Military Information Sharing by Ukrainian Citizens in the Digital Environment: DPH? – Blurring of Lines Between Civilian and Military Actors in Ukraine

[Luke James, LLM. is a security analyst interested in peace processes. He has worked at the ICC, OSCE, British Red Cross, Platform for Peace Humanity, UNV and is an Army Reservist.]

On 5 July, Ret. Colonel John Spencer spoke at NATO’s Urban Warfare Conference in London. He described how Ukrainian President Zelensky “turned his civilians into fighters”, telling the Ukrainians citizens to “go out and resist”. From Spencer’s Urban Warfare perspective, “civilians were the first line of defence for the battle of Kyiv.”

Spencer describes how Ukrainian citizens can “plug in” Russian military locations to a Ukrainian military command centre. Moments later a national level asset could – Spencer speculates –strike that target.

Operating in the digital space as a “defender and sensor”, civilians could undeniably take a role in military activity. Social media and messaging applications have been used (examples here, here and here) to reveal Russian positions, as civilian drone “hobbyists” and citizens act as front line reconnaissance operators.

Caveat

The proceeding analysis is not what Bosnian scholar Jasmin Mujanović and many others – with good reason – described the Amnesty report as producing; an ill judged critique of the Ukrainian defenders. This is a critique of the current inadequacy in the application of international humanitarian law (IHL). The objective of this is to warn Ukrainian defenders that there is a real risk that civilians operating in the digital space may relinquish their non-combatant protections under the Geneva Conventions. This could potentially prove fatal, as they could become “fair game” for a Russian military response. Looking ahead with foresight, the world should prepare for Russian lawyers that are likely already preparing criminal defence briefs along this line of argumentation.

Legal Background

The cornerstone of IHL is the prohibition on targeting of civilians. Militaries must distinguish between combatants and civilians – the only two categories in the Geneva Conventions.

Civilian immunity is not absolute however, as civilians are immune from being targeted “unless and for such time as they take a direct part in hostilities” – Additional Protocol 1 Art 51(3). This does not mean that a civilian taking a direct part in hostilities becomes a combatant, they just temporarily lose their immunity from attack.

The issue of direct participation in hostilities was largely discussed in the 2000’s. The US-led “war on terror” sought to respond to civilians who engage “in military raids by night, whilst purporting to be an innocent civilian by day”. Sir Christopher Greenwood QC concluded those who fall into this category are “neither a civilian nor a lawful combatant, but an unlawful combatant”.

Greenwood’s third category, “unlawful combatant”, is not found in the Geneva Conventions and should be considered a political term. Put simply, persons not entitled to combatant status are civilians, targetable only if and for so long as they directly participate in hostilities. It should be noted that direct participation by civilians must be distinguished from the notion of organised armed groups. Although resistance units have recently been documented in Ukraine, this is a separate legal question and not the focus of this post.

In 2009, the ICRC published an interpretive guidance on the notion of Direct Participation in Hostilities (DPH). It poses some useful questions to determine whether a civilian could be said to be directly participating in hostilities: threshold of harm; direct causation; belligerent nexus. The 2009 study is not settled law and has been criticised.

It has been thirteen years since the ICRC’s study and the digital environment has added a new dimension for military commanders and lawyers – one that is not yet adequately discussed by academics or humanitarians.

Russia’s war on Ukraine is not the first war we’ve seen Twitter, Telegram and TikTok era, but it is the most internet-accessible war in history. A question now arises whether a citizen’s use of the digital environment to share enemy force positions, leading to a lethal military strike, could be categorised as directly participating in hostilities.

The proceeding analysis will assess whether three scenarios based closely on true events would satisfy the ICRC’s cumulative criteria of 1) “significant threshold of harm” 2) “clear and direct causation” and 3) “specifically designed to do so in support of a party to an armed conflict and to the detriment of another” (belligerent nexus).

Three Scenarios Based on Real Events

1. Front line civilian drone reconnaissance teams

On 7 July, Telegram news feed Our Wars Today reposted a video that possibly shows a “Russian position in Southern Ukraine, reportedly #Kherson, explod[ing] following some type of #Ukrainian strike”.

