Are All Soldiers Created Equal? – On the Equal Application of the Law to Enhanced Soldiers

Abstract

Enhanced soldiers will soon become an integral part of armed conflicts. The deployment of soldiers with superior battlefield abilities raises important legal questions that are only now emerging as we begin to understand the implications of such technological advancements. One of the most pressing issues regarding enhanced soldiers is whether the existing legal framework, designed to regulate and safeguard the needs of conventional soldiers, can — and should — be applied differently when the subjects have qualitatively different capabilities than previously understood or considered. In this comprehensive analysis of the ability to treat enhanced soldiers differently, various international law issues are considered, such as the use of weapons in armed conflict, the treatment of detainees, and the prohibition against torture and cruel, inhuman or degrading treatment. This paper argues that, in most cases, enhanced soldiers should not be treated differently than unenhanced soldiers, even if their capabilities are significantly advanced when compared to conventional soldiers. More broadly, the case of enhanced soldiers brings new insights to the notions of formal and substantive equality in international law. This paper offers a one-directional approach to the subjective application of international law, especially in the context of the prohibition against torture. Under this approach, subjective factors may not be used to treat individuals and groups with better capabilities more harshly but can be used to improve the protection of vulnerable individuals and groups. Applying a one-directional approach is an important tool to prevent the abuse of legal rules by states and other international actors while enabling the protection of those who need it the most. This is a critical point in time where legal scholarship has a unique opportunity to shape the legal regulation of a transformative technological change as it occurs.

Keywords: Human Enhancement, Law and Technology, Law of Armed Conflicts, Human Rights, Equality