The recent capture of a spy in New York has sparked a controversy between China and the United States of America. In recent years, several countries have raised allegations against Chinese spies operating in various parts of the world. A few months ago, Indian media reported that a Chinese spy ship was detected in Indian waters, allegedly snooping on India. For a long time, India has also claimed that Sri Lanka’s Hambantota port is being used for spying on India. These recent incidents compel us to examine international laws related to espionage.
Spying is one of the oldest forms of state action. The International Court of Justice, in various cases such as the Rainbow Warrior and Kulbhushan Yadav, has addressed the issue of espionage in international law, which holds significant importance globally and for India. A person is considered a spy when, acting clandestinely or under false pretences, they obtain or attempt to obtain military information in enemy-controlled territory. Espionage refers to efforts made in enemy-controlled areas by a party to a conflict to gather information that may be useful for the conduct of war or hostilities.
Espionage, as understood by international law, is clandestine and takes place under false pretences. The 1907 Hague Rules, which deal with spies in a similar way, remain relevant, including the prohibition on prosecuting spies for previous acts of espionage (if they have rejoined their army) and the prohibition on punishing a spy without trial.
The Geneva Conventions of 1949 introduced additional safeguards for individuals accused of espionage, including the right to a trial with legal counsel, an appeal process after the penalty is imposed, and a six-month waiting period before the execution of a death sentence. The collection of information by armed forces members in uniform is not considered espionage but rather intelligence activities. In international law, the terms ‘espionage’ and ‘spy’ have similar meanings.
Under international law, espionage refers to the clandestine gathering of information or activities carried out under false pretences. A spy caught in the act is assimilated to the category of a saboteur and is not entitled to prisoner-of-war status. However, a spy must still be treated humanely and cannot be punished without a fair and regular trial. According to customary international humanitarian law, in the context of an international armed conflict, combatants captured while engaging in espionage are not entitled to prisoner-of-war status, but they cannot be convicted or sentenced without a prior trial.
Regarding the cases of Rainbow Warrior and Kulbhushan Yadav, the former concerns an undercover operation by the French Directorate-General for External Security (DGSE), which resulted in the sinking of the UK-registered Rainbow Warrior in Auckland Harbour. Ultimately, both New Zealand and France agreed to refer the dispute to the UN Secretary-General for a binding ruling. The Secretary-General held that a state that sends agents to commit an acta jure imperii – acts performed in the exercise of sovereign power – is liable for those acts, rather than the agents themselves, who enjoy immunity in local courts.
Whereas the Kulbhushan Jadhav case, involving India as a party to the dispute, concerned alleged violations of the Vienna Convention on Consular Relations (24 April 1963). The case centered on the detention and trial of Indian national, Kulbhushan Sudhir Jadhav, who had been sentenced to death by a Pakistani military court in April 2017. India claimed that Pakistan had failed to promptly inform it of Jadhav’s arrest and detention. Furthermore, India asserted that its consular officers were denied access to Jadhav while he was in custody and prison, preventing them from conversing or corresponding with him, or arranging for his legal representation. Ultimately, the International Court of Justice held that Pakistan was obligated to provide, through means of its choosing, effective review and reconsideration of Jadhav’s conviction and sentence. This was to ensure full consideration was given to the violation of rights set forth in Article 36 of the Vienna Convention on Consular Relations.
Going forward, espionage will continue to play a critical role in international relations, shaping how states interact and negotiate with one another. Recent incidents involving Chinese espionage activities have once again highlighted the legal frameworks that govern such practices. While international law provides some safeguards for individuals accused of espionage, the complex nature of such activities often creates ambiguity and conflict.
As demonstrated by the Rainbow Warrior and Kulbhushan Jadhav cases, espionage remains a highly charged issue in international law. Further developments in state practice and legal rulings will likely continue to shape the discourse surrounding this controversial topic.
Abhinav Mehrotra is Assistant Professor and Dr Biswanath Gupta is Associate Professor at OP Jindal Global University. Views expressed in the above piece are personal and solely those of the authors. They do not necessarily reflect News18’s views.
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