The facts are difficult to come by, but many respectable sources such as the New Statesman and the Financial Times have openly discussed Ukrainian citizen drone teams contributing to the defence of Ukraine. It is not a secret that drone intelligence is passed via Elon Musk’s Starlink to elements of the Ukrainian military.

The video shows a significant threshold of harm; the military strike almost certainly causes the death of Russian soldiers. The ICRC’s 2009 study is clear that any harm specifically of a military nature will generally satisfy the threshold requirement – for example, even the disruption of logistics or communications satisfies this requirement. Thus, the resulting strike from a citizen’s drone intelligence that kills military personnel will meet and surpass the threshold of many accepted examples of “harm”.

This analysis assumes clear and direct causation; the act of reconnaissance and intelligence gathered is shared from the drone team to the Ukrainian military. Unlike “indirect” general war efforts such as the construction of or repair of infrastructure or war sustaining efforts such as political, economic and media activities, this is “direct” participation in hostilities – there is a “sufficiently close causal relation between the act and the resulting harm”. The ICRC expands the scope: “a person serving as one of several lookouts during an ambush would certainly be taking a direct part in hostilities although his contribution may not be indispensable to the causation of harm”, in which case even if the intelligence that the Ukrainian strike was based on was not from the drone operators, but from another source or “lookout”, “it is neither necessary nor sufficient that the act be indispensable to the causation of harm”. This sets an extremely low bar for the Ukrainian defenders, likely rendering any front-line civilian drone reconnaissance teams as satisfying the clear and direct causation requirement.

In addition to the previous two objective requirements, the intelligence is in support of the Ukrainian military to the detriment of the Russian forces. Therefore, the objective purpose of the intelligence sharing satisfies the third cumulative requirement, “belligerent nexus”.

Should the strike be the consequence of the civilian aerial reconnaissance team, “Aerorozvidka”, it is almost certain that the operators are directly participating in hostilities. (Outside of the remit of this analysis, it is interesting to note this Aerorozvidka group may meet the requirements of a continuous combat function, making them targetable at any time)

2. A TikToker reveals troop positions

In the build-up to the Russia’s 24 Feb invasion, a TikToker posted a video on 4 Feb. It shows a Russian convoy likely amassing on the Ukrainian border.

This falls outside of the Russian-Ukrainian IAC and the rules of IHL would not apply. However, Russian positions that are posted in the digital environment in the context of the IAC (post-24 Feb), have been documented. Sharing of Russian positions is overtly encouraged by Ukraine’s Ministry of Digital Development in their Дія (Diya) mobile app.

Relevantly for many social media users in conflict, according to the ICRC’s 2009 study, the qualification of an act as a “significant threshold of harm” does not require the “materialization” of harm reaching the threshold but merely the objective “likelihood” that the act will result in such harm. In this conflict which has become – and is likely to increasingly be – characterised by civilian support to military operations through the digital environment, the ICRC’s formulation gives Russian forces broad scope to claim and abuse the test of objective “likelihood” that Ukrainian citizens meet the “significant threshold of harm” requirement by revealing troop positions in the digital environment.

Similar to the previous example, posting enemy positions online – and certainly directly to Ukrainian authorities through the Diya mobile app – that leads to a Ukrainian military strike would satisfy the second requirement, clear and direct causation.

The third element, the belligerent nexus, requires closer examination. Social media posts revealing enemy positions may not be “specifically designed to do so in support of a party to an armed conflict and to the detriment of another.” Belligerent nexus is distinguished from subjective intent and hostile intent, in other words, the state of mind. Distinguished from these higher thresholds, the careless or inadvertent revealing of enemy positions on social media could be said to have not been “designed to do so in support of another party”.

