Mehmann  and Li – Ethical, Legal, Social, and Policy Issues in the Use of Genomic Technology by the U.S. Military

This week we look at the use of DNA technologies in an enthralling article by Maxwell J. Mehmann and Tracy Yeheng Li, ‘Ethical, Legal, Social, and Policy Issues in the Use of Genomic Technology by the U.S. Military’ (Case Western Reserve Journal of International Law 47, no. 1 (2015): 115–65.), available here.

Here’s what we thought. Let you know what you think in the comments below, or send us a message to join to network.


This long but incredibly interesting paper explores many of the bioethical issues associated with the use of genetic and genomic science by the US military. Such is the scope of the paper that there are almost too many points to discuss in a short blog, so for this reason I’d therefore like to focus on the question of genomic enhancement (pp. 161–164). While I am sure many people can agree that genomic enhancement has great potential to improve the effectiveness of warfighters, I wonder what the implications will be for soldiers once their term of service comes to an end? The author doesn’t address this question, and it remains for me perhaps the biggest ‘elephant in the room’ when we come to consider bio-technology and the military. While I agree there are certainly distinctions to be made between the civilian and military paradigms when it comes to ethics and responsibility, we should not forget that the two worlds are of course interlinked. What this means on a practical level is that any civilian can potentially become an enlisted member of the military, and of course any member of the military is always already a member of the civilian world as well.

My concern here is that by introducing bio-enhancements to the military (which we must assume will slowly filter through to the civilian world) we will in effect be creating a new category of the human, entrenching difference within human society. Indeed, we should ask, are these ‘enhanced’ soldiers even human at all? This question becomes even more significant when we consider the author’s claim that the most powerful enhancements may well need to be engineered at the embryonic stage, thus leading to the possibility that we will ‘lab grow’ our future soldiers. If they are lab grown and effectively enlisted from birth, what happens when their term of service ends? Does it ever end? Or will they rather be put down, like a dangerous dog, when they no longer demonstrate value for the military machine?

Mike Ryder, Lancaster University


This article was absolutely fascinating. However, it made me think of things far closer to home than the US military. For a while, I have been considering having my DNA sequenced as a shortcut to find out how I will react to different physical fitness training programmes (and in the vain hope that it will reveal I’ve got the genetic talent to be a world-beating talent at an obscure sport that I’ve never tried!). At least one of the companies offering this also look at corporate wellbeing, allowing employees to volunteer to have their DNA sequenced in order for their employer to be able to optimise their staff’s efficacy and work plans. What this article made me think of is why not use DNA sequencing to optimise military personnel? We know that all people have different skills and aptitudes, so why not inform commanders through genetics about which of their subordinates will be best for different tasks? Of course, this does not incorporate the impact that the environment has upon the individuals, so it is not foolproof. But, if DNA sequencing can help troops train and perform better, then it is surely beneficial to military effectiveness. However, it is currently expensive. Perhaps when prices drop it will be worth it for militaries to test all their personnel. At the very least it will be less problematic than enabling troops to use performance-enhancing drugs.

Joshua Hughes, Lancaster University

Why bother with super-soldiers when we could just use machines?

Here’s our final comments in our theme of super-soldiers. A number of people have wondered what is the point of super-soldiers? And indicate that either a large number of conventional soldiers or machines could do create the same effects. This is interesting because it shows that conventional soldiers might not have the capabilities for the future of conflict, but also that neither conventional nor super-soldiers are likely to be good enough for future conflict, which machines may be.

So, here are our thoughts on this question:


In regards to whether States should bother with super soldiers when machines could be used instead, I will consider this in relation to machines completely replacing soldiers (ignoring whether this is feasible or not).  Super soldiers, it can be said, would provide States with the best of both worlds. Super soldiers would possess capabilities that exceed regular soldiers but would still maintain the ‘human connection traditionally associated with war’ (even if it is recognised that the human connection is diminished by human enhancement).  Sawin acknowledges the concern that a lack of human connection could lead to ‘rogue killing machines at the centre of a battlefield’. It may well be the case that States will eventually seek killer robots as a replacement for regular soldiers but in the mean time, super soldiers provide a midway point by possessing machine like qualities without the perceived greater risk of killer robots.  Furthermore, the utilisation of super soldiers does not necessarily mean that machines will not be used in the future. It could be perceived that the development of super soldiers is just another step in the move towards killing machines.

