As Russia continues its unprovoked armed assault, Ukrainian reports note that smartphones in the pockets of civilians can be “powerful weapons in their own way like rockets and artillery.” Indeed, the country’s technologists quickly created remarkable apps to keep citizens safe and support the war effort, ranging 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 notify the Armed Forces,” the Department of Digital Transformation said of the new capability as it rolled out.
Naturally, the Ukrainian people want to defend their country and help their army in any way possible. But some digital uses fundamentally challenge the traditional distinction between civilians and modern-day combatants.
Technically speaking, as soon as a user in a war zone picks up a smartphone to help the military, the technology and the individual can be considered sensors, or nodes, in the practice known as ISR – intelligence, surveillance and reconnaissance. Inviting citizens to become a potential part of a military system, as the e-Enemy function does, could blur the lines between civilian and combatant activities.
The principle of distinction between the two roles is an essential cornerstone of international humanitarian law – the law of armed conflict, codified by decades of customs and laws such as the Geneva Conventions. Persons considered to be civilians and civilian targets must not be attacked by military forces; since they are not combatants, they must be spared. At the same time, they must not act as combatants either – if they do, they may lose that status.
The conundrum therefore is how to classify a civilian who, with the use of his smartphone, potentially becomes an active participant in a military sensor system. (To be clear, simply having the app installed is not enough to lose protected status. What matters is actual use.) Additional Protocol I to the Geneva Conventions states that Civilians enjoy protection against “dangers resulting from military operations unless and for such operations”. when they take a direct part in hostilities. Legally, if civilians engage in military activities, such as participating in hostilities using weapons, they lose their protected status, “so long as they directly participate in hostilities” that “affect[s] military operations,” according to the International Committee of the Red Cross, the traditional impartial guardian of international humanitarian law. This is the case even if the persons in question are not formally members of the armed forces. By losing civilian status, one can become a legitimate military target, carrying the risk of being directly attacked by military forces.
The most obvious way to resolve this confusion might be to allow a civilian user to temporarily lose their protected civilian status, at least when using such an application. In some cases, it can be a “state change” of a few minutes, as quick as taking the smartphone out of your pocket, taking a photo or typing a short message. It is not a question of direct and sustained participation in the conflict, but rather of sporadic participation. The problem with this interpretation, however, is that it is not settled and not all parties 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 some smartphones to turn a civilian into some form of “combatant” one minute, and back into a civilian again the next, introduces unprecedented complications into the long-standing laws of war.