The Reasonable Intelligence Agency

58 Pages Posted: 18 Mar 2021 Last revised: 20 Sep 2021

See all articles by Asaf Lubin

Asaf Lubin

Indiana University Maurer School of Law; Berkman Klein Center for Internet & Society; Yale University - Information Society Project; Federmann Cybersecurity Center, Hebrew University of Jerusalem Faculty of Law

Date Written: February 1, 2021

Abstract

Article 57(2) of the First Additional Protocol to the Geneva Conventions requires parties to an armed conflict to “do everything feasible to verify” their objects of attack and take “all precautions” to minimize civilian casualties and unintentional damage to civilian property. This obligation has been interpreted in international law to require state parties to set up an “effective intelligence gathering system” that would properly identify targets using all technical means at the disposal of the combating forces.

But existing law has failed to define what “effective intelligence” looks like. Quite the opposite. Modern history is filled with examples of intelligence errors that resulted in calamitous civilian casualties. In this paper I look at three such case studies, spanning various historical periods, geographical zones, and belligerent parties. Examining these cases, this Article makes the claim that faults in wartime intelligence production are not inevitable as is often presumed and that it is for a lack of specific regulation within the treatises of International Humanitarian Law (IHL) that they occur at the rate that they do.

The paper makes two important contributions: First, it highlights a temporal and spatial disconnect between the intelligence and military functions, which is not sufficiently accounted for in our contemporary laws of war. Tribunals and military manuals guide us to rely on the "reasonable commander" test in determining the lawfulness of a particular strike. Yet, in the process we overlook the fact that any reasonable commander will turn to her "reasonable intelligence agency"—the contours of this standard are conspicuously under-defined. Second, the paper demonstrates the existence of an accountability gap in IHL for faulty intelligence used in targeting decisions. The paper takes a first step at proposing a new duty of care, under which states will be held civilly liable for unreasonable intelligence errors that are found to be the cause for the otherwise avoidable civilian harm.

Keywords: Public International Law, International Humanitarian Law, National Security Law, Intelligence Studies, Precautionary Principle, Laws of War, Duty of Care, Reasonableness

JEL Classification: K, K33, H56

Suggested Citation

Lubin, Asaf, The Reasonable Intelligence Agency (February 1, 2021). 47 Yale Journal of International Law (2021, Forthcoming), Indiana Legal Studies Research Paper No. 440, Available at SSRN: https://ssrn.com/abstract=3805700

Asaf Lubin (Contact Author)

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