and the Limits of American Intervention in the Postwar World (London: I.B. Colonel Sidney Forrester Mashbir, who during the 1920s and 1930s attempted to prevent war with Japan, and when war did erupt, he became General MacArthur's top advisor in the Pacific Theater of World War Two.[45][46]. The ICJ concluded that it would be repugnant to the object and purpose of the Havana Convention to interpret that this silence implies an obligation to surrender the refugee. The Russian Empire and its successor, the Soviet Union have had a long tradition of espionage ranging from the Okhrana to the KGB (Committee for State Security), which also acted as a secret police force. The methods of these types of covert operations differ, primarily through the use of active forces and the use of cyber programming, which have an effect on the aim of the forms they take, but ultimately have either a forceful or influential element. Historically, treatment of spies was more severe since spies are soldiers posing as civilians, rather than scouts who remain true to their soldier status. During peacetime, the position of espionage is more ambiguous. This argument is much sounder as it develops further into a corollary of the actively evolving norm of peremptory self-defence. To make the mission easier and successful, combatants wear disguises to conceal their true identity from the enemy while penetrating enemy lines for intelligence gathering. First, its important to explain that there are legal routes to surveillance that can be conducted by the government. The fact that in 1960 the U-2 incident was never condemned as an act of aggression shows that at the time the concept of territorial integrity was considered only applicable to acts of aggression and the use of force; however, GA Resolution 36/103 now implies that territorial integrity extends to include various forms of intrusion. Nonetheless, the general practice of espionage cannot be and is not explicitly illegal according to international law, and it is up to states and other The illegality of espionage also includes any action which may be considered 'preparatory to' spying, or encouraging or aiding another to spy.[32]. However, the term tends to be associated with state spying on potential or actual enemies for military purposes. Some authors consider that sending spies under the guise of diplomats is an abuse of diplomatic immunity and privileges (10). 0000015526 00000 n 6. To determine the legality of cyber intelligence, it is necessary to distinguish between the different kinds of electronic surveillance. The collection of information by members of the armed forces wearing their The academics in this camp argue that human intelligence is neither legal nor illegal according to international law, and do not see espionage ceasing to be practiced by states, a consensus emerging, or an incentive for regulation (Radsan 2007, 623; Ratner 2007, 539). [8] For more discussion of the insignificance of intelligence collection as a territorial affront see Bowman (1995) at 223; Ohlin (2017) at 1580; and Jackamo (1992) at 935 and 959. Between 2008 and 2011, the United States charged at least 57 defendants for attempting to spy for China.[9]. The 1945 Charter of the United Nations (UN Charter) establishes some of the most basic principles that govern modern international law. A case officer or Special Agent, who may have diplomatic status (i.e., official cover or non-official cover), supports and directs the human collector. As with the manner of termination of irregular asylum under the Havana Convention, it appears that the issue of espionage has mostly been left to political expediency. Therefore, just as the argument against human intelligence, under the GA Resolution 36/103s interpretation of Article 2(4) of the UN Charter extraterritorial surveillance without the consent of the targeted state constitutes a breach of international law. The second strand of espionage, covert intelligence, has a significant amount of contradictory literature surrounding its legality in international law, but one indisputable attribute of intelligence collection is that it is referenced and governed by domestic law as a criminal prescription (compare Demarest 1996, 330; Sulmasy and Yoo 2007, 627; Chesterman 2006, 1077; McDougal et al. In April 2023, the Israeli authorities have demolished 1 residential structure, 1 agricultural structure, which is considered illegal under the international law #IsraeliApartheid #IsraeliCrimes. The Hague, 18 October 1907", "United States of America, Practice Relating to Rule 62. <> WebC. In February 2023, the Israeli authorities have demolished 4 Palestinian under-construction uninhabited residential structures, and 5 structures relating to water, sanitation and hygiene without a justified reason, which is considered illegal under the 1973, 394). The lack of international discussion of human intelligence collection constituting a violation of territorial integrity seems to imply that the act is not severe enough to fall into the offensive categories defined in the UN Charter and GA Resolution 36/103. for the purpose of gathering secret information or detecting wrongdoing, and to transfer such information to another organization or state. The forms covert operations take can be divided into three classifications: coercive covert operations, political action, and propaganda (Treverton 1988, 13). Delupis, I. Section 5 of the Telegraph Act covers mobile-phone snooping if the government can prove that it was done in accordance with the law and that it was used to detect or prevent criminal activity. Third, unlike diplomats, spies do not necessarily employ lawful means in that endeavor. Counterintelligence is the practice of thwarting enemy espionage and intelligence-gathering. In order to protect