Ukraine Symposium – The Ukraine Conflict, Smart Phones, and the LOAC of Takings

According to at least one report, in the course of their operations Russian forces entered residential complexes in the suburbs of Kyiv, displaced residents from their apartments, held them captive in basements, and seized many of their cell phones and laptops (personal digital devices or PDDs for short) under threat of summary execution. Although these deprivations may pale in comparison to the catalog of other atrocities the Russians are perpetrating—not the least of which are disturbing reports, like those coming out of Bucha, of the torture and murder of civilians—in an age of dependence on digital interconnectivity, they are worth exploring. This post focuses on the Law of Armed Conflict (LOAC) relevant to these specific takings.

In a word, the LOAC does not prohibit per se the taking of enemy property (understood to encompass all property, private or public, located in enemy territory (U.S. DoD LOW Manual § 5.17.1)), including personal movable property from civilians. As discussed further below, property seizures can be justified by military necessity. Unfortunately, the relevant LOAC rules governing such seizures are not a model of clarity, draw subtle and confusing distinctions between seizures effected in or outside of areas of occupation, and do not directly account for the unique nature and value PDDs have come to occupy in people’s daily lives or their potential use in armed conflict.

Personal Digital Devices and Daily Life

To be fair, the author is aware of only one report of Russian forces seizing PDDs from Ukrainian civilians. It is possible that this was an inaccurate report or isolated incident, and like any allegation of potential war crimes, would require investigation. However, the report is worthy of analysis both because the Russians’ record thus far of LOAC non-compliance lends credibility to it, but perhaps more importantly because of the unique importance that personal computing devices play in the modern era.

Chances are that anyone reading this post is doing so digitally over a PDD.  Today, according to some estimates, over seven billion people around the world own mobile phones—roughly 92% of the world’s population, with over six-and-a-half billion owning smart phones.  As the U.S. Supreme Court noted in Carpenter v. United States, PDDs, especially mobile phones, “and the services they provide are such a pervasive and insistent part of daily life that carrying one is indispensable to participation in modern society.” PDDs have become the primary means by which people engage in many of the most fundamental aspects of managing their daily lives—from finances to healthcare to work, education and social services—and of course the communication of and access to news and information. These devices have been described as near appendages.  Removing PDDs risks isolating people, cutting them off from critical societal functions and activities, and thus presents distinct risks to their physical and mental well-being in unique ways.

LOAC Rules Governing the Taking of PDDs

There are several specific treaty and customary international law provisions relevant to assessing the lawfulness of property takings. Takings refer to the temporary or permanent deprivation, by actual or constructive dispossession or destruction, of a rightful owner’s possessory interest in property. At one level these provisions appear straight forward.  As noted, there is no per se prohibition against taking enemy property, especially where it is “imperatively demanded by the necessities of war.” (Hague IV, art. 23(g)).

On further look, there is some devil in the details; details such as whether the taking is for the purpose of converting the property to the taking-Party’s own purposes or to deprive the enemy of its use, whether property is movable or immovable, public or private, whether the taking is permanent or temporary, involves seizure or destruction, and whether it is effected prior to or during occupation. This post walks through some of the nuances, and arguable discordance of these rules, focusing solely on takings of non-public, movable property in the form of PDDs.

Takings vice Attacks

As a starting point, the LOAC rules related to the taking of enemy property should be distinguished from the more detailed and rigorous provisions of so-called targeting law that prohibit conducting attacks, as that term is defined in Article 49 of Additional Protocol I, against any object that does not qualify as a military objective, i.e., civilian objects. As detailed in a separate Articles of War symposium, that core protection of civilians and their property does not extend to all dispossessions of property that a Party to a conflict may effect or that its operations may cause.

The better understanding, one proffered here and seemingly endorsed by the International Criminal Court Appeals Chamber in its Prosecutor v. Bosco Ntaganda  judgment, is that to qualify as an attack as defined in Article 49, a hostile action must: 1) involve violent acts directed at (i.e., have the motive of) harming the adversary, including the civilian population and civilian objects, through physical injury or destruction; and 2) be directed at persons or objects outside the dominion or control of the belligerent. Outside of these specific circumstances, one must look to other LOAC rules to assess the legality of property deprivations (or injury or death to persons) realized against civilian objects “within the power” of a Party to a conflict—that is, over which the belligerent exercises physical dominion, control, or restraint.

The basic factual circumstance of a Party exercising dominion, control or restraint over enemy persons or property should be distinguished from the legal circumstance of belligerent occupation, which involves a Party’s control over enemy territory. Occupation occurs where enemy territory “is actually placed under the authority of the hostile army.” (Hague IV, art. 42).  In general terms, it requires an invading Party to actually and effectively supplant the authority “of the legitimate government in the territory invaded.” (FM 27-10, para. 355). Such a circumstance triggers the LOAC sub-lex specialis of occupation law, which contains certain provisions specific to the issue of this post. Outside of an established circumstance of occupation, general LOAC rules regulating the conduct of hostilities govern.

