Zwanenburg, M.

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UvA-DARE is a service provided by the library of the University of Amsterdam (https://dare.uva.nl)UvA-DARE (Digital Academic Repository)Biometrics and International Humanitarian LawZwanenburg, M.Publication date2021Document VersionFinal published versionLink to publicationCitation for published version (APA):Zwanenburg, M. (Author). (2021). Biometrics and International Humanitarian Law. Webpublication or website, Articles of War - Lieber Institute.https://lieber.westpoint.edu/biometrics-international-humanitarian-law/General rightsIt is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s)and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an opencontent license (like Creative Commons).Disclaimer/Complaints regulationsIf you believe that digital publication of certain material infringes any of your rights or (privacy) interests, pleaselet the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the materialinaccessible and/or remove it from the website. Please Ask the Library: https://uba.uva.nl/en/contact, or a letterto: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. Youwill be contacted as soon as possible.Download date:28 Nov 20231/5October 28, 2021Biometrics and International Humanitarian Lawlieber.westpoint.edu/biometrics-international-humanitarian-lawby Marten Zwanenburg | Oct 28, 2021In August 2021, reporting emerged that biometric devices used by United States armedforces in Afghanistan had fallen into the hands of the Taliban. This raised immediateconcerns that the devices and the data they give access to might be used by the Taliban forsocial control and to identify persons who worked with international forces and punish them.Beyond these immediate concerns, the reporting highlighted the increasing use of biometrictechnology in military operations. Such use has so far not received much attention outside ofcertain military circles. This is also the case for the legal framework that regulates such use.During armed conflict, that legal framework consists mainly of International HumanitarianLaw (IHL). IHL potentially has important consequences for whether and how biometrics maybe used during armed conflict.This article will provide a brief overview of the relationship between IHL and biometrics. It willfirst explain what biometrics is, as well as the potential use of biometrics in various activitiesundertaken during an armed conflict. It will then focus on two of those activities, namely2/5targeting and the capture and detention of Prisoners of War (POW). The discussion in thisarticle is based on an article that was recently published in International Law Studies, whichdiscussed the application of IHL to the use of biometrics in more detail.Overview of Biometrics“Biometrics” or “biometric recognition” is defined as the automated recognition of individualsbased on their biological and behavioral characteristics. It uses the physical, physiological, orbehavioral characteristics of individuals to recognize them. Examples of such characteristicsare face topography, hand topography, finger topography, iris structure, vein structure of thehand, voice, gait, and DNA. These characteristics are unique to individuals, which makesthem very suitable for recognizing persons.Broadly speaking, a biometric system can be used for two purposes: verification andidentification. Verification refers to validating a person’s identity by comparing capturedbiometric data with a person’s own biometric template(s) stored in a database.  This is a one-to-one process, which determines whether the person concerned is who he or she claims tobe. Identification refers to recognizing an individual by searching the templates of all theusers in a database for a match. Identification is a one-to-many comparison to establish anindividual’ s identity, without the person concerned having to claim an identity.Military Use of BiometricsBiometrics has many potential military applications. Many of these applications are relevantto situations of armed conflict, in which IHL applies. Examples are verification of the identityof persons who wish to gain access to military facilities, identifying the dead, identifyingpersons in the context of targeting, and identifying captured persons. The remainder of thisarticle will look at the last two uses in more detail.TargetingThe use of biometrics to aid in targeting during armed conflict is certainly not common, but itis an application which appears to be developing quickly. Because targeting involving theuse of biometrics must conform to the rules applicable to the conduct of hostilities, principlessuch as distinction and precautions must be respected.The use of biometrics may facilitate the observance of distinction by helping to identifyindividuals on the battlefield. While the technology is unable to determine the status ofpersons under IHL as such, it can contribute to confirming the identity of persons. Indirectly,this could lead to establishing the status of various individuals under IHL. For example,remote biometrics could use gait or facial recognition to establish that a particular person is acommander of an organized armed group.3/5When using biometrics to support targeting, it is important to remember that the technologyis not infallible and that characteristics that could typically be used for remote use, such asfacial recognition and gait, are reported to be relatively indistinctive. Therefore, reliance onthis technology alone may not be sufficient to ensure respect for the principle of distinction.The less reliable the technology is under the circumstances, the less certain the accuracy ofthe identification becomes. And as the certainty of the identification decreases, the likelihoodthat the threshold of doubt described in Article 50 of Additional Protocol I (AP I) can beovercome will decrease as well. That article provides that in case of doubt whether a personis a civilian, that person shall be considered to be a civilian. Although this rule does notappear to have the status of customary law, it is binding for those States that are parties toAP I.The principle of precautions requires that constant care shall be taken to spare the civilianpopulation, civilians, and civilian objects. Article 57, AP I contains a number of specificmeasures that must be taken to this end. The first of these is the obligation for those whoplan or decide upon an attack to do everything feasible to verify that the objective to beattacked is not a civilian or a civilian object.The word “feasible” is not defined in AP I but is generally understood to mean that which ispracticable or practically possible, taking into account all circumstances prevailing at thetime, including humanitarian and military considerations. Doing everything reasonablyfeasible must be understood to also require making a reasonable effort to discover pertinentinformation. It has been suggested that this would definitely include obtaining all thereasonably available biometric data in order to verify that the intended human objective is infact a