In early October, the Guardian reported that former members of the IRA and British Army commanders may face criminal charges arising from serious offences connected with the use of informers for the purpose of gathering intelligence during the conflict in Northern Ireland. As part of the police inquiry ‘Operation Kenova’, files have been sent to the Public Prosecution Service in Belfast providing evidence of crimes of “murder, kidnap, torture, malfeasance in a public office and perverting the course of justice” associated with the activities of alleged former head of internal security for the IRA and British army agent Freddie Scappaticci.
Scappaticci is said to be linked directly to some 18 murders of IRA members accused of being informers. The families of a number of those killed have made formal complaints to the Police Ombudsman of Northern Ireland claiming that his military intelligence handlers failed to prevent those killings. Even more than the trial of “Soldier F” for two murders arising from Bloody Sunday in 1972, such proceedings could shine an uncomfortable light on how the dirty war was waged by state authorities in Northern Ireland. It also prompts the question of how law addresses the practice of using informers during conflict.
The use of informers within non-state armed groups by British military, police and security forces was a common practice during the conflict in Northern Ireland. It is estimated that the IRA executed around 85 individuals accused of being informers during the course of the Troubles. Such practices are not unprecedented, as the recruitment and deployment of informers has been a perennial feature of armed conflicts, not to mention the frequently brutal treatment that has usually been meted out to such collaborators. As has been the case with the Scappaticci affair, authorities have at times gone to great lengths to secure and retain the services of high-level informers, including by tolerating or acquiescing in their involvement in criminal activities.
In terms of the law applicable to the use of informers, very often there has been limited or no national legislation governing the use of so-called covert human intelligence sources. The Chief Constable of the Police Service of Northern Ireland George Hamilton has acknowledged that in the context of the Troubles, “[t]here were no rules. There was no regulatory framework for handling of informants at that time”. Given the regularity of the practice during situations of armed conflict, it is appropriate to consider how applicable international law might be addressed to the deployment of informers, as well as its consequences.
On its face, international law applicable to armed conflict, including both international humanitarian law and international human rights law, has little to say about the use of informers. No explicit reference to informers is found in the various Hague and Geneva treaties of humanitarian law aimed at regulating conduct during armed conflict. International human rights conventions contain a similar silence. The United Nations Convention against Transnational Organised Crime provides one of the few allusions to informers in an international treaty, by encouraging states parties to make use of those “who participate or who have participated in organized criminal groups” as a source of information.
Nonetheless, international law is not irrelevant to the use of informers during times of armed conflict. Various rules and principles of humanitarian law, as well as standards laid down under human rights law, can be br ought to bear on the practice and its consequences. International law is somewhat ambivalent towards the practice, by implicitly recognising and seemingly tolerating the use of informers by parties to an armed conflict, while at the same time seeking to place limits on the conduct of recruiting authorities, of informers themselves, and of those that may seek to punish them for their traitorous activities.
The 1907 Hague Regulations permit the employment of “measures necessary for obtaining information about the enemy and the country”, and according to the United Kingdom Joint Service Manual of the Law of Armed Conflict, this can include “the employment of informers or agents in enemy-held territory”. Although as the United States Law of War Manual states, “[i]nformation gathering measures … may not violate specific law of war rules”. In international armed conflicts, humanitarian law makes it clear that neither prisoners of war nor protected persons under the Fourth Geneva Convention can be ill-treated in the search for intelligence: “[n]o physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties”.
The legislative history of these humanitarian law rules includes vigorous debates between states that sought to retain the power to recruit informers by force and those that favoured accepting only voluntary offers of such collaboration. The position articulated in the Lieber Code, that “guides” could be pressed into service if needed, eventually gave way to the prohibitions in the 1949 Geneva Conventions. That being said, Common Article 3 does not contain an identical prohibition of “physical or moral coercion”, outlawing as it does torture, cruel treatment and other outrages in non-international armed conflict. Although Additional Protocol II forbids “violence to the life, health, or physical and mental well-being of persons”, an ICRC proposal to include in the Protocol a ban on physical and moral coercion was rejected by states.
To the extent that international humanitarian law can be addressed to the practice of using informers in armed conflict, it is mainly of relevance to the treatment of such persons, both by those who seek to recruit them and those who seek to attack or punish them. For the latter, it bears noting that intelligence gathering may amount in limited circumstances to direct participation in hostilities, while the Ntaganda proceedings at the International Criminal Prourt (ICC) may have brought to the fore questions regarding the treatment of persons on one’s ‘own side’.
International human rights law mirrors in some ways the approach of humanitarian law, albeit not specifically addressed to situations of armed conflict, by tolerating the use of informers by state authorities in the context of policing and national security, but insisting that any such activity be in accordance with human rights standards, including principally the right to life, freedom from torture, and the right to fair trial.
Human rights law goes further than humanitarian law in that it is not only concerned with the treatment of informers, and how information provided by informers may compromise criminal proceedings, it also requires that the use of covert human intelligence sources must be subject to national regulation in order to avoid any arbitrary interference by public authorities in private life. As the European Court of Human Rights has put it, measures entailing an interference with the right protected under Article 8 of the European Convention must have “some basis in domestic law”.
In relation to the conflict in Northern Ireland, the use of informers by the British and Northern Irish authorities was not in and of itself contrary to international law. However, fundamental guarantees of both humanitarian law and human rights law were contravened, particularly where coercion was used in the recruitment of informers or where alleged informers were tortured and executed, or were themselves involved in such criminal acts.
From the perspective of international humanitarian law, there is little doubt that extrajudicial killings and other acts of violence associated with the practice of using informers go against basic rules as laid down in Common Article 3. Nonetheless, questions arise regarding the application of this body of law, firstly, in relation to the conflict itself, and secondly, to the acts of members of a non-state armed group perpetrated against fellow members. It has been debated as to whether the conflict in Northern Ireland rose to the level of a non-international armed conflict for the purpose of the application of international humanitarian law, and if it did, there is some uncertainty regarding the application of humanitarian law to intra-group conduct. On this second point, however, the potential complicity of state agents changes the calculation, and as ‘Operation Kenova’ indicates, such offences are largely also covered by domestic criminal law.
International human rights law, including the European Convention of Human Rights, was applicable during the Troubles and ought to have played a greater role in regulating such intelligence-gathering activities and preventing abuse. In contravention of Article 8, the British authorities avoided developing a regulatory framework, with the Regulation of Investigatory Powers Act 2000 only being passed after the end of the conflict. In his independent review of a separate murder, Desmond de Silva, a former prosecutor of the Special Court for Sierra Leone, held that: “[m]any of the grave issues relating to the involvement of agents in the murder of Patrick Finucane must … be considered in the context of the wilful and abject failure by the UK Government to put in place adequate guidance and regulation for the running of agents”.
The key issue in the Scappaticci affair, and one which has been side-stepped by the Regulation of Investigatory Powers Act 2000, is the involvement of informers in criminal activity. It seems that British authorities were willing to allow human rights standards concerning the right to life and freedom from torture to be ignored in order to secure valuable intelligence from the Army’s “golden egg”. State responsibility is likely to arise if, as appears to be the case, Scappaticci was acting on the instructions of or under the direction or control of British authorities.
While human rights law proved inadequate at preventing the killings that are claimed to be associated with Scappaticci, the United Kingdom’s obligations to investigate alleged violations of the right to life hold the potential to bring about some accountability, albeit years after the fact. International law may not prohibit or even deter parties to an armed conflict from using informers, but in certain circumstances it can require a coming to terms with its serious and at times criminal consequences for both states and non-state actors alike.