By Eugene Matos and Adrian Zienkiewicz

Most discussion around diplomacy is usually about how they go about representation, however little is discussed about the equally important duty of observing and reporting. It takes big events such as the Raymond Allen Davis case. A contractor with the Central Intelligence Agency (CIA) shot two men killing both in Lahore, Pakistan. In the aftermath, the U.S. government contended that Davis was protected by diplomatic immunity because of his CIA employment with the American consulate in Lahore. The event highlighted a question on the scope of immunities given to consular and diplomatic staff, and more precisely, the role and protections awarded to diplomats working as undercover intelligence agents.

Diplomacy and its legal protection, practices and communication cables, diplomatic bags, have partially, if in theory alone, institutionalized aspects of espionage. Where does diplomacy end and spying begin? Where must one draw the line between official diplomacy and the murky world of espionage? “Every embassy in the world has spies,” says University of Buckingham’s Prof Anthony Glees during an interview, director of the Centre for Security and Intelligence Studies. Because it is common practice, there’s an unwritten understanding that governments are prepared to turn a blind eye to what occurs within embassies. It is a fragile quid pro quo between nation-states that has substantial political ramifications.

Most contemporary intelligence officers aren’t deeply embedded undercover; these agents are posted as either low or mid-level workers in foreign embassies and monitor affairs from there. The host countries are aware of their actual identities and the types of duties they carry out. They are generally disregarded until they become threats – easier to track the spies you know about than the ones you don’t.

In the nuclear, technology and cyberspace era, international law requires constant reinterpretation or reassertion to challenge new problems and adapt to developments in the global system. There are various elements to espionage concerning its purpose, methods, and practices that include these innovative arenas. Excluding armed conflicts, espionage is never explicitly addressed in law; the question is left virtually unanswered. Needless to say, there is a varying consensus by legal scholars regarding its limitations.

What is Diplomatic Espionage?

With the advent of technology, the practices vary immensely; albeit, it can be defined as a tool for the execution of policy as well as a tool to inform policy, dividing it into two categories: covert operations, which is the tool for the execution of policy, and intelligence, the tool to inform policy. There are two types of espionage in law: covert operations and covert intelligence. Both occur in secrecy to avoid detection, and therefore require significant consideration and preparation.

The first type- covert operations- consists of active and cyberspace operations. States conduct such actions to influence a foreign state. Covert operations remain very classified, which put them in the deep end of espionage. These can be of a coercive nature, and may include, but not be limited to, sabotage, theft, covert political action, and propaganda.

The second type is covert intelligence, the subject of this present analysis and the more obscure strand of diplomatic espionage. It is divided further into two categories: collection of information and analysis of that information. With respect to international law, the initial collection of information raises considerable legal questions, making it highly contested, especially for diplomats whose primary function is to listen and report. Accordingly, both mandates, covert intelligence and diplomacy, are interested in gathering vital and classified foreign information through different techniques, of private and public nature, for strategic policy goals. Usually, the distinction is perceived through the methods used and the targets in mind, is where the line of malpractice in diplomacy is drawn.

Why is it Important?

Foreign data collection itself has several variants and they are used to guide foreign policy and apprehend the future behaviour of its constituents not only in military applications, but also in trade and investments, as well as general regional politics. Thus, intelligence gathering is a crucial practice towards the greater ambitions of a state, and its secrecy further implies that intelligence is integral in the state decision-making process.

A question of diplomatic practice

The issue is rightfully not whether diplomats can spy or not; rather, one should understand the limitations. Espionage, economic and industrial intelligence remains a missing dimension of international affairs, diplomatic history and its study. Diplomatic espionage is also practiced between friendly states, ‘friendly’ economic espionage is seen as a covert activity between competing foreign states to acquire economic intelligence used to interfere with certain states’ economic opportunities. These are popular variables in trade negotiations. The USA has successfully used macroeconomic, microeconomic and economic counterintelligence against its allies. In fact the New York Times confirmed that the United States has expanded the role of American diplomats in collecting intelligence overseas. Case in point, United States diplomats were directly instructed to spy on United Nations, and EU leaders, as confirmed by Wikileaks, a 2009 confidential directive from the United States Department of State.

Is Diplomatic Covert Intelligence Legal?

Diplomatic immunity is a form of legal immunity that ensures diplomats are given safe passage in the host country. Diplomats are unsusceptible to lawsuits or prosecution under the host country’s laws. Although the practice of espionage is technically illegal, it is forgivable by law for diplomats, yet the line between ethical practice does affect contemporary diplomatic relations when crossed arbitrarily. In certain cases, states knowingly cross this line despite high geopolitical stakes, with considerable aftermath as seen with the Snowden leak in Venezuela/Germany/USA relations.

