Drone Warfare and International Humanitarian Law: Asian Perspectives on Emerging Military Technology

Written by: Errin Elliott

Edited by: Mike Yang

Frederick Shaw - Unsplash

Introduction - A Skyscape of New Warfare

The advent of drone warfare has catalysed a fundamental shift in global conflict dynamics. Nowhere is this transformation more evident than in Asia - a region simultaneously grappling with rapid military modernisation, unresolved border conflicts, and asymmetric warfare. The rise of Unmanned Aerial Vehicles (UAVs) marks the dawn of a new era in military operations. Once the domain of sci-fi imaginings, drones now patrol global skies with lethal precision. Their operational appeal lies in their triad of strengths: surgical accuracy, low operational cost, and reduced soldier exposure.

Drones have redefined the battlefield from Kashmir's mountainous borders to the South China Sea maritime zones. But with this transformation comes profound ethical and legal dilemmas, particularly in Asia, where competing hegemonies and blurred battle lines amplify the risks of miscalculation. In such a climate, International Humanitarian Law (IHL) serves as a moral compass in drone governance.

Law in the Age of Drones

IHL and Targeted Violence

The legal regulation of drone warfare is anchored in the framework of IHL, with the Geneva Conventions of 1949 and their Additional Protocols forming its foundational basis. Central to these instruments are the core principles of distinction, proportionality, and military necessity, each of which is particularly tested in the context of UAV operations. The principle of distinction obligates parties to a conflict to distinguish at all times between combatants and civilians and between military objectives and civilian objects. In drone operations, this entails using precise targeting and robust intelligence to ensure that strikes are directed only at legitimate military targets. However, the asymmetry and fluidity of modern non-state conflicts often render this distinction increasingly ambiguous.

The principle of proportionality mandates that incidental civilian harm must not be excessive in relation to the concrete and direct military advantage anticipated. In the context of high-altitude drone strikes (often based on algorithmic threat analysis), there exists a heightened risk of miscalculation. When errors occur, such as the targeting of civilian convoys or gatherings, the consequences may constitute grave breaches of IHL, possibly amounting to war crimes under Article 8(2)(b)(iv) of the Rome Statute of the International Criminal Court (ICC), which prohibits indiscriminate or disproportionate attacks [1]. Finally, the principle of military necessity requires that force be used only to achieve legitimate military objectives. The emergence of signature strikes and pattern-of-life analysis, where individuals are targeted based on behavioural heuristics rather than confirmed identity, raises concerns about compliance with this standard, primarily when such practices result in force not tightly bound to direct military exigency.

Sovereignty, the UN Charter, and Cross-Border Drone Strikes

The legality of drone strikes conducted extraterritorially, without the explicit consent of the host state, remains one of the most contested issues in international law. Article 2(4) of the United Nations Charter prohibits the threat or use of force against any state's territorial integrity or political independence [2]. However, states such as the United States have invoked Article 51, which recognises the inherent right of self-defence [3], to justify drone operations in states such as Pakistan, Yemen, and Somalia. This practice has engendered debate, raising questions about the threshold for an “armed attack” and the legitimacy of anticipatory self-defence. When host states lack the capacity or will to prevent their territory from being used by non-state actors, some states assert a controversial “unable or unwilling” doctrine to justify intervention. Despite growing reliance on such justifications, there is no settled consensus in customary international law, rendering the legality of these operations a grey area subject to geopolitical contestation and judicial scrutiny.

Autonomous Drones and Human Rights

The increasing deployment of autonomous drones - systems capable of identifying and engaging targets without direct human intervention - presents novel challenges under Human Rights Law. Chief among these is Article 6 of the International Covenant on Civil and Political Rights (ICCPR), which enshrines the right to life [4]. Autonomous weapons systems (AWS) potentially infringe this right by removing meaningful human oversight from life-and-death decisions. The use of AWS risks eroding accountability. Determining responsibility - whether it lies with programmers, commanders, or states - becomes deeply problematic when no human operator directly authorises a strike. This raises further concerns under the Martens Clause [5], a customary principle asserting that civilians and combatants remain protected by the principles of humanity and the dictates of public conscience in cases not covered by specific treaties. The normalisation of AI-powered lethal weapons may ultimately destabilise existing legal norms and ethical boundaries, undermining both IHL and IHRL. Without clear regulatory frameworks, the potential for unlawful killings and impunity in future conflict environments becomes a pressing concern for international legal institutions and civil society alike.

