Introduction: The Need for the Code
In the past decade, humanitarian actors and affected populations alike have integrated advances in information communication technologies (ICTs) and the digital data they produce into humanitarian responses to crises. These crises include natural disasters, armed conflict, other forms of complex emergencies, and political unrest. This adoption and absorption of ICTs and digital data by a diverse ecosystem of actors not only profoundly affects how humanitarian action now occurs, but also fundamentally transforms the very ways that crises unfold in the 21st century and the impacts that these crises have on populations.
However, these operational and technological changes are occurring without an accepted rights-based approach (RBA) for conducting humanitarian information activities (HIAs) in the present era. The authors of this document believe that creating this rights-based approach is essential.
Some in the humanitarian community may assert that the application of an approach based on rights to address the complex issues raised by the intersection of data and information in crises is either limiting or insufficient compared to a more needs-based approach. However, a needs-based approach, when the specific rights relevant to data and information in crises have not been either identified or clarified, is fundamentally impossible.
What’s more, humanitarian assistance is not simply about meeting the biological needs of those affected by disasters alone. At its core, the humanitarian project both aspires and adheres to the humanitarian principles—chief among them the belief that all people have a right to life with dignity. The Humanitarian Charter defines “dignity” as:
“…more than physical well-being; it demands respect for the whole person, including the values and beliefs of individuals and affected communities, and respect for their human rights, including liberty, freedom of conscience and religious observance.”1
Therefore, the Harvard Humanitarian Initiative’s Signal Program on Human Security and Technology (Signal Program) has created “The Signal Code,” with the purpose of identifying, defining, articulating, and translating existing international human rights standards into the context of HIAs and the use of information, data, and ICTs in humanitarian contexts.
Humanitarian information activities are defined in this document as follows:
Activities and programs which may include the collection, storage, processing, analysis, further use, transmission, and public release of data and other forms of information by humanitarian actors and/or affected communities. HIAs also include the establishment and development of communications capacity and infrastructure by responders and/or populations. These activities occur as part of humanitarian action throughout the response cycle and include, but are not limited to, improving situational awareness; disaster preparedness and mitigation; intervention design and evaluation; connecting populations to response activities and to each other; and supporting ongoing operations, including the delivery of assistance.
The humanitarian community has faced an equally critical juncture in its history before. In the aftermath of the 1994 Rwandan Genocide, evaluations of the humanitarian response to that crisis found significant gaps in technical and ethical standards for how aid was delivered, including an absence of an agreed-upon RBA for responding to complex emergencies. The result of the acknowledgement of these failures was the Humanitarian Charter and the Minimum Standards in Humanitarian Response, among other reforms. The rights-based approach to humanitarian response was articulated for the first time within the Humanitarian Charter.2
The document below was undertaken on the premise that the humanitarian community now faces an equally pivotal and defining moment requiring a new RBA specific to HIAs. Additionally, this new RBA for HIAs is a key prerequisite for the necessary development of minimum ethical and technical standards for the use of ICTs and data. Minimum ethical and technical standards cannot, and should not be undertaken until there is agreement on the application of existing human rights to these activities.
Some of the rights articulated by the Signal Code are already generally recognized. Other rights identified within the Signal Code as relevant and applying in the context of these information activities exist implicitly within and across multiple recognized sources of rights. While the Signal Code is presented with the aim of being as comprehensive and specific as possible, this document is intended to initiate an iterative debate and process within the humanitarian community around how these rights should be codified and realized. It is the hope of the authors that the resulting discourse leads to further discussion, research, and doctrine development amongst all actors in the humanitarian space.
The eventual goal of the process the Signal Code seeks to initiate is, in the view of the authors, to enable the creation of obligations and minimum ethical and technical standards for HIAs, grounded in an accepted foundation of human rights standards and international law. These yet-to-be-created technical standards must be based upon obligations for humanitarian practitioners that uphold basic human rights. Both state actors and non-state actors, including non-governmental organizations and private sector entities, have an obligation to protect these rights; to take steps to prevent and sanction their violation and abrogation; and to engage in actions to realize them before, during, and after crises occur.
The foundation of these rights is the idea that information itself, including the means to generate, communicate and receive it, is a basic humanitarian need that should be afforded protection equal to other such traditional needs as food, water, shelter, and medical care. An essential component of information provision as a basic need during crises are HIAs.
The HIAs that this document addresses can be performed by affected communities, humanitarian actors, government actors, and/or other non-state or international actors. They are defined as activities that aim to collect, analyze, process, transmit and communicate, share and publish, and support access to information as part of meeting the humanitarian needs of crisis-affected populations before, during, and/or after crises occur.
Increasing evidence is emerging that HIAs, particularly those employing experimental applications of digital data and ICTs, may in some cases cause harm to vulnerable populations and violate their basic human rights. In some circumstances, those undertaking HIAs may also be at risk.
