“We’re on the Air!” Michael Flynn, Sergey Kislyak and the Paradoxes of Diplomatic Immunities

[Dr. Mohamed Helal is an Assistant Professor of Law, Moritz College of Law & Affiliated Faculty, Mershon Center for International Security Studies – The Ohio State University. From 2002-2003 Dr. Helal was a member of the Cabinet of the Secretary-General of the Arab League, and from 2005-2009 he served on the Cabinet of the Minister of Foreign Affairs of Egypt, and served as the Legal Counsel to the Deputy Foreign Minister of Egypt during 2016.]

I’d like to start this blogpost with a story. Weeks into my diplomatic career, my turn came up to serve as the late-night duty officer. This is usually a junior diplomat who stays late into the evening to man-the-fort and to call the senior leadership if you’re the hapless sap misfortunate enough to have a crisis break out on your watch. Luckily, nothing of consequence happened that evening. I did, however, get a call from an Ambassador serving in an important Middle Eastern country. He wanted to know whether we at HQ had received an encrypted cable that his embassy had sent earlier that day. I had not seen the cable, so instead of asking him for its serial number to check if it had been received, I asked: “What’s the cable about?” The Ambassador chuckled and answered: “I can’t tell you that. We’re on the Air!”

It is an open secret that the movements, communications, and conversations of diplomats are monitored by the intelligence services of states to which they are accredited. This universally recognized truth came to glaring light when it was revealed that US intelligence agencies intercepted calls between Russia’s Ambassador to the US Sergey Kislyak and incoming National Security Advisor Lt. Gen. Michael Flynn. During their conversations, it appears that General Flynn assured Ambassador Kislyak that US sanctions against Russia would be relaxed after the inauguration of President Trump. The exposure of these contacts added to the steady drip, drip, drip of reports and rumors about Russia’s role in the 2016 US Presidential Election and the nature of relations between Moscow and the-then Trump campaign and the-now Trump Administration. Naturally, what is now called “The Russian Connection” has unleashed a political maelstrom in Washington. Democrats and the mainstream media are calling for investigations either by Congress or a special prosecutor, Republicans are demanding inquiries into the sources of these leaks, and, operating in his own Kafkaesque alt-reality, a petulant President has tweeted that the whole affair is just Fake News!

Legal and political commentary has evaluated virtually every aspect of this unfolding story. Reporters are asking Who Knew What, and When about Flynn’s conversations with his Russian interlocutor, concerns are being expressed about the competence and effectiveness of the White House Counsel, and even the possibility that General Flynn’s civil rights were violated because his calls were intercepted has been discussed. Conspicuously absent from the conversation, however, is international law. Virtually no one is considering whether tapping Ambassador Kislyak’s calls constituted an internationally wrongful act by the United States.

Spying on Diplomats … Legibus Solutus?

The absence of international law from the conversation is probably attributable to the assumption held by many scholars (here, here, here) that international law has nothing to say about intelligence operations. Spooks, spies, and intelligence agencies, in other words, are claimed to be legibus solutus – operating beyond the pale of international law. Accordingly, it is argued that international law does not prohibit spying on foreign diplomats (here, p. 312-323). While I can see the potential logic of claims that international law does not generally proscribe spying, I am less sympathetic to contentions that international law does not specifically prohibit spying on foreign diplomats by governments to which they are accredited.

This prohibition is enshrined in the Vienna Convention on Diplomatic Relations (VCDR). True, the VCDR does not explicitly prohibit spying on diplomats. It does not, for instance, say: “receiving states shall not to engage in acts of intelligence gathering or surveillance against the heads of missions or diplomatic agents of the sending states.” Nonetheless, the combined effect of Articles 22, 24, 27, and 30 of the VCDR is to prohibit intelligence gathering by receiving states against the diplomats of sending states, if these acts of intelligence gathering compromise the secrecy of diplomatic correspondences, impair the freedom of communication, or encroach on the inviolability of Embassies or diplomatic residences. (For a similar view, see: here, p.196-197).

Moreover, these protections accorded to diplomats are unequivocal. Like the blanket immunity of diplomats from the civil and criminal jurisdiction of receiving states, the VCDR does not admit any limitations or qualifiers on the inviolability of either official diplomatic communications or correspondences, and diplomatic premises. The policy purpose underlying these principles is that secrecy is essential to the conduct of diplomacy. Indeed, Article 3(1)(d) of the VCDR recognizes that one of the functions of diplomats is to report to their governments on the “conditions and developments in the receiving state.” Unless diplomatic agents are permitted to freely execute their functions, and to communicate secretly on these matters with each other and with their governments, diplomats will become nothing but slightly glamorous news reporters.

Has Diplomatic Immunity Against Spying Fallen into Desuetude?

A potential counter-argument is that my reading of the VCDR is merely tedious textualism that does not recognize the ubiquity of spying against diplomats. But that is exactly why I began this blogpost with a story. I, and anyone with experience in this field, understand that diplomats operate under the constant gaze of the intelligence agencies of receiving states. This reality might suggest that even if the VCDR prohibits spying on diplomats, that principle has fallen into desuetude because it is honored more in the breach than in the observance. (On desuetude, see here). This is essentially how the US Government convinced Congress to enact the 1978 Foreign Intelligence Surveillance Act (FISA) despite concerns that it might violate the VCDR (See here, p. 545).

