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The United Kingdom’s long-awaited Integrated Review of Security, Defence, Development and Foreign Policy raises important issues that pertain directly to members of the Bar. Global Britain in a competitive age (March 2021, CP 403, the ‘Report’), states: ‘We will sit at the heart of a network of like-minded countries and flexible groupings, committed to protecting human rights and upholding global norms. Our influence will be amplified by stronger alliances and wider partnerships – none more valuable to British citizens than our relationship with the United States’ (p 6).
The Report goes on to analyse current and future threats and how the UK plans to react. Central to these threats, leaving aside for our discussion key items such as the UK’s refurbishment of its strategic nuclear warheads, is the threat from cyber attacks, whether perpetrated by state players, such as Russia and China, or by their surrogates, criminal groups, and malintended hackers. Cyber defence, and the UK’s response, with the ability to both defend and counterattack, raise international legal issues that will become increasingly important for detection and prosecution of international cyber crime.
Let us stand back and review the status quo.The maintenance of international order and the enforcement of the United Nations’ mandates have been enforced by key bodies such as the International Court of Justice (ICJ), the International Criminal Court (ICC), that also addresses human rights violations, and the United Nations International Tribunal for the Law of the Sea that enforces the United Nations Convention on the Law of the Sea (UNCLOS). The International Court of Arbitration (ICA), operating under the International Chamber of Commerce, is the world’s leading arbitral institution. Other non-UN entities have been significant. The European Court of Human Rights, the court of law of the Council or Europe, based in Strasbourg, France, established in 1959, ensures that EU member states respect the rights enshrined in the European Convention on Human Rights.
Underpinning cases coming before these various judicial bodies is the intelligence that permits INTERPOL, multinational and individual law enforcement and prosecutorial agencies to take action against wrongdoers. One of the primary sources is the Five Eyes intelligence organisation of the UK, United States, Canada, Australia and New Zealand; an alliance that has stood the test of time since World War Two. Its significance in the maintenance of international order and service to the international courts bears analysis at a time when threats to international order are growing.
Five Eyes intelligence is based on reliable, accurate, timely, non-political, and non-partisan, actionable intelligence – the cornerstone qualities that have characterised the Five Eyes since Winston Churchill’s and Franklin Roosevelt’s secret meeting onboard the battleship HMS Prince of Wales, on 10 August 1941, in Placentia Bay, off Newfoundland, less than four months before the Japanese attack on Pearl Harbor, Hawaii, on 7 December 1941. Thereafter, the words Bletchley Park, Enigma, Ultra, Station Hypo, and Magic entered the intelligence lexicon, and the annals of history.
Today, a new generation of Five Eyes intelligence specialists, the systems and technologies that support special collectioni sources and mehotds, and the international law enforcement agencies and the courts need to combine their strengths in a committed assault against the serious emerging threats to world order.
To illustrate the issues that face the global legal community, the Five Eyes and their associated key allies (the European nations, Japan, and India), be reminded of the legal enforcement framework that exists, and the several serious current threats to international order.
The United Nations has no operational role in the implementation and enforcement of UNCLOS but other UN-related agencies are directly involved in significant ways. The International Maritime Organization (IMO), the International Whaling Commission, and the International Seabed Authority play important operational roles. Bear in mind that about 98% of the world’s internet communications travel via undersea cable. The UK, China and Russia are full signatories to UNCLOS; not so the United States, though it recognises it as a body of accepted ‘Customary Law’. The United States is not a member, and does not recognise the jurisdiction, of the ICC and ICJ regarding US citizens. Chinese territorial violations in the South China Sea have been ruled upon by the ICA to China’s detriment, and there are, for example, ongoing serious issues in the eastern Mediterranean regarding Turkey’s violation of Greece and Cyprus’ exclusive economic zones by exploiting drilling.
The US Pacific Fleet, together with key allies, including in 2021 the deployment of the Royal Navy Queen Elizabeth Strike Group to East Asia, is the guardian of freedom of the seas not just in the Pacific Ocean but eastwards through the Malacca, Sunda, and Lombok Straits into the Indian Ocean. China has a well documented maritime strategy for the 21st century. UNCLOS, as the international body of law that the US Navy and its allies can collectively and legally enforce, provides the legal backbone to this ‘Alliance Strategy’. Deterrence, through allied strength and the maintenance of legally established and agreed UN norms, can be enforced, in an international forum.
Let’s turn to realities in the South China Sea. Two examples will suffice. On 9 May 2012, about 200 miles south east of Hong Kong, China moved a platform into well-established Vietnamese territorial waters. On 2 May 2014 China moved the rig to the Paracel Islands. Vietnam protested again, but regrettably there was no support for Vietnam’s cause and no means of countering China’s action. Between December 2013 and October 2015 China built artificial islands with a total area close to 3,000 acres on seven coral reefs in the Spratly Islands in the southern part of the South China Sea. China proceeded to fortify and weaponise them. There are multiple other examples of Chinese violations in the South China Sea.
