Lukasz Olejnik
AS RUSSIA CONTINUES its unprovoked armed aggression, reports from Ukraine note that the smartphones in civilians’ pockets may be “weapons powerful in their own way as rockets and artillery.” Indeed, technologists in the country have quickly created remarkable apps to keep citizens safe and assist the war effort—everything from an air-raid alert app to the rapid repurposing of the government’s Diia app. The latter was once used by more than 18 million Ukrainians for things like digital IDs, but it now allows users to report the movements of invading soldiers through the “e-Enemy” feature. “Anyone can help our army locate Russian troops. Use our chat bot to inform the Armed Forces,” the Ministry of Digital Transformation said of the new capability when it rolled out.
Naturally, the Ukrainian people want to defend their country and aid their army in whatever ways they can. But certain uses of digital technology pose fundamental challenges to the traditional distinction between civilians and combatants in modern times.
Technically speaking, as soon as a user in a war zone picks up a smartphone to assist the army, both the technology and the individual could be considered sensors, or nodes, in the practice known as ISR—intelligence, surveillance, and reconnaissance. Inviting citizens to become a potential element in a military system, as the e-Enemy feature does, might blur the lines between civilian and combatant activity.
The principle of distinction between the two roles is a critical cornerstone of international humanitarian law—the law of armed conflict, codified by decades of customs and laws such as the Geneva Conventions. Those considered civilians and civilian targets are not to be attacked by military forces; as they are not combatants, they should be spared. At the same time, they also should not act as combatants—if they do, they may lose this status.
The conundrum, then, is how to classify a civilian who, with the use of their smartphone, potentially becomes an active participant in a military sensor system. (To be clear, solely having the app installed is not sufficient to lose the protected status. What matters is actual usage.) The Additional Protocol I to Geneva Conventions states that civilians enjoy protection from the “dangers arising from military operations unless and for such time as they take a direct part in hostilities.” Legally, if civilians engage in military activity, such as taking part in hostilities by using weapons, they forfeit their protected status, “for such time as they take a direct part in hostilities” that “affect[s] the military operations,” according to the International Committee of the Red Cross, the traditional impartial custodian of International Humanitarian Law. This is the case even if the people in question are not formally members of the armed forces. By losing the status of a civilian, one may become a legitimate military objective, carrying the risk of being directly attacked by military forces.
The most obvious way to resolve this confusion might be to accept that a user-civilian temporarily loses their protected civilian status, at least while using such an app. In some cases, this may be a minutes-long “status-switch,” as fast as picking up the smartphone from one's pocket, taking a photo, or typing a short message. It is not direct, sustained participation in the conflict but rather a sporadic one. The problem with this interpretation, however, is that it is not established, and not all sides will necessarily agree on it. The situation becomes even more complex if someone uses the app regularly. How would “regularly” even be measured? And how exactly would the parties to the conflict distinguish citizens accordingly? The power of certain smartphone uses to turn a civilian into a form of a “combatant” one minute, and back into a civilian the next, introduces unprecedented complications to the long-held laws of war.
This may seem negligible, as it is clear that Russian forces have already targeted civilians in many places in blatant violation of international humanitarian laws and human rights. But users voluntarily forfeiting civilian status via the use of a smartphone app could potentially make matters even more complicated, especially if and when a person in question is captured. Ordinary lawful combatants in captivity are considered prisoners of war—they cannot be lawfully prosecuted for war activity and should be guaranteed hygienic conditions, access to medicine, and food during captivity. But this might not be granted for “irregular” or “unlawful” combatants, who could also be put on trial. The principle of distinction means that people who engage in war activity also must distinguish themselves from civilians, for example by wearing a visible mark or a uniform. But even combatants who engage in espionage are not guaranteed to be protected as prisoners of war. What may happen to civilians who switch their status without indication is difficult to imagine.
This murkiness makes it essential that Ukraine be transparent with users about the actual and potential consequences of engaging with the app. Further, this issue begs for urgent assessment by scholars, policymakers, and military analysts. At a minimum, users should be made aware of the possibilities, including the potential loss of protected legal standing. Lines must be delineated—and quickly, not in 20 years, after the useless rounds of negotiations that have become something of a habit.
Already, there have been reports of Russian forces seeking smartphone devices, and even killing civilians spotted with phones. This is blatantly unlawful, but we must not conclude that this means there are no rules in times of international conflict. The rules that do exist should be upheld; and during an actual war, it may be unwise to contribute to the legitimization of the view that international laws governing wartime behavior are irrelevant. This could potentially lead to the future brutalization of the war on an even greater scale. Though it is of course understandable for Ukraine and its people to do everything in their power to defend their country, it may also be in the nation’s own best interest for it to stick to the widely accepted standards.
While it is clear that Ukraine faces an existential threat, and it must be expected to do everything possible with the resources it has at hand, its activities now could influence future models of conduct, and after some time, these could become global norms. The precedents set now may have consequences for future armed conflicts. That’s why it’s critical that this issue is recognized and seriously understood, assessed, and addressed. These novel uses of technology could signal the need to adapt the rules, or even to create a place for establishing new ones.
In the meantime, Ukrainians should be wary of having potentially risky material on their phones, for example, photos depicting military matériel. At the same time, however, they would be wise to maintain their smartphone contents as believably “real.” Upon inspection, war-related material may become dangerous and could compromise their status as noncombatants. While it is unlawful and illegal to harm civilians not taking an active part in an armed conflict, people in war zones should always err on the side of caution.
Personal technology’s role in conflict is challenging the notion of laws of war. Until countries or international bodies provide clarity on this issue, users should remain cautious. In the meantime, the Geneva Conventions mandate that if it’s unclear what a person’s status is, they should be treated as a civilian. Let’s hope all sides will respect that.
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