{"id":2132,"date":"2021-02-19T12:21:09","date_gmt":"2021-02-19T17:21:09","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/hrj\/?p=2132"},"modified":"2021-02-19T12:21:09","modified_gmt":"2021-02-19T17:21:09","slug":"algorithmic-detention-and-international-human-rights-law","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/hrj\/2021\/02\/algorithmic-detention-and-international-human-rights-law\/","title":{"rendered":"Algorithmic Detention and International Human Rights Law"},"content":{"rendered":"

Algorithmic Detention and International Human Rights Law<\/strong><\/h2>\n

Hannah Kannegieter[*]<\/sup><\/a><\/h4>\n

 <\/p>\n

Two regimes in international law regulate detention\u2014international humanitarian law (\u201cIHL\u201d) and international human rights law (\u201cIHRL\u201d). Both regimes may operate simultaneously and in the same place.[1]<\/sup><\/a> The International Court of Justice has explained that \u201cthe [non-derogable] protection[s] offered by human rights conventions do not cease in cases of armed conflict.\u201d[2]<\/sup><\/a> Detention algorithms are predictive risk assessment algorithms used by militaries and justice systems to determine who to detain, and for how long. They have been analyzed extensively in the IHL context, with varying levels of optimism as to their legality.[3]<\/sup><\/a> This piece explores the legality of detention algorithms under IHRL, and uses the United States as a case study.\u00a0 It concludes that these algorithms are generally unlawful and also unwise. Article 9 of the 1948 Universal Declaration of Human Rights (\u201cUDHR\u201d) instructs that \u201cno one shall be subjected to arbitrary arrest, detention or exile.\u201d[4]<\/sup><\/a> Similarly, the International Covenant on Civil and Political Rights (\u201cICCPR\u201d), the Convention on the Rights of the Child (\u201cCRC\u201d), and various other international instruments also create requirements, in addition to those imposed by IHL, with respect to grounds for detention and processes for extension.[5]<\/sup><\/a> Like the UDHR, both the ICCPR and the CRC mandate that no individual may be subject to arbitrary arrest or detention. The ICCPR\u2019s mandates illustrate IHRL\u2019s general policy regarding detention.<\/p>\n

Most human rights under the ICCPR are not absolute, but may be limited \u201cin a time of public emergency which threatens the life of the nation.\u201d[6]<\/sup><\/a> Both international armed conflicts (\u201cIACs\u201d) and non-international armed conflict (\u201cNIACs\u201d) can trigger such a state of emergency. Nevertheless, the UN Human Rights Committee (\u201cHRC\u201d) has found that the prohibition on arbitrary deprivation of liberty is non-derogable, even in states of emergency, indicating its critical importance. Thus, regardless of a state\u2019s intelligence or national security interest in detaining an individual, it must ensure that its detention procedures are not arbitrary.[7]<\/sup><\/a><\/p>\n

The ICCPR includes specific procedural requirements states must follow when detaining individuals, some of which raise questions for algorithmic detention. For example, \u201canyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power<\/em> and shall be entitled to trial within a reasonable time or to release.\u201d[8]<\/sup><\/a> Could an algorithm alone be considered an \u201cofficer\u201d authorized to consider the validity of an individual\u2019s detention? Additionally, the ICCPR mandates that anyone deprived of liberty be able to \u201ctake proceedings before a court.\u201d[9]<\/sup><\/a> Could a court simply refer a case to an algorithm for an automatic determination? Would this be lawful under IHRL, given that \u201cproceedings before a court\u201d typically involve deliberations by one or more human judges? The ICCPR itself does not contain definitions of \u201cjudge\u201d or \u201ccourt,\u201d so advocates of detention algorithms could posit that an algorithm satisfies the ICCPR\u2019s procedural requirements. Opponents counter that the lack of data in an armed conflict setting renders algorithmic detention determinations inherently arbitrary and thus violative of the ICCPR despite any procedural steps taken.[10]<\/sup><\/a> It remains to be seen how courts and states will interpret these terms. Interpreting the term \u201cjudge\u201d to include detention algorithms, however, would require a significant deviation from the term\u2019s traditional determination.<\/p>\n

As discussed above, when designing a detention algorithm, designers must ensure that the algorithm\u2019s decisions are not \u201carbitrary.\u201d In Marques de Morais v. Angola<\/em>, the HRC explained that arbitrariness must not \u201cbe equated with \u2018against the law,\u2019 but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability, and due process of law.\u201d The HRC continued that \u201cremand in custody must not only be lawful\u201d under domestic law, \u201cbut reasonable and necessary in all circumstances, for example to prevent flight, interference with evidence or the recurrence of a crime.\u201d[11]<\/sup><\/a> These considerations are similar to those present in U.S. domestic criminal bail and parole determinations.[12]<\/sup><\/a> Nevertheless, the HRC is clear that these requirements extend beyond <\/em>domestic law: the detention must be necessary<\/em>. Put another way, an algorithm would need to be certain that without detention, an individual would flee, tamper with evidence, or reoffend. Concerns about limited and unstable data in IACs and NIACs are relevant here, because unreliable data increases the risk that detention decisions would be arbitrary. Where law requires detention \u201conly when absolutely necessary or for imperative reason of security, deferring too much to a predictive model that is likely to generate inaccurate results\u201d about an individual\u2019s security risk \u201ccould be seen as inconsistent with a state\u2019s IHL obligations\u201d as well as its IHRL obligations.[13]<\/sup><\/a><\/p>\n

