 (with respect to aiding and assisting) of the
Draft Articles on State Responsibility of States is that the assisting State
had specific knowledge, crucially, of an internationally wrongful act with a
high degree of particularity,173 and that it intended to facilitate the wrongful
conduct through its aid or assistance. Therefore, if a State supplies en-
hancement technologies to another State for the purposes of enhancing
their armed forces in such a manner that renders the soldiers incapable of
determining the wrongfulness of their conduct, any subsequent breach of
an international obligation by the receiving State would not engage the
responsibility of the assisting State unless at the time the assistance was
provided it had specific knowledge of the particular abuses or wrongful
acts that would be committed.
B. Individual Responsibility
Questions of responsibility and autonomy may also be asked at the indi-

vidual level. For example, if a soldier’s fear or remorse for their past actions
is removed or diminished through pharmacological enhancement, what
does that mean for the autonomy of the individual combatant? An essential
171. See Draft Articles on Responsibility of States, supra note 141, arts. 16, 17.
172. Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosn. & Herz. v. Serb. and Montenegro), Judgment, 2007 I.C.J. 43, ¶ 422
(Feb. 26).
173. Id. ¶¶ 423–24. See also Christian Dominicé, Attribution of Conduct to Multiple States
and the Implication of a State in the Act of Another State, in THE LAW OF INTERNATIONAL RE-
SPONSIBILITY 286 (James Crawford, Alain Pellet & Simon Olleson eds., 2010).
476
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and related question is how does that impact the individual’s responsibility
for any breaches of the law of armed conflict on the battlefield while so
enhanced?
1. Free Will
At the extreme end of enhancement technology lays the risk that certain
enhancements could interfere with the free will of the individual being en-
hanced. Such a determination would interfere with the individual’s capacity
to form the mens rea necessary to be held responsible for his or her actions
under international criminal law. Article 30 of the Rome Statute of the In-
ternational Criminal Court (ICC) sets out the customary law standard for
the mental element required when no specific rules regulate the mens rea,174
indicating a person will only be held criminally liable for their acts where
they are committed with intent and knowledge. The intent requirement can
be divided into two parts. First, the person must intend to perform the
specific act, i.e., they “mean to engage in the conduct” described in the
crime.175 Second, if the definition of the crime requires that a particular
consequence results from the act (for example, the death of a person), the
perpetrator must either “mean to cause that consequence” or at least be
“aware that it will occur in the ordinary course of events.”176
The use of human enhancement technologies may affect these re-
quirements in a number of ways. For example, where prosthetics are con-
trolled by cybernetic implants, such as an advanced military exoskeleton,
the implant may be subject to interference either by the soldier’s State or
through a third party hacking the device. This would provide a defense
similar to that of automatism, which occurs when the person involved
proves it was an involuntary action over which he or she had no control.177
It is not just the control of prosthetics which may be compromised.
Research conducted at the University of Washington on human-to-human
interfaces enabled a researcher to control the hand movements of a col-
174. Rome Statute, supra note 143, art. 30. See also GERHARD WERLE, PRINCIPLES OF
INTERNATIONAL CRIMINAL LAW 104–6 (2d ed. 2005).
175. Rome Statute, supra note 143.
176. Id.
177. See generally WERLE, supra note 153, at 105 (noting that automatism prevents
criminal responsibility for crimes under international law).
477
league across campus.178 As the experiment routed the control commands

via the Internet, the controlled subject could have been geographically situ-
ated anywhere in the world, including a war zone. Control over the finger
by the researcher involved in the study might equally be control over a
soldier’s finger on a weapon’s triggering mechanism. This would negate the
intention of the soldier not to perform the specific act, provided the will of
the controller to move the finger can overrule the will of the soldier not to
move it.
Likewise, moral enhancement, even if done for allegedly virtuous pur-
poses, may well be seen as interfering with the free will of an individual to
make their own choice by making the thought of acting in a contrary man-
ner to what has been determined to be moral repugnant to them. The po-
tential for abuse is obvious. Whether or not military personnel who have
undergone such enhancement remain individually responsible for their
actions will necessarily need to be determined on the basis of the en-
hancement technology and its capacity to interfere with their capability to
appreciate the unlawfulness of their actions. In the case of specific instanc-
es of interference, forensic psychologists who deal with matters of free will
in criminal cases not involving enhancements will need to be augmented by
those with particular knowledge of the technologies concerned.
It is possible that enhancement technology may also impact on the
knowledge requirement of individual responsibility. Where a crime requires
the existence of certain circumstances, it is normally sufficient in establish-
ing liability to prove that the perpetrator was aware that those circumstanc-
es existed.179 For example, attacking a person in the knowledge that they
are hors de combat requires merely an awareness of that person’s inability to
continue to participate in combat, rather than a correct legal assessment of
their legal status. Where a crime requires knowledge of a descriptive mate-
rial fact, sensory perception is all that is required. Naturally, enhancement
techniques may either enhance or filter sensory perception, and will thus
need to be taken into account when determining the individual’s
knowledge of the material facts, particularly where the relevant enhance-
ment allows the user to interface directly with vast amounts of raw data.
178. Doree Armstrong & Michelle Ma, Researcher Controls Colleague’s Motions in 1st Hu-
man Brain-to-Brain Interface, UW TODAY (Aug. 27, 2013), http://www.washington.edu/
news/2013/08/27/researcher-controls-colleagues-motions-in-1st-human-brain-to-brain-
interface/.
179. Rome Statute, supra note 143, art. 30. See also WERLE, supra note 153, at 105.
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Where the material fact in question is normative in nature, i.e., it re-

