Ukraine Symposium – The Legal and Practical Challenges of Surrendering to Drones

As part of the Articles of War “Year Ahead” series published earlier this year, Board of Advisor member Professor Gary Solis predicted that several legal issues pertaining to the law of armed conflict (LOAC) will likely see significant development soon, including drones with “more diverse battlefield functions.” Thereafter, in this symposium, Brigadier General (ret.) David Wallace and Brigadier General Shane Reeves, 15th Dean of the Academic Board at West Point, highlighted such expansive use by providing a précis of a nascent Ukrainian initiative inviting Russian soldiers to surrender to drones on the battlefield—the “I Want to Live” project. Seeking “to illustrate how technology is impacting the Ukraine-Russia conflict and the importance of applying the law with rigor and fidelity to seemingly new circumstances,” they analyzed the project’s intersection with the LOAC rule of surrender. Although recognizing the use of drones presents novel challenges, they concluded that “a common-sense application of the rule of surrender” should guide the analysis.

This post develops the issue by examining the legal and practical challenges pertaining to drone-facilitated surrender that Ukraine’s forces may navigate to implement such a program in compliance with the LOAC.

The “I Want to Live” Program

Ukraine’s Coordinating Headquarters for the Treatment of Prisoners of War developed the “I Want to Live” program to provide a haven for Russian soldiers wishing to surrender voluntarily. The project’s website displays a carousel of appealing images illustrating life after surrender and states, “[y]ou are not alone – several thousand servicemen have already saved their lives by surrendering.” After listing the protections guaranteed to prisoners of war (POWs), it describes how to surrender with links to social media (Facebook, YouTube, Telegram, etc.) and provides contact information for negotiating surrender by telephone, chatbot, or telegram-bot.

According to an embedded YouTube instructional video, a Russian soldier safely surrenders to a Ukrainian drone by receiving detailed instructions through one of the project’s hotlines. Once at a designated rendezvous location, the soldier contacts Ukrainian representatives or waits for a quadcopter to appear. Upon contact, the Russian is expected to establish and maintain visual contact with the drone while raising both hands. At that point, the Ukrainian operator will acknowledge the soldier’s indicia of surrender by moving the drone up and down. Once the drone begins flying in an unmistakable direction, a surrendering Russian follows the drone until making contact with Ukrainian soldiers nearby.

According to Ukraine’s Ministry of Defense, the program has received 1.2 million inquiries through various channels since September. Although it is unclear how many Russians have surrendered through the program to date, the Ministry of Defense posted a video in November confirming at least one Russian soldier has successfully done so.

The Rule of Surrender

As it relates to Ukraine’s program, the LOAC imposes a general obligation to accept the surrender of the enemy. The 1907 Hague Convention IV, for example, prohibits killing or wounding an enemy “who, having laid down his arms, or having no longer means of defence, has surrendered at discretion” (Annexed Regulations, Art. 23(c)). Similarly, Additional Protocol I to the 1949 Geneva Conventions, to which Ukraine and Russia are parties, proscribes making a person who “clearly expresses an intention to surrender” the object of attack (Art. 41). This standard is widely considered to reflect customary international law (see International Committee of the Red Cross (ICRC) Customary International Law Study, Rule 47 and its related Practice).

But as Generals Wallace and Reeves emphasize, that duty is conditioned upon several legal requirements. For the obligation to attach, the enemy must unambiguously express a genuine intent to surrender (see U.S. DoD’s Law of War Manual, § 5.9.3.2; Oslo Manual, Rule 103(a)-(b)). While the precise manner of surrender may vary, the burden of demonstrating the requisite clarity rests on the surrendering party. Without a clear expression of genuine intent, belligerents are not obliged to presume the enemy has surrendered (see Commentary to Rule 103(b)).

While the LOAC does not prescribe specific methods the surrendering soldier must follow, State practice has identified certain classically accepted indicia for communicating that intent based on the domain in question. In land warfare, for example, soldiers may signal an intention to surrender by laying down their arms and raising their hands above their heads, whereas at sea, crews typically surrender as a unit by lowering the ship’s colors. The issue is often more complex, however, when attempts to surrender cross domains, as they do with Ukraine’s use of drones to accept the surrenders of Russian ground forces.

