The Crime of Espionage in Jordanian Legislation: Protected Secrets and Penalties
Few criminal files in Jordan are as sensitive as espionage files, because they do not affect the interest of a particular individual but strike at the security, safety and highest interests of the State, so the legislature surrounded them with criminal protection more severe than that provided for ordinary crimes. The framework governing them in the Kingdom is spread across more than one statute: the Jordanian Penal Code No. 16 of 1960 and its amendments, with regard to treason and crimes against state security; the Protection of State Secrets and Documents Law No. 50 of 1971, which defined the protected secrets and the forms of assault on them; and the State Security Court Law No. 17 of 1959, which removed a category of these crimes from the regular courts and placed them under a court with its own composition and jurisdiction. This distribution across three statutes, together with the departures from the general rules on attempt and on territorial jurisdiction that come with it, is what makes any file of this kind a matter that can only be handled by a lawyer who has practiced before this particular court and knows its logic.
1. The Concept and Scope of Espionage
Espionage is among the oldest forms of criminal conduct known to states, and in its origins it was tied to attempts to obtain military, political and security information about other states. Its scope, however, has widened considerably, especially since the Second World War, so that it is no longer confined to military secrets and war plans, but extends to political, economic, industrial and commercial information. This widening of the object was matched by a parallel development in the means, as communications and information technology became tools through which information can be gathered and transmitted without the traditional, familiar methods.
At the level of international law, Article 29 of the Convention respecting the Laws and Customs of War on Land, signed at The Hague in 1907, defined a spy as a person who, in the zone of operations of one of the parties to the conflict, gathers or attempts to gather information by acts of deception or disguise with the intention of communicating it to the other party. The Ottoman Penal Code No. 105 of 1924 also addressed some forms of acts connected with giving the enemy the benefit of information capable of harming the State's forces, property or allies.
Legal scholarship has differed in formulating a comprehensive and precise definition; one school confines the concept to gathering secret information and handing it to the enemy, while another widens it to cover the various forms of transmitting information that would benefit a foreign state or harm the State's interests.
The Jordanian legislature took an approach with considerable practical effect: it did not lay down a general definition of the crime of espionage, but instead defined the scope of criminal protection by regulating the protected secrets and documents, setting out their levels of classification and the criminalized acts committed against them. Article 2 of the Protection of State Secrets and Documents Law defines these secrets and documents as oral information or written, printed, shorthand or tape-recorded documents, and photographs, films, plans, drawings, maps and the like, where they are classified in accordance with the provisions of the law. This means that the first question in any file is not whether the act is espionage in the common understanding of the word, but whether the material that is the object of the act falls within the legal classification in the first place. This is a purely technical question, and it is where a specialist lawyer begins reading the file.
2. Types of Espionage
Legal scholarship classifies espionage according to two criteria, and each has a bearing on understanding the nature and gravity of the charge.
(a) By the nature of the activity. Strategic espionage means gathering information on the various capabilities of other states, whether military, political or economic, in order to form a comprehensive picture of the target state's capacities. Tactical espionage focuses on military information that helps commanders draw up plans and take decisions related to operations. Offensive espionage consists of operations directed against a hostile state, whether through agents or by other means. Its counterpart is counter-espionage, the activity aimed at uncovering, confronting and neutralizing the espionage activities carried out by hostile parties.
(b) By the nature of the information. Military espionage is the most serious form, since it concerns the organization, numbers and armament of the armed forces, the means of communication between them, and the support and services connected with them. Political espionage concerns the positions of leaders, the nature of internal political life, and political parties and their relationship with the executive authority. Economic espionage consists of gathering data related to the national economy, growth indicators, policies, resources and financial capacities. Industrial espionage targets secrets and technical information relating to national industries and their effect on the State's industrial strength.
This widening of the object has an important practical consequence: an act that appears to the person doing it to be innocent commercial, research or technical activity may fall within the scope of criminalization if the material that is its object is classified. Determining whether the act falls inside or outside this scope is itself a delicate legal point that merits consultation, and it cannot rest on the person's intentions or their own view of what they were doing.
