Automating occupation: International humanitarian and human rights law implications of the deployment of facial recognition technologies in the occupied Palestinian territory

Abstract

In 2019, media investigations revealed that Israel had added facial recognition technologies (FRTs) to the panoply of security and surveillance technologies deployed in its administration and control of the occupied Palestinian territory (oPt). Despite growing academic and judicial scrutiny of the legal implications of these technologies for privacy and freedom of assembly in domestic contexts, scant attention has been paid to their uses by militaries in contexts where international humanitarian law (IHL) applies. This article seeks to establish the international legal framework governing an Occupying Power's deployment of FRTs, particularly in surveillance, and apply it to Israel's uses in the oPt. It is demonstrated that IHL provides flexible, but incomplete, provisions for balancing an Occupying Power's right to employ surveillance technologies within its measures of control and security against the imprecisely defined humanitarian interests of the population under occupation. The relevant legal framework is completed through the concurrent application of an Occupying Power's international human rights law (IHRL) obligations. What is known of Israel's use of FRTs in surveillance appears prima facie not to satisfy the cumulative IHRL criteria for limitations on the right to privacy - legality, legitimate aims, necessity and proportionality - even where these are broadened by reference to IHL. Consideration is also paid to corollary human rights impacts of these technologies, and the potential that they may entrench an Occupying Power's control while simultaneously rendering this control more invisible, remote and less reliant on the physical presence of troops.