Abuses
a- Espionage
The term espionage means ‘obtaining or passing on to an enemy [the]
information that might prejudice the safety or interest of the state or [the
same to] be useful to an enemy’.[1] In
other words it refers to ‘the practice
of using spies to collect information about what another government or company
is doing or plans to do’.[2]
In international realm, based on mutual understanding between two counties, the receiving state may at any time and without giving any explanation, may terminate the diplomatic staff of sending state. In response, the sending state has to recall the concerned person thus terminated.[3] However historically, it is very unusual to see the withdrawal of a diplomatic staff from the office of receiving state, when both states are in good relations. For example, in June 1988, Britain asked an Israeli agent to leave the country, when it found that the Israeli secret service agency Mossad, ran a double agent intelligence service there.[4]
Interestingly, it is worth mentioning that there are number of occasions, the former Union of Soviet Socialist Republic (USSR) diplomats were ordered to leave the territory on the basis of espionage from Western states. For example, in 1972, Bolivia ordered 119, USSR diplomats to leave the country. Going further, in 1978, the Canadian Government expelled 13, diplomats. Whereas, France asked the number of 47 and 25, diplomats to leave the country, in 1983 and then in 1985, respectively.[5] In addition to that, in 1990, United States requested the withdrawal of 4 Russian diplomat agents when an Federal Bureau of Investigation (FBI) agent was also found accused of spying for Russia. In response, the same number of American diplomats were send off from Russia.[6]
a.1 - Espionage law in the United States and the United Kingdom
In the United States, the espionage and related crimes and their punishment are mentioned in the two Espionage acts. The Espionage Act of 1917, that criminalizes the following, (i) the false statements intended to interfere with the war effort; (ii) to willfully cause or attempt to cause dissension in the armed forces; or (iii) to willfully obstruct national recruiting and enlistment activities.
Secondly, the Sedition Act of 1918, which was actually the extension of the Act of 1917. It criminalized (i) the speech intended to obstruct war-bond sales; (ii) to generate scorn or contempt for democratic government, the flag, or the uniform of the Army or Navy; (iii) to urge reduced production of war materials with the intent to hinder the war effort; or (iv) to express support for a national enemy or opposition to the United States' cause.
In the US, punishment for the crime of espionage varies. It includes death penalty, imprisonment of 20 to 30 years, fines or both depending on the nature of the crime. For application, the Sedition Act of 1918 was continuously upheld by the U.S. Supreme Court before it was repealed in 1921. However, the Espionage Act of 1917 still remains enforceable, ‘when the United States is at war’.
By comparison, in the UK, under the Official Secrets Act,
1989, the following three to be considered as acts of offence,
(i) to make sketch, plan, model or note that might be useful to any enemy of
the UK;
(ii) to obtain record, or communicate to anyone else a secret official code
or password or any information or document that is intended to be used to an
enemy;
(iii) to enter, approach, inspect, or pass over (for example, in an aircraft)
any prohibited place. Those places include naval, military or air-force
establishments, national munitions factories or depots, and any place belonging
to or used by the Crown that an enemy would want to know about. All three offences are punishable by up to 14 years’ imprisonment.
b - Abuse in Terrorism and Criminal Activities
Besides
the acts of conspiracy, diplomatic character of foreign agent has also been
found involved in the acts of terrorism and crimes. For example, in the mid of
70s Libyan Ambassador was declared persona
non grata after being found distributing leaflets hostile to the regime of
President Sadat and suspected for involvement in a clandestine operation
against the Egyptian Government.
Similarly,
in April 1980, the US Department of State declared two members of Libyan
diplomatic missions as persona non grata
in Washington for something not in the favour of US and required them to leave
the country in two days. Following the news acknowledged that kidnappings and assassinations
of opponents of the Libyan regime of Colonel Gaddafi might be attempted in the
USA.[7] In
reply, it was argued by Libya that the mission was not diplomatic hence the Article 9 of VCDR is not applicable.
Whereas,
in 1991, the Iraqi diplomat was required to depart from Germany, after being found
of threatening Kurdish demonstrators with Kalashinkov outside the Embassy of
Iraq. It has been argued by experts that diplomats are not more than terrorists
when their act reflect the act of a terrorist. Hence, because of that the
diplomats must be snatched off from the advantages and opportunities for which they
are entitled of.[8]
Thus, it has been a matter of curiosity to know the fate of
diplomats’ designation once they are expelled from any receiving state. They
may be appointed to serve for other states. However, in 1984, in the worst
incident of shooting inside the Libyan People’s Bureau in London, Sir Leon
Brittan urged the European Ministers of Justice to agree on the point that the diplomats
who are forced to expel from any European state on the grounds of involvement
in the act of terrorism, they should be banned completely to render their
services in other states too.[9]
Response to that was made in the Summit Seven States in Tokyo, in 1986, and the
following measure were included.
Denial
of entry of all persons, including diplomatic personnel, who have been
expelled or excluded from one of our states on suspicion of involvement in
international terrorism or who have been convicted of such a terrorist offence.[10]
[1]
Oxford Dictionary of Law (OUP 2013) 522
[3] Vienna Convention on Diplomatic Relations 1961, s 9 Done at Vienna on 18 April 1961 <http://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf>
accessed 9 March 2015
[4] Frances
X Clines, ‘Britain Orders Israeli Diplomat to Leave’ The New York Times (18th
June 1988) <http://www.nytimes.com/1988/06/18/world/britain-orders-israeli-diplomat-to-leave.html>
accessed 18 February 2015
[5] Eileen Denza, Diplomatic
Law (3rd edn, OUP2008) 78
[6] ibid
[7]
ibid 79
[8]Francisco
Orrego Vicuna, ‘Diplomatic and consular immunities
and human rights’ [1991] ICLQ
47
[9]
Guardian, Daily Telegraph (10 June 1984); Eileen
Denza, Diplomatic Law (3rd edn, OUP2008) 82
[10] ibid
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