In another key domain, the recent Five Eyes gathering, which included India and Japan as guests, addressed how the Five Eyes intelligence and international law enforcement agencies can access end-to-end encrypted communications, covering everything from crime rings, misinformation and industrial espionage, to human trafficking, illegal arms transfers, piracy, and terrorist-related activities. These are just the tip of the iceberg.
Chair of the UK’s parliamentary Defence Committee, Tobias Ellwood MP recently made it clear that the security of alliance 5G networks was paramount and that the risks of espionage and system failures by illicit 5G exploitation requires the full removal of Huawei by 2027. GPS-related maritime resilience and navigation integrity are an intrinsic part of this issue. The Five Eyes provide key intelligence to the international law enforcement and legal community regarding the protection of highly secure satellite derived time and position data for all aspects of the GPS network, and especially the Global Navigation Satellite System (GNSS) that has already been attacked by several nations. Both the legal and intelligence communities should muster their combined skills and responsibilities to address the serious challenges to the GNSS.
Free speech in an age of disinformation, internet-based commercial espionage and extremist movements, particularly of the far right with racist and anti-Semitic aspects, lead us on to consider our role as guardians of international order and the degree of tolerance of intolerance when many of the main global social media providers, such as Facebook and Google, are the vehicles for spreading disinformation. By what standards of decency, and basic human rights, are clear and unequivocal violations of accepted norms since the Nuremberg War Crimes Trials at the end of World War Two? Further, the critical matter of metadata exploitation, privacy and protection issues, dangers to peace and security from water and mineral shortages, and climate change, all require a close interface between intelligence support and the legal community. The effects on the multifarious aspects of critical national and global infrastructure need to be better understood and, this author argues, the vulnerabilities protected by a new, reenergized Five Eyes' role in the international legal community.
In conclusion, the working interface between the international legal system and the Five Eyes intelligence community in the post-Cold War and 9/11 world is paramount. The Bar can be a hugely positive influential force in shaping and determining the way ahead. The means of detection, enforcement, and apprehension, and the trial of wrongdoers requires the attention of the Bar in concert with the UK government’s legal and security agencies.
How to engage, with whom, and at what level? The Bar Council can begin this process by initially determining through meetings and dedicated events, together with direct exchanges and colloquia with European, United States, and Five Eyes nations as a whole, a strategy for moving forward, including draft international legislation. The future role of INTERPOL in this domain requires special attention. In particular, cyber is a continuing threat that is not going away. It should be addressed legally as a high priority. The Bar of England and Wales can play a critical role in this process.
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Dr Anthony R Wells is the only living person to have worked for British Intelligence as a British citizen, and US Intelligence as an American citizen, and has worked with the Five Eyes for over 50 years. He was called to the Bar by Lincoln’s Inn in 1980 when a Commander in the Royal Navy. He lives in Virginia. He is the author of Between Five Eyes: 50 years of intelligence sharing (Casemate Publishers: 2020).
The United Kingdom’s long-awaited Integrated Review of Security, Defence, Development and Foreign Policy raises important issues that pertain directly to members of the Bar. Global Britain in a competitive age (March 2021, CP 403, the ‘Report’), states: ‘We will sit at the heart of a network of like-minded countries and flexible groupings, committed to protecting human rights and upholding global norms. Our influence will be amplified by stronger alliances and wider partnerships – none more valuable to British citizens than our relationship with the United States’ (p 6).
The Report goes on to analyse current and future threats and how the UK plans to react. Central to these threats, leaving aside for our discussion key items such as the UK’s refurbishment of its strategic nuclear warheads, is the threat from cyber attacks, whether perpetrated by state players, such as Russia and China, or by their surrogates, criminal groups, and malintended hackers. Cyber defence, and the UK’s response, with the ability to both defend and counterattack, raise international legal issues that will become increasingly important for detection and prosecution of international cyber crime.
Let us stand back and review the status quo.The maintenance of international order and the enforcement of the United Nations’ mandates have been enforced by key bodies such as the International Court of Justice (ICJ), the International Criminal Court (ICC), that also addresses human rights violations, and the United Nations International Tribunal for the Law of the Sea that enforces the United Nations Convention on the Law of the Sea (UNCLOS). The International Court of Arbitration (ICA), operating under the International Chamber of Commerce, is the world’s leading arbitral institution. Other non-UN entities have been significant. The European Court of Human Rights, the court of law of the Council or Europe, based in Strasbourg, France, established in 1959, ensures that EU member states respect the rights enshrined in the European Convention on Human Rights.
Underpinning cases coming before these various judicial bodies is the intelligence that permits INTERPOL, multinational and individual law enforcement and prosecutorial agencies to take action against wrongdoers. One of the primary sources is the Five Eyes intelligence organisation of the UK, United States, Canada, Australia and New Zealand; an alliance that has stood the test of time since World War Two. Its significance in the maintenance of international order and service to the international courts bears analysis at a time when threats to international order are growing.
Five Eyes intelligence is based on reliable, accurate, timely, non-political, and non-partisan, actionable intelligence – the cornerstone qualities that have characterised the Five Eyes since Winston Churchill’s and Franklin Roosevelt’s secret meeting onboard the battleship HMS Prince of Wales, on 10 August 1941, in Placentia Bay, off Newfoundland, less than four months before the Japanese attack on Pearl Harbor, Hawaii, on 7 December 1941. Thereafter, the words Bletchley Park, Enigma, Ultra, Station Hypo, and Magic entered the intelligence lexicon, and the annals of history.
