Draft: not for attribution. (that means do not cite this in a published
work)>
6. Criminality of Espionage
7. Ruse de Guerre
8. Perfidy
(the entire paper, as it is so far)
What, then, are the grounds for the criminality of espionage? The singularity of a mandatory death penalty, as specified in the United States Uniform Code of Military Justice(1), suggests a particularly heinous crime, if we can assume a proportionality between offense and punishment. Countries that have abjured the death penalty for all domestic crimes still reserve it for the crimes of treason and espionage.(2) To the extent that the imposition of the death penalty is an expression of extreme disapproval of a crime, as in the denuciatory justification of punishment of Joel Feinberg*, the penalty for spying must represent an evaluation of the act itself, even while the denunciation is tempered by the willingness to use spies. What about spying is actually denouced?
The recognition of espionage as an admissible means in time of war argues for its utility. Unfortunately, for a particular means to be banned by the customs of war, it usually must be proved to also be militarily ineffectual as well as morally objectionable. Intelligence in general is indispensible for military operations, and espionage is one of the most effective methods of obtaining intelligence. Strategically, therefore, it behooves a general to not only use spies, but also to conceal as much as possible his own situation, and thus he must guard against enemy spies and traitors. Catching spies, however, is difficult business, for they are very well concealed. The prudent thing to do, then, is to deter espionage by assigning the ultimate penalty to it. As Emmerich Vattel writes in his The Law of Nations:
They are ordinarily punished with death, and
justly so, since there is scarely any other means of protecting oneself
from the harm they can do.
On this reading, it is the damage, and of course the attendant advantage to the enemy, that makes espionage a crime.
Deterrence is often invoked as a justification for punishment, both domestically and between nations. The allowal of reprisals for violations of the law of war is usually so regarded, not to mention the justification of standing armies and armament in times of peace, and even nuclear weapons. In the case of espionage there is a curious double-standard, however. Deterrence is usually applied toward actions that are banned, such as, for example, the execution of prisoners of war. The deterrent threat often, though not always, takes the form of the commission of the same act that it seeks to prevent. If the enemy kills our prisoners of war, we can respond in kind, proportionally, of course, and only to the extent necessary to convince our adversary to desist. The death penalty for spying, on the other hand, does not respond in kind (in that case the agent would turned, and spy for us), and the deterrence is not directed at the enemy but instead at the agent. We do not attempt to get our opponent to stop using espionage, but instead try to convince any possible spy that the risks are too high, and thus dry up the supply of spies.
There are, of course, very serious difficulties
with a deterrence theory, whether for spies or for common criminals, the
most telling of which is that deterrence is ineffectual. Where one might
be able to make a counter-factual argument that punitive deterrence reduces
the incidence of crime compared to what would have been the case in its
absence, the amount of espionage does not bear the same relation to the
harmful effects it produces: it is the amount of information lost to the
enemy that counts, not the number of spies lurking about that causes damage.
Thus a partial failure of deterence in reference to espionage can be tantamount
to total failure. Besides, the quasi-ecomonic notion of the individual
assumed by deterrence theory, the rational maximizer of pleasure envisioned
by utilitarianism, may be completely inappropriate to espionage. The patriotic
"honorable spy" will be more distraught at the failure of his mission than
with death, and indeed he may carry a convenient means of suicide to limit
the damage entailed by his capture, if we are to believe modern mythology
on this matter. As for the "dishonorable spy," deterrence is up against
a wall, for while one might raise the overall costs of illicit intelligence
with the threat of a death sentence, those on the demand side of the curve
can easily counter the disincentives with greater incentives, some of which
may not be ignored.(3) For these reasons,
without having to resort to the history of espionage that has occurred
in spite of the traditional penalty, deterrence cannot be a justification
for the death penalty for spying, and thus the strategic harm that deterrence
seeks to prevent cannot be the grounds for it as well.
