background

Intelligence sharing: the role of the U.S. in the Russian-Ukrainian conflict

Translated by Alvise Cecchetti


Our armed forces are not and will not engage in the conflict between Russia and Ukraine

-Joe Biden, President of the United States of America, 24th February 2022

There's a significant amount of intelligence flowing to Ukraine from the United States.

-Gen. Mark A. Milley, Chairman of the Joint Chiefs of Staff of the U.S. Army, 3rd March 2022

Since the beginning of the Russian invasion of Ukraine, Washington has been repeating that it will not directly intervene in the conflict. However, the United States have given a fundamental support to Kiev, sparing no weapons nor intelligence information. From a legal standpoint on the former, we have concluded in a previous article that arming a State under foreign aggression does not entail entry to war and shall not be deemed as unlawful. However, the sharing of sensible information that has tactic-operative importance, as recently reported by NBC News and the NYT, is a more ambiguous topic. Hence, we will analyse this topic through the lenses of International Law, guided by an article written by Marko Milanovic for International Law Studies.

Co-belligerence?

While delivering weapons does not make NATO countries cobelligerent with Ukraine, why would delivering information do so? For both forms of assistance, as highlighted by Alexander Wentker, the pillar of the issue lies in the direct operative connection between suppliers and beneficiaries. Until the U.S. limits their action to provide Ukraine with Javelin missiles and information on the position of Russian headquarters, according to the principles of humanitarian law, they are not part of the current international armed conflict. On the other hand, it would be different if Washington were deeply involved in the detection of strategic position to target and in taking decision or giving specific suggestion over specific military missions.

This is the reason why after the sinking of the Russian warship Moskva and the killing of a dozen of Russian general, both reported as actions carried out thanks to a substantial American help, U.S. officials quickly denied any direct involvement. Those declarations might sound hypocritical, however, it would be quite understandable that where the position of Russian war rooms on the field are communicated to Ukrainian soldiers, the latter would target them.

Nevertheless, according to International Law, the thin line that divides the two aforementioned situation hasn’t yet been overcome by Washington’s actions.

Internationally illicit action?

Milanovic identifies two cases when sharing information might violate International Law. In the first case, it would be illegal ‘per se’ and ‘in se’ because it is contrary to specific treaties which explicitly forbid it, or because it is incompatible with certain human rights, such as privacy. However, the latter would hardly apply to the current context as the data exchanged regards mainly military means and resources, with no convention being broken.

In the second case, sharing information would be reprehensible as associated to an illicit act made by an ally, according to the customary law embodied in Art.16 of the Articles of State Responsibility (ASR) of 2001, according to which:

A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:

  • That State does so with knowledge of the circumstances of the internationally wrongful act; and
  • The act would be internationally wrongful if committed by that state

Besides this general rule regarding complicity, there are others rules regarding specific branches of the International Law, such as Human Rights and/or Humanitarian Law (IHL), or ius in bello, the sum of those norms being more appropriate for the current situation. However, the issue of complicity deserves further analysis.

Complicity

Both the provider and the receiver can commit an illicit act by sharing information. In the first case, an example can be represented by the use of torture to extort data, a practice condemned and the prohibition of which constitutes a binding norm of International Law (ius cogens). Following this example, a country that accepts that information even knowing the latter’s illicit nature might be considered as responsible according to Art.41(2) ASR. This article forbids States to recognize as lawful a situation created by a serious breach in International Law, or to render aid or assistance in maintaining that situation. In general, the topic is quite complicated and the complicity of the beneficiary probably would require an active participation in soliciting the provider in order to obtain certain data.

However, what is of most concern in the present conflict is the second scenario, which involves three elements. First of all, the providing State becomes accomplice to an illicit act committed by the receiver only if this illicit act was effectively committed. Then, there must be a consistent causal relationship between the sharing of information and the illicit act committed, proving that the shared information led to the commission of the illicit act. Lastly, the delivery of information must be accompanied by a certain degree of guilt on the part of its provider. This element is the most subjective, hence, the most controversial one.

