Ukraine Symposium – Dragon Drones and the Law of Armed Conflict

by , | Oct 23, 2024

In early September, social media users uploaded videos depicting a Ukrainian drone spewing a burning substance along a dense tree line, allegedly where Russian troops were hiding (see here, here, here, and here). Although the longest video spans no more than 30 seconds, viewers see vegetation on the ground continue to burn after the drone flies away. The substance sprayed is purportedly thermite, an incendiary compound that burns at extremely high temperatures. This weapon quickly—and perhaps appropriately—earned the nickname the “dragon drone.”

About a week after reports of Ukraine’s dragon drones surfaced, a video posted on Telegram showed Russian troops attaching thermite to one of their drones and launching it toward Ukrainian troops. In October, Ukraine reportedly began using dragon drones to attack Russian bunkers and tanks.

In a conflict marked by the novel use of unmanned aerial vehicles (UAVs), dragon drones now appear to be an available weapon in both sides’ arsenals. Dragon drones leverage thermite’s incendiary effects to rapidly burn away vegetation, denying the enemy concealment and—whether intentional or not—causing injury or death to people who are directly exposed. Accordingly, human rights groups have raised concern over the increased use of thermite weapons in modern warfare and its potential harm to civilians and civilian objects, especially when employed in an urban environment. Several media outlets have recently opined on the lawfulness of dragon drones (see, e.g., here, here, here, and here). Some scholars have gone so far as to suggest that the use of dragon drones will one day “be banned as an inhumane weapon.”

In this post, we discuss the use of dragon drones on the battlefield. We begin with a brief overview of thermite and thermite weapons. Next, we survey the law of armed conflict (LOAC) applicable to such systems, including treaty restrictions on the use of incendiary weapons, the rules governing the conduct of hostilities applicable to the use of all munitions, and the ban on violence aimed at spreading terror. We conclude the use of dragon drones (or incendiary weapons generally) is not unlawful per se. Instead, like all LOAC assessments, the lawfulness of employing dragon drones and similar weapon systems depends on the circumstances and manner of their use.

Thermite on the Battlefield

Developed in 1893 by Hans Goldschmidt, a German chemist, thermite is a mixture of aluminum powder and iron oxide that burns at temperatures exceeding 4,000 degrees Fahrenheit. Initially, metal workers used it for cutting and welding because only five metals (out of roughly 90 metals on the periodic table) can withstand the intense heat it generates.

It did not take long, however, to incorporate thermite into means of warfare. In 1915, Germany dropped thermite-based incendiary bombs on England. By the Second World War, Germany leveraged thermite to ignite incendiary bombs (i.e., the “Elektron” bomb) (see history of thermite reactions here).

Today, military forces still use thermite. Unlike other incendiary munitions that burn almost instantly, thermite reactions take longer, heating a smaller area to extremely high temperatures. As a result, thermite is generally used for demolition on the modern battlefield. For example, military personnel might use a thermite grenade to disable an abandoned enemy vehicle by melting its engine block or to destroy lab equipment used by a terrorist group to make improvised explosive devices.

Russia has also employed thermite in its recent conflicts, including for purposes aside from demolition. In 2012, reports surfaced that Russia used thermite munitions in Syria, including thermite-filled cluster munitions (see here and here). Further, in May 2023, Russia reportedly used thermite-based incendiary weapons in its brutal attack on the city of Bakhmut. The recent reports of thermite-spewing dragon drones exemplify the latest method of employing thermite’s effects on the battlefield.

Several Ukrainian companies are evidently producing thermite munitions designed specifically for delivery by drone. The company Steel Hornets, for example, produces several thermite munitions ranging from one-pound bombs deliverable by quadcopter to five-pound bombs, which are typically paired with a larger first-person-view (FPV) drone. Ukraine has used smaller drone-delivered thermite munitions to attack smaller targets, such as disabling abandoned Russian military vehicles.

The dragon drones depicted in recent videos, however, exemplify the effects of a much larger thermite munition likely delivered by a large FPV drone, such as the Queen Hornet, which is capable of carrying a 20-pound payload. Although details surrounding the dragon drones are still limited, some speculate that the thermite mixture used “may have been reformulated to produce a more effective spray.” Videos of Ukraine’s “thermite spewing” drones have led experts to suggest these weapons serve two purposes: first, to remove natural concealment used by enemy troops (i.e., trees and foliage); and second, to impose psychological effects on the enemy given the effects thermite has when it comes in contact with human skin.

