CREATING SUPER SOLDIERS FOR WARFARE: A LOOK INTO THE LAWS OF WAR.

• Author: Sawin, Christopher E.

1. Introduction

   "The wars of the future are very likely going to resemble many of the science fiction movies that we are watching right now." (1) Extreme developments in technology coupled with competition for global control have triggered futuristic ideas of utilizing super human enhancement technology in the military to create super soldiers for warfare. (2) Even Marvel comic books feature a well-known super soldier, Captain America, who possesses heightened endurance, stamina, strength, agility, and intelligence making him "superior to any Olympic athlete who ever competed." (3) While the idea of creating an army of super soldiers seems far-fetched and long in the making, several research organizations have already begun developing technology to surge human strength and endurance. (4) Although the idea of using super soldiers to fight wars has sparked extensive top-secret government experiments, implementing technologically enhanced soldiers that contain super strength, recessed pain sensors, superior stamina, and heightened sensory abilities could be a war crime. (5)

   The idea of using technology to enhance soldiers was first used by George Washington during the American Revolutionary War from 1775-1783, where vaccinations were used to enhance the human immune system. (6) However, the next time human enhancement was used in creating super soldiers for warfare began as early as the turn of the nineteenth century where the Soviet Union sought to use DNA manipulation to cross breed humans with apes to create an army that would not easily die or complain by becoming resistant to pain and unconcerned about the quality of food they ate. (7) Today, the thirst to create the ultimate killing machine is the "fastest growing area of science" in which the creation of enhanced humans will produce soldiers equivalent to robotic killing machines who will out-perform traditional soldiers. (8) With roughly one-third of all military research worldwide being devoted to technology, the era of using super soldiers will require us to occasionally rewrite the rules of war within the Geneva Conventions. (9) Currently, the United States Pentagon spends 400 million dollars a year researching and exploring ways to create super soldiers through human enhancement technology that would allow soldiers to be combat operational even after 48 hours of sleep deprivation. (10) Although the race to create an army of enhanced war fighters has already begun, the ambiguity of Article 35(2) of the Geneva Conventions begs the ultimate question of whether using super soldiers for warfare is prohibited. (11)

   This Note argues that Article 35(2) of the Geneva Conventions does not prohibit the use of super soldiers for warfare. This can be achieved by showing that the use of super soldiers in warfare would not likely cause "superfluous injury or unnecessary suffering" to enemy combatants or civilians. (12) This Note will begin by explaining what super soldiers are, the various types of capabilities they may possess, and then a brief history of the existence of super soldiers. (13) Additionally, this Note will give a brief history and description of Article 35(2) of the Geneva Conventions. (14) This Note will then use Article 35(2) of the Geneva Conventions to argue that although technology in the military is quickly evolving, the use of military technology to create an army of super soldiers in warfare is not prohibited. (15)

2. History

   1. Super Soldier Defined

      In light of the quickly evolving era of military technology, governments from across the world are in competition to create the first super soldier designed to become an efficient killing machine possessing abilities only seen in movies. (16) Super soldiers refer to genetically modified humans that are capable of producing super human abilities that typical humans cannot generate. (17) Additionally, because of the rapid development in military technology, super soldiers can possess a variety of super human capabilities that were once considered solely fictional. (18) For example, the Pentagon's Defense Advanced Research Projects Agency (DARPA) is currently researching and prototyping a functioning exoskeleton that could allow a super soldier to run further and handle much heavier weight than the traditional soldier. (19) Other various super human abilities that could be created using military technology include decreased pain receptors for the ability to withstand injuries and torture, decreased appetite to promote longer lasting missions, decreased need for sleep to prolong productivity, as well as increased stamina, strength, agility, awareness, intelligence, and health to allow a super soldier to adapt and overcome rugged and extreme situations. (20)

