In recent weeks, Russia has employed en masse so-called “kamikaze drones” in its war with Ukraine. The drones, supplied by Iran and under the manufacture name “Shahed-136” have been sent out in waves, inflicting damage on the Ukrainian military as well as residential buildings and critical civilian infrastructure. In this piece, I will discuss first the nature and use of the drones, then the potential violations of international customary and code law their present use creates, and finally whether there is any legitimate use of the drones to begin with.
The Shahed-136 drone is a surprisingly rudimentary device when considering both its ability to inflict harm and evade Ukrainian anti-missile defense. Operating with an explosive charge, a GPS coordinate program, and “simple piston engine driving a wooden propeller,” the drone is slow moving and low-flying, thus capable of evading conventional radar missile detection. Further, given the rudimentary design the drone is cheap to manufacture, the Russian military is enabled to, albeit allegedly, purchase the drones in large quantities while also firing swarms (five or more) which become difficult to fully intercept. Additionally, the drones are capable of being fired from a long-range. Low-flying, undetectable devices with a simple target and simple explosive can accordingly be used to strike at military objectives within the opposing state’s area of missile-defense, as occurred earlier in the conflict with the destruction of Ukrainian naval facilities in Odessa.
Notwithstanding the threshold issue of whether Russia’s invasion of Ukraine was at all defensible under international law, the use of long-range weaponry to target purely military objectives prima facie seems to be legitimate. However, when it comes to the use of explosive drones–specifically those manufactured by Iran–in the Ukrainian theater, there is a possible violation of the United Nations Security Council Resolution 2231 which forbids Iran from engaging in the “transfer of drones capable of flying 300 kilometers (about 185 miles).” More troubling, however, is the dark reality that the drones may be being programmed to specifically target sites otherwise protected under international law.
According to UN officials, attacks by Russia using missiles and drones “between Oct. 10 and Oct. 18 in cities and towns across Ukraine killed at least 38 Ukrainian civilians, injured at least 117 and destroyed critical energy infrastructure, including power plants.” Per Ukrainian President Zelensky’s own admission, the attacks disabled nearly thirty percent of Ukraine’s power grid. If the UN official is correct and drone attacks have killed civilians and destroyed non-military infrastructure, Russia is caught between having violated one or another humanitarian precepts of international law.
If the UN official is correct and drone attacks have killed civilians and destroyed non-military infrastructure, Russia is caught between having violated one or another humanitarian precepts of international law.
On the one hand, were Russia to have expressly targeted civilians and non-military infrastructure, the state would be in direct violation of Common Article 3 of the Geneva Conventions which provides for near-absolute protection of non-combatants from being targeted if they have taken no part in hostilities. In-keeping with the foregoing, only military objectives can be lawfully attacked (with limited exception) and were a drone strike to target a power plant not falling within the definition of military objective as enumerated by Article 52 of Additional Protocol I of the Geneva Conventions, such activity would violate international law.
More troubling (and perhaps more realistically) there could be no intention for the drones to hit civilian targets and thus no targeting such that Common Article 3 would apply. In such a case, Russia would almost certainly be in violation of Article I of Additional Protocol I of the Geneva Conventions which prohibits indiscriminate attacks. The article, while directed in purpose towards weapons such as cluster bombs or land mines (which, per their nature, do not discriminate between combatant and non-combatant) would also apply to the reckless use of long-range weaponry. If the Russian state, with an increasingly conscript-based force using foreign technology, were to launch devastating explosive weaponry without taking adequate measures to aim it, the activity would once again be in violation of international law.
As a final contention, the Iranian Shahed-136 drones were, prior to the conflict, allegedly untested in combat.Further, per their rudimentary design, cheap manufacture, and simple GPS system of targeting, there is an open question as to whether the drone is even sufficiently capable of combatant discrimination in the first place. If fired from a long (over 300 kilometer) range, moving slowly via a propeller to avoid detection, the simple movement of a target could mean that a non-combatant is killed in place of a combatant. To that end, what the drone gains in ease of manufacture and evasion it perhaps loses in legitimacy as a weapon of war, as the questionable capacity for distinction in a weapons system indicates derogation from international humanitarian law.
Weston Barker is a second-year law student and currently serves as the Chair of the Student Bar Association Law Revue Committee as well as a Co-Chair of UNC Child Action. Prior to law school, Weston attended the Cornell University College of Arts and Sciences where he majored in Philosophy and Government. Aside from legal studies, Weston is an avid enjoyer of sketch comedy and writes for a student sketch comedy group.