Ukraine Symposium – Are We at War?

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| May 9, 2022

Are We at War

Last week, allegations that the United States and a number of other NATO nations are providing intelligence to Ukraine that enables attacks against Russian forces continued to surface. Broadly speaking, the reports of intelligence sharing are credible. As Chairman of the Joint Chiefs of Staff General Mark Milley observed in testimony to Congress on May 3, the United States has “opened the pipes” by sending “a significant amount of intelligence” to Ukraine.

Particularly noteworthy are media reports that U.S. intelligence made possible the killing of Russian generals and the sinking of the Russian cruiser Moskva. Concerning the former, the New York Times reported that the United States has “focused on providing the location and other details about the Russian military’s mobile headquarters, which relocate frequently.” Ukrainian forces “combine[] that geographic information with their own intelligence—including intercepted communications that alert the Ukrainian military to the presence of senior Russian officers—to conduct artillery strikes and other attacks that have killed Russian officers.” More generally, “[t]he United States routinely provides information about the movement of Russian troops and equipment, and helps Ukraine confirm the location of critical targets. Other NATO allies also give real-time intelligence to the Ukrainian military.”

In response to the report, Pentagon spokesperson John Kirby stated, “The United States provides battlefield intelligence to help Ukraine defend their country…. We do not provide intelligence on the location of senior military leaders on the battlefield or participate in targeting decisions of the Ukrainian military.” Although Kirby would not offer examples of the intelligence being shared, he confirmed that “Ukraine combines information that we and other partners provide with the intelligence that they themselves are gathering, and then they make their own decisions and they take their own actions.”

As to the sinking of the Moskva, NBC first reported that Ukraine had queried the United States as to the ship’s identity. The United States identified the vessel as the Moskva and confirmed its location but, according to the officials providing the information, did not know Ukraine was going to attack and was not involved in the decision to do so. Rather, they assert that the United States merely delivers maritime intelligence to Ukraine to allow it to defend against the Russian Navy’s attacks.

Such reports are not new. For instance, in late April, NBC quoted a former senior intelligence official as acknowledging, “[t]here has been a lot of real-time intelligence shared in terms of things that could be used for specific targeting of Russian forces.” The official also cited the use of such intelligence for defensive purposes, noting that Ukraine moved air defense assets and aircraft based on U.S. intelligence before Russian attacks, which has contributed to Russia’s inability to attain air supremacy. According to the official, “[t]he Russian military has literally been cratering empty fields where air defenses were once set up…. It has had an enormous impact on the Russian military’s ability on the ground.” Alexander Wentker usefully identified similar reports last March in his excellent EJIL: Talk! piece.

This post builds on an earlier contribution to this symposium in which I disaggregated neutrality, co-belligerency, and the use of force in the context of providing arms and materiel to Ukraine. With respect to co-belligerency, I concluded that although providing arms and materiel did not,

at a certain point, support to a belligerent will make the supporting State a party to the conflict… [S]ome situations are obvious, such as when a supporting State is involved in joint planning of, and provides assistance essential to, another State’s combat operation that would trigger an IAC [international armed conflict] if conducted alone by the supporting State.

In this post, I develop that point. The question is, when does intelligence sharing trigger an international armed conflict (IAC) between the State providing it and that against which it is used.

Side Issues and Framing the Issue

To begin with, sharing intelligence with the Ukrainian armed forces, even to enable particular attacks, is unquestionably lawful, for acting in self-defense is a “circumstance precluding wrongfulness” under the law of State responsibility (Articles on State Responsibility, art. 21). Thus, assuming for the sake of analysis that providing another State operational and tactical level intelligence that it uses in attacks amounts to a “use of force” under international law (UN Charter, art. 2(4), and customary law), which I believe it usually does, the support qualifies as lawful collective self-defense (UN Charter, art. 51, and customary international law). Of course, if intelligence is used to commit unlawful acts, issues of complicity and State responsibility arise. But no such allegation has been leveled (on the subject, see Milanovic).

Intelligence sharing violates a neutral State’s obligations under traditional neutrality law (1907 Hague Conventions V and XIII and customary law), although it sometimes may be permissible by the “qualified neutrality” approach outlined in the DoD Law of War Manual (§ 15.2.2; see also von Heinegg’s and my Articles of War pieces). But as I explained in my earlier post, violation of a neutrality obligation does not, as such, make the State involved a party to an IAC.

Once a State becomes a party to an IAC, it loses neutral status and, therefore, the attendant benefits of neutrality law, such as those protecting maritime commerce. Moreover, international humanitarian law (IHL) obligations and protections now apply. For instance, its military personnel and assets may be attacked based on their status as combatants and military objectives, respectively, and the former would enjoy prisoner of war safeguards if detained. In other words, the existence of an IAC is what lawyers label a “choice of law” question, that is, it determines which body of law governs the actions in question.