the country against foreign agents, the U.S. Congress passed the Espionage Act of 1917. In April 2023, the Israeli authorities have demolished 1 residential structure, 1 agricultural structure, which is considered illegal under the international law #IsraeliApartheid #IsraeliCrimes. VDOM DHTML tml> Campaign to Protest outside NSA Citizen spy base on Twitter: "This was an agreement under the strategic Arms Reduction Treaty which was made in the 1980s otherwise their would of been a Nuclear Arms Race it is illegal under international Law and now is no longer in force. The deployment of covert agents into the territory of other States normally seeks to influence or collect information of internal affairs of another State (5). The United States in World War I passed the Espionage Act of 1917. Spies may also be used to spread disinformation in the organization in which they are planted, such as giving false reports about their country's military movements, or about a competing company's ability to bring a product to market. It is in these circumstances and contexts in which certain covert tactics are practiced that questions of legality emerge. McDougal, M. S., Lasswell, H. D. and Reisman, W. M. (1973) The Intelligence Function and World Public Order, Faculty Scholarship Series, 365-448. [2] In times of crisis, spies steal technology and sabotage the enemy in various ways. Differentiating intervention, interference, subversion, coercion and threat as separate entities is crucial to understanding the legality of unarmed covert operations. [12] With the concept of extraterritorial surveillance, a debate similar to that of human intelligence arises around the principle of territorial integrity. During the many 20th-century spy scandals, much information became publicly known about national spy agencies and dozens of real-life secret agents. However, this is not the case with transnational surveillance, which intercepts information from outside the target state, thereby circumventing the principle of territorial integrity. Considering the aim and practical differences between the types of espionage, there are significant aspects to these methods that raise red flags with respect to international law, and it is necessary to analyze the ways in which it is possible for, or can be argued that, espionage can violate international law. WebFISA makes it illegal to intentionally engage in electronic surveillance as an official act or to disclose or use information obtained by such surveillance under as an official act, knowing that it was not authorized by statute; this is punishable with a fine of up to $10,000, up to five years in prison or both. This action would, like that demonstrated previously in the case of active operations, constitute a breach of international law under Article 2(4) of the UN Charter prohibiting the use of force or act of aggression. Nathaniel Ward, Espionage and the Forfeiture of Diplomatic Immunity, International Lawyer (1977), p. 659. Almost all sovereign states have strict laws concerning espionage, including those who practice espionage in other countries, and the penalties for being caught are often severe. 845 20 The purpose of collecting information per se could hardly constitute intervention (see infra on diplomatic law). "The enemy has passed through the gate: Insider threats, the dark triad, and the challenges around security". Government intelligence is very much distinct from espionage, and is not illegal in the UK, providing that the organisations of individuals are registered, often with the ICO, and are acting within the restrictions of the Regulation of Investigatory Powers Act (RIPA). [28], Espionage laws are also used to prosecute non-spies. According to the Tallinn Manual on the International Law Applicable to Cyber Warfare (Tallinn Manual), the principle of non-intervention applies to war initiated or conducted through cyber-attacks (19). This is a possible tool if a diplomatic agent is discovered to be engaging in espionage. This can be useful in capturing important information from an agent that is attempting to seek allegiance with another country. In the world of cyber operations, the concept of armed attack must be expanded beyond its material sense. The better view is that current international law neither prohibits nor condones it an uneasy permission of sorts. Tauris & Co Ltd). The methodical and contextual differences between active operations and human intelligence and their cyber counterparts: cyber operations and cyber intelligence, is paramount when discerning their legality under international law. Under the Hague Convention of 1907, these Germans were classified as spies and tried by a military tribunal in Washington D.C.[41] On August 3, 1942, all eight were found guilty and sentenced to death. A 2004 law already banned surrogacy within Italy. [8] Other academics see this lack of outcry against human intelligence more as a reluctant admission of lawfulness (McDougal et al. Nonetheless, if not a good legal basis for the legitimacy of human intelligence, as an explanation of state behavior, the application of the Lotus principle remains useful and will be utilized concerning cyber intelligence. It is in this sense, that although there is no codified extension of this definition of sovereignty, states opinions concerning its scope are beginning to adopt more restrictive discourse. It includes information that may be both public and private, obtained from much different public or secret sources. The commentary to the Tallinn Manual states that cyberespionage operations lacking coercive elements do not per se violate the non-intervention principle, including when the intervention requires breaching protective virtual barriers (20). However, preventing a state from determining if there is an immediate threat directly infringes on a states ability to exercise peremptory self-defence: human intelligence allows states to prepare and protect themselves with foreknowledge about potential threats (Scott 1999, 224; Baker 2004, 1096). Contact. 