Privacy vs. Precaution in Future Armed Conflict

The operational demands of modern armed conflict highlight a pressing need for information, including highly private data about persons. This post examines the balance between personal privacy and armed forces’ need to identify persons with a high degree of integrity and fidelity.

A Cautionary Tale

In 2010-2011, I served in Afghanistan as an Operations officer with the Canadian Army. My job relied on intelligence collected through a variety of means including drones, surveillance balloons, audio sensors, communications intercepts, and information collected directly from Afghans, either through human connections or through biometrics. Persistent surveillance and biometric collection were critical to the coalition strategy to gain identity dominance over the enemy. In a long-standing counterinsurgency, where combatants could go months without picking up a weapon and would interact openly with coalition forces, identifying friend from foe was incredibly challenging, but necessary to the mission.

Throughout my deployment, I never thought of the privacy rights of the local population. My tour took place before widespread use of facial recognition, before everyone carried a smart phone, and before Facebook and WhatsApp took root in the region. Nevertheless, my outlook as a military operator today would be the same as it was then: give me as much information as you can get.

As a lawyer, I know now that simply by virtue of living in a State involved in an armed conflict or subject to occupation, the population does not lose protection of their universal human rights. A military commander’s need for all the information, and their duty to obtain and leverage that information to satisfy their duties under the precautionary principle cannot trump the privacy rights of an entire population.

How Do We Balance These Rights and Obligations?

Under international humanitarian law (IHL), parties to an armed conflict must comply with the precautionary principle and its derivative rules. Article 57 of 1977 Additional Protocol 1 (AP I) sets out two such provisions among a number of targeting rules. Notably, the law requires that “[i]n the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.” It states further, “those who plan or decide upon an attack shall do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects” (emphasis added).

Compliance with these rules is largely reliant on the collection, analysis, and sharing of information about potential targets, dependant on the capabilities and technical resources of a party to the conflict. In this respect, the phrase “everything feasible” is highly contextual. As Frederik Rosen writes, “due precaution may build on years of intelligence or on a sound, split-second judgment.” Although, generally speaking, “[o]nce a belligerent purchases equipment,” like drones or facial recognition technology, “and supplies it to its forces in the field, it must be used if it is available, makes good military sense and will minimize civilian impact.”

IHL also protects the right to privacy expressed in Article 46 of the 1907 Fourth Hague Convention, Article 75 of AP I, and Article 27 of the 1949 Fourth Geneva Convention (GC IV). GC IV Article 27 stipulates:

Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.… However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.

The language of GC IV is largely consistent with article 17 of the 1966 International Covenant on Civil and Political Rights and other international human rights law (IHRL) instruments that protect the right to privacy at all times. Persistent surveillance and the collection, retention, processing, and sharing of personal information by a State Party to any of these treaties trigger these provisions’ application. Crucially, however, IHRL’s protection of privacy is not absolute. Intrusions into an individual’s private life may be permitted so long as they comply with certain criteria; most importantly that they be necessary and proportionate.

During an armed conflict IHL and IHRL apply and must be interpreted in light of one another. In its Nuclear Weapons Advisory Opinion, the International Court of Justice found it appropriate to use IHL to interpret what constituted an “arbitrary deprivation of life,” as prohibited by article 6 of the ICCPR. The court determined that IHL can be used to inform our interpretation of a State’s human rights obligations during hostilities in a way that allows us to avoid conflict between the two legal regimes. As in that case, the language, structure, and purpose of the two norms (privacy and precaution) will often make it relatively easy to resolve any tension between IHL and IHRL rules.

Similarly, in an armed conflict, States must interpret the right to privacy and precautionary provisions in light of one another. This argument is sustainable because both obligations are highly contextual: what is required to satisfy privacy and precaution is not static but driven by facts and must reflect the operational environment. While this flexibility is critical to the joint application of the rules concerning precaution and privacy, we must acknowledge that in practice application could create significant uncertainty for those tasked with interpreting and applying the law. Armed conflicts are, after all, not static environments.

The conflict in Afghanistan exemplifies this point. Some characterized the early years of the war as a foreign occupation, with widespread and protracted violence between organized armed forces. That conflict evolved into a large multinational stability and counterinsurgency operation in partnership with the Afghan government and, in later years, became a counterterrorism and training mission. However, this evolution was not linear; there were times even late into the conflict when heavy fighting took place between the Taliban and coalition forces. What qualified as necessary and proportionate violations of privacy in the name of Afghan and coalition security at the outset of the conflict were vastly different from what qualified as necessary and proportionate intrusions in recent years.

Likewise, the challenges of complying with IHL, specifically the principles of distinction and precaution, varied significantly over the 20-year conflict, especially as the mission moved from sustained force-on-force fighting into targeted covert and law enforcement-like operations. Yet, it is reported that throughout the conflict, the coalition continued to collect, analyze, and use biometric data from Afghans to maintain identity dominance over the enemy, with apparently no additional consideration to the privacy rights of the country’s civilian population. This practice, I suggest, was inconsistent with IHRL.

