SCOUTS AND SPIES
[Sidenote: The Scout.]
[Sidenote: 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
and sentiment of military duty quite as often as from avarice and
dishonorable cupidity[74]--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.
[Sidenote: 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 information to be brought to the
knowledge of the other side.” The Hague Conference puts it in the same
way.
[Sidenote: 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.
[Sidenote: Accessories are Principals.]
Participation in espionage, favoring it, harboring a spy, are equally
punishable with espionage itself.