The recent use of dragon drones in the Ukraine-Russia conflict exemplifies a novel delivery method of a well-established means of warfare. However, this unique method of delivering thermite also raises questions about the dragon drone’s lawfulness. Accordingly, we next turn to the applicable law concerning the use of aerial-delivered incendiaries on the battlefield.

Treaty Restrictions on the Use of Incendiary Weapons

Article 22 of the 1907 Hague Regulations (Hague IV) states, the “right of belligerents to adopt means of injuring the enemy is not unlimited.” As such, a military’s use of incendiary weapons, while permissible, is subject to restrictions imposed by weapons law and the rules governing the conduct of hostilities (i.e., LOAC). We turn first to the former.

Protocol III of the 1980 Convention on Certain Conventional Weapons (CCW) (Protocol III) regulates the use of incendiary weapons for States party to the instrument (see previous coverage of Protocol III rules by BGs David Wallace and Shane Reeves here). Both Russia and Ukraine are parties, and Protocol III applies in both international and non-international armed conflicts (art. 1).

Article 1 of Protocol III defines an “incendiary weapon” as “any weapon or munition which is primarily designed to set fire to objects or to cause burn injury to persons through the action of flame, heat, or combination thereof, produced by a chemical reaction of a substance delivered on the target” (see also U.S. Department of Defense (DoD), Law of War Manual, § 6.14.1). Unlike white phosphorus, which belligerents use for marking, screening, illuminating, and signaling, thermite is “primarily designed to set fire to objects” and therefore qualifies as an incendiary weapon for the purposes of the Convention. Indeed, the DoD Law of War Manual provides “shells, rockets, grenades, mines, bombs, and other containers of incendiary substances, such as napalm and thermite” as examples of incendiary weapons (§ 6.14.1.2, emphasis added).

Incendiary weapons are not unlawful per se. Rather, Protocol III regulates the use of incendiary weapons in certain circumstances to minimize or avoid harm to civilians and the natural environment. Specifically, Article 2(2) of Protocol III prohibits the use of air-delivered incendiaries against “any military objective located within a concentration of civilians.” Similarly, Article 2(3) restricts the use of non-air-delivered incendiary weapons against,

[A]ny military objective located within a concentration of civilians … except when such military objective is clearly separated from the concentration of civilians and all feasible precautions are taken with a view to limiting the incendiary effects to the military objective and to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.

Finally, Article 2(4) of Protocol III restricts the use of incendiaries on “forests or other kinds of plant cover” unless the natural elements have been used to “cover, conceal or camouflage combatants or other military objectives,” or the natural elements are military objectives (see U.S. DoD, Law of War Manual, § 5.6.6.1). This paragraph essentially relies upon the customary international law rule of distinction and its associated definition of a military object, as restated in Articles 48 and 52(2) of Additional Protocol I (AP I) to the Geneva Conventions.

We note that some States have issued reservations regarding Protocol III. For example, with regard to Article 2(2) and (3), the United States has reserved “the right to use incendiary weapons against military objectives located in concentrations of civilians where it is judged that such use would cause fewer casualties and/or less collateral damage than alternative weapons” (see also U.S. DoD, Law of War Manual, § 6.14.3). This reservation, for instance, would allow the United States to use an air-delivered incendiary to strike an enemy’s biological weapons storage facility located in an urban environment to prevent the spread of biological agents to the civilian population, so long as the United States anticipates the resulting fires would cause fewer casualties and less collateral damage as compared to the release of the biological agents caused by a kinetic strike (U.S. DoD, Law of War Manual, § 5.11.6, § 6.14.3.2). However, neither Russia nor Ukraine has made reservations regarding Protocol III.

Ultimately, Protocol III only regulates the use of thermite in specified circumstances to limit or avoid civilian harm. While Article 2(2) and (3) may prevent or limit the use of drone-delivered thermite in an urban environment, those restrictions would not apply to its use in an open field or wooded area devoid of civilians or civilian structures. In the latter environments, to ensure compliance with Article 2(4) of Protocol III, military forces employing a dragon drone must take care to direct their attacks only against military objectives, which may include any natural element based on its “location, purpose or use” (AP I, art. 52(2)).

For example, in a wooded area, a defending military force may use bushes, foliage, and trees to conceal their trenches, bunkers, and machine-gun positions from overhead surveillance. In this case, the natural elements would become lawful military objectives based upon their use in hiding the defender’s positions. Thus, an attacker could lawfully use thermite, dispensed from a dragon drone, to destroy the natural elements. Once the defender’s positions are revealed, the attacker could then more accurately target (or avoid) those defensive fighting positions. The use of dragon drone-delivered thermite in this situation would be lawful under the provisions of Protocol III (discussed above) and LOAC, which we turn to now.