quires a value judgment, it is sufficient if the perpetrator knows the funda-
mental factual circumstances and comprehends the significance or social
relevance of the incriminating conduct.180 It is possible that enhancement
technologies such as moral enhancement may interfere with the ability of
the individual to comprehend the social relevance of the facts; however, it
seems likely that any such enhancement technique would be banned for
that very reason before ever being fielded.
One final point to note is that many crimes contain a required specific
mental element. For example, “intentionally directing attacks against the ci-
vilian population,”181 “willful killing”182 and “willfully causing great suffer-
ing”183 under the Rome Statute. Likewise, its Elements of Crimes contain
references to the mental element such as “knew or should have known”184
and “was aware of,”185 inter alia, which may be affected by the use of human
enhancement technologies. Each of these mental elements will need to be
assessed on a case-by-case basis in light of the impact of the particular
technology on the individual’s ability to meet those requirements.
2. Excused and Diminished Responsibility
The Rome Statute excludes a defendant from criminal responsibility where

that person suffers from a “mental defect” or “was in a state of intoxica-
tion that destroys that person’s capacity to appreciate the unlawfulness or
nature of his or her conduct, or to control his or her conduct to conform
to the requirements of the law.”186 The intoxication defense does not pre-
180. For example, those elements of crime involving value judgements such as “in-
humane” or “severe.” See WERLE, supra note 153, at 105–6; COMMENTARY ON THE ROME
STATUTE OF THE INTERNATIONAL CRIMINAL COURT 902 (Otto Triffterer ed., 2d ed.
2008).
181. Rome Statute, supra note 143, art. 8(2)(b)(i) (emphasis added).
182. Id., art. 8(2)(a)(i) (emphasis added).
183. Id., art. 8(2)(a)(iii) (emphasis added).
184. International Criminal Court, Elements of Crimes art. 8(2)(b)(vii), U.N. Doc.
PCNICC/2000/1/Add.2 (Nov. 2, 2000) (emphasis added).
185. Id., art. 7(1)(e) (emphasis added). See WERLE, supra note 153, at 106–9.
186. Rome Statute, supra note 143, art. 31(1)(b) (But excepting situations when “the
person has become voluntarily intoxicated under such circumstances that the person
knew, or disregarded the risk, that, as a result of the intoxication, he or she was likely to
engage in conduct constituting a crime within the jurisdiction of the Court.”).
479
suppose a specific substance (for example, both drink and drugs are cov-
ered); however, it is intended to apply only to external substances intro-
duced into the body.187 The use of pharmaceutical enhancements may fall
within this category, as by analogy may other enhancements such as brain-
machine interfaces where they have the same effect as that necessary for a
mental defect or intoxication to provide a defense to a criminal charge.
However, any enhancement which acts on the body’s own functions, for
example by adjusting body chemistry or genetics to create an ability within
an individual to trigger increased levels of adrenaline or other neurochemi-
cals at a later time, would not give rise to the defense of intoxication as the
intoxicating agent would be a naturally formed (endogenic) substance.188
The defense of intoxication is not available in circumstances where the
individual was voluntarily intoxicated when they either knew or disregarded
the risk that they would likely engage in conduct constituting a crime.189
There is a very real question to be considered on whether the taking of an
enhancement drug which can mean success or failure of the mission—and
in some cases literally the difference between life and death—can ever be
considered truly voluntary in a hierarchical military system. This echoes the
arguments about true informed consent in the military setting.190 There is
certainly evidence of the pressure on U.S. troops to take drugs (both for
performance enhancement in the case of Air Force pilots and prophylacti-
cally in the case of anthrax vaccines for ground troops in Iraq), indicating
that the voluntary nature of such enhancements could be called into ques-
tion.191 Even if the defense is available, then clearly the question of whether
187. COMMENTARY ON THE ROME STATUTE, supra note 159, at 876–77.