Despite the potential threats and harms that HIAs in the networked age may cause or magnify, the humanitarian community has so far failed to systematically address the critical gaps in theory and practice necessary to effectively mitigate these risks in either a comprehensive or coordinated way. The potential implications of this failure, if unaddressed, jeopardize the appropriate application of core humanitarian principles in the networked age. Additionally, the international humanitarian and human rights laws and standards that fundamentally undergird and define humanitarian action were drafted before the digital revolution. It is crucial that these instruments are translated to the operational contexts that humanitarian actors face and the technologies they now regularly employ.
The recognition and codification of these rights is required to establish for the humanitarian community its duty of care3 for the populations it affects with HIAs, and thus define a standard of reasonable care for conducting these activities. Absent an agreed duty of care, humanitarian actors are at risk of these questions being resolved in multiple jurisdictions by national courts instead of by the humanitarian community itself.
Duty of care is defined by Collins Dictionary of Law as:
“a requirement that a person act toward others and the public with watchfulness, attention, caution and prudence that a reasonable person in the circumstances would. If a person’s actions do not meet this standard of care, then the acts are considered negligent, and any damages resulting may be claimed in a lawsuit for negligence.”
The impact of ICTs and digital data on humanitarian action has been so profound that developing rights-based ethical and technical standards should no longer be treated as an issue only related to areas such as “humanitarian innovation,” “crisis mapping,” or “humanitarian data.” How challenges stemming from the increasingly central role of HIAs in crisis response are addressed may determine the future of the humanitarian project as a whole more than any other dynamic the field currently faces.
The human rights presented herein as applying to HIAs were identified because they meet all of the following three criteria:
- The rights can be identified as existing within the Universal Declaration of Human Rights (UDHR), currently accepted human rights law such as the International Covenants on Civil and Political Rights (ICCPR), other instruments of currently accepted human rights law, and international humanitarian law, such as the Geneva Conventions;
- The rights apply to all people and regardless of the use of any specific technology; and
- The rights reinforce and translate existing bedrock rights adhered to by humanitarian practitioners into the specific context of HIAs.
All human beings have fundamental human rights provided for under the UDHR and other instruments of law. While the UDHR is non-binding, it sets an important standard for the establishment of rights in individual states. The UDHR is invoked so often, and has become so critical to our understanding of universal rights, that many in the legal community defend the document as customary international law. In some cases, the UDHR directly led to the creation of binding laws, which include the International Covenant on Civil and Political Rights. In further iterations of the Signal Code, we hope legal scholars will endeavor to further this discussion. The UN itself, through the International Law Commission, is currently working on recommendations and guidelines for the identification of customary international law and we expect this work to be ongoing.4
Further, we acknowledge the situational applicability of both IHL and IHRL. For example, International Humanitarian Law applies only during armed conflict. Similarly, International Human Rights Law may be derogated in certain crises, including conflict. We believe that both IHL and IHRL must be taken into consideration when interpreting the rights to humanitarian information activity. Currently existing legal instruments are not fully adapted to the challenges of the 21st century. Globalization and the rise of new technologies present novel dynamism in the way information is shared, collected, and disseminated.
Although ongoing conflicts or “protracted crises” are increasingly the norm, some conflicts do have a clear beginning and an end. Data, on the other hand, lives forever. It lives outside of traditional state borders and a discrete time and space. Data can be collected invisibly, from populations who are not aware. Private information can be shared around the world in an instant. Where clear international law does not exist to address these problems, we refer to other well-established standards of conduct including the Nuremberg Code and the Belmont Report. The Signal Code is an important first step in articulating the human rights relating to information and data. These rights already exist in international standards and law, but may not be clearly articulated because of the era in which they were written. Over time, these rights must become essential and standard, if we are to meet the evolving technological challenges of our era. The legal obligation of states to honor and protect human rights is made clear in Article 1 of the UN Charter.
While each right described in this document is distinct, each right is also interconnected and interdependent to the others – both in terms of how they are derived from the UDHR, and how they are realized. In short, none of these rights can be fully realized without the realization of all the other identified rights.
The document below comprises four sections. Section A, “The Signal Code,” introduces and lays out existing rights of all people relevant to HIAs. Section B, “Sources of the Rights,” grounds these rights in existing and generally accepted human rights, humanitarian, and international law, doctrine, and standards. Section C, “Why the Rights Are Needed,” defines specific issues addressed by each right, identifying potential harms arising from the failure to realize and respect these rights. Section D, “Realizing the Rights,” proposes a set of general next steps for realizing these rights in theory and practice.
1. The Sphere Project, Sphere Project: Humanitarian Charter and Minimum Standards in Humanitarian Response, 3rd ed. (Bourton on Dunsmore, Rugby: Practical Action Publishing, 2011).↩
2. Margie Buchanan-Smith et al., “‘How the Sphere Project Came into Being: A Case Study of Policy Making in the Humanitarian-Aid Sector and the Relative Influence of Research,’” Bridging Research and Policy in Development: Evidence and the Change Process, no. July (2005), http://www.odi.org/publications/170-bridging-research-policy-development-evidence-change-process.↩
3. Collins Dictionary of Law. S.v. “duty of care.” Retrieved December 12 2016 from http://legal-dictionary.thefreedictionary.com/duty+of+care↩