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Home EJIL Analysis More on the Duty to Warn Persons Threatened by Foreign Intelligence Services

More on the Duty to Warn Persons Threatened by Foreign Intelligence Services

Published on June 10, 2019        Author: 
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I recently wrote on the blog about the obligation of states, arising from their duty to protect the right to life under human rights law, to warn individuals subject to their jurisdiction of any real and immediate risk to their life, bodily integrity, or liberty and security of person, posed by foreign intelligence services. That duty arises if the state knows, or ought to know, of such a threat, i.e. if the threat is reasonably foreseeable to it. I’ve argued in that regard how it cannot be conclusively established, but may be so established after further factual inqury, that the United States or Turkey had enough relevant information in their possession to trigger their protective obligation with regard to Jamal Khashoggi and the threat posed to his life by agents of Saudi Arabia. If that obligation was triggered, however, the duty to warn Khashoggi arose, whereas no such warning was given to him before his assassination in the Saudi consulate in Istanbul.

As I have explained in my previous post, and in more detail in my full paper, the duty to warn does not impose unreasonable burdens on states engaged in intelligence-gathering activities. First, it is subject to a jurisdictional threshold, which may be looser, per the Human Rights Committee’s new functional approach to the extraterritorial application of the right to life, or stricter, per the more traditional spatial or personal conceptions of jurisdiction. Opinions will clearly differ in this regard as to which approach should prevail. The key point here, however, is that a state lacking the capacity to fulfil the duty to warn will never be expected to have to do so. Second, the duty will only be engaged if a specific unlawful threat to the life of an individual was reasonably foreseeable to the state. Third, the duty to warn is one of due diligence, and the state can take a number of relevant considerations into account in deciding on how to fulfil it. It might, for example, choose to convey the substance of the threat in a way that will avoid any risk of compromising intelligence-gathering sources and methods. It might choose to do so through an intermediary, such as a relevant agency of a partner state. In the vast majority of conceivable circumstances the state will be able to convey a warning without compromising its essential interests in any meaningful way. Granted, the state will have to devote some resources towards actually complying with the obligation. But such an expectation is not unreasonable, especially bearing in mind that this rather modest burden will usually fall on the wealthiest, most powerful states in possession of an extensive foreign intelligence apparatus, whose ultimate purpose should after all be the safeguarding of human life.

Importantly, in the past month or so, the CIA and partner security services have actually warned three associaties of Khashoggi of a Saudi threat against them, demonstrating that the duty to warn does not, in fact, impose unreasonable burdens on state authorities and that it can effectively be complied with.

First, after obtaining information about a specific threat from the CIA, the Norwegian security services warned a prominent Arab pro-democracy activist and vocal critic of the Saudi crown prince, who has been granted asylum and is living in Norway. As the Guardian reports:

El-Baghdadi was alerted to the threat on 25 April, when Norwegian authorities arrived at his doorstep, took him to a secure location, and warned him he was in possible danger from an unspecified threat emanating from the kingdom.

The activist was told the threat had been passed on to Norwegian authorities by a foreign intelligence agency, which the Guardian has confirmed was the CIA.

“The way I understood it was, the Saudis have a crosshairs on me, but there is no idea of what they are going to do,” El-Baghdadi said in a phone interview with the Guardian.

“They assured me that they are taking it very seriously. They came prepared,” he said, noting that authorities had arrived with two squads: one to whisk him away, and another to ensure they were not being followed.

Note that because El-Baghdadi was located in Norway, no extraterritoriality issue arises with regard to Norway’s duty to warn him under the ECHR or the ICCPR, once the duty has been triggered through the provision of relevant information by the CIA. The extraterritoriality issue does, of course, very much arise with respect to US obligations under the ICCPR.

Second, according to TIME magazine, the CIA similarly alerted Canadian partner agencies, who in turn warned another pro-democracy activist, Omar Abdulaziz, who resides in Montreal:

Abdulaziz, who has permanent resident status in Canada, told TIME he could not comment on his situation on orders from authorities there. Friends and associates, however, confirmed that Canadian security officials visited Abdulaziz at his Montreal home recently and provided a similar threat briefing [as with El-Baghdadi], prompting him to go into hiding for at least several days.

Third, TIME also reports that US agencies directly warned a third, unnamed pro-democracy activist, who is residing in the United States (with, therefore, no extraterritoriality issue arising under the ICCPR):

The advocates were also advised to avoid travel to a wide swath of countries in Europe and Asia where Saudi Arabia has particular influence, and to move family members out of at least one particular country, Malaysia. … The third advocate resides in the U.S. and, like Baghdadi and Abdulaziz, worked closely with Khashoggi on projects that focused on providing more transparency in the Arab media and on social media platforms. … The U.S.-based associate of Khashoggi is also a pro-democracy advocate. He said his warning came from a U.S. security official who advised him not to undertake planned imminent business trips to Tunisia, Greece, Cyprus and several other countries because “there is chatter with your name on it, from the Saudis.”

It seemslikely that the US obtained the information about the threat to the third activist through signals intelligence (‘chatter with your name on it’). But again, to convey the seriousness of the threat to the target the US did not have to disclose any specifics of its intelligence-gathering methods, which is what it would be able to do in the vast majority of conceivable cases.

As a final note, the UN Special Rapporteur on extrajudicial executions, Agnes Callamard, is due to report shortly to the Human Rights Council with the final findings of her inquiry into Khashoggi’s death, and she may well explore the duty of states to warn the targets of foreign intelligence services.  Watch this space!

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2 Responses

  1. JS

    Marko,
    I shall watch this space!

    What if the intelligence giving rise to the duty to warn is derived not from signals intelligence but human intelligence the disclosure of which would put the source at a real risk of being bumped off/tortured herself? Presumably the acting state has a duty of care to her as well or she considered “volenti”?

    For argument’s sake let’s say it’s a last minute tip off. The warned person could only effectively avert the threat by behaviour that would be regarded as highly suspicious by the plotters who would then ruthlessly eliminate any number of potential sources (think dprk). You don’t have time to extract your source and there is a real risk of more people being killed as suspected sources than the single individual saved by the warning.

    In other words, doesn’t causation play a role here Marko?

    J

  2. Marko Milanovic Marko Milanovic

    JS,

    Many thanks for the comment. The duty to warn, like the duty to protect life more generally, is one of due diligence and it allows for taking into account competing considerations, practical difficulties, and the avoidance of unreasonable burdens. In the scenario you suggest, the state could refrain from warning the target if there was no way of avoiding the impact on its sources. Obviously this would very much be a contextual assessment. If, for example, there was near-certainty that the target would be killed, but only a small risk that the source would be exposed, then the target would need to be warned. But if the risks are difficult to quantify and are more finely balanced, then abstention becomes a perfectly plausible course of action, and would additionally be subject to very deferential review if the issue ever came before some kind of court.