- Introduction
On February 24 2022 Russia instigated what it calls a ‘special military operation’ in Ukraine whose objective is to, among others, ‘denazify’ Ukraine. With that Russia tossed a barrage of attacks from land, air, and sea in Ukraine. Military analysts and non-experts alike predicted or so thought that Kyiv, the Ukrainian capital, would fall into Russian hands within weeks if not days of the war. The prediction, however, proved to be hot air thanks to a formidable defence from the armed forces of Ukraine.
As of 1 January 2023, the war or rather ‘special military operation’ still rages on with no belligerent showing intention of hanging their boots. After months of heavy fighting and heavy losses of both troops and equipment, the belligerents have resorted to the use of armed drones on the battlefield. A drone is an ‘unmanned, remotely-piloted, flying craft ranging from something small as a radio-controlled toy helicopter, to the 32,000 pounds, $ 104 million Global Hawk Military drone’.[1]
A drone has also been defined as a ‘specific type of unmanned robot such as an unmanned aerial vehicle (UAV) which when armed is known as an unmanned combat aerial vehicle (UCAV)’. An unmanned combat aerial vehicle (UCAV) is an ‘unmanned military aircraft of any size which carries and launches a weapon, or which can use on-board technology to direct such a weapon to a target’.[2]
The use of drones in armed conflict is nonetheless not a new phenomenon and dates back to the Second World War but became increasingly significant in the late 20th century.[3] Before their engagement as a means of warfare, drones were mainly used for aerial surveillance. Their use then expanded to search and rescue operations, suppression of hostile air defences, and targeted killings.[4] Drones have also been used for humanitarian purposes such as dropping humanitarian aid pellets in areas that are not easily accessible.[5]
In warfare, combat drones are mostly sought after owing to their autonomy, manoeuvrability, accuracy, and speed. Their remote nature implies that they can be daintier, smaller, and more economical than fighter jets, and can overfly areas otherwise too risky for man.[6] They can be used as weapon platforms or a single weapon system. Consequently, it is approximated that 50 states have or are in the process of developing or acquiring them for reconnaissance, intelligence, and targeting which exemplifies a proliferation and embracing of drone technology.
Most combat drones are semi-autonomous. In other words, even though they have the capability of guiding missiles to their targets using cameras and sensors, they usually depend on humans to assess the situation around targets before detonating—a phenomenon known as ‘man in the loop’.[7] The man-in-the-loop is key in guarding against indiscriminate attacks on civilians or civilian objects and also ensures that attacks are only directed at military objectives as mandated by the laws and customs of war. The United States of America is the largest single user of drones having applied them in the fight against insurgents in Afghanistan, Pakistan, Yemen, and Somalia.[8] Israel also has a history of using drones and has deployed them to target scientists in the Iran Nuclear Programme and those perceived to be threats to the Jewish state. Non-state armed groups such as Hezbollah possess and have used combat drones.
- Loitering munitions
Owing to technological innovations and a combat drone arms race it was expected that man would ultimately be kicked out of the loop. Sebastian Wuschka’s argued that ‘future technologies might render the ‘man in the loop’ superfluous’.[9] On the other hand, Fred Reed said ‘first, you had human beings without machines. Then you had human beings with machines. And finally, you have machines without human beings’.[10] This has come to pass with the development of loitering munitions, also known as Kamikaze drones owing to their disposable nature.[11]
According to the Defence Ministry of the United Kingdom (UK) loitering munitions are ‘low-cost guided precision munitions that can be maintained in a holding pattern in the air for a certain time and rapidly attack land or sea non-line-of-sight targets’.[12] For Cable News Network (CNN), kamikaze drones ‘are known as loitering munition because they are capable of circling for some time in an area identified as a potential target and only striking once an enemy asset is identified’.[13]
According to Paul Scharre, loitering munitions are ‘fully autonomous weapons systems which can search, identify, decide and engage targets independently without any human intervention’.[14] However, Deutsche Welle (DW) disputes their being called ‘kamikaze’ in that loitering munitions lack human pilots whereas kamikaze attacks—a Japanese method of warfare in the Second World War involved the death of the pilot who crashed his aircraft into enemy ships to ensure maximum destruction.[15] Nonetheless, it is generally agreed that loitering munitions are autonomous or semi-autonomous weapon systems contingent on the level of involvement of man in the loop.[16]
It is worth noting that Article 36 of Additional Protocol I to the Geneva Conventions governs the development of new technologies and entrusts states with the power of determining whether the employment of means of warfare would be prohibited in all or some situations. Currently, there exists no treaty that explicitly prohibits the use of loitering munitions. This means that they operate within the purview of International Humanitarian Law.
