The International Committee for the Red Cross (ICRC) finds uncontroversial the notion that wounded and hors de combat are not the same. They acknowledge that individuals can be “wounded or sick, whether severely or not, but … not (yet) incapacitated by their medical condition.” Wounded combatants can continue to fight, and contemporary adversaries have engaged in tactics such as “playing dead” or other forms of perfidy.
Standing alone, the fact that an enemy is laying still on the ground is insufficient to determine that target has fallen out of the fight. Also, the mere appearance of visible wounds is probably not enough, unless the nature of those wounds makes it clear the person is unable to defend themselves or unable to continue to fight. Clear indicators of hors de combat from wounds include decapitation or an amount of pooling blood that makes it plain and obvious the enemy’s injuries were mortal. If an attacker is not convinced an enemy is out of the fight, that enemy continues to be a lawful target and can be attacked or reengaged.
However, the practice of automatic, indiscriminate attacks on downed enemies to include a technique or standard procedure of firing “security rounds,” “double-taps,” or “death checks,” is unlawful. The possibility of a theoretical threat from general enemies is insufficient—the determining factor is a good faith belief that a specific enemy, though wounded, is not yet out of the fight. Unless a reasonable attacker would be convinced a wounded enemy is out of the fight (or the wounded enemy is clearly, genuinely, and unconditionally surrendering under circumstances when it would be feasible to accept that surrender) the law presumes that the enemy remains a lawful target.
You also can’t kill surrendered enemies, but that’s not what the situation was here. Though for drones (and airpower in general, or even things like artillery) surrendering is obviously more-problematic than it was in an era when infantry did a larger chunk of the killing.
I do recall reading about one point where a Russian soldier did surrender to a Ukrainian drone, and they led him to captivity with the drone, but obviously that’s an unusual case; both the drone operator and the surrendering soldier have to go out of their way to make that work.
Surrender to drone may never become common. Accepting a surrender incurs substantial risk, and the relief of not needing to kill someone in person is probably psychologically important to the decision to accept that risk. I am sure that remote kills/captures operate under different moral calculus.
https://lieber.westpoint.edu/down-not-always-out-hors-de-combat-close-fight/
There are videos that show a clear violation, but this is not one of them.
You also can’t kill surrendered enemies, but that’s not what the situation was here. Though for drones (and airpower in general, or even things like artillery) surrendering is obviously more-problematic than it was in an era when infantry did a larger chunk of the killing.
I do recall reading about one point where a Russian soldier did surrender to a Ukrainian drone, and they led him to captivity with the drone, but obviously that’s an unusual case; both the drone operator and the surrendering soldier have to go out of their way to make that work.
https://www.cnn.com/2023/06/15/europe/russian-soldier-surrenders-drone-bakhmut-ukraine-intl-hnk/index.html
There are no accepted conventions today to facilitate that sort of thing, and the technology isn’t terribly well-suited to it.
Surrender to drone may never become common. Accepting a surrender incurs substantial risk, and the relief of not needing to kill someone in person is probably psychologically important to the decision to accept that risk. I am sure that remote kills/captures operate under different moral calculus.
Nice; thank you for the analysis.