International Law: Definitions of Spy

Definitions of Spy (Domestic and International Sources)

In ordinary parlance, a person who commits espionage is, ipso facto, a spy. However, in international law, or, more specifically, the laws of war and military law, spy is a term of art that refers to a person who obtains information in a certain manner. Spy is used in its nominative sense, not in its verbal sense. International law and the domestic law of the United States do not use the verb "to spy". In US federal law, espionage (United States Code, Title 18, Chapter 37) is an activity that is broader in scope than those activities which would ascribe to an individual doing these activities the status of spy. While a spy would almost always be in violation of espionage laws, the mere violation of espionage laws would not qualify one for the status of spy under international law.

International law does not explicitly address peacetime espionage. The following definitions are drawn from sources pertaining to the regulation of the conduct of war. Under these laws, a spy has a status which distinguishes a spy from other prisoners of war. A person in uniform who conducts reconnaissance and surveillance missions is not considered a spy.
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The Law of Nations, Or, Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns, De Vattel (London: G. G. & J. Robinson, 1797) Sections 179, 180, 181, pages 375 -378 deal with spies.

179
The employment of spies is a kind of clandestine practice or deceit in war. These find means to insinuate themselves among the enemy, in order to discover the state of his affairs, to pry into his designs, and then give intelligence to their employer.
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International Law; Or, Rules Regulating the Intercourse of States in Peace and War, H.W. Halleck (New York: D. Van Nostrand, 1861) Ch. XVI - Means and Instruments of War, Sections 26, 27, 28, pages 406 -409 deal with the topic of spies.

Chapter XVI - Means and Instruments of War: 26
Spies are persons who, in disguise or under false pretenses, insinuate themselves among the enemy, in order to discover the state of his affairs, to pry into his designs, and then communicate to their employer the information thus obtained. The employment of spies is considered a kind of clandestine practise, a deceit in war, allowable by its rules........The term spy is frequently applied to persons sent to reconnoitre an enemy's positions, his forces, defenses, etc., but not in disguise, or under false pretenses. Such, however, are not spies in the sense in which that term is used in military and international law, nor are persons so employed liable to any more rigorous treatment than ordinary prisoners of war.
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A Treatise on International Law, William Edward Hall (London, Henry Frowde and Stevens and Sons, Limited, 1895) Section 188, page 559.

188
A spy is a person who penetrates secretly, or in disguise or under false pretences, within the lines of an enemy for the purpose of obtaining military information for the use of the army employing him. Some one of the above indications of intention being necessary to show the character of a spy, no one can be treated as such who is clothed in uniform, who whether in uniform or not has accidentally strayed within the enmy's lines while carrying despatches or messages, or who merely endeavours to traverse those lines for the purpose of communicating with a force beyond or of entering a fortress.
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Instructions for the Government of Armies of the United States in the Field, Francis Lieber (Washington D.C., Government Printing Office, 1897)

Section V: 88.
A spy is a person who secretly, in disguise or under false pretense, seeks information with the intention of communicating it to the enemy.
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Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land.
The Hague, 18 October 1907.

CHAPTER II
Spies
Art. 29. A person can only be considered a spy when, acting clandestinely or on false pretences, he obtains or endeavours to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party. Thus, soldiers not wearing a disguise who have penetrated into the zone of operations of the hostile army, for the purpose of obtaining information, are not considered spies. Similarly, the following are not considered spies: Soldiers and civilians, carrying out their mission openly, entrusted with the delivery of despatches intended either for their own army or for the enemy's army. To this class belong likewise persons sent in balloons for the purpose of carrying despatches and, generally, of maintaining communications between the different parts of an army or a territory.

Art. 30. A spy taken in the act shall not be punished without previous trial.

Art. 31. 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.
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Manual for Courts Martial United States (2016 Edition)

30. Article 106—Spies
a. Text of statute.
Any person who in time of war is found lurking as a spy or acting as a spy in or about any place, vessel, or aircraft, within the control or jurisdiction of any of the armed forces, or in or about any shipyard, any manufacturing or industrial plant, or any other place or institution engaged in work in aid of the prosecution of the
war by the United States, or elsewhere, shall be tried by a general court-martial by a military commission and on conviction shall be punished by death.

b. Elements.
(1) That the accused was found in, about, or in and about a certain place, vessel, or aircraft within the control or jurisdiction of an armed force of the United States, or a shipyard, manufacturing or industrial plant, or other place or institution engaged in work in aid of the prosecution of the war by the United States, or elsewhere;
(2) That the accused was lurking, acting clandestinely or under false pretenses;
(3) That the accused was collecting or attempting to collect certain information;
(4) That the accused did so with the intent to convey this information to the enemy; and
(5) That this was done in time of war.

c. Explanation.
(1) In time of war. See R.C.M. 103(19).
(2) Enemy. For a discussion of “enemy,”see paragraph
23c(1)(b).
( 3 ) Scope of offense . The words “any person” bring within the jurisdiction of general courts-martial and military commissions all persons of whatever nationality or status who commit spying.
(4) Nature of offense. A person can be a spy only when, acting clandestinely or under false pretenses, that person obtains or seeks to obtain information with the intent to convey it to a hostile party. It is not essential that the accused obtain the information sought or that it be communicated. The offense is complete with lurking or acting clandestinely or under false pretenses with intent to accomplish these objects.
(5) Intent. It is necessary to prove an intent to convey information to the enemy. This intent may be inferred from evidence of a deceptive insinuation of the accused among our forces, but evidence that the person had come within the lines for a comparatively innocent purpose, as to visit family or to reach friendly lines by assuming a disguise, is admissible to rebut this inference.
(6) Persons not included under “spying”.
( a ) Members of a military organization not wearing a disguise, dispatch drivers, whether members of a military organization or civilians, and persons
in ships or aircraft who carry out their missions openly and who have penetrated enemy lines are not spies because, while they may have resorted to concealment,
they have not acted under false pretenses.
(b) A spy who, after rejoining the armed forces to which the spy belongs, is later captured by the enemy incurs no responsibility for previous acts of
espionage.
(c) A person living in occupied territory who, without lurking , or acting clandestinely or under false pretenses, merely reports what is seen or heard
through agents to the enemy may be charged under Article 104 with giving intelligence to or communicating with the enemy , but may not be charged under this article as being a spy.