Learning Lessons From Ukraine: State Obligations and Legal Challenges of Civilian Intelligence Apps Under International Humanitarian Law

[Quinten DeGroote is an LL.M. Candidate in International Humanitarian Law and Human Rights at the Geneva Academy. He also holds a Bachelors and Masters degrees in law from the KU Leuven.]

Introduction 

The Ukraine-Russia war has highlighted the growing role of modern technology in contemporary warfare. A notable example is civilian intelligence apps, such as e-Enemy, a feature within Ukraine’s Diia e-governance platform. Initially designed for public services like tax payments and passport renewals, Diia was expanded after the Russian invasion to include e-Enemy, a chatbot that allows Ukrainian civilians to report incoming Russian missiles or troop movements directly to the Ukrainian military.

This innovative intelligence-gathering method has sparked an extensive debate among experts in International Humanitarian Law (IHL) about whether civilians using the app meet the criteria for direct participation in hostilities (DPH). This post aligns with the view that civilians providing information through such apps engage in DPH only in exceptional circumstances. Schmitt and Biggerstaff provide a conflicting view.  

While much scholarly focus has been on the issue of DPH, relatively little attention has been given to the legal obligations of States that develop and deploy these apps. This post seeks to fill that gap. First, I explore whether IHL prohibits the use of such apps. While the majority view maintains that no explicit prohibition exists against encouraging civilian participation in military efforts, the minority view argues that certain IHL obligations could implicitly impose such a prohibition. Nevertheless, even if these apps are deemed permissible under IHL, they remain subject to other IHL rules. Therefore, following this, I will propose guidelines for the development and deployment of such apps to ensure compliance with IHL.

Finally, beyond legal analysis, this post aims to provide policy recommendations for States considering similar technologies. With rising geopolitical tensions, future conflicts may see the widespread use of civilian intelligence apps. However, lessons should be drawn from Ukraine’s experience, as it enables policymakers to anticipate legal challenges and ensure greater compliance with IHL when designing such systems.

The Legality of Civilian Intelligence Apps Under IHL

IHL does not regulate civilian intelligence apps as such. Therefore, it is necessary to consider this issue within a broader context: the State encouraging civilians to contribute to military efforts, which could potentially constitute DPH. This topic has received plenty of attention in literature lately, as States have been increasingly relying on civilian capabilities in contemporary armed conflicts. 

However, legal scholars have conflicting views on whether IHL allows such encouragement by the State. The majority view holds that IHL does not forbid States from encouraging civilians to contribute to military efforts, meaning that civilian intelligence apps would be lawful under IHL. Proponents of this position argue that IHL contains no explicit provision prohibiting a State from doing so, nor does it explicitly prohibit civilians from engaging in DPH. 

Conversely, a minority of scholars contend that these apps would be unlawful under IHL, as some IHL rules could be interpreted as implicitly prohibiting States from encouraging civilian participation in military efforts. Firstly, some scholars, such as Mačák and Rona, rightly argue that involving civilians in military efforts erodes the principle of distinction (AP I, Article 48). However, Cameron and Chetail take this argument even further, asserting that States violate the principle of distinction when they encourage civilians to contribute in a way that qualifies as DPH. As discussed earlier, civilian intelligence apps like e-Enemy could, in exceptional circumstances, meet this threshold. 

Secondly, the duty to take constant care of civilians (AP I, Article 57(1)) and to take passive precautions (AP I, Article 58) could also imply a prohibition. These duties include the obligation to protect civilians from the dangers of military operations, which could be understood as prohibiting actions that promote civilian involvement in military efforts, as such participation increases their exposure to harm. Moreover, passive precautions require removing civilians from the vicinity of military objectives (AP I, Article 58(a)). If a civilian’s contribution qualifies as DPH, as could be the case with civilian intelligence apps, they become lawful targets, potentially violating this obligation. While it could be argued that passive precautions are not applicable to this, as DPH results in the loss of protection against attacks, Mačák convincingly asserts that these obligations remain until civilians actually engage in DPH, as they only lose protection while carrying out such acts. Thus, encouraging them to move into unprotected areas is difficult to reconcile with the duty of passive precautions. 

Thirdly, the duty to respect and ensure respect for IHL must also be considered. This duty encompasses the obligation to prevent IHL violations when there is a reasonably foreseeable risk of such a violation occurring (see ICRC Commentary on GC III at paragraph 197). As previously mentioned, the use of civilian intelligence apps erodes the principle of distinction, increasing the likelihood of violations, as it can be difficult for belligerents to determine whether a civilian is engaging in DPH. Notably, the first war crimes trial in Ukraine directly dealt with this issue. A Russian soldier got convicted for shooting a civilian whom he suspected of using his phone to report his position. 

