The Rights to Privacy and Data Protection Under International Humanitarian Law and Human Rights Law

Abstract

A review of the roles that the rights to privacy and data protection play in regulating wartime military operations is long overdue. Literature exploring the use of digital technologies during armed conflict has centered mostly on either the development of lethal autonomous weapon systems or on various techniques in cyber and information warfare. Far more limited attention has been given to other more mundane technologies which wartime deployment could have significant privacy and data protection infringing effects. Indeed the rights did not find any explicit mention, let alone specific protection, in either the Hague Regulations of 1899 and 1907, the Geneva Conventions of 1949, or the Additional Protocols of 1977. Unsurprisingly, the International Committee of the Red Cross (ICRC) Customary IHL database also excludes any real mention of privacy or data protection within the 161 rules it identifies as constituting the common core of humanitarian law binding on all parties to all armed conflicts today.

This chapter in an upcoming second edition of the Research Handbook on Human Rights and Humanitarian Law explores three such case studies: (1) data protection obligations triggered by the monitoring of the civilian population in the occupied territories; (2) the restrictions imposed on wartime SIGINT collection for launching military operations; and (3) the obligations imposed on international organizations and criminal courts in the collection of digital evidence for jus post bellum investigations and fact-finding missions. These three cases were selected as they target three different obligation holders: a belligerent occupier, a targeting commander, and post factum investigator or prosecutor. In reviewing these case studies, the chapter explores the normative foundation and scope of application of the rights to privacy and data protection in IHL.

The chapter proceeds in the following order. Section II discusses the nature and scope of the rights to informational privacy and data protection under HRL. Section III examines the application of these rights during armed conflict, under the existing theoretical doctrines surrounding the concurrent application of HRL. This section argues that regardless of which specific doctrine one adopts, the rights to privacy and data protection must be read into our contemporary understanding of IHL. Section IV then moves to discuss the specific application of these rights in each of the three case studies. Section V concludes.

Keywords: Privacy, Data Protection, International Human Rights Law, International Humanitarian Law, Belligerent Occupation, Intelligence Studies, Geneva Conventions, Facial Recognition, Biometric Data, Signal Intelligence, International Criminal Court

JEL Classification: F50, F51, F52, F53, F59, K10, K19, K30, K33, K39, O33