Ukraine Symposium – Data-Rich Battlefields and the Future LOAC

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| Sep 12, 2022

Data Rich Battlefields

Alongside the physical conflict in Ukraine, the parties are waging a ruthless data war. Russia continues to deploy its formidable “information war machine” to “confuse and disable” while Ukraine and non-State actors such as news organizations, think tanks, and NGOs counter these tactics through the use of extensive, open-source battlefield data. In effect, we are watching the future of warfare—data-rich battlefields in which information is a critical component of military operations—emerge in real time.

To gain military advantage from this emerging characteristic of warfare will require significant investment by States in data-gathering and processing technology. In fact, that effort is well underway. For example, the U.S. Army’s XVIIIth Airborne Corps advertises that it is becoming a data-centric operational unit and is accordingly committing significant resources toward that aim. With States envisioning increased and broadened use of data in military operations, the exploitation of data in the Ukraine-Russian conflict provides an opportune example to identify legal considerations. In this post, we briefly describe the data-rich character of the modern battlefield, examine legal issues that arise under the law of armed conflict (LOAC), and offer some thoughts on how international law may address perceived legal gaps.

The Ubiquity of Data

The pervasiveness of data in contemporary warfare is due in part to a multi-decade trend toward social and information technology (IT) networking. The vehicles, devices, and objects we use in daily life are transforming into computers connected to the Internet. The “internet of things” has had a profound impact on all aspects of society. Militaries are no exception—weapons systems, logistics operations, and command and control systems incorporate and are heavily reliant upon IT network connections.

This interconnectedness generates enormous amounts of data. Capturing and processing these data is a key component of any contemporary military operation. Indeed, in modern warfare, data are referred to as a weapon system. The U.S. Department of Defense touts itself as a “data-centric organization that uses data at speed and scale for operational advantage and increased efficiency.” The United States is not alone in this view. NATO conducts interoperability exercises as part of a “digital transformation,” which will allow it to take full advantage of data-rich environments in future conflicts.

Data and the Ukraine-Russian Conflict

The Ukraine-Russia armed conflict presents glimpses, though likely not a full picture, of what warfare looks like in a hyper-connected, data-rich world. Drones have played a prominent role in Ukrainian targeting operations—not only as weapon systems, but also as data-gathering tools to aid Ukraine in identifying and prioritizing Russian targets. Ukrainian drones clearly serve in direct combat as well, as was the case in the Ukrainian drone attack against Russia’s Black Sea fleet in Crimea. Likewise, reports suggest that Russia is using data catalogs of NATO military equipment in its reconnaissance and targeting operations. Some reporting suggests that Russia may be using artificial-intelligence driven drones. As one report noted, “Out in the fields and tree lines of eastern Ukraine, drones have become ubiquitous on the Ukrainian side, outnumbering, soldiers say, Russia’s arsenal of pilotless craft. Drones have almost wholly replaced reconnaissance patrols and are used daily to drop ordnance.” AI-driven tools and weapons require substantial training and operational data to make accurate battlefield assessments, and, increasingly, decisions.

Militaries are not the only contributors to the data-soaked battlefields of Ukraine. The role of “open-source intelligence” is well documented with Ukraine using publicly available data and intelligence to drive its operational decision-making. Other States—including the United States—are also contributing their own data collection to Ukraine’s war efforts. The United States has “flooded the zone” in Ukraine with declassified data to counter Russian tactics (in effect successfully counteracting Russian false flag efforts). Furthermore, civilian infrastructure and data collection capacity is playing an important role in the war. One prominent example is Ukraine’s use of Starlink satellite system—a civilian rather than military system—to connect military forces and share data. Another is the use of open source intelligence methods to investigate alleged war crimes in Ukraine.

The importance (and availability) of data in the Ukraine-Russian conflict ensures States will seek to increase the efficiency of collecting, processing, and analyzing data. Furthermore, States surely will continue efforts to push as many sensors onto the battlefield as quickly as possible, as well as take advantage of the preponderance of civilian data gathering devices in and near conflict zones. Accordingly, with States’ ability to obtain and use data, it is likely that doctrine, training, and planning will evolve to account for this emerging characteristic of modern warfare.

