Rule 118
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.
Categories: R: General Rules
