States regularly share intelligence with both state and non-state partners. If, for example, UK agencies were to share intelligence with another state while being aware of a risk that this intelligence could facilitate torture, would the UK violate international law in doing so? Conversely, if UK agencies were to receive intelligence that they knew may have resulted from the use of torture or from a violation of sovereignty or diplomatic law by a partner, would the receipt and subsequent use of such intelligence by the UK be unlawful?
Marko Milanovic, Professor of Public International Law at the University of Nottingham and Co-Director of the Human Rights Law Centre, will be discussing the findings of his British Academy-funded research project on intelligence sharing together with Miles Jackson, Associate Professor at the University of Oxford. Sangeeta Shah, Associate Professor at the School of Law will be chairing the discussion, followed by a Q&A session.
Professor Milanovic’s article on Intelligence Sharing in Multinational Military Operations and Complicity under International Law resulting from the project has just been published by International Law Studies. The article examines the international legal framework applicable to intelligence sharing in multinational military operations, with a particular focus on complicity scenarios. It looks in detail at the rule codified in Article 16 of the International Law Commission’s Articles on State Responsibility, and argues that this rule is best understood as employing multiple modes of fault (direct and indirect intent and wilful blindness).
The article also argues that international humanitarian law (IHL) and international human rights law (IHRL) possess their own complicity rules. These regime-specific rules can apply to State assistance to non-state actors and can employ more relaxed modes of fault than Article 16. A State could thus be responsible for facilitating the commission of serious violations of IHL and IHRL through the sharing of intelligence or the provision of other aid if it consciously disregarded a risk that its partner would commit such violations with the aid provided.
The article then looks at the role that mitigation measures employed by the assisting State, such as diplomatic assurances, have in assessing its responsibility for complicity, and at whether risks generated by the provision of assistance can lawfully be balanced against the risks generated by suspending assistance.
Finally, the article examines two basic scenarios – that of sharing intelligence that facilitates a partner’s wrongful act, and that of receiving unlawfully obtained or shared intelligence.