Liam Halewood, Liverpool University 


To adjust this question slightly, I might suggest why bother with soldiers at all, when we could just use machines? With the increasing ‘robotisation’ of the armed forces, and indeed civilian life, we have something of a crisis emerging in society today where the human is becoming more like the machine, and the machine is becoming more like the human. Where will this stop? Why do we even try to make the machine more human in the first place?

Ultimately, I think, the ‘super-soldier’ will come about whether it is funded by the military or not. As a society, we have been working for many years now to alter the human condition – to extend and improve the quality of human life through the application of science and technology. Whether we like it or not, the human soldiers of the next century will most likely be relatively ‘super’ compared to the soldiers we were sending into the trenches in the First World War.

But then why not just send in the machines in the first place? I think here the question becomes one of what we foresee the purpose of war being in the future. Are the wars of territory now long past? If so then will we be in a position again where we need humans for humanitarian or ‘hearts and minds’ purposes when a robot is so much more effective at killing? When we start to consider the future implications of war in space, again it would seem the robot would be a preferable option. But then how can one sue for peace with a robot? Can a robot ever adapt to a new environment as well as a human?

Mike Ryder, Lancaster University


When we talk about machines in warfare, we usually talk of autonomous weapon systems, or killer robots. There are generally two camps. Those which think they are an affront to ethics and want them to be banned, or those who see the utility of them as an incredibly useful weapon in future warfare. Nobody really is pushing for the total absence of human-beings in lethal decisions-making because they think it is a good thing. Indeed, most people how are seen as being in the ‘pro’ camp are usually arguing that there is nothing explicitly unlawful about them, rather than that they will be a good idea.

This leads us to the main point, that often in warfare there are tricky decisions to be made. No programmer or manufacturer of an autonomous weapon could ever imagine all scenarios, even if said manufacturer only employed veterans. These situations often rely upon human judgment, and sometimes they get it wrong. But, I was at a lecture recently where an ex-army officer said that these tricky situations was one of the reasons that an officer class exists, to take such decisions on behalf of their subordinates and suffer the consequences for them.

There will be some decisions that are black and white, such as ‘he is wearing an enemy uniform, he is my enemy, therefore I can target him’. This wouldn’t require a referral to a higher authority, whether the entity making the decision is human or machine. But, where there are a number of civilians around and the level of military advantage which could be gained compared to the collateral damage which could be expected in unclear, a trickier decision appears. Referral to a human here would be really useful for avoiding unfortunate incidents with large or unnecessary collateral damage. But, to have a system require attention and for a human to jump into being brought up to speed straight away and immersed in the situation may take too long for decisions to be made. For example, an enemy may escape before a decision is made, or before a school bus comes into the expected blast radius. Thus, here cognitively-enhanced humans would be a great addition if they could comprehend complex situations quickly and make decisions quicker. One f the main reasons for potentially using autonomous weapons is the increased speed at which they can operate, enhanced humans would also increase the speed of operations, without necessarily loosing the human touch to complex decisions and scenarios.

Joshua Hughes, Lancaster University.


What do you think?

Henschke – ‘Supersoldiers’: Ethical concerns in human enhancement technologies

Here we are considering a blog on the International Committee of the Red Cross’ page Humanitarian Law & Policy. It’s by Adam Henschke about ethical concerns with human-enhancement technologies, and continues our theme of super-soldiers. It’s available here.

Here’s what we thought:


I have to say I found this blog somewhat lacking, and perhaps even a little naive, for many of the issues in it have been present for many years.

