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STATE INTELLIGENCE GATHERING:
CONFLICT OF LAWS
CharlesH.B. Garraway*
I. INTRODU CTION .....................................................575
II. THE LAW OF WAR ..............................................576
III. HUMAN RIGHTS LAW ............................................580
IV. THE CATEGORIES OF CONFLICT .....................................583
V. THE APPLICATION OF HUMAN RIGHTS LAW ............................585
VI. THE SPECTRUM OF VIOLENCE ..................................................587
VII. THE LEGAL OVERLAP ............................................589
VIII. THE DANGERS OF DIVERGENCE .....................................592
IX. CONCLU SIONS.................................................593
I. INTRODUCTION
When Leo Tolstoy wrote War and Peacein the late 1860s,' the world
was a very different place. Just as the world has changed, so too has the
international legal regime. This Article will examine the development of
different international legal regimes over the last century or so, and will
assess their impact on intelligence-gathering operations. In particular, it
asks whether the divisions between the different regimes are relevant in
today's complex world or whether it is necessary instead to look at a
more coherent structure that can reach across the legal divides.
This Article begins with an examination of the development of the
law of war (Part II) and human rights law (Part III) before looking at the
differing legal categories of armed conflict (Part IV). It then examines
the applicability of human rights law in situations of armed conflict (Part
V) and the increasing complexity of defining violence, whether as armed
conflict or otherwise (Part VI). The Article proceeds with an examination
of the overlap between the law of war and human rights law (Part VII)
and the risk of divergence that this overlap causes (Part VIII). Finally, it
seeks to draw some conclusions and suggestions on the way ahead (Part
IX).
* Visiting Professor of Law, King's College, London; Associate Fellow, Chatham
House; and Visiting Fellow of the Human Rights Centre, University of Essex. The author is
also a former Stockton Professor of International Law at the U.S. Naval War College, Newport,
Rhode Island.
1. A part of War and Peace was first published under the title "The Year 1805" in a
Moscow magazine, The Russian Messenger. DERRICK LEON, TOLSTOY: His LIFE AND WORKS
136 (1944). The whole work appeared first in Moscow as a six-volume novel under the title of
Warand Peace,the first four volumes in 1868 and the last two in 1869. Id.
Michigan JournalofInternationalLaw
II. THE LAW OF WAR
The legal scholars ofTolstoy's day would find it hard to comprehend
the developments in international law over the past 150 years and particularly
in the latter half of the twentieth century. When Oppenheim
wrote his seminal treatise on international law in 1906, the subject was
divided into the law of war and the law of peace.2 At that time, international
law was in its infancy. State sovereignty was still the dominant
feature of the world order, certainly in the West. As a result, internal affairs
were left exclusively to domestic jurisdiction.
It was only in areas where the tectonic plates of individual state sovereignty
rubbed together that international law was seen as necessary.
War between states was obviously such an area, but while unwritten
conventions on the conduct of hostilities had been accepted for centuries,
it was only in the mid-nineteenth century that the law of war began to be
codified. This codification developed in two separate areas: first, the protection
of "victims of war" (primarily meaning, in the beginning,
combatants who were rendered hors de combat by wounds, sickness,
shipwreck, or surrender), and second, the conduct of hostilities. The protection
of victims was principally sponsored by the International
Committee of the Red Cross (ICRC) through successive Geneva Conventions,
while treaties on the conduct of hostilities arose, for the most
part, through initiatives of states, which often sought to restrict rivals
from taking advantage of technical innovations. War was a distinct state
of affairs and indeed, as late as 1907, a convention was adopted laying
out the correct procedures for declaring war.3
Intelligence gathering is obviously an important part of military operations,
but the manner in which it was handled at the time illustrated
the tensions between international and national law. Espionage was seen
as a domestic matter and thus not prohibited under international law.
However, as it usually involved the conflicting interests of different, and
indeed warring, states, it was necessary that the law of war at least provide
some guidance. The Annex to Hague Convention IV, containing the
Regulations Respecting the Laws and Customs of War on Land, contained
three articles dealing with espionage.4 Article 29 provided a
2. See LASSA OPPENHEIM, INTERNATIONAL LAW: A TREATISE (1st ed. 1906).
3. Hague Convention Relative to the Opening of Hostilities, Oct. 18, 1907, 36 Stat.
2259, 1Bevans 619.
4. Regulations Respecting the Laws and Customs of War on Land, Hague Convention
Respecting the Laws and Customs of War on Land, Annex, arts. 29-31, Oct. 18, 1907, 36 Stat.
2277, 1 Bevans 631 [hereinafter Hague Regulations]. Compare similar (though nonbinding)
language in the Project of an International Declaration Concerning the Laws and Customs of
War, Aug. 27, 1874 [the Brussels Declaration]; and Les Lois de la Guerresur Terre [The Laws
[Vol. 28:575
State Intelligence Gathering
definition of a "spy" as someone who, "acting clandestinely or on false
pretences ... obtains or endeavours to obtain information in the zone of
operations of a belligerent, with the intention of communicating it to the
hostile party."5 Article 30 indicated that "a spy taken in the act shall not
be punished without previous trial,, 6
thus outlawing the practice of executing
spies without trial when captured inflagrante.Of interest is that
the mode of trial was not specified, as this remained a matter for domestic
law. Furthermore, under Article 31, a spy who managed to escape and
rejoin his own forces, if subsequently captured by the enemy, was to be
"treated as a prisoner of war, and incur[red] no responsibility for his previous
acts of espionage."7 (In this respect, Article 31 reads like a code of
chivalry.) International law thus was of limited import and made no attempt
to intervene in areas, such as administration of justice, that were
seen as purely within the purview of domestic jurisdiction
International law, through the Hague Regulations, also included provisions
regulating the treatment of captured personnel, particularly
prisoners of war: "every prisoner of war is bound to give, if he is questioned
on the subject, his true name and rank."9 The Regulations,
however, did not restrict the nature of questioning other than to require
"humane treatment" in Article 4.'0
Finally, how a state dealt with its own population and gathered intelligence
within its own boundaries in times of peace or war was not
something with which international law was concerned at the time. State
sovereignty remained supreme and such issues were left entirely to domestic
law.
