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Belgium's spy problem
by editor September 29, 2020 September 29, 2020
Spies flock to Belgium like bees to a honeypot — not least because there's a low risk of jail time.
With 127 diplomatic postings, Brussels hosts the most diplomatic missions in the world, according to the Global Diplomacy Index of the Lowy Institute. The presence of the EU institutions and NATO headquarters makes Belgium relevant not just for diplomats, journalists and lobbyists, but also for international espionage.
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But despite the high levels of interest in the Belgian capital, both Belgian and EU authorities say it is difficult for them to punish those caught spying and attempts to tighten the rules have failed.
In recent months, security officials have investigated two former EU officials accused of passing intelligence to China. Former U.K. diplomat and ex-European Commission official Fraser Cameron, who directs the EU-Asia Centre, is being investigated by Belgian security services on suspicion of passing sensitive information in exchange for remuneration.
Earlier this year, German prosecutors revealed that they suspected Gerhard Sabathil, a former EU official, of passing information to China.
Both deny the allegations. In both cases, it's also not clear whether the allegations will lead to prosecution.
Gerhard Sabathil denied passing information to China | Yonhap/EPA
This is especially difficult in Belgium, since espionage is not classified as a crime. Belgian law only stipulates you are committing a crime if you communicate classified information of key national interest to a hostile or foreign power. The provisions date back to the 1930s.
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Calls for change are long-standing. Johan Delmulle, attorney general in Brussels, addressed the issue in a speech for the Brussels Court of Appeal in 2018. "Espionage in Belgium, and specifically in Brussels, isn't something virtual, but very concrete. Our legal arsenal for prosecuting crimes of espionage is outdated — some paragraphs date back to before the Second World War — and must be adapted to today's society and reality."
Public spotlight
In the absence of a stricter espionage law, security officials try to be creative when stopping suspects. One way is to put them in the public spotlight — via the news media — in the hope that they will no longer receive relevant information.
The Sabathil case was revealed by German prosecutors, who worked with Belgian security officials on the case. Sabathil has so far not been arrested nor charged, but his network might be less willing to pass on sensitive information to him.
The same goes for Cameron.
"Belgian state security worked on this file for many years with our colleagues in the British intelligence services," a spokesperson for the Belgian state security said. "On this basis, we can conclude that Fraser Cameron poses a clear threat to the European institutions through his espionage activities. His revelation should be a clear signal that anyone spying in Brussels will sooner or later appear on the intelligence services' radar and will not be able to continue his activities with impunity."
Another way for prosecutors to circumvent the espionage law is by pressing charges for other criminal offenses. "Public prosecutors must revert to other articles of the law which weren't created in order to combat espionage, such as gang formation or breaches of the telecommunications legislation," Demuelle said.
This happened in several cases, such as former Belgian diplomat Oswald Gantois. Investigated for leaking information to Russian secret services throughout his career, he was convicted in 2018 of illegal association with the purpose of committing forgery. Gantois himself admitted that he acted "a little bit too much like James Bond."
A Chinese national was in the same year suspected of spying for Chinese state security and arrested. However, he was placed under arrest for the theft of wages instead of for espionage.
It's not clear yet whether this is also the strategy in the case of Cameron. According to a person close to the case, the federal prosecutor's office has opened an investigation into Cameron.
The prosecutor's office, however, declined to comment on both the specific case and on espionage law more generally. Comité I, which supervises the intelligence and security services in Belgium, didn't reply to a request for more information about the espionage law.
A new espionage law
Attempts by security officials and public officials to advocate for an update to the law haven't gone unheard.
The current federal justice minister, Koen Geens from the Flemish Christian Democratic party CD&V, is trying to push a revised espionage law through parliament. The update explicitly links the law to Belgian international relations, which also constitute the relations with international organizations such as NATO and the EU, a spokesperson for Geens said.
The change would also expand the law to economic and scientific espionage. According to the spokesperson, that refers to any secret information that a foreign state or an armed group can use to engage in economic warfare.
Although an update of the espionage law is necessary, it also entails risks, said Frank Verbruggen, law professor and head of the Institute of Criminal Law at Leuven University.
"There was a clear demand from security officials to adjust the law to cases we had in the recent past, which is understandable. But it's a thin line between addressing those cases without endangering fundamental rights such as freedom of speech, the freedom of association or the freedom of press."
"If the next justice minister doesn't back this package, then we're right back where we started" — Belgian government official
Verbruggen worries that the new formulation, which uses broad terms like "propaganda," can be applied in an arbitrary way. "From a legal point of view, we always have to watch out to prosecute individuals for things that are described fairly vague."
Apart from the legal criticisms, the political road for the new law is still long and insecure. The issue has made little progress because of an impasse in forming a Belgian government since late 2018. It's part of a broader package of justice reform by Geens, and it's unclear what will happen with that package when Belgium gets a new government, especially as Geens announced on Friday that he will no longer seek to stay in power.
"No one knows what's going to happen at this point," said one Belgian government official. "If the next justice minister doesn't back this package, then we're right back where we started."
At the same time, Belgian officials also point to European institutions, claiming they also have a role to play. In the European Commission, the assumption is that member countries are responsible for the activities of their own nationals, for whom they issue security clearances.
The European Parliament has long been alive to the issue, said Reinhard Bütikofer, the chair of the European Parliament's delegation for relations with China.
The German MEP did not want to go into case details given nothing has been proved. "Notwithstanding that caution, the Chinese side is obviously interested in getting as much information as possible. They are trying to use all the tricks in the book, and possibly some more."
Bütikofer stressed that the Parliament has been dealing with this issue and referred to its motion of resolution on foreign electoral interference and disinformation and to the special committee on foreign interference in all democratic processes in the EU, including disinformation. One of its responsibilities is "to identify, assess and propose ways to tackle security breaches inside the EU institutions."
Nonetheless, he said he wants to go further and pointed to Australia's Foreign Influence Transparency Scheme. This explicitly aims to make the nature and extent of foreign influence on Australia's political process more visible and therefore demands registration by those acting on behalf of foreign governments.
"The Australian example sheds a light on dubious or possible dubious activities," said Bütikofer, who hopes that both the EU and EU countries will look into Australia's model, although he had to confess that "so far I haven't met colleagues who shared my enthusiasm for this approach."
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