General Prohibitions and the Imperative Military Necessity Exception

Although the LOAC does not prohibit all property takings, it does set a strong general presumption against the lawfulness of taking civilian property with some explicit proscriptions and limitations. Consistent with a Party’s general obligations to respect and protect civilians, including an obligation to accord them “protection against dangers arising from military operations” and to take “constant care . . . to spare” them from conflict-related harms,[1] Parties must also respect private property. Therefore, the taking of private (or public) movable property for private or personal use, defined in the LOAC as pillage or looting, is specifically and strictly prohibited during any phase of armed conflict. (1907 Hague IV Reg. arts. 28, 47; 1949 Fourth Geneva Convention (GC IV), arts. 16, 33).  As the United Kingdom’s Manual for the Law of Armed Conflict notes, “[n]othing is more subversive of military discipline than plundering or looting. Theft and robbery remain punishable crimes in peace and war.  The soldier in an enemy country must observe the same respect for civilian property as he would at home.” (para. 11.76.2).

Nor may a Party to the conflict pursue devastation or destruction of property as an end in itself. (U.S. DoD Law of War Manual 5.17.2). Property deprivations not grounded in the “strict necessities of war” are considered war crimes and may rise to the level of a grave breach where destruction and appropriation of property is extensive and carried out unlawfully and wantonly. (GC I, art. 50; GC II, art. 51; GC IV, art. 147). So, when are takings of private property sanctioned by LOAC?

Property Takings During the Conduct of Hostilities

Distinct from the prohibitions outlined above, enemy property may be seized, that is, temporarily dispossessed, or destroyed, when justified by imperative military necessity— a “long-standing rule of customary international law already recognized in the Lieber Code and the Brussels Declaration and codified in the Hague Regulations.” (International Committee of the Red Cross (ICRC) Customary International Humanitarian Law Database, Rule 50). There are two alternate bases that might establish imperative military necessity:  seizing property for the Party’s own military use; or seizing or destroying things such as war fighting or sustaining infrastructure to deprive the enemy of its use and benefit.

At the outset, there is some uncertainty regarding the exact meaning of imperative military necessity. The baseline LOAC principle of military necessity is commonly understood as justifying “the use of all measures needed to defeat the enemy as quickly and efficiently as possible that are not prohibited by the law of war.” (U.S. DoD Law of War Manual, § 2.2). With respect to property seizures or destruction, the inclusion of the modifier “imperatively” in Hague IV, article 23(g), and the consistent description of its customary international law analogue as requiring “imperative” military necessity, suggests some greater degree of need than the general standard just described.[2]  So too do descriptions in case law, such as Menzel v. List, which held that conversion of civilian property to a Party’s own use must be necessary and indispensable.

Where a belligerent already exercises control over property, subjecting seizures or non-attack destruction to a higher standard seems to make sense, especially within occupied territory where the “strict necessities of war” will likely manifest differently. Where a Party is able to exercise dominion or control, presumably it will have more options to achieve its ends, both as to whether and how to effect property seizures or destruction, than having to resort to attacking it. It can impose various control measures and manage collateral impacts differently, and as such one might expect the general principle of humanity should take on greater relative weight in relation to military imperatives.

However, this is far from clear.  “Simple” military necessity has long been understood to permit the seizure or destruction of enemy property so long as there is “some reasonable connection between” doing so “and the overcoming of enemy forces.” (U.S. DoD, Law of War Manual, § 5.17.2, citing U.S. v. List, et al. (The Hostage Case)).  And numerous military manuals describe these different articulations of the standard as in essence synonymous.

Consistent with an equivalency approach, the U.S. DoD Law of War Manual states that “if sufficient military necessity exists to justify attacking an object” because it qualifies as a military objective, it stands to reason that imperative military necessity would also exist to justify its seizure or destruction “by measures short of attack.” (§ 5.17.2.1). Nevertheless, this assertion should be approached with some caution.

It is true that the necessity to seize or destroy enemy property may overlap with the necessity to attack objects that qualify as military objectives, giving this statement some surface resonance. However, the syllogism is misleading in a number of respects and the different approaches should not be conflated.

First, the categories of property that may be subject to seizure or destruction for reasons of imperative military necessity are broader than those that may be attacked when not within a Party’s control. For example, to support its own operations a Party may seize items such as civilian buildings or means of transportation that, standing alone make no effective contribution to the enemy’s military action and therefore, among other reasons, do not qualify as military objectives stricto sensu. Second, where property qualifies as a military objective, it is by definition not (or is no longer) civilian and therefore not protected from acts of hostilities in the same way.

