India and Pakistan have locked horns over the alleged Indian spy Kulbhushan Jadhav in Pakistani custody. India fought the case at the International Court of Justice to gain a temporary victory over Pakistan and obtained consular access to the Indian captive. While India took the first step to fight this case at the ICJ, Pakistan is bound to take the next step, which makes it necessary to examine International Law related to espionage, especially during peacetime.
A nation-state’s instruments of foreign policy are: aid, diplomacy, trade, and war. In the Indian subcontinent, the fact that terrorism has also evolved into an instrument of foreign policy has made spies transform themselves into clandestine violent non-state actors. They no longer play a passive role to merely collect intelligence, but also an active one to foment political violence or terrorism in the host country.
The threat of war always lurks in the background of the international political system, especially between two states like India and Pakistan that have a history of hostility with each other. It gives rise to the problem of trust deficit and therefore either side attempts to constantly assess the other side’s military capabilities and warlike intentions. In order to tackle this trust deficit, the two sides make their assessments through intelligence gathering, both through covert and overt sources. The covert or clandestine collection would involve a physical presence of spies in prohibited areas or conducting meetings with citizens of the host nation, especially “access agents” or persons with access to sensitive political, military or economic information.
The Indian claim that Pakistani intelligence agents kidnapped Jadhav from Saravan in Iran on the Iran-Pakistan border makes eminent sense because no spy would ever be caught with two passports on him. Pakistan has earlier even kidnapped Iranian border guards, it would not be surprising therefore if that was the case with Jadhav. As Pakistan claims, if Jadhav actually worked for Indian intelligence, then he would not enter Pakistani territory but operate from Iran. Rarely does a spy risk capture by going into the lion’s den.
The fact that Pakistan sought to block consular access to Jadhav suggests lack of judicial transparency. This strengthens the argument about the possibility of his being kidnapped from foreign soil. For Pakistan, the only way to gloss over the kidnap theory was to conduct a one-sided military court martial and declare him guilty.
Intelligence operations involve two types of professional profiles -- intelligence officers who are officially part of an intelligence organisation; and agents -- outsiders who undertake assignments due to their access to a particular person, area or organization. As a former naval commander, Jadhav was an Iran-based businessman and so neither an intelligence officer nor an intelligence agent. While intelligence officers are backroom boys, intelligence agents are frontline field agents, vulnerable to capture. The former run or manage the latter.
While International Law has evolved into diverse dimensions that deal with business and health to environment and war, it remains ambiguous about espionage, especially during peacetime. For International Law, the collection of intelligence through covert means poses a challenge because it impacts the national security of the target country. This entails the collection of information through various surreptitious, intrusive means inside a foreign nation’s territory without that nation’s knowledge or consent. These types of intelligence operations have long been considered to rest within the power of nation-states, particularly during times of war. The Geneva Conventions already address some of the issues of intelligence gathering during war time, particularly the treatment of spies.
Peacetime intelligence gathering enables nation-states to judge potential threats more accurately and to choose between peaceful or hostile courses of action. Intelligence gathering often provides the basis for the jus ad bellum or criteria to go to war. Invariably, peacetime intelligence gathering aims to corroborate a target nation’s war-related intentions and capabilities. Accordingly, the nation concerned that authorises intelligence-gathering operations against another nation only does so to militarily prepare itself to counter any eventuality of a surprise attack. US scholars like Glenn Sulmasy and John Yoo assert that a nation-state that engages in peacetime intelligence activities does not violate the law.
An examination of the causes of war between nation-states shows that efforts to regulate intelligence collection during peacetime increases the likelihood of war. Therefore, proposals for international treaties to govern intelligence collection are not only premature but will likely prove counterproductive to international peace and stability. While two or more countries fight a ‘cold war’, as India and Pakistan do, intelligence operations are an extension of diplomacy that is a grey area between diplomacy and war. So much so, intelligence operations amount to an executive arm of foreign policy.
(The writer is Professor of International Relations and Strategic Studies at Christ Deemed to be University, Bengaluru)