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27 February 2004

Electronic Surveillance of Foreign Diplomatic Missions:
A question of law and morality

Andreas Persbo and Ian Davis

Peoples of all nations from ancient times have recognized the status of diplomatic agents: do the benefits of 'bugging' diplomatic missions and personnel outweigh the legal and political costs?

The conflict in Iraq has raised a number of questions concerning the integrity and professionalism of the intelligence services of the United Kingdom and the United States. Another embarrassing episode from the days preceding the war on Iraq has now flared up, following the decision of the British Crown Prosecution Service to drop charges against GCHQ 'whistleblower' Katharine Gun. In March 2003, she revealed in a leaked email that the US National Security Agency (NSA) had decided to eavesdrop on UN Security Council diplomats belonging to the group of 'swing nations' that were undecided on the question of war against Iraq. The NSA requested the help of its British counterparts at GCHQ to collect information on these diplomats.

Espionage involving electronic surveillance or 'bugging' of conversations is not a new occurrence in world politics. During the Second World War, Stalin had Roosevelt bugged, so that he could properly prepare against any arguments that the western allies would present regarding the future division of Europe. During the cold war, embassies in Moscow had networks of listening devices hidden in the walls. Western intelligence even dug tunnels under the Berlin wall in order to tap on Soviet military communications networks. As any card-player would testify, you can never underestimate the value of knowing your opponent's hand. But the same player would also say that there are rules for the game, and that cheating can be a hazardous affair.

The difference today, however, is the scope of the technologies available to the US and UK intelligence agencies. To a large extent, these technological capabilities are unknown, but what is certain is that surveillance equipment has grown increasingly sophisticated over the years. For example, it is no longer necessary to place a hidden microphone in a room, when lasers directed at a window can measure the vibrations in the glass, and a computer can translate these vibrations into recognizable speech. The Australian Defence Signals Directorate has confirmed the existence of a world wide network called Echelon, and while its capabilities are veiled behind a cloak of secrecy, articles and stories suggests it is capable of intercepting huge amounts of e-mail, telephone and fax traffic. This information is sifted through super-computers capable of recognizing and red-flagging certain key-words for further analysis.

Thus, according to James Bamford, a specialist in Intelligence, every 60 minutes the US and British intelligence agencies intercept millions of telephone calls, emails and faxes.¹

Judicial authorities of most nations and, for example, the European Court of Human Rights, have recognized the intrusiveness of 'bugging'. Therefore, the rights of law enforcement agencies to 'bug' suspects are normally operated under judicial oversight. In addition, national courts are usually only empowered to authorize 'bugging' of suspects of serious crimes, such as murder, armed robbery or narcotics trade.

Are there legal grounds to conduct surveillance operations targeted at diplomatic missions? The primary source to answer this question is the 1961 Vienna Convention on Diplomatic Relations.² This convention is widely recognized as a codification of customary law. In regards to the United Nations, the relevant framework is the 1946 Convention on the Privileges and Immunities of the United Nations.³

The 1961 Convention was drafted with the "sovereign equality of States, the maintenance of international peace and security, and the promotion of friendly relations among nations"⁴ in mind. And that the "purpose of [diplomatic] privileges and immunities is ... to ensure the efficient performance of the functions of diplomatic missions as representing States".⁵ Therefore, one of the fundamental rules in the convention is that the premises of the mission shall be inviolable. There are no exceptions to the rule. Agents of the host state may not enter the mission without the consent of the head of the mission.⁶ More importantly in order to answer the question, the host shall permit and protect free communication on the part of the mission for all official purposes.⁷

Generally, this has been interpreted as an obligation not to electronically wiretap diplomatic missions. Undeniably, that interpretation is in line with the 'object and purpose' of the treaty. An embassy's right to secure communication naturally extends to the private residence of the diplomatic agents.⁸ In regards to the compounds of the United Nations, the organisation premises "shall be inviolable"⁹ and its communications shall receive treatment equal to or better then the treatment offered to diplomatic missions.¹⁰ Bugging of any UN official would therefore be as serious infringement of international law as the bugging of a head of a diplomatic mission.

Is espionage a legitimate form of statecraft today? In some limited circumstances, such as to infiltrate terrorist networks, the answer is probably yes. But it is certainly wrong (and immoral) to do this to friends and allies, and as a general principle all nations ought to be moving away from this reliance on espionage. Greater use of open information would help, as well as improved parliamentary oversight of intelligence agencies. And if the UK Government is truly committed to "reinforcing the UN's role in preventing and preventing conflicts around the world", it is hard to see how bugging the Secretary General can help.

The glaring contradiction in the UK-US posture towards the UN seems to be lost on Downing Street and the White House. On the one hand, Bush administration and Whitehall officials declare that war was necessary to uphold the authority of the UN Security Council against alleged Iraqi denial and deception. President Bush even cited the electronic bugging of UN weapon inspectors by Iraqi officials in his eve of war Address to the Nation.¹¹ On the other hand, the US and British governments target the Security Council for espionage and outright subversion.

More needs to be done to protect the sanctity of the United Nations. This is largely a question of political will, although updating the Vienna Convention to close loopholes and to reflect changes in surveillance technologies in the past 40 years would also help. Illegitimate 'bugging' activities cannot be permitted if the international community wants to foster an environment where treaties and agreements are concluded in good faith. And while the short-term benefits of bugging friends, allies and international organisations may be tempting for any government, the long-term costs are surely too high.

For more information, please contact:

Dr Ian Davis, Director, BASIC (idavis@basicint.org) Tel: +44 (0)20 7324 4685 (office) or +44 (0)7887 782 389 (mobile)

Andreas Persbo, BASIC Consultant, (apersbo@basicint.org ) Tel: +44 (0)20 7324 4680 (office)

Endnotes

1. Quoted in The Guardian, 27 February 2003.

2. United Nations, Treaty Series, vol. 500, p. 212

3. United Nations, Treaty Series, vol. 1, p. 15, and vol. 90, p. 327 (corrigendum to vol. 1). As to the inviolability of the UN Headquarter in New York, the US-UN Headquarters Agreement would also be of relevance. That act would probably not, however, be binding on other member states then the US.

4. Vienna Convention on Diplomatic Relations, preambular paragraph ii.

5. Ibid, preambular para. iv.

6. Ibid, art. 22 (1)

7. Ibid, art. 27 (1)

8. Ibid, art. 30 and 1 (e). Note that non diplomatic staff does not enjoy the same protection.

9. Convention on the Privileges and Immunities of the United Nations, art. II sect. 3

10. Ibid, art. III sect. 9

11. President Bush, Address to the Nation, 17 March 2003: "The Iraqi regime has used diplomacy as a ploy to gain time and advantage. It has uniformly defied Security Council resolutions demanding full disarmament. Over the years, U.N. weapon inspectors have been threatened by Iraqi officials, electronically bugged, and systematically deceived. Peaceful efforts to disarm the Iraqi regime have failed again and again -- because we are not dealing with peaceful men."