Rules Governing the Conduct of Hostilities

In addition to the treaty restrictions on the use of incendiary weapons, the use of dragon drones, like all means and methods of warfare, must comply with the rules governing the conduct of hostilities. Consequently, the lawfulness of each particular use of a dragon drone must be evaluated under the rules of distinction (discrimination), proportionality, and unnecessary suffering.

Parties to a conflict may not conduct indiscriminate attacks, which are, in part, those that “employ a method or means of combat which cannot be directed at a specific military objective” (AP I, art. 51(4); Customary International Humanitarian Law study, rule 12; see also U.S. DoD, Law of War Manual, § 2.5.2). Further, Article 51(5)(a) of AP I defines an indiscriminate attack as “an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects … .” Therefore, an armed force employing a dragon drone must first ensure that it is not an inherently indiscriminate weapon system (see U.S. DoD, Law of War Manual, § 6.7). This means the dragon drone must be capable of directing its thermite against a military objective, and the resulting burning effects can be controlled (e.g., it does not cause uncontrollable forest fires). Second, when employing a dragon drone, the armed force must use it in a manner that only targets military objectives. For example, blindly spraying thermite into a town and setting fire to every structure therein (military and civilian alike), would be an indiscriminate attack.

Parties to conflict must also conduct a proportionality analysis before they attack a military objective that will involve incidental harm to civilians and civilian objects. The rule of proportionality prohibits an attack expected to cause harm to civilians or civilian objects that would be “excessive in relation to the concrete and direct military advantage anticipated” (see AP I, art. 51(5)(b); U.S. DoD, Law of War Manual, § 5.10; Customary International Humanitarian Law study, rule 14). Therefore, the military advantage the attacker seeks to gain by spraying thermite from the dragon drone (e.g., destruction of the enemy’s trench system, burning the foliage used to conceal the enemy’s positions, disabling an enemy tank, etc.) must be assessed against the collateral damage to civilians and civilian objects likely to be caused by the burning thermite and the resulting fires it ignites.

Finally, the rule of unnecessary suffering (or humanity) focuses on the effects a weapon system has on combatants (U.S. DoD, Law of War Manual, § 2.3, § 6.6; Customary International Humanitarian Law study, rule 70). As Professor Sean Watts discussed in a previous post, although the principle of unnecessary suffering enjoys wide acceptance, its exact meaning and regulatory implementation varies between States. For example, the United States, which is not a party to AP I, follows the standard contained in Article 23(e) of Hague IV, which states “it is especially forbidden … [t]o employ arms … calculated to cause unnecessary suffering” (see also U.S. DoD, Law of War Manual, § 6.6.1). Using this standard, one must look at the intended design of the weapon. For example, if the dragon drone’s designers sought to efficiently destroy military objects (e.g., the quick demolition of materiel or the efficient burning foliage used for concealment), using the dragon drone accordingly is not “calculated to cause unnecessary suffering” although the thermite “may cause great injury or suffering or inevitable death” when it falls on enemy combatants (U.S. DoD, Law of War Manual, § 6.6.3).

However, other States apply the standard set forth in Article 35(2) of AP I, to which both Russia and Ukraine are parties, which prohibits the employment of “weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering” (emphasis added). As Professor Watts noted in a further post, while “the AP I of-a-nature-to-cause standard focuses on the characteristics of the weapon rather than the designer’s intent,” the “AP I standard shares the calculated-to-cause standard’s consideration of proportionality between military advantage and suffering inflicted.” As a result, the analysis depends on the assessment of the weapon’s military advantage. For example, if the dragon drone provides an attacker with a “significant or unique military advantage” by efficiently and quickly destroying foliage used to hide enemy positions, the dragon drone could be considered lawful despite the horrific burns the thermite may cause to the combatants in those hidden positions.

Finally, an armed force could employ any lawful weapon unlawfully by using it specifically to cause unnecessary suffering (U.S. DoD, Law of War Manual, § 2.3). For example, suppose an attacker used a dragon drone simply because they wanted to cause horrific burns to enemy combatants and another weapon system was available that was better suited for attacking the enemy’s trench network. In this case, the suffering caused by the thermite burns may be considered unnecessary despite the weapon itself being lawful.