3. Protected Secrets and Documents and Their Classification Levels
The Protection of State Secrets and Documents Law classifies protected material according to its degree of sensitivity and the seriousness of its disclosure, as follows:
| Classification level | Criterion for inclusion | Examples of what falls under it |
|---|---|---|
| Top Secret | Material whose disclosure would cause serious harm to the State's internal or external security, or give another state a significant advantage that poses a danger to the Kingdom | Plans and details of military operations and the measures of the Public Security Directorate and the General Intelligence Department; political documents relating to international relations, agreements, treaties and negotiations; the means of military intelligence, counter-intelligence and counter-espionage; anything affecting the sources of the intelligence services or their personnel; important information relating to weapons, ammunition and the sources of defensive strength |
| Secret | Material that does not reach the previous level of seriousness, but whose disclosure threatens the safety of the State, harms its interests, or gives a significant advantage to a foreign state or another party | Locations where defense or economic materials or vital installations are concentrated; movements of the Armed Forces or the Public Security Directorate; matters relating to the weapons and forces of fraternal Arab states |
| Restricted | Material whose disclosure to unauthorized persons would harm the State's interests, embarrass it, or cause it administrative or economic difficulties | Documents of administrative or criminal investigations, trials, tenders and public financial affairs, unless disclosure is permitted; military intelligence reports not subject to a higher classification; military radio frequencies of the Armed Forces, the Public Security Directorate and the General Intelligence Department; anything that harms the reputation of an official figure or affects the standing of the State |
Practical note: The classification level is not a theoretical label; it is one of the first things the defense contests. The lawyer checks whether the material was actually classified in accordance with the prescribed procedures, the date on which it was classified, and whether the description of the level fits the content of the specific material. The position of the entire file may change depending on the outcome of this check, which calls for putting the papers before a specialist lawyer. Do not make any statement about the content or source of a document before that.
4. The Forms of Espionage Crimes in Jordanian Law
The Protection of State Secrets and Documents Law No. 50 of 1971 regulates a number of acts that constitute an assault on the State's secrets and documents. The most prominent are three forms that must be distinguished from one another, because the basis of criminalization in each is different.
The first form is entering prohibited places. Article 14 criminalizes entering, or attempting to enter, a prohibited place with the intention of obtaining protected secrets, objects or documents, or information that must remain secret for the sake of the State's safety. The penalty is graded according to the purpose of the act: it is at one level if the act was mere entry or attempted entry with the intention of obtaining the secrets, more severe if it was for the benefit of a foreign state, and at its most severe if that state is an enemy. What stands out here is that a mere attempt to gain access is treated severely, because the legislature saw the approach itself as a direct danger to the State's security.
The second form is stealing or obtaining secrets. Article 15 criminalizes stealing or obtaining protected secrets, objects, documents or information, and the penalty is more severe if the felony was committed for the benefit of a foreign state, and more severe still if the foreign state is an enemy. The interest protected here is the State's possession of its sensitive information, and preventing it from being seized or reached by unlawful means.
The third form, disclosure of secrets, differs fundamentally from the previous two, because the secret may have reached the person by entirely lawful means, such as learning it by virtue of their position or responsibility. Article 16 addresses this situation, criminalizing the disclosure of protected secrets, information or documents that came into the person's possession or knowledge by virtue of their position or responsibility, even after that position or responsibility has ended for any reason. The penalty is more severe if the disclosure was for the benefit of a foreign state, and at its most severe if that state is an enemy. The basis of criminalization in this form is therefore not how the secret was reached, but the act of disclosure itself, where it takes place without a lawful reason and its object is protected material. This extension in time has great practical importance, since former employees, retirees and those who have resigned remain bound by the duty of confidentiality after leaving their posts.
5. What Makes an Espionage File Different From Any Other Criminal File
Crimes connected with espionage in Jordanian legislation are subject to exceptional rules justified by the nature of the protected interest, and these are the rules that many accused persons and their families misjudge when they measure these files against ordinary criminal files.
The first is the closeness of attempt and the completed crime in some forms. The principle under the general rules is that the legislature distinguishes between the completed crime and an attempt to commit it, and distinguishes between forms of attempt according to how far the acts of execution have gone. The seriousness of certain crimes against the security of the State, however, led the legislature to strengthen criminal protection, so that severe consequences and penalties follow even from an attempt to commit the act. As a result, the usual defense that the act was not completed does not lead in these crimes to the outcome it leads to in others, which requires building the defense on other grounds that the lawyer assesses according to the facts of the file.
The second is the extension of jurisdiction to acts committed outside the Kingdom. The principle is that crimes committed within the State's territory are subject to its law, but Article 9 of the Jordanian Penal Code No. 16 of 1960 made an exception to the principle of territoriality, providing that the law applies to any Jordanian or foreigner, whether principal, accomplice, instigator or accessory, who commits outside the Kingdom a felony or misdemeanor against the security of the State, along with certain other crimes specified in that article. Residing outside Jordan, or the act taking place abroad, therefore does not prevent prosecution.
