II. Hostile conduct by persons not of the armed forces: Spies

Over the course of years, much learned discussion has been expended on the question of the conformity of espionage in time of war with international law and with morality. From this consideration has emerged a virtual unanimity of opinion that while the morality of espionage may vary from case to case, some, and probably all, spies do not violate international law. A distinction may, of course, be made with respect to espionage other than in time of war, for such conduct is of doubtful compatibility with the requirements of law governing the peaceful intercourse of states.[1]

The great international lawyers of the past approached espionage, as they did so many other questions, from the standpoints of both law and morals. They were ultimately persuaded by the common view of mankind that persons acting as spies from patriotic motives pursue a moral course of conduct and concluded that the power of a belligerent to punish espionage directed against him arose not from the fact that the law prohibited the activity but from the danger which clandestine acts created and the resulting necessity that they be dealt with severely.[2] How this view was to be reconciled with the safeguards generally accorded enemy soldiers is most persuasively stated in the words of Gentili:

‘This also is a reason why you should be unwilling to assume that role [of spy], because it is denied the privileges attaching to military service. And therefore the law against spies seems just, since they have divested themselves of the character which would prevent their being treated in that cruel and degrading fashion.’[3]

At the Brussels Conference of 1874, thorough consideration was given to espionage in war, and the provisions there drafted[4] were carried over, almost without change, into the Hague Regulations of 1899 and 1907.[5] A number of states at the Conference strenuously resisted any suggestion that the proposed code should give legal sanction to an opposing belligerent’s exercise of jurisdiction over a spy,[6] and the resulting article provided by way of compromise that a spy was to be treated according to the laws in force in the capturing army.[7] A recommendation that a distinction be made between professional agents and volunteers motivated by patriotic fervour met with an unfavourable reception,[8] but the Conference found it impossible to agree whether military and civilian spies were in all respects to be treated in the same manner.[9]

Articles 29 and 30 of the Hague Regulations do not attempt to do more than define the spy and require that he shall not be punished without trial, and it is to be observed that they do not purport to make espionage a violation of the Regulations. A further modification was in fact made in the Brussels draft in order to avoid an implication that a spy is ‘to be condemned by virtue of a declaration signed by his own Government’.[10] Moreover, the sanctioning by Article 24 of the ‘employment of measures necessary for obtaining information about the enemy’ is strongly indicative that espionage falls into the same category as legitimate ruses of war.[11] In accordance with these provisions, recent texts,[12] military manuals,[13] and judicial opinions[14] have normally emphasized that espionage is not in violation of the law of nations but that a belligerent penalizes this conduct because of the danger it presents to him. Frequently military codes incorporate a definition of espionage, conforming to that of the Hague Regulations,[15] and thereby provide a positive legal precept in domestic law to fill up the measure ofjurisdiction which international law concedes to be held by the offended state for the protection of its national security. Into this firmly established law some doubt has been interjected by Ex parte Quirin et Al.,[16] decided by the Supreme Court of the United States in 1942. Spies were considered by the Court to be ‘offenders against the law of war subject to trial and punishment by military tribunals’ for the ‘acts which render their belligerency unlawful’.[17] A possible inference from this language is that the Court considered espionage to be subject to punishment as an international crime.[18] There is reason to suppose, however, that the tribunal was led by the somewhat imprecise distinction often made between ‘lawful’ and ‘unlawful’ combatants to conclude that failure to qualify as a lawful combatant could be described as a violation ofinternational law. If, indeed, the Court was proceeding on the assumption that the law of nations forbids the employment of spies and espionage itself, that view, it is submitted, fails to find support in contemporary doctrine regarding such activities in wartime.[19]

Article 31 of the Hague Regulations, which provides that a spy who is captured by the enemy after rejoining his army is to be treated as a prisoner of war and incurs no responsibility for his previous acts of espionage, throws considerable light on the juridical status of espionage. Two reasons have been adduced for this limitation in punishment.48 The first goes to the difficulty of proving the act after the individual has returned to his own army. To this it must be replied that if it is possible to gather and utilize proof of war crimes of the atrocity type years after the event took place, this explanation seems to lack substance. The other, which appears to be the correct reason, is that spying is a ruse of war, which the threat of ‘punishment’ is designed to deter. Once the act is completed, the deterrent purpose of the death penalty has no room for operation. The limitation of punishment thus offers a strong indication that espionage is not prohibited by the international law of war and that its suppression is instead left to the initiative of the opposing belligerent. Article 31 has been productive of some controversy concerning whether the immunity of the returned spy must be applied to the civilian secret agent as well as the military.49 References in the article to a rejoining of the army and to subsequent treatment as a prisoner of war might seem, from a textual examination alone, to indicate that only a military spy was intended. However, the two possible bases for the limitation on the punishment of spies logically apply with equal force to both the military and civilian agent, and the great difficulty in many cases of establishing whether an individual acted in a military or non-military capacity at the time of his act50 further suggests that the protection of Article 31 is not confined to the military spy.