14. 0000003137 00000 n BBC News, Berlin Murder: Germany Expels Two Russian Diplomats, 4 December 2019, available at: https://www.bbc.com/news/world-europe-50659179; BBC News, Russian Spy: UK to Expel 23 Russian Diplomats, 14 March 2018, available at https://www.bbc.com/news/uk-43402506; Deutsche Welle, Bulgaria to Expel Two Russian Diplomats over Spying Allegations, 24 January 2020, available at: https://www.dw.com/en/bulgaria-to-expel-two-russian-diplomats-over-spying-allegations/a-52144255. See International Group of Experts at the Invitation of the NATO Cooperative Cyber Defence Centre of Excellence, Tallinn Manual on the International Law Applicable to Cyber Warfare, Cambridge University Press (2013), rule 10, comment 8. Hugh Francis Redmond, a CIA officer in China, spent nineteen years in a Chinese prison for espionageand died thereas he was operating without diplomatic cover and immunity.[20]. Therefore, it can be understood that intelligence is an important part of state practice, and the secrecy attached to it, further implies that intelligence is a crucial part to informing state decision-making. In modern times, many people convicted of espionage have been given penal sentences rather than execution. Among the most common forms of agent are: Less common or lesser known forms of agent include: Espionage against a nation is a crime under the legal code of many nations. Scott, R. D. (1999) Territorially Intrusive Intelligence Collection and International Law, Air Force Review, 46, 217-226. The Indian People's Union for Civil Liberties and Human Rights Law Network both decried his treatment. Ratner, S. R. (2007) Introduction, Michigan Journal of International Law, 28:3, 539-542. WebView history. 24 Jun 2023 16:57:33 at 957-960. Any Western espionage changed fundamentally during the Renaissance when Italian city-states installed resident ambassadors in capital cities to collect intelligence. During the Cold War, many Soviet intelligence officials defected to the West, including Gen. Walter Krivitsky, Victor Kravchenko, Vladimir Petrov, Peter Deriabin Pawel Monat, and Oleg Penkovsky, of the GRU. Murray, Williamson, and Allan Reed Millett, eds. In 1952 the Communist Chinese captured two CIA agents, and in 1960 Francis Gary Powers, flying a U-2 reconnaissance mission over the Soviet Union for the CIA, was shot down and captured. China has a very cost-effective intelligence program that is especially effective in monitoring neighboring countries such as Mongolia, Russia, and India. The second camp, however, finds issues with this overarching claim by Delupis and Wright in that if human intelligence was as fundamentally illegal as they claim, the international community would have explicitly condemned it. The BBC attributed some of the problems to tensions caused by the Kashmir conflict. Espionage is the disclosure of sensitive information (classified) to people who are not cleared for that information or access to that sensitive information. The, Access agent: provides access to other potential agents by providing, Facilities agent: provides access to buildings, such as. 36/103, UNGAOR, 36th Sess., Supp. Fischbacher-Smith, D., 2015. These sensational stories piqued public interest in a profession largely off-limits to human interest news reporting, a natural consequence of the secrecy inherent in their work. This system must be dismantled, the blockade of the Gaza Strip immediately lifted, and those responsible for the crime of apartheid, war crimes and other crimes under international law must be held to account, said Morayef. A spy is an agent of one belligerent that gathers information of the opponent clandestinely, under false pretense or in disguise, with the intention to communicate it to the first belligerent (1). Letters sent by readers are featured in our monthly Issue. These methods of intelligence collection provide the information states use to guide its decision-making, plan its foreign policy, and predict, influence, or understand the future behavior of its constituents (compare Warner 2009, 9; Chesterman 2006, 1074; McDougal et al. (1976) Covert Intervention and International Law, American Society of International Law Proceedings, 69, 192-194. In the 1950 Asylum case, the ICJ found that the asylum was not granted regularly and that it needed to be terminated as soon as possible. Ohlin (2017, 1594-1596) goes on to argue that Russian interference did in fact break international law because it infringed on the American citizens right to self-determination and choose their own government in accordance with the UN Charter. Congress must put an end to mass spying by ensuring that surveillance is targeted, that there is robust judicial oversight, and that people whose lives are invaded by government surveillance can challenge that spying in court. However, the existence of a right to pre-emptive self-defense is in itself doubtful under the UN Charter framework (8). 