This all changed with the Second World War. The treatment by the
Third Reich of elements of its own population, particularly the Jews, and
the populations in occupied territories led to a revolution in international
law. The law of war expressed increased concern for the protection of
civilian populations, particularly in occupied territory; this concern led
to the adoption of the Fourth Geneva Convention of 1949 on the Protection
of Civilian Persons in Time of War." The references to espionage in
this Convention are effectively limited to Article 5, which provides:
of War on Land], ANNUAIRE DE L'INSTITUT DE DROIT INTERNATIONAL, Sept. 9, 1880, available
at http://www.icrc.org/ihl.nsf/FULL/140?OpenDocument [the Oxford Manual].
5. Hague Regulations, supra note 4, art. 29.
6. Id. art. 30.
7. Id. art. 31.
8. For an example of how domestic law dealt with such cases, see Ex parte Quirin,
317 U.S. 1 (1942).
9. Hague Regulations, supra note 4, art. 9.
10. Id. art.4.
11. Geneva Convention Relative to the Protection of Civilian Persons in Time of War,
Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV].
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Michigan JournalofInternationalLaw
Where in occupied territory an individual protected person is detained
as a spy or saboteur, or as a person under definite
suspicion of activity hostile to the security of the Occupying
Power, such person shall, in those cases where absolute military
security so requires, be regarded as having forfeited rights of
communication under the present Convention.
In each case, such persons shall nevertheless be treated with
humanity, and in case of trial, shall not be deprived of the rights
of fair and regular trial prescribed by the present Convention.
They shall also be granted the full rights and privileges of a protected
person under the present Convention at the earliest date
consistent with the security of the State or Occupying Power, as
the case may be.'
The drafting of the Geneva Conventions introduced three major innovations.
The first was a move away from the former understanding of
"war." All four Geneva Conventions of 1949 were to apply "to all cases
of declared war or of any other armed conflict which may arise between
two or more of the High Contracting Parties, even if the state of war is
not recognized by one of them."'3 This definition effectively rendered
moot the Third Hague Convention of 1907 and was more in keeping
with the new era of United Nations law, whereby "the threat or use of
force against the territorial integrity or political independence of any
state""4 was prohibited. It was no longer open to a state to excuse itself
from international liability by insisting that it was not at "war" in the
legal sense. The test was now a factual one: whether the level of violence
amounted to an "armed conflict." While this inevitably led to a degree of
uncertainty in that there was no specific test to ascertain what level of
violence was required, it also increased the operational coverage of the
Conventions.
Second, the existing law of war treaties were only applicable to wars
in which all belligerent parties were parties to the treaty. For example,
Article 2 of the Fourth Hague Convention specifically stated that "[t]he
provisions contained in the Regulations referred to in Article 1, as well
12. Id. art. 5.
13. See id. art. 2; see also Geneva Convention for the Amelioration of the Condition of
the Wounded and Sick in Armed Forces in the Field art. 2, Aug. 12, 1949, 6 U.S.T. 3114, 75
U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick
and Shipwrecked Members of Armed Forces at Sea art. 2, Aug. 12, 1949, 6 U.S.T. 3217, 75
U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War art. 2, Aug. 12,
1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Geneva Convention II]. For convenience,
further references to the "Common Articles" will refer to the "Geneva Conventions."
14. U.N. Charter, art. 2, para. 4.
[Vol. 28:575
State IntelligenceGathering
as in the present Convention, do not apply except between contracting
Powers, and then only if all the belligerents are parties to the Convention."'5
Thus, in the case of a world war, if only one belligerent was not a
party, the treaty would be inapplicable throughout the conflict. The Geneva
Conventions changed this rule so that while belligerents who were
not parties to the Conventions were not, of course, bound by them, those
who were parties remained bound in their mutual relations even if any or
all of the other belligerents were not parties.'6
The third innovation was in Common Article 3 to the Conventions.' 7
The law of war, as has been noted, applied only to international armed
conflicts, conflicts between states. Common Article 3 brought internal
conflicts and civil wars within the jurisdiction of international law for
the first time. Of all the articles in the four Conventions, Common Article
3 alone applied "in the case of an armed conflict not of an
international character occurring in the territory of one of the High Contracting
Parties."'8 Although the ICRC had wanted to apply the complete
law of war to internal conflicts, this was a step much too far for most
states; the concept of state sovereignty still insisted that such events were
a matter for domestic law only. Common Article 3 was the best that
could be achieved and merely lays down important principles. All parties
to the conflict, both state and nonstate actors, are bound to apply the following
minimum provisions:
(1) Persons taking no active part in the hostilities, including
members of armed forces who have laid down their arms and
those placed "hors de combat" by sickness, wounds, detention,
or any other cause, shall in all circumstances be treated humanely,
without any adverse distinction founded on race, colour,
religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain
prohibited at any time and in any place whatsoever with respect
to the above-mentioned persons:
(a) violence to life and person, in particular murder of all
kinds, mutilation, cruel treatment and torture;
15. Hague Convention Respecting the Laws and Customs of War on Land art. 2, Oct.
18, 1907, 36 Stat. 2277, 1 Bevans 631.
16. Geneva Conventions, supra note 13, Common Article 3 ("Although one of the Powers
in conflict may not be a party to the present Convention, the Powers who are parties
thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by
the Convention in relation to the said Power [a Power that is not a Party], if the latter accepts
and applies the provisions thereof.").
17. Id. Common Article 3.
18. Id.
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Michigan JournalofInternationalLaw
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating
and degrading treatment;
(d) the passing of sentences and the carrying out of executions
without previous judgment pronounced by a
regularly constituted court, affording all the judicial guarantees
which are recognized as indispensable by civilized
peoples.
