Ukraine Symposium – The Law of Crowdsourced War: Democratized Supply Chains – Part I

by | Mar 1, 2023

Supply

“Infantry wins battles, logistics wins wars.” General Pershing’s oft cited maxim of warfare is once again proving itself out in Ukraine. Thankfully, from the outset of Russia’s ill-conceived war of aggression, its progress has been hampered by poorly maintained equipment, fragile supply lines, and dwindling war stocks; weaknesses that Ukraine has deftly exploited. However, despite its poor logistics, Russia still has a decided numerical advantage in combat forces, munitions, and heavy weaponry. And while Ukraine’s military has achieved stunning tactical victories—repeatedly defying odds and exceeding expectations with incredible skill, dexterity, and heroic determination—they are a long way from attaining the strategic objective of expelling Russian forces and restoring Ukraine’s territorial integrity. As the recent decisions to provide Ukraine main battle tanks attests, the ultimate outcome of this fight will rise or fall on Ukraine’s ability to sustain, if not enhance its combat power.

Much has been written on this blog about the international law implications of the substantial military aid that the United States and other countries have and should continue to provide to Ukraine (see, e.g., here, here,here). These financial and materiel contributions have no doubt been a critical lifeline to Ukraine. But they have not furnished the full array of supplies and capabilities needed to sustain its forces and win. Just as with other aspects of its operations, Ukraine has adeptly leveraged technology and the private sector to address some of its logistics shortfalls.

Crowdsourcing in Support of Ukraine

In myriad ways, Ukraine has turned to the Internet, and the power of crowdsourcing that it enables, to offset Russian military advantage. Not only has Ukraine crowdsourced intelligence, cyber operations, and evidence gathering to support war crimes investigations, it has similarly “democratized” logistics. This should come as little surprise; concerned civilians have been crowdsourcing needed medical and other supplies since Russia initiated hostilities in 2014.

More recently, a Wall Street Journal article detailed how hundreds of small, decentralized, global networks operating “outside regular military procurement channels,” are delivering vital equipment, like small commercial drones, encrypted radios, and Starlink terminals, to Ukrainian military units. The article profiles one Ukrainian civilian, Dmytro Zhlutenko, who has crowdfunded over $700,000 that he uses to procure and deliver drones and other supplies from an international network of suppliers, intermediaries, and transporters. As a further example, Daan Nielander in the Netherlands has knowingly and willingly contributed to these unofficial supply chains, keen to see Russia fail.

Participating in these crowdsourced, cross-border logistics operations does not come without risk, both legal and practical. Of course, the degree of risk presented by each individual’s involvement is fact dependent and varies widely. Overgeneralizations provide limited and potentially distorted insights. But, as set out below and in a follow-on post, civilians contributing to crowdsourced supply chains implicate individual and collective risks in at least two interrelated ways under international law.

At an individual level, civilians participating in crowdsourced logistics operations can jeopardize both their life and liberty. Not only might their actions run afoul of the domestic criminal regimes of their own and intermediary States (e.g., arms export regimes or neutrality-based laws prohibiting support to belligerents), Russia might also consider their actions unlawful and prosecutable. Alternatively, and perhaps of greater consequence, Russian forces might target them lethally. Setting aside separate jus ad bellum constraints to targeting these civilians outside of Ukraine, materially supporting Ukraine raises, at least facially, the possibility of those participating in these supply chains forfeiting their general protection under the law of armed conflict (LOAC) from being made the object of attack.

Of course, at a practical level, weighing the risk of being lethally targeted must account for the low likelihood that Russia will invest the time and resources to track and target these individuals; especially those outside of Ukraine. Besides, if Russia were to do so, given its demonstrated lack of regard for the civilian protection regimes of LOAC, one might question whether crossing the legal line into direct participation even matters.

At a collective level, under principles of State responsibility, Russia might assert that States owe a duty to prevent or disrupt these activities as a matter of neutrality law or the principle of due diligence. Again, as discussed in my next post, these would be tenuous assertions as a matter of law.

