Prisoner Swapping and the Curious Case of Paul Whelan’s International Espionage

Ishita Thakur,

Research Intern,

Internationalism.



International Espionage has frequently been used as a tactic by States to inform themselves of the clandestine acts of other States. However, the absence of International Law on the matter, the secrecy with which these spies are employed and the undisclosed manner in which they carry out their functions, often leaves out very little evidence for their conviction or acquittal. Such convictions can also be politically motivated to achieve larger motives of the States on the global spectrum. In fact, the vacuum of evidence and the spirit of secrecy that revolves around such spies magnifies the prospect of political agenda behind their conviction.

A U.S. Marine veteran, named Paul Whelan, was recently convicted in Moscow on charges of espionage and sentenced to 16 years in a maximum-security prison. The American asserting throughout the trial that he was not guilty of being an American spy, alleged that he had been framed by an agent from Russia's Federal Security Service (FSB). The veteran, charged with receiving Russian state secrets, had served in the U.S. Marine Corps for 14 years before being discharged for bad conduct. The conviction has had Washington claiming that bilateral relations have been affected and the speculation of a potential prisoner swap between Russia and America has also been raised.

The American Government proclaiming that it's outraged by this verdict has asserted that the entirety of the trial had been held in secret. Washington has, in fact, stated the trial to be infringing the fair trial assurances that Russia is required to provide Whelan, observing international human rights obligations. Pressure has been built on the American government to come into a sort of deal with Russia which will get Whelan back to his native country, despite views being expressed by Washington of how the event has severed its relations with Moscow. U.S. diplomats have described the case as a “significant obstacle” to improving already poor bilateral ties.

International Law does not endorse nor forbid espionage but rather preserves the practice as a means to facilitate international cooperation. Espionage allows States to verify whether their neighbours are complying with international obligations, and also to confirm the legitimacy of the affirmations their neighbours provide. The tool works as an assurance to States that can now monitor foreign behaviour, which in turn encourages them to cooperate internationally. Further, national leaders use the information they gain through espionage to make better-informed policy decisions. The escalation of East-West tensions has made espionage both more complex and more imperative, in recent years.

Although international law does not endorse espionage, States also do not reject it as a violation of international law. The vacuum of any regulation governing the subject is certainly a matter of concern. Spy trials in Russia are not only heard in secret, the defence lawyers also have to sign non-disclosure agreements for the entire case. In 2017, a Norwegian Frode Berg was detained in Moscow for allegedly spying. The case was classified as "totally secret" and was heard behind closed doors. The lack of legislation or international regulation makes it possible for the States to deny these convicts a fair trial with requisite transparency. Some of these prisoners, convicted of espionage, also face custodial violence.

A significant aspect factoring into the exploitation of these convicts and the framing of innocents with charges of espionage is, that the States involved, often resort to prisoner-swapping. The minute Whelan was convicted, the focus shifted to a possible prisoner swap between Washington and Moscow. Officials in Moscow started hinting at a possible prisoner swap, furthering the reservations that the veteran is only a pawn in a political game to retrieve Russian prisoners of certain significance. Whelan’s attorney confirmed that he had been approached about a potential prisoner swap, while remarking that his client was told by a Russian intelligence officer, upon arrest in 2018, that he would be swapped for Victor Bout. There are several high-profile Russian prisoners in America that Moscow has sought to get back for years including Viktor Bout, the notorious Russian arms dealer convicted for 25 years in a US prison. Another prisoner that might be a contestant in this prisoner-swapping is Konstantin Yaroshenko, a Russian pilot, serving a 20-year sentence for conspiracy to smuggle cocaine into America. Russian officials had previously declared the convictions of both of these Russians as politically motivated and pushed for their release.

Prisoner swapping is a frequent method adopted by States to retrieve high-profile criminals convicted in another State. Quite recently, Majid Taheri, an Iranian-American who had been detained in the United States for 16 months, was freed in exchange of American Navy veteran, Michael White. Michael White, who had been detained since his arrest in July 2018, was released by Iran, in another case of prisoner swapping.

With Whelan himself calling the event a case of “political theatre”, the secrecy of the trial and the talk revolving around prisoner swapping, it is difficult to believe that the whole event is anything other than a strategized act in a greater political game. While International espionage is justifiable, there are certain offences under the ambit of spying that ought to be internationally prohibited. Further, the law needs to prohibit ‘secretive’ trials, as are a common feature in the Russian Legal system. Secretive trials become a greater area of concern when these trials involve an accused who is a citizen of another country.

Additionally, prisoner swapping needs to be condemned since the practice is far too susceptible to be politically motivated. It is needless to mention that certain States might just fabricate trials and charge innocents in order to retrieve high profile criminals convicted in another State. Recently, Prime Minister Justin Trudeau was asked about a case of prospective prisoner swapping between Huawei Technologies Co.’s Chief Financial Officer in exchange for two Canadian prisoners when he remarked that the Canadian government is not considering it and that Canada has a “strong and independent justice system”. It needs to be emphasized that the independence of Judiciary and fair trial dealings are threatened when such an allowance of secretive trials and prison swapping is allowed to prevail.



References

1. Baker, Christopher D., "Tolerance of International Espionage: A Functional Approach." American University International Law Review 19, no. 5 (2003): 1091-1113.

2. Forcese, Craig, “Spies Without Borders: International Law and Intelligence Collection”, Journal of National Security Law and Policy, (June 15, 2011), Vol. 5, 2011.

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