The third is the jurisdiction of the State Security Court. Article 3 of the State Security Court Law No. 17 of 1959 gives the court jurisdiction over the treason crimes set out in Articles 110 to 117 of the Penal Code, as well as espionage crimes committed in violation of Articles 14, 15 and 16 of the Protection of State Secrets and Documents Law. This is the weightiest practical difference, because it moves the file to a court with its own composition and rules of procedure, and makes familiarity with its practices a requirement for whoever handles the defense, not an added advantage. To distinguish between the public right (the State's right to prosecute) raised in these files and the private right (the victim's personal claim) that may be connected with them, the lawyer reviews the principles we addressed in our article on the public right and the private right in Jordanian law.
The fourth is the existence of special legal excuses. The legislature sought to encourage those who take part in certain crimes against the security of the State to reveal them, so Article 109 of the Penal Code addresses this question, providing for exemption from penalty in some cases and making the excuse a mitigating one in others, with details that vary according to the timing of the disclosure and the person's position in the crime, while excluding the instigator from benefiting from its provisions. Whether the facts of a particular file fall within the scope of this provision is a delicate question that cannot be settled by reading the provision alone, but by the lawyer's assessment of the client's position in the facts and their chronological sequence, and any step taken in this direction without consultation may forfeit the right to rely on it later.
Frequently Asked Questions
Must a person accused of espionage be a public employee?
No. The forms in Articles 14 and 15 of the Protection of State Secrets and Documents Law do not require any particular status in the offender. The form of disclosure in Article 16, however, is tied to a person who came to know the secret by virtue of their position or responsibility, and it continues to apply to them even after that position has ended for any reason.
Does the State Security Court have jurisdiction over all espionage cases?
Article 3 of the State Security Court Law No. 17 of 1959 defines its jurisdiction as covering the treason crimes in Articles 110 to 117 of the Penal Code and espionage crimes in violation of Articles 14, 15 and 16 of the Protection of State Secrets and Documents Law. Determining the legal description that fits the facts of a particular file, and therefore the authority competent to hear it, is a matter the lawyer settles after studying the papers.
Can a person be prosecuted for an act committed while outside Jordan?
Yes. Article 9 of the Penal Code applies the law to any Jordanian or foreigner who commits outside the Kingdom a felony or misdemeanor against the security of the State, whether as principal, accomplice, instigator or accessory.
What is the difference between the crime of obtaining a secret and the crime of disclosing it?
The difference lies in the basis of criminalization. In obtaining, the wrong is reaching the secret by unlawful means; in disclosure, reaching the secret may have been entirely lawful, and the criminalization falls on passing it to unauthorized persons without a lawful reason.
Is every piece of government information a protected secret?
No. Protection is tied to classification in accordance with the provisions of the law and to the level at which the material was classified. Verifying that classification actually took place, and that the description of the level fits the content of the material, is one of the first things the lawyer checks in the file.
Does the penalty differ if the act was for the benefit of a foreign state?
Yes. The legislature made the benefit of a foreign state an aggravating circumstance in the forms under Articles 14, 15 and 16, and increased the penalty further if the foreign state is an enemy, so that the penalty is graded on three levels within a single form.
Do espionage crimes cover economic and industrial information?
The concept of espionage has widened to cover economic, industrial and commercial information alongside military and political information. Criminal protection in Jordanian law, however, follows the legal classification of the material, not its nature alone. These forms sometimes overlap with other criminal descriptions that the lawyer studies at the same time, including those we addressed in our article on cybercrime and in our article on criminal forgery under the Jordanian Penal Code.
Legal Consultation
Espionage and state-security files are among the heaviest an accused person and their family can face, because they combine a criminal description of extreme gravity, a court with its own rules of procedure, and exceptional rules on attempt and territorial jurisdiction that the ordinary criminal file does not know. Handling such a file with the logic applied to an ordinary criminal case, or delaying engaging a lawyer until after the first statement, often narrows the defense available later in a way that is hard to undo, especially since the legal classification of the material and the timing of procedural positions are settled at very early stages in the life of the case. For this reason, putting the papers early before a team that practices before this particular court is the first step, and this is what our firm's team provides through defense and representation in State Security Court cases, including checking the legal classification of the material at issue in the charge, determining the correct criminal description and setting the line of defense from the stage of the initial investigation. You can contact Alabwini Law Firm to arrange a specialist legal consultation.