31, U.N. Doc. 8. According to the Tallinn Manual, any cyber operation that causes damage either in terms of casualties or sabotage amounts to a violation of the target states sovereignty as well as a cyberattack (Schmitt 2013, 16, 106, 195). (2007) The Unresolved Equation of Espionage and International Law, Michigan Journal of International Law, 28:3, 596-623. This was an agreement under the strategic Arms Reduction Treaty which was made in the 1980s otherwise their would of been a Nuclear Arms Race it is illegal under international Law and now is no longer in force. On the other hand, considering the (claimed) widespread use of espionage in international relations, it is unlikely that States will attempt to challenge another States espionage operations before a court of law. US case provides a crucial reassertion of General Assembly Resolution 3314 (1974) which set about providing an expanded definition of aggression to include not only direct forceful action by the offending state, but also any sort of indirect or covert funding, training or supplying of parties known as aggressors to a sovereign state (88). Despite the legal potential of this argument, evidence and severity of cyber acts like that of propaganda are incredibly difficult to trace, track, and tabulate, thereby making the prospect of this kind of espionage receiving a sound legal condemnation from the international community highly improbable. %PDF-1.7 % Those revealing official secrets could face the death penalty. The legality of espionage must be measured against general international law and existing instruments. The Global Case Reporter publishes the most recent cases of relevance for the issue of the month. It is published as part of our mission to showcase peer-leading papers written by students during their studies. From this standpoint, it is legally sound to conclude that unless further development in the debated jurisdiction of the ICCPR occur, privacy laws have no bearing on the legality of transnational surveillance leaving it altogether unaddressed by international law.[13]. As in most, if not all synthetic identity schemes, for whatever purpose (illegal or legal), the assistance of a controller is required. Article 2(4) of the UN Charter, establishing the principle of non-intervention, states as follows: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. The case concerned the granting of asylum by the Colombian Embassy at Lima to Vctor Haya de la Torre (a Peruvian national). Evidence of this can be seen in the U-2 incident in 1960, when a US reconnaissance plane was shot down over the Soviet Union (USSR) while effectively spying on the USSR; yet, this act was not condemned as illegal by the international community and was not seen as an act of aggression under the interpretation of the UN Charter 2(4) and GA Resolution 2625 (Wright 1960, 844; Demarest 1996, 341). US case (1986) declaring the principle of non-intervention and the right of a sovereign state to conduct its affairs as part of customary international law (para. The ancient Egyptians had a developed secret service, and espionage is mentioned in the Iliad, the Bible, and the Amarna letters as well as its recordings in the story of the Old Testament, The Twelve Spies. It is even difficult to determine the proper scope of what constitutes espionage for the purposes of international law for instance, whether espionage covers also diplomats that attempt to uncover sensitive information of the receiving State to disclose it, or even journalists that clandestinely leak information to a foreign State. The similarity of the roles creates a significant risk of overlap, which has led States to expel diplomats on accusations of espionage. Spies rely on COVCOM or covert communication through technically advanced spy devices. A pizza restaurant said to be popular with journalists was Unlike other forms of intelligence collection disciplines, espionage usually involves accessing the place where the desired information is stored or accessing the people who know the information and will divulge it through some kind of subterfuge. Before you download your free e-book, please consider donating to [3] Espionage was also prevalent in the Greco-Roman world, when spies employed illiterate subjects in civil services. From ancient times, the penalty for espionage in many countries was execution. As mentioned previously, covert operations each have essentially three possible forms: coercive operations, political action, and propaganda; and, with respect to active operations, the legality of each during peacetime is inherently different than to that of wartime. This was true right up until the era of World War II; for example, Josef Jakobs was a Nazi spy who parachuted into Great Britain in 1941 and was executed for espionage. [43] An early example of espionage literature is Kim by the English novelist Rudyard Kipling, with a description of the training of an intelligence agent in the Great Game between the UK and Russia in 19th century Central Asia. (ser. [11] The United States, like most nations, conducts espionage against other nations, under the control of the National Clandestine Service. (2015) An International Legal Framework for Surveillance, Virginia Journal of International Law, 55:2, 291-368. Proponents of this view of espionage do not agree that human intelligence constitutes a serious violation of territorial integrity and, in the absence of explicit law, claim a neutral stance on espionage in general, which effectively invokes the judgement of the 1927 Lotus Case. The claim: Susilo Bambang Yudhoyono says it is illegal to tap the phones of officials of other countries under Indonesian, Australian and international law. [9] All these arguments are very similar in logic and evidence only differing in phraseology. . There are also laws surrounding government and organisational intelligence and surveillance. As clarified by the preamble of the VCDR, non-regulated issues should continue to be regulated by international custom. Those carrying out intelligence missions should act within not only RIPA but also the Data Protection Act and Human Rights Act. In the United States, the Espionage Act of 1917 was used against socialist politician Eugene V. Debs (at that time the Act had much stricter guidelines and amongst other things banned speech against military recruiting).
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