(2) The wounded and sick shall be collected and cared for.'9
Whilst Common Article 3 also includes provisions encouraging parties
to bring into force other parts of the Conventions,0 it finishes with a firm
acknowledgment of state sovereignty: "The application of the preceding
provisions shall not affect the legal status of the Parties to the conflict."2'
Thus, for the first time, under the law of war, states were limited in
how they could act within their own territory and with their own people.
While there is no direct reference to interrogation, the prohibitions on
"violence to life and person" and "humiliating and degrading treatment"
would clearly be applicable to the treatment of persons captured during
such a conflict and indeed to all those who were not, or were no longer,
taking an active part in hostilities. This would cover all detainees.
III. HUMAN RIGHTS LAW
This small advance in the law of war reflected a far larger movement
in international law generally. The end of the Second World War also
saw the birth (or at least the coming of age) of human rights as a concept
in international law. The Universal Declaration of Human Rights,
adopted by the UN General Assembly on December 10, 1948, a year
before the Geneva Conventions, sought to declare and enumerate "fundamental
human rights" recognized by international law.22 Human rights
law as it now developed differed from the law of war in a number of key
areas. First, human rights law was designed to deal with the relationship
between a state and those within its jurisdiction. In essence, it made individuals
the subjects of international law, which had previously been
the domain of states. The rights granted to an individual could be en-
19. Id.
20. Id. ("The Parties to the conflict should further endeavour to bring into force, by
means of special agreements, all or part of the other provisions of the present Convention.").
21. Id.
22. Universal Declaration of Human Rights, pmbl., G.A. Res. 217A, U.N. GAOR, 3d
Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948).
[Vol. 28:575
State Intelligence Gathering
forced against the state, though the ability to enforce came later and is
still developing in many parts of the world.
Human rights law and the law of war are separate legal systems. As
the name implies, the law of war is designed to operate in times of war
or armed conflict. Indeed, apart from those preparatory measures such as
training that must be carried out in time of peace, the law of war has no
application outside war and armed conflict, with occupation for these
purposes being part of armed conflict. The law of war also approaches
matters from a very pragmatic viewpoint. It stems from a recognition
that war exists and thus seeks to balance humanity with military necessity.
The purpose of the law of war is not to abolish war, but rather to
find a way to reduce to the minimum amount necessary the suffering and
general mayhem caused by war and conflict. Finally, the law of war is
nonderogable because it is specifically designed to operate in the context
of war and armed conflict.
Human rights law approaches matters from a different angle. It outlines
basic human rights and divides them into two types, those that are
"fundamental" and apply in all circumstances, and those that are "derogable,"
meaning a state can limit them in certain circumstances. The
default position, however, is that the right applies; it is thus for the state
to justify any derogation from that right, even in time of war or other
public emergency.
Included among the recognized categories of human rights is the
right to privacy. In the Universal Declaration of Human Rights, the privacy
right is defined as follows: "No one shall be subjected to arbitrary
interference with his privacy, family, home or correspondence, nor to
attacks upon his honour and reputation. Everyone has the right to the
protection of the law against such interference or attacks."23 A similar
provision appears in the International Covenant on Civil and Political
Rights (ICCPR), with "or unlawful" added before "interference. 24
Domestic laws on intelligence gathering in peacetime must be in accord
with these provisions. The key words here are "arbitrary" and
"unlawful." Targeted interference with the right to privacy in accordance
with domestic law would not seem to run afoul of the human rights provision
of itself, although the targeting will need to be carefully
designated so that it does not violate the prohibition against discrimination.
Thus, Article 2 of the ICCPR provides that each state party
"undertakes to respect and to ensure to all individuals within its territory
23. Id. art. 12.
24. International Covenant on Civil and Political Rights art. 17, Dec. 16, 1966, S. Exec.
Doc. E.95-2, 999 U.N.T.S. 171 [hereinafter ICCPR] ("No one shall be subjected to arbitrary or
unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks
on his honour and reputation.").
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Michigan JournalofInternationalLaw
and subject to its jurisdiction the rights recognized in the present Covenant,
without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property,
birth or other status. '25 Other contributors to this issue have commented
on the relationship between domestic law and human rights;26 as my concern
is primarily with the interplay between different international law
regimes, I do not propose to go into this area further. I will, however,
address the issue of derogation at a later stage.
Another critical provision of the Universal Declaration of Human
Rights is Article 5, which provides that "[n]o one shall be subject to torture
or to cruel, inhuman or degrading treatment or punishment. 27 The
key point here is that this right is nonderogable; it forms an absolute
prohibition applicable in all circumstances.
Human rights law has expanded vastly since the Universal Declaration
was adopted. Along with the ICCPR, a veritable deluge of treaties
and "soft law" declarations have expanded upon the basic rights. The
prohibition on torture has been supplemented by the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment."
In addition, human rights law has been enriched by a series of
UN documents dealing with the treatment of prisoners and detainees,
including, for instance, the Standard Minimum Rules for the Treatment
of Prisoners. 9 Guidance has also been provided for law enforcement of-• 30 31'3
ficials, lawyers, and prosecutors.32 Most of these, however, are general
rules and do not specifically cover intelligence-gathering operations except
where they deal with the treatment of persons in detention.
25. Id. art. 2.
26. See Simon Chesterman, Secrets and Lies: Intelligence Activities and the Rule of
Law in imes of Crisis, 28 MICH. J. INT'L L. 553 (2007); James E. Baker, What's International
Law Got to Do with It? TransnationalLaw and the Intelligence Mission, 28 MICH. J.
INT'L L. 639 (2007); Jeffrey H. Smith, Keynote Address, 28 MICH. J. INT'L L. 543 (2007);
Francesca Bignami, Towards a Right to Privacy in TransnationalIntelligence Networks, 28
MICH. J. INT'L L. 663 (2007).