In the current context, particularly without U.S. or NATO boots on the ground, the practical import of the matter is primarily political. For instance, there have been dueling U.S. and Russian assertions that the conflict is a so-called “proxy war.” Nations providing support to Ukraine have been at pains to avoid being seen to be participants in the conflict. However, Secretary of Defense Lloyd Austin’s admission (a sensible one) that “[w]e want to see Russia weakened to the degree that it can’t do the kinds of things that it has done in invading Ukraine” led Russian Foreign Minister Sergei Lavrov to claim that NATO is “going to war with Russia through a proxy and arming that proxy.” On that basis, he engaged in nuclear saber-rattling. So, are the nations involved “at war” with Russia?

The Law

It is essential to understand that the characterizations of States as to whether they are parties to an IAC are not conclusive as a matter of law. This has been so since the adoption of the 1949 Geneva Conventions. To ensure maximum protection for the victims of armed conflict, the drafters made the applicability of those instruments a question of fact, an approach that is today accepted as applicable to IHL more broadly. The States involved need not hold themselves out as parties to the conflict and may even object to such a characterization (International Committee of the Red Cross (ICRC), 2020 Commentary, Geneva Convention III, ¶ 246). But what matters is whether the situation has factually crossed the armed conflict threshold (see, e.g., International Criminal Tribunal for former Yugoslavia (ICTY), Boškoski and Tarčulovski, Trial Judgment, ¶ 174).

According to Common Article 2 of the four 1949 Geneva Conventions, which provides the universally accepted definition, an IAC consists of “declared war or of any other armed conflict which may arise between two or more [States], even if the state of war is not recognized by one of them.” The ICRC’s 1960 Commentary to Article 2 of Geneva Convention III explains,

any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, how much slaughter takes place, or how numerous are the participating forces.

Similarly, the 2020 Commentary asserts that “there is no requirement that the use of armed force between the Parties reach a certain level of intensity before it can be said that an armed conflict exists,” while the ICTY famously observed that an IAC occurs whenever there is a “resort to armed force between States” (Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ¶ 70). As is apparent, the threshold of intensity at which an IAC is triggered is relatively low; a single intentional attack by a State would usually qualify. The question at hand is, when does assistance to a belligerent during an IAC transform the State concerned into a party to that conflict?

Sir Christopher Greenwood, writing in the second edition of the Handbook of International Humanitarian Law (Fleck, 2008, point 214), took the position that,

[s]upport for a third party’s acts of war shall generally be rated as an act of war of the supporting state if it is directly related, i.e. closely related in space and time, to measures harmful to the adversary. Cooperation in arms production or other activities to support the armed forces will not suffice.

But he cautioned, “[f]inancial, political, and intelligence support will not have such an effect.”

I agree with Greenwood’s requirement of directness to harmful measures. I do not, however, believe that intelligence support can never qualify. In my estimation, at issue is the degree of attenuation between the support in question and any supportive actions. In some cases, the provision of intelligence would rise to the requisite level; in others, it would not. The key is identifying the applicable threshold of support that has this effect.

The Support-based Approach

Support to a party to a conflict has been addressed primarily in the context of non-international armed conflict (NIAC). Nevertheless, in the absence of an accepted normative architecture for assessing when support during an IAC transforms the State providing it into a party, the NIAC discussion is helpful by analogy. Before turning to that discussion, it must be cautioned that control over a party to a NIAC is not the issue. The ICTY dealt with that matter in Tadić, where the tribunal applied an “overall control” test to determine whether the NIAC had been “internationalized” by virtue of the Federal Republic of Yugoslavia’s authority over the Bosnian Serb forces (Appeal Judgment, 1999, ¶ 131). In the case of the war between Ukraine and Russia, the United States is self-evidently not in control of Ukrainian forces or operations.

Instead, the issue here is the relationship between the nature of support provided and qualification as a party to the conflict. In its 2015 Challenges Report, the ICRC addressed when a State or multinational force supporting a State that is engaged in a NIAC becomes a party to the conflict. It was of the view that the supporting State or multinational force need not engage in conduct that, standing alone, would make it a party. Instead,

[t]he decisive element would be the contribution made by such forces to the collective conduct of hostilities. A support-based approach clearly distinguishes between the provision of support that has a direct impact on the opposing party’s ability to carry out military operations and more indirect forms of support, which would allow the beneficiary to build up its military capabilities (page 22, emphasis added; see also 2019 Challenges Report, page 75).

The ICRC proffered four criteria against which to judge the situation: 1) the existence of a pre-existing NIAC; 2) that the support is related to the “conduct of hostilities” (an IHL term denoting the weapons and tactics used in combat) in the context of that conflict; 3) that the support benefits a party (a nexus to the conflict); and 4) an official decision by the State or organization concerned to support the party. According to the ICRC (page 23),

The fulfilment of the above criteria should permit a clear determination of the existence of a genuine belligerent intent on the part of multinational forces. The resulting situation would demonstrate that they are effectively involved in military operations or other hostile actions aimed at neutralizing the enemy’s military personnel and assets, hampering its military operations or controlling parts of its territory.