That is not to say that Russia would not make such claims; its track record in this regard is also suspect. One need look no further than its specious claims that it is justified in using force against Ukraine in the first place. Nevertheless, its reluctance thus far to broaden the conflict indicates that the actual risk to civilians assisting Ukraine, at least from outside its borders, is low.

Direct Participation in Hostilities

The issue of civilian involvement in armed conflicts is nothing new. From so-called camp followers in the 18thand 19th centuries to Rosie the Riveter in the Second World War, to companies like Microsoft assisting Ukraine with cybersecurity and intelligence today, civilians have often contributed in varying ways and degrees to the war efforts of one belligerent or another.

But through the cardinal principle of distinction (ICJ Nuclear Weapons Advisory Opinion, para. 78), LOAC has long sought to place a protective bubble around individual civilians and civilian populations. As I previously pointed out here, it does so by drawing “a bright line between civilians and belligerents, with its greatest emphasis on protecting the former from the harmful effects of war.” Among the broad array of protections to which civilians are entitled is the core prohibition against parties to a conflict ever making them the object of direct attacks (Additional Protocol I, art. 51). And as Michael Schmitt detailed here, the LOAC prohibition on indiscriminate attacks (e.g., article 51(4)), especially the rule of proportionality (e.g., article 51(5)(b)), offer civilians another layer of protection against the harmful effects of lethal targeting operations.

To give maximum effect to these protections, LOAC broadly defines civilians in the negative as anyone who does not qualify as a combatant, that is, any person not falling within the categories “referred to in Article 4(A)(1), (2), (3) and (6)” of the Third Geneva Convention (GC III) and in Article 43 of the 1977 Additional Protocol I to the 1949 Geneva Conventions (AP I) (defining “armed forces of a Party to the conflict”)(emphasis added). And at least for parties to AP I such as Russia and Ukraine, when there is doubt as to a person’s status, “that person shall be considered to be a civilian.”

However, the LOAC protections afforded civilians are not absolute. Nothing in LOAC prohibits civilian participation in hostilities. But doing so does have legal consequence. First, as a matter of both treaty and customary international law, engaging in certain conduct during and related to hostilities can result in civilians forfeiting their immunity from attack and suspension of the attacker’s obligation to consider those civilians in a proportionality analysis. Second, civilians directly participating in hostilities do so without the attendant rights of immunity and prisoner-of-war status accorded to combatants if captured.

With respect to international armed conflicts, this direct-participation-in-hostilities (DPH) rule is found in Article 51(3) of AP I, which simply states “[c]ivilians shall enjoy the protection [against being made the object of attack], unless and for such time as they take a direct part in hostilities.” Yet as consequential as this LOAC provision is, its operative terms are nowhere defined in treaty law, and what specific conduct operates to strip civilians of their presumptive protection against attack is notoriously inexact.

In an effort to elucidate and bound the DPH caveat, the International Committee of the Red Cross published in 2009 its now frequently cited Interpretive Guidance on the Notion of Direct Participation in Hostilities. According to the Interpretive Guidance, for actions to qualify as DPH, they must meet a three-part, cumulative “constitutive elements” test that sufficiently connects a civilian’s actions to intentionally advantaging or disadvantaging a specific party to a conflict.  These elements are:

1. Threshold of Harm: the act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack;

2. Direct Causation: there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part; and

3. Belligerent Nexus: the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another.

Depending of course on where a civilian fits into a crowd-sourced supply chain, one could see where the first, and certainly the third of these elements might be satisfied. Far more challenging is establishing that participation in these supply chains is sufficiently direct to meet the Interpretive Guidance’s strict causal nexus.

Controversies surrounding its publication aside, consensus has yet to emerge among States on the exact meaning or parameters of DPH, or on whether the Interpretive Guidance elements accurately reflect customary international law. For example, according to the U.S. DoD Law of War Manual, “the United States has not accepted significant parts of the ICRC’s interpretive guidance as accurately reflecting customary international law.” (§ 5.8.1.2). The limited number of States that have addressed the question in their military manuals tend to simply restate the basic rule or at most note that beyond the self-evident case of a civilian committing acts of violence against the forces of a party to a conflict, assessing DPH must be done on a case-by-case basis. Thus, according to Rule 6 of the ICRC’s Customary IHL Database, “a clear and uniform definition of direct participation in hostilities has not been developed in State practice.”