Precisely because a Party does not exercise dominion or control over military objectives, attacks on those objects are subject to much stricter regulation to mitigate potential collateral harms. There is no indication that destruction of property under a Party’s control, as opposed to being subject to attack, would even permit incidental harm to civilians or other civilian objects whether non-excessive or otherwise. Certainly, such non-attack deprivations do not trigger the panoply of targeting law and the obligation to ensure the proportionality of an attack. Therefore, the imperative military necessity to seize or destroy civilian property must be assessed on its own accord, taking into account the often-distinct factual circumstances of occupation or other exercises of control.

The LOAC imposes no obligation to compensate civilians for personal property seized or destroyed based on imperative military necessity, although if feasible, a record should be made of the use or damage so that the property may be returned or, “in the event of funds being provided by either belligerent” some restitution may be paid to the owner at the close of hostilities. (U.S. DoD Law of War Manual, § 5.17.5.1). Still, feasible precautions should be taken to mitigate the burdens on civilians from the property taking.

Adding yet another twist of lexicon and uncertainty, the U.S. DoD Law of War Manual (citing to FM 27-10) adds the term “appropriation” into the mix, stating that private enemy property “not susceptible to direct military use (e.g., arms, ammunition, military papers, or military equipment) may be appropriated only to the extent such taking is permissible in occupied areas.” (§ 5.17.3.1).  This seems to suggest that such property would have to be necessary to the appropriating Party’s own military operations; specifically related to its occupation duties and obligations. However, the passage does not specify whose military use the property must be susceptible to, and as discussed below, the cross-reference to occupation law is somewhat circular and does not offer much clarity.

The remaining rules relevant to taking PDDs, at least as a matter of treaty law, are specific to situations of occupation.

The Twists of Occupation Law

Regarding private property of the inhabitants of occupied territory, an occupying power assumes both rights and duties, again starting with the obligation of respect. (U.S. Army Field Manual 6-27/MCTP 11-10C, para. 6-95).  Here, the 1907 Hague Regulations add still another term to the discussion. Article 46 states simply that private property “cannot be confiscated,” which is understood to mean permanently taken, whether actually or constructively, without providing compensation. Temporary dispossession of private property, on the other hand, is permissible, at least where required for “direct use in military operations.” (U.S. DoD Law of War Manual, § 11.18.2.2). This suggests that within situations of occupation, control measures imposed on private property may only be temporary in nature and contemplate return of the property when feasible. Were it that it were so simple.

Destruction of property is obviously a permanent measure, but not outright prohibited.  Echoing article 23(g) of Hague IV, the Fourth Geneva Convention establishes a qualified prohibition against such permanent deprivations of any enemy property within occupied territory, permitting destruction when “rendered absolutely necessary by military operations.” (GC IV, art. 53).[3] According to the 1958 Commentary to GC IV, this rule may be compared with the prohibition of pillage, discussed above. (p. 301). It seems to follow that temporary deprivations, obviously less impactful than destruction, can also be justified when absolutely or imperatively demanded by the necessities of war. As for temporary dispossessions, LOAC sets certain limitations as to the scope and processes to be followed.

As a general rule, temporary takings should be made through requisitions (yes, another term). Where an occupying power requires goods or services for its maintenance or the due administration of the occupied territory (such as fuel, food, clothing, tools, vehicles, etc.), it may order the provision of such private goods and services subject to compensating the rightful owner at fair value. (Hague IV, art. 52; GC IV, art. 55). The decision to requisition must be made in good faith on the authority of the local commander, should be paid for immediately in cash where possible (or at a minimum upon issuance of a receipt), must take into account the needs of the civilian population and therefore be in proportion to available resources, and may not require civilians to take part in hostilities against their own country. (Hague IV, art. 52, GC IV, art. 55).

Certain essential items, such as foodstuffs, medical supplies, and any other “article necessary to support life” are given particular attention. (GC IV Commentary, p. 310). It is the responsibility of an occupying power to ensure the provision of these necessities to the civilians in occupied territory, and it may only requisition them for its own use if the needs of the civilian population have been accounted for. (GC IV, art. 55). Requisitions are not a valid means to deprive the enemy the use of property.

Application to Personal Digital Devices

Reports are emerging that Russian forces are experiencing severe breakdowns of communications, leading them to adopt makeshift solutions including the use of mobile phones. Under such circumstances, whether in occupation or during non-occupation hostilities, it is possible that Russian forces might have an imperative need to seize mobile phones or other PDDs to support their own communications. This would require further factual development, but on its face it seems a stretch. Converting individuals’ PDDs to military use presents likely technical (encryption, password protections, etc.) and practical challenges.