‘Technological optimism’ is something that has long been associated with the military, as each new technology brings with it a whole raft of problems – not least the promise of changing the way we conduct warfare, and making warfare somehow ‘better’. Furthermore, the argument that any sort of enhancement technology can be put to malicious use is true of any technology, not just soldier enhancement. Dare I also add here that malicious use can also include those very same forces using the technology in the first place.

Perhaps one of the most shocking lines from this blog for me is the idea of certain ethicists arguing that there is an urgent need to enhance the human ‘moral decision-making process’. Aside from the blatant hypocrisy (ethicists suggesting unethical means to make something more ‘ethical’) this ‘problem’ already has a solution: the robot. Here, the ethicists in question are essentially suggesting that we alter human thinking such that their actions become systematised, or in other words, robotic. Aside from the dystopian notion of ‘installing’ ethical decision making within a human being. The question remains: why even bother using humans at all?

Finally, I’d like to make a very brief comment on the blog’s discussion surrounding consent. Here, the author focuses on medical consent, but one has to wonder if it is ever possible for a soldier (or citizen at the point of enlistment) to give ‘full’ consent, given one can never know the direction the armed forces may take. Given the State already effectively owns a soldier’s body (they are sent out to die at a command), I wonder why there should be such a focus on ‘informed consent’ in a medical setting? Is this, I wonder, a case of distraction – a straw man to avoid the more pressing issue of consent relating to enlistment itself?

Mike Ryder, Lancaster University


I appreciate that this article on the ethical consideration of military human enhancement approaches the view with an open mind. Outsiders to the field generally respond with disgust and horror, but to truly analyse the ethics of the issue, it is important to not let yourself be guided by pre-conceived opinions. I also appreciate how he is taking a broad view of military human enhancement, and that he ties it to the larger civilian debate on human enhancement, as that one is rather detailed and intricate. However, due to the nature of the format (an opinion piece on the website of the ICRC) it is rather short, does not go into a clear direction, and is perhaps too careful to avoid making any meaningful statement.

However one thing is clear: The issue of the ethics of testing enhancement and forcing soldiers to go through with it is of utmost importance. The urgency is born out of decades of unethical and harmful research that militaries have conducted, especially on disadvantaged communities. Because of the high demands of the job and the social structure of the military history shows time after time that soldiers will do whatever it takes: e.g. the notorious amphetamine use by militaries all over the world from WW2 to now. It is thus key to bring it into the public’s attention.

One more thing I would like to add to this article is a question that is of my personal interest: What will military human enhancement mean for the gender balance in the armed forces? Will enhancement make the physical differences between women and men insignificant? If that is taken out, how will the gender relations develop, and what larger implications does this have for gender relations, if not stooled on physical dominance by men? Does this mean there is an ethical obligation to introduce military humane enhancement?

Maaike Verbruggen, Stockholm International Peace Research Institute


I think a really interesting part of this blog is Henschke’s consideration of the ethics of medical research on military personnel. He determines that as soldiers must follow orders, and military research is usually secret, research into super-soldiers may be unethical as soldiers cannot really give free consent, and research is not open to public scrutiny. This makes me think about drone pilots. We know that they have a greater prevalence of mental illness following operations, than ground troops do, due to having to watch the after-effects of their actions in full-motion video, despite the lack of physical risk.

Although obviously drone operations are not research, the ethical difficulties of super-soldier research seem to apply – the operators cannot just walk away, and they happen in secret. But, the regulatory frameworks are completely different, and they are completely different paradigms, so although the link is interesting, it doesn’t really have any direct impact. It does raise questions though.

If military operations are so difficult, and create harmful psychological injuries to such as extent that we are considering manipulating soldier’s brains so that they can either be healed from such injuries, or prevented all together, what does that say about today’s deployments when they cannot receive such a miracle cure? Indeed, we regularly hear of military veterans who are homeless, or struggling to deal with the after-effects of combat, and do not receive adequate help from government. This is despite the apparent ‘armed forces covenant’ that the UK government proclaims.

