Title: Can Implants Be Weapons Under the Law?
Abstract: International humanitarian law (IHL) imposes a raft of obligations on States and individuals in relation to their conduct in armed conflict. Some of the most stringent obligations (and harshest penalties) relate, unsurprisingly, to the use of weapons. Likewise, some of the most sacred and fundamental rights protected by international human rights law (IHRL) restrict the permissible uses of weapons by military and law enforcement personnel. Those rights include the rights to life, to health, and to freedom from torture, among others.
This paper asks whether there might be circumstances in which an implantable technology or device, intended to enhance performance of military personnel, could fall within the scope of restrictions on the use of weapons under either of those bodies of international law. Devices within that scope would enliven certain legal obligations for States and military personnel in relation to their development, possession and use. In an effort to identify general principles, the investigation takes a broad view of implantable technologies and does not discuss specific technologies or specific types of enhancements.
IHL requires States and their armed forces personnel to adhere to three fundamental principles in their use of weapons. The principle of distinction states that parties to a conflict must at all times distinguish between combatants and non-combatants, and must direct attacks only against combatants. This principle relates both to the choice of weapons and the way in which they are used. The principle of proportionality states that parties to a conflict must not launch an attack which is expected to cause damage to civilians or civilian objects which would be excessive in relation to the anticipated military advantage. Finally, parties to a conflict must refrain from using means and methods of warfare which are of a nature to cause injury or suffering beyond what is necessary for an attack to succeed. In support of these principles, States must review all new means and methods of warfare for compatibility with their legal obligations, and must take adequate precautions during a conflict to ensure their obligations are met.
The key question is about the extent of what constitutes a weapon or the associated IHL notion of a ‘means or method’ of warfare. ‘Means’ of warfare refers broadly to weapons and related devices, while a ‘method’ of warfare refers to the manner in which a weapon is used, pursuant to military tactics, operating procedures, and so on. It is well established that the scope of the above legal obligations extends to ‘weapons in the widest sense, as well as the way in which they are used’. The judgement about whether a device falls within that scope would be made with respect to the intended purpose of the device, and the manner and purpose for which it is reasonably expected to be used. Two points in particular are important. First, it is widely considered that all components of ‘weapon systems’, and not just the weapon itself, are means of warfare which must be reviewed for compatibility with IHL obligations. Second, as ‘methods of warfare’ are also reviewable, it is arguable that devices which may reasonably be expected to influence the choice of tactics, or influence the manner in which weapons are used, would also be included.
In situations without a nexus to an armed conflict, the rules of IHRL still apply. The extent of what may be considered a weapon is poorly defined under IHRL, but the use of force is very much at issue in relation to fundamental rights. States must carefully regulate all factors which may influence the likelihood or type of force being used by military or law enforcement personnel.
The paper argues that States should consider any ‘weapon-like’ capabilities of implantable technologies in light of their obligations under IHL and IHRL. Such consideration should begin with development plans for new devices and should continue through to production and use.