But this is only a partially correct reading of the requirement. Belligerent nexus is not “generally” dependent on “the mental ability or willingness of persons to assume responsibility for their conduct” – it relates to the “design of the act or operation and does not depend on the mindset of every participating individual”. It is not unreasonable to assert that citizen’s digital engagement that reveals enemy positions in the height of warfare would objectively be “of a nature” to harm the enemy. This is a philosophically utilitarian and consequentialist perspective to this requirement. 

In this conflict, there is an objective likelihood that the social media sharing of Russian positions would result in a significant threshold of harm following a subsequent Ukrainian strike. A clear and direct causation is assumed similarly to the previous example. The social media sharing of enemy positions certainly is “of a nature” to harm the enemy forces.

3. A post-strike report

On 12 July, the Twitter account Ukraine Weapons Tracker posted pictures of the aftermath of “a Ukrainian strike against a #Russian position in Stakhanov, #Luhansk Oblast, three Russian BTR APC were destroyed”.

As the West’s HIMARS MLRS systems began to be deployed in the battlespace in early July, it is not clear whether this strike was with a guided missile or whether it was directed by a spotter – possibly a civilian resistor who took the photographs. Later, in the tweet thread, it appears that the Ukrainian military filmed the strike, insinuating what could be perceived as some degree of cooperation between whoever was on the ground and the Ukrainian military.

Should the lethal strike be the consequence of the intelligence provided by the spotter, a significant threshold of harm has been met. As previously mentioned, even if the spotter was one of many defenders and sensors on the ground near to the position “it is neither necessary nor sufficient that the act be indispensable to the causation of harm”. In other words, if the intelligence provided was part of the calculus that authorised the military strike, the second requirement of “clear and direct causation” would be met. 

There is a significant threshold of harm, clear and direct causation, and it is in support of the Ukrainian military, satisfying the belligerent nexus requirement.

Conclusion

The context leading up to the ICRC’s 2009 DPH guidance was roughly two decades of “a marked shift in the conduct of hostilities into civilian population centres, including cases of urban warfare”. Conflicts from the Balkans to the Middle East and North Africa showed how “anybody can change from a fighter to a civilian, all in one day, in one moment”. Even those indigenous to a conflict find it extremely difficult to distinguish an “unlawful combatant” from a civilian.

Many Ukrainian citizens will cite similar motivations for participating in hostilities as were elicited in CIVIC’s 2015 interviews from Bosnia, Libya, Gaza and Somalia: protection of self; family; identity, and; a feeling of civic duty. The difference today is that the digital environment massively speeds up the “revolving door phenomenon.” Depending on the facts, non-combatant protections of IHL likely applies right up until the moment the picture revealing troop movements is taken and then distributed. Then what? How long has that civilian lost their immunity from attack? The potential impact in real terms of that picture is potentially far greater than a civilian – who would possibly openly define themselves as a militant – that is transporting equipment in support of a party to the conflict from A to B. If a state level asset is consequentially deployed the impact would be unparalleled.

These civilians would not be entitled to POW status under GCIII or protected person status under GCIV for the period of time they are directly participating – causing further risks if detained in Russian prisons. If a civilian is deemed not to be “materially” directly participating through digital means in an immediate split-second decision, but has just taken a photograph, the enemy force would claim a “likelihood” that the act will result in such harm. Further still, if a civilian is not “materially” or in all “likelihood” directly participating, Russian offensive military action proportionality assessment would come into play; it should not be unexpected that the destruction of that image becomes a military objective, with the killing of that “fleeing” civilian, defence lawyers may argue, merely “incidental” and “proportionate” to achieving that aim.

The application of the constitutive rules of direct participation in hostilities cannot be applied satisfactorily to the digital age. In this war, the risk it creates to Ukrainian citizens is too high. This ambiguous new digital dimension for military commanders creates opportunities of attempting to justify the sanctioning of civilian deaths suspected of revealing military positions. This creates massive threats to civilians with a mobile phone in their hand caught up in conflict.

Recommendations to Civilians in Conflict

• Understand your non-combatant protection; be strategic with digital engagement.
• Should you choose to engage with the digital environment in support of a party to the conflict, mitigate the risks by delaying publication and move as far away from the localized conflict zone as possible.