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 detail.

Two Scenarios of Complicity and Intelligence Sharing

There are two basic intelligence sharing scenarios that may trigger a state’s responsibility for complicity: first, intelligence sharing assisting an internationally wrongful act; second, the receiving of intelligence that was obtained and/or shared unlawfully. In the first scenario, during a military operation state A is sharing intelligence with partner state or non-state actor B, which then facilitates B’s commission of an internationally wrongful act. That wrongful act can be a serious violation of international humanitarian law (IHL) or IHRL, such as torture, or a less serious violation of either regime. Or it can violate some other rule of international law, such as the sovereignty of a third state, or the law of the sea, or diplomatic law. The sharing of intelligence can be an isolated act, or part of a more durable cooperative relationship.

In the second scenario, state B receives tainted information from its partner A. For example, state A captures a terrorist suspect whom it tortures and extracts intelligence from, or A subjects its population to systematic electronic surveillance in violation of international privacy standards, or acquires the information from a third state in a manner that violates that state’s sovereignty or the inviolability of diplomatic premises. A then proceeds to share this information with state B. B is either practically certain or is aware to some level of probability that the intelligence was acquired unlawfully by A, e.g. was a result of torture. B nonetheless receives and uses that information, for instance for targeting purposes in a drone strike. In this scenario there is no doubt that A has acted unlawfully in collecting the intelligence and/or sharing it with B. But it is a much more complicated question of whether, and when, B would be acting unlawfully by soliciting, receiving and using unlawfully obtained and shared information.

The Framework of Responsibility for Complicity

State responsibility for complicity in the two scenarios above will be governed by a network of applicable rules of international law (on which see also the excellent Chatham House research paper on aiding and assisting by Harriet Moynihan). First, by the customary rule in Article 16 of the International Law Commission’s Articles on State Responsibility, which provides that

A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:

(a) that State does so with knowledge of the circumstances of the internationally wrongful act; and

(b) the act would be internationally wrongful if committed by that State. 

This rule is of general application, in the sense that it extends to any possible violation of international law. But it does not stand alone; it is complemented by Article 41 ASR, which categorically prohibits state aid and assistance to maintaining situations created by a serious breach of a peremptory norm of international law, and by regime-specific complicity rules, whose scope and constitutive elements may differ from Article 16. In the context of military operations, in my view both IHL and IHRL both contain such regime-specific complicity rules.

As for IHL, under Common Article 1 of the Geneva Conventions states ‘undertake to respect and to ensure respect’ for the Conventions in all circumstances (see also Rules 139 and 144 of the ICRC Customary IHL Study). The so-called ‘external dimension’ of this overarching obligation has been much debated. The positive duty of states to exercises influence on other states in order to put an end to their violations of IHL remains controversial. But CA1 also imposes a different (and much less controversial), negative obligation on states – not to assist third parties in their violations of IHL. This obligation is categorically different from any positive duty to exercise influence, because it simply requires restraint on behalf of the (potentially) assisting state – for example, the US or the UK not selling weapons to or sharing intelligence with Saudi Arabia, if these would be used for violations of IHL in Yemen.

Thus, for example, in the Nicaragua case, para. 220, the ICJ held that:

[T]here is an obligation on the United States Government, in the terms of Article I of the Geneva Conventions, to “respect” the Conventions and even “to ensure respect” for them “in all circumstances”, since such an obligation does not derive only from the Conventions themselves, but from the general principles of humanitarian law to which the Conventions merely give specific expression.  The United States is thus under an obligation not to encourage persons or groups engaged in the conflict in Nicaragua to act in violation of the provisions of Article 3 common to the four 1949 Geneva Conventions.

The ICRC’s 2016 Commentary on the First Geneva Convention similarly states, at para. 158, that:

Pursuant to common Article 1, the High Contracting Parties have certain negative obligations, which means they must abstain from certain conduct. In particular, they may neither encourage, nor aid or assist in violations of the Conventions. It would be contradictory if common Article 1 obliged the High Contracting Parties to ‘respect and to ensure respect’ by their own armed forces while allowing them to contribute to violations by other Parties to a conflict.