In an IAC or a NIAC, a nation seeking to detain an individual would often lack objective data about that person, including a history of his or her past behavior. Without this data, an algorithm could not reliably predict an individual\u2019s risk level. It would instead have to depend on data points like a person\u2019s gender or nationality, and those factors\u2019 correlation with risk levels. It is dangerous to rely on such data to make what should be an individualized risk assessment, and such reliance would violate IHRL because of its arbitrary nature. By contrast, where a state already has extensive information about an individual\u2019s background, a detention algorithm would likely be able to comply with IHRL to make a decision that would not be arbitrary. Relatedly, an individual\u2019s security risk is not synonymous with his or her risk of reoffending. Thus, it is unclear how an algorithm would weigh these factors to justify detaining an individual.<\/p>\n

Detention algorithms have also generated significant problems in the domestic criminal context. For example, criminal defendants in the United States have a constitutional right to receive sentences based on their own actions, rather than the actions of other similar individuals.[14]<\/sup><\/a> In Wisconsin v. Loomis<\/em>, the court prohibited the use of predictive risk scores in liberty decisions, because it was concerned that these scores violated the defendant\u2019s due process rights.[15]<\/sup><\/a> Thus, it would make sense if the United States were hesitant to let those problems play out on an international stage. Accordingly, even if the United States military were to develop technology for detention algorithms, it will not necessarily use it. Other states and civil society groups might advocate forcefully against using detention algorithms, as they have done in the case of fully autonomous weapons.[16]<\/sup><\/a> And as of yet, no nation has deployed fully autonomous weapons technology. Therefore, though many scholars have warned about the possibility, the U.S. military\u2019s creation and use of detention algorithms is not entirely inevitable.<\/p>\n

Finally, the United States already has detailed processes in place for making detention determinations.[17]<\/sup><\/a> Assuming that the United States does develop detention algorithms, how would such algorithms map on to the existing procedure for making such decisions? The existing processes require agency deputies to evaluate factors including whether the suspect\u2019s capture would further U.S. counterterrorism strategy and how the proposed action would implicate American regional and international political interests.[18]<\/sup><\/a> These determinations seem better suited for seasoned state officials familiar with the nuances of U.S. foreign policy. It is difficult to see where an algorithm could fit into these steps in the evaluation process. The U.S. procedure also requires an analysis of \u201cfeasibility of capture and risk to U.S. personnel.\u201d[19]<\/sup><\/a> Similarly, in targeting, NATO follows a six-step process that includes feasibility calculations.[20]<\/sup><\/a> An algorithm would be less capable of interpreting these complexities.<\/p>\n

Artificial intelligence and algorithmic calculations could play a helpful role in determining the feasibility of a capture operation. Yet AI should not take on the role of a review board in evaluating continued detention, or in selecting individuals for capture. Moreover, algorithmic reviews risk exacerbating biases while hiding behind a veil of objectivity. The power of this veil is a major driver in employing detention algorithms, because it makes it more difficult to oppose decisions and hold individuals responsible. Regardless of legal considerations, detention algorithms are not appropriate because they would likely seriously limit fairness for prospective and existing detainees. Time and resources would be better spent improving existing, human mechanisms of analysis and review.<\/p>\n

The use of detention algorithms to make decisions about (1) which individuals to capture and detain; and (2) whether to extend an individual\u2019s detention would likely place a state in violation of IHRL. It is difficult to imagine how these algorithms could avoid being \u201carbitrary,\u201d without possessing extensive information about an individual. In a situation where a state does possess extensive information about a current or prospective detainee, it should make its detention determination on the basis of that data, using existing processes that comply with international law. While states might be able to use detention algorithms to assist humans with decision making, the risk of automation bias makes it best to steer clear of detention algorithms altogether.<\/p>\n

 <\/p>\n

 <\/p>\n

[*]<\/sup><\/a> Harvard Law School, J.D. 2020<\/p>\n

[1]<\/sup><\/a> See <\/em>Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. Reports 131, \u00b6 106 (July 9) (considering whether Israel\u2019s actions in the Palestinian territory were lawful under both IHL and IHRL).<\/p>\n

[2]<\/sup><\/a> Id<\/em>.<\/p>\n

[3]<\/sup><\/a> See, e.g.<\/em>, Tess Bridgeman, The Viability of Data-Reliant Predictive Systems in Armed Conflict Detention<\/em>, ICRC Blog (Apr. 8, 2019) [hereinafter \u201cBridgeman\u201d]; Ashley Deeks, Detaining by Algorithm<\/em>, ICRC Blog (Mar. 25, 2019).<\/p>\n