27. Universal Declaration of Human Rights, supra note 22, art. 5. For an expanded
form of this provision, see ICCPR, supra note 24, art. 7.
28. Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment, 1465 U.N.T.S. 112, G.A. Res. 39/46, U.N. Doc. A/RES/39/46 (Dec. 10, 1984).
29. U.N. Econ. & Soc. Council, Standard Minimum Rules for the Treatment of Prisoners,
E.S.C. Res. 663C, 24 U.N. ESCOR Supp. No. 1, U.N. Doc. E/3048 (Jul. 31, 1957).
30. Code of Conduct for Law Enforcement Officials, G.A. Res. 34/169, U.N. GAOR,
34th Sess., Supp. No. 46, U.N. Doc. A/34/46 (Dec. 17, 1979).
31. Eighth United Nations Congress on the Prevention of Crime and the Treatment of
Offenders, Havana, Cuba, Aug. 27-Sept. 7, 1990, Basic Principleson the Role of Lawyers,
U.N. Doc. A/CONF/144/28/Rev. 1 at 118 (1990).
32. Eighth United Nations Congress on the Prevention of Crime and the Treatment of
Offenders, Havana, Cuba, Aug. 27-Sept. 7, 1990, Guidelineson the Role ofProsecutors,U.N.
Doc. A/CONF/144/28/Rev.1 at 189 (1990).
[Vol. 28:575
State Intelligence Gathering
IV. THE CATEGORIES OF CONFLICT
It should be noted that the law of war has also developed since 1949.
The two Additional Protocols of 1977 to the Geneva Conventions are of
particular interest in this connection.33 As their titles indicate, the Protocols
maintain the divide between international and non-international
armed conflicts, with one exception. For legal purposes, the Protocols
equate with international armed conflict a particular type of noninternational
conflict, namely,
situations ... in which peoples are fighting against colonial
domination and alien occupation and against racist r6gimes in
the exercise of their right of self-determination, as enshrined in
the Charter of the United Nations and the Declaration on Principles
of International Law Concerning Friendly Relations and
Co-operation among States in accordance with the Charter of the
United Nations.
34
Protocol I brought together the Geneva rules on the protection of
victims while expanding them somewhat, and also introduced new rules
on the conduct of hostilities to enhance those laid down in the 1907
Hague Regulations. In particular, it updated the definition of spies in Article
46." In many ways, Article 46 repeats the provisions of the Hague
33. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to
the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3
[hereinafter Geneva Protocol I]; Protocol Additional to the Geneva Conventions of 12 August
1949, and relating to the Protection of Victims of Non-International Armed Conflicts, June 8,
1977, 1125 U.N.T.S. 609 [hereinafter Geneva Protocol II].
34. Geneva Protocol I, supra note 33, art. 1(4).
35. Id. art. 46. Article 46 states:
1. Notwithstanding any other provision of the Conventions or of this Protocol, any
member of the armed forces of a Party to the conflict who falls into the power of an
adverse Party while engaging in espionage shall not have the right to the status of
prisoner of war and may be treated as a spy.
2. A member of the armed forces of a Party to the conflict who, on behalf of that
Party and in territory controlled by an adverse Party, gathers or attempts to gather
information shall not be considered as engaging in espionage if, while so acting, he
is in the uniform of his armed forces.
3. A member of the armed forces of a Party to the conflict who is a resident of territory
occupied by an adverse Party and who, on behalf of the Party on which he
depends, gathers or attempts to gather information of military value within that territory
shall not be considered as engaging in espionage unless he does so through an
act of false pretences or deliberately in a clandestine manner. Moreover, such a
resident shall not lose his right to the status of prisoner of war and may not be
treated as a spy unless he is captured while engaging in espionage.
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MichiganJournalofInternationalLaw
Regulations while providing some degree of clarification, particularly in
relation to the status of a spy after capture. However, the influence of
human rights law can be seen more clearly in Article 75 of the Protocol,
which lists certain fundamental guarantees that are applicable to all persons
"who are in the power of a Party to the conflict and who do not
benefit from more favourable treatment under the Conventions or under
this Protocol. 36
This, of course, includes spies. The fundamental guarantees
include the prohibitions contained in Common Article 3 to the
Geneva Conventions37 and also a number of fair trial guarantees taken
directly from human rights law.
Additional Protocol II, on the other hand, deals with noninternational
armed conflict. Originally, as in 1949, the ICRC sought to
apply the full ambit of the law of war to non-international armed conflict,
but this was unacceptable to states. The final text of Additional
Protocol II was a vastly watered-down compromise, both in terms of
scope and content. It did, however, contain an article on "fundamental
guarantees"3 (with some of the contents of Article 75 of Additional Protocol
I), an article covering persons whose liberty had been restricted for
reasons related to the armed conflict,3 9 and an article on criminal prose-
40
cutions.
Thus, the law of war is now divided into a number of different contexts.
First are international armed conflicts, including conflicts under
Article 1(4) of Additional Protocol I.4 1
Such conflicts are governed by
the full law of war. Second are non-international armed conflicts of a
sufficient intensity to reach the threshold required by Additional Protocol
11.42 For armed conflicts that do not reach this threshold, the applicable
4. A member of the armed forces of a Party to the conflict who is not a resident of
territory occupied by an adverse Party and who has engaged in espionage in that
territory shall not lose his right to the status of prisoner of war and may not be
treated as a spy unless he is captured before he has rejoined the armed forces to
which he belongs.
Id.
36. Id. art. 75.
37. Geneva Conventions, supra note 13, Common Article 3.
38. Geneva Protocol II, supra note 33, art. 4.
39. Id. art. 5.
40. Id. art. 6.
41. Geneva Protocol I, supra note 33, art. 1(4).
42. Geneva Protocol II, supra note 33. Geneva Protocol II requires that the conflict not
be "international," that it occur on the territory of a High Contracting Party, and that the conflict
involve a High Contracting Party's armed forces against "dissident armed forces or other
organized armed groups which, under responsible command, exercise such control over a part
of its territory as to enable them to carry out sustained and concerted military operations and
to implement this Protocol." Id. art. 1(1). This threshold would rule out many conflicts within
"failed states," where the fighting is exclusively between nonstate armed groups rather than
central government forces.