IHL Rules on the Development and Deployment

Even if States adopt the majority view that civilian intelligence apps are permissible under IHL, this area of law remains relevant for guiding the development and deployment of such apps. Therefore, this section will outline the relevant IHL rules, analyse the Ukrainian e-Enemy app as a case study to illustrate areas of non-compliance, and propose adjustments to ensure better compliance with IHL. Two key areas of concern will be addressed. 

Duty to Inform Civilians

As demonstrated above, involving civilians in military operations through civilian intelligence apps exposes them to risks stemming from those operations. The war crimes trial in Ukraine highlights the particular danger of using a mobile phone near the frontline, let alone the added concern that such use could potentially constitute DPH. This raises a critical question: do States have an obligation to inform their civilians about these risks and the potential legal consequences of their involvement? 

Although IHL does not explicitly require States to inform civilians of these dangers, this obligation can be inferred from several IHL provisions. The duty to take constant care of the civilian population (AP I, Article 57(1)) and the duty to take “other necessary precautions” (AP I, Article 58(c)) suggest that States must take feasible measures to warn civilians of potential risks. Additionally, if the use of the app constitutes DPH, the obligation to disseminate IHL also becomes relevant, as civilians must be made aware that their actions could render them lawful targets under IHL. The International Committee of the Red Cross contends that spreading knowledge of IHL among civilians is as crucial as among armed forces, but acknowledges that States have greater discretion in how they do so regarding civilians. Finally, while a detailed analysis is beyond the scope of this post, it is worth noting that International Human Rights Law, particularly the right to life, imposes similar obligations that further reinforce these IHL rules (for more information, see here at 908-910).

The e-Enemy app has failed to warn its users about these risks, probably out of concern that doing so would discourage civilians from using the app. However, implementing a disclaimer when the app is opened would be a feasible way to provide this warning (see also Maurer). In line with the IHL rules outlined above, this post argues that the disclaimer needs to cover two things. Firstly, it should inform civilians that using the app, or even a phone in general, near military operations puts them at risk. Opposing forces may perceive their actions as a threat and therefore target them, as the civilian could be reporting their position. Secondly, the disclaimer should explain when app usage crosses the threshold of DPH and what the legal consequences are. Civilians need to realise that they are not just exposing themselves to any attack, but even a lawful one.

Duty to Separate Civilian and Military Cyber Networks and Infrastructure

Civilian intelligence apps are military objectives, as the intelligence they gather contributes effectively to military action, and their destruction or neutralisation offers a definite military advantage (AP I, Article 52(2)). Therefore, a key IHL rule governing the development and deployment of such apps is the requirement for belligerents to segregate military objectives from civilians and civilian objects (AP I, Article 58(a) and (b)). In the context of these apps, this rule should be examined on two levels. 

Firstly, the networks on which these apps operate should be considered. Networks are inherently dual-use, so the intelligence from the app will inevitably pass through civilian networks, such as satellites. In today’s world, separation of military and civilian networks is not yet possible (see also Roscini at 237-238). However, the IHL obligation described above only requires belligerents to segregate military and civilian objects ‘to the maximum extent feasible’. Therefore, until future evolutions make a division possible, this post holds that using civilian networks to operate civilian intelligence apps does not violate this obligation. 

Secondly, the infrastructure of the app must be addressed, which refers to how the app itself is designed. In the case of Ukraine, the e-Enemy app was embedded within Diia, an e-governance platform used for civilian services such as tax payments and the renewal of passports. This integration clearly violates the obligation to separate military and civilian objects, as any attempt by Russia to target the e-Enemy app would likely impact Diia as a whole. Consequently, targeting the app could unintentionally lead to collateral damage to essential civilian infrastructure and data. Given that Ukraine could have easily developed the app as a standalone platform, it cannot reasonably invoke the ‘to the maximum extent feasible’ argument in this case. Notably, Ukraine has already developed and deployed other civilian intelligence apps, such as the ePPO app, which allows civilians to document incoming Russian missiles to help the Ukrainian army calculate their trajectory. Unlike the e-Enemy app, the ePPO app can be downloaded directly from the app store, meaning it is not embedded within any civilian cyber infrastructure, thus mitigating the risk of collateral damage. 

Conclusion

The use of civilian intelligence apps in modern warfare, as exemplified by Ukraine’s e-Enemy app, raises significant legal challenges under IHL. While these apps can provide valuable intelligence, their potential to involve civilians in military efforts and the way in which they are developed and deployed create complex issues regarding their compliance with IHL. States must be mindful of their obligations to protect civilians from harm, especially when encouraging civilian participation in military operations. Even when States opt to use civilian intelligence apps, this post emphasises the importance of informing civilians about the risks of the app and suggests the need for a clearer separation between military and civilian cyber objects. By addressing these concerns, States can better navigate the legal complexities surrounding civilian intelligence apps and ensure greater adherence to IHL in future conflicts.