188. Id. For an historical example, see the Viking berserker’s legendary fighting frenzy
which appeared to leave them impervious to pain and with heightened physical ability on
the battlefield. There are different theories about its origins. Ingestion of fly agaric mush-
rooms or the bog myrtle plant would speak to the availability of the intoxication defense
(albeit negated by its voluntary consumption), however, a self-induced frenzy or hysteria
(another of the theories) would not.
189. Rome Statute, supra note 175, art. 31(1)(b).
190. Not only are the stakes much higher in terms of mission success, but the lives at
stake are not only those of the individuals taking the drugs. LIN, MEHLMAN & ABNEY,
supra note 22; Michael L. Gross, Military Medical Ethics: A Review of the Literature and a Call to
Arms, 22 CAMBRIDGE QUARTERLY OF HEALTHCARE ETHICS 92 (2013).
191. The consent form for U.S. Air Force pilots using dexedrine states that pilots may
be grounded for “safety reasons” in the event that they refuse to carry the pills. See supra
note 106 and accompanying text. The two pilots in the Tarnak farms incident also stated
480
Soldier 2.0 Vol. 92
the enhancement (whether pharmaceutical, implant or otherwise) affected

the soldiers capacity or control to a sufficient degree such as to relieve
them of criminal responsibility is a factual question that would have to be
assessed on a case-by-case basis depending on the particular enhancement
involved and the individual’s reaction to it.
In either event, it is not sufficient that the defect or intoxication merely
diminishes the person’s capacity of appreciation or control; it must destroy
the person’s ability to realize that he or she is acting unlawfully or, if the
person is aware of the unlawfulness of the conduct, lacks the ability to con-
trol it according to the requirements of the law.192
A more likely outcome in criminal trials where the use of enhancement
technology by military personnel is implicated is the argument that the use
of the enhancement diminishes, rather than negates, the responsibility of
the personnel involved. The “special defense” of diminished responsibility
is provided for in the Rules of Procedure and Evidence of the ICC,193 and
the rules of both the International Criminal Tribunal for the former Yugo-
slavia (ICTY) and the International Criminal Tribunal for Rwanda
(ICTR).194 It provides for a plea of “substantially diminished mental capaci-
ty” as a mitigating circumstance in determining a sentence. As the ICTY
Appeals Chamber in Čelebići noted, unlike the insanity defense that requires
destruction of the defendant’s mental capacity, the mere impairment of
that they felt pressure to take the pills, citing fear that they would be “scrubbed from the
mission” if they did not do so. Shanker & Duenwald, supra note 90.
192. COMMENTARY ON THE ROME STATUTE, supra note 159, at 547.
193. International Criminal Court, Rules of Procedure and Evidence r. 145(2), ICC-
ASP/1/3 (part II-A) (2002) (“In addition to the factors mentioned above, the Court shall
take into account, as appropriate: (a) Mitigating circumstances such as: (i) The circum-
stances falling short of constituting grounds for exclusion of criminal responsibility, such
as substantially diminished mental capacity or duress . . . .”). See also Rome Statute, supra
note 175, art. 78(1).
194. Rule 67(a)(ii)(b) of the rules of procedure and evidence for both the ICTY and
ICTR provide, “Within the time-limit prescribed by the Trial Chamber or by the pre-trial
Judge appointed pursuant to Rule 65 ter: (i) the defence shall notify the Prosecutor of its
intent to offer: (b) any special defence, including that of diminished or lack of mental
responsibility.” See respectively International Tribunal for the Prosecutions of Persons
Responsible for Serious Violations of International Humanitarian Law Committed in the
Territory of the Former Yugoslavia, Rules of Procedure and Evidence, U.N. Doc.
IT/32/Rev. 50 (July 8, 2015) (as amended, originally adopted Feb 11, 1994); International
Criminal Tribunal for Rwanda, Rules of Procedure and Evidence, (May 13, 2015) (as
amended, originally adopted June 29, 1995).
481
that capacity does not provide a complete defense to the charge leading to
an acquittal.195
VII. CONCLUSION
Human enhancement techniques offer a tantalizing prospect for counter-

