THE SPY AND THE LAW
There is a vast amount of misconception in the public mind on the subject of spying, and an almost complete ignorance of the law of dealing with spies, military and civil, in time of peace and in time of war.
The subject is one which absolutely bristles with anomalies and incongruities. In all times and in all countries, and by the great majority of people, spying has been condemned as something essentially dishonourable—to call a man a spy has always been regarded as one of the deadliest insults. Yet here we have at once the first, and perhaps the most striking, anomaly of the spy business—the men of unblemished personal honour, who, unquestionably, would not descend to any act which, in their views, was even tainted with meanness, have acted as spies. I will mention a few of these cases presently; in the meantime, it will be well to consider what international law has to say on the subject.
Naturally enough, the subject of spying met with a good deal of consideration on the part of the members of the Hague Convention, and, so far as there can be said to be international law in the matter, it is expressed in the conventional laws of war drawn up by the assemblage. The following Articles of the Convention dealing with the subject may be usefully quoted:—
ARTICLE XXIX.
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.
ARTICLE XXX.
A spy taken in the act shall not be punished without previous trial.
ARTICLE XXXI.
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 very detailed and lucid exposition of the law dealing with spies is given in Mr. J.M. Spaight's "War Rights on Land," perhaps the fullest and most authoritative source of information on the work of the Hague Convention in respect to war on land.
Now, in the conduct of war early and accurate information is of supreme importance. One of the best instances of this on record was the capture of Marshal Macmahon's army by the Germans in the Franco-Prussian War of 1870-71. This, of course, was not the work of a spy, but it was the result of information which a spy might very well have obtained.
A Paris paper published a statement indicating that Macmahon's army had changed the direction of its march. This statement was telegraphed to London and appeared in the papers here. It caught the attention of the then German Ambassador, who, realising its value, promptly telegraphed it to Berlin. For Moltke, of course, this was a heaven-sent opportunity of which his military genius made the fullest use. A new movement was at once set on foot, and the result was the surrender of Macmahon with his entire force.
Granting that information of equal value may at any moment be obtained by a clever spy, it is obvious that commanders in the field are not only entitled, but bound to take the most drastic measures to defend themselves against spies. The work of a single spy may wreck a campaign and settle the fate of a nation, and here we have the real reason why the spy caught in the act is punished with relentless severity. "Kill that spy" is, and should be, the rule of every commander in the field.