FPIF Commentary

Electronic Surveillance of Foreign Diplomatic Missions: A Question of Law and Morality

By Andreas Persbo and Ian Davis | March 2, 2004

Editor: John Gershman, Interhemispheric Resource Center (IRC)

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 Government Communications Headquarters (GCHQ) whistleblower Katharine Gun. In March 2003, she revealed in a leaked email that the U.S. 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 into 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 U.S. 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 Defense 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 suggest it is capable of intercepting huge amounts of email, 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 U.S. 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 the 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 organization premises "shall be inviolable"(9) and its communications shall receive treatment equal to or better than the treatment offered to diplomatic missions.(10) Bugging of any UN official would therefore be as serious an 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 conflicts around the world, it is hard to see how bugging the Secretary General can help.

The glaring contradiction in the UK-U.S. posture toward 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 U.S. 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 organizations may be tempting for any government, the long-term costs are surely too high.

(Dr. Ian Davis is the Director of the British American Security Information Council (BASIC, www.basicint.org) and Andreas Persbo is a consultant for BASIC. This is reprinted with permission for Foreign Policy in Focus (online at www.fpif.org).)

Endnotes

1. Quoted in The Guardian, February 27, 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 U.S.-UN Headquarters Agreement would also be of relevance. That act would probably not, however, be binding on other member states than the United States.
4. Vienna Convention on Diplomatic Relations, preambular paragraph ii.
5. Ibid, preambular paragraph 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, March 17, 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, UN 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.”

Published by Foreign Policy In Focus (FPIF), a joint project of the Interhemispheric Resource Center (IRC, online at www.irc-online.org) and the Institute for Policy Studies (IPS, online at www.ips-dc.org). ©2004. All rights reserved.

Recommended citation:
Andreas Persbo and Ian Davis, “Electronic Surveillance of Foreign Diplomatic Missions: A Question of Law and Morality,” (Silver City, NM & Washington, DC: Foreign Policy In Focus, March 2, 2004).

Web location:
http://www.fpif.org/commentary/2004/0403bugging.html

Production Information:
Writer: Andreas Persbo and Ian Davis
Editor: John Gershman, IRC
Layout: Tonya Cannariato, IRC