Asian Nations and the Drone Doctrine

China: Proliferation Without Constraint

China has rapidly emerged as Asia’s dominant drone power, spearheading the region’s UAV industrialisation with platforms such as the Wing Loong and CH-4, both technically akin to the American Predator and Reaper systems. These drones are not merely tools of national defence but have become key instruments of geopolitical influence. China’s exports have reached over a dozen states, including autocratic regimes such as Saudi Arabia and Egypt, and recent reports allege that Chinese drones have been transferred to Russia for operational use in Ukraine [6], raising alarm across Western capitals.

Unlike major Western exporters, China is not a party to the Arms Trade Treaty (ATT), and its export framework lacks binding transparency or human rights oversight mechanisms. While Beijing characterises its drone programs as inherently defensive, its active use of UAVs for persistent surveillance in regions like Xinjiang and reconnaissance operations in the Taiwan Strait and South China Sea challenges this narrative. Legal scholars are increasingly scrutinising Chinese drone exports for their potential violations of ATT Article 7, which requires exporting states to assess risks of civilian harm and violations of international humanitarian and human rights law in recipient states [7]. The lack of such evaluations in China’s export doctrine signals a regulatory vacuum that could exacerbate conflicts in unstable regions.

India and Pakistan: Drones as Instruments of Deterrence and Risk

The India-Pakistan drone dynamic represents a volatile convergence of high-technology warfare and longstanding territorial hostility. India’s acquisition of Israeli Heron drones and its negotiations for U.S.-made Predator-B systems underscore New Delhi’s strategic emphasis on persistent ISR (Intelligence, Surveillance, and Reconnaissance) and deep-strike capabilities. These drones were used in support operations during the 2016 Uri strikes and 2019 Balakot air raids, which India claimed targeted terrorist infrastructure inside Pakistani territory. 

Pakistan, for its part, has operationalised its Burraq drone - an indigenously modified version of Chinese UAV designs - for domestic counterinsurgency missions. However, both states utilise UAVs for cross-border surveillance along the Line of Control (LoC), heightening the risk of miscalculation or inadvertent escalation in a nuclearised environment. From a legal standpoint, the 2019 Balakot strikes raised critical concerns. India’s incursion into Pakistani airspace, absent UN Security Council authorisation and lacking third-party verification of military targets, challenges the threshold of lawful anticipatory self-defence under Article 51 of the UN Charter. Furthermore, the absence of transparency and accountability mechanisms violates established IHL obligations to distinguish between military and civilian targets and ensure proportionality in using force.

Japan and South Korea: Constraints in a Changing Security Climate

Japan and South Korea represent technologically advanced states that are recalibrating their defence doctrines in response to growing regional threats, particularly from China and North Korea. Japan’s once-rigid pacifist stance, codified in Article 9 of its Constitution [8], is undergoing reinterpretation. Tokyo is now investing in reconnaissance and combat UAVs to counter perceived encroachments in the East China Sea. While framed in defensive terms, this shift has ignited domestic legal debates over the constitutional permissibility of possessing offensive strike capabilities.

South Korea, meanwhile, is incorporating autonomous drone swarms into its “Kill Chain” strategy - a pre-emptive strike doctrine aimed at neutralising North Korean missile systems. While technologically ambitious, these developments raise important questions about compliance with IHL and IHRL, especially given the autonomous nature of emerging systems.

Southeast Asia: The War on Insurgency

Drone use in Southeast Asia has primarily been directed toward internal conflicts and counterinsurgency operations. The Philippines, during the 2017 Battle of Marawi, relied on U.S.-backed drone surveillance to identify and eliminate ISIS-affiliated militants entrenched in urban terrain. While operationally successful, the strikes resulted in civilian casualties, invoking critiques concerning the proportionality and precision of aerial operations under IHL.

Myanmar’s military junta has employed drones to target ethnic minority insurgents, including in Kachin and Chin states. These strikes, without legal safeguards or independent oversight, have prompted widespread condemnation and demands for arms embargoes under the Responsibility to Protect doctrine. The use of drones by repressive regimes to suppress internal dissent reveals the darker implications of UAV proliferation in weak legal environments.

Legal and Ethical Fault Lines

Targeted Killings: Execution or Legitimate Warfare?

The targeted killing of Iranian General Qasem Soleimani by a U.S. drone strike in January 2020 represented a turning point in the evolving practice of transnational force projection. Conducted outside a declared battlefield and without the consent of the host state (Iraq), the strike reignited global debates on the legality and ethics of using UAVs for the elimination of high-value individuals. This incident illustrates the growing normalisation of state-led targeted killings - actions that blur the boundary between warfare and assassination.

