3 April 2014

Facilitating drone strikes: sharing responsibility for sharing intelligence

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.

Tags: Australia, Drone Strikes, Germany, Intelligence, Metadata, NL, NSA, Pakistan, Somalia, UK, US