LOAC Implications of Data War

As would be expected, the increasing importance of data on the contemporary battlefield raises international legal issues. Addressing these issues is not merely a theoretical or academic exercise. As the ongoing Ukraine-Russia conflict and military doctrinal developments make clear, their import is operationally pressing. In this section, we highlight three key LOAC issues related to the data rich battlefields of Ukraine and the future.

Limiting Rules

When belligerents flood the battlefield with information—as is happening in the Ukraine-Russia conflict—the legality of the operation is highly circumstance dependent. It is clear that LOAC presents no legal obstacle, per se, to belligerents’ use of information to influence opinions or to gather militarily valuable intelligence. Propaganda and reconnaissance operations are staples of military campaigns. As distinct from attacks, information may lawfully be directed toward a civilian population. For example, U.S. efforts to undermine Russian false flag operations may in part constitute an effort to shape public opinion about the justification for Russia’s invasion of Ukraine.

However, there are important international legal limits on information operations in conflict. Information cannot be used to incite law-of-war violations such as attacks against civilians. Some Russian propaganda may cross this line insofar as it constitutes “threats of violence whose primary purpose is to spread terror among the civilian population.” For example, Russian propaganda adopting the language of “annihilation and extermination” with respect to Ukraine seems designed, at least in part, to instill terror among Ukrainians. If this is Russia’s intent, then this use of information on the battlefield could be unlawful.

Additionally, information may also not be used in a manner that violates other law-of-war rules. Such operations may not, for example, violate the rule against perfidious or treacherous killing or injuring. Perfidy is the invitation of enemy confidence in an entitlement to, or an obligation to accord law-of-war protection, with the intent to betray that confidence resulting in death or injury. It is unlawful to kill or injure an enemy by resort to perfidy. The perfidy prohibition could be implicated if a belligerent were to disseminate false information indicating a particular battlefield area contained a significant number of protected persons (such as civilians or combatants hors de combat). The data might be disseminated with the intent to lure the enemy into the area, for example to clear the battlefield and conduct security operations. If the enemy entered the battlefield area under the belief that it was obligated to accord legal protection to the protected persons, and that trust was betrayed to commit an attack resulting in death or injury, then the information operation could constitute unlawful perfidy.

In sum, while not prohibited per se, information operations are regulated by LOAC rules. Still, it is apparent there is wide latitude to use data to gain a military advantage during armed conflict. The above discussion—clearly not an exhaustive exploration of the LOAC rules covering these types of military operations—is intended to remind belligerents of the need to be acutely aware of the particular legal rules applicable in a data rich combat environment.

Aiding Targeting Decision-Making

One of the great potential benefits of a data-rich battlefield is the opportunity for belligerents to better comply with their legal obligations in targeting operations. LOAC principles and rules robustly govern targeting operations. The most important of these finds expression in the principle of distinction, at times characterized as fundamental or “intransgressible,” which requires States to direct their attacks against enemy combatants and military objectives and forbids attacking civilians and civilian objects.

This is not to say that civilian death and destruction are flatly prohibited during armed conflict. The principle of proportionality reflects this idea, prohibiting attacks in which the anticipated collateral civilian death and destruction are excessive in relation to the concrete and direct military advantage expected to be gained. Proportionality is operationalized by the rule requiring belligerents to take feasible precautions in attack to avoid or at least mitigate civilian death, injury, and destruction. As one of us has written previously, feasibility means practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.

Battlefield data harvesting can greatly enhance the humanitarian aspects of targeting operations. The prevalence of battlefield sensors discussed above affords a means to gather, process, and analyze such data. Emerging advances in AI and machine learning algorithms will aid military decisionmakers in taking advantage of this wealth of data. Command and control networks, such as the U.S. Department of Defense’s emerging Joint All-Domain Command and Control system, will afford combatants across the battlefield with exponentially increased understanding of the operational environments in which they fight. These powerful tools have already arrived, to some extent. Russia has established an “unprecedented” command and control network to manage and coordinate its military operations across Ukraine. In short, commanders and fighters may potentially enjoy an unmatched ability to understand the battlefield, thus enhancing their ability to make accurate and therefore militarily advantageous and humane targeting decisions.

However, the success of enhanced targeting decision making on the contemporary and future battlefield is not a foregone conclusion. States understand the risks associated with increased battlefield awareness. Accordingly, they will seek to exploit emerging technology to create what could be called “information chaos.” States will employ deception techniques to minimize, alter, and deceptively magnify battlefield signatures, which could undermine the trustworthiness of the data harvested by sensors and other information gathering methods.

