Reflections on the Afterlife: Which Rules Govern the Post-Occupation Retention and Use of Personal Data Collected by the Military?

The collection of personal data by the military has become a commonplace practice in situations of military occupation. However, there has been barely any scholarly engagement with the post-occupation afterlife of such data. This paper explores the question of which legal regime governs the retention and use of personal data collected during a military occupation once the former occupying power is no longer in a position to exercise territorial control. It argues that as long as physical control over territory or a person is required to establish the extraterritorial applicability of international human rights law (IHRL), the pertinent IHRL treaty provisions will no longer be applicable to personal data collected during an occupation once a former occupying power ceases to exercise territorial control. While the law of occupation is traditionally equally premised on physical control, there is a convincing case for the continuous applicability of certain international humanitarian law (IHL) provisions based on a functional approach to the law of occupation. Although the relevant IHL norms do not protect privacy as an end in itself and hence offer only very limited protection, they might constitute the only available legal safeguard regarding the post-occupation retention and use of personal data if and to the extent that data protection law and IHRL are inapplicable.