When the Truth and Reconciliation Commission established in South Africa after the fall of apartheid examined the state’s use of informers, it found that the practice had been widespread over several decades, and that the recruitment of informers had often involved torture and manipulation.
The strategy of using informers served to undermine the regime’s opponents and was “highly effective in creating a climate of suspicion and breaking down trust both within and between families and communities”.
Those suspected of being informers in South Africa often paid a very high price. The commission observed how the practice of “necklacing” was specifically used to punish alleged informers and to deter others: “No act could convey a deeper sense of hatred and disrespect”.
The commission found that most of the violations in the 1980s associated with the liberation and mass democratic movements were directed not against state authorities or the white minority, but against those considered as collaborators with the apartheid government.
Looking at the practice through a legal lens, the South African Truth and Reconciliation Commission considered that the killings and ill-treatment of informers constituted violations of international human rights law and of the laws specifically applicable in times of armed conflict, including the 1949 Geneva Conventions.
Although the Geneva Conventions make no explicit reference to informers or other collaborators, it is certainly the case that all persons, whether civilian or combatant, and regardless of which side to a conflict they serve, should not be subjected to extra-judicial killing or torture under these laws. That being said, the Conventions allow considerable discretion to state authorities to pursue strategies of recruiting and using informers during times of armed conflict, notwithstanding the serious and at times fatal consequences that may arise.
One of the first treaties governing conducting in warfare, the 1899 Hague Regulations, permitted armies to employ “measures necessary for obtaining information about the enemy and the country”. The European states which met in the Hague at the end of the 19th century to develop these rules were divided between those that considered that informers could be recruited from the civilian population by force and those that favoured accepting only voluntary offers of such collaboration. The latter camp succeeded, leading to the first international law rule forbidding the compelling of civilians in occupied territory into providing information to enemy forces.
After the second World War, the more globally representative group of states that met in Geneva to revise and develop the laws of war agreed unanimously that torture or coercion could not be used for gathering information and recruiting informers. But recruiting and rewarding informers remained permissible by the relevant silence in the 1949 Geneva Conventions, as interpreted by militarily powerful states.
The United Kingdom’s manual on the law of armed conflict, for example, lists “the employment of informers or agents in enemy-held territory” as a legitimate means of intelligence-gathering. “Nothing is more demoralizing to insurgents”, according to a recent United States counterinsurgency manual, “than realizing that people inside their movement or trusted supporters among the public are deserting or providing information to government authorities”.
Contemporary armed conflicts have seen the continued widespread recruitment and use of informers by both state and non-state parties to those conflict. British and American forces deployed specialist teams for such purposes in Iraq, while Islamic State was said to have developed an advanced system of “infiltration and surveillance” of rebel groups and government militias involving the use of formers in Syria. Coercion has been used, as have promises of preferential treatment or financial reward to would-be informers.
Despite the codification of rules of humanitarian law which forbid torture and extra-judicial executions, alleged collaborators continue to be targeted and subjected to the most cruel treatment during armed conflict. The practices seen in South Africa towards informers were not unique. Parties to an armed conflict have always had a special contempt for those considered to have served the enemy.
Northern Ireland is a case in point. The use of informers by the British army, the police and security forces was widespread during the Troubles, and the IRA is said to have executed dozens of alleged informers, as well as torturing and sending into exile many suspected “touts”. To be labelled an informer has carried a particular stigma during the conflict. A former republican paramilitary put it quite starkly in an interview with the Israeli academic Ron Dudai: “I would rather be called a paedophile than an informer”.
Ramifications concerning the use of informers by British and Northern Irish authorities continue to arise. Most significantly, files have recently been sent to the Public Prosecution Service in Belfast as a result of the police inquiry Operation Kenova. These are said to provide evidence of crimes of “murder, kidnap, torture, malfeasance in a public office and perverting the course of justice” arising from activities associated with Freddie Scappaticci, the alleged former head of internal security for the IRA and British army agent.
As well as the abuse associated with coercive recruitment methods and the vicious reprisals against alleged traitors, it is equally the case that informers themselves engage in acts of violence in order to maintain their cover. At times, this may be on the instruction of or with the acquiescence of the state authorities which have recruited them. Scappaticci is said to be linked directly to over a dozen murders of IRA members accused of being informers. Such crimes may have been tolerated by the British authorities in order to secure valuable intelligence from the army’s “golden egg”.
The most egregious acts of violence associated with the practice of using informers run contrary to the laws applicable in armed conflict, as well as international human rights law and domestic criminal law. However, such acts are often the products of covert systems of intelligence-gathering, which have long been unregulated and lacking in oversight and accountability.
The 1949 Geneva Conventions may permit the use of informers, but they provide no framework for regulating the practice. National legislation governing the use of so-called covert human intelligence sources is also usually lacking. George Hamilton, the chief constable of the Police Service of Northern Ireland, acknowledged that during the Troubles, “[T]here were no rules. There was no regulatory framework for handling of informants at that time”.
International human rights law offers a different approach. While treaties such as the European Convention of Human Rights may similarly tolerate the use of informers by state authorities in the context of policing and national security, this body of law requires that such activity accord with relevant human rights standards, such as the right to life, freedom from torture, and the right to fair trial.
Human rights law also requires that any use of covert human intelligence sources be subject to national regulation in order to avoid any arbitrary interference by public authorities in private life. The Regulation of Investigatory Powers Act 2000 seeks to ensure that public authorities in the United Kingdom comply with applicable human rights law in this context. Ireland has yet to put the use of covert human intelligence sources by An Garda Síochána on a legislative footing, as required by the European Convention of Human Rights.
The South Africa Truth and Reconciliation Commission found that after the end of apartheid, the continued persecution of alleged collaborators constituted “a serious hindrance to the process of reconciliation”. The same might be said for Northern Ireland, although the treatment of informers is only one of many issues confronting a society seeking to come to terms with the past two decades after the end of the conflict.
State authorities, including intelligence officials, are coming in to the spotlight for their role in the use of informers in the North. Whether prosecutions will follow remains to be seen. In any event, it is clear that the Scappaticci affair provides a telling example of the serious risks of the unregulated use of informers during conflict.
Dr Shane Darcy is a senior lecturer at the Irish Centre for Human Rights in the School of Law at the National University of Ireland Galway. He is the author of To Serve the Enemy: Informers, Collaborators and the Laws of Armed Conflict (Oxford University Press, 2019)