It is in my view perfectly defensible to hold the position, as several governments do, that CA1 and its customary equivalent do not impose a demanding positive duty to exercise influence on third parties – for example, that the UK is not legally obliged to exercise any influence on the parties to the armed conflict in Mali to ensure that they respect IHL. But that says nothing about the negative duty to avoid assisting violations by third parties, which only requires restraint – e.g. not selling weapons or sharing intelligence when these would facilitate violations of IHL. Accepting the existence of the negative duty does not entail acceptance of the positive one.

As for IHRL, the language of the relevant treaties also uses terminology that can easily be interpreted as including a negative duty of states not to be complicit in human rights violations by third parties. However, while the jurisprudence regarding these treaties has distinguished between various positive and negative obligations, human rights bodies are yet to produce a line of cases that unambiguously adopts a complicity theory, stemming from the negative duty to respect human rights, as a responsibility frame distinct both from the direct attribution of the human rights violation and from the responsibility for failing to prevent it.

But that jurisprudence appears to be emerging. For instance, in its General Comment No. 36, para. 63, the Human Rights Committee held that states ‘have obligations under international law not to aid or assist activities undertaken by other States and non-State actors that violate the right to life.’ In the European Court, a developing line of cases deals with states assisting violations by other states or by non-state actors with ‘acquiescence or connivance’ (on which see more here). For example, in several cases dealing with assistance by European States to the ill-treatment, detention and rendition of suspected terrorists by US agents in the ‘war on terror,’ the European Court seemed to be applying an emerging ECHR-specific complicity doctrine. And all human rights bodies have produced a voluminous and substantially similar jurisprudence on the IHRL non-refoulement principle, particularly in the context of the right to life and the prohibition of torture and other forms of ill-treatment, which is not exactly equivalent to a complicity doctrine but rests on similar foundations (see similarly Miles Jackson here).

That human rights bodies have not yet systematically articulated complicity doctrines is best explained by the breadth of the positive duty of prevention, which is long-established in their jurisprudence. But no reason of principle would militate against an IHRL-specific complicity rule. On the contrary, such a rule could lead to greater descriptive and conceptual accuracy, and hence to greater certainty and predictability. It could enhance human rights bodies’ ability to apportion blameworthiness, providing them with the language to express variability in the stigma attached to human rights violations, as a mid-way point on a spectrum which ranges from the ‘mere’ failure to diligently protect an individual to the direct attribution of the violation to the state.

The Elements of Responsibility for Complicity

All of the complicity rules mentioned above have the same basic structure. First, the assisting state is being held responsible for facilitating the wrongful conduct of its partner, but such responsibility arises only if the wrongful act and the facilitation actually occur. Complicity does not exist without the principal’s wrong. Second, relatedly, they all require a causal nexus between the aid and assistance provided by the assisting state and the wrongful act committed by the partner. The nexus threshold must be neither too high nor too low; on the one hand assistance need not be the but for cause of the wrongful act, while on the other it should not capture incidental or de minimis acts of assistance – the most common formulations used in that regard is that the assistance significantly, substantially or materially contributed to the commission of the wrongful act.

Third, finally, the complicity rules require that the assisting state provided its assistance (e.g. intelligence) with some degree of fault (culpability, subjective element). For example, the assisting state would be liable for complicity in the partner’s act if it assisted it purposely, intentionally, knowingly, recklessly, negligently. The question of fault in complicity has provoked the most controversy; the calibration of that standard – or standards – is the single most important issue on which the practical utility of complicity rules will turn, in the intelligence sharing context or otherwise. Much of my article is thus about developing a general theory of fault in state complicity, and should thus be of interest even to those readers who do not care about intelligence sharing as such.

The key argument that I make in the piece is that Article 16 ASR should be interpreted as employing a variegated mental element, containing three alternative modes of fault. That mental element can then serve as normative baseline for regime-specific complicity rules, such as those of IHL and IHRL, which can be looser, but not stricter, than Article 16. I will turn to the question of state fault in complicity in my next post in the series.

This post is part of a series; the other essays in the series are available here: Part I, Part III, Part IV.