If such practices were to proliferate among Asian powers, particularly in tense strategic theatres like the Taiwan Strait or the India-Pakistan border, the precedent set by Soleimani’s killing could erode established norms of sovereignty, escalate regional conflicts, and invite reciprocal targeting. The legal community remains divided on whether such strikes constitute acts of war or unlawful executions. UN Special Rapporteurs on extrajudicial killings have consistently argued that, outside active armed conflict, these actions violate ICCPR Article 6. Absent clear evidence of an imminent threat or the existence of an armed conflict, drone strikes that result in targeted killings may fall within the realm of extrajudicial execution, contravening both IHRL and IHL norms.

Civilian Casualties: The Crisis of Transparency

Among the most persistent criticisms of drone warfare is the chronic lack of transparency surrounding targeting procedures and post-strike assessments. This opacity impedes accountability and undermines efforts to evaluate compliance with IHL principles, particularly proportionality and distinction. A 2021 U.S. Department of Defence review acknowledged significant targeting errors in Afghanistan, including instances where civilians were mistakenly identified as combatants [9]. Such admissions, though rare, expose systemic flaws in kill chain processes and underscore the dangers of algorithm-dependent targeting in fluid operational environments.

In Asia, the situation is more opaque. China maintains strict secrecy over its drone operations and offers no public mechanism for verifying strike outcomes. Similarly, India and Pakistan do not publish post-strike analyses or independent verification data, even when drone use has occurred across contested borders. This absence of transparency allows civilian harm to be unreported, misclassified, or buried within state security narratives, thus circumventing international scrutiny and legal accountability. External observers, including the UN and human rights organisations, face major barriers in assessing compliance with international norms without systematic reporting mechanisms or access to operational data.

The Automation Dilemma: Accountability in the Age of AI

The integration of artificial intelligence into drone warfare introduces a legal and ethical dilemma: How should liability be assigned when an autonomous system causes unlawful harm? The diffusion of responsibility among developers, commanders, and manufacturers complicates traditional chains of accountability. Domestic and international legal systems have yet to produce coherent frameworks capable of adjudicating harm caused by semi- or fully autonomous systems. Fundamental technical limitations persist. AI-driven drones struggle with nuanced target discrimination, such as distinguishing between a child holding a stick and an armed combatant - an assessment that may be clear to a human operator but beyond current machine capabilities. This raises concerns not only under IHL’s principle of distinction but also under the broader moral imperative to minimise civilian harm.

South Korea’s SGR-A1 sentry system, deployed in the demilitarised zone, was one of the earliest examples of semi-autonomous weaponry. While not airborne, its deployment opened discussions around human-out-of-the-loop decision-making. Today, its legacy reverberates in current debates over AI warfare, especially as more countries (including South Korea, China, and India) invest in autonomous drone swarms. The critical question remains unresolved: can machines be entrusted with decisions of life and death, and if so, under what legal architecture? The legal governance of drone warfare in Asia remains inchoate, fragmented, and highly susceptible to abuse. Without robust legal frameworks and regional coordination, the spectre of drone-enabled conflict looms large. In a world increasingly surveilled and shaped by unmanned machines, the question is no longer whether we can use drones, but whether we should, and under what legal and ethical guardrails. The answer will shape the next century of war and peace in Asia.

REFERENCES

[1] Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90, art 8(2)(b)(iv)

[2] Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI, art 2(4)

[3] Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI, art 51

[4] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, art 6

[5] Hague Convention (II) on the Laws and Customs of War on Land (adopted 29 July 1899, entered into force 4 September 1900) 187 CTS 429, art 1(2)

[6] China shipping drones for Russia’s war effort: report (Asia Times, 2023) https://asiatimes.com/2023/07/china-shipping-drones-for-russias-war-effort-report/

[7] Arms Trade Treaty (adopted 2 April 2013, entered into force 24 December 2014) 2326 UNTS 3, art 7

[8] Constitution of Japan (adopted 3 May 1947) art 9

[9] U.S. Department of Defense, Air Force Inspector General, ‘Evaluation of the August 29, 2021, Strike in Kabul, Afghanistan’ (2021) https://www.dodig.mil/Reports/Project-Announcement-Memos/Article/2785721/project-announcement-evaluation-of-the-august-29-2021-strike-in-kabul-afghanist/