Espionage consists of activities by spies. A spy is any person who, acting clandestinely or on false pretences, obtains or endeavours to obtain information of military value in territory controlled by the enemy, with the intention of communicating it to the opposing Party.
[Commentary]
- The term “clandestine” has been repeated consistently since it first appeared in Art. 29 of the 1899 Hague Regulations,[656] and therefore, is included in Rule 118 for purposes of consistency. Nevertheless, in State practice, a change in terminology has occurred. At the present time, it is common to distinguish between “clandestine” and “covert” operations. “Clandestine operations” are those which are conducted in a fashion intended to assure secrecy or concealment. For instance, an aircraft may fly at night or below radar coverage to conceal the fact that a flight has even occurred. By contrast, “covert operations” are designed to conceal the identity of the individual or equipment conducting the operation, and sometimes even the identity of the State sponsoring it. As an example, an aircraft which is falsely marked would be engaging in a covert operation. Thus, whereas clandestine activities are designed to mask the fact of the operation, covert operations aim to conceal the identity of the actors. Consequently, in modern terminology, the term “clandestinely” in Rule 118 ought to be understood as “covertly.” The essence of Rule 118 is that the individual is acting covertly or otherwise under false pretences.
- Although Art. 29 of the 1899/1907 Hague Regulations restricts the scope of the definition of espionage to the “zone of operations of a belligerent”, the phrase has been interpreted in State practice as including the entire territory of the Belligerent Party. It also includes territory occupied or otherwise under control of the enemy.
- To qualify as espionage, the information sought must be of military value. For instance, in the context of the law of international armed conflict, gathering information of political or economic value does not amount to espionage.
- As noted in Art. 24 of the 1907 Hague Regulations “obtaining information about the enemy” is “considered permissible”.[657] The mere act of gathering information about the enemy does not by itself constitute espionage. On the contrary, military forces dedicate significant resources to information gathering. Such activities include intelligence gathering, surveillance and reconnaissance, as well as CNAs designed to exploit data resident in enemy computer networks.
- Intelligence refers generally to any information concerning enemy forces and activities, as well as information necessary to facilitate one’s own operations, such as information about terrain features or the layout of a city. It includes, inter alia, communications intelligence; electronic intelligence; electro-optical intelligence; signals intelligence; human intelligence; imagery intelligence; photographic intelligence; radar intelligence; and radiation intelligence.[658]
- Surveillance refers to the systematic observation of areas, places, persons, or things, by visual, aural, electronic, photographic, or other means.[659] Reconnaissance is a single mission undertaken to obtain — by visual observation or other detection methods — specific information about the activities and resources of an enemy.[660] None of these activities constitutes espionage unless conducted covertly (“clandestinely”) in territory controlled by the enemy. CNAs designed to acquire access to computer data by concealing the identity of the intruder do not amount to espionage unless the attack is launched from within or over enemy-controlled territory. Typically, this will not be the case, as connectivity to the target network can be achieved from other than enemy controlled territory.
- The definition of espionage is not limited to members of the armed forces. It includes civilians who engage in acts of espionage. Depending on the circumstances, acts of espionage may well constitute direct participation in hostilities (see Section F). Several Black-letter Rules of this Section, however, are restricted to “members of the armed forces”, as indicated in the respective Black-letter Rules.
- Art. 29 of the 1907 Hague Regulations implies that the delivery of despatches, when carried out clandestinely, is included in the definition of espionage. This element has been deleted from Rule 118 in view of the fact that, at the present time, the transmission of despatches across enemy lines will generally not require the use of human messengers.
- Art. 29 of 1899 Hague Regulations: “An individual can only be considered a spy if, acting clandestinely, or on false pretences, he obtains, or seeks to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party. Thus, soldiers not in disguise who have penetrated into the zone of operations of a hostile army to obtain information are not considered spies. Similarly, the following are not considered spies: soldiers or civilians, carrying out their mission openly, charged with the delivery of despatches destined either for their own army or for that of the enemy. To this class belong likewise individuals sent in balloons to deliver despatches, and generally to maintain communication between the various parts of an army or a territory.” Similar language is found in Art. 29 of the 1907 Hague Regulations.
- Art. 24 of the 1907 Hague Regulations: “Ruses of war and the employment of measures necessary for obtaining information about the enemy and the country are considered permissible.”
- DoD Dictionary of Military Terms, at 267–268.
- DoD Dictionary of Military Terms, at 528.
- DoD Dictionary of Military Terms, at 453.
Acts of espionage are not prohibited under the law of international armed conflict.
[Commentary]
- Espionage is the activity of a spy as defined in Rule 118, that is, collecting information covertly (“clandestinely”) or under false pretences in enemy controlled territory.
- Espionage must be distinguished from perfidy (see Section Q), which is feigning protected status with the intent of betraying the confidence of an adversary. As well, unlike prohibited perfidy, espionage does not entail killing or injuring (or capturing) of an adversary, in that it is confined to the gathering of information of military value.
- Espionage is not unlawful per se under the law of international armed conflict, and a fortiori it is not a war crime under international law. Spies (whether members of the armed forces or civilians) may be prosecuted for their acts only on the basis of the domestic law of the Belligerent Party (see Rule 121).
- Art. 24 of the Hague Regulations acknowledges that “the employment of measures necessary for obtaining information about the enemy and the country are considered permissible”. More to the point, the act of espionage requires the spy to act covertly (“clandestinely”) or under false pretences.