The Feasibility of Surrendering to Drones

To be legally effective, individuals must offer surrender under circumstances in which it is feasible for the enemy to reasonably accept (DoD’s Law of War Manual, § 5.9.3.3; Oslo Manual, Rule 104; Commentary to AMW Manual, Rule 15(b)). With respect to this requirement, there is a long-running debate concerning whether ground forces can surrender to aircraft (see Dinstein, sec. 637). The issue is whether it is feasible for aircrews to accept the surrender while airborne, as surrender conventionally culminates with the enemy taking personnel into custody.

One approach insists that such attempts are never legally effective. Under this view, surrendering personnel cannot reasonably expect that aircrews are capable of taking them into custody; thus, their attempts to do so are futile (see Oslo Manual, Commentary to Rule 104). By way of a historical example, Apache pilots during the Second Iraq War infamously killed two insurgents attempting to surrender in reliance on legal advice that ground forces “cannot surrender to aircraft and [were] still valid targets” (Buchan, p. 23). According to this approach, Russians expressing their intent to surrender through a drone would not effectively surrender until, for example, they reach the custody of Ukrainian ground forces nearby.

Others criticize such a strict interpretation as overly “dogmatic” (Buchan, p. 23, quoting Sir Adam Roberts). They adhere to the predominant approach that the feasibility of attempts to surrender to aircraft are contextual and vary case-to-case (see Commentary to AMW Manual, Rule 15(b); Oslo Manual, Rule 104 and its Commentary).

In our view, this latter approach is more persuasive as it strikes an appropriate balance between the principles of humanity and military necessity. It recognizes there may be reasonable circumstances in which soldiers can successfully surrender to aircrews, even if aircrews lack the capability to take personnel into physical custody (see Oslo Manual, Comment 3 to Rule 104), in which case application of the rule benefits both the surrendering soldier (humanity) and his enemy (military necessity). But such a flexible approach also permits commanders, depending on the prevailing circumstances, to reduce risk to their forces and curb the rule’s abuse (see Dinstein, 637; Robertson, pp. 112-13). It is also consistent with historical precedents in which ground forces have, in fact, surrendered to aircraft—including the anecdotal video posted by Ukraine’s Ministry of Defense.

With respect to feasibility in the Ukraine scenario, assuming surrender to aircraft is not legally ineffective per se, the central issue is whether drones have the necessary capabilities to exercise a sufficient degree of control over personnel purporting to surrender without the aid of nearby ground forces. While the notion of surrender may conventionally entail the immediate physical capture of surrendering personnel, the LOAC does not prescribe a precise proximity within which surrender must occur (see ICRC’s 2019 Commentary to Geneva Convention III, paras. 960-61). As Generals Wallace and Reeves prudently observe, surrender is not so much a decisive act as a process. If drones do not possess the requisite capabilities, then Russian soldiers’ attempts to surrender remain pending until they reach the custody of Ukrainian ground forces in the final stage of the process described in Ukraine’s instructional video. If they do, however, then surrender inures at the point Russian soldiers initially yield to a drone’s control.

In our view, considering how Ukraine is employing them, drone operators exercise a degree of constructive, if not physical, control over Russian personnel commensurate with traditional means of accepting surrender, such as a soldier on the ground. In short, they are the functional equivalent of, for instance, a lone infantry soldier sent out to rendezvous with an expected group of Russians and escort them back to their unit. Few would doubt that, in such a scenario, Russian soldiers have effectively surrendered at the point they submit to the soldier’s directions.

Once a Russian soldier arrives at the designated location, a remote drone operator can easily use the platform’s optical capabilities to visually confirm the soldier intends to surrender by observing he is stationary with his hands raised in the air. The operator also has the ability to acknowledge the surrendering soldier’s intent by either maneuvering up or down or, as has been reported, through a loudspeaker. To the extent an operator must rely on flight patterns alone, such movements are not dissimilar from the body language a captor may use to communicate with a foreign enemy. And as is evident, just as an infantry soldiers would do, operators can steadily guide surrendering soldiers to a collection point for further evacuation. Finally, while it is uncertain which models Ukraine is using, drones generally have improved loiter times compared to piloted rotary and fixed-wing aircraft.

As this scenario demonstrates, a drone’s combined capabilities enable its operator, although remote, to exercise a modicum of control over surrendering personnel. But, as the features of drones vary, it raises the question of whether drones must be armed for such control to be meaningful as a matter of law. We have little difficulty finding that they do not. While a lack of weaponry may bear on the genuineness of an intent to surrender, there is no firm LOAC requirement that a captor be armed or otherwise capable of harming or threatening an individual to accept their surrender. If twenty Russians can surrender to an enemy medic—who may only be lightly armed, if armed at all—for example, there is no sound reason why the law should preclude them from similarly surrendering to the operator of a nonlethal drone. Although an unarmed drone may not be able to prevent escape or target an individual who resumes hostilities, those are separate legal issues and not gauges of when surrender is legally adequate. Thus, the presence of weaponry is simply a factor to consider in the overall analysis of a surrender attempt’s genuineness.

