By G.L.J. Jacobs on 2015-10-03 in Papers,
In contemporary conflicts the line between war and peace is blurry at best. Professor Mary Kaldor has for some years argued that the post-cold war era featured a new "type of organized violence" that she describes as 'New Wars' (Kaldor, 1999). She does not stand alone in this perception as others have used different terms to coin conflict in the late 20th century (Creveld, 1991) (Holsti, 1995) (Duffield, 2002) (Rodin, 2006). More recently the term hybrid warfare has been used to describe the status of non-peace and non-war. USMC Lt. Col. Bill Nemeth while working on path-breaking research on graduate work on Chechnya and hybrid warfare, defined hybrid warfare as "the contemporary form of guerrilla warfare" that "employs both modern technology and modern mobilization methods." (Hoffman, 2009). With the changing field from clear defined war against a clear defined opponent towards a hybrid battlefield blurred by a returning fog of war, the dynamics and tools available in warfare will have to change with it as well (Kaldor, 1999).
Pre-emptive intelligence is seen as key to enabling the state to counter hybrid warfare activities without alienating communities or engaging in open combat (Omand, 2009). To paraphrase Sir David Omand's notes on international terrorism; "The international nature of hybrid warfare is placing increasing demands on intelligence agencies to co-operate with new partners overseas and to extend their range of methods, human and technical, to acquire such intelligence. This pressure is creating ethical dilemmas for the agencies at a time when the methods of secret intelligence and their impact on individual rights are the subject of public controversy." (Omand, 2009, p. 395).
The discussion on ethical dilemmas in times of war (and peace), however, is far from new. While the dynamics may have changed in contemporary warfare, the issues we face today have been thought about for up to two-and-a-half thousand years in all cultures that are involved in the main present conflicts. (Sorabji R. , 2006). These concepts, referred to as 'The Tradition of Just War' or in their Latin names Ius ad Bellum (the right to war) and Ius in Bello (the right in war) have been heavily discussed by many scholars in the first decade of the XXIth century (Coppieters & Fotion, 2002) (Walzer, Arguing about war, 2004) (Sorabji & Rodin, 2009). At the same time many scholars further explored the field by adding such concepts as Ius ad Vim (the right of force) (Brandt Ford, 2013), and Ius post Bellum (the right after war) (Orend, 2002) (Quinlan, 2006) (Allman & Winright, 2010).
A third adaption of just war theory can be found in the exploratory work of Michael Quinlan (2007). in seeking to develop a wider and more systematic understanding of principles than seems yet to have been generally established, Quinlan analyzed what issues arise about what sorts of limit might be appropriate in the selection of targets for clandestine intelligence-gathering, which he coined Ius ad Intelligentiam – and then in the choice of methods for such gathering (Ius in Intelligentia) (Quinlan, Just Intelligence: Prolegomena to an Ethical Theory, 2007, p. 12).
In the era of hybrid warfare covert operations appear to play an important role. Following the discussions on Just War theory mentioned above this brings us to the question: Should the tradition of just war be applied to covert operations?
The changing nature of war and covert operations
Covert action is often misunderstood. Following the definition of Andrew et al: "A covert action might well be defined as an operation carried out in such a way that the parties responsible for the action are able to distance themselves from it." (Andrew, Aldrich, & Wark, 2009, p. 433). Covert action, or clandestine activities are likely the best known of intelligence's allied activities. At the 'soft' end of the covert action spectrum are 'agents of influence' covert political finance and media operations of all kinds, forgery and black propaganda; towards the 'hard' end are covert support for opposition groups, resistance forces, insurgents and terrorists, and the active conduct of sabotage and other paramilitary operations (Herman, 1996). Unlike popularly belief, the covert operation, and especially the outcome, might be plain for the public to see, however the perpetrators must be able to maintain (plausible) deniability (Andrew, Aldrich, & Wark, 2009) (Herman, 1996). It is the concealment of the sponsor, rather than the operation itself that is what makes a clandestine operation covert.