[Vol. 28:575
State IntelligenceGathering
law is Common Article 3 to the four Geneva Conventions.4 '3 Finally, the
law of war is not applicable at all to "situations of internal disturbance
and tensions, such as riots, isolated and sporadic acts of violence and
other acts of a similar nature, as not being armed conflicts."" This extension
of the law of war into non-international armed conflict has
inevitably meant that it has overlapped with human rights and domestic
law.
V. THE APPLICATION OF HUMAN RIGHTS LAW
As has been seen, human rights law begins in peace time with full
application. Many took the view that human rights law, as it grew alongside
the law of war, was concerned only with peacetime and had no
place in war or armed conflict, where it was displaced by the law of war.
The two systems were effectively treated as mutually exclusive. With the
extension of the law of war into non-international armed conflict, however,
that position became increasingly difficult to maintain. Some,
particularly in the United States, still take that view, at least as far as the
role of the military in international armed conflict is concerned. According
to the U.S. Department of Defense, for example, the United States
"has maintained consistently that the [ICCPR] does not apply outside the
United States or its special maritime and territorial jurisdiction, and that
it does not apply to operations of the military during an international
armed conflict." 5
Yet the relationship between the legal regimes can be far more complex
than this would suggest. The International Court of Justice (ICJ)
dealt with this issue in the NuclearWeapons case, in which it stated:
[T]he protection of the International Covenant on Civil and Political
Rights does not cease in times of war, except by operation
of Article 4 of the Covenant whereby certain provisions may be
derogated from in a time of national emergency. Respect for the
right to life is not, however, such a provision. In principle, the
right not arbitrarily to be deprived of one's life applies also in
hostilities. The test of what is an arbitrary deprivation of life,
however, then falls to be determined by the applicable lex specialis,
namely, the law applicable in armed conflict which is
43. Geneva Conventions, supra note 13, Common Article 3.
44. Geneva Protocol I, supranote 33, art. 1(2).
45. U.S. DEP'T OF DEFENSE, WORKING GROUP REPORT ON DETAINEE INTERROGATIONS
IN THE GLOBAL WAR ON TERRORISM: ASSESSMENT OF LEGAL, HISTORICAL, POLICY AND OPERATIONAL
CONSIDERATIONS 6 (2003), available at http://www.ccr-ny.org/v2/reports/docs/
PentagonReportMarch.pdf.
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Michigan JournalofInternationalLaw
designed to regulate the conduct of hostilities. Thus whether a
particular loss of life, through the use of a certain weapon in
warfare, is to be considered an arbitrary deprivation of life contrary
to Article 6 of the Covenant can only be decided by
reference to the law applicable in armed conflict and not deduced
from the terms of the Covenant itself.'
In Legal Consequencesof the Constructionof a Wall in the Occupied
Palestinian Territory, the ICJ quoted from Nuclear Weapons and
continued:
[T]he protection offered by human rights conventions does not
cease in case of armed conflict, save through the effect of provisions
for derogation of the kind to be found in Article 4 of the
International Covenant on Civil and Political Rights. As regards
the relationship between international humanitarian law and human
rights law, there are thus three possible situations: some
rights may be exclusively matters of international humanitarian
law; others may be exclusively matters of human rights law; yet
others may be matters of both these branches of international
law. In order to answer the question put to it, the Court will have
to take into consideration both these branches of international
law, namely human rights law and, as lex specialis,international
humanitarian law.47
The difficulty is in discovering where the overlap is and which situations
fall into which category. As has already been pointed out, certain
rights are deemed so fundamental that they cannot be the subject of
derogation and are thus applicable in all circumstances. Others can be
derogated from "[i]n time of public emergency which threatens the life
of the nation.,4 8 Any question of whether this involves only public emergencies
in peacetime was made moot, certainly so far as members of the
Council of Europe are concerned, when the European Convention on
Human Rights made its own derogation provision apply "[i]n time of
war or other public emergency threatening the life of the nation. 49 Indeed,
the European Convention even has a specific provision allowing
46. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J.
226, 240 (July 8).
47. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, 2004 I.C.J. 136, 178 (July 9).
48. ICCPR, supra note 24, art. 4.
49. Convention for the Protection of Human Rights and Fundamental Freedoms art. 15,
Nov. 4, 1950, Europ. T.S. No. 5 [hereinafter European Convention].
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State Intelligence Gathering
derogation from the right to life, considered as otherwise nonderogable,
in relation to "deaths resulting from lawful acts of war."50
Furthermore, just because a right is derogable does not mean it becomes
totally unenforceable. States may derogate from their obligations
only "to the extent strictly required by the exigencies of the situation,
provided that such measures are not inconsistent with their other obligations
under international law and do not involve discrimination solely on
the ground of race, colour, sex, language, religion or social origin."'" A
similar provision in the European Convention 2 is carefully policed by
the European Court of Human Rights, which has the authority to give
binding judgments. It should be noted that such policing covers both the
circumstances of the derogation-whether or not there is a "public
emergency threatening the life of the nation"-and also the nature of the
derogation-whether the measures taken are "strictly required by the
exigencies of the situation."
Thus, just as the applicable law of war can vary according to the factual
circumstances, so too, through derogation, can human rights law
vary. States will be given a substantial margin of appreciation on the
question of derogation, but they do not have carteblanche. Human rights
bodies will examine derogations closely; although they (and the European
Court, in particular) will be reluctant to challenge a decision by a
state on the circumstances of the derogation, they will ensure that a
state's justification for derogation will be subject to detailed scrutiny.
Derogation is thus to be viewed as the last, not the first, resort.