As we see it, in consideration of Ukraine’s program as a whole, once a Russian follows Ukrainian commands by appearing at the rendezvous point, raising his hands, and following the drone operator’s leads, he is under the control of Ukrainian forces; he has effectively surrendered.

The Legal and Practical Consequences of Surrendering to Drones

Assuming for the sake of argument that drones cannot legally accept the surrender of ground forces, although the consequences may initially seem severe, that fact would likely be of little practical significance to Ukraine. If surrendering to a drone is ineffective, Russians attempting to do so would not be considered hors de combat and could technically still be made the object of Ukrainian attacks (see DoD Law of War Manual, § 5.9.3; Oslo Manual, Rules 103-04; AMW Manual, Rule 15(b)). It is difficult to imagine a realistic scenario, however, in which Ukraine would not treat Russians surrendering to drones as hors de combat, even if it is not required, so long as they are acting in good faith pursuant to the instructions of Ukrainian forces.

On the other hand, if, as we argue, Ukrainian drones can accept surrenders, such a determination would be of pronounced practical importance because it determines when Russian soldiers would be entitled to protected status under Geneva Convention III by virtue of having “fallen into the power of the enemy” (see Article 4). That instrument “protects not only ‘captured’ prisoners of war, but also those who have fallen into the power of the enemy by other means, such as surrender or mass capitulation” (ICRC 2019 Commentary to Geneva Convention III, para. 960; see also DoD Law of War Manual, § 9.3.4). In contrast to merely expressing an intent to surrender, once Russian personnel effectively surrender, the Geneva Conventions would affirmatively require Ukraine to, for example, protect, feed, clothe, and treat them (see Geneva Convention III, arts. 26, 27, and 30).

Although publicly reported details are limited, assuming such obligations apply, it is safe to presume that Ukraine could find it challenging to satisfy them using drones alone. For instance, if surrendered Russians cannot move to a collection point for a prolonged period, would Ukrainian forces be required to airdrop shelter or relief supplies to them in the interim? If operational conditions require surrendered Russians to follow a circuitous route to reach Ukrainian lines, how would the drone operator’s unit designate them as hors de combat to other friendly forces so they aren’t targeted? If some of them are injured, would Ukraine need to maneuver its medical personnel to their location? In the event of a chemical or radiological attack, would they receive protection? With such scenarios in mind, it is critical to emphasize that although an offer of surrender is predicated on the feasibility of taking custody of the surrendering soldier, “offers to surrender may not be refused because it would be militarily inconvenient or impractical to guard or care for detainees” (DoD’s Law of War Manual, § 5.9.3.3).

While the risks these examples illustrate may seem exaggerated or academic based on how Ukraine employs its drones, practitioners should not dismiss them entirely. Even if Ukraine is operating smaller drones unable to venture far from nearby ground forces, war is unpredictable. Moreover, the program’s potential success may encourage more adventurous future uses, especially as Western supporters consider supplying Ukraine with more advanced weaponry. Although negligent failure to comply with the Convention’s obligations would not constitute grave breaches under Article 130, Ukraine should nonetheless undertake its best efforts to do so. While it does not appear that any such contingencies have occurred, planning for their possibility in advance is the best way to avoid any violation of the LOAC.

Conclusion

Although this post has highlighted some of the challenges that drone-enabled surrender presents, it is essential to emphasize that Ukraine has not violated the LOAC by inviting Russians to surrender to its drones. Moreover, by identifying some of the practical difficulties associated with drone-enabled surrenders, this post should not discourage Ukraine’s forces from doing so. Ukraine’s creativity throughout this conflict has been both admirable and formidable. But, as this and other posts highlight (e.g., here and here), ingenuity in war carries with it certain legal obligations that Ukrainian forces must consider in advance, lest they inadvertently engage in conduct the LOAC seeks to prevent.

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Major William C. Biggerstaff is a military professor at the Stockton Center for International Law at the U.S. Naval War College, where he co-teaches a course on the Law of Armed Conflict.

Major Caitlin Chiaramonte is an Academy Professor of Law in the Department of Law at the United States Military Academy, West Point, New York.

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