According to a more comprehensive definition of hybrid war contained in the editorial preface to The Military Balance 2015 hybrid warfare and covert action are interrelated as hybrid war is “the use of military and non-military tools in an integrated campaign designed to achieve surprise, seize the initiative and gain psychological as well as physical advantages utilizing diplomatic means; sophisticated and rapid information, electronic and cyber operations; covert and occasionally overt military and intelligence action; and economic pressure.” (International Institute for Strategic Studies, 2015).
The report states that during the Crimean operation, Russian forces "demonstrated integrated use of rapid deployment, electronic warfare, information operations (IO), locally based naval infantry, airborne assault and special-forces capabilities, as well as wider use of cyberspace and strategic communications. The latter was used to shape a multifaceted and overall effective information campaign targeted as much at domestic and foreign audiences. The events in Crimea, and to an extent in the east of Ukraine are clear examples of the 'New Wars' as described by Kaldor (1999) - through activities of non-state actors such mercenaries, paramilitaries, but also diasporas, businesses and non governmental institutions (NGOs and IGOs) states are able to wage war in a much more covert fashion than the cold war was thought between the United States and the Soviet Union in the second half of the XXIth century. Turning to the question of this essay, should these covert activities be seen as acts of war? Or at least for the sake of post conflict justice (Ius post Bellum), should the meaning of war be redefined? As to better reflect the dynamics of hybrid warfare?
After all, looking at the Clausewitzian definition: "War is simply the continuation of political intercourse with the addition of other means" (Howard & Paret, 1976). Such other means may be found in three of the categories of asymmetric tactic as identified by McKenzie (2000): (1) Information war (for example, the disruption of military or civilian strategic information systems); (2) terrorism (the use of force against non-combatants and their property); (3) alternative operational concepts which may include guerrilla tactics (in which soldiers, often disguised as civilians, do not seek to defend fixed positions, but rather to harass a regular army by conducting surprise attacks). Whether covert action is an inherent part of intelligence or warfare can be left as a matter of semantics. Many scholars have argued that collection, analysis, counterintelligence and covert action are intelligence's four major interrelated elements (Godson, 1989). Whether or not covert actions is in the realm of non-war or war (and thus the question whether Ius ad Bellum is applicable to such activities) has become irrelevant with the introduction of Ius ad Intelligentiam advocated by Quinlan (2007) and Omand (2009).
The tradition of just war and intelligence, from Ius ad Bellum to Ius ad Intelligentiam
Clausewitz may have not seen war as a crime, as is suggested by Walzer (1977), the wars between 1831 and 1874 changed the opinion on limitations of war. By 1874, the wars in Europe in the XIXth century caused the European powers to agree upon two international conventions, the Geneva Convention on Prisoners of War (1864), and the St. Petersburg Declaration (1868). (Nabulsi, 2006, p. 51). Over the course of the century that followed leading up to and including the first and the second world war it was these conventions that lead to the development of the four Geneva Conventions of 1949, which covered different aspects of the limitations on war.
While the status of lawful or just war is controversial and heavily debated, five criteria are now commonly emphasised for justice in going to war (Sorabji & Rodin, 2009, p. 3), the ad bellum question:
1 There should be a just cause. (just cause)
2 Reasonable attempts at peaceful resolution should have been exhausted (last resort)
3 The right authority should authorise the war. (right authority)
4 War should not make things even worse than they were already (proportionality).
5 War aims should be achievable. (chance of success)
While the five criteria are now commonly emphasised, this does not mean there is no further discussion on the right to go to war. Anthony Coates, for example, advocates return to a sixth ancient requirement; the right attitude towards the enemy (Coates, 2006), and Michael Quinlain discusses a seventh criterion, that of obligation after a military conquest (the post bellum question). (Quinlan, 2006). Following the five established principles and the return to the ancient requirement to 'the right attitude towards the enemy' as proposed by Coates, David Omand suggests six guidelines to "govern the development, targeting and maintenance of national intelligence capability (Ius ad Intelligentiam) and the methods to be used in specific types of cases (Ius in Intelligentia) (Omand, 2009, p. 399). The first principle proposed by Omand is that of 'sufficient sustainable cause', this is a check of any tendency for the secret world to encroach into areas that are justified by the scale of potential harm to national interests if no action is taken, nor by the advantage to be secured (Omand D. , 2009, p. 399). The second principle is derived from Coates' argument on the right attitude, or in the case of intelligence the integrity of motive. Following this guideline there should be proper concern with the integrity of the whole system throughout the intelligence cycle. The customer of the intelligence should have complete confidence in the integrity of the system that delivered the intelligence, as to avoid decisions that are made on incomplete or manipulated data (Omand D. , 2009, p. 401). The principle of proportionality is the third guideline identified by Omand. It is perhaps the most fundamental for the managing and approving intelligence operations. It guarantees that the methods to be used are in proportion to the seriousness of the business at hand (Omand D. , 2009, p. 402). The fourth principle dictates that there is a proper authorising process at a sufficiently senior level, and with accountability within the chain of command. In order to achieve this a proper oversight mechanism from outside the intelligence community must be in place (Omand D. , 2009, p. 403). The second last principle argues that there must be a reasonable prospect of success: the impact, if the operation were to be exposed, is acceptable (Omand D. , 2009, p. 403). Finally the last principle is that of last resort. Omand argues that secret intelligence should not be sought if there are open ways of obtaining the information needed (Omand D. , 2009, p. 403). As can be compared the guidelines proposed by Omand match the established tradition of just war. Additionally it should be noted that the arguments provided by Omand are of rather utilitarian nature.
Ius ad Intelligentiam and covert operations in hybrid warfare
Covert operations poses a special challenge to oversight (right authority). Covert actions involve intelligence programs that go beyond collecting and analyzing intelligence to actually affecting events. Consequently, the oversight committees have tended to spend a disproportionate amount of time and effort on these programs which, in budgetary terms, are often of minor significance (Ott, 2009). Nevertheless when faced with the tactics of asymmetry and covert operations in hybrid warfare the reaction of many members in the community of both the acting state as well as the target state will doubtless be one of moral revulsion and rejection. As Omand points out, the realm of intelligence operations is a zone where the ethical rules that we hope govern our private conduct as individuals in society cannot fully apply (Omand D. , 2009, p. 398). In addition covert operations on a foreign state's territory touches upon the fundamentals of the Westphalian state of sovereignty. Such activities may include operation on foreign soil, without information the state (vis-à-vis normally asking and being granted permission from the host state), this can either be because the state in question is the target (US operations in the Soviet Union in the cold war), or the state is the host of a non-state actor (Taliban-ruled-Afghanistan, which hosted Al-Qaeda) , or to not spook the target (Assassination of bin Laden in Pakistan). But also non-kinetic operations such as reading others' mail; tapping communications, deliberately encouraging indiscretion; inciting breaches of confidence; as well as masquerading as what you are not (for example the earlier mentioned black flag operations) to get the intelligence required to conduct the covert operation. In addition, effectiveness in hybrid warfare may require cooperation with actors whose methods one might regard as crude and morally doubtful. Finally intelligence collection on hybrid actors may also involve the use of modern information technology to sift through large quantities of personal information.
I follow the thesis of Omand in which he states that the public would value reassurance that there can be ethical guidelines intelligence, and extend it for covert operations, as the six guidelines before described. Operations conducted in the shadows do not necessarily have to be unable to withstand the light, and though it may be asymmetric, unconventional or even dirty it is not the case of inter arma silent leges (Cicero).