A member of the armed forces of a Belligerent Party who gathers or attempts to gather information in a territory controlled by the enemy is not considered a spy if, while so acting, he is in the uniform of his armed forces.
[Commentary]
- This Rule is based on Art. 46 (2) of AP/I.[661]
- Aerial warfare presents unique circumstances as regards espionage (see Rule 123 and Rule 124). Generally, it is the marking of the aircraft, or other characteristics (such as the electronic signals transmitted by the aircraft), which determine whether the operation is covert (“clandestine”), or is carried out under false pretences. The wearing of civilian clothing by military members of the aircrews in no way affects the nature of the flight. Thus, members of military aircrews wearing civilian clothing in properly marked military aircraft are not spies (see the Commentary on Rule 117). However, if captured, the non-wear of the uniform may put them at risk of not being accorded POW status (see Rule 117).
- By the same token, wearing a military uniform in an aircraft engaged in covert (“clandestine”) operations does not shield aircrews from being treated as a spy because the uniform worn in no way diminishes the covert (“clandestine”) nature of the operation.
- Art. 46 (2) of AP/I: “A member of the armed forces of a Party to the conflict who, on behalf of that Party and in territory controlled by an adverse Party, gathers or attempts to gather information shall not be considered as engaging in espionage if, while so acting, he is in the uniform of his armed forces.”
A member of the armed forces of a Belligerent Party who falls into the power of the enemy while engaging in espionage does not have the right to prisoner of war status and may be prosecuted for his acts before domestic courts.
[Commentary]
- This Rule is based on Art. 46 (1) of AP/I, which provides that “any member of the armed forces of a Party to the conflict who falls into the power of an adverse Party while engaging in espionage shall not have the right to the status of prisoner of war and may be treated as a spy”. Art. 46 (1) of AP/I reflects customary international law.[662]
- Although spies are not entitled to POW status, they remain entitled to the protections that detainees who do not qualify as POWs are entitled to under customary international law. Such customary law protection is reflected in Common Art. 3 to the Geneva Conventions. See also Art. 75 of AP/I.
- As noted, espionage does not constitute a war crime under international law (see paragraph 3 of the Commentary on Rule 119). However, it usually violates the domestic law of the country which is being spied on, and that country is entitled to prosecute the person for espionage under its domestic law.[663] In conformity with customary international law, as reflected in Art. 30 of the Hague Regulations, “a spy taken in the act shall not be punished without previous trial”.
- In addition to domestic law, a spy may also be tried for actions that violate the security legislation enacted by an Occupying Power.
- Although espionage by itself is not a war crime under international law, a spy may still commit a war crime while engaged in a mission of espionage. In such a case, he may be prosecuted and punished for the war crime independently of the act of espionage. For instance, if the spy intentionally kills civilians during the act of espionage, as far as international law is concerned, the spy may be tried for the war crime, although not for espionage (see Rule 119).
- Para. 12.9 of NWP: “Spying during armed conflict is not a violation of international law. Captured spies are not, however, entitled to prisoner-of-war status. The captor nation may try and punish spies in accordance with its national law.”
- Para. 4.9.3 of the UK Manual: “The Hague Regulations formally sanctioned the employment of measures necessary for the obtaining of intelligence in enemy-held territory. The collection of such information openly by combatants wearing uniform is a recognized branch of the art of warfare. The obtaining of such information by secret methods is governed by different rules. Thus, it is lawful to employ spies and secret agents but the fact that these methods are lawful under international law does not prevent the punishment under domestic or occupation law of individuals who are engaged in procuring intelligence in other than an open manner.”
See also Para. 4.9.7 of the UK Manual: “Spies are usually tried by civilian courts under the domestic legislation of the territory in which they are captured.”
A member of the armed forces of a Belligerent Party who, having been engaged in espionage rejoins his own forces but is subsequently captured by the enemy, may no longer be prosecuted for his previous acts of espionage.
[Commentary]
- This Rule is based on Art. 31 of the 1907 Hague Regulations,[664] as well as on Art. 46 (4) of AP/I.[665] See also Para. 12.9 of NWP.[666]
- Under Rule 122, a member of the armed forces who has engaged in espionage achieves immunity for such acts if this person manages to rejoin his own armed forces. Upon subsequent capture, the individual can no longer be prosecuted for his previous acts (although he may be prosecuted for a new act of espionage committed after having rejoined his own armed forces).
- Rule 122 does not apply to civilians who have engaged in espionage and managed to return to friendly territory, but were later captured; they remain subject to prosecution under domestic law for all acts of espionage.
- Art. 31 of the 1907 Hague Regulations: “A spy who, after rejoining the army to which he belongs, is subsequently captured by the enemy, is treated as a prisoner of war, and incurs no responsibility for his previous acts of espionage.”
- Art. 46 (4) of AP/I: “A member of the armed forces of a Party to the conflict who is not a resident of territory occupied by an adverse Party and who has engaged in espionage in that territory shall not lose his right to the status of prisoner of war and may not be treated as a spy unless he is captured before he has rejoined the armed forces to which he belongs.”
- Para. 12.9 of NWP, third and fourth sentence: “Should a spy succeed in eluding capture and return to friendly territory, he is immune from punishment for his past espionage activities. If subsequently captured during some other military operation, the former spy cannot be tried or punished for the earlier act of espionage.”
