Duty to act on knowledge: precautions, intelligence and the law of armed conflict

Abstract

As Einstein famously said ‘[t]hose who have the privilege to know have the duty to act…’ (Albert Einstein c. 1929). This article takes the precautionary obligations of the Law of Armed Conflict (LOAC) to argue that parties to an armed conflict are obliged to act on their intelligence to minimize the harm to civilians caught up in the conflict. As such, it assesses the relationship between intelligence and the precautions to be taken against attacks under LOAC. It uses the context of Improvised Explosive Devices (IEDs) to illustrate some of the challenges that may be faced in interpreting the law and to demonstrate how significant a thorough understanding of this obligation could be in protecting civilians. I argue that states have an obligation to use their actionable intelligence to protect civilians under their control and for more than merely militarily advantageous reasons. However, the critical challenge is in establishing the scope of the obligation in terms of control and temporality, with limited judicial handling reducing clarity. Nonetheless, I contend that there is a legal obligation on states, beyond the territorial state, to proactively use intelligence during armed conflict to protect civilians from IEDs as well as other evolving threats of armed conflict.