Faced with serious terrorist threats, countries need to set up an information collection system on the ground using “human intelligence” (HUMINT) operatives. In the context of an open armed conflict, this is all the more important, and more difficult too.
The goal is to acquire valuable information for decision-makers in government or for military commanders preparing for or engaged in armed conflict. The focus is on immediate threats, instability, or a crisis that could damage national security.
This activity is carried out in under the guidelines of the political and military decision-makers. Unconventional intelligence operations need to be clearly defined and carefully managed, due to their legal and operational peculiarities.
Special operations are distinct from regular military operations for the level of political and military risk and for the particular methods of using military force; special operations are frequently clandestine but not necessarily covert.
In detail, intelligence operations are clandestine activities, characterized by the passive collection of information and conducted in secret.
Covert operations, by contrast, have an “active” nature, because they are aimed at influencing or achieving changes of a political, economic, military or diplomatic nature to secure specific objectives of foreign policy, without the government’s role being announced or even apparent. This sets them apart from traditional military, intelligence or counter-espionage activities. The US Executive Order 12333, as amended by the Intelligence Authorization Act of 1991, provides one definition of these activities.
The armed forces should only perform activities of a clandestine nature that are not covert operations. This is because of the context of official deniability. This distinction operates in view of the fact that clandestine activity, even if secret, can become public if it is discovered or inadvertently revealed. It is also important to protect SOFs under the Geneva Convention.
When covert operations are carried out in a context of deniability, in the total absence of any protection, the intelligence officers and SOF operators involved renounce all rights normally accorded to legitimate combatants under the Geneva Convention, including rights if they are captured as prisoners of war.
If an illegal act is committed in a covert operation, the government that authorized it will want to be able to deny its role in a credible manner. In these cases, the government authorization is implicit, not explicit, in order to maintain the deniability.
The more undercover action remains limited, in terms of resources and objectives, the easier it is for those who have authorized it to maintain secrecy. It follows that, where the size of such actions increases, as in the case of paramilitary operations, the possibility of preserving secrecy decreases.
SOF-Intelligence Joint Operations
If the SOF’s are to execute a covert operation, everything is more problematic. In the armed forces, the chain of command and control is clear. It is much easier to carry out a covert operation using intelligence services, where the control structure can be more evanescent and less defined.
In a worst-case scenario, if an SOF operator is taken prisoner by the enemy without a uniform or distinctive signs of his or her military status, the operator cannot be rescued by the armed forces if the government is to maintain the deniability of the covert operation.
The principle of distinction is fundamental in the conduct of military and anti-terrorism operations. To safeguard the civilian population, only legitimate combatants have the right to participate directly in hostilities and their acts are attributed to the state they represent, making them legitimate military targets.
Using SOF in a covert operation would be de facto an act of war, according to international law. Even using intelligence services in a covert operation would in fact be an act of war. An example could be the authorization of the destruction of a command and control center of a terrorist cell in a foreign country, even an ally.
Nevertheless, intelligence services have the resources and training for hidden operations. From the outset of their careers, officers are taught that if they are captured they will not have the help of the government and as belligerents without full rights they will not be able to claim the status of prisoners of war under the rules of the Geneva Convention.
Clearly, a military commander can legitimately authorize an SOF team to execute a covert operation. But no one can order military personnel to perform an operation in a context of total anonymity, with the renunciation of the status of privileged belligerents. If they did, the soldiers would face the same treatment as a “spy”, according to the International Law of Armed Conflict, who clandestinely or under false pretenses, gathers information in enemy territory.
Conducting a joint SOF-Intelligence operation makes it much more difficult to distinguish the chain of command and control, as well as the procedures to be used. In fact, if the enemy captured a fully integrated team of SOF and intelligence officers, a series of problems arise.
The soldiers of the SOF would have the status of privileged belligerents, unlike the intelligence officers, bringing in all the problems of deniability of the operation and the distinction between people of the same team but with potentially completely different status.
In general, as Mark Lowenthal notes in his book “Intelligence: From Secrets to Policy”, the more an undercover action remains limited, in terms of both invested resources and foreign policy objectives, the easier it is for the government to maintain secrecy. Thus, where the scale of such actions increases, as in the case of paramilitary operations, the possibility of preserving their secrecy diminishes.
Examples of Unconventional Operations
There are several types of unconventional operations:
- Combating Terrorism: this fundamental mission of the SOF includes short term anti-terrorism responses, counter-terrorism defensive measures, and offensive measures aimed at preventing or containing the terrorist threat.
- Direct Action (DA): a specific raid, usually of short duration and targeting specific objectives.
- Special Reconnaissance (SR): clandestine missions typical of SOFs, aimed at reconnaissance and surveillance to obtain information about the enemy’s capabilities, intentions or activities.
- Foreign Internal Defense (FID) Support: in these missions, SOF train and assist military and police forces of foreign nations. There can also be support against specific subversive movements and terrorist groups.
- Unconventional Warfare (UW): unconventional warfare, or guerrilla warfare, is an extended version of FIDs in which SOFs are part of the fighting forces. In this case, the SOFs support paramilitary forces, not belonging to a state organization, in guerrilla operations, subversion and sabotage.
- Coalition Support: through Coalition Support Teams, SOFs are used in small groups to facilitate the integration of the regular units of friendly nations into a common joint structure. C3I (command, control, communication and intelligence) tactics and methodologies are made as similar as possible and to boost interoperability.
