EJIL Analysis

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The International Law of Intelligence Sharing in Multinational Military Operations: Concluding Thoughts

Having canvassed the various conceptual questions of state complicity in the prior posts in the series, we can now return to the two basic intelligence sharing scenarios I outlined in my first post – the sharing of intelligence facilitating a wrongful act, and the receipt of intelligence that was unlawfully collected and/or shared. In both scenarios the causal nexus element can generally be met, but their resolution will depend on an assessment of the assisting state’s fault. Thus, under Article 16 ASR, an assisting state will be responsible for sharing intelligence with another state that facilitated the wrongful act of the latter state if the assisting state (i.e. its organs or agents) did so: with the purpose/direct intent of facilitating the wrongful act, that is in a situation in which the facilitation of the wrongful act was the conscious object of the assisting state’s conduct, regardless of any deficits in the assisting state’s knowledge; with the oblique/indirect intent of facilitating the wrongful act, that is while being practically certain that the assisted state will commit the…

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Vacancies at the ICJ: Yes, there is a special practice, and it has to cease

In Is There a Special Practice Antonios Tzanakopoulos has written a very learned post seeking to dispel the notion that there is an expectation on the part of states that a casual vacancy on the International Court of Justice caused either by the death or resignation of a sitting judge should result in the election of a…

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The International Law of Intelligence Sharing in Multinational Military Operations: State Fault in Complicity

In my previous post in the series I explained how the fault element of state complicity rules is the single most important determinant of the scope of these rules, in the intelligence sharing context or otherwise. In this post I will elaborate on the different possible modes of fault, starting with the question of how fault…

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The International Law of Intelligence Sharing in Multinational Military Operations: Framing Complicity

In my first post in the series I explained how intelligence sharing can be contrary to international law either because it transgresses a rule that directly prohibits the sharing of intelligence as such, or because of complicity in a partner’s wrongful act. Let us now start examining the problems of complicity in more…

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The International Law of Intelligence Sharing in Multinational Military Operations: A Primer

The massive airlift by the United States and its allies that followed the Taliban’s victory in the Afghan war had a remarkable feature: the Taliban not only did not interfere with it, but actively assisted it. After two decades of fighting the Taliban, the United States found in them unlikely partners willing to provide, for a limited time,…

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