One of Ukraine’s responses to the Russian invasion was to add a new function to the Diia app – a government app originally intended as a digital ID card. But adding a new feature to it has created a legal conundrum …
The Diia app
Ukraine has been at the forefront of government digitalization. The country became the first one in the world to allow a digital ID on a smartphone to be universally accepted as an alternative to a paper one. The Diia app can serve as a legally-recognized document for:
- ID card
- Foreign passport
- Student card
- Driving licence
- Vehicle registration document
- Vehicle insurance certificate
- Tax identity
- Birth certificate
- IdP certificate (identity-management system)
The Diia app also provides access to over 70 government services, allowing citizens to do things like register as self-employed within the app in just 15 minutes.
After Russia invaded the country, the Ukraine government added new features to the app, including electronic air-raid alerts.
But it’s a second feature which is creating a potential legal mess. The Diia app includes an e-Enemy feature, which allows Ukraine citizens to report Russian troop movements. This data can then assist the Ukraine army in planning its responses.
But Wired reports that, in international law, the app could potentially be considered a weapon of war, making civilians who use the feature a legitimate target for Russian soldiers.
Technically speaking, as soon as a user in a war zone picks up a smartphone to assist the army, both the technology and the individual could be considered sensors, or nodes, in the practice known as ISR—intelligence, surveillance, and reconnaissance. Inviting citizens to become a potential element in a military system, as the e-Enemy feature does, might blur the lines between civilian and combatant activity.
The principle of distinction between the two roles is a critical cornerstone of international humanitarian law—the law of armed conflict, codified by decades of customs and laws such as the Geneva Conventions. Those considered civilians and civilian targets are not to be attacked by military forces; as they are not combatants, they should be spared. At the same time, they also should not act as combatants—if they do, they may lose this status.
The conundrum, then, is how to classify a civilian who, with the use of their smartphone, potentially becomes an active participant in a military sensor system. (To be clear, solely having the app installed is not sufficient to lose the protected status. What matters is actual usage.)
This might seem something of an academic matter, as there is plenty of evidence of Russian forces illegally targeting and killing civilians without any regard to the Geneva Convention; whether or not they use the e-Enemy function of the Diia app would seem to make little or no difference to the risk they run.
But the issue could have legal consequences once the war is over. It could, for example, determine whether or not soldiers can be successfully prosecuted for war crimes.
There are also concerns about the precedent it may set.
While it is clear that Ukraine faces an existential threat, and it must be expected to do everything possible with the resources it has at hand, its activities now could influence future models of conduct, and after some time, these could become global norms. The precedents set now may have consequences for future armed conflicts […]
It may be unwise to contribute to the legitimization of the view that international laws governing wartime behavior are irrelevant. This could potentially lead to the future brutalization of the war on an even greater scale.
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