IEEE Technology and Society Magazine - March 2017 - 63

"weapons" for regulatory purposes would enliven additional, and onerous, legal obligations for States and military personnel in relation to their development, possession, and use.
International humanitarian law (IHL) imposes a raft
of obligations on States and individuals in relation to
their conduct in armed conflict. For the 174 States
which are parties to the First Additional Protocol of
1977 to the Geneva Conventions of 1949 (AP1), the
obligations relevant to international armed conflict are
largely contained in that document. States not party to
that Protocol bear customary obligations which, in
relation to the basic principles of IHL discussed below,
are substantially identical to those contained in the
Protocol. Some of the most stringent conventional and
customary obligations (and harshest penalties) relate,
unsurprisingly, to the use of weapons.
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 ways in
which they are used. The principle of proportionality
states that parties to a conflict must not launch an
attack that is expected to cause damage to civilians
or civilian objects that 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 damage beyond what is necessary for an
attack to succeed.
In support of these principles, States must take
adequate precautions in planning and conducting
attacks to ensure their obligations are met. Among
other measures, attack planners and commanders
must ensure that the means and methods of warfare
chosen for an attack are those most able to avoid or
minimize civilian damage. Finally, States parties to
AP1 must review all new weapons, means, and methods of warfare for compatibility with their legal obligations. While procedures vary between States, reviews
are typically done at several stages prior to use of a
weapon, including during development. The customary status of the obligation to review weapons is dubious at best, but it is notable that some States not
party to AP1, including the United States, review new
weapons regardless.
It is not suggested that implants as a class would
be treated as weapons under IHL. First, many of the
implantable technologies posited so far have only
restorative or other effects not closely linked to inflicting damage on an adversary. Second, the fact that
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implantable technologies that enhance a soldier's performance act directly on the soldier, rather than on an
adversary, places them outside what could reasonably
be considered a weapon or a means of warfare.
The key question is about the extent of what constitutes a weapon or the associated IHL notion of a
"means or method" of warfare. At first glance it might
appear that implantable technologies would be outside
this scope; implants of the types currently being
researched are not intended to provide an offensive
capability that can be directly applied to an adversary.
However, the scope of what is considered a weapon,
means or method of warfare for the purposes of a weapon review is wider than it appears.

The scope of what is considered a
weapon, means, or method of warfare
is wider than it appears.

"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 that must be
reviewed for compatibility with IHL obligations. Components of weapon systems include all devices that
would normally be used together to operate a weapon.
Second, as "methods of warfare" are also reviewable,
it is arguable that devices that may reasonably be
expected to influence the choice of tactics, or influence the manner in which weapons are used, would
also be included.
Implantable technologies might therefore fall within
the scope of technologies that must be reviewed for
compatibility with a State's obligations under IHL
where they would normally be used while a soldier is
operating a weapon, and where they materially affect
the manner in which the weapon is used. According to

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