Ukraine Symposium – The THeMIS Bounty Part II: Stealing Enemy Technology

In Part I of this post, we considered whether the seizure of the Tracked Hybrid Modular Infantry System (THeMIS) by Russian troops on the battlefield of Ukraine, acting on a bounty issued by Russia’s Centre for Analysis of Strategies and Technologies (CAST), could be justified under the law of war. We concluded that THeMIS is protected from seizure during active use as a medical transport unless it is incidentally captured during a military operation.

Ordinarily, belligerents might execute a battlefield seizure in order to obtain a near-term military advantage.  However, due to the strategic and tactical benefits that technological advantages offer, belligerents are likely to find that the autonomous technologies of an unmanned system, such as video tracking systems and multi-sensor intelligence gathering capabilities, are far more valuable than the ground vehicle itself. While the fact that technology is useful for military purposes is not itself relevant to the law, it introduces a different motive for seizure, that is, replication or dissemination to private technology sectors rather than for direct military use.

This calls into question whether the law of war extends its reach to the protection of technology held by an enemy State and its civilians. The significance of this issue is obvious when States increasingly safeguard advanced technologies and protest the theft of intellectual property in peacetime. The Russian government has issued a decree allowing Russian businesses to use the intellectual property rights from “unfriendly countries” without paying compensation. And while numerous prosecutions have been brought against entities tied to the People’s Republic of China for intellectual property theft, these acts might become lawful once an international armed conflict is triggered.

As we emphasized in our previous post, the rules of seizure under the law of war do not necessarily give rise to an entitlement to enemy property or the right to acquire its ownership. Rather, the question turns on whether the property, including the technology as an integral part, can be claimed as “booty of war” or is subject to requisition, meaning an official order laying claim to the use of property. If neither of these can justify the taking, it would be prohibited as pillage. This post explains how these rules operate for the appropriation of THeMIS vehicles in Ukraine and the technology within them under the law of war. Any legal issues and implications associated with intellectual property rights protected under national law are beyond the scope of this post.

Booty of War

There is a long tradition of “war booty,” allowing belligerent parties to claim any movable public property they seize on the battlefield as their own property. When it is claimed as a booty of war, the transfer of title over the property is automatic and, unlike prize claims against merchant vessels, does not require adjudication for the transfer of title (Dinstein, pp. 323-34). Although there is a view that States should abandon this practice altogether, both Russia and Ukraine are justified in collecting and using weapons and military equipment left behind by opposing forces after withdrawal from the battlefield.

However, the modern law of war remains unsettled when it comes to taking ownership of movable private property after it is captured on the battlefield. Thus, views might be divided as to whether the THeMIS vehicle, once seized on the battlefield, can be claimed as booty of war where the title vests in the capturing state, considering that the unmanned vehicle belongs to a charitable organization, rather than the Ukrainian government.

According to the U.S. Department of Defense Law of War Manual, war booty can be claimed against any movable public property that belongs to an enemy State or an agency of that State, excluding private property on the battlefield. However, the U.S. position makes an exception when the private property is susceptible to “direct military use, i.e., it is necessary and indispensable for the conduct of war” (§ 5.17.3).  This category expressly includes means of transportation, such as THeMIS.  For Denmark, whether the seized equipment is used in military operations is determinative, rather than who owns it (p. 408). It is therefore plausible to claim a THeMIS vehicle as booty of war if an adversary uses it directly to conduct military operations. In Al Nawar v. Ministry of Defense, Judge Shamgar of the Israeli High Court went further by broadly labeling as war booty all private property “actually used for hostile purposes (or which may be useful for hostile purposes)” (emphasis added).

On the other hand, Australia (§ 7.45), Canada (§ 622), New Zealand (§ 8.10.36), and Norway (§§ 9.13, 9.40) restrict booty of war to enemy movable public property captured or found on a battlefield. According to this position, THeMIS, as private property, does not become booty of war and therefore the property rights over it do not automatically transfer to the capturing force, even if there is a potential for military application.

Under either view, booty of war, when its seizure is justified by military necessity, belongs to the capturing State and does not become the property of private individuals or entities (U.S. Department of Defense, Law of War Manual, § 5.17.3.2). If individual soldiers seize a THeMIS vehicle for private use or personal gain (including the financial gain that the bounty promises), the conduct is prohibited as pillage (1907 Hague Regulations, art. 47; 1949 GC IV, art. 33; U.S. Department of Defense, Law of War Manual, § 5.17.4.1). It is the same as stealing, which is an offense even in wartime (UK LOAC Manual, § 15.23.1). Pillage is punishable under military law or general criminal law in numerous countries. It is widely considered to be prohibited under customary international law (ICRC Customary International Humanitarian Law Study, Rule 52) and constitutes a war crime under Article 8(2)(b)(xvi) of the Rome Statute of the International Criminal Court.

In the medieval age, pillage served as a form of compensation for private armies, but this practice came to an end as a result of the widespread adoption of standing armies at the end of the 18th century (U.S. Department of Defense, Law of War Manual, §5.17.4.2; 2019 Commander’s Handbook on the Law of Land Warfare § 2-197). The prohibition of pillage is general in scope. As the International Committee of the Red Cross notes, it encompasses both individual acts of pillage and organized pillage, requiring States to prohibit the ordering as well as the authorization of pillage (p. 226).

Russian forces could find and exploit a legal loophole by orchestrating a seizure, condemning THeMIS as booty of war for direct military use, and then passing it on to CAST for study and replication. Once ownership is acquired as booty of war, the ultimate disposition of the property is a matter reserved for the domestic law of the capturing State (p. 499).