VI. THE SPECTRUM OF VIOLENCE
As the two legal systems have developed, so too has the context in
which they have to be applied. It is this changing context that creates
most of the difficulties we find today. The simple dichotomy between
war and peace from the times of Tolstoy or Oppenheim has disappeared.
There is now a spectrum of violence ranging from peace, through internal
disturbances and tensions, civil wars (of differing forms of intensity),
to full-scale interstate armed conflict. Further complicating matters are
the recent rise of nonstate actors responsible for terrorist atrocities, on
the one hand, and the response of states in executing the "Global War on
Terror," on the other hand. The spectrum is like a rainbow, with the colors
merging into each other so that it has become increasingly difficult to
ascertain which legal regime applies, and when. In many circumstances,
50. Id. art. 15(2).
51. ICCPR, supra note 24, art. 4(1).
52. European Convention, supra note 49, art. 15(1).
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MichiganJournalofInternationalLaw
the Balkans being perhaps the classic example, it seems possible to have
a series of different "conflicts" going on at the same time with consequent
overlapping of legal regimes.
Perhaps nowhere is this more apparent than in the field of intelligence
gathering. This is an activity that takes place throughout the
spectrum. As a result, its activities cross the legal divides as well. In
peacetime, matters are comparatively well regulated, as the legal regime
that operates is domestic law in conjunction with human rights law. This
will apply to detentions and interrogations as well as to other forms of
intelligence gathering, in particular electronic eavesdropping and techniques
that might put at risk the right to privacy. Similarly, in full
interstate armed conflict, matters are comparatively straightforward in
that the law of war will be the main driver. These laws merely provide a
definition of spies, however (although they do lay down certain minimum
standards for detention and trial process as well).
One point that is of interest here is the position of prisoners of war. It
is often erroneously believed that specific limitations apply to the questioning
of prisoners of war. In his Memorandum for the President of
January 25, 2002, arguing for a determination that the Third Geneva
Convention did not apply in Afghanistan, Alberto Gonzales claimed that
the "new paradigm renders obsolete Geneva's strict limitations on questioning
enemy prisoners."53 In fact, the sole limitation is to be found in
Article 17, which provides 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. Prisoners of war who refuse
to answer may not be threatened, insulted, or exposed to unpleasant
or disadvantageous treatment of any kind.'54 In reality, the standard that
will be applied here is similar to that of human rights law. Conduct that
would breach this provision is also likely to breach the nonderogable
prohibition on cruel, inhuman, or degrading treatment contained in Article
7 of the ICCPR.5' As the official Commentary to the Third Geneva
Convention makes clear, "a State which has captured prisoners of war
will always try to obtain military information from them. Such attempts
are not forbidden; the present paragraph covers only the methods to
which it expressly refers."56 It should be noted that prisoners of war are
53. Memorandum from Alberto R. Gonzales, White House Counsel, to the President on
the Decision Regarding Application of the Geneva Convention on Prisoners of War to the
Conflict with Al Qaeda and the Taliban (Jan. 25, 2002).
54. Geneva Convention I1,supranote 13, art. 17.
55. ICCPR, supra note 24, art. 7.
56. INT'L COMM. OF THE RED CROSS, COMMENTARY ON THE THIRD GENEVA CONVENTION
163-64 (undated) (citations omitted), available at http://www.icrc.org/ihl.nsf/
COM/375-590022?OpenDocument.
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State Intelligence Gathering
obliged to give certain information, specifically, "surname, first names
and rank, date of birth, and army, regimental, personal or serial number,
or failing this, equivalent information." 7 An experienced interrogator
will agree that the hardest thing to do is to get a subject to starttalking.
Once the prisoner opens his mouth, an interrogator has something to
work on. A prisoner of war is obliged, unlike any other detainee, to provide
certain information, which can provide an excellent lead in for a
trained and experienced interrogator.
On the domestic front, in times of full interstate conflict, almost all
states will introduce emergency legislation limiting civil rights within
their domestic boundaries. Human rights bodies will almost certainly
accept the right to derogate from human rights law in such circumstances,
although there may still be argument over the necessity of some
of the measures introduced. The state in such circumstances, however,
will be given significant latitude.
The difficulties are to be found in the gray area between peace and
war, a space that has expanded vastly in recent decades. Here we begin
to see the battleground developing between the various legal systems. In
non-international armed conflicts such as civil wars, in which violence
takes place within the boundaries of a single state, the domestic law of
that state primarily governs. Derogations from human rights obligations
may be possible, but questions may arise concerning both the right to
derogate and the form of the derogation itself. Does the armed conflict
amount to a "public emergency threatening the life of the nation"?58 In
cases that reach the threshold of Additional Protocol I1'9 where the dissident
forces actually control territory, again, there is likely to be little
argument. Where territory is not held but the authorities are facing an
insurgency, however, it may not be so clear. The authorities will be reluctant
to admit that the insurgency is of sufficient seriousness as to
"threaten the life of the nation" and, as such, it may be difficult for them
to acknowledge that the primary condition for derogation is satisfied at
all. Even if the authorities are prepared to make such an admission, they
will still be subject to an examination of the nature of the measures taken
in derogation to ensure that such measures are genuinely necessary.
VII. THE LEGAL OVERLAP
Despite the foregoing discussion, much of the need for intelligence
gathering today, certainly in relation to military operations, involves
57. Geneva Convention I, supra note 13, art. 17.
58. ICCPR, supra note 24, art. 4.
59. Geneva Protocol II, supra note 33.
Spring 2007]
MichiganJournalof InternationalLaw
neither international nor non-international armed conflict. For example,
forces from a number of countries are currently involved in operations in
Afghanistan and Iraq. But which legal regime applies to them in those
situations? Insofar as Afghanistan is concerned, international armed conflict
did exist. But does that conflict continue today? The view of the
ICRC is that, on the establishment of the Karzai government in Kabul,
the conflict changed in nature and became a non-international armed
conflict.6° But where does that leave foreign troops? In terms of the law
of war, they are assisting the authorities in a non-international armed
conflict. In those circumstances, Afghanistan could indeed argue that it
has grounds for derogating from its human rights obligations under the
ICCPR because it is facing a "public emergency which threatens the life
of the nation." But can members of the coalition say the same? The
United Kingdom, for example, could not rely on the hostilities in Afghanistan
alone. It would have to show that a wider context, such as
global terrorism, threatened the United Kingdom directly.