lawful target. This of course presupposes that the armed forces doing the targetinghave already undertaken biometric enrollment of persons in the area of operations. Withoutsuch enrollment, obtaining biometric data of the intended target would be of no use becausethis data could not be compared to other data. It also presupposes that the armed forcesconcerned are able to capture biometric data from a distance.Capture and Detention of POWsAnother potential application of biometrics is in the context of capture and detention ofPrisoners of War (POW). The Geneva Conventions contain requirements concerning theregistration of persons who have been taken POW. Article 122 of Geneva Convention III (GCIII) requires a Party to an armed conflict to establish an Information Bureau for Prisoners ofWar and to provide this bureau with certain information concerning the POW.Although it is obvious that the collection of biometric data may contribute to the purposeunderlying this rule, namely the identification of POWs, it does not require such collection.The updated ICRC commentary to GC III states that “Article 122 does not provide a basis to4/5collect biological samples and the resulting DNA profiles from all prisoners of war; there mustbe a specific purpose for doing so” (para. 4795). At the same time, Article 122, GC III doesnot expressly prohibit the collection of biometric data from persons who have been captured.This raises the question whether there are IHL provisions that prohibit such collection. Article17, GC III merits further discussion in this regard. This article provides that every POW, whenquestioned on the subject, is bound to give only his surname, first names and rank, date ofbirth, and army, regimental, personal or serial number, or failing this, equivalent information. The article continues by stating that if a POW “willfully infringes this rule,” the only possiblesanction is a restriction of the privileges accorded to his rank or status. This means that othersanctions are not allowed.One possible conclusion would be that compelling the POW to give information in the form ofhis biometric characteristics would be a sanction that is not allowed under Article 17. Theupdated ICRC Commentary to GC III can be read as supporting this view. The commentaryto Article 17 only mentions the possibility of using biometrics in connection with paragraph 5of the article. That paragraph provides that the identity of POWs who, “owing to their physicalor mental condition, are unable to state their identity … shall be established by all possiblemeans.” This suggests biometrics may be used in the case of that particular category ofPOWs, but not when POWs are able to provide information concerning their identity butdecline to do so.Such a view also seems to find support in the updated ICRC commentary to Article 16 ofGeneva Convention I (GC I), which deals with recording and forwarding of information oneach wounded, sick, or dead person of the adversary falling into the hands of a party to aconflict. The article does not contain an exhaustive list of information that may be recorded,and in principle biometric data are therefore not excluded. The updated commentaryhowever states in respect specifically of DNA samples that these “may not be taken withoutthe person’s consent, unless there is a legal justification, such as in the case of a criminalinvestigation, or to identify remains.”The commentary does not explain why this is the case, but it may be that the drafters of thecommentary considered that there was a link with Article 17 GC III. After all, wounded or sickmembers of the armed forces who fall into the hands of the enemy are in principle POWs. Itmust be remembered however that the taking of a DNA sample requires taking bodymaterial, whether directly from the individual concerned or what the person left behind. Otherbiometric modalities, such as scanning of the iris or voice recognition, do not require takingactual material. As a result, it can be argued that capturing such biometrics is less invasivethan taking DNA. Such a view seems to be supported by the updated commentary to Article16 of GC I, which states that “an individual may be fingerprinted or photographed,” withoutmaking any reference to consent of the individual concerned (para. 1584).5/5Another view on the meaning of Article 17, GC III is also possible. It can be argued thattaking biometric data from a POW does not constitute a sanction. Under this view, thepurpose of taking biometric data is not to punish a POW, but rather to make it possible toidentify him or her through alternative means than the POW providing the information. In thissense, the involuntary taking of biometric data would not constitute exposure to “unpleasantor disadvantageous treatment” in the sense of Article 17, fourth paragraph. This would in anycase apply to the collection of biometric data in so far as it is done without physicallyrestraining the POW or forcing him or her to adopt a certain position. Even with respect tothe collection of biometric data while physically restraining the POW or forcing him or her toadopt a certain position, it can be argued that identification of the POW using suchalternative means contributes to the objective underlying the obligation to register a POWdiscussed above, namely to ensure that no one goes missing or is forcibly disappeared. As aconsequence, Article 17 should not be read as prohibiting biometric collection.There is some evidence in state practice to support the view that Article 17, GC III does notprohibit the involuntary taking of biometric data. For example, the United States and Norwayappear to allow the collection of biometric information from POWs, or even to require it (JointPublication 3.63, p. IV-1; Norwegian Manual of the Law of Armed Conflict, p. 129).ConclusionIHL was not developed with biometrics in mind. As has been demonstrated above, however,this does not mean the use of biometrics in armed conflict is not regulated by IHL rules. Onthe contrary, such rules may have important consequences for whether and how biometricscan be used during armed conflict. Having said this, the application of certain rules of IHL tobiometrics raises questions of interpretation, Article 17, GC III being a case in point.This raises the question whether new law is needed to regulate the use of biometrics duringarmed conflict. It is submitted that a necessary first step toward answering that question is adiscussion among states on the use of biometrics in armed conflict in general, and theapplicable legal framework in particular. Such a discussion should take into account that IHLmay not be the only relevant legal regime. It should also take into consideration not only thepotential benefits of biometrics, but also the potential risks. The recent events in Afghanistanhave brought some of those risks in sharp relief.***Marten Zwanenburg is Professor of Military Law at the University of Amsterdam and at theFaculty of Military Sciences of the Netherlands Defence Academy.SUBSCRIBE  

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