Dr Emma J Marchant
Introduction
In recent days there has been increasing focus on intelligence sharing arrangements with Ukraine. The legal question that has primarily been addressed is at what point an intelligence sharer becomes a party to the ongoing conflict. As Milanović and Schmitt have made clear, there is a distinction to be drawn between types of intelligence, and thus there is a certain level of complexity in establishing the legal rules. This piece takes the debate on intelligence sharing somewhat further, and instead of discussing when a state becomes a party to an international armed conflict, it questions the accountability issues under IHL during armed conflict; who is accountable for intelligence validity and verification? I suggest that any intelligence being shared with Ukraine places on them an obligation to verify it to comply with principles of IHL. Furthermore, whilst those states sharing intelligence may not immediately be held accountable for civilian casualties resulting from this intelligence, it is overly simplistic to apportion the sole blame to the triggerman.Limits of IHL
It is important to note the limit of IHL to the parties to a conflict, and as such the analysis of scholars Schmitt and Milanović is significant. Schmitt asserts that if the level of “intelligence intentionally makes a material and integral contribution to particular attacks or defense against them” then the supplying state could become a party to the conflict. I concur with his balanced analysis, and suggest that this means accountability for any errors or mistakes made because of this intelligence sharing would be covered by IHL.
Over the last week there have been claims that the US provided intelligence that resulted in the destruction of the warship Moskva, and provided information to target Russian generals. The US seems keen to distance itself from the specific targeting decisions reached, stating that: “Ukraine combines information that we and others provide with intelligence they’re gathering themselves … and then they make their own decisions,” … “We do provide them useful intelligence, timely intelligence,” Kirby added, but he did not detail what that is or how it has been exploited.”
A later press briefing stated that the: “…President was displeased with the leaks. His view is that it was an overstatement of our role — an inaccurate statement — and also an understatement of the Ukrainians’ role and their leadership.”
The legal discussions presented by Milanović and Schmitt show there could be a point at which an intelligence sharing state could become a party to the international armed conflict. In that case the distancing of the US from the leaks and the supply of tactical intelligence to direct specific strikes would seem clear. The question is, if Ukraine base a targeting decision solely upon information that they receive from an intelligence partner, what obligation do they hold to verify it? And further, can the US or NATO be held accountable for civilian casualties that result if they were to provide information that led to these?
The Law
There is no legal issue with the targets that are so far linked to the recent intelligence sharing leaks. In that the targeting of battleships and military generals is in accordance with IHL. The primary issue would arise if it was found 3rd party state intelligence had been used in an incident that resulted in the death or injury of those protected under IHL, such as civilians or hospitals. Intelligence, whilst self- evidently required by IHL, is not explicitly discussed by the principles of IHL. As is well documented, parties to a conflict are obligated to maintain the core principles of distinction and proportionality in attack, and to balance military necessity and protection of civilians during armed conflict.
The key principle of IHL that covers intelligence, and verification of targets, is the precautionary principle. This is customary law and requires states to “do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects…” (API Art, 57(2)(a)) This standard is not absolute and does not require commanders to have infallible intelligence information at the point of launching an attack. As Dinstein states: “Palpably, no absolute certainty can be guaranteed in the process of ascertaining the military character of an objective selected for attack, but there is an obligation of due diligence and acting in good faith.” (p. 90). This obligation, whilst not absolute, is certainly proactive in requiring states to take pre-emptive action. A good example of the precautionary principle in practice is gleaned from the Committee of Experts in their Final Report to the Prosecutors following the NATO bombing campaign over the former Yugoslavia. It stated: “A military commander must set up an effective intelligence gathering system to collect and evaluate information concerning potential targets.” However, this is still caveated by the feasibility criteria, requiring only that which is possible under the circumstances prevailing at the time. Therefore, it can be said to be a proactive but contextual standard, with no absolute obligation on the intelligence gathering system to produce accurate information. However, it does require those who plan or conduct attacks to do everything feasible to verify targets are military objectives and this could include gaining more information.
The precautionary principle is established as a continuing obligation to be maintained during the targeting process, requiring those attacks to be cancelled or suspended should it become apparent that a target is not a military objective.
It is here that the issues of intelligence sharing become apparent; when one state identifies a target that is then executed by another. Coalitions have been sharing intelligence for many years, both NATO and the five-eyes alliance demonstrate this, but the details have always been rather harder to establish. Nonetheless, we have some indication of the potential state liability for the supply of flawed intelligence to another party under IHL, and thus an idea of liabilities presented by the current intelligence sharing with Ukraine.
