Intelligence and International Law

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Intelligence and International Law

█ JUDSON KNIGHT

The principal statutes of international law guiding intelligence operations are the laws of war established by the conferences at The Hague in The Netherlands in 1899 and 1907, and by a series of conventions in Geneva, Switzerland, between 1864 and 1975. Particularly significant are the 1907 Hague Land Warfare Regulations and the third and fourth Geneva Conventions of 1949, which address treatment of prisoners of war (POWs), spies, and mercenaries. U.S. actions to combat terrorism and terror-supporting entities following the September 11, 2001, attacks prompted a national and international debate over the application of international law.

The Framework of International Law

The term "international law" is somewhat misleading, inasmuch as law usually implies a system to which its subjects are required to submit, whether they agree to it or not. International law, on the other hand, rests almost entirely on the consent of nations to abide by that law, and the willingness of signatories to enforce it through sanctions, military actions, or other means. International law governs rules of peace, war, and neutrality. Laws of peace address matters such as the recognition of one nation by another, as well as guarantees of territorial sovereignty and the extent of territorial waters. Laws of neutrality prevent combatants in a war from moving troops or material across neutral territory, while laws of war govern treatment of combatants, civilians, medical personnel, and POWs in wartime.

Geneva 1864 and the Hague conferences. The concept of international law dates back to the writings of seventeenth-century Dutch statesman Hugo Grotius, who established the principle that nations should abide by conventions of conduct. The first significant attempt to establish a body of international law occurred when 12 nations met in Geneva in 1864. The first Geneva Convention, which addressed "the amelioration of the condition of the wounded on the field of battle," resulted in principles for protecting noncombatant personnel caring for the wounded, and established the International Red Cross.

During two conferences held at The Hague in 1899 and 1907, a much larger body of nations—44 in the case of the 1907 Hague Peace Conference—signed a total of 14 conventions governing laws of war, peace, and neutrality. The 1899 Hague Convention established a Permanent Court of Arbitration, which became the Permanent Court of International Justice under the League of Nations following World War I. The United Nations, established after World War II, changed its name to the International Criminal Court, but it is known popularly as the World Court.

Laws on treatment of POWs. During the period from 1928 and 1975, a series of Geneva Conventions addressed a number of issues relating to warfare, including the use of chemical and bacteriological weapons, as well as the treatment of POWs. These, along with the earlier Hague agreements, established the principles whereby intelligence could and could not be gathered from combatants. Particularly significant in this regard were the third and fourth Geneva Conventions of 1949, often referred to as Geneva Conventions III and IV.

According to Article 17 of Geneva Convention III, POWs are required to provide interrogators only with surname, first name, rank, date of birth, identification number, or equivalent information. The same article states that "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever." Article 31 of Geneva Convention IV prohibits the use of torture against civilians "in particular to obtain information from them or from third parties."

On the other hand, Article 24 of the 1907 Hague Land Warfare Regulations notes that "measures necessary for obtaining information about the enemy and the country are considered permissible"—a recognition of the fact that nations will conduct intelligence operations in wartime. Protocol I, Article 46 states that military personnel gathering intelligence while in uniform are to be accorded the treatment due other combatants, but expressly withholds these protections from undercover operatives or agents captured while in the act of conducting espionage. Article 47 similarly exempts mercenaries—those who fail to meet standards of lawful combatants established by Article 44 of 1907 Conference—from the rights of POWs. A similar provision exists in Geneva Convention III.

International law and the war on terrorism. After the September 11 attacks, the United States launched a war on Afghanistan, whose Taliban regime was harboring and abetting operatives of the al-Qaeda terror network. The United States transported large numbers of Taliban and al-Qaeda personnel to holding centers at Guantanamo Bay, U.S.-controlled territory on the island of Cuba. U.S. authorities accorded Taliban members, because they represented a national government, the rights of POWs, but regarded al-Qaeda personnel as mercenaries according to international law.

In practice, this distinction resulted in more aggressive questioning, and less concern for the physical comfort, of al-Qaeda operatives. Nevertheless, al-Qaeda personnel were provided with basic necessities, allowed to practice their religion, and otherwise treated in a manner no different from their Taliban cohorts. However, many groups in Europe and America regarded the distinction between al-Qaeda and Taliban as unlawful, and the American Bar Association passed a resolution calling for the granting of legal counsel to al-Qaeda detainees. Many critics of American policy cited "Protocol One," a 1977 addition to the Geneva Conventions designed to provide rights to personnel previously regarded as "unlawful combatants." President Ronald Reagan had rejected "Protocol One" in 1987 on the grounds that it was designed to protect the rights of terrorists.

American actions against terrorists also elicited criticism when senior al-Qaeda operative Khaled Sheikh Mohammed, captured in Pakistan in 2003, was detained in an undisclosed location while U.S. personnel—in the words of a Department of Defense statement—applied "all appropriate pressure" to extract intelligence from him. Government officials maintained repeatedly that Mohammed was not being tortured, and several noted that, aside from all moral or legal implications, torture is not usually an effective means of obtaining reliable information.

█ FURTHER READING:

BOOKS:

Kish, John, and David Turns. International Law and Espionage. Boston: M. Nijhoff Publishers, 1995.

Reisman, W. Michael, and James E. Baker. Regulating Covert Action: Practices, Contexts, and Policies of Covert Coercion Abroad in International and American Law. New Haven, CT: Yale University Press, 1992.