A diplomat has the conventional duty, by nature and mandate, to observe the receiving state. However, some diplomats have lurked away from the light and gone into endeavours that are incompatible with their official plan, such as infiltration, development of cover identities, or by monitoring the behaviours of individuals or groups to gather information and persuade political disenchantment. In correlation, we accord an interest to the instructive case of legal resident spies operating in a foreign state with an official cover and protection of a member of a diplomatic mission, which is yes protected by law. However, the law creates a clear distinction if the member is a consular or diplomat.

Consular staff

Immunity is a product of the Vienna Convention on Consular/Diplomatic Relations, 1963/61, and the International Law Commission. To begin with consular agents, they are accountable to all state laws except for a few functional circumstances. In addition, a consular officer’s protection is limited to reporting and performing intelligence functions by all lawful means and can only report on the conditions and developments of the receiving State’s commercial, economic, cultural and scientific life.

Moreover, the Vienna Convention on Consular Relations, 1963 (VCCR) art 43 ss. 1 states that consular staff are “not amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions” and that they should only be liable to arrest, according to article 41, “in the case of a grave crime and pursuant to a decision by the competent judicial authority”.

In other words, the law has given us parameters for consular agents to respect these: intelligence from resident accredited consular staff is legal under the VCCR 1963 insofar that, the consular mission respects the laws of the receiving State, that the activities do not include illegal covert operations, that the activities are restricted to observe and report (intelligence) in matters within the function of the consulate and that the intelligence is restricted to only the socio-economic development of the host state.

Diplomatic Staff

If a diplomatic member assigned to an embassy is caught crossing the line in espionage , the host authorities would have to admit the principle of diplomatic immunity, by which diplomatic officials are not subject to the jurisdiction of local courts and other authorities for both their official and, to a large extent, their personal activities. The Vienna Convention on Diplomatic Relations 1961, offers broader protections than the consulate. For example, the archives and documents of a diplomatic mission are inviolable and shall not be seized or opened by the host government (Article 24).

The host country must permit and protect free communication between the diplomats of the mission and their home country. A diplomatic bag must never be opened, even on suspicion of abuse, and a diplomatic courier must never be arrested or detained (Article 27). Diplomats must not be liable to any form of arrest or detention, and the receiving state must make all efforts to protect their person and dignity (Article 29). Diplomats are immune from the civil and criminal jurisdiction of the host state, with exceptions for professional activities outside the diplomat’s official functions (Article 31). Therefore, the only clear path to prosecution offered is Article 32, permitting sending states to waive this immunity.

It is safe to assume that the repercussions vary enormously giving us a plethora of options if a diplomat gets caught crossing the line. Detention, interrogation and the possibility of a trial in a public venue are not usually possible for diplomats. Again, the factors depend on the government in question, who the diplomat is working for, their citizenship, and what information they may have received or transferred. Thus we switch to the political context.

If a diplomat gets caught crossing the line of what’s acceptable, but they’re not causing noteworthy harm, usually they’ll just get kicked out of the country and sent back home; these actions are swift. Getting caught red handed is the genesis of a wave of political humiliation and negative diplomatic relations. In the case of diplomatic immunity, an intelligence operator would be, in general, only answerable to the jurisdiction of the host state if the sending state waives off the diplomatic immunity.

Repercussions for non diplomats?

However, once a spy crosses the line and they do not carry or diplomatic immunity is waived, it’s game on. If it’s an ally that has compromised defenses, an exchange or kicked out of the country, and if it’s a citizen to the host country a lengthy jail term is likely in store. The ally, too embarrassed about getting caught, no one wants to cause an international diplomatic incident over something they were trying to keep hush-hush in the first place. Enemy spies are slightly different, and their fates largely depend on the relationship between the two nations. They also make good bargaining chips – even bitter enemies have been known to trade captured spies. Whenever an enemy spy gets sent back to his home country, it’s usually because someone wanted to keep the peace.

Espionage is just war and politics played out on a smaller scale by unelected officials and political appointees. Accordingly, the fate of any one agent is largely determined by negotiations, the political environment and of course diplomacy. Spying is illegal as per the national law of almost every state, but some foreigners can be protected or immune to those laws, insofar that the method of covert intelligence fits in the parameters of the principles of diplomatic or functions of the consular immunity.

About the authors:

Author Eugene Matos De Lara (MA, MBA, LL.L, JD, LLB, BA.pol.pad, BA.dvm, BA.sc PMP) is currently working for the International Institute for Middle-East and Balkan studies, based in Ljubljana, and the Geneva Desk for Cooperation. Multilingual internationally published legal graduate with an extensive corporate legal background, and exposure to private international law, international relations, politics, public administration and public affairs.

Co-author Adrian Zienkiewicz (LL.L JD) is a law student at Université de Montréal. He has a marked interest for all spheres of public international law. Environmental and Energy Law are his real passions.