Loitering munitions and drones as war weapons: German Economics Ministry publishes fact sheet

Germany’s Federal Ministry for Economic Affairs and Energy (Bundesministerium für Wirtschaft und Energie) has published a fact sheet on the classification of loitering munitions and drones as war weapons. This is in response to the increasing military significance of these systems and the numerous enquiries about their potential classification under the German War Weapons Control Act (Gesetz über die Kontrolle von Kriegswaffen). The fact sheet summarises the administrative practice regarding the interpretation of the relevant item 9 of the War Weapons List (Kriegswaffenliste) (“other projectiles”) and is aimed to address typical questions on how to differentiate between items prior to formal classification.

Legal framework

The regulation of war weapons is set down in the German constitution, or “Basic Law” (Grundgesetz). Article 26(2) of the Basic Law states that weapons designed for warfare may be manufactured, transported or marketed only with the permission of the federal government. The details are set down in the War Weapons Control Act.

According to section 1(1) of the War Weapons Control Act, the act governs items, substances and organisms that are “intended for warfare” and are exhaustively listed in the War Weapons List (war weapons). Section 1(2) states that this list is based on the current state of scientific, technical and military knowledge. The list contains 62 points specifying items capable of causing destruction, damage or injury to persons or property either alone, in combination with each other or with other items and that serve as a means of using force in inter-state armed conflict. Items are generally classified as war weapons based on objective criteria, i.e. without considering their subjective purpose.

For drones and loitering munitions, item 9 of the War Weapons List (“other projectiles”) is particularly relevant. The explanatory notes to the War Weapons List describe the term “other projectiles” as covering:

• “[…] combat drones, i.e. drones with a destructive effect. However, the following parts of combat drones are treated separately as war weapons:
• warheads (item 56 of the list)
• fuzes (item 57 of the list)
• target detection heads (item 58 of the list)
• submunitions (items 59/60 of the list)
• firing devices (launching systems and devices, item 10 of the list)
• reconnaissance drones are not a war weapon (drones are unmanned aerial vehicles)”

The notes state that the threshold for a war weapon is reached in the production process as soon as listed goods have been processed or assembled to such an extent that they can be used for their intended purpose (i.e. the first operational prototype).

Classification as a war weapon entails extensive authorisation, reporting and supervisory requirements. Infringements are subject to penalties and fines.

Main contents of the fact sheet:

The Ministry elaborates on the following individual questions in its fact sheet:

• Complete loitering munitions with warheads, fuzes, aero-engines and target detection functions are a weapon of war for the purposes of item 9 of the War Weapons List.
• Incomplete loitering systems are also considered war weapons under item 9 of the War Weapons List if the drone is capable of flight, operational and has purpose-built target detection functions. Purely civilian (“off-the-shelf”) hardware only acquires the characteristics of a war weapon through specific loitering software; where specially designed weapon control computers are concerned, hardware alone is sufficient.
• The Ministry underlines that loitering munitions are functionally equivalent to a guided projectile with a seeker head. Seeker heads are included as war weapons in item 58 of the War Weapons List. Whether or not the system has a dedicated seeker head is irrelevant (a functional equivalent is sufficient).
• Specifically constructed engines for loitering munitions are only war weapons according to item 12 of the War Weapons List if they are not also used in civilian, dual-use or military reconnaissance drones. The type of propulsion (electric, combustion, rotary or fixed-wing) is irrelevant.
• Modifications to engines to optimise loitering munitions may in themselves warrant categorisation as a war weapon.
• Components such as torpedoes and fuzes are classified separately by the War Weapons List (items 56 and 57 of the list). Subordinate electronic parts (batteries, fuselages) are not covered.
• Armed drones are war weapons according item of the 9 War Weapons List. The type or classification of the armament used is irrelevant.
• Objectively arms-grade drones with operational firing devices for guided projectiles are war weapons according to item 9 of the War Weapons List, even without an attached guided projectile. Firing devices for guided projectiles are war weapons in their own right under item 10 of the War Weapons List. In certain cases, drones with technical prerequisites that anticipate later use as a weapon can also be a war weapon. This applies, for example, if they have an integrated weapons system with target acquisition, firing control and relevant interfaces for avionics or if all essential provisions have been made for the installation and operation of firing devices or if bomb shafts and mounts specially designed for use as in weapons have been installed. The latter always applies if use for other transport purposes is excluded.
• Interceptor drones with a purely kinetic effect are war weapons according to item 9 of the list.
• Military reconnaissance drones are not war weapons as long as their function is limited exclusively to reconnaissance. Extending their functions to target engagement capabilities may justify their categorisation as armed or arms-grade drones.
• Referring to the theory that when assembled, certain components can form a weapon (Bausatztheorie), the Ministry emphasises that even systems that have been almost completely disassembled can be war weapons.
• For an item to be characterised as a war weapon, the Ministry requires the existence of an “operational prototype”. This is defined as a weapon that is sufficiently sophisticated to allow military use in armed conflicts between states.

Classification

The fact sheet provides guidance for classifying loitering munitions and drones, creating a sound basis on which business activities can be planned. While many statements reflect the Ministry’s current practice, some of the points in the fact sheet are surprising.

Firstly, it reiterates that status as a war weapon is only established from the “objectively operational prototype” stage. The clarification that a prototype is only operational when military use is actually feasible provides an additional point of orientation, especially for research and development. Despite this, there is still considerable room for interpretation.

The statement that the engines are also covered by item 12 of the War Weapons List if specifically designed for use in loitering munitions and not also used in civilian, dual-use or military reconnaissance drones is significant. Yet it is doubtful whether this sufficiently considers that such components are generally technically simple, originate from civilian drone applications and are produced in large quantities.

One welcome aspect is the announcement of the overdue revision of the War Weapons List and its explanatory notes. The current definitions in the War Weapons List are not necessarily transferable to modern technologies and developments, leading to difficulties with interpretation and legal uncertainty. Pending the revision, we recommend using the sheet as an aid (although it should be noted that it is not legally binding). It is still essential to examine each case individually and to coordinate with the relevant authorities.