In effect, an arms race of sorts is underway, in which States are seeking both to develop information gathering methods as well as to undermine potential adversaries’ ability to do the same. This is happening in real time in Ukraine, with both sides conducting an information war designed to sow confusion and chaos among the opponent’s ranks.

Accountability

Finally, data-rich battlefields could impact efforts to ensure accountability for individuals who violate LOAC. Battlefield sensors and other information gathering means and methods present an extraordinary amount of data from which to draw evidence of violations. Non-governmental groups such as Bellingcat have reportedly tracked evidence of Russia’s unlawful use of cluster munitions against civilians. Furthermore, systems have been designed to “crowdsource” evidence of war crimes, such as a centralized database created by Ukraine’s Prosecutor General. Separate but related, a Ukrainian human rights organization trains volunteers to document eyewitness testimony by collecting, preserving, and verifying evidence found through open-source information.

This abundance of war crimes evidence could lead to unprecedented enforcement through war crimes prosecutions against alleged offenders. Indeed, recent reports indicate that such efforts have begun. Ukraine’s Prosecutor General recently stated publicly that she was receiving between 200 and 300 reports of war crimes each day, and that there are currently up to 21,000 alleged war crimes being investigated. Furthermore, prosecutions have begun with unrivaled speed, albeit sometimes with due process and other concerns (see here, here, and here). However, while the enforcement effort in Ukraine is proceeding with speed, significant challenges remain.

The prevalence of data on the battlefield will put significant pressure on existing LOAC paradigms. The vast amounts of data available to commanders and other military decisionmakers could impact the legal standard regarding certainty in targeting and other operational decisions. The law of armed conflict does not require decisionmakers to be clairvoyant or all-knowing. Rather, they must carry out their legal duties—including, for example, following the targeting rules highlighted above—in good faith based on the information reasonably available to them at the time of the decision.

This standard leaves plenty of room for interpretation. One could argue that data-rich operational environments in armed conflict will decrease the “fog of war,” thereby allowing decisionmakers to make more accurate decisions and be less prone to factual mistakes. This in turn could lead to a more stringent standard of reasonable decision making. In other words, commanders with more information will have less excuse for making factual errors, and any such errors would come with potentially increased legal liability. This potential liability could be brought to bear on Russian commanders in Ukraine who have directed attacks against targets with a high risk for civilian harm.

However, it is far from clear this is the direction the law is headed. Access to voluminous amounts of information does not necessarily mean that commanders and decision-makers will understand, appreciate, or have the time to process such data. As is currently the case, future commanders will rely on a vast array of staff members and data-processing systems to help them understand the battlefield. The quality of staffs and such processes will obviously vary—even within particular armed forces. As a result, commanders may at times make decisions based on incomplete or incorrect information, contrary to data within the possession of their State’s armed forces. This will not necessarily change simply due to access to data.

Conclusion

The Ukraine-Russia conflict is a harbinger of the importance of data in warfare. Data-rich battlefields will be a part of any conflict with the State best able to harness and take advantage of the information environment having a significant military advantage. To remain relevant to the conduct of contemporary military operations, the development and application of the LOAC must keep pace.

In this post, we highlighted a few potential “legal gaps” that may result from the increased importance of data in armed conflict. While these gaps need to be addressed, it is important to avoid a heavy-handed approach to filling them. Rather, States should be afforded time and space to consider fully the operational implications of data-rich battlefields, and evaluate how LOAC rules should apply in light of the delicate balance reflected in the law between military and humanitarian considerations. It is thus critically important for States not to overlook these considerations as data on the battlefield grows in importance.

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Brigadier General Shane Reeves is the 15th Dean of the Academic Board of the United States Military Academy, West Point.

Robert Lawless is an Assistant Professor in the Department of Law and Managing Director of the Lieber Institute for Law & Land Warfare at the United States Military Academy, West Point.

The views expressed in this work are those of the authors and do not necessarily reflect the official policy or position of the United States Naval Academy, United States Military Academy, the Department of the Navy, the Department of the Army, or the Department of Defense.

 

 

Photo credit: Marine Corps Staff Sgt. Jacob Osborne

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