Nevertheless, certain aspects of the DPH “rule” are fairly well established, both in State practice and the Interpretive Guidance. First, to qualify as DPH, a civilian’s actions must bear some nexus to the conflict. That is, “[a]t a minimum, [DPH] includes actions that are, by their nature and purpose, intended to cause actual harm to the enemy.” (Department of Defense Law of War (DoD LoW) Manual, § 5.8.3). As noted above, actively provisioning logistical support to one side of a conflict would seem to meet this minimum nexus requirement. Second, DPH is not limited to the obvious case of engaging in actual violence. It unquestionably extends to a broader range of actions, such as those that, depending on context, “effectively and substantially contribute to an adversary’s ability to conduct or sustain combat operations.” (DoD LoW Manual, § 5.8.3). Third, providing the kind of general support that civilians typically provide to their State’s war effort does not amount to DPH.

In contrast to, albeit sharing common aspects with the Interpretive Guidance elements, the DoD Law of War Manual offers five considerations for assessing DPH: 1) the degree to which the act causes harm to the opposing party’s persons or objects; 2) the degree to which the act is connected to the hostilities; 3) the specific purpose underlying the act; 4) the military significance of the activity to the party’s war effort; and 5) the degree to which the activity is viewed inherently or traditionally as a military one (DoD LoW Manual, § 5.8.3).

The provision of logistical support is one of several examples offered in the DoD Law of War Manual of actions that might, depending on context, constitute DPH (§§ 5.8.3., 5.8.3.1), a notion at least implicitly offered in the ICRC’s Customary IHL Database. However, in the context of diffuse, crowd-sourced logistics, it is difficult to see how any but perhaps those individuals working at the very last stages of these democratized supply chains are contributing to the hostilities in a direct enough manner to strip them of their immunity from attack. Rather, these actions seem far more analogous to actions that have typically been interpreted as not rising to the level of DPH, such as working in munitions and materiel factories or other components of traditional “war” supply chains “not in geographic or temporal proximity to military operations” (DoD LoW Manual, § 5.8.3.2).

Ultimately, however, status is in the eye of the targeter. Based on its established track record, if Russia determines that it might derive some advantage from targeting these civilians, there is little reason to believe that anything other than pure practical considerations will drive its decisions; LOAC will not act as a restraint.

As with so many areas of human interaction, the explosion of the digitally interconnected environment of cyberspace has enabled private actors to involve themselves in warfare in unprecedented ways and from relatively safe distances from conflict zones. This trend is unlikely to abate. Whether considering hacktivism, the provision of cybersecurity services or access to satellite and other communications links, or crowdsourced funding and resourcing of logistics, these activities present unique risk profiles and novel challenges to existing legal frameworks. As with all things, States will need to sort out the broader implications of this new reality, including the actual risks it presents, and adapt legal and policy frameworks accordingly.

State Responsibility

If it is unlikely that participation in these crowd-sourcing efforts will amount to DPH and/or put the individuals at actual risk of being attacked, it is even less likely that it will fall back on and put any States at elevated risk of Russian retaliation, legal or otherwise. Again, absent specific facts, anything more than general observations is not possible. For example, without knowing the nationality or location of individuals, let alone the specific acts each is engaged in within a diffuse, crowd-sourced network, it is impossible to assess their connection, geographic or otherwise, to any particular State. But, alongside the framework of the customary international law of State responsibility, there are two general bodies of arguably interrelated law that are at least implicated:  the law of neutrality and the principle of due diligence, both of which will be addressed in Part II of this post.

***

Gary Corn is the Director of the Technology, Law & Security Program and Adjunct Professor of Cyber and National Security Law at the American University Washington College of Law.

 

Photo credit: Oleksandr Perevoznyk 

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