In sum, these rules must be applied to the use of dragon drones on a case-by-case basis; whether the use is lawful is highly context-dependent. Moreover, in addition to dragon drones’ direct physical effects, their asserted psychological effects also warrant brief analysis under LOAC.

Terror Weapon

Some experts have suggested that, in addition to serving as a defoliant, dragon drones are also a “psychological weapon due to the nature of the effects thermite would produce in contact with skin.” Bolstering this assertion, Ukraine’s 60th Mechanized Brigade, apparently embracing the nickname “dragon drones,” posted on social media the following statement: “When our ‘Vidar’ works—the Russian woman will never sleep.” While not an official position of the Ukrainian government, the sentiment demonstrates the heightened level of fear associated with the employment of thermite weapons on the battlefield.

Although causing fear among the enemy forces is not prohibited, treaty and customary law bans acts of violence, “the primary purpose of which is to spread terror among the civilian population” (AP I, art. 51(2); Customary International Humanitarian Law study, rule 2; see also U.S. DoD, Law of War Manual, § 6.7.3). While all violence in war likely gives rise to some degree of “terror,” this provision bans violence used to spread fear among civilians “without offering substantial military advantage” (1987 International Committee of the Red Cross Commentary to AP I, para. 1940). The DoD Law of War Manual offers “Japanese bombs attached to free-floating, long-range balloons … [and] German long-range rockets without guidance systems used during World War II” as examples of unlawful terror weapons (§ 6.7.3). Once again, how a belligerent uses dragon drones is what matters. For instance, it is permissible to use dragon drones to defoliate an enemy hiding position regardless of how much fear it causes the affected enemy soldiers or civilians bearing witness. However, the same conduct—defoliating a tree line—would be prohibited if the primary purpose of its use was to incite fear among the observing civilians (i.e., enemy forces were not using or expected to use the tree line, and thus, the attack offered no military advantage).

Conclusion

While belligerents have officially released little information about the dragon drones’ design, capabilities, and intended use, dragon drones nonetheless appear to be highly effective at destroying hidden enemy trench networks, including the materiel and personnel within. Based on this limited information, the drones do not appear to be unlawful per se. However, as stated in a separate post, “LOAC assessments are highly contextual as a matter of law.” Therefore, a more precise assessment of the lawfulness of using dragon drones in combat would require additional information.

***

Major Kevin S. Coble is an active-duty Army judge advocate and a military professor in the Stockton Center for International Law in Newport, Rhode Island.

Major Alex Hernandez is an active-duty Army judge advocate and a military professor assigned to the Stockton Center for International Law in Newport, Rhode Island.

 

 

 

 

 

 

 

Photo credit: Maxim Subotin

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The Law of Crowdsourced War: Democratized Supply Chains – Part II

by Gary Corn

March 15, 2023

“Damn the Torpedoes!”: Naval Mines in the Black Sea

by Ben RothchildMark Jessup

March 15, 2023

Landmines and the War In Ukraine

by Dario PronestiJeroen van den Boogaard

March 20, 2023

Russia’s “Re-Education” Camps: Grave Violations Against Children in Armed Conflict

by Alison Bisset

March 20, 2023

A Path Forward for Food Security in Armed Conflict

by

March 22, 2023

The Legality of Depleted Uranium Shells and Their Transfer to Ukraine

by Stuart Casey-Maslen

March 24, 2023

Accountability for Cyber War Crimes

by Lindsay Freeman

April 14, 2023

Destruction of the Kakhovka Dam: Disproportionate and Prohibited

by Anaïs Maroonian

June 29, 2023

Transfers of POWs to Third States

by Marten Zwanenburg, Arjen Vermeer

July 19, 2023

Territorial Acquisition and Armed Conflict

by Michael N. Schmitt

August 29, 2023

Mine Clearance Operations in the Black Sea

by Rob McLaughlin

December 20, 2023

Retaliatory Warfare and International Humanitarian Law

by Michael N. Schmitt

January 2, 2024

Legal Reflections on the Russia-Ukraine Prisoner Exchange

by Pavle Kilibarda

February 5, 2024

New ICC Arrest Warrants for Russian Flag Officers

by Michael Kelly

March 8, 2024

Is Ukraine Occupying Territory in Russia?

by Michael W. Meier

August 16, 2024

Ukraine’s “Indefinite” Incursion into Russia and the Jus ad Bellum

by William Casey Biggerstaff

October 22, 2024

 

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