Loitering munitions have revolutionized war thus belligerents do not need to set foot on the battleground but only need to watch events unfold from the safety and comfort of their bunkers or command centres. Although not yet qualified as lethal autonomous weapon systems loitering munitions are capable of conducting their operations without a remote control.[17] A distinctive feature of loitering munitions from other drones is that they are not easy to detect and are single weapon systems that detonate once they hit their targets. This means that they are destroyed in the process earning them the name ‘suicide drones’.
Like their surveillance drone cousins, loitering munitions have various leads. To begin with, they are cost-effective. In that regard, they are ‘one-third the cost of manned platforms and cost two-thirds as much to operate’.[18] It is estimated that the Switchblade costs $600 while a unit of Javelin and Hellfire goes for $176,000 and $150,000 respectively.[19] Pierre Bouvier calls them ‘poor man’s weapon’.[20]
Secondly, they do not require life support systems. This frees up space and weight countenancing smaller and sneakier systems. In addition, their range can be increased and they can be more versatile.
In the Ukraine war, Russia deployed the Iranian-made Shahed-136 drones to direct attacks on both military and civilian targets.[21] The Shahed-136s boast a wingspan of 2.5 meters, a mass of 0.2 tonnes, and a flight of 120 km/h. They are also capable of carrying warheads weighing 0.04 tonnes and fly for up to 1500 miles and are completely autonomous.[22] The main disadvantage of Shahed-136s is that they can only engage stationary targets.[23] In addition to the Shahed-136s, Russia has engaged Orlan-10, Aero Kub and ZALA Lancet drones.
Ukraine has also stepped up the use of combat drones in the war. It has deployed the Turkish-made Bayraktar TB2 drones.[24] The Bayraktar TB2s boasts a 40 feet wingspan with the ability to carry four laser-guided missiles. It is described as ‘a multi-purpose platform with autonomous flight capabilities that can perform Target Acquisition using the on-board laser designator and capable of eliminating the target using its payload consisting of four smart munitions’.[25]
Ukraine has also used the Switchblade 300s provided by the United States. Although limited in range, the Switchblade 300s use their daylight and thermal cameras to locate and destroy targets.[26] Nonetheless, before the Ukraine war, loitering munitions gained notoriety during the 2020 Nagorno-Karabakh conflict pitting Azerbaijan against her Soviet sibling Armenia. The Nagorno-Karabakh conflict is touted as the first drone warfare which offered a glimpse into future wars as both sides deployed various lethal autonomous weapon systems.
Azerbaijan undoubtedly had the upper hand in the conflict thanks to her Harop, Sky Striker, Orbiter 1k, and Orbiter-3 loitering munitions.[27] However, specific reference must be made to the Israeli-made Harop munition, the conflict’s game changer. The Harop, also known as IAI Harpy 2, is specifically used to suppress enemy air defence systems. It has a 50-pound warhead and a ‘man in the loop mode’ that allows it to be remotely controlled.[28] It also has a range of 200km.
On the other hand, Armenia relied on her locally assembled short-range drones which proved to be no match to the more advanced Azeri loitering munitions. Specifically, Armenia deployed light reconnaissance drones such as the Krunk and X-55 together with the HRESH loitering munitions.
- International humanitarian law
International Humanitarian Law is a body of rules that regulates the conduct of armed hostilities. It enhances the protection of persons who do not or no longer participate in armed hostilities and confines the methods and means of conducting hostilities. International Humanitarian Law is codified in international treaties such as the Hague and Geneva Conventions and their Additional Protocols. It is also drawn from the customary international law of states.
Armed hostilities may be international or non-international. International hostilities are those between states[29] whereas non-international hostilities are those that occur within the boundary of states.[30] For instance, the Russo-Ukraine war is an international hostility while the conflict pitting Ethiopian forces and Tigray People’s Liberation Forces is a non-international armed hostility. Nonetheless, as Yoram Dinstein observes, distinguishing between international and non-international armed hostilities may be a herculean task.[31]
Owing to the classification of war Geneva Conventions I-IV and Additional Protocol I apply to international hostilities while the guarantees of Common Article 3 to the Geneva Conventions and Additional Protocol II apply to non-international hostilities. It is worthy to note that contraventions of the laws and customs of war may invoke International Criminal Law thus individuals with the highest criminal responsibility may be charged before the International Criminal Court or any other ad hoc tribunal set for such purpose.
