Sarthak Kumar is a student of National University of Study and Research in Law, Ranchi
Introduction
We live in a digital world, where every human being is connected to another not by letters but rather by a series of 0s and 1s. War is inevitable, something that finds justification in the very curation of laws governing war rather than avoiding it. The pertinent question is, “Why are there rules to war and why do they exist?” The simple answer to this is that these rules are not created for the actual warring powers but rather for the civilians who are exploited.
Today is a world of data wars. The times have come where the country with the most intel will have the greatest impact and political sway. The seeds of this were sown during the cold war where there was a race to create weapons that functioned upon data with prejudice to conventional weaponry. This data, now popularly known as big data poses a much greater risk to the lives of civilians and threatens the very basic tenets of International Humanitarian Law (Hereinafter ‘IHL’). An example of this is the Afghanistan war and how it uprooted the lives of civilians who supported the American regime.
Therefore, this blog seeks to explore the various speculative policies with reference to international law and relevant humanitarian law and how they may be incorporated into the mainstream by assessing the various affiliations of big data in the fields of modern warfare and civilian relations.
How is Big Data affecting civilians during wartime?
Big data is generated via a collection of information from civilians on a monumental scale. This data is very useful to militaries as it enhances their capabilities when it comes to fighting wars. For example: If there is a city where conflict has arisen the use of big data can ensure that the military has apt intel to differentiate friend from foe. This massively reduces accidental civil casualties.
However, the same has a negative effect as seen in the aftermath of the Afghan war where the data of thousands of Afghans was compromised by the hasty exit of the west. This was mostly unsuccessful and led to the death of many civilians, largely violating the IHL. Recently in Afghanistan, hundreds of informants working for the U.S. were either forced to go into hiding, deport or were executed. This was due to the leakage of American big data of these informants. The data was so intimate that it could predict every single movement of these agents.
This is the core of the problem. During the occupation, nations collect large amounts of data on the natives under the guise of protection. Alternatively, the data collected by the local government is seized. This data is then used by the agencies to root out spies and resistance. This violates the privacy of the citizens whose private data is compromised. The local guidelines are not followed under the guise of war. This was seen in how the guidelines by the Department of Justice were ignored in the Afghanistan war and thousands of families were executed.
This unsecured data is a big threat and if left unmet with proper administrative bergs the globe may end up in a new world war where the prime targets are civilian individuals who are exploited. Therefore, there is a need for the creation of new internationally accepted policies and laws that regulate big data during wartime.
What has already been done?
- International Humanitarian Law
Simply put, the world has remained speculative about the damages taken from this problem. Some actions such as the proactive behaviour of the international council of red cross (Hereinafter ‘ICRC’) and IHL where they have tried to explore a more human-centric approach towards the development of big data and AI war tactics. It is suggested that any operative that gives way to the autonomous processing of big personal data should be supervised by a human. This has found validity in Article 36 of additional protocol 1 of the Geneva Convention. However, it must be noted that this is only a cursory relation, one found via extensive stretching of the legal principles enshrined within the treaty itself.
Therefore, it is to be understood that modern-day law such as the GDPR or the new DPDP Act only evaluate privacy at an individual and commercial level. The unforeseeable damages that war may cause to these “individual rights” remain aloof of these regulations.
- International Human Rights Law
It is to be understood that ICCPR gives people certain rights internationally. One of these is the “right to privacy” as enshrined under Article 17 ICCPR However, an international fundamental right fails to find any legal validity in the current scenario. The IHL and the IHRL both have failed to incorporate data privacy and the right of an individual to be left alone within their ambits. This has happened despite the same rights being given high regard in commercial and individual spheres around the globe by the UN.
- Universal Declaration of Human Rights and its blatant ignorance
Article 12 of UDHR clearly states that no person shall be subjected to unnecessary interference with his privacy. As mentioned above the IHRL and IHL (Article 36) indirectly advocate for privacy and control over big data in war. This shows that international law stands firmly in favour of introducing a humanitarian law that protects people’s personal privacies during the war. Therefore, this need for a new law originates in the old tenets themselves.
Analysis
The world needs a novel view regarding the privacy of an individual. The entire right itself basses itself off on the simple fact that every person has a right to live their lives independently and with honour. This is true even of the Indian version of the right as it originates from Article 21. In view of the same, it is imperative, that during the time of war a person’s personal information, must be protected and their privacy upheld similarly to their right to liberty.
Furthermore, as stated above Article 17 ICCPR and Article 12 of UDHR, find consonance with a right to privacy that remains undiluted even through times of war.
- Introduction of a new international law
Considering the above it seems adequate to suggest some fundamental yet incorporative changes within the previously established tenets of International Human Rights law and IHL. Firstly, it is suggested that A.12 of the UDHR be amended to incorporate the phrase “both during peace and wartime” to keep in line with the “Universality” of the charter of rights. Secondly, considering that most countries employ emergency procedures during wartime, it must be made clear that unless directly a threat, human rights cannot be suspended in interest of humanitarian goals that are paramount during war time.
Lastly, all nations that signed UDHR must form an international committee which looks after and resolves violations of human rights in terms of data privacy in collaboration with ICRC, IHL and UNHRC. The chairman ship of the same should not be limited to just the developed countries but should be extended to all signatories, where each country becomes the chairperson for duration of a year.
Conclusion
Considering all the above facts and opinions it may be concluded that original human rights have become archaic. Therefore, it is high time that these conventions and laws be revitalised to incorporate and protect the digital rights of a digital citizen.