[4]<\/sup><\/a> Universal Declaration on Human Rights art. 9, Dec. 10, 1948, G.A. res. 217A (III), U.N. Doc A\/810 at 71 (1948).<\/p>\n

[5]<\/sup><\/a> See <\/em>International Convention on Civil and Political Rights art. 9, Mar. 23, 1976, 999 U.N.T.S. 171 (\u201cICCPR\u201d); Convention on the Rights of the Child art. 37, Sept. 2, 1990, U.N. Doc. A\/44\/49. Domestic law has codified many provisions of these treaties. Military manuals also discuss unlawful detention. See, e.g.<\/em>, ICRC Customary IHL database Rule 99: Deprivation of Liberty; US Department of Justice, Procedures for Approving Direct Action Against Terrorist Targets Located Outside the United States and Areas of Active Hostilities<\/em> (May 22, 2013).<\/p>\n

[6]<\/sup><\/a> ICCPR art. 4(1).<\/p>\n

[7]<\/sup><\/a> But see<\/em> Case of Brogan and Others v. the United Kingdom, App. No. 112309\/84, at 34-35, \u00b6\u00b6 63-65 Eur. Ct. H.R. (1988) (concluding that a detention cannot be arbitrary if the arrested person is promptly released and there is no intention to place the detention under judicial control).<\/p>\n

[8]<\/sup><\/a> ICCPR art. 9(3) (emphasis added).<\/p>\n

[9]<\/sup><\/a> ICCPR art. 9(4).<\/p>\n

[10]<\/sup><\/a> See <\/em>Bridgeman, at 4.<\/p>\n

[11]<\/sup><\/a>Human Rights Council, Marques de Morais v. Angola, U.N. Doc. CCPR\/C\/83\/D\/1128\/2002 (2005); see also<\/em> Human Rights Council, Gorji-Dinka v. Cameroon, U.N. Doc. CCPR\/C\/83\/D\/1134\/2002 (HRC 2005); Human Rights Council, van Alphen v. the Netherlands, U.N. Doc. CCPR\/C\/39\/D\/305\/1988 (1990).<\/p>\n

[12]<\/sup><\/a> Bridgeman, at 2\u20133.<\/p>\n

[13]<\/sup><\/a> Id<\/em>. at 3.<\/p>\n

[14]<\/sup><\/a> Report or Algorithmic Risk Assessment Tools in the U.S. Criminal Justice System<\/em>, Partnership on AI (2019) https:\/\/www.partnershiponai.org\/wp-content\/uploads\/2019\/04\/Report-on-Algorithmic-Risk-Assessment-Tools.pdf<\/a> (last visited Nov. 1, 2020).<\/p>\n

[15]<\/sup><\/a>See Loomis v. Wisconsin<\/em>, 881 N.W.2d 749 (Wis. 2016), cert. denied<\/em>, 137 S. Ct. 2290 (2017).<\/p>\n

[16]<\/sup><\/a> See, e.g.<\/em>, Harvard Law School International Human Rights Law Clinic and Human Rights Watch, Heed the Call: A Moral and Legal Imperative to Ban Killer Robots <\/em>(Aug. 2018).<\/p>\n

[17]<\/sup><\/a> See, e.g.<\/em>, U.S. Department of Justice, Procedures for Approving Direct Action Against Terrorist Targets Located Outside the United States and Areas of Active Hostilities<\/em>, (May 22, 2013).<\/p>\n

[18]<\/sup><\/a> Id<\/em>. at 10.<\/p>\n

[19]<\/sup><\/a> Id<\/em>.<\/p>\n

[20]<\/sup><\/a> Merel Ekelhof, Lifting the Fog of Targeting: \u201cAutonomous Weapons\u201d and Human Control through the Lens of Military Targeting<\/em>, 71 Naval War College Rev. 61 (2018).<\/p>\n","protected":false},"excerpt":{"rendered":"

Algorithmic Detention and International Human Rights Law Hannah Kannegieter[*]   Two regimes in international law regulate detention\u2014international humanitarian law (\u201cIHL\u201d) and international human rights law (\u201cIHRL\u201d). Both regimes may operate simultaneously and in the same place.[1] The International Court of Justice has explained that \u201cthe [non-derogable] protection[s] offered by human rights conventions do not cease […]<\/p>\n","protected":false},"author":101946,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-2132","post","type-post","status-publish","format-standard","hentry","category-online-journal"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/hrj\/wp-json\/wp\/v2\/posts\/2132","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/hrj\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/hrj\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/hrj\/wp-json\/wp\/v2\/users\/101946"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/hrj\/wp-json\/wp\/v2\/comments?post=2132"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/hrj\/wp-json\/wp\/v2\/posts\/2132\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/hrj\/wp-json\/wp\/v2\/media?parent=2132"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/hrj\/wp-json\/wp\/v2\/categories?post=2132"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/hrj\/wp-json\/wp\/v2\/tags?post=2132"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}