Milanovic’s solution to define the responsibility of a country based on Art.16 ASR foresees the distinction of 3 modalities. In particular, the State which provided the information used to commit an illicit act would become accomplice to that act, when the illicit act is performed with one of the following:

  • 1- With the direct and precise intention to facilitate that illicit act, independent from the level of knowledge of the circumstances.
  • 2- With the indirect intent to facilitate the illicit act, sharing intelligence knowing that almost certainly the beneficiary would make illegal use of it.
  • 3- With willful blindness, deliberately ignoring information which would lead the State to act with indirect intent.

In the context of International Humanitarian Law (IHL), the reference for the issue of complicity is Art.1 common to the Geneva Conventions, which requires the contracting parties to not assist third parties in their violations of Humanitarian Law. The main differences with Art.16 ASR would then consist in extending the complicity to illicit acts made by non-state actors and ease the requirements of guilt basing them on a conscious risk-taking. In this way, a State that would give assistance to another, deliberately ignoring the risk of facilitating a violation of Humanitarian Law, would automatically become accomplice to that violation, whether or not this violation effectively took place.

So?

In light of the aforementioned, until Ukraine limits its actions to only killing Russian soldiers, the sharing of information does not make the United States accomplice to any crime. In fact, only if Kiev would violate ius in bello – by attacking civilians – thanks to U.S. information, the U.S. would become co-responsible to the crime. In any case, the U.S. has taken several precautions, for example, by negating their role in weapons delivery, training and assistance to the Azov Battalion, or by examining Ukrainian units in light of the so called Leahy laws – two statutes which prohibit the Department of Defence and the State Department to give assistance to groups suspected to have likely committed serious violations of human rights law. Finally, Ukraine would benefit from showing itself as the belligerent which still respects the rule of law and it not a coincidence that Ukrainian officers have rapidly fixed the (until now) rare cases of violations of humanitarian law attributable to Kiev’s troops.



Fonti consultate per il presente articolo

Barnes JE, Cooper H and Schmitt E, ‘U.S. Intelligence Is Helping Ukraine Kill Russian Generals, Officials Say’ The New York Times (4 May 2022) <https://www.nytimes.com/2022/05/04/us/politics/russia-generals-killed-ukraine.html> accessed 5 May 2022

Biden J, ‘Remarks by President Biden on Russia’s Unprovoked and Unjustified Attack on Ukraine’ (24 February 2022) <https://www.whitehouse.gov/briefing-room/speeches-remarks/2022/02/24/remarks-by-president-biden-on-russias-unprovoked-and-unjustified-attack-on-ukraine/>

Cooper H, Schmitt E and Barnes JE, ‘U.S. Intelligence Helped Ukraine Strike Russian Flagship, Officials Say’ The New York Times (5 May 2022) <https://www.nytimes.com/2022/05/05/us/politics/moskva-russia-ship-ukraine-us.html>

Dilanian K and others, ‘U.S. Intel Helped Ukraine Shoot down Russian Plane Carrying Troops’ (NBC News26 April 2022) <https://www.nbcnews.com/politics/national-security/us-intel-helped-ukraine-protect-air-defenses-shoot-russian-plane-carry-rcna26015> accessed 27 April 2022

Gabutti M, ‘Armi All’Ucraina: Una Prospettiva Legale’ (Mondo Internazionale Post16 May 2022) <https://mondointernazionale.com/armi-allucraina-una-prospettiva-legale> accessed 19 May 2022

Harrison S, ‘The “Leahy Laws” and U.S. Assistance to Ukraine’ (Just Security9 May 2022) <https://www.justsecurity.org/81416/the-leahy-laws-and-u-s-assistance-to-ukraine/> accessed 19 May 2022

Limes Rivista Italiana di Geopolitica, ‘Ucraina, l’America Entra in Guerra’ (www.youtube.com6 May 2022) <https://www.youtube.com/watch?v=lKgni10V1_k>

Milanovic M, ‘Intelligence Sharing in Multinational Military Operations and Complicity under International Law’ (2021) 97 International Law Studies 1269 <https://digital-commons.usnwc.edu/cgi/viewcontent.cgi?article=2985&context=ils>

——, ‘The International Law of Intelligence Sharing in Multinational Military Operations: A Primer’ (EJIL: Talk!21 October 2021) <https://www.ejiltalk.org/the-international-law-of-intelligence-sharing-in-multinational-military-operations-a-primer/> accessed 6 February 2022

