Logo: to the web site of the Swedish Defence University

The advancement of weapons technology has been intertwined with the development of International Humanitarian Law (IHL) for almost as long as it has existed. This thesis examines whether the technological progression in precision weaponry creates a concept of legal obsolescence in weapon systems. This would be understood as the prohibition of a weapon system based on the situational superiority of a more precise alternative, under Article 57(2)(a)(II) of the First Additional Protocol to the Geneva Conventions. This article requires those planning or deciding upon an attack to take all feasible precautions in their choice of means and methods with a view to minimizing risk to civilians and civilian objects.  Through an analysis of the legal framework surrounding precautions in attack, Article 57, the thesis establishes the existence of legal obsolescence in both treaty and customary international law. Its application, however, is not reducible to a fixed, one size fits all, formula; instead, it is an inherently ad hoc assessment shaped by the operational context at the time, including precision capabilities of alternative weapon systems, logistical considerations, available intelligence as well as operational circumstances such as weather. Central to this analysis is the concept of feasibility, which is simultaneously the limiting principle and enabling condition.  Feasibility is further explored in regard to its dynamic status and is argued to expand in concert with the technological capability of the wielder. Concerns regarding unequal application humanitarian legal obligations between States of varying technological prowess are also addressed. Considerations are also given to moral and ethical counterarguments to any obligation, particularly the risk of psychological distancing from the effects of the weapons due to their high-tech nature.  These principles are subsequently applied to the concrete example of First Person View, or FPV, drones which are seeing heavy utilisation in the Russo-Ukrainian War. The Author argues that these drones by virtue of their broad operational capability, relative low cost, real-time visual guidance as well manual operation are a weapon system which is perhaps uniquely suited to comply with precautions in attack. To conclude, the thesis posits that while legal obsolescence does exist and binds belligerents, its practical impact may be limited but is hard to quantify, as legal obligation and military logic in regard to precision seems to converge.  

“War is chaos. It always has been. But technology makes it worse. It changes the fear.”