Sawin – Creating Super Soldiers for Warfare: A Look into the Laws of War

This month we’ve decided to embark on some ‘themes’, where papers and questions we will consider (and you are welcome to join in) are on similar topics. The first we are looking at is the issues of super-solders, or military personnel with enhancements which may be biological. making them super-human, or mechanical by putting them in exoskeletons (like Iron Man), to make them stronger, tougher, more resilient, and able to complete missions and tasks quicker and more efficiently.

Our first consideration is ‘Creating super soldiers for warfare: A look into the laws of war’ by Christopher E. Sawin (17 J. High Tech. L. 105 2016). The article considers whether super-soldiers could ever be deployed in compliance with the law of armed conflict.

It’s available here.

Here’s what we thought:

In modern warfare, according to Sawin, there is a focus on abiding by lawful rules and limiting violence. Therefore, soldiers have to show restrain and be more selective in their fulfilment of military objectives.  The most common form of contemporary warfare is asymmetric warfare, which makes restraint and selectiveness even more important as soldiers are often faced with enemies that do not wear distinctive uniform and are able to blend in and out of civilian life at ease (so-called farmers by day soldiers by night).  Arguably, one of the most important requirements of modern soldiers is accurate decision-making.

Sawin postulates that future wars will become harsher and that the use of human enhancement technology to support the capability of soldiers to deal with harsher demands makes sense.  Human enhancement technology has the potential to provide many benefits such as increased awareness, intelligence and health. These benefits would be beneficial to soldiers in all circumstances but other benefits of human enhancement are more particular. For example, improving the speed, stamina and strength of soldiers is only likely to be of benefit when the soldiers are in close proximity to their enemy. As technology has advanced and political will for deploying soldiers has decreased, the trend in modern asymmetric warfare is to conduct operations against enemies from afar, such as with drones, which enables the killing of the enemy without the State endangering its own personnel. If this trend continues then so called super soldiers may not be determinative of which country has the elite fighting force, as suggested by Sewin.

Liam Halewood, Liverpool University

As a relative outsider to the field of law, I do find it quite astonishing sometimes just how ‘alien’ human law can seem to anyone who has experience working in other academic disciplines that are far more comfortable with future gazing and engaging with existential issues.

As the author here admits, the idea of enhancing the performance of soldiers has been around for a very long time. I find it strange then that the author raises the possibility that super soldiers may no longer resemble human beings (117) – as if this were a new problem, when these questions have existed for decades, if not centuries in other academic disciplines. I wonder then perhaps if this is a problem with law both as a discipline, and as an institution: its focus is far too insular, for it only considers the law-as-written and thus sees the world from a very distorted perspective.

To return then to some of the issues raised directly in this article, the most eye-raising from my own perspective is the question of whether supersoldiers are ‘inhumane’ weapons. This strikes me as somewhat strange given that asymmetry is essentially the primary aim of warfare: i.e. defeat the enemy as quickly and effectively as possible with minimum harm or damaged caused to one’s own. Is it really ‘inhumane’ to send in super soldiers to fight ‘normal’ soldiers when we already have a whole arsenal of weapons and technologies available to us that the ‘enemy’ doesn’t have access to? (This reminds me of the Second Italo-Ethiopian War where the Italians sent in tanks against an enemy, many of whom were armed with spears and/or bows and arrows). This leads to my second question: ‘inhumane’ for who?

Perhaps more widely here I think, the issue seems to be less about the ‘inhumanity’ of using supersoldiers, but the ‘un-humanity’ of using them – the way they represent an overt shift in the nature of ‘human’ warfare to something that goes beyond what we in modern day parlance come to understand as what it is to be human. And yet again, this is essentially nothing new – though it would appear to be so from a legal perspective. Is it not time then that law caught up with the rest of us?