An Example of Covert Operations: The CIA in Nicaragua
According to the International Court of Justice (ICJ), an armed attack can be accomplished not only by the regular armed forces of a state, but also through armed groups acting under the directives of a given county to which these acts can be ascribed. This in turn can give rise to a legitimate armed reaction.
In fact, Article 3 (g) of Resolution 3314 of the United Nations General Assembly (1974) was cited by the ICJ in its 1986 judgment on “Military and paramilitary activities in and against Nicaragua (Nicaragua v. United States)”. The ICJ said it “may be taken to reflect customary international law” and added this point:
An armed attack must be understood as including not merely action by regular armed forces across an international border, but also “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to” (inter alia) an actual armed attack conducted by regular forces”.
The ICJ reiterated the principle of non-intervention in matters within the national jurisdiction of other states, given the binding legal scope “of the abstention from organizing, supporting, fomenting, financing, encouraging or tolerating subversive or terrorist armed activities aimed at changing with violence, the regime of another state, as well as intervening in the internal struggles of another state”.
The ICJ also made this observation:
The Court sees no reason to deny that, in customary law, the prohibition of armed attacks may apply to the sending by a State of armed bands to the territory of another State, if such an operation, because of its scale and effects, would have been classified as an armed attack rather than as a mere frontier incident had it been carried out by regular armed forces. Court does not believe that the concept of “armed attack” includes not only acts by armed bands where such acts occur on a significant scale but also assistance to rebels in the form of the provision of weapons or logistical or other support.
After the Sandinistas took power in Nicaragua in 1979, President Carter authorized the CIA to provide $75 mn worth of financial and logistical support – defined as non-lethal, i.e. not of a purely offensive nature – to local opposition movements.
Subsequently, the Reagan administration identified the government of Managua as a primary source of insecurity for the US, given the potential domino effect its victory could have on other governments in the Central American region. Consequently, in parallel with a strong diplomatic offensive and an economic embargo against the Sandinistas, President Reagan approved NSC Decision Directive 17 on November 23, 1981. It authorized an increase in Carter’s assistance program to the anti-Sandinista guerrillas, the “contras”, including the provision of military support through the CIA.
Under the Directive, the CIA’s involvement became more intensive, with a systematic program of supplying and training the contra paramilitary forces based in Honduras and El Salvador.
This mission was presented to the Congressional Intelligence Control Committee under the cover of a $19 mn program aimed at stopping the alleged shipments of Soviet-made weapons to the Sandinistas and anti-government guerrillas in El Salvador.
After an initial period of training in Argentina, provided mainly by local military instructors and financed with the help of the Cuban exile community, the contras were sent back to Honduras and El Salvador for the pre-operational training phase before going into action in neighboring Nicaragua.
This extensive program was seriously compromised in 1982, when reports in the US and foreign press revealed the true extent of American involvement in Nicaragua. The Senate Intelligence Committee then issued what was called the Boland Amendment, which prohibited US Government funds being used to overthrow the Sandinista regime. This amendment led to the downsizing of the CIA clandestine program and its definitive end was ratified on March 24, 1984, after a further leak revealed the use of magnetic mines by CIA paramilitary personnel in some Nicaraguan ports in an operation that was authorized by Reagan himself.
In sum, the complexity of both SOF and intelligence service paramilitary operations is undeniable when it comes to countering terrorist threats in friendly countries and “rogue states” alike. The failure to define, at the international level, what should be understood by “terrorism” accentuates the difficulties in combating subversion. The old conundrum is still there – for some countries, certain groups must be considered terrorists, while others insist that they are freedom fighters.
Meanwhile, there has been an exponential increase in paramilitary operations since September 11. Secretly and far from the spotlight, these forces have carried out crucial missions in the fight against international terrorism.
Finally, and importantly, European public opinion is often not in favor of sending large numbers of regular troops abroad, even if they are deployed to fight international terrorism. This too has favored the extensive use of special forces and intelligence.
Yet the secrecy of these operations is often penetrated by journalists, as seen recently in an Italian case. Italy has a bilateral Assistance and Support Mission (MIASIT) in Libya. Local witnesses and news reports have confirmed that it includes intelligence personnel and special forces teams tasked with human intelligence missions and providing training and advisory support to Libyan government militias.
As for France, the “Commandement des Opérations Spéciales” (COS) operate in the Sahel in synergy with the Service Action (SA) of the DGSE, the General Directorate for External Security. In 2015, the French newspaper Le Figaro reported on Operation “Sabre”, led by the COS. Its goal was to hunt down jihadists in Africa. Le Figaro noted the neutralization of leading figures of al-Qaeda in the Islamic Maghreb and Ansar Dine in the North of Mali. It named Abdelkrim al-Targui, called the “Tuareg”, and Ibrahim Ag Inawalen, codenamed “Bana “.
In the UK, army and navy special forces teams are linked to MI6 operations. The Telegraph has reported the deployment of SOF personnel in Libya to prepare the ground for any bigger interventions against Daesh and al-Qaeda in the Islamic Maghreb.
In fact, close integration between special forces and intelligence in joint operations is now the rule. As we have seen, there are many operational and legal problems in this field, but further use of well-trained units is a certainty due to their undoubted effectiveness and the political sustainability of limited and targeted operations.