——, ‘The International Law of Intelligence Sharing in Multinational Military Operations: Framing Complicity’ (EJIL: Talk!22 October 2021) <https://www.ejiltalk.org/the-international-law-of-intelligence-sharing-in-multinational-military-operations-framing-complicity/> accessed 19 May 2022

——, ‘The International Law of Intelligence Sharing in Multinational Military Operations: State Fault in Complicity’ (EJIL: Talk!25 October 2021) <https://www.ejiltalk.org/the-international-law-of-intelligence-sharing-in-multinational-military-operations-state-fault-in-complicity/> accessed 19 May 2022

——, ‘The International Law of Intelligence Sharing in Multinational Military Operations: Concluding Thoughts’ (EJIL: Talk!26 October 2021) <https://www.ejiltalk.org/the-international-law-of-intelligence-sharing-in-multinational-military-operations-concluding-thoughts/> accessed 19 May 2022

——, ‘The United States and Allies Sharing Intelligence with Ukraine’ (EJIL: Talk!9 May 2022) <https://www.ejiltalk.org/the-united-states-and-allies-sharing-intelligence-with-ukraine/> accessed 19 May 2022

Moynihan H, ‘Aiding and Assisting: Challenges in Armed Conflict and Counterterrorism Aiding and Assisting: Challenges in Armed Conflict and Counterterrorism’ (Chatham House 2016) <https://www.chathamhouse.org/sites/default/files/publications/research/2016-11-11-aiding-assisting-challenges-armed-conflict-moynihan.pdf> accessed 13 May 2022

Wentker A, ‘At War: When Do States Supporting Ukraine or Russia Become Parties to the Conflict and What Would That Mean?’ (EJIL: Talk!14 March 2022) <https://www.ejiltalk.org/at-war-when-do-states-supporting-ukraine-or-russia-become-parties-to-the-conflict-and-what-would-that-mean/>

Convenzioni di Ginevra 1949

H.R.2471 - Consolidated Appropriations Act, 2022 2022

Progetto di articoli sulla responsabilità dello Stato 2001


Share the post

  • L'Autore

    Matteo Gabutti

    IT

    Matteo Gabutti è uno studente classe 2000 originario della provincia di Torino. Nel capoluogo piemontese ha frequentato il Liceo classico Massimo D'Azeglio, per poi conseguire anche il diploma di scuola superiore statunitense presso la prestigiosa Phillips Academy di Andover (Massachusetts). Al momento segue il corso di laurea triennale in International Relations and Diplomatic Affairs presso l'Università di Bologna, e all'interno di Mondo Internazionale ricopre il ruolo di autore per l'area tematica Legge e Società. Ragazzo intraprendente e con la volontà costante d’imparare ed ampliare i propri orizzonti, durante i suoi studi ha sviluppato un forte interesse per le relazioni e il diritto internazionali, oltre che per le dinamiche sociopolitiche del mondo contemporaneo, con un’attenzione particolare su Europa e Nord America.

    EN

    Matteo Gabutti is a student born in 2000 in the province of Turin. In the Piedmont capital he has attended Liceo Massimo D'Azeglio, a secondary school specializing in classical studies, after which he also graduated from Phillips Academy Andover (MA), one of the most prestigious high schools in the U.S. He is currently an undergraduate student of International Relations and Diplomatic Affairs at the University of Bologna, and he works with Mondo Internazionale as an author for the thematic area of Law and Society. Resourceful and always willing to learn and broaden his horizons, during his academic career Matteo has developed a strong interest for international relations and international law, as well as for the sociopolitical dynamics of the contemporary world, focusing especially on Europe and North America.

Categories

From the World Europe Sections Society 2030 Agenda Peace, justice and strong institutions


Tag

Stati Uniti d'America Russia guerra intelligence diritto internazionale Biden

You might be interested in

Image

The Russia-Belarus Union

Michele Bodei
Image

The Ukrainian issue - Invasion

Matteo Gabutti
Image

Chinese interests in the Ukraine issue.

Laura Salvemini
Log in to your Mondo Internazionale account
Forgot Password? Get it back here