Today, a new generation of Five Eyes intelligence specialists, the systems and technologies that support special collectioni sources and mehotds, and the international law enforcement agencies and the courts need to combine their strengths in a committed assault against the serious emerging threats to world order.
To illustrate the issues that face the global legal community, the Five Eyes and their associated key allies (the European nations, Japan, and India), be reminded of the legal enforcement framework that exists, and the several serious current threats to international order.
The United Nations has no operational role in the implementation and enforcement of UNCLOS but other UN-related agencies are directly involved in significant ways. The International Maritime Organization (IMO), the International Whaling Commission, and the International Seabed Authority play important operational roles. Bear in mind that about 98% of the world’s internet communications travel via undersea cable. The UK, China and Russia are full signatories to UNCLOS; not so the United States, though it recognises it as a body of accepted ‘Customary Law’. The United States is not a member, and does not recognise the jurisdiction, of the ICC and ICJ regarding US citizens. Chinese territorial violations in the South China Sea have been ruled upon by the ICA to China’s detriment, and there are, for example, ongoing serious issues in the eastern Mediterranean regarding Turkey’s violation of Greece and Cyprus’ exclusive economic zones by exploiting drilling.
The US Pacific Fleet, together with key allies, including in 2021 the deployment of the Royal Navy Queen Elizabeth Strike Group to East Asia, is the guardian of freedom of the seas not just in the Pacific Ocean but eastwards through the Malacca, Sunda, and Lombok Straits into the Indian Ocean. China has a well documented maritime strategy for the 21st century. UNCLOS, as the international body of law that the US Navy and its allies can collectively and legally enforce, provides the legal backbone to this ‘Alliance Strategy’. Deterrence, through allied strength and the maintenance of legally established and agreed UN norms, can be enforced, in an international forum.
Let’s turn to realities in the South China Sea. Two examples will suffice. On 9 May 2012, about 200 miles south east of Hong Kong, China moved a platform into well-established Vietnamese territorial waters. On 2 May 2014 China moved the rig to the Paracel Islands. Vietnam protested again, but regrettably there was no support for Vietnam’s cause and no means of countering China’s action. Between December 2013 and October 2015 China built artificial islands with a total area close to 3,000 acres on seven coral reefs in the Spratly Islands in the southern part of the South China Sea. China proceeded to fortify and weaponise them. There are multiple other examples of Chinese violations in the South China Sea.
In another key domain, the recent Five Eyes gathering, which included India and Japan as guests, addressed how the Five Eyes intelligence and international law enforcement agencies can access end-to-end encrypted communications, covering everything from crime rings, misinformation and industrial espionage, to human trafficking, illegal arms transfers, piracy, and terrorist-related activities. These are just the tip of the iceberg.
Chair of the UK’s parliamentary Defence Committee, Tobias Ellwood MP recently made it clear that the security of alliance 5G networks was paramount and that the risks of espionage and system failures by illicit 5G exploitation requires the full removal of Huawei by 2027. GPS-related maritime resilience and navigation integrity are an intrinsic part of this issue. The Five Eyes provide key intelligence to the international law enforcement and legal community regarding the protection of highly secure satellite derived time and position data for all aspects of the GPS network, and especially the Global Navigation Satellite System (GNSS) that has already been attacked by several nations. Both the legal and intelligence communities should muster their combined skills and responsibilities to address the serious challenges to the GNSS.
Free speech in an age of disinformation, internet-based commercial espionage and extremist movements, particularly of the far right with racist and anti-Semitic aspects, lead us on to consider our role as guardians of international order and the degree of tolerance of intolerance when many of the main global social media providers, such as Facebook and Google, are the vehicles for spreading disinformation. By what standards of decency, and basic human rights, are clear and unequivocal violations of accepted norms since the Nuremberg War Crimes Trials at the end of World War Two? Further, the critical matter of metadata exploitation, privacy and protection issues, dangers to peace and security from water and mineral shortages, and climate change, all require a close interface between intelligence support and the legal community. The effects on the multifarious aspects of critical national and global infrastructure need to be better understood and, this author argues, the vulnerabilities protected by a new, reenergized Five Eyes' role in the international legal community.
In conclusion, the working interface between the international legal system and the Five Eyes intelligence community in the post-Cold War and 9/11 world is paramount. The Bar can be a hugely positive influential force in shaping and determining the way ahead. The means of detection, enforcement, and apprehension, and the trial of wrongdoers requires the attention of the Bar in concert with the UK government’s legal and security agencies.
How to engage, with whom, and at what level? The Bar Council can begin this process by initially determining through meetings and dedicated events, together with direct exchanges and colloquia with European, United States, and Five Eyes nations as a whole, a strategy for moving forward, including draft international legislation. The future role of INTERPOL in this domain requires special attention. In particular, cyber is a continuing threat that is not going away. It should be addressed legally as a high priority. The Bar of England and Wales can play a critical role in this process.
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