Perhaps the potential for super-soldiers is simply another symptom of the fact that militaries require lots of people and lots of money to not only do the things required of them well enough that bullshit managed retreats and re-deployments are not needed, but also to look after people when they come home. Perhaps if governments were really aware of the high impact of modern war, they would provide adequate monies to run their militaries, and have no need for super-soldiers in the first place.

Joshua Hughes, Lancaster University


What do you think?

How is modern warfare shaping what is required of fighters? Will other requirements be made of them in future conflicts? 

The second of our super-solders posts considers the demands modern war places upon today’s soldiers, rather than really thinking of human-enhancement. The regular deployments and increased bureaucracy make it a great change for a few decades ago where many soldiers never saw any real action, nor had to deal with a myriad of other governmental agencies whilst deployed. Basic soldering appears to be getting harder, as soldiers themselves may be getting weaker – we see applications and pass rates for special forces selection dropping in recent years. As our understanding of the impact of operations expand, are we asking too much of the young men and women we ask to fight for us? And can we guess at how this will play out in the future?

 

Here’s what we thought:


One of the most telling shifts in recent years in my mind has been the ever increasing surveillance surrounding military operations. ‘Kill cams’ and the like have of course been around for some time in the armoured sections of the military, but more specifically here I refer to the way surveillance is now also being used for the men and women on the ground. For me, this opens up a whole raft of problems in terms of accountability and responsibility in warfare, and strikes me also as a major shift towards the ‘robotisation’ of the armed forces. If a soldier can no longer act free from reprisal (or retrospective reprisal) for even the smallest of actions, then why send a human at all, when a machine will be far more effective?

But robots themselves come with their own problems and associated risks. As the 20th century has taught us, it is not good enough to merely shoot or bomb an ‘enemy’ into submission: we must consider the ‘hearts and minds’ of the populace. And quite simply a robot is not in a position to fulfil this role. I wonder then if, long term, the human takes on more of a humanitarian role, while the fighting is left to the machines.

Mike Ryder, Lancaster University


It would seem that the most prevalent trend in modern warfare is operational tempo constantly increasing. We have seen the near-constant deployment of Western special forces since 9/11. The fact that the US have just re-committed to Afghanistan means that there is no chance of the ‘perpetual war on terror’ abating. Thus, it would seem that modern warfare is going to require fighters to fight on a continual basis, with much faster turn-around times between operations than previously. The days of Western nations waiting for the Eastern Bloc to come crashing through Germany are long gone. Indeed, with a terrorist enemy that is capable of attacking anytime, anywhere, it would seem that Western militaries must also be prepared to fight anytime and anywhere.

The strain on the family life of such fighters must be immense. Indeed, we can see in autobiographies of former SAS men that many marriages and family relationships simply fall apart when the soldier in the family is deployed to the other side of the world with only a few hours notice. So, it would seem that the military will require fighters to be totally committed to the causes they are fighting for, rather than their families or themselves. This is, of course totally the opposite of the trend towards providing worked with a greater work-life balance in order to actually be more productive.

Requirements of future conflicts are likely to ask more of soldiers during operations. We already know that counter-terrorism and counter-insurgency operations in urban environments are some of the most cognitively difficult roles soldiers can be asked to do. Yet, with the likely rise of city states in the near future, they could be asked to operate in such environments regularly. Distinguishing who is friend or foe in todays conflicts is difficult, and we regularly see urban police mistake innocent people for armed criminals (particularly in the US), imagine the difficulty when both these issues are essentially combined in military operations in a failed city-state. Difficulty could be further added due to the reducing size of Western militaries. What if NATO countries transform their militaries into small but highly capable forces, in effect large quasi-special force? Small teams in failed city-states will likely have to fend for themselves if there is not a large enough force able to save them. Stories like Black Hawk Down may become far more regular for Western publics to tolerate.

Joshua Hughes, Lancaster University.


What do you think?

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!