Abstract
Advances in technologies that could endow humans with physical or mental abilities that go beyond the statistically normal level of functioning are occurring at an incredible pace. The use of these human enhancement technologies by the military, for instance in the spheres of biotechnology, cybernetics and prosthetics, raise a number of questions under the international legal frameworks governing military technology, namely the law of armed conflict and human rights law. The article examines these frameworks with a focus on weapons law, the law pertaining to the detention of and by ‘enhanced individuals’, the human rights of those individuals and their individual responsibility for the actions that they take while under the influence of enhancements.
Heather A. Harrison Dinniss: Senior Lecturer in International Law, Swedish Defence University.
Jann K. Kleffner: Professor of International Law and Head of the International Law Centre, Swedish Defence University.
This article previously appeared in Vol 92. International Law Studies (2016) 432–482, and is reproduced with the kind permission of the U.S. Naval War College.
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Notes
- 1.
- 2.
- 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 Thomson (2015).
- 5.
Saletan (2013).
- 6.
Tennison and Moreno (2012).
- 7.
See e.g. Bienaimé (2014). 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 threat warning system (CT2WS) developed by the U.S. Army and DARPA which detects brainwaves in order to signal when the subconscious evaluates a visual threat: Ungerleider (2012).
- 9.
See Talbot (2013).
- 10.
Ibid.; Drummond (2012).
- 11.
See e.g. Sherwell (2015).
- 12.
- 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].
- 14.
- 15.
- 16.
- 17.
Program on humanitarian policy and conflict research (2009), r. 1(t).
- 18.
Boothby (2009), p. 4.
- 19.
Additional Protocol I, supra note 13, art. 49(1).
- 20.
Program on humanitarian policy and conflict research (2009), r. 1(v).
- 21.
- 22.
See, e.g. Lin et al. (2013), pp. 31 ff.
- 23.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, para. 238.
- 24.
For a description of the evolution of the different wording, see Hays Parks (2005), pp. 86 ff., The most recent versions include Art. 35(2) of Additional 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. Geneva, 10 October 1980.
- 25.
Henckaerts and Doswald-Beck (2005), Rule 70.
- 26.
- 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. Hays Parks (2005). 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 above note 3, genetic enhancement is not generally addressed in this study however it is worth observing in passing that by definition, any genetic enhancement would not introduce any component external to the human body.
- 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 Greenwood (1998), pp. 185 and 196.
- 31.
Boothby (2009), pp. 210 ff.
- 32.
See, e.g., Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons, Oct. 10, 1980, 1342 U.N.T.S. 171; Convention on the Prohibition of the Development, 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.
- 35.
Liivoja (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. Alba (2015).
- 37.
See e.g. Art. 48 Additional Protocol I; Henckaerts and Doswald-Beck (2005), Rule 1, 7.
- 38.
Nuclear Weapons case, supra note 23, para. 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); Henckaerts and Doswald-Beck (2005), Rule 14.
- 40.
One estimate puts the increase in data flow across the U.S. armed forces at 1600% since the events of 9/11. Shanker and Richtel (2011).
- 41.
Id. When U.S. officials looked into an attack by American helicopters that left 23 Afghan civilians dead, they found that informational overload was an underlying cause. Id.
- 42.
See, e.g., Kaur (2012) (discussing the Defense Advanced Research Projects Agency’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 Henckaerts and Doswald-Beck (2005), Rule 17 (discussing the requirement to take “all feasible precautions” to minimize incidental damage). See also, Dinniss (2012), pp. 213–215 (discussing new technologies and the choice of weapons as a feasible pre-caution).
- 44.
Moreno (2012), pp. 149–151.
- 45.
Persson and Savulescu (2012). While the concept of deliberately manipulating morality 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. Devlin (2015).
- 46.
In their original study, Persson and Savulescu (2012) argued for moral enhancement based on a need for protection of the natural environment, pp. 107 ff.
- 47.
Lack of empathy is also associated with several psychological and personality disorders and is characteristic of psychopathy (or antisocial personality disorder). For examples in film and television see e.g. Robocop (Metro-Goldwyn-Mayer et al. 2014) or the 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, whilst ramping up aggression, making him an unstable psychopath. For a general discussion of the popular culture trope of the ‘super soldier’ see http://tvtropes.org/pmwiki/pmwiki.php/Main/SuperSoldier.
- 48.
Henckaerts and Doswald-Beck (2005), Rule 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. van der Linden (2011). Jeremy Bentham’s thought experiment of the panopticon and the subsequent discussion by Michel Foucault are classic treatments of the psychological phenomena. Foucault (1977), p. 201.
- 50.
See discussion infra Section 4.4.
- 51.
See generally Kleffner (2013), p. 285 (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. Bowman (2013).
- 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 provided for in the Convention, for example in Articles 79–135, which regulate the treatment of internees.
- 55.
Henckaerts and Doswald-Beck (2005), Rule 92. For specific treaty prohibitions, see Additional Protocol 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 [hereinafter Additional Protocol II].
- 56.
Henckaerts and Doswald-Beck (2005), Rule 92.
- 57.
- 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 treatments and trials are coordinated across the European Union and conducted under EU directives administered by the European Medicines Agency in accordance with standardized internationally recognized “good clinical practice” rules. See, e.g., Commission Directive 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.
Garreau (2005), pp. 27–29.
- 60.
- 61.
Additional Protocol I, supra note 13, art. 11(1).
- 62.
- 63.
The Copenhagen process: principles and guidelines (2012).
- 64.
Additional Protocol I, supra note 13, art. 11(5).
- 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 include 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. periodic mass miniature radiography for the early detection of tuberculosis.
- 66.
Id., art. 109.
- 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 [hereinafter ICESCR].
- 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 application 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).
- 75.
See, e.g., Grigoriades v. Greece, 1997-VII Eur. Ct. H.R.
- 76.
Rowe (2006), p. 59.
- 77.
Smith and Others v. Ministry of Defence [2013] UKSC 41, ¶ 71.
- 78.
Rowe (2006), pp. 9–13.
- 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 individuals held in detention by a State’s armed forces are within the effective control of that 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. Fourth periodic report of the United States to the UN Human Rights Committee at 142, U.N. Doc. CCPR/C/USA/4 (2012). That understanding has been reviewed in recent years to acknowledge the application of the Torture Convention 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 (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 derogations 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 (2006), p. 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 derive both from specific statements in the relevant articles 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.
- 84.
Id., para. 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 recognises that national governments are best placed to determine what is necessary 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 IACHR and the HRC. See e.g. IACtHR, Proposed Amendments to the Naturalizations Provisions of the Constitution of Costa Rica, Advisory Opinion OC-4184 of January 19, 1984, ser. A, no. 4, para. 62; Hertzberg et al. v. Finland, U.N. GAOR Human Rights Comm., 37th Sess., Supp. No. 40 at 161, para. 10.3, U.N. Doc. A/37/40 (1982).
- 86.
Smith and Others, supra note 77, para. 76.
- 87.
See, e.g., id. paras. 67–76 (setting out the relevant case law of the Court).
- 88.
- 89.
For a summary of the incident, see Annas and Annas (2009), 47, pp. 293–297. As this only indirectly impacts the right to life, no further discussion will be included here.
- 90.
See, e.g., id., p. 296. Note, however, that others maintain that it should have improved the pilots’ performance. Shanker and Duenwald (2003), http://www.nytimes.com/2003/01/19/national/19SPEE.html.
- 91.
See e.g. ECtHR, Osman v United Kingdom, EHRR 245 ¶¶ 115–22 (1998); IACtHR, González et al. (cotton field) v. Mexico, preliminary objection, merits, reparations and costs, Judgment of 16 November 2009, Ser. C, no. 205, ¶¶ 3–15 (concurring opinion of Judge Diego Garcia-Sayan).
- 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 effectively and impartially); in the IACtHR, Velásquez Rodríguez v Honduras, Merits, Judgment of 29 July 1988, Ser. C, no. 4, ¶¶ 172–7 (holding that states have the duty to investigate 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., Art. 4–8 of the Convention against Torture requires states to make torture a crime under national laws 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 (Arts. 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 [hereinafter CAT].
- 100.
Committee of Ministers (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 (2006), p. 47.
- 103.
Anthrax jab side-effects withheld (2004).
- 104.
See, e.g., Court-martial for refusing anthrax shot (2003).
- 105.
Such approval is granted in the United States by the Food and Drug Administration, the Medicines and Healthcare Products Regulatory Agency in the United Kingdom and the Läkemedelsverket (Medical Products Agency) in Sweden.
- 106.
- 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 (2000), p. 21.
- 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.
- 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 (2006), p. 47.
- 112.
Id.
- 113.
ECHR, supra note 71, art. 8(2) (“There shall be no interference by a public authority 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 protection 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 bodies see Arai-Takahashi (2013), pp. 446–468.
- 114.
- 115.
Ireland v. United Kingdom, 25 Eur. Ct. H.R. (ser. A) at 58, para. 167 (1978).
- 116.
HCJ 5100/94 Public Committee Against Torture in Israel v. State of Israel 53(4) PD 817, paras. 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 breaking 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 Foreign and Commonwealth, [2010] EWCA Civ 65, United Kingdom: Court of Appeal (England and Wales).
- 118.
Ireland v. United Kingdom, supra note 115, para. 167.
- 119.
Id., para. 162; Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A) at 32, para. 100 (1989).
- 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 difficult to see what legitimate aim might be served that would make routine outside observation 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 conscience and religion in Article 12, freedom of thought is included with freedom of expression 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 observance.” ECHR, supra note 71, art. 9.
- 122.
Kokkinakis v. Greece, 260 Eur. Ct. H.R. (ser. A) at 12, para. 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.
- 124.
Persson and Savulescu (2012). 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.
Murdoch (2012), p. 18.
- 126.
Kokkinakis, supra note 122.
- 127.
Larissis and Others v. Greece, 1998-I Eur. Ct. H.R. 362. See also Martin et al. (2006).
- 128.
Emphasis added.
- 129.
See, e.g., UDHR, supra note 69, art. 19; ICCPR, supra note 69, art. 19; ACHR, supra 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 Opinion OC-5/85, Inter-American Court of Human Rights (ser. A) No. 5, ¶ 30 (Nov. 13, 1985).
- 131.
Rayes v. Chile, Merits, Reparations, and Costs, Judgment, Inter-American Court of Human Rights (ser. C) No. 151, paras. 61–103 (Sept. 19, 2006).
- 132.
Rowe (2006), pp. 55–58.
- 133.
Interestingly, this limitation does not occur in the ACHPR. Rowe (2006), p. 56. Additional limitations include that such restrictions must be prescribed by law and necessary in a democratic society.
- 134.
Rowe (2006), pp. 57–58.
- 135.
See McDuffee (2014).
- 136.
See, e.g., the DARPA-initiated augmented cognition program. Committee on Opportunities in Neuroscience for Future Army Applications (2009), p. 117, http://www.ncbi.nlm.nih.gov/books/NBK207983/.
- 137.
- 138.
Khanna and Khanna (2016).
- 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 Organization for Security and Co-operation in Europe, Office for Democratic Institutions and Human Rights (2008).
- 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, para. 40.
- 144.
Note that the exercise of this privilege differs across jurisdictions. In respect of the ICC see Rome Statute, Arts. 67(1)(g), 69(7); for an account of the English domestic legal tradition see Roberts and Zuckerman (2004), chpt 4.
- 145.
See, e.g. MacDonald (1955–1956), p. 259 (on the effectiveness of ‘truth’ serums generally); Human Rights Watch (2003); See generally, Jalloh v. Germany, 54810/00, European Court of Human Rights, 11 July 2006, paras. 103–123 (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-works/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 Art. 55(1)(b) 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.
Pilkington (2013). 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.
Giles (2005), pp. 448–449.
- 150.
Bilton (2013) (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 et al. (2013), p. 71. This issue is discussed in more detail in Sect.~5.2 infra.
- 152.
To take a current example, pacemakers and implantable defibrillators become the property of the patient.
- 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 Legal Affairs, Council of Europe (2010).
- 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 (2009), paras. 15, 20–35 (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, para. 56 (1976).
- 160.
Human Rights of Members of the Armed Forces, supra note 141.
- 161.
While this article deals primarily with the impact of enhancement of the armed forces, this applies equally to members of the intelligence services and other state organs. To cite a fictional example, the main characters in the Bourne series of movies (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.
- 164.
Id., art. 2.
- 165.
See generally Crawford (2013), pp. 60–61.
- 166.
Crawford (2002), pp. 81–82.
- 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 6.2 infra for a discussion of individual responsibility.
- 169.
- 170.
Corfu Channel (U.K. v. Alb.), Judgment, 1949 I.C.J. 4 (Apr. 9).
- 171.
See Draft Articles on Responsibility of States, supra note 162, 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, para. 422 (Feb. 26).
- 173.
Id., paras. 423–424. See also Dominicé (2010), p. 286.
- 174.
Rome Statute of the International Criminal Court art. 30, July 17, 1998, 2187 U.N.T.S. 90. See also Werle (2005), pp. 104–106.
- 175.
Id.
- 176.
Id.
- 177.
See generally Werle (2005), p. 105 (noting that automatism prevents criminal responsibility for crimes under international law).
- 178.
Armstrong and Ma (2013).
- 179.
Rome Statute, supra note 174, art. 30. See also Werle, supra note 153, at 105.
- 180.
- 181.
Rome Statute, supra note 174, 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 (2005), pp. 106–109.
- 186.
Rome Statute, supra note 174, 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.”).
- 187.
Triffterer (2008), pp. 876–877.
- 188.
Id. For an historical example, see the Viking berserker’s legendary fighting frenzy which appeared to leave them impervious to pain and with heighted physical ability on the battlefield. There are different theories about its origins: ingestion of fly agaric mushrooms or the bog myrtle plant would speak to availably 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 174, art. 31(1)(b).
- 190.
- 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, supra note 109. The two pilots in the Tarnak farms incident also stated 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 and Duenwald (2003).
- 192.
Triffterer (2008), p. 547.
- 193.
Art. 78(1) of the ICC Statute and r. 145(2) of the ICC Rules of Procedure and Evidence: “In addition to the factors mentioned above, the Court shall take into account, as appropriate: (a) Mitigating circumstances such as: (i) The circumstances falling short of constituting grounds for exclusion of criminal responsibility, such as substantially diminished mental capacity or duress;…”.
- 194.
Rule 67(a)(ii)(b) of the Rules of Procedure and Evidence for both the ICTY and ICTR. “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”.
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Harrison Dinniss, H.A., Kleffner, J.K. (2018). Soldier 2.0: Military Human Enhancement and International Law. In: Heintschel von Heinegg, W., Frau, R., Singer, T. (eds) Dehumanization of Warfare. Springer, Cham. https://doi.org/10.1007/978-3-319-67266-3_10
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