Tristan Ferraro has fleshed out the NIAC support-based approach in two insightful International Review of the Red Cross articles, one on multinational forces (2013) and the other on foreign intervention (2015). In the former, he explained (pages 585-586),

Direct support also encompasses action that has an impact on the enemy only in conjunction with other acts undertaken by the supported party. In that case, the multinational forces’ action should be considered an integral part of specific, coordinated military operations carried out by the supported party which directly inflict harm on the enemy. In other words, there must be a close link between the action undertaken by multinational forces and the harm caused to one of the belligerents by specific military operations undertaken by the opponent. For example, transporting the supported state’s armed forces to the front line or providing planes for refuelling jet fighters involved in aerial operations carried out by the supported state do implicate multinational forces in the collective conduct of hostilities and make them a party to the pre-existing NIAC.

Ferraro further described the type of support during a NIAC that would qualify in his follow-on article (pages 1231, 1234).

Such an act must be regarded as an integral part of the pre-existing NIAC. Therefore, actions such as logistical support involving the transportation of the troops of one of the belligerents on the front line, the provision of intelligence used immediately in the conduct of hostilities and the involvement of members of the third power in planning and coordinating military operations conducted by the supported party are all types of support that fall within the scope of application of the ICRC’s position—in the same way as direct involvement by the intervening power in combat.

The ICRC has suggested that “[s]imilar reasoning could apply in case of State support to one or more of the Party(ies) to an IAC” (Droege and Tuck, 2017). This makes sense. After all, it is difficult to understand why actions that would make a State a party to an ongoing NIAC would not have the same effect vis-à-vis an ongoing IAC. Logically, the critical factor in such an assessment should be the collective conduct of hostilities, not the classification of conflict.

Drawing on the ICRC’s support-based approach, I suggest looking to the following factors when assessing whether intelligence sharing or other support brings a supporting State into the IAC as a belligerent.

    • An intent on the part of the supporting State to contribute to specific conduct of hostilities operations by the supported State or frustrate those of the State’s adversary;
    • The extent to which the support benefits specific conduct of hostilities operations of the supported State or hinders those by its adversary;
    • The degree to which the support is integral to specific conduct of hostilities operations of the supported State or defensive action against its enemy;
    • The degree of immediacy between the provision of intelligence and its use.

In other words, did the supporting State have a belligerent intent to directly support or hinder particular relatively imminent operations that would trigger (a low threshold) an international armed conflict if standing alone? Did it intend to engage in the “collective conduct of hostilities?”

Applying the Approach to Intelligence Sharing

Each case must, of course, be assessed on its merits against the aforementioned criteria. Those criteria exclude strategic level intelligence. For instance, providing Ukraine with general information about the overall intentions of Russia or other States would not make the State sharing the intelligence a party to the conflict. Nor would broad intelligence at the operational level of warfare, such as information regarding the overall axes of attack in eastern Ukraine, Russian order of battle in the theatre, general disposition of Russian forces, nature of Russian logistics efforts, or morale of Russian troops.

Intelligence passed to Ukraine not meant to facilitate particular Ukrainian offensive or defensive operations likewise would not qualify. Thus, for instance, if the United States did not intend its information to facilitate attacking the Moskva or to help Ukraine avoid a specific attack by the cruiser, providing it did not make the United States a party to the conflict, even if Ukrainian forces used it for those purposes.

However, providing actionable intelligence at the tactical level of warfare that enables Ukrainian forces to avoid a specific Russian strike quickly or makes possible a particular attack against a target would cross the IAC threshold by the approach I propose. For instance, sharing intelligence would trigger IAC party status if it precisely geo-locates a Russian target for Ukrainian forces. The key to the approach is whether the intelligence intentionally makes a material and integral contribution to particular attacks or defense against them. Are the States providing and receiving the intelligence operating collectively in the conduct of hostilities?

Concluding Thoughts

If the reports about the United States and other nations providing actionable intelligence making possible specific offensive and defensive tactical operations by Ukrainian forces are accurate, the supporting States arguably have become parties to the conflict. This assertion is tentative for two reasons. First, such assessments are fact-dependent; they must be made on a case-by-case basis. Sufficient reliable and granular open-source information from which to draw definitive conclusions is presently unavailable.

Second, there is no consensus among States as to when support to a belligerent draws the supporting State into the armed conflict. I believe the approach suggested above is both logical and consistent with the IHL’s object and purpose, but it remains a proposed approach unless and until adopted by States. It is offered only to spark further discussion among government lawyers, the ICRC, the NGO community, and academia. It is far from the last word on the subject.

I conclude by emphasizing that this post is not about the lawfulness of intelligence sharing by the United States or any other nation. That said, I confess to seeing nothing unlawful in providing intelligence to Ukraine that facilitates its defense against the unlawful armed attack by Russia that has been underway since 2014. Instead, the post’s sole purpose is to help identify when a State providing support to a belligerent becomes a party to a conflict. Once it is, the law of neutrality no longer applies between it and the adversary (Russia), and IHL governs the activities of both that have a nexus to the conflict. In other words, the analysis only serves a “choice of law” purpose.​

***

Michael N. Schmitt is the G. Norman Lieber Distinguished Scholar at the United States Military Academy at West Point. He is also Professor of Public International Law at the University of Reading and Professor Emeritus and Charles H. Stockton Distinguished Scholar-in-Residence at the United States Naval War College.

 

 

Photo credit: U.S. Department of Defense

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