Ukraine Symposium – The THeMIS Bounty Part I: Seizure of Enemy Property

Modern technological advances play a critical role on the battlefield. They increase the efficiency and lethality of attacks, enhance situational awareness, protect friendly forces, and increase the chance of survival for victims of war. Recently, Azerbaijan received praise for its effective use of Turkish Bayraktar TB2 drones and loitering munitions to exploit the weaknesses of Armenian air defense assets during the 2020 Nagorno-Karabakh conflict. Ukraine has also leveraged technological capabilities, such as the Switchblade and GIS Arta, to defend itself from Russian invasion. The demonstrated value of these advanced systems makes them a prime target for seizure by enemy forces.  

The Tracked Hybrid Modular Infantry System (THeMIS) is a further example of new technology used to gain military advantage. THeMIS is a small, tracked unmanned vehicle that is 6.5 feet long and 3 feet high and manufactured by an Estonian defense contractor, Milrem Robotics. Its diesel-electric engine can propel THeMIS to nearly 22 mph. With a 1500-pound payload, THeMIS can be configured to meet a variety of functions, such as a drone launcher, a firefighting tool, a medevac, and an anti-tank missile launcher.

It forms part of the EU research project on Integrated Modular Ground Systems, which develops the autonomous properties of unmanned systems and human-machine cooperation. This advanced technology allows THeMIS to be remotely piloted or to operate in a “follow” mode – autonomously traveling behind a specific person. Milrem Robotics has already delivered one THeMIS vehicle to an unspecified Ukrainian charitable organization in a casualty evacuation configuration to help with labor-intensive casualty evacuation activities. Germany has paid for an additional fourteen THeMIS vehicles scheduled to be delivered to Ukraine by the end of the year, to be used for both casualty evacuation and route clearance. 

To fill gaps in Russian technological knowledge, Russia’s Centre for Analysis of Strategies and Technologies (CAST) has offered a cash reward for the capture of a THeMIS. CAST recognizes that Russia is lagging in the development of autonomous vehicles and intends to use a captured THeMIS to speed the development of Russian technology.

An attempt to steal cutting-edge enemy technology with a cash bounty might seem a clever strategic move to exploit wartime opportunities. But it also raises questions about the legality of seizing and appropriating enemy property under international law. This post will address whether such action is lawful during armed conflict. Could a bounty and seizure be justified by the necessities of war or is it more akin to prohibited pillage? If the sole purpose of using THeMIS is medical transportation, could its seizure be justified based on the necessities of war?

To address these questions, care must be taken to distinguish two separate issues that are entangled in the bounty against THeMIS: one regarding the legality of seizing the THeMIS vehicle itself; and the other as to whether Russia can then claim ownership of the THeMIS as booty of war and steal technology used by the adversary. This distinction is crucial as it could be the case that the THeMIS is subject to lawful seizure but without the capturing party being entitled to claim ownership. This post addresses the first issue, explaining how the necessities of war and humanitarian interests in the protection of medical equipment are balanced under the law of war concerning the seizure of enemy property. A second post will then discuss whether, upon seizure, Russia could claim ownership of the property or otherwise appropriate it for research purposes.

Seizure of Enemy Property 

It has long been established that putting a price on the head of an enemy individual is treacherous and forbidden under the law of war. However, there is no equivalent prohibition for a bounty issued against enemy property. Consequently, it is problematic to assert that Russia is acting in violation of the law of war for the actions taken by CAST in issuing a bounty against THeMIS. Problems arise instead if the Russian military were to act on such a bounty by seizing the THeMIS vehicle and transferring it to CAST for research purposes.

The seizure of enemy property must be distinguished from launching an attack in warfighting. Many readers of this post may be familiar with the notion of attack, defined in Article 49(1) of Additional Protocol I to the Geneva Conventions as an act of violence against an adversary, whether in offence or in defense. It is a specific type of military operation to which various rules of targeting law apply, such as the requirements of distinction, proportionality and the duty to exercise feasible precautions in attack.

Seizure, on the other hand, is the taking of property as part of a military operation when not in contact with the enemy that does not necessarily result in destruction or damage. Professor Sean Watts and Colonel Winston Williams drew a distinction between an attack and the mere destruction of property, concluding that the latter is not regulated by targeting law. Similarly, Professor Gary Corn explained in a prior post that seizure and destruction of property are regulated distinctly under the law of war and are not subject to targeting law requirements.