Having discussed the introduction of the rather utilitarian Ius ad Intelligentiam and looked at the various ethical considerations, I return to the question: Should the tradition of just war, (be it Ius ad Bellum or Ius ad Intelligentiam) be applied to covert operations? And is the question of should even relevant if not for the question if it could it be applied? Omand refers to the well-known guidance of former CIA director Admiral Stansfield Turner:
"There is one overall test of the ethics of human intelligence activities. That is whether those approving them feel they could defend their decisions before the public if their actions became public." (Turner, 1986)
Turner advocated the combination of readiness to stand up and be accountable if exposure came, with personal conviction of the rationale you would then deploy. Omand gives the implication that it is never justifiable under this doctrine is to undertake activities that one would be ashamed to defend openly, and with therefore rely only on the cloak of secrecy remaining intact (Omand, 2009, p. 406). From a consequentialist perspective based on historic evidence covert operations have tended to inflict minimum harm, compared to the massive atrocities inflicted (on both combatants and civilians) by a typical XXth century medium-scale conventional war. However when taking into account the blowback of some better known covert operations; the rise of al-Qaeda can partly be attributed to the CIA's covert operation supporting the Mujahidin in Afghanistan in the 1990s, or the Iran-Contra affair in the mid-1980s which attributed to both the failed states and destabilized regions in both the middle east and central America. The latter was kept out of CIA deliberately to evade congressional oversight. It is these examples that should provide enough proof for a need of Ius ad Intelligentiam guidelines to guide the increasing covert operations in the conflicts sharpened by hybrid-war in the XXIst century. There are dilemmas facing the defence community, and particular in the intelligence sphere after revelations of Snowden and Assange, in a rapidly changing world where the struggle against hybrid warfare and terrorism must take its place among the people, whose support is needed to defend them against such traits. The establishment of ethical guidelines to restore trust in the people is a step into the right direction.
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 Guerrilla warfare is a form of irregular warfare in which a small group of combatants such as armed civilians or irregulars use military tactics including ambushes, sabotage, raids, petty warfare, hit-and-run tactics, and mobility to fight a larger and less-mobile traditional military.
 Human intelligence (HUMINT) agencies with their secret skills and contacts tend to be the natural organizers, as in the successful Western operation with Pakistani military intelligence to supply military assistance to the Mujahidin resistance to the Soviet occupation of Afghanistan (Yousaf & Adkin, 1992).
 Russian annexation of Crimea in February-March 2014.
 NGOs; Non-Governmental Organizations, IGOs; International Government Organizations.
 In covert operations these may be False Flag (or Black Flag) operations designed to deceive in such a way that the operations appear as though they are being carried out by entities, groups, or nations other than those who actually planned and executed them.
 The other three categories being (4) chemical weapons; (5) biological weapons, or (3) nuclear weapons (collectively Weapons of Mass Destruction or WMD), however these do not fall in the sphere of clandestine activities.
 Including defensive information protection, in a different sense from 'intelligence on foreign intelligence' is used here.
 The 'intelligence cycle' is a phase used o capture the idea of a seamless process. The traditional cycle begins with the targeting of collection assets followed by the collection, processing, validation, analysis of the data, before it is presented to the customer.
 Omand, however, does not differentiate between the 'right to' and the 'right in', in the same fashion as Walzer made the differentiation between 'ad Bellum' and 'in Bello' (Walzer M. , 1977).
 For a full overview of the arguments I refer to the original text: Omand, D. (2009). 'Ethical guidelines in using secret intelligence for public security' In C. Andrew, et al. 'Secret Intelligence: A Reader' (pp. 395-410). Routledge: New York.
 The Iran-Contra affair (1986 ) demonstrated that covert operations carry with them a much higher political risk vis-à-vis normal intelligence activities.
 In times of war, the laws fall silent.
 Central Intelligence Agency.
 Blowback are unintended consequences of a covert operation that are suffered by the aggressor.