- Principles of international humanitarian law
The Permanent Court of International Justice established in the SS Lotus Case that in the conduct of warfare, states are under the liberty to adopt those means and methods of warfare that are not prohibited by international law.[32] In light of armed hostilities, International Humanitarian Law has established rules which prohibit indiscriminate military conduct as set out hereunder.
- Distinction
This customary international norm calls on belligerents to distinguish between combatants and civilians, and between civilian objects and military objectives. Overall, it behoves belligerents to direct operations only on military objectives.[33] It is aimed at safeguarding the respect for and protection of civilians and civilian objects by ensuring that civilians and their objects are not made targets of attack.[34]
Civilians are persons who are not members of the regular armed forces of the belligerents[35] whereas civilian objects are those objects which are not military objectives.[36] Protection of civilians only covers the period that they do not directly participate in hostilities. In other words, they may be made the object of attack whenever they take an active part in hostilities and cannot enjoy the protection afforded to prisoners of war or those hors de combat when they are captured.
- Proportionality
Proportionality as expressed in Article 51(5) (b) of Additional Protocol I requires belligerents to weigh the military advantage that an attack would achieve against the loss incidental to civilians or their objects. It follows therefore that an attack would be discriminated against if the military advantage outweighs the incidental loss to civilians or civilian objects.
- Limitation
In the conduct of hostilities, parties are free to decide the means or methods necessary to achieve their military objectives. Nonetheless, the right to choose the means or methods of achieving the military objective is limited.[37] Accordingly, limitations are placed on the means or methods of subduing the enemy hence using, inter alia, dumdum bullets and pillage is prohibited despite their effectiveness.
- Military necessity
In war, strategy is everything. Military necessity, therefore, gives a belligerent the power to apply such an acceptable degree of force for the complete or partial submission of the enemy. This may involve ‘hugging the donkey’ if necessary but not putting the cart before the horse.
- Humanity
It is always the legitimate aim of a party to a conflict to win. It is therefore expected that the party will employ and deploy the means and methods necessary for weakening the enemy or at least have his or her nose bloodied. However, the humanity principle outlaws the use of force that is not necessary for weakening enemy forces. It stems from the understanding that man can express reverence and care for all including their enemies.
The International Court of Justice in the Legality of the Threat or Use of Nuclear Weapons[38] observed that the limitations relating to the conduct of hostilities are the binding core principles of the laws of war which cannot be derogated from. In other words, the principles must be complied with notwithstanding the character of armed hostility.
- Loitering munitions vs. international humanitarian law
The deployment of loitering munitions in armed conflicts as part of lethal autonomous weapon systems has been very controversial. It has been suggested that loitering munitions operate in a vacuum without legal oversight. Conversely, scholars such as Sebastian Wuschka argue that in the absence of laws regulating the use of loitering munitions in armed conflict then recourse must be had to international humanitarian law.[39]
Be that as it may, it is common ground that the use of loitering munitions poses various challenges to their safe and effective deployment in the combat zone. Firstly, loitering munitions have varying degrees of autonomy bringing into question their compliance with the principles of International Humanitarian Law and the principle of distinction. Left without human control loitering munitions may not be able to make a distinction between a civilian and a combatant or between a civilian object and a military objective thus making civilians and civilian objects susceptible to indiscriminate attacks owing to their dependence on Artificial Intelligence algorithms (AI) which makes the firing decision.[40]
Secondly, loitering munitions place much reliance on AI which may be prone to miscalculation or technological limitations such as hacking. Such shortcomings may lead to indiscriminate attacks which are outlawed by International Humanitarian Law since the munitions have no means of independently weighing the military advantage of an attack against damage to civilians.
The third challenge relates to their accountability to the laws and customs of war since loitering munitions have little to no remote human control. According to Israel Aerospace Industries, the Harpy is a ‘fire and forget’ autonomous weapon.[41] Firing and forgetting would mean that once the munition is fired one buries his head in the sand to neither hear nor see anything that happens afterwards.[42] This brings into focus the decision to abort an attack, which is submitted to loitering munitions lack. The situation will get worse if the loitering munitions fall into the hands of non-state armed groups who are not signatories to the Geneva Conventions and their Additional Protocols.[43]
Apportioning criminal responsibility is not possible for drones. For instance, if war crimes have been committed by the use of drones precipitating the invoking of International Criminal Law who bears the greatest criminal responsibility? Do we frog march a loitering munition, which has probably committed suicide, to the International Criminal Court? International Criminal Law advises us to charge the person with the greatest criminal responsibility, however, how will causality be proved in that case?