   2. Conventional Wars: Calling Attention to Super Soldiers

      Since World War I, the methods, practices, and strategies of conventional war fighting have changed due to society's perception of the rules of engagement, organizational structure, and even the suitable levels of violence for which society can stomach. (21) Conventional wars were once focused on the main idea of destroying the enemy through killing or seizing enemy soldiers, annihilating the will of the enemy population from supporting their cause, and smashing resources used by the enemy. (22) However, modern wars today are primarily focused on abiding by lawful rules of war and limiting violence. (23) With the new era of modern warfare, the call for super soldiers to serve as a country's elite killing machine and obliterate the enemy, while reducing friendly causalities (killed in action), has become a top priority. (24) As of December of 2014, there have been 4,412 Unites States Military causalities from Operation Iraqi Freedom ("OIF"), and because of these figures, the U.S. Department of Defense has heavily funded programs aimed at enhancing soldiers for warfare by altering the genetic code towards making soldiers that are "stronger, smarter, and lack empathy." (25) After the initial invasion of Iraq in 2003, the United States military had zero enhanced warfighting machines, and now since 2008 there are a reported 12,000, leading towards the idea that a new era of using an army of super soldiers is on the horizon. (26)

   3. Article 35(2) of the Geneva Conventions History & Background

      The world witnessed extreme violence displayed during World War II and among the Thirty Years' War, sparking a movement to fill the gaps of international laws based on the rules of war. (27) Dating back nearly 66 years ago, the original draft of the Geneva Conventions has undergone various amendments specifically designed to protect the civilian population from the vicious effects caused by the outbreaks of war. (28) The nasty rigors of the Second World War were responsible for 28 million civilian deaths and the Thirty Years' War contributed to a 50% decline in the civilian population. (29) The unprecedented amounts of bloodshed from the civilian population during these two wars helped to launch the signing of the Geneva Conventions, which focused on protecting sick and wounded soldiers, prisoners of war, and civilians during times of war. (30) The drafting and implementation of the Geneva Conventions in 1949 led to 18 governmental delegations signing the highly historic document, symbolizing a milestone in international humanitarian law. (31) Additional amendments and protocols were added to the Geneva Conventions essentially to voice a response to the rapid changes in warfare tactics currently being used around the world, including the "expansion of guerrilla warfare, and the increased suffering of civilians in armed conflict due in part to developments in weapons technology." (32)

      The phrase known as "the laws of war" describe and relate to international humanitarian law ("DHL") that governs how wars and armed conflicts are supposed to be fought. (33) The laws of war are used to set limits on the effects of international armed conflicts, whereas the Geneva Conventions of 1949, are used to "safeguard combatants, or members of the armed forces, who are wounded, sick or shipwrecked, prisoners of war, and civilians, as well as medical personnel, military chaplains and civilian support workers of the military." (34) The Additional Protocols of 1977 of the Geneva Conventions gear towards protecting civilian victims of war and apply in all instances of declared war or in any other armed conflict among nations. (35) Additionally, the protection of civilians extends to include any nation where there is a war or armed conflict and there is no armed resistance to that war or conflict. (36) Since the enactment of Additional Protocol II, 164 Nations are parties to the legal instrument sought to protect the civilian population during times of war and armed conflict, making Additional Protocol II of the Geneva Conventions the most widely acknowledged legal document in the world. (37) Unlike the original drafts of the Geneva Conventions, Additional Protocol II and Article 35(2) expand the protection of victims grasped in the twists of the violent effects caused by war and armed conflicts, to include civil wars and "high-intensity internal conflicts." (38) Overall, Article 35(2) of the Geneva Conventions establishes a well-founded legal nucleus for the protection of war victims in the civilian population and prohibits the use of weapons that "cause superfluous injury or unnecessary suffering." (39)

3. Facts

   "Soldiers having no physical, physiological, or cognitive limitation will be key to survival and operational dominance in the future." (40) However, despite these potentially successful and beneficial abilities that super soldiers may acquire one day, it is also possible that these enhanced super soldiers would no longer resemble human beings. (41) The risk of these super soldiers separating from human intuitions is that it could lead to indiscriminate killings through the inability to distinguish between...