acting human frailty on the battlefield. For example, soldiers who need less
sleep, can see clearly in the dark without bulky headwear or can run over
rocky terrain for miles without getting fatigued, all offer measurable mili-
tary advantages for the fighting force. However, the utilization of the more
ambitious of these technologies also risks removing one of the real
strengths of armed forces personnel—their humanity. The law of armed
conflict allows soldiers to kill an enemy at one moment and obliges them
to offer compassion and humane treatment in the next when that same
enemy is not killed but is wounded or captured. Technologies which inter-
fere with the ability to make that switch must be treated cautiously, taking
into regard all the possible ramifications of their use. At the same time,
there are not only risks associated with human enhancement techniques as
far as compliance with the law of armed conflict is concerned, but also
potential benefits. Techniques that would allow for the suppression or con-
trol of sentiments such as fear and revenge may also promote compliance.
As with many other military technologies, the implications of human en-
hancement techniques for the law of armed conflict are not inherent in the
development and fielding of the technology itself, but rather will depend
on how they are designed and used. An equally serious legal issue to con-
sider is that of the human rights implications of enhancement techniques
for soldiers who are required or requested to undergo such enhancement,
not only during their service in the armed forces, but also in their reintegra-
tion into society as they return to civilian life.
195. Prosecutor v Delalić et al., (‘Čelebići Case’), Case No. IT-96-21-A, Appeal
Judgement, ¶ 590 (Int’l Crim. Trib. for the former Yugoslavia Feb. 20, 2001).
482

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Military Human Enhancement and International Law

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Soldier 2.

Heather A. Harrison Dinniss & Jann K. Kleffner

92 INT’L L. STUD. 432 (2016)

Published by the Stockton Center for the Study of International Law

Soldier 2.0: Military Human

Heather A. Harrison Dinniss* & Jann K. Kleffner**

I. Introduction ................................................................................................ 433

* Senior Lecturer in International Law, Swedish Defence University.

Fair Trial Rights .......................................................................................... 468

W hether it is science fiction classics such as Huxley’s Brave New World or

1. ALDOUS HUXLEY, BRAVE NEW WORLD (1932); ROBERT A. HEINLEIN, STARSHIP

For the purpose of the present analysis, human enhancement is defined

2. Patrick Lin, Ethical Blowback from Emerging Technologies, 9 JOURNAL OF MILITARY

from replacement limbs;9 ways of linking prosthetics using neural interfaces

II. LAW OF ARMED CONFLICT

In the study, development, acquisition or adoption of a new weapon or

20. AMW MANUAL, supra note 15, r. 1(v).

B. Superfluous Injury and Unnecessary Suffering

The principle concerning superfluous injury and unnecessary suffering

secutive legal instruments containing the prohibition26 has made it difficult

of the design, purpose and intent of blinding laser weapons, if it can be

31. BOOTHBY, supra note 16, at 210–11.

C. Distinction, Proportionality and Precaution Issues

The principle of distinction requires that parties to an armed conflict dis-

sion of empathy is necessarily provided in combat training to produce ef-

D. Principle of Protection (Detention and Treatment of the Wounded and Sick)

50. See discussion infra Section IV.D.

protected persons, e.g., civilian detainees, is similarly prohibited under the

Second, performing any invasive enhancement technique on detainees will

3. Solving Medical Problems through Enhancement

can be used prophylactically (in the case of the diagnostic nanoplatforms),

61. Additional Protocol I, supra note 13, art. 11(1).

4. Detaining Enhanced Personnel

63. THE COPENHAGEN PROCESS ON THE HANDLING OF DETAINEES IN INTERNA-

III. HUMAN RIGHTS OF ENHANCED HUMANS

67. Id., art. 110.

inclusive language encompassing all persons or every human being,70 or in

These comments, however brief, do seem to make it clear that it would

From a practical standpoint, it should be noted that armed forces com-

75. See, e.g., Grigoriades v. Greece, 1997-VII Eur. Ct. H.R.

IV. HUMAN RIGHTS LAW IMPLICATIONS FOR HUMAN ENHANCEMENT

It is clear that different enhancement technologies will impact the human

A. The Right to Life

The right to life is a non-derogable right, except in respect of deaths re-

the State which are unrealistic or disproportionate in connection with the

84. Id. ¶ 76.

In relation to enhancement technologies, the right to life may be in-

B. Bodily Integrity, Torture, and Inhuman or Degrading Treatment

protect its service personnel against such treatment.100 These prohibitions,

degrading treatment,115 and prohibited as a method of interrogation by the

C. Privacy, Thought and Expression

Human enhancement technologies which mediate and/or manipulate in-

In the fields of cybernetics and prosthetics, privacy issues may also be

military personnel to be influenced by senior officers by virtue of the mili-

There are many technologies which provide additional information to

Fair Trial Rights

The right of everyone, including members of the armed forces, to a fair

142. See, e.g., K v. Austria, App. No. 16002/90, (ECtHR), http://hudoc.echr.coe.int/

reduction of incidents of post-traumatic stress disorder in military person-