Facilitating drone strikes: sharing responsibility for sharing intelligence

 Posted by: Nedeski Nataša

The exchange of information between Dutch intelligence services and the United States National Security Agency (NSA) is no longer taking place entirely outside the public eye. After a graph published in German news magazine Der Spiegel in August 2013 initially seemed to suggest that the NSA had intercepted 1.8 million records of metadata from Dutch phone calls in the period of December 2012 to January 2013, it became clear this February that Dutch intelligence services had gathered these records themselves, and had subsequently shared them with the NSA. This information consisted of metadata records gathered in the context of anti-terrorism and military operations abroad.

A substantial share of Dutch intelligence efforts is directed towards Somalia, and millions of Somali phone calls have been intercepted from both the Dutch town of Burum and Dutch navy ship HMS Rotterdam. The Netherlands has been collecting this information in order to support the Dutch contribution to the navy missions combating piracy in the Gulf of Aden. The (meta)data is shared with the NSA (who do not have access to Somali telephone traffic) and in return the US has provided the Netherlands with technical support needed to intercept local telephone traffic from the HMS Rotterdam.[1]

But it appears that the US has been using this data for a different purpose. Since 2011 the US has been carrying out drone strikes in Somalia in the context of its war against terrorism, and on 8 March 2014 Dutch newspaper NRC Handelsblad revealed that it is likely that the United States is using Dutch data to support drone strike operations on (alleged) members of Al-Shahaab in Somalia. NRC Handelsblad bases this assertion on several Dutch and US documents made public by NSA whistleblower Edward Snowden, and reports that the Dutch Ministry of Defence cannot exclude that the metadata shared with the US is used in order to facilitate such targeted killings.

According to research done by The Intercept metadata play a crucial role in US targeted killings. This places the Netherlands in a tedious position, as the legality of targeted killing by drone strikes remains highly controversial. Assuming that these attacks can at least in some circumstances be qualified as breaches of international law, the Netherlands could be contributing to internationally wrongful acts committed by the US. And it is in good company: the United Kingdom, Germany and Australia have all been accused of involvement in US drone strikes through intelligence-sharing.

A variety of actors appears to be involved in the US’ wrongful acts, including not only states but also individuals. The question that inevitably arises is the following: can these international actors be held internationally responsible for sharing intelligence that facilitates the commission of wrongful acts by the US?

State responsibility for aid or assistance

The obvious place to start in answering this question would be article 16 of the ILC Articles on State Responsibility, which provides that a State can be held internationally responsible when it aids or assists another State in the commission of an internationally wrongful act. When applied to our scenario, it needs to be established that the conduct in question would be internationally wrongful, if it were to be committed by the Netherlands. It is indeed arguable that this would be the case. Moreover, the Netherlands must have had knowledge of the circumstances of the wrongful act. While it is unclear whether the Netherlands was initially aware of the fact that their intelligence might be used to facilitate US drone strikes, it should surely know now (which is relevant as long as the Dutch keep sharing intelligence).

However, it may prove to be more difficult to meet the requirements mentioned in the ILC’s commentaries, which clarify that knowledge is not enough; the Netherlands should have intended to facilitate the US drone strikes in Somalia.[2] Establishing a State’s intent remains a daunting task, which becomes even more difficult in situations that are characterised by such a remarkable lack of transparency.

Moreover, it is not entirely clear what threshold aid or assistance should reach in order to result in responsibility. The ILC’s commentaries at one point state that the aid or assistance should have ‘contributed significantly to the act’, but at another point assert that it ‘may have been only an incidental factor in the commission of the primary act’.[3] In any case, chances are that the extent in which Dutch intelligence has facilitated US drone strikes will remain uncertain. The Dutch Ministry of Defence has stated that revealing the extent in which intelligence contributes to a specific mission would reveal the mode of operation of Dutch intelligence services, which it cannot do as this would endanger both the operation and the lives of soldiers.

Individual criminal responsibility for complicity in war crimes

NGOs Reprieve and the Foundation for Fundamental Rights (FFR) have chosen to address this question from a different angle. On 19 February 2014 they submitted a communication to the International Criminal Court (ICC), requesting the Prosecutor to investigate the role of the UK, Germany, Australia and other NATO allies in US drone strikes in Pakistan. One commentator has already pointed out the difficulties that might arise in establishing the ICC’s jurisdiction.

