Spies

Spy
A person is considered a spy when, acting clandestinely or on false pretences, he obtains or endeavours to obtain military information in enemy-controlled territory.
A spy caught in the act must not be punished without previous trial. 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.
A member of the armed forces who gathers or attempts to gather information in enemy-controlled territory may not be considered as engaging in espionage if while so acting he is in the uniform of his armed forces; he will be entitled to prisoner-of-war status. The special case of members of the armed forces resident or non-resident in enemy-occupied territory is governed by specific rules.
 
Espionnage
The word commonly applied to the efforts made in territory under enemy control by a party to the conflict to collect all information on the enemy that may be useful to the conduct of the war in general and to that of hostilities in particular. Espionage as international law understands it is clandestine and takes place under false pretences. The collection of information by members of the armed forces wearing their own uniform is not espionnage, but intelligence activities.

The word espionage is also applied to the collection by States, in peacetime as well as in time of war, of political and military information regarding each other.

 OUTLINE

 LEGAL SOURCE

definition of a spy

    HR, 29

    PI, 46

espionage permissible

    HR, 24

civilians committing espionage

    GCIV, 5

    PI, 45/3

status and treatment

    HR, 29-31

    GCIV, 5

    GCIV, 68/2

    PI, 45/3

    PI, 46

    CIHL, 107

death penalty in occupied territory

    GCIV, 68/2

 CASES

 BIBLIOGRAPHIC RESOURCES

BAXTER Richard R., “So-Called ‘Unprivileged Belligerency’: Spies, Guerrillas and Saboteurs”, in BYIL, Vol. 28, 1951, pp. 323-345.
 
CHADWICK Elizabeth, “The Legal Position of Prisoners, Spies and Deserters during World War I”, in RDMDG, Vol. 36/3-4, 1997, pp. 73-113.
 
FERRELL William H., “No Shirt, No Shoes, No Status: Uniforms, Distinction and Special Operations in International Armed Conflict”, in Military Law Review, Vol. 178, Winter 2003, pp. 94-140, online: http://www.fas.org/man/eprint/ferrell.pdf.
 
LAFOUASSE Fabien, “L’espionnage en droit international”, in AFDI, Vol. 47, 2001, pp. 63-136