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The Unresolved Equation of Espionage and International Law

30 Pages Posted: 30 Jul 2007  

Afsheen John Radsan

William Mitchell College of Law

Abstract

Fewer rules apply to peacetime espionage than to espionage which is conducted during an armed conflict. Espionage, filled with paradox and contradiction, continues to have an ambivalent place under international law. To the sophisticated observer, espionage is neither legal nor illegal. In a sense, it goes beyond law. When an American intelligence officer gathers intelligence through human sources in another country, he or she, from the perspective of American law, is doing something useful and authorized to protect American national security. From the perspective of the other country's law, however, the American intelligence officer and the human sources are committing crimes. The reverse applies when other countries spy on us. Diplomatic immunity, after all, does not decriminalize the practice of espionage, but simply protects people from prosecution. For those intelligence officers who operate under diplomatic cover, the worst that usually happens to them, if caught, is that they are returned home as personae non gratae. Espionage and international law are not in harmony.

Keywords: counterintelligence, espionage, detention, interrogation, terrorism, intelligence, covert action, international law, diplomatic immunity, customary international law

Suggested Citation

Radsan, Afsheen John, The Unresolved Equation of Espionage and International Law. Michigan Journal of International Law, Vol. 28, No. 597, 2007; William Mitchell Legal Studies Research Paper No. 75. Available at SSRN: https://ssrn.com/abstract=1003225

Afsheen John Radsan (Contact Author)

William Mitchell College of Law ( email )

875 Summit Ave
St. Paul, MN 55105-3076
United States

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