Lessons from History
An illustrative example of the challenge of intelligence sharing is found during the 1999 NATO operation over Kosovo. The Varvarin Bridge case concerned the death of 10 civilians with a further 30 injured when a bridge that was determined to be a supply link from the north to the south-central region of Serbia was targeted by US F-16 aircraft. The bridge had originally been added to the targets list by the German Air Force, and this led to a challenge in the German courts for compensation from the families of the victims.
In its final judgement the Bundesverfassungsgericht established that German forces did not breach IHL. They asserted that the significant fact is that the addition of the bridge to a possible targets list: “did not reflect a final military decision by NATO to attack those targets but a temporary and abstract assessment that they might be marked for attack should circumstances occur that would allow such action in conformity with international law.” Therefore, the decision was made by the Court that providing the bridge as a potential military target for inclusion on a targeting list, would not be in breach of IHL, and thus no state liability could be found. This then tends to support the idea that merely supplying intelligence is insufficient to create accountability for mistakes of targeting. Thus, the supplying of intelligence to Ukraine merely on troop movements, Russian preparedness and similar ‘temporary and abstract’ assessments would appear not to create liability under IHL.
However, it would be overly simplistic to suggest that intelligence supply could never lead to liability under IHL. The point made in the Varvarin Bridge case is that the initial assessment resulted in a target being listed, but the following actions were out with the control of the German Air Force. This turns on the legal principle that it is those: “who decide(s) upon or plan(s) an attack” (API Art. 57(1)) who can be found liable for the error. However, this is not the complete picture either, as the Djakovica convoy attack illustrates. Here the nature of the convoy was questioned by the pilots conducting the airstrike. A specialist surveillance aircraft was sent to the area and the strike was then cancelled. Thus, it is not only the planner who can cancel the attack but moreover “those who have the authority and practical possibility to cancel or suspend the attack.”
The obligation on verification is thus ongoing and simply adding names, coordinates, or similar to a ‘kill list’, in theory, does not create clear problems for IHL.
That said, this is far from simple when several states are involved, and various sources of intelligence are being collated. A recent example of this, and of the challenge of being the intelligence source to start the targeting cycle, is found in 2016 over Syria. In conducting airstrikes near Deir ez-Zor, coalition forces mistakenly targeted what were referred to as: “forces aligned with the government of Syria.” This strike involved aircraft from Denmark, Australia, the UK and the US, with the resulting investigation concluding that: “confirmation bias stemming from that first misidentification coloured subsequent decisions made by others involved in the strike.” The complexity of the planning process was said to have unfolded over several days with: “‘multiple, multiple’ shift changes ‘in different parts of the globe’ contributing to human error.” This use of multiple states intelligence sources, the blurring of targeting procedures and the confirmation bias presented by the initial intelligence analyst resulted in an incorrect attack. As a result of this the RAAF confirmed that there would be improved information sharing amongst coalition partners. Not only do these undermine the legitimacy and reputation of the coalition conducting the attacks, they also serve no clear military purpose.
Whilst the considerations presented by the supply of intelligence to Ukraine are somewhat different to those within coalitions the accountability for the validity of the intelligence is still contestable
Conclusion
The US are keen to show that the intelligence they are supplying is just one part of the intelligence stream used by the Ukraine commanders in targeting decisions. This would appear to be both politically and legally motivated. However, this presents a challenge to Ukraine, in that whilst they are already under the obligations to conduct their attacks in accordance with IHL they now have the increased obligation to provide some form of verification for the information supplied by third party states. If they should fail to carry out all feasible precautions in the verification of this information, bearing in mind the conditions prevailing at the time, then they could face difficulties similar to those examples mentioned above. The US and other intelligence supplying states likewise could, in due course, see challenges being raised domestically over the provision of intelligence, as was seen in the Varvarin Bridge case. This has also been seen more recently in the UK over an incident in Takhar in 2010, where the initial, flawed, intelligence was claimed to have been sourced domestically before being added to a target list in Afghanistan. Whilst none of these claims has yet been upheld by domestic courts, the reputational damage of flawed intelligence should not be underestimated.
Therefore, careful consideration should be given to the sharing of intelligence for use during armed conflict. The legal obligations of verification are most clearly seen at the end of the process, with Ukraine presently bearing the heaviest burden of obligations. But history shows us that it is all too often the initial information that can lead to confirmation bias and error. IHL establishes state liability through the precautionary principle of IHL, and whilst domestic courts have so far been reluctant to recognise a breach of IHL, the legitimacy of military operations can be severely undermined. Moreover, in seeking to support Ukraine, states sharing intelligence must recall the obligations of IHL to protect civilians from the effects of hostilities and support their partner with valid, verifiable intelligence.
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