Published in July 2018.
This module is a resource for lecturers
Privacy and intelligence gathering in situations of armed conflict
Issues relating to intelligence gathering methods as well as privacy can also arise in situations of armed conflict. In this context, a principle role that intelligence gathering can play is regarding the identification of military targets. As was explained in Module 6 on armed conflict/military approaches, a key principle of international humanitarian law (IHL) is distinction ( Additional Protocol to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1977, article 48).
The rule of target verification is designed to enable those who plan or execute an attack to comply with the principle of distinction. It obligates the relevant individuals to do everything "feasible" to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection (Additional Protocol I to the Geneva Conventions, article 57 (2)(a)(i)). The rule envisages attackers using intelligence gathering, surveillance and reconnaissance resources to identify the character of the proposed target in order to ensure that they only attack lawful military targets. This rule too binds parties to the conflict in both international (IAC) and non-international (NIAC) armed conflicts (Henckaerts, and Doswald-Beck, 2005, pp. 3-4).
Moreover, parties to the conflict collect intelligence in order to be in a position to comply with the principle of proportionality. The rule prohibits attacks "which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated" (emphasis added) (Additional Protocol I, articles 51 (5)(b), 57(2)(a)(iii) and 57(2)(b)) from the attack; it does not per se prohibit collateral damage which is often a feature of armed conflict. The principle of proportionality requires the attacker to balance the military value of the destruction, neutralization or capture of the target and the incidental harm which the attack is expected to inflict onto civilians and civilian objects. Through collecting intelligence, those who plan an attack determine whether there are civilians and civilian buildings near the target as well as what scale of harm the attack is likely to cause to civilians. States have not disclosed how they determine the value commanders should attach to military gains and humanitarian loss when applying the principle of proportionality. The rule is binding in both IACs and NIACs (Henckaerts, and Doswald-Beck, 2005, p. 46).
IHL does not directly address the fact that efforts to gather intelligence may lead to parties to the conflict to interfere with the privacy of individuals, for instance in the selection of any persons or groups as potential targets for military action. International law gives little attention to the issue of the protection of privacy during armed conflict, particularly when they are engaged on information gathering missions. For instance, drones have an ability to hover over an area for hours and to transmit video footage of the events on the ground. They are equipped with specialist equipment to facilitate the ability of the user to pick out military targets. Instead, the preoccupation of IHL is on protecting the right to life through preventing the erroneous targeting of individuals not taking a direct part in hostilities (Hayden, 2016) and the violent nature of armed conflicts leads to a situation where the interest of protecting privacy is subordinated to other interests.
States use a variety of technologies to conduct surveillance during armed conflict which it would have been unlawful for them to employ without a court order during peacetime. States have used signals generated by telephone communications to map the network of contacts with whom an individual is affiliated (Clark, 2016). Another practice has been to pay informants to plant locator chips in houses, (Ward, 2013), on the clothing and inside the telephones of individuals. The chips emitted infrared light and could be detected through night vision equipment. The drones can easily detect these signals (Rawnsley and Shahtman, 2011). The primary focus of IHL on accurate target identification reflects the fact that the international community treats erroneous targeting, such as any deliberate attack against civilians, as a serious crime, but not any accompanying intrusions upon privacy. This is reflected also in parallel obligations under international criminal law. Whilst this provides for criminal accountability for individuals who target civilians either intentionally or recklessly ( Rome Statute articles 8(2)(b)(i) and 8(2)(e)(i)) in an IAC or NIAC, ( Prosecutor v. Dusko Tadić, 1995, paras. 84 and 91), which is considered to constitute a war crime, it pays little attention to the enjoyment of privacy.
One other matter should be noted regarded the increasing reliance upon drones, which raises other human rights concerns, namely their psychological impact. For example, doctors based in countries where drones are used more extensively have suggested that psychological consequences - such as the development of post-traumatic stress disorder - for civilians can result due to such factors as uncertainty as to if or when a missile might be fired (Slalama, 2014; Al Jazeera, 2015). In response, some non-governmental organizations and scholars have tried to reinterpret existing rules of international humanitarian law to address issues of mental trauma attributable to especially intensive or intrusive surveillance. That said, many of the identified symptoms are not confined to, for instance, drone surveillance, but are common features of any armed conflict situation, raising wider issues as to whether or not IHL should cover mental as well as physical harm (see further Module 6).