Mike Ryder, Lancaster University

Sawin’s article seems a little odd to me. The whole premise is that super-soldiers with enhanced abilities would be ‘stronger, faster, tougher, better trained, and more durable’, and in doing so would be less empathetic and emotionless. This, apparently, would mean that despite having enhanced abilities, super-soldiers would be less-able to recognise civilians, and therefore would put them at greater risk. This seems ridiculous to me, as the law of armed conflict is a requirement for all military personnel to learn. Why then would personnel with enhanced abilities suddenly forget an essential part of their training? They would not. In fact, arguable a super-soldier with enhanced eye-sight and quicker cognitive abilities may be able to offer greater protection to civilians. For example, if carrying out a night-raid on a known terrorist house, a scared nineteen-year-old private may be unlikely to give anything that moves in the darkness much chance. A super-soldier may be able to see and recognise civilian presence quicker, resulting in not discharging their weapon and sparing a life that would otherwise have been collateral damage.

The article also questions whether super-soldiers would be banned under Art.35(2) of Additional Protocol 1, which states: ‘It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.’ Again, the premise for asking this question is again that somehow enhanced soldiers would have less ability to protect civilians. This is aside from the fact that prohibiting super-soldiers under this provision would require them to be reclassified as a weapon, which they would not be. Super-soldiers would be using the same weapons as ordinary soldiers (unless spectacularly heavy, for example), as so would not necessarily impart superfluous injury or unnecessary suffering any more than a non-enhanced soldier. Some would argue that better eye-sight and heart-rate control could make them more accurate over distance. But, that would also mean that current soldiers wearing corrective lenses, or having received laser eye-surgery also impart superfluous injury or unnecessary suffering. The only reason I could think of where super-soldiers would impart more force on a particular individual than conventional soldiers would be in hand-to-hand combat. A conventional and super-soldier firing the same weapon at the same person would impart the same damage, but in hands on fighting, an enhanced soldier with superhuman strength and endurance could wipe the floor with a conventional enemy. But, that ignores the fact that an enhanced soldier could still stop when the enemy has been beaten, and take them prisoner.

The general principles of the law of armed conflict require fighters to protect civilians as much as possible. The fact that future fighters may have enhancements does not mean that these protections would be in danger. In fact, quicker decision making and sensory abilities could recognise civilian presence sooner, or target munitions more accurately, and offer greater civilian protection.

Joshua Hughes, Lancaster University

First, the content of the paper was subpar. The author does not seem to understand what super soldiers or military human enhancement entails, and frequently confuses it with autonomous weapon systems. His vision of military human enhancement mainly seems to be based on science fiction comics, with no investigation into the current state of research and what governments are actually interested in and developing. He does not problematize or define the concepts he discusses, while human enhancement is very vague and ill-defined, and what falls under it is subject of intense debate. There are also so many different types of enhancements, some of which would be regulated by the Geneva Convention and some would not, with so many different effects, that you cannot generalize in the manner the author does to determine their legality.

Secondly, I am not a lawyer, but I do not understand his choice for exclusive focusing on Article 35 of Additional Protocol II, while there are so many more relevant principles at play, such as the principles of protection or distinction, as well as other legal instruments regulating the use of weapons such as the UN CCW. He barely problematizes the principles he actually discusses and does not present the multiple ways they can be applied, such as whether the SiRuS principle should be applied to weapons “of a nature to cause” or “calculated to cause”, as different countries interpret this principle differently and this could affect the legality substantially. His knowledge on the use of military technology and its role in warfare seems to be limited, and he dramatically simplifies concepts all the time ignoring the substantial discussion around them (e.g. when he says that the concept of informed consent does not apply for soldiers. Soldiers have that right, it is just difficult to say when they are free to consent or not, due to the hierarchical structure of the army).

On a final note, the way the article is written is problematic. He frequently cites conspiracy websites; the tone is heavily sensationalized (e.g. when he describes all unmanned systems in use by the US army between 2002 and 2010 as “enhanced war-fighting machines”, while the majority of these are very simple remote-controlled bomb disposal robots); and when he cites references to support his claims that actually argue very different things (e.g. when he says that Lin et al claim that “military soldiers are the one aspect that can determine the fate of warfare”, while they actually say on that specific page that “as impressive as our weapon systems may be, one of the weakest links—as well as the most valuable—in armed conflicts continues to be warfighters themselves”, which is something very different). Finally, the historical examples he brings up are often factually incorrect, for instance when he describes the Thirty Year War, and they have little to no relevance. These aspects do not reinforce trust in the message of the article.

Maaike Verbruggen, Stockholm International Peace Research Institute

Let us know what you think!

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