While the US and Pakistan are not parties to the Rome Statute, the communication argues that the ICC has jurisdiction because a) the drone strikes are launched from Afghanistan, which is a party to the Rome Statute, and b) nationals of the UK, Germany and Australia (which are all parties to the Rome Statute) are potentially facilitating these drone strikes through intelligence sharing. Reprieve and FFR would like to see these individuals be held criminally responsible by the ICC for their complicity in US war crimes. Though there seems to be far less information available on US drone attacks in Somalia, theoretically speaking a similar argument could be made regarding the role of Dutch nationals in targeted killings on Somali territory.

But even though the practice of intelligence sharing gives rise to a variety of potential shared responsibility scenarios, there is one main problem that stands in the way of determining responsibility: the complete lack of transparency surrounding drone strikes and intelligence sharing. It appears that there is currently no international obligation that would require states to disclose such information. Unfortunately, this will more often than not entail that rather than establishing shared responsibility, we are simply left with no responsibility.

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[1] See NRC, ‘The secret role of the Dutch in the American war on terror’, by Steven Derix and Huib Modderkolk, available at http://www.nrc.nl/nieuws/2014/03/05/the-secret-role-of-the-dutch-in-the-american-war-on-terror/.

[2] International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001 (A/56/10), at 66, para. 5

[3] Ibid.; also p. 67, para. 10.

“Everyone does it”: NSA Spying and International Law

 Posted by: Gibney Mark

Seemingly lost in the daily revelations uncovering massive levels of National Security Agency (NSA) surveillance – wiretapping and metadata collection alike – is the issue of who is responsible for these violations of the human right to privacy. The quick and ready answer is the United States and certainly no other country is anywhere near as well placed (or, apparently, as intent) on gathering information on what literally billions of people in the world are doing each day – whether it be who they talk to and email, where (physically) these individuals might happen to be at any given time and who is with them, and finally, what people say, believe and perhaps even think.

Yet, although the U.S. should shoulder the lion’s share of (moral) blame and (legal) responsibility, matters are not nearly as simple as this. For one thing, one of the common refrains, at least by defenders of such surveillance programs, is that “everyone” does it, which seems to suggest that the United States is no different from any other country.

Under this scenario, the United States spies on Germany – but Germany also spies on the United States. In that way, if all are responsible no single country could, or should, bear special responsibility. Setting aside the question whether there is any likelihood that the German government was able to eavesdrop on the conversations of Presidents Bush and Obama over the past decade in the same manner in which the NSA listened in on Chancellor Merkel, still there is at least some logic in this formulation. In addition, perhaps governments really do not have any legitimate expectations of privacy. Thus, the real problem comes when governments spy on ordinary citizens who have shown absolutely no proclivity towards, or sympathy with, international terrorism.

Yet, beyond the obvious issue of privacy, NSA spying raises some important questions concerning international law itself. One involves the meaning of “state sovereignty” in the sense that the United States has been able to systematically operate in a host of other countries over an extended period of years and has done so with impunity. The second way that the principle of state sovereignty gets called into question is that the domestic governments of these spied upon countries apparently made little, if any, attempt to protect the privacy rights of their own citizens. The point is that this is nothing like how state sovereignty is generally conceptualized.

Beyond this, NSA spying casts serious doubt on the dominant interpretation of two of the most vexing terms in international law: “jurisdiction” and “territory.” With regard to the former, there has been a repeated tendency to restrict the meaning of this term to nothing more than “effective control” over a particular individual or an area of land. Yet, the various NSA spying programs show how limited this view of jurisdiction happens to be. At a minimum, we now know that the United States has exercised some form of jurisdiction – there is no other term for it – over at least half of the people living on this planet.

A country’s “territory” does not change. However, what needs to change is our notion that a human rights violation – privacy in this case – necessarily occurs in the country where a person happens to be located. Rather, a person who is in one state can send an email message that can be intercepted in another state and this data can be transferred to additional states. Where, exactly, has the human rights violation taken place?

But to return to the issue of state responsibility, it is important to note that the U.S. has not acted alone. For one thing, some states have served as listening posts for the NSA, oftentimes from their embassies in foreign lands. In addition, data has been shared across national borders, especially when domestic constraints, or at least the fear of domestic backlash, has restricted states from spying on their own citizens. The easy solution, or so it seems, is to rely on the U.S. to do the spying for these states, much in the way that under extraordinary rendition programs the United States has outsourced much of its dirty work to other countries.

It is by no means clear how responsibility under these various scenarios would be assigned or the forum where such claims could be pursued. However, perhaps the real question is whether NSA spying will serve as yet another example of the impotency of international law to address important “global” problems, or whether the unseemly and illegal practices of NSA surveillance can only be reined in by this law.

Tags: NSA, Spying, US