Perhaps of direct relevance to this point, 1907 Hague IV, article 53 permits the seizure of, inter alia, private movable property “adapted for the transmission of news . . . ;” items such as “cables, telephone and telegraph facilities, radio, television, telecommunications and computer networks and equipment . . . .” (U.S. DoD Law of War Manual, § 11.18.6.2; U.K. Law of Armed Conflict Manual, § 11.81.1).  Cell phones and other PDDs appear to fall squarely within this provision.  As noted in the Tallin Manual 2.0, “[t]oday, every cell phone or computer connected to the Internet is capable of transmitting news.” (Rule 149, comment 8).  The unprecedented volume of open-source information flowing out of Ukraine, in the form of Tweets, photos, IMs, videos, etc., much of which provides valuable battlefield intelligence and feeds broader internal and external influence efforts, would seem to support this view.

However, the Tallinn experts did not consider this provision as extending to PDDs, as in their opinion such an interpretation would run counter to the object and purpose of the underlying treaty provision. Instead, the Tallinn experts considered article 53’s ambit to encompass only equipment and facilities actually used by journalists and operated by the news organizations to which they belong. Further, citing to article 53, the U.S. DoD Law of War Manual states that private property susceptible to direct military use may be seized subject to providing a receipt and compensation, implying that the use must be for that of the seizing Party. (§ 11.18.6 – 11.18.6.2). If this position is correct, it implies that PDDs are not subject to seizure, at least in occupied territory. However, it is unclear whether the exclusion of PDD’s from article 53’s coverage would have any bearing on the general dictates of Hague IV, article 23(g).

In the latter case, there is certainly an argument to be made that a Party to a conflict might need to impose control measures, including possible seizures of communications devices, on the flow of information in and out of a zone of combat operations, and perhaps to a lesser degree zones of occupation. According to U.S. doctrine, “[t]he information environment is the aggregate of individuals, organizations, and systems that collect, process, disseminate, or act on information” and information operations are a standard method of influencing, disrupting, corrupting, or usurping the decision making of target audiences to support operational objectives. (U.S. Joint Publication 3-13). Imposing control measures by means of seizing PDDs suspected of being used to disseminate information harmful to one’s own operations or beneficial to the enemy’s would seem to satisfy baseline military necessity (See U.S. DoD Law of War Manual, § 11.18.3).

This would seem to be the result most consistent with military realities, State practice and opinio juris regarding LOAC takings. Notwithstanding the often confusing particularities of occupation law, where there is a bona fide need to deprive an enemy of the use and benefit of private movable property, seizure and destruction of the item or items is not prohibited so long as imperatively demanded. What is triggered in occupation are the rules against confiscating property for a Party’s own use unless doing so as and within the confines of requisitions or other means of compensation.

Conclusion

None of these rules, crafted before the digital age, addresses the seizure of PDDs or specifically accounts for the central role these devices play in modern societies. One would have to look to other LOAC takings provisions that address particular humanitarian concerns potentially raised by such seizures such as limitations on requisitioning items essential to civilian health and welfare, and more general humane treatments standards set out in Common Article 3 to the Four Geneva Conventions and article 75 of Additional Protocol I.

Nor do the rules adequately account for the interplay of the international human right of free expression, including the “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” (International Covenant on Civil and Political Rights (ICCPR), art. 19; European Convention on Human Rights (ECHR), art. 10).  Russia is bound by the ICCPR and  European Court of Human Rights decisions (2021 Georgia v. Russia (II) case) for its actions within occupied territory, and arguably with regard to Ukrainian civilians that fall within its power during the conduct of hostilities. Of course, the right of expression is not unlimited, being subject to specific security-related restrictions and possible derogation. Whether and how this right applies and interacts with LOAC takings law is beyond the scope of this post, as is the problem of enforcement Marko Milanovic addressed here.

Given the isolated nature of the report of PDD seizures and the limited facts available, let alone the somewhat convoluted set of LOAC rules regulating them, it is difficult to conclude that they were not justified by imperative military necessity. However, given the Russians track record thus far, color me skeptical.

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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.

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Footnotes

[1] These obligations are set out in Additional Protocol I, articles 51 and 57, which Russia is bound by.  According to the U.S. DoD Law of War Manual, “[a]lthough [the constant care] obligation is susceptible to a range of interpretations, Parties to AP I may also interpret it in a manner that is consistent with the discussion in” section 5.2: Overview of Rules for the Protection of Civilians.

[2] See, e.g. Dictionary.com, defining the adjective imperative as something that is absolutely necessary or required; unavoidable.

[3] Again, introduction of the term “absolutely” might suggest another standard of military necessity, but as laid out in the commentary to article 53, “the occupying forces may . . . undertake the total or partial destruction of certain private or public property in the occupied territory when imperative military requirements so demand.” (Commentary of 1958, at 302).

Photo credit: Piqsels