The United States has in effect taken this course in declaring that it
is in a state of war. By doing so, the executive has sought to adopt wartime
powers. I do not intend to go into the complexity of U.S.
constitutional law and the balance of power between the executive, the
legislature, and the judiciary, as this is outside my expertise; however,
we have seen this balance tested both in debates in Congress and in the
various cases that have come before the Supreme Court relating to the
rights of detainees held at Guantdnamo Bay and elsewhere.6' Indeed, this
has gone further than purely detainee issues, as the arguments over wire-
62
tapping show. The view of the United States is that the ICCPR does not
apply to U.S. personnel outside U.S. territory.63
While this reading is
consistent with the wording of Article 2 of the Covenant, which provides
that a state must "undertake to respect and to ensure to all individuals
within its territory and subject to its jurisdiction" the rights contained
60. Letter from the Clerk of the House of Commons Select Comm. on Int'l Dev. to
Philip Spoerri, Legal Adviser, Int'l Comm. of the Red Cross (Nov. 28, 2002); Reply Letter
from Philip Spoerri to the Clerk of the House of Commons Select Comm. on Int'l Dev. (Dec.
20, 2002), both in AFGHANISTAN: THE TRANSITION FROM HUMANITARIAN RELIEF TO RECONSTRUCTION
AND DEVELOPMENT ASSISTANCE app. 8 (Int'l Dev. Comm., U.K. House of
Commons, 2003), available at http://www.publications.parliament.uk/pa/cm200203/cmselect/
cmintdev/84/84ap09.htm.
61. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Rumsfeld v. Padilla, 542 U.S.
426 (2004); Rasul v. Bush, 542 U.S. 466 (2004); Hamdan v. Rumsfeld, 126 S. Ct. 2749
(2006).
62. See, e.g., James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without
Courts, N.Y. TIMES, Dec. 16, 2005, at Al.
63. See Michael J. Dennis, Application of Human Rights Treaties Extraterritoriallyin
7mes ofArmed ConflictandMilitaryOccupation,99 AM. J. INT'L L. 119, 136 (2005).
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State Intelligence Gathering
within the Covenant,64 this interpretation is out of line with modem
thinking. The European Convention refers to "everyone within [a state's]
jurisdiction," with no territorial requirement.6
' The European Court of
Human Rights has confirmed that, while the application of the Convention
is primarily territorial, extraterritorial jurisdiction is not ruled out,
inter alia, "when the respondent State, through the effective control of
the relevant territory and its inhabitants abroad as a consequence of military
occupation or through the consent, invitation or acquiescence of the
Government of that territory, exercises all or some of the public powers
normally to be exercised by that Government., 66
In relation to the ICCPR
itself, the UN Human Rights Committee stated in General Comment 31
that "[a] State Party must respect and ensure the rights laid down in the
Covenant to anyone within the power or effective control of that State
Party, even if not situated within the territory of the State Party."67
This confusion over the applicability of human rights norms in contexts
such as Afghanistan is again illustrated in Iraq. In Iraq, an
international armed conflict preceded a period of occupation, with both
periods governed by the law of war relating to international armed conflict.
However, after the transfer of authority on June 30, 2004, to the
Iraqi administration, the situation once again became less clear.
The United States still views the conflict in Iraq as international in
nature, whereas much of the rest of the world views it as a noninternational
armed conflict in which coalition forces are assisting the
Iraqi government, in accordance with a UN mandate. Which body of law
therefore applies? To the United States, it is the law of war governing
international armed conflict. The coalition partners, however, have differing
views; most take the line that the international armed conflict
ended at the latest with the end of the occupation. As in Afghanistan, it is
necessary to examine the UN mandate in order to see whether exceptional
powers, over and above those usually applicable under the law
relating to non-international armed conflict, have been granted. For example,
what is the meaning of "authority to take all necessary measures
to contribute to the maintenance of security and stability in Iraq," as contained
in Security Council Resolution 1546?68 Does this mean all
measures necessary within the law, and, if so, what is the relevant legal
64. ICCPR, supra note 24, art. 2 (emphasis added).
65. European Convention, supra note 49, art. 1.
66. Bankovic v. Belgium, 2001-XII Eur. Ct. H.R. 333, para. 71 (Grand Chamber, decision
on admissibility).
67. U.N. Human Rights Comm'n, General Comment 31, Nature of the GeneralLegal
Obligationon States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.I/Add.13 (March
29, 2004).
68. S.C. Res. 1546, 10, U.N. Doc. S/RES/1546 (June 8, 2004).
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Michigan JournalofInternationalLaw
regime? For those subject to the European Convention, it is unclear exactly
how the Convention affects the actions of military forces in such
circumstances. A classic example would have been the obligations of the
United Kingdom in relation to the death penalty if it, and not the United
States, had had control of Saddam Hussein prior to his execution.
VIII. THE DANGERS OF DIVERGENCE
The law of war has always been considered to be universal in application;
certainly insofar as its principles are concerned, that remains
generally true. In some of the details, however, there is increasing divergence.
On the one hand, there is a sense that the United States has
rejected the ongoing trend of development in the law of war, as illustrated
by its increasingly hostile attitude toward Additional Protocol I to
the Geneva Conventions and its opting out of later developments, such as
the Ottawa Convention banning anti-personnel landmines69 or the International
Criminal Court7 Alongside this trend is the increasing rejection
of the law of war by nonstate actors involved in non-international armed
conflicts and, more worryingly, the increasing tendency to see Sharia
law as overriding the law of war wherever religious leaders see a conflict.