Key Factors: Effective Control and Threat of Violence

The balance between the privacy rights of civilians and the operational necessity to leverage advanced surveillance techniques to comply with the precautionary principles is not fixed. I suggest that where that balance lies depends on two factors: (1) a State’s effective control over a population or territory; and (2) the threat and level of violence.

Both factors are routinely relied upon to determine what measures a State must undertake to meet its legal obligations under IHL and IHRL. For example, in the Targeted Killings Case, the Supreme Court of Israel held that per the State’s human rights obligations, a civilian taking direct part in hostilities should not be attacked if it is possible to use less harmful means. (A limit, the Court held, derived from the IHL principle of proportionality.) Rather, “if it is possible to arrest, interrogate and prosecute a terrorist who is taking a direct part in hostilities, these steps should be followed.” However, the Court recognized that taking less harmful measures is not always feasible. It noted that the State must consider the risk to life for soldiers and civilians and whether the military controlled the territory where the operation would take place.

What does this mean in practice? In times of sustained and intense violence, we should expect a State’s privacy obligations vis-à-vis those within its territory or effective control will be minimal and likely consistent with the limited protections afforded under IHL. Instead, the State should emphasize its obligation to collect the necessary intelligence and analysis to comply with the precautionary principles. However, as the level of control over territory increases and the threat of violence decreases, intrusions upon privacy will become less justifiable.

It would, for example, be inconsistent with IHRL to widely deploy a new surveillance capability like facial recognition technology during the height of a conflict and then continue to employ and even expand the use of that program as the nature of the conflict, and correspondingly, what privacy-invasive activities are necessary and proportionate in the face of that conflict, evolve. As a conflict moves along the spectrum of insecurity and violence, so too does a State’s privacy obligations to those subject to its jurisdiction. A State’s surveillance and biometrics programs and its operational procedures must, therefore, be capable of adapting to meet those changing obligations.

That said, we must recognize that, as in Afghanistan, the level of violence and, therefore, a State’s effective control may not only shift in a non-linear fashion across time, but also vary geographically. The complexity of that operating environment is often explained using Krulak’s concept of the “three-block war.” On one block, forces engage in traditional armed conflict; on the second, they conduct peacekeeping or stabilization operations; and on the third, they provide humanitarian aid.

For this reason, policies and procedures need to be built into the development of new intrusive surveillance capabilities before they are deployed widely in armed conflict. Those policies should reflect privacy principles, evolving data protection norms, and a State’s domestic or regional data protection obligations. At a minimum, they should address the following questions:

• • Under what circumstances may the capability be deployed, and by whom?
  • What data will the capability draw from to identify individuals?
    • How revealing or invasive is the use of those data in conjunction with the capability?
    • How will false positives and false negatives be corrected?
  • What data will be collected through the use of the capability? (E.g., name, location, date/time, associations)
    • How will that data be stored and secured, and for how long?
    • Who has access to that data?
    • For what purposes can that data be used, processed, and shared?
    • What will be done with the data once the armed conflict concludes?
  • What are the consequences for improper use of the capability or the resulting data, and procedures for reporting improper use?

Additionally, State information gathering policies must account for the fact that what IHRL requires in terms of respect for privacy will shift along the spectrum of conflict. Therefore, an appropriate way to account for fluctuating privacy obligations would be to consider what function or task the State’s forces are carrying out and set policies and procedures for capability use and data collection consistent with those activities.

Alternatively, returning to the concept of the three-block war, policies and privacy protections should reflect the “block” on which forces operate. On block one, policies on use will be the least restrictive, reflecting IHL’s targeting rules and aligning closely with IHL privacy protections. On block two, policies might look more like privacy regimes regulating domestic and foreign intelligence collection and surveillance. Finally, on block three, use might be regulated similarly to its deployment in a law enforcement context. Adapting this function-based approach is consistent with the practice of calibrating rules of engagement to the use of force for each “block.”

Ultimately, the technical capacity and policies must exist so that military commanders can appropriately modify the use of new surveillance capabilities along the spectrum of insecurity and violence. Deploying intrusive and indiscriminate technology to meet an urgent battlefield need does not absolve a State of its human rights obligations for however long an armed conflict endures.

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Dr. Leah West is an Assistant Professor of International Affairs, Norman Paterson School of International Affairs, Carleton University. Large portions of this blog are reproduced from a forthcoming chapter “Face Value: Precaution versus Privacy in Armed Conflict” in The Rights to Privacy and Data Protection in Times of Armed Conflict, edited by Asaf Lubin and Russell Buchan, and published by the NATO CCD COE. Funding for part of this research was provided by the Minerva Center for the Rule of Law under Extreme Conditions, University of Haifa.