CHAPTER VSCOUTS AND SPIESThe Scout.The Spy and his short shrift.Scouting resolves itself into a question of getting possession of important information about the position, strength, plans, etc., of the enemy, and thereby promoting the success of one’s own side. The existence of scouting has been closely bound up with warfare from the earliest times; it is to be regarded as an indispensable means of warfare and consequently is undoubtedly permissible. If the scouting takes place publicly by recognizable combatants then it is a perfectly regular form of activity, against which the enemy can only use the regular means of defense, that is to say, killing in battle, and capture. If the scouting takes the form of secret or surreptitious methods, then it is espionage, and is liable to particularly severe and ruthless measures by way of precaution and exemplary punishment—usually death by shooting or hanging. This severe punishment is not inflicted on account of dishonorable disposition on the part of the spy—there need exist nothing of the kind, and the motive for the espionage may arise from the highest patriotism andsentiment of military duty quite as often as from avarice and dishonorable cupidity74—but principally on account of the particular danger which lies in such secret methods. It is as it were a question of self-defense.Having regard to this severe punishment introduced by the usages of war, it is necessary to define the conception of espionage and of spies as precisely as possible.What is a Spy?A spy was defined by the German army staff in 1870 as one “who seeks to discover by clandestine methods, in order to favor the enemy, the position of troops, camps, etc.; on the other hand enemies who are soldiers are only to be regarded as spies if they have violated the rules of military usages, by denial or concealment of their military character.”The Brussels Declaration of 1874 defines the conception as follows: “By a spy is to be understood he who clandestinely or by illicit pretenses enters or attempts to enter into places in the possession of the enemy with the intention of obtaining informationto be brought to the knowledge of the other side.” The Hague Conference puts it in the same way.Of the essentials of Espionage.The emphasis in both declarations is to be laid on the idea of “secrecy” or “deception.” If regular combatants make enquiries in this fashion, for example in disguise, then they also come under the category of spies, and can lawfully be treated as such. Whether the espionage was successful or not makes no difference. The motive which has prompted the spy to accept his commission, whether noble or ignoble, is, as we have already said, indifferent; likewise, whether he has acted on his own impulse or under a commission from his own State or army. The military jurisdiction in this matter cuts across the territorial principle and that of allegiance, in that it makes no difference whether the spy is the subject of the belligerent country or of another State.It is desirable that the heavy penalty which the spy incurs should be the subject not of mere suspicion but of actual proof of existence of the offense, by means of a trial, however summary (if the swift course of the war permits), and therefore the death penalty will not be enforced without being preceded by a judgment.Accessories are Principals.Participation in espionage, favoring it, harboring a spy, are equally punishable with espionage itself.
CHAPTER VSCOUTS AND SPIES
The Scout.
The Spy and his short shrift.
Scouting resolves itself into a question of getting possession of important information about the position, strength, plans, etc., of the enemy, and thereby promoting the success of one’s own side. The existence of scouting has been closely bound up with warfare from the earliest times; it is to be regarded as an indispensable means of warfare and consequently is undoubtedly permissible. If the scouting takes place publicly by recognizable combatants then it is a perfectly regular form of activity, against which the enemy can only use the regular means of defense, that is to say, killing in battle, and capture. If the scouting takes the form of secret or surreptitious methods, then it is espionage, and is liable to particularly severe and ruthless measures by way of precaution and exemplary punishment—usually death by shooting or hanging. This severe punishment is not inflicted on account of dishonorable disposition on the part of the spy—there need exist nothing of the kind, and the motive for the espionage may arise from the highest patriotism andsentiment of military duty quite as often as from avarice and dishonorable cupidity74—but principally on account of the particular danger which lies in such secret methods. It is as it were a question of self-defense.
Having regard to this severe punishment introduced by the usages of war, it is necessary to define the conception of espionage and of spies as precisely as possible.
What is a Spy?
A spy was defined by the German army staff in 1870 as one “who seeks to discover by clandestine methods, in order to favor the enemy, the position of troops, camps, etc.; on the other hand enemies who are soldiers are only to be regarded as spies if they have violated the rules of military usages, by denial or concealment of their military character.”
The Brussels Declaration of 1874 defines the conception as follows: “By a spy is to be understood he who clandestinely or by illicit pretenses enters or attempts to enter into places in the possession of the enemy with the intention of obtaining informationto be brought to the knowledge of the other side.” The Hague Conference puts it in the same way.
Of the essentials of Espionage.
The emphasis in both declarations is to be laid on the idea of “secrecy” or “deception.” If regular combatants make enquiries in this fashion, for example in disguise, then they also come under the category of spies, and can lawfully be treated as such. Whether the espionage was successful or not makes no difference. The motive which has prompted the spy to accept his commission, whether noble or ignoble, is, as we have already said, indifferent; likewise, whether he has acted on his own impulse or under a commission from his own State or army. The military jurisdiction in this matter cuts across the territorial principle and that of allegiance, in that it makes no difference whether the spy is the subject of the belligerent country or of another State.
It is desirable that the heavy penalty which the spy incurs should be the subject not of mere suspicion but of actual proof of existence of the offense, by means of a trial, however summary (if the swift course of the war permits), and therefore the death penalty will not be enforced without being preceded by a judgment.
Accessories are Principals.
Participation in espionage, favoring it, harboring a spy, are equally punishable with espionage itself.