There is a sense or feeling that some Islamic states view the law of
war as applicable only insofar as it is deemed consistent with Sharialaw,
and that the obligation to comply with this law outweighs the state's obligations
under treaty law.7' All of this is helping to fragment the
universality of the law of war.
Similarly, divergence is growing in the field of human rights law.
Europe has the most progressive system of human rights enforcement
and the standards imposed by the European Court of Human Rights increasingly
affect the conduct of operations by European states. At the
same time, different regional bodies in the Americas72 and in Africa73 are
69. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of
Anti-Personnel Mines and on Their Destruction, Sept. 18, 1997, 36 I.L.M. 1507.
70. Rome Statute of the International Criminal Court, Jul. 17, 1998, 2187 U.N.T.S. 3.
71. See, e.g., Editorial,858 INT'L REv. RED CRoss 237 (2005); see also Tom Pfanner,
Interview with AhmadAli Noorbala,858 INT'L REv. RED CROss 243 (2005); Sheikh Wahbeh
al-Zuhili, Islam and InternationalLaw, 858 INT'L REV. RED CROss 269 (2005); Andres Wigger,
EncounteringPerceptions in Parts ofthe Muslim World and Their Impact on the ICRC's
Ability to Be Effective, 858 INT'L REV. RED CRoss 343 (2005).
72. See American Convention on Human Rights, part II, Nov. 22, 1969, O.A.S.T.S. No.
36, 1144 U.N.T.S. 123 (distinguishing the roles of the Inter-American Commission on Human
Rights and the Inter-American Court of Human Rights).
73. See the African Charter of Human and Peoples' Rights, part II, ch. I, Jun. 27, 1981,
OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (establishing the African Commission on Human
and Peoples' Rights); Protocol to the African Charter of Human and Peoples' Rights on
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State Intelligence Gathering
beginning to develop their own jurisprudence. In Asia and Islamic countries
there is a growing suspicion of the human rights movement as
essentially Western or "un-Islamic." Human rights are therefore in danger
of becoming subject to a cultural bias that will also fragment their
universality.
Finally, there is growing confusion over the role of the United Nations.
Does the Security Council have the authority to override
provisions of international law, whether contained in the law of war or in
human rights law?74 This issue was particularly pertinent in relation to
Iraq under occupation, where the conservative nature of occupation law
ran against the desperate need of Iraq for economic reconstruction and
development as well as political and legal reform.75
IX. CONCLUSIONS
How does this all relate to intelligence gathering? I would suggest
that it affects two separate but related areas. First, the threats that states
face today are global and require global solutions. This means that states
increasingly must cooperate. Such cooperation can only be achieved on
the basis of agreed legal standards. The trend today, however, is toward a
divergence of those standards in both the law of war and human rights
law. Intelligence gathered in State A, and admissible before its courts,
may be inadmissible in State B; indeed, the method of its gathering may
even prevent the extradition of a suspect from State B to State A. State B
itself may then be left with a security problem: it has no ability under its
own domestic law to hold the suspect in detention, but it cannot remove
him from the country because of human rights concerns. This is the sort
of dilemma that the U.K. government faced in the case of A and Others
v. Secretary of Statefor the Home Department.6
The court denied the
government the authority to keep detainees in a "three-walled prison"
until the authorities could find a country prepared to accept them and to
the Establishment of an African Court on Human and Peoples' Rights, Jun. 9, 1998, OAU
Doc. OUA/LEG/MIN/AFCHPR/PROT. 1.rev. 2.
74. The International Court of Justice has addressed its own power to assess the validity
of acts taken by other United Nations organs and has concluded that, at least under a strict
understanding of the concept, it has no such power. See, e.g., Questions of Interpretation and
Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie
(Libya v. U.K.; Libya v. U.S.), 1992 I.C.J. 3 (Order of Apr. 14). See also Case Concerning
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosn. & Herz. v. Yugo. (Serb. and Mont.)), 1993 I.C.J. 325 (Order of Sept. 13).
75. See Michael Schmitt & Charles H.B. Garraway, Occupation Policy in Iraq and
InternationalLaw, 9 INTERNATIONAL PEACEKEEPING: THE YEARBOOK OF INTERNATIONAL
PEACE OPERATIONS 27 (Langholtz et al. eds., 2004).
76. [2005] 2 A.C. 68.
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Michigan JournalofInternationalLaw
which they could be deported." The U.K. government is still wrestling
with this problem.
Second, the context in which differing legal regimes operate is becoming
increasingly confused. The simple world Tolstoy inhabited, with
war and peace, and never the twain shall meet, has been replaced by a
spectrum of violence that makes it difficult, if not impossible, to identify
the various contexts as defined by law. The end result is differing legal
responses. Global terrorism has highlighted this conundrum. In some
ways it has been like a game of doubles tennis, in which the other side
has sent the ball flying down the center line. The partners are uncertain
as to who must return the serve; the result might be that neither player
goes for the ball, or both do, with a consequent clash of rackets. In either
case, it usually ends up with recriminations between the partners.
Global terrorism hits the boundary between the law of war and the
law of peace. The division over how to respond has pitted the United
States, which would argue this is an armed conflict governed by the law
of war, against Europe, which maintains this is primarily a domestic law
matter governed by human rights law. The answer is probably somewhere
between the two, and there will be times when both sets of law are
operable. The difficulty today is in coming up with a coherent legal response
that is universally applicable across the whole spectrum of
violence.
A basic military tenet is "divide and rule"; so long as governments
argue over the correct legal response to global terrorism, those with an
interest in perpetuating that division will seek to exacerbate the argument.
Unfortunately, too much of the discussion at present is conducted
in public, often by "megaphone diplomacy." Human rights and the law
of war should be complementary, not contradictory. What is required is
for experts from all the different regimes to discuss quietly how best to
achieve a modus vivendi. Conferences such as that organized by the University
of Michigan, bringing together experts from different contexts,
amount to a very good start.
77. Id. at 69.
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