This section provides an overview of the legal frameworks that organisations working with audio data should be aware of.
3.1 Public International Law
Public international law (PIL) is a vast body of law that governs relations between States and between States and private actors (e.g., individuals). PIL contains several branches of law that are relevant to work with audio data, such as international human rights law (IHRL), international humanitarian law (IHL), and international criminal law (ICL). Each is discussed below.
3.2 International Human Rights Law
IHRL is a branch of PIL that sets obligations and duties on States to respect, protect, and fulfil the human rights of individuals. The commitment to respect requires States to refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect demands that States protect individuals and groups against human rights violations perpetrated by others (including State authorities, individuals, or other private actors such as corporations). Finally, the obligation to fulfil requires States to take positive action to facilitate and ensure that the individuals within their jurisdiction fully enjoy their human rights. These obligations are generally set out in IHRL treaties ratified by States.1 The rights outlined in IHRL treaties include the right to life, the right to liberty, the right to a fair trial, and the right to privacy. PIL also includes regional human rights law instruments,2 some of which are discussed below in section 4.
3.3 International Humanitarian Law
IHL is a branch of PIL that regulates how States and non-State actors should behave during an armed conflict. IHL does not relate to whether an armed conflict is lawful or not. Rather, it dictates what conduct is permitted or prohibited in the context of an armed conflict once it has broken out. For example, IHL prohibits the targeting of civilians, the use of certain weapons, and contains standards on how the warring parties should treat prisoners of war. IHL applies to armed conflicts between one or more States as well as conflicts involving States and non-State actors (such as paramilitary groups). Non-State actors are also obliged to respect the rules of IHL.
In addition to the above, IHL contains rules that identify when a civilian can be lawfully targeted. In some cases, when a civilian is taking part in hostilities, for example by firing weapons at the opposing side or by delivering military intelligence, they may be targeted as if they were a member of the armed forces. Protection is lost for the time that the participation in hostilities goes on, but resumes when participation ceases.3
3.4 International Criminal Law
ICL is a branch of PIL that applies to individuals, rather than States, and identifies when an individual’s conduct will amount to an international crime. When an international crime has been committed, ICL sets out a framework for holding perpetrators to account. There are four core crimes under ICL: genocide, crimes against humanity, war crimes, and the crime of aggression.4 These crimes are distinct from ordinary crimes in the sense that they are characterised by specific contextual elements, which are a set of factors that must be additionally satisfied before such a crime can be said to have been committed. The war crime of wilful killing, for example, is characterised by the fact that not only must there be an intentional killing, but it must be committed in the context of and in association with an armed conflict.
3.5 Interaction between IHL, IHRL, and ICL
In situations of armed conflict, IHL, IHRL, and ICL apply concurrently. The connection between IHL and ICL stems from the fact that serious violations of IHL can also constitute war crimes under ICL. For example, the killing of wounded soldiers who have laid down their arms is a violation of IHL. If the violation is committed by an individual with the necessary knowledge and intent, this can constitute a war crime.
The relationship between IHL and IHRL is more complex because contradictions can arise between the two legal frameworks. For example, IHL permits the killing of soldiers and, under some limited circumstances, of civilians. In contrast, a cornerstone of IHRL is the right to life. It is not the case that IHRL ceases to apply during armed conflict. Instead, the two branches of law apply at the same time. Determining which rules take precedence in a given situation depends on the particular circumstances: for example, IHL would take precedence and apply to conduct during a battle/military operation, whereas IHRL would apply to a civilian protest (even if this protest takes place in a State experiencing armed conflict).
3.6 Domestic Law
A State’s domestic legal system regulates the conduct of State actors, natural persons, and legal persons within its territorial borders. On the one hand, domestic law might incorporate provisions of international law, especially of IHRL and ICL. This could be done, for example, by the criminalisation of certain conduct under domestic law. On the other hand, a State’s domestic law might differ somewhat from international law. For example, if an international treaty is not universally ratified or well-enforced, there may be States with domestic laws that conflict with the principles outlined in the treaty.
Footnotes
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The Universal Declaration of Human Rights 1948 (UDHR), combined with the International Covenant on Civil and Political Rights 1966 (ICCPR), and the International Covenant on Economic, Social and Cultural Rights 1966, establish a foundation of defined human rights known as the International Bill of Rights. Other IHRL treaties include, e.g., the International Convention on the Elimination of All Forms of Racial Discrimination 1965, the Convention on the Elimination of All Forms of Discrimination against Women 1979, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, and the Convention on the Rights of the Child 1989. ↩
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For example, key European human rights instruments are the Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR) and the European Union’s Charter of Fundamental Rights 2012; the key human rights instrument of the Organization of American States is the American Convention on Human Rights 1969 (ACHR); the key human rights instrument of the African Union is the African Charter on Human and People’s Rights 1981 (ACHPR). ↩
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See Nils Melzer, ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law’ (2008) 90 Intl Rev of the Red Cross 991; See also ICRC, Direct Participation in Hostilities: Questions and Answers (2009). ↩
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ICC, Rome Statute of the International Criminal Court 1998 (Rome Statute), Articles 6, 7, 8 and 8bis. ↩