Questions of substance concerning spies may also arise in connexion with the limitation of Article 29 of the Hague Regulations to spies taken in the ‘zone of operations’. In modern warfare, in which even the remotest town is exposed to the danger of attack by guided missiles, rockets, and parachute troops, the entire territory of a belligerent may with some justice be said to be in a zone of operations.51 But it is normal to preserve some semblance of distinction between that area and territory which is not subject to military control, if only to provide a

Orders No. 100, 24 April 1863, but the General Orders, which had been superseded many years previously, stated elsewhere that deception in war is ‘a just and necessary means of hostility’ (par. 101).

  • 48 Violle, L’Espionnage militaire en temps deguerre (1903), p. 160; Huybrechts, op. cit., pp. 937—8.
  • 49 In Re Flesche, Nederlandse Jurisprudentie, 1949, No. 548, the Dutch Special Court of Cassation held that Article 31 does not apply to civilians, and that the immunity therein provided is confined to military personnel in the zone of operations. On the other hand, the Manual of Military Law (1929), Amendments No. 12 (1936), p. 38, n. 5, and Rolin, op. cit., vol. i, p. 371, take the view that the immunity of the returned spy is a general one, applying to all persons of that character. Article 26 of the Manual prepared by the Institute of International Law extended the immunity to spies who had succeeded in quitting the territory occupied by the enemy (Annuaire de l'Institut de droit international, 5 (1881-2), p. 156).

Forcases granting immunityto returned military spies see In reMartin (1865), 45 Barb. (N.Y.) 142; In re Rieger (France, Cass. crim., 29 July 1948), Dalloz, Hebdomadaire, 1949, 193, with a note by de Vabres, Recueil Sirey, 1950, 1. 37 (under date of 20 July 1948).

  • 50 Huybrechts, op. cit., p. 941.
  • 51 In re Rieger, supra, recognized that even the unoccupied portion ofFrance could be said to be in a zone of operations; see Waltzog, op. cit., p. 52.

line of demarcation between the jurisdiction of the military and civilian authorities.[20] At the same time that military codes frequently contain a specific reference to the type of espionage defined in Article 29, the civil law also contains its own provisions for the protection of official secrets and for the general security of the state in time of war.[21] It is even clearer, however, that espionage falling under this latter type of interdiction cannot be said to be in violation of the law of nations, since its punishment has hitherto been effected without reference to that body of law. An alien enemy engaging in espionage, although divesting himself of the protection he might otherwise enjoy as a prisoner of war, is in turn protected by the safeguards of domestic law, which, by way of securing the liberties of loyal citizens, makes even active enemies benefit from the law’s protection. As the difficulty of distinguishing the traitor from the spy and secret agent increases, by reason of the fact that a given act may be treasonable if committed by a citizen and espionage if committed by an alien,[22] the necessity of subjecting all persons outside the zone of operations to a common law and to a common tribunal grows correspondingly greater. Although problems of this nature have been productive of recommendations that espionage in time of war be the subject of an agreed international definition,[23] it has not been suggested that espionage should itself be interdicted by international law.

As long as espionage is regarded as a conventional weapon of war, being neither treacherous nor productive of unnecessary suffering, the sanctions visited on spies are only penalties to deter the use of that ruse. The actions of a spy are not an international crime, for by his conduct he merely establishes that he is a belligerent with no claim to any of the protected statuses which international law has created.