Ethical concerns have equally been raised over the deployment of loitering munitions and relate to the killing of humans by machines through the lens of the just war theory.[44] The just war theory attempts to humanize conflict by focusing on the reasons for waging war (jus ad bellum) and how the war should be conducted (jus in bello). To the commander, the challenge is adherence to these principles of war. The use of loitering munitions thus relates to how wars are fought if the rationale for going to war has been met. To that extent, it is submitted that loitering munitions de-humanises war.
To guard against the potential excesses of loitering munitions, Stop Killer Robots—a campaign to stop killer robots, reports that more than 70 countries are calling for a treaty on lethal autonomous weapons.[45] In the same vein, the United Nations (UN) Secretary-General Antonio Guterres agitated for an international instrument to prohibit autonomous weapon systems. According to Guterres, ‘machines that have the power and discretion to kill without human intervention are politically unacceptable and morally reprehensible’.[46]
- Conclusion
The proliferation of loitering munitions seeks to remove man from the equation of war which has serious ramifications for the laws of war. This is so since autonomous weapons ‘operate on impassive logic functions and are incapable of feeling the emotions of compassion, anger, or courage; or conducting a virtuous war for duty, honour, or country neither do they have the capacity for the military ethos of chivalry’.[47] The time is therefore nigh for the banning of fully autonomous weapons otherwise humanity may be loitering its way to the grave since loitering munitions are slowly but surely outpacing the laws of armed conflict.
The author is a 3rd Year LLB student at Mount Kenya University, Parklands Law Campus.
[1] Vivek Sehrawat, Legal Status of Drones under LOAC and International Law, 5 PENN.ST. J.L. & INT’L AFF. 164(2017),
171. Available at: https://elibrary.law.psu.edu/jlia/vol5/isss1/7.
[2] Humanitarian Policy and Conflict Research-Manual, rule 1.
[3] European Parliament, Human rights implications of the usage of drones and unmanned robots in warfare, 7.
[4] US Department of Defense, ‘Unmanned Systems Integrated Roadmap FY 2011-2036’, 21.
[5] R Alberstadt, Drones under International Law. Open Journal of Political Science, 4 (2014), 221-232, 222. Available
at: http://dx.doi.org/10.4236/ojps.2014.44023 .
[6] International Bar Association Human Rights Institute, The Legality of Armed Drones under International Law. July
2017, 7.
[7] Sebastian Wuschka, The Use of Combat Drones in Current Conflicts – A Legal Issue or a Political Problem?
Goettingen Journal of International Law 3 (2011) 3, 891-905, 896.
[8] International Bar Association Human Rights Institute, The Legality of Armed Drones under International Law. July
2017, 7.
[9] Sebastian Wuschka, The Use of Combat Drones in Current Conflicts – A Legal Issue or a Political Problem?
Goettingen Journal of International Law 3 (2011) 3, 891-905, 896.
[10] Fred Reed, ‘Robotic Warfare Drawing Nearer’. Washington Times, 10 February 2005, p. C7.
[11] Ivana Kottasová, ‘Kamikaze drones are the latest threat for Ukraine. Here’s what we know’. 17 October 2022.
[12] R Hughes, Loitering with intent, Janes International Defence Review, 2015 Nov 27.
[13] Ivana Kottasová, ‘Kamikaze drones are the latest threat for Ukraine. Here’s what we know’. 17 October 2022.
[14] Paul Scharre, Army on None.
[15] Christoph Hasselbach, ‘Russia steps up use of kamikaze drones in Ukraine’. 4 January 2023.
[16] Mike Guetlein, Lethal autonomous weapons — ethical and doctrinal implications. Naval War College, Newport, RI, 2.
[17] Vadim Kozyulin, ‘Autonomous Weapons and the Laws of War’. 9 February 2021. Available at:
<https://www.valdaiclub.com/a/highlights/autonomous-weapons-and-the-laws-of-war/> (Accessed 21st January
2023).
[18] Mike Guetlein, Lethal autonomous weapons — ethical and doctrinal implications. Naval War College, Newport, RI, 2.
[19] Ahmad Ibrahim, Loitering Munitions as a New-Age Weapon System. 5 December 2022, Centre for Strategic and Contemporary Research. Available at <https://www.cscr.pk/explore/themes/defense-security/loitering-munitions-as-a-new-age-weapon-system/> (Accessed 18th March 2023).
[20] Pierre Bouvier, ‘With the Iranian-made Shahed-136 drone, Putin puts faith in poor man’s weapon’. 18 October 2022. Available at <https://www.lemonde.fr/en/international/article/2022/10/18/with-the-iranina-made-shahed-136-drone-putin-puts-faith-in-poor-man’s -weapon_6000848_4.html > (Accessed 18th March 2023).