The legality of seizing or destroying enemy property depends instead on whether there is an imperative demand due to the necessities of war (U.S. Department of Defense, Law of War Manual, § 5.17.2; 1907 Hague Regulations, art. 23(g); International Committee of the Red Cross (ICRC) Customary International Humanitarian Law Study, Rule 50). In principle, certain property, such as medical facilities, hospital ships, and private real or personal property in occupied territory, enjoys protection under the 1949 Geneva Conventions (GC I, arts. 19, 33 and 34; GC II, arts. 22-28, 38 and 39; GC IV, art. 53).  Absent imperative demand by the necessities of war, extensive destruction and appropriation carried out against such property could constitute a grave breach of these Conventions (GC I, art. 50; GC II, art. 51; GC IV, art. 147) and a war crime under Article 8(2)(b)(xiii) of the 1997 Rome Statute of the International Criminal Court.

Imperative demand by the necessities of war aligns closely with the concept of military necessity (U.S. Department of Defense Law of War Manual, § 5.17.2). This military necessity standard has been acknowledged since Francis Lieber adopted it in the first modern codification of the laws of war. It consists “in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war” (General Order No. 100: The Lieber Code, art. 14). Military necessity is not restricted to military demands that arise in a specific situation but encompasses the broader imperatives of winning the war as quickly and efficiently as possible (2019 Commander’s Handbook on the Law of Land Warfare § I-27; 1914 Rules of Land Warfare ¶¶ 9-11; NATO Glossary of Terms and Definitions, p. 2-M-6).

It is thus plausible to justify seizing any property located in enemy territory as enemy property regardless of its ownership, including enemy land, buildings, or means of transport for military use (U.S. Department of Defense, Law of War Manual, § 5.17.2.2). As such, it would be lawful to seize THeMIS for use in military operations, for example, by converting it into a reconnaissance vehicle. However, military necessity seems dubious if the purpose of the seizure is to steal advanced technology and produce a Russian copy of THeMIS.

In essence, the question turns on how broadly the military necessity standard could be stretched to justify a seizure under the modern condition of warfare, where new technologies are increasingly playing a critical role. Seizing a THeMIS vehicle itself does not, on its face, appear to be indispensable for securing the ends of war. On the other hand, it is conceivable that acquisition of the technology used in the vehicle could contribute to Russia’s broader goal of eventually winning the war by assisting Russia to develop a wide range of military capabilities, such as autonomous armored personnel carriers, anti-aircraft platforms, or autonomous armored vehicles. Ultimately, as will be explored in the second post, the legality of seizure for such purposes depends on whether the taking can be justified as booty of war or requisition.

Seizure of Medical Equipment

A private charitable organization is using the first THeMIS vehicle delivered to Ukraine to evacuate casualties. Future vehicles will be used for both casualty evacuation and tasks such as route clearance.  Even if the necessities of war imperatively demand seizure of THeMIS, its function as a medical transport raises the question of whether the vehicle is protected from seizure.  

Article 35 of Geneva Convention I provides:

Transports of wounded and sick or of medical equipment shall be respected and protected in the same way as mobile medical units.

Should such transports or vehicles fall into the hands of the adverse Party, they shall be subject to the laws of war, on condition that the Party to the conflict who captures them shall in all cases ensure the care of the wounded and sick they contain.

The civilian personnel and all means of transport obtained by requisition shall be subject to the general rules of international law.

This provision applies to medical transports on land used by armed forces, whether those transports belong to the armed forces or are acquired from civilians (ICRC 2016 Commentary on Geneva Convention I, para. 2418). Article 21 of Geneva Convention IV applies the same protection to medical transports used for civilian casualties. Articles 12 and 21 of  Additional Protocol I to the Geneva Conventions extend this protection to civilian medical units and vehicles when a party to the conflict recognizes the medical activity. The duty to “respect and protect” medical transports is considered binding under customary international law, whether these are used by military forces or for civilian medical activities (U.S. Department of Defense, The Joint Chiefs of Staff Review of AP I, pp. 5-6; ICRC Customary International Humanitarian Law Study, Rule 29).

Here, the duty to “respect and protect” is broader than a simple prohibition of direct attacks aimed at medical transports. It also prohibits arbitrarily obstructing passage. The U.S. interpretation of “respect and protect” supports this interpretation, stating that a medical activity must not be “unnecessarily interfered with” (§ 7.3.3 fn. 56). Similarly, Germany recognizes that the “unhampered employment” of medical service vehicles must be ensured at all times. Israel also acknowledges a duty to refrain from interference with the administration of medical aid.

According to this interpretation, the duty to “respect and protect” medical equipment prohibits Russia from seizing the THeMIS vehicle while it evacuates the wounded and sick. For example, such an engagement is prohibited when THeMIS is actively used to ferry wounded soldiers or civilians away from the location of an attack. An attempt to seize the vehicle while it is moving with wounded persons constitutes an impermissible interference with a medical evacuation.

