Introduction
The Russia-Ukraine international armed conflict marked its first anniversary on February 24, 2023. Since the past year, the conflict has seen the emergence of many deadly weapons which has contributed to tens of thousands of deaths. One such weapon which was reportedly used for the first time in the conflict on 13th September 2022 was the Shaheed-136 drone system, also known as ‘Kamikaze’ drones. As both countries continue to make advances; there have been reports that Russia has stepped up the usage of these drone systems with great frequency, further terrorizing Ukrainian cities. As a response President Volodymyr Zelensky accused Russia of trying to exhaust Ukraine by launching waves of Kamikaze drone attacks in cities and against critical power infrastructure. In this post, the author firstly, highlights the features of Kamikaze drones and analyses the manner in which they have been used to conduct warfare in Ukraine. Secondly, they assess the legality of their usage under International Humanitarian Law and the various challenges they present.
What are Kamikaze Drones?
Unmanned drones have been used in warfare for over decades, most recently in the Russia-Ukraine conflict. The drone model deployed has been identified as Shahed-136 whose origins can be traced to Iran. It has a range of upto 1243 miles (2000 kms) and can reportedly reach every Ukrainian city from Russia. They have a triangular wing and can carry a warhead of about 80 pounds. Unlike the Turkish Bayraktar drones which return after hitting the target, these drones destroy themselves in the process. Hence, the term ‘suicide’ or ‘single-use’ drones. The drones have been identified to have several ‘autonomous’ features as they fly on their own; attacking targets which cannot be changed ‘retroactively’. They also display the characteristics of ‘loitering munitions’ as they loiter (or) hover around targets for a while and only attack when the target has been identified. The UK based Conflict Armament Research (CAR) recently released a report highlighting its latest findings which revealed that these drones were being modified by Russia to include a ‘multi-purpose’ warhead designed to ensure that maximum damage could be inflicted while also making it difficult to make quick repairs.
The method of warfare employed by Russia using Kamikaze Drones: in compliance with IHL?
Article 51 (4) (b) of Additional Protocol 1 prohibits means or method of warfare that cannot be directed at a specific military object and targets both civilian and military objects without distinction (Principle of Distinction). The relevant humanitarian concerns with the usage of Kamikaze weapons are firstly, whether in combat they have made this distinction between civilian and military targets and secondly, whether they have in practice attacked the latter ‘discriminately’ preventing unnecessary suffering to civilians and combatants alike.
Despite being significantly small, Kamikaze drones have been identified as being capable of carrying missiles and inflicting enormous damage. Retired Australian Army Major General Mick Ryan told CNN that the drones are “generally of limited utility against military targets that require precision.” Most experts have also agreed that the drones are not capable of fundamentally altering the military advantage in the war but could be employed to cause significant civilian damage. This largely has been the strategy employed by Russia in practice. These fairly unsophisticated weapons have been used by the Russian military in attacks against civilians in cities where no military utility has been identified. This has resulted in numerous deaths among civilians. In November 2022 alone the United Nations Office for the Coordination of Humanitarian Affairs identified that almost 30 civilians were killed or injured in these drone attacks. Therefore, the method of warfare employed by Russia in Ukrainian cities using the means (Kamikaze drones) has pointed to its failure in adhering to the Principle of Distinction and inflicted unnecessary suffering on the population. Military experts and analysts have also highlighted that the Russian strategy of ‘swarming’ Ukrainian cities with Kamikaze drones has been a deliberate one, aimed at terrorizing and sowing fear in the population. Article 51(2) of the 1977 Additional Protocol I prohibits such “acts or threats of violence” whose “primary purpose of which is to spread terror among the civilian population”.
Kamikaze drones have additionally been employed to target Ukraine’s power grids and energy facilities which has left millions of Ukrainians without power, electricity and heat for months in the harsh winter. IHL provides that all attacks must be strictly limited to military objectives and that civilian objects should not be made subject of any appraisals. Power infrastructure can be categorized as a valid target only when it qualifies as a military objective. The list of military objectives identified by the ICRC includes, “installations providing energy mainly for national defence, e.g., coal, other fuels, or atomic energy, and plants producing gas or electricity mainly for military consumption”. In this conflict, the Russian Ministry of Defence has uniformly characterized all “energy systems” as being synonymous with “military command systems” and “arsenals.” However, such blanket categorization has no standing in IHL. For energy infrastructure to classify as military objectives according to Article 52 of Additional Protocol 1, “they must by their very location, purpose and nature make effective contribution to military action. And their total or partial destruction must offer a definitive military advantage.” It remains doubtful if all attacks on power infrastructures using Kamikaze drones offer definite ‘military advantage’ as Russia’s hope that these attacks will dampen civil morale does not qualify as such an advantage. Russia cannot target Ukrainian power infrastructure on mere suspicion that such facilities can or might be used as military objects.
But even if these attacks could in particular circumstances be qualified as definite military objectives, they will still have to comply with the ‘Principle of Proportionality.’ Which means that even energy systems which can be categorized as ‘military objectives’ should not be targeted if the expected harm to civilians is not merely incidental but instead is excessive in relation to any anticipated military advantage. A detailed Human Rights Watch investigation has found that the increasing severity of civilian harm that would be caused by such attacks (the ability of Ukrainians to survive the winter) was foreseeable by the Russian state. It was predictable that multiple drone attacks against energy facilities in quick succession would dampen the ability of Ukraine’s state forces to restore energy and lead to uncontrolled blackouts depriving the population of electricity, food, and other basic services for several months in the harsh winter. Attacks on cities’ power infrastructure despite such ‘foreseeable’ ‘excessive’ harm to civilians violates the principle of proportionality as identified by the International Tribunal for the former Yugoslavia in the Galić case.
