The Reasonable Intelligence Agency

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 five 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.

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. This paper takes a first step at proposing such a standard, a new duty of care, based on both historical analysis and emerging best practices. In so doing the paper proposes a path forward for addressing the accountability gap that permeates contemporary IHL as it relates to state responsibility for wartime errors and mistakes.