[21] Armani Syed, ‘What To Know About the ‘Kamikaze’ Drones Russia Is Using to Attack Ukraine’. 20 October 2022.
Available at: https://time.com/6223204/iran-kamikaze-drones-russia-ukraine/ (Accessed 21st January 2023).
[22] Reuters, ‘Explainer: What are the ‘kamikaze drones’ Russia is using in Ukraine? 18 October 2022.
[23] Ahmad Ibrahim, Loitering Munitions as a New-Age Weapon System. 5 December 2022, Centre for Strategic and Contemporary Research. Available at <https://www.cscr.pk/explore/themes/defense-security/loitering-munitions-as-a-new-age-weapon-system/> (Accessed 18th March 2023).
[24] Automated Decision Research, Weapons systems with autonomous functions used in Ukraine. Available at https://automatedresearch.org/news/weapons-systems-with-autonomous-functions-used-in-ukraine/ . (Accessed 18th March 2023).
[25] Automated Decision Research, Weapons systems with autonomous functions used in Ukraine. Available at https://automatedresearch.org/news/weapons-systems-with-autonomous-functions-used-in-ukraine/ . (Accessed 18th March 2023).
[26] Armani Syed, ‘What To Know About the ‘Kamikaze’ Drones Russia Is Using to Attack Ukraine’. 20 October 2022.
Available at: https://time.com/6223204/iran-kamikaze-drones-russia-ukraine/ (Accessed 21st January 2023).
[27] Joel Postma, ‘Drones over Nagorno-Karabakh: A glimpse at the future of war? Atlantisch Perspectief, 2021, Vol.
45, No.2, Niewe uitdagingen? (2021), pp. 15-20, 15.
[28] Joel Postma, ‘Drones over Nagorno-Karabakh: A glimpse at the future of war? Atlantisch Perspectief, 2021, Vol.
45, No.2, Niewe uitdagingen? (2021), pp. 15-20, 17.
[29] Common Article 2, Geneva Conventions 1949.
[30] Common Article 3, Geneva Conventions 1949.
[31] Yoram Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict (Cambridge: Cambridge University Press), 2004, 14.
[32] Judgment No. 9, The Case of the S.S. Lotus (France v. Turkey), PCIJ Series A, No. 10 (1927), para. 46.
[33] Article 48, Additional Protocol I.
[34] The Kassem Case.
[35] Article 50(1), Additional Protocol I.
[36] Ibid, Article 52(1).
[37] Ibid, Article 35(1). See also Article 22, Hague Regulations.
[38] Advisory Opinion, I.C.J. Reports 1996, 226, 257, para. 78.
[39] Sebastian Wuschka, The Use of Combat Drones in Current Conflicts – A Legal Issue or a Political Problem?
Goettingen Journal of International Law 3 (2011) 3, 891-905, 894.
[40] Ahmad Ibrahim, Loitering Munitions as a New-Age Weapon System. Available at:
<https://www.cscr.pk/explore/themes/defense-security/loitering-munitions-as-a-new-age-weapon-system/>
(Accessed 5th February 2023). See also M Wagner, ‘Taking Humans Out of the Loop: Implications for International Humanitarian Law’, University of Miami Legal Studies Research Paper No. 2011-21, 8.
[41] IAI, Fire, and Forget: Harpy is an autonomous weapon for all weather. Available at:
<https://www.iai.co.il/p/harpy > (Accessed 5th February 2023).
[42] IAI, Fire, and Forget: Harpy is an autonomous weapon for all weather. Available at:
<https://www.iai.co.il/p/harpy > (Accessed 5th February 2023).
[43] Adam Roberts, ‘The Laws of War in the War on Terror,’ in Wybo Heere, (ed.), Terrorism and the Military: International Legal Implications (The Hague: Asser Press, 2003), 65.
[44] Michael Guetlein, ‘Lethal Autonomous Weapons-Ethical and Doctrinal Implications’, Naval War College Newport RI, 12.
[45] Catherine Connolly, Loitering munitions with autonomous capabilities used in Ukraine. Available at www.stopkillerrobots.org/news/loitering-munitions-with-autonomous-capabilities-used-in-ukraine/ (Accessed 18th March 2023)
[46] Yordan Gunawan, Muhamad Haris Aulawi, Rizaldy Anggriawan & Tri Anggoro Putro (2022) Command responsibility of autonomous weapons under international humanitarian law, Cogent Social Sciences, 8:1, 2139906, DOI: 10.1080/23311886.2022.2139906.
[47] Michael Guetlein, ‘Lethal Autonomous Weapons-Ethical and Doctrinal Implications’, Naval War College Newport RI, 12.