Article 36 of Additional Protocol I requires states to conduct a review of all new weapon systems, means and methods of warfare to determine whether their use would be prohibited under IHL or not. ‘Methods of warfare’ are tactics and strategy employed in warfare and the ‘means of warfare’ are the weapons used. The use of a weapon can be made completely unlawful (for example, cluster munitions) or it could be considered unlawful in certain circumstances. However, the legality of the ‘means of warfare’ cannot be assessed in isolation to the ‘methods of warfare.’ An analysis of weapon systems under Article 36 of Additional Protocol I necessarily requires the determination of both the weapon’s features, structures and the manner in which it is likely to be used in warfare. In general, IHL prohibits means and methods of warfare that cause indiscriminate suffering or superfluous injury in warfare; among other restrictions provided for in treaty and customary law. The ‘method of warfare’ conducted by Russia using the means (Kamikaze drones), as noted above, has pointed to a clear violation of both the provisions of treaty and customary IHL. However, there has been no attempt by either parties or the international community at large to conduct a detailed assessment of the legality of these weapons as ‘means of warfare’ under Article 36. Such an assessment is required to assess whether the usage of loitering munitions such as Kamikaze drones, are in themselves, violative of international law.
Analysis of Kamikaze weapons under IHL: implications and challenges
We are witnessing a growing international humanitarian movement to pre-emptively ban the production, development and usage of ‘Lethal Autonomous Weapon Systems (LAWS)’; also known as ‘killer robots’. According to ICRC, ‘autonomous weapons are those weapons which select and apply force to targets without human intervention.’ The targeting function which would otherwise be controlled by humans is fully automated in the weapon. The person who activates the weapon has no idea whom/where/what it will strike as the sensors are triggered when the target profile is independently selected and identified by the software. The usage of Kamikaze drones in the Russia-Ukraine conflict has seized headlines with many media outlets referring to them as ‘killer robots’ or ‘AI powered weapon systems’.
However, though Kamikaze drones are being used as ‘loitering munitions’ with several significant autonomous features. In the majority of the documented instances we observe that some form of human control has still been retained in their functioning. They have been routinely employed as semi-automated weapons; where humans have been retained in the loop to make the decisions to use or not make use of the lethal force in addition to supervising the systems decisions. Therefore, media reports which claim lethal autonomous weapons have been used in the conflict have to be treated with caution.
However, it would be equally inept to ignore the rise of such a new generation of weapon systems which display decreasing levels of meaningful human control. Even as they retain a ‘human-in-the loop’: it remains to be understood whether control exercised by such persons is “meaningful” or not.
Kamikaze drones continue to attack pre-programmed targets raising important questions. Firstly, whether human operators operating them remotely are able to decipher sufficient contextual information from the drone to make effective real time decisions of striking targets based on principles of distinction, proportionality and necessity in armed conflict. Secondly, it has been observed, as in the case of similar loitering munitions such as STM-Kargu 2 in the Libyan conflict. That most of these weapon systems have the capacity to be used in ways that would fall under definitions of lethal autonomous weapons even if they are currently used in ways that would disqualify them as such. Heather Roff, senior researcher at Oxford argues that emerging trends of autonomy in weapons reveals that reliance on ‘whether a human is retained in loop or not’ to classify weapons as LAWS may be hindering our ability to understand the evolution of autonomy and its dangers to warfare. This is because the line between automation (pre-programmed to act automatically) and autonomy (acting independently) continues to shift greatly over the decades, making the difference precarious and less evident.
Therefore, as the UN Convention on Certain Conventional Weapons (CCCW) continues to mobilize against the emergence of deadly fully autonomous weapon systems. It is equally important to increase the enforcement of existing laws, particularly reviews under Article 36 to ensure that we are not only mobilizing against the development of fully autonomous weapons but are also regulating those weapons which fall within the ambiguous intersection of autonomy and automation. While the article provides for a review mechanism, it does not specify any procedure or format for such determination to take place. Instead, it imposes an obligation on states to develop such internal procedures themselves. As of today, only 12-15 countries are known to have established detailed procedures to conduct legal reviews of weapons. The emergence of weapon systems such as the Kamikaze drones in the ongoing Russia-Ukraine conflict should prompt widespread information-sharing initiatives within the mechanisms of CCCW to share resources, details and research on these weapons so as to create uniform international and domestic frameworks to coherently identify and categorize the legality of such weapons under international law. Doing so, is in the interest of various global movements that have mobilized to stall the development and usage of Lethal Autonomous Weapon Systems in modern warfare.
Conclusion
In the 12 months since the beginning of the Russian invasion of Ukraine, the conflict has become the battleground for numerous new and dangerous weapon technologies. The use of Kamikaze drones has radically altered the direction of drone warfare for the years to come. These small, noisy devices have not only terrorized the civilian population but have also posed an immediate and important challenge to International Humanitarian Law concerning their regulation. The method of warfare employed in this conflict as observed, has been largely in non-compliance with the basic principles of IHL. Additionally, the way these weapon systems have been employed has further blurred the line between automation and autonomy. Prompting international movements that have mobilized against LAWS to take note of such weapons which may not be fully autonomous but still have pertinent autonomous features which can contribute to their non-compliance with law. Swift review of such weapons will not only contribute to greater understanding of future development of autonomous weapons in warfare but will also determine their survival.
Panchami Manjunatha is a second-year law student from the National Law School of India University, Bengaluru.
Image: irdiplomacy.ir
Jindal Forum for International and Economic Laws 