The Unresolved Equation of Espionage and International 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