One might argue that a seizure is not arbitrary or unnecessary if it is imperatively demanded by the necessities of war, as discussed previously. Indeed, Article 35 of Geneva Convention I notes that such transports or vehicles are subject to the laws of war upon capture when “such transports or vehicles fall into the hands of the adverse Party.” The question then turns on whether Russia could argue that the THeMIS vehicle has “fallen into their hands” when Russian forces actively search for it and deliberately interfere with its medical activity.

The U.S. Department of Defense Law of War Manual interprets this provision to mean that an adverse party may seize (military) medical transports as enemy property so long as the wounded and sick are cared for and distinctive emblems are removed (§ 7.11.2).  Likewise, Norway’s LOAC Manual permits the seizure of “medical materials like ambulances and field hospitals, subject to the condition that sick and injured enemy soldiers, and civilians, must be provided with necessary care” (§ 9.13). By acknowledging the presence of wounded persons, this condition could be seen as contemplating a situation where a medical transport is seized while actively engaged in its mission. 

However, such an interpretation appears contrary to the object and purpose of the protection accorded to medical units and transports. The term “fall into the hands of the adverse party” also appears in Article 14 of Geneva Convention I concerning the protection of the wounded and sick as prisoners of war and in Article 28, which addresses the retention of medical and religious personnel. In its 2016 Commentary on Geneva Convention I, the ICRC distinguishes these two provisions, despite their almost identical wording, in light of the obligation to search for and collect the wounded and sick under Article 15 of Geneva Convention I. The absence of such an obligation in relation to medical and religious personnel indicates the incidental nature of their capture and possible subsequent retention (para. 2163). In the same vein, it would be reasonable to conclude that the protection of medical transports is waived only when the seizure is incidental to a military operation. Like a “medical hunt,” actively searching for medical transports to capture them would be incompatible with the object of Article 35.  

Both medical transports and medical units are protected based on their function—as a component of casualty evacuation and treatment. Their seizure is only permissible when it is incidental. For example, a Russian offensive might reach an area where THeMIS is stored and not in service. Alternatively, Russia could incidentally seize a THeMIS vehicle in active use as the battle lines shift. These scenarios differ from the conduct of a military operation with the express purpose of capturing THeMIS. Based upon the bounty for Russian forces to capture THeMIS “by any means necessary,” it is likely that a Russian seizure would not be incidental but rather it would violate the law of war.

The additional fourteen THeMIS vehicles scheduled for delivery to Ukraine by the end of the year will be used for both casualty evacuation and route clearance.  It is unclear whether some vehicles will be used exclusively for medical transport and others for route clearance, or whether the THeMIS vehicles will share duties.  In the latter scenario, the protections afforded to medical transports would not apply because Article 35 requires vehicles to be assigned exclusively to the transportation of the wounded and sick or of medical equipment.

Concluding Thoughts

It is doubtful that the seizure of a THeMIS vehicle serving as a medical transport could be justified under the modern law of war. Its use as a medical transport protects it from seizure unless it is incidentally captured during a military operation. Even if there are imperative demands for seizing it due to the necessities of war, Russia would be prohibited from deliberately interfering with the medical function that THeMIS is performing while actively engaging in evacuating wounded persons.

Such vehicles, when actively engaged, provide a service that directly supports a primary purpose of the Geneva Conventions—to protect wounded soldiers and civilians. Intercepting medical transports creates a grave risk that lifesaving treatment will be interrupted or delayed. Modern military medicine has succeeded by focusing on the speed with which lifesaving care can be brought to bear. As technology continues to evolve, more advanced tools will become available to evacuate and treat soldiers on the battlefield. A greater awareness regarding the applicability of these legal protections to unmanned vehicles is thus significant.

However, the illegality of seizure itself does not resolve the question of whether, upon capture, the technology within THeMIS can be studied by Russia to improve their military capabilities. As noted above, Article 35 of Geneva Convention I provides that such transports are subject to the laws of war upon capture. This body of law refers to the rules on booty of war and requisition. In other words, the application of these rules decides whether Russia can confiscate the medical transport and treat it as their own or otherwise use it for their service should it fall into the hands of Russian troops. A subsequent post will address this issue by considering if and to what extent the law of war extends its reach to the protection of enemy technology.

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Christopher Malis is a Major in the United States Army and serves as an Assistant Professor in the Department of Law, the National Security Law Course Director, and the Executive Officer for the Lieber Institute for Law and Warfare.

Hitoshi Nasu is a Professor of Law in the Department of Law at the United States Military Academy.

Photo credit: Milrem Robotics