  • [1] Huybrechts, ‘Espionnage et la convention de la Haye’, in Revue de droit penal et de criminologie, 31 (1950-1), p. 931.
  • [2] Belli, De Re Militari et Bello Tractatus (1563), Part viii, ch. i, § 42; Grotius, De Jure Belli ac Pacis(1646 ed.), Bookiii, ch. iv, xviii. 3; Wolff, Jus GentiumMethodo ScientificaPertractatum (1764), ch. vii,§§ 884, 885, 893; Vattel, Le Droit des gens (1758), Book iii, ch. x, § 179.
  • [3] De Jure Belli Libri Tres (1612), Book ii, ch. ix, pp. 282—3.
  • [4] Articles 19—22, Actes de la Conference de Bruxelles (1874), p. 291.
  • [5] Articles 29—31.
  • [6] The delegations which were most articulate about this matter were those of Belgium, theNetherlands, and Italy (see p. 38, n. 5). The Projet had provided: ‘L’espion pris sur le fait, lorsmeme que son intention n’aurait pas ete definitivement accomplie ou n’aurait pas ete couronnee desucces, est livre a la justice’ (Actes, p. 13).
  • [7] Article 19, Actes, p. 291.
  • [8] The proposal was made by the Spanish delegate (Actes, pp. 42, 203).
  • [9] The difficulty arose in connexion with the discussion ofArticle 21, dealing with the spy who hadrejoined his army (Actes, pp. 44—45).
  • [10] Proceedings of the Second Subcommission, Second Commission, in The Proceedings of the HaguePeace Conferences; The Conference of1899 (ed. by Scott, 1920), p. 489.
  • [11] Manual of Military Law (1929), Amendments No. 12 (1936), p. 36, n. 4; Field Manual 27—10,Rules of Land Warfare (1940), par. 203.
  • [12] Oppenheim, International Law, vol. ii (6th ed. by Lauterpacht, 1944), p. 329; Halleck, op. cit.(3rd Eng. ed. by Baker, 1893), vol. i, p. 571; Wheaton, International Law, vol. ii (7th Eng. ed. byKeith, 1944), p. 218; Westlake, International Law, Part ii (2nd ed., 1913), p. 90; Hall, A Treatise onInternational Law (7th ed. by Higgins), p. 579; Fauchille, Traite de droit international public, vol. ii(1921), p. 150; Calvo, LeDroitinternationaltheorique etpratique (5th ed., 1896), vol. iv, p. 178; Rolin,LeDroitmodernede laguerre (1920), vol. i, p. 366; Waltzog, RechtderLandkriegsfuhrung (1942), p. 54;but cf. Hyde, op. cit., vol. iii, p. 1865.
  • [13] Manual of Military Law (1929), Amendments No. 12 (1936), p. 36; Field Manual 27—10, Rulesof Land Warfare (1940), par. 203; Kriegsbrauch im Landkriege (1902), p. 30.
  • [14] United States ex rel. Wessels v. McDonald, Commandant ofBrooklyn NavyYard (E.D.N.Y., 1920),265 Fed. 754, dismissedper stipulation (1921), 256 U.S. 705; UnitedStates v. List etAl. (1948), Trialsof War Criminals, xi (1950), p. 1245; War Crimes Reports, viii (1949), p. 54; see Opinions of theAttorneys General of the United States, 31 (1920), p. 356, and 40 (1949), p. 561, concerning thejurisdiction of a United States military tribunal over one Witcke, alias Waberski, a German spy arrestedin the vicinity of a military post.
  • [15] France, Code de Justice Militaire, Articles 237, 238; United States, Uniform Code of MilitaryJustice, Article 106 (64 Stat. 138; 50 U.S.C. 700).
  • [16] 317 U.S. 1.
  • [17] 317 U.S. 31.
  • [18] This is the view adopted by Professor Hyde in ‘Aspects of the Saboteur Cases’, in AmericanJournal of International Law, 37 (1943), p. 88. In commending the ‘bold and fresh view’ (p. 90) takenby the Supreme Court, he points to the inconsistency between the recognition of the propriety of astate’s employment of espionage and the punishment of the spy so employed and suggests that both theact of the state and the act of the individual are equally violative of international law. It would appear, onthe contrary, that the appearing inconsistency may be realistically resolved only by an acknowledgementthat the act of neither is in contravention of international law.
  • [19] Although the opinion contains copious citations to Field Manual 27—10, Rules of Land Warfare(1940), it does not refer to paragraph 203 of the Manual, which states that spies are not punished as‘violators of the law of war’. With respect to espionage, the Court alluded to paragraph 83 of General
  • [20] See Ex parte Milligan (1867), 4 Wall. 2.
  • [21] E.g. Official Secrets Act, 1911 and 1920 (1 & 2 Geo. V, c. 28; 10 & 11 Geo. V, c. 75); UnitedStates Code, Title 18, Chapter37.
  • [22] As in France; see Code Penal, Articles 76 and 77; de Vabres, ‘La Repression de l’espionnage et lacodification du Droit penal international’, in Revue de droit international, de sciences diplomatiques etpolitiques, 26 (1948), p. 341; Pella, ‘La Repression des crimes contre lapersonnalite de l’etat’, in Recueildes cours de l’Academie de droit international de la Haye, 33 (1930), p. 726.
  • [23] A suggestion of this nature was made by General Arnaudeau (France) at the Brussels Conferenceof 1874 (Actes, p. 43); see de Vabres, op. cit., p. 350.
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