Such conduct appears to run contrary to the spirit of the pillage rule since belligerent parties must not permit acts of pillage (Eritrea-Ethiopia Claims Commission Partial Award, para. 36) and are even required to prevent and stop such acts (German LOAC Manual, § 911; Armed Activities in the Congo, para. 246). This obligation, by implication, means that Russian forces must not act on behalf of CAST in seizing a THeMIS vehicle nor permit CAST to take ownership of the system for private research. However, existing law is not strict enough to prohibit belligerent parties from transferring the ownership of legitimate booty of war to private entities.

Requisition

In cases where a THeMIS vehicle is captured in areas under Russian occupation, requisition offers an alternative legal basis for justifying its use. Under the law of belligerent occupation, private property may be seized and appropriated as long as a receipt is given or compensation paid for the service rendered (1907 Hague Regulations, art. 52). This includes means of transport that belong to private individuals (1907 Hague Regulations, art. 53(2)). In other words, even if the private property is not susceptible to direct military use, belligerent parties may appropriate it on the condition that receipts are given and compensation paid (U.S. Department of Defense, Law of War Manual, § 5.17.3.1; New Zealand LOAC Manual, § 8.10.37). This practice is well established and has been affirmed by the judiciary in numerous countries (pp. 498-99).

In the absence of such receipt and payment, the appropriation of a THeMIS vehicle would be deemed unlawful. However, the fact that THeMIS is an unmanned vehicle presents a novel situation in which the capturing force might be unable to communicate with, or hand a receipt to, the person who owns the vehicle. The lack of human presence at the time when the unmanned vehicle is seized may pose practical difficulties in effecting requisitions. The taking of food, for example, is considered lawful if no time is available for ordinary requisitions or if the local inhabitants have fled so that ordinary requisitions are unavailable (2019 Commander’s Handbook on the Law of Land Warfare § 2-197). A similar argument could be made in relation to the THeMIS vehicle, namely that ordinary requisitions were unavailable due to the absence of a human controller in the area.

However, requisitions are justified only “for the needs of the army of occupation” (1907 Hague Regulations, art. 52). Considering that CAST is not a component of the Russian armed forces, it would be illegal to requisition THeMIS on behalf of CAST (Krupp trial, p. 1344).

Requisition also falls short of transferring ownership of the unmanned technology (Dinstein, pp. 243-54). There is a general obligation to respect private property and, as such, requisition must not result in the confiscation of private property by claiming ownership over it (1907 Hague Regulations, art. 46; German Manual, para. 554). This rule does not distinguish between the confiscation of physical property and spoilation resulting from the acquisition of intangible property, such as stock ownership (I.G. Farben Trial, p. 1133). In light of the general obligation to respect private property, this prohibition reasonably extends to the protection of technology integral to the construction and operation of THeMIS.

Requisition of Medical Equipment

As in the previous post with respect to the legality of seizure, we must consider whether THeMIS is legally protected from requisition when it performs a medical transport function. The third paragraph of Article 35 of Geneva Convention I reads, “The civilian personnel and all means of transport obtained by requisition shall be subject to the general rules of international law.” This provision suggests that medical transports are subject to requisition by the adverse party if seized in occupied territory (ICRC 2016 Commentary on Geneva Convention I, para. 2420).

Article 14 of Additional Protocol I to the Geneva Conventions, to which both Russia and Ukraine are parties, prohibits the requisition of civilian medical units, their equipment, matériel or services, as long as these resources are necessary for the medical care of the civilian population. Yet this prohibition does not extend to medical vehicles, which are treated separately under Article 21 of Additional Protocol I. The latter provision requires medical vehicles to be respected and protected but otherwise does not prohibit their requisition when seized in occupied territory as long as local medical activities are not unnecessarily interfered with (U.S. Department of Defense, Law of War Manual, §7.3.3 fn. 56; Chad Instructor’s Manual 2006, p. 88).

Nevertheless, the fact that one THeMIS vehicle presently in Ukraine was provided to an unspecified Ukrainian charitable organization is a relevant consideration. Under Article 34 of Geneva Convention I, the right of requisition recognized under the law of belligerent occupation may not be exercised against the property of aid societies except in case of urgent necessity. This restriction applies not only to medical units and establishments, but also to the medical transports used by such societies (ICRC 2016 Commentary on Geneva Convention I, para. 2343).

If this charitable organization is duly recognized as an aid society by Ukraine and authorized to render assistance to medical service, THeMIS would be protected against enemy requisition unless there is an urgent necessity for its use. In other words, when the medical transport used by a charitable organization is requisitioned to meet the urgent necessities of war, its legitimate use is limited to the care of wounded and sick military personnel (ICRC 2016 Commentary on Geneva Convention I, para. 2350). Thus, it would be impermissible for Russia to requisition a THeMIS vehicle for research purposes when it is seized in occupied territory.

Concluding Thoughts

The taking of the THeMIS vehicle by Russian troops, when they are acting on the bounty issued by CAST, is likely to be considered as pillage to the extent that individual soldiers conduct the seizure for personal gain. If captured in occupied territory, it is plausible to justify the seizure as requisition for the care of the wounded and sick or other urgent use out of military necessity. However, requisition cannot justify the use of THeMIS for research purposes as it is protected as the private property of an aid organization.

Advanced technology itself is not otherwise legally protected and can be claimed as war booty on the grounds that it is susceptible to direct military use (if the seizing State adopts such a position) or, if seized in occupied territory, can be requisitioned upon the provision of a receipt and appropriate compensation. Private companies may therefore feel constrained to deploy such unmanned vehicles in medical-only configurations for fear that their advanced technology could be stolen to the advantage of the adverse party. The limited protection afforded under the modern law of war increases the risks that advanced technology will become the prime target of seizure and appropriation during an armed conflict.

***

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