BATTLEFIELD DIGITAL FORENSICS

10 Chain of Custody
Kris van der Meij and Mario Huis in ‘t veld
10.1 Legal Framework for Operations
The jus ad bellum recognises three generally accepted legal bases for the use of force by states:
1. The right to individual or collective self-defence, recognised in Article 51 of the UN Charter.
2. Authorisation by the UN Security Council based on the UN Charter (Chapter VI or VII).
3. An invitation from the host nation.
The legal framework that applies during deployment can differ for each operation, and even sometimes for
different areas or phases of the same operation.
International Humanitarian Law (hereinafter IHL), jus in bello, as set forth in (inter alia) the Geneva Conventions
and the associated Additional Protocols, governs conduct during armed conflicts, including SOF operations in
that context. IHL only applies officially (‘de jure’) in situations of ‘armed conflict’, however, even when IHL does
not apply officially, the majority of nations, including the NATO member states, apply the protective provisions
of IHL in their policy as a safety margin for all military operations carried out by the armed forces. Next to IHL,
International Human Rights Law (IHRL) applies 59 at all times and also during an armed conflict [50]. Neither are
not limited by territory, they will apply wherever military operations are executed. [50]
Rules of Engagement (ROE) are rules or directives to military forces (including individuals) that define the
circumstances, conditions, degree, and manner in which the use of force, or actions which might be construed
as provocative, may be applied [52]. They provide authorisation for and/or limits on, among other things, the
use of force, the positioning and posturing of forces, and the employment of certain specific capabilities. In
some nations, ROE have the status of guidance for military forces; in other nations, ROE are lawful commands
[53]. ROE are dependent on the mandate or legal basis for the operation. On the basis of national policy or
national law, a state may impose restrictions on the agreed ROE and issue such restrictions to the deployed
forces as supplementary instructions.
Troops will be deployed under a Status of Forces Agreement (SOFA), an agreement between states that
generally establishes the legal framework under which military personnel operate in a foreign country. A
Memorandum of Understanding (MOU) between the sending state and the host nation may contain additional
agreements or guidelines on competence of troops in law enforcement operations.
10.2 SOF Operations
Operations, including SOF operations, will be executed in different circumstances, from relatively low-intensity
peace support operations to combat operations. In most SOF operations, the available time for execution will
be limited. In all circumstances, operations will be executed within the legal boundaries set by the applicable
international and national law and reflected in the ROE.
Operators will be confronted with digital equipment, whether during a general operation or during a specific
operation to collect information or evidence.
A. If the operation is executed to support criminal proceedings, the focus will be on the arrest of
individuals and the collection of evidence for criminal cases in national or international courts. The
59 Scholars and practitioners are not able to agree on how it applies [51].
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