While I recognize the merit of this line of argumentation, ultimately, I find it unconvincing. The notion that repeated violations of an established rule of international law could eventually lead to overturning that rule has been deployed, unsuccessfully, on numerous occasions. For instance, some scholars (here) claim that the prohibition on the use of force in Article 2(4) of the UN Charter has been invalidated due to repeated state practice that breaches that rule. This claim has been thoroughly refuted by the International Court of Justice (ICJ), which opined that what matters is not only whether state practice violates an established rule of international law, but whether states justify their practice on a rule or a right that contradicts the established rule (Nicaragua ¶ 207). In the case of Article 2(4) of the UN Charter, practice that justifies the use of force on the basis of previously existing exceptions to Article 2(4) serves to confirm, not overturn, the rule.

The same can be said about the inviolability of diplomatic correspondences and communications. First, with the possible exception of the position of the US Government during the 1978 debates on the FISA, states have rarely officially claimed a legal right to spy on diplomats. If anything, almost all states either deny allegations of conducting surveillance against foreign diplomats or refuse to comment on these allegations when they surface in news reports or in leaked documents. Second, the fact that states, including the United States and Russia, have vociferously objected whenever their own diplomats were spied on, or when the inviolability of their diplomatic missions was breached, or when their diplomatic communications were compromised confirms the continued validity of the VCDR rules. Third, international condemnation of espionage against United Nations officials and the Permanent Missions of UN member states further evidences widespread opinio juris in support of the prohibition of spying on diplomats. (See Eileen Denza’s authoritative commentary on the VCDR p. 178-188)

Even with the Digital Revolution, which has led many to declare the death of privacy and secrecy, states continue to invoke the protections enshrined in the VCDR. This is probably attributable to two reasons. First, despite the vast technological leaps in electronic surveillance, there are still lots of secrets, including not only raw information, but also analysis and future plans, that are inaccessible and that governments legitimately want to hide. The norms of diplomatic immunity contribute, even if only little compared to counter-intelligence techniques, to protecting these state secrets. Second, the VCDR is an expression of the most vaunted concept in international law: state sovereignty. Encroaching on diplomatic immunity does not only undermine the ability of diplomats to do their jobs, but also affronts the sovereignty and dignity of states. As the ICJ noted in its condemnation of the barbaric assault on the US Embassy in the Tehran Hostages Case: “There is no more fundamental prerequisite for the conduct of relations between States … than the inviolability of diplomatic envoys and embassies.” (¶ 91)

This all leads to the conclusion that intercepting the telephonic, electronic, encrypted, or other communications of the Russian Ambassador, or any other diplomatic agents, accredited to the United States by US intelligence constitutes an internationally wrongful act. Furthermore, as I’m sure Opinio Juris readers are well aware, domestic legislation or administrative orders, such as FISA and Executive Order 12333, which we are told (here) provide the statutory authorization for intelligence gathering against foreign diplomats, may not be invoked to justify a violation of international legal obligations.

Counter-Espionage and the Paradox of Diplomatic Immunity:

On 29 December 2016, in response to reports of Russian interference in the presidential election, President Obama expelled 35 Russian diplomats accredited to the United States on allegations of engaging in espionage. This aspect of the Trump-Russia saga demonstrates another one of those unspoken truths about diplomacy. Almost all countries, including the United States (see here and here), exploit the cover of diplomatic immunity to engage in intelligence gathering, either through HUMINT (Human Intelligence) by spies posing as diplomats, or through SIGINT (Signals Intelligence) by using embassies as listening posts.

It is unquestionable that international law recognizes the right of all states to protect themselves against spying by other states, including by acts of espionage by foreign diplomats. It is equally undisputed that the VCDR prohibits spying by diplomats, and allows receiving states to declare those diplomats who allegedly engage in espionage persona non grata.

Herein lays the paradox. To uncover espionage by foreign diplomats, receiving states will almost always have to subject those diplomats to some form of surveillance, potentially in violation of the VCDR. In other words, while the VCDR prohibits spying by diplomats and requires them to respect the domestic law of the receiving state, the VCDR fails to provide states with the adequate tools with which to enforce that prohibition and to protect against intelligence gathering by diplomats. This, I suspect, is part of the reason why states have tolerated the practice of surveillance of diplomats. States recognize and uphold the general principles of the inviolability and immunity of diplomatic agents, while expecting and tolerating a degree of encroachment on the confidentiality of diplomatic communications as a necessary antidote to the insatiable temptation to practice humanity’s second oldest profession: spying.

Conclusion:

As they have for centuries, diplomats will undoubtedly continue to execute their indispensible functions with the knowledge that their every move is being monitored by the ever-watchful eye of intelligence services. As former French Foreign Minister Bernard Kouchner, a colorful character who added flare to the sometimes drab business of diplomacy, said: “Everyone is listening to everyone else.”