If the laws of war were consistent on espionage, it would be as much of an offence to employ spies as it is to be one. The fact that it is not suggests the while states are concerned to avoid the damage caused by enemy spies, they are not ready to give up the advantages offered by employing their own. A cynic might suppose that this is why there can be a total ban on, again for example, the use of chemical weapons, the violation of which can be met by a counter-attack with the same: the advantage of using chemical weapons is small enough to surrender, provided the other side to a conflict does the same. But espionage cannot be banned: there is always the possibility that we may be able to gain intelligence that will be decisive through the use of spies, while countering whatever espionage is deployed against us. But then, again assuming consistency, there would be no crime in espionage, only a danger and threat to be defended against, like any other legitmate military tactic. But this is not what the recognition of the permissibility of the death penalty suggests.
The demand side of the equation deserves some consideration. If espionage is a crime, the employment of spies would also be a crime. Contrary to the denial of this by authorities cited above, it is certainly also true that most governments and military leaders are loath to admit that they employ spies. We might think that this is only a requirement of the secretive nature of espionage, where the admission of its existence may be the first step to exposure. But there is more to it than this. Even if it is admitted that everyone uses spies, the fact that it is a crime does taint the government using espionage, so that the admission is damaging not just in terms of the viability of secret services, but in terms of relations to other nations, even those one is at war with. Thus governments cannot legitimately, or that is overtly, engage in espionage. However, this is not purely a matter of political strategy or public relations. The employer of spies must keep a certain moral distance from the actual act.
The ethics of war often countenances moral gymnastics, or even contortions. A prime example is the "doctrine of double effect" attributed to Thomas Aquinas, that allows one to do what is otherwise not allowable if it is unavoidable. One can proceed with an attack upon the enemy even where this entails the forseen fatality of noncombatant persons, for example, so long as this consequence is not the desired effect or a means to some end. With spying the matter is more complex, for the crime is not merely a side-effect of the allowable activity of intelligence gathering, but is directly the means for it. The separation that makes espionage an allowable strategy, then, has to take place at a different locus. And this is between the employer and the spy.
The best strategic advice on the use of spies, from Sun Tzu to Frederick the Great, is to pay them well.(4) Whether this is a recognition of the hazards and risks of being a spy, or the ease with which a spy might desert to the other side (and Frederick the Great used to drive his soldiers into battle by means of whips[ref for this?]), it does suggest that the only thing that can guarantee the loyalty of a spy is money. On the moral side, General Halleck thought that this cash nexus also created a break in the line of responsibility for espionage.
The employment of spies is no offense against
the laws of war, and it gives to the enemy no cause of complaint. The matter
is therefore narrowed down to simply a question of right between the general
and the spy he employs. That the former may purchase and use the information
so obtained we think there can be no doubt. Nor do we believe there is
any wrong in his accepting the proffered services of a spy, provided the
latter is made fully acquainted with the nature of his offense against
the enemy and the ignominious punishment which must follow his capture.
But we do not think a general is justifiable in seducing, by promise of
a reward, a fellow-being to commit an act of treachery toward an enemy
which makes him a felon at law and may subject him to a felon's death.(5)
Thus the employment of a spy must be of the agent's free and informed will, which in a strict interpretion of Halleck's discussion, means that the general must wait for offers of services, the asking price of which will no doubt be sufficient to overcome the spy's estimates of the risks involved. Merely using such persons to one's own advantage does not entail any blame on the part of the commander, any more than taking advantage of a traitor or voluntary guide.(6)
There is an archaic feel to these condsiderations, however. The necessity of paying spies suggests that the motivation of the spy is personal enrichment, and Halleck's distancing of the spy suggests that the spy is an independent contractor rather than a partisan to the war. We are much more accustomed to think of spies as motivated by patriotism than Halleck allows. But in the past loyalty or patriotism was not thought of as a sufficient cause to personally engage in espionage. Vattel, immediately following the quote above, gives these reasons.
For this reason a man of honor, who does not
want to run the risk of being put to death at the hands of a common executioner,
refuses to act as a spy; moreover, he considers the office unworthy of
him, since it generally involves some sort of treason.(7)
** Belli, in his A Treatise on Military Matters (date), pauses in his expositon of captial crimes in the military when he comes to desertion, and considers the question of whether a soldier could pretend to desert in order to