Being More than You Can Be: Enhancement of Warfighters and the Law of Armed Conflict

Rain Liivoja, Being More than You Can Be: Enhancement of Warfighters and the Law of Armed Conflict (No 1, April 2020)

DOI: 10.31228/osf.io/sygmv

Technologically advanced armed forces have begun exploring ways to improve the warfighter as a living organism. The relevant practices could be called “biomedical human performance enhancement,” which sets them apart from more conventional ways of improving performance, such as training and equipment.

Human enhancement raises a range of ethical, legal and social issues – both in the military context and in society more broadly. In the military context, issues arise under the law of armed conflict (LOAC). After providing a brief conceptual and technical background to human enhancement, this paper considers a set of LOAC issues relating to human enhancement by asking two broad questions: First, does LOAC prohibit or restrict the enhancement of warfighters? Second, if warfighters are enhanced in some way, what consequences does that have under LOAC?

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The Concept of Autonomy

Tim McFarland,  The Concept of Autonomy (No 2, July 2020)

DOI: 10.31228/osf.io/bac5w

This paper investigates the notion of autonomy as it applies to software and cyber-physical systems, with a focus on matters which bear some significance to the application of relevant bodies of international law. As autonomy, in the context of software, is a technical term rather than a legal or philosophical one, a bottom-up approach is taken, beginning with a description of the technical origins and meaning of the term ‘autonomous’. Based on that, two important relationships are discussed: that between the autonomous system and its environment, and between the system and its operator. Finally, several aspects of autonomy of relevance to a legal analysis are discussed: autonomous systems do not necessarily behave differently to manually operated systems; autonomous systems are not ‘independent’ of humans for the purposes of a legal analysis; and the relative contributions of human and machine in an operation involving an autonomous system are likely to be complex and variable, such that they should arguably be viewed as a form of collaboration between human and machine rather than a simple delegation of the entirety of a task to a machine.

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When is a Ship a Ship? Use by State Armed Forces of Un-crewed Maritime Vehicles and the United Nations Convention on the Law of the Sea

Simon McKenzie, When is a Ship a Ship? Use by State Armed Forces of Un-crewed Maritime Vehicles and the United Nations Convention on the Law of the Sea (No 3, August 2020)

DOI: 10.31228/osf.io/a7xtc

Armed forces around the world are rapidly developing un-crewed maritime vehicles (UMVs) for use in military operations. Key to the strategic value of UMVs is that they will have no people on board, and instead be remotely controlled or, in the future, will be able to carry out some or all of their mission autonomously. But will they fit into the existing categories of the law of the sea set out in the United Nations Convention on the Law of the Sea (UNCLOS)?

This paper considers whether two of the basic classifications of this body of law – being categorised as a ‘ship’ or ‘vessel’ and being a ‘warship’ – require people to be on board the vehicle and thus exclude UMVs. These categories are critical for the distribution of rights and obligations in the UNCLOS. Failing to qualify as a ship would significantly limit the strategic value of UMVs, restricting their navigational rights and possibly preventing states claiming sovereign immunity. Along with the important practical implications of these definitional challenges, they also serve as an example of when an evolutionary interpretation of international treaty law should be preferred.

The paper shows that the better interpretation of ship in UNCLOS is capacious enough to include both remotely controlled and autonomous UMVs. However, the more restrictive definitional requirements of warship in UNCLOS will be more difficult for UMVs to meet.

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Protecting Warfighters from Superfluous Injury and Unnecessary Suffering

Rain Liivoja, Protecting Warfighters from Superfluous Injury and Unnecessary Suffering (No 4, November 2020)

DOI: 10.31228/osf.io/rvhk9

This paper considers one of most fundamental of rules of the law of armed conflict on the means and methods of warfare, which has been captured in Article 35(2) of Additional Protocol I in the following language: ‘It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.’ The exclusive focus of this unnecessary suffering rule on the wellbeing of combatants arguably makes it exceptional in the fabric of the law of armed conflict. And the fierce agreement about the foundational nature of this rule is only matched by the disagreement as to its precise meaning and efficacy.

This paper considers the origins of the rule, and how key aspects of the rule are interpreted. It then deals with one of the more contentious issues – namely whether the rule is only concerned with the inherent properties of particular weapons or whether it also deals with the use of weapons. The paper suggests, with particular reference to human enhancement, that a better reading of the rule would indeed capture the uses of weapons. The use of a weapon with a knowledge that it would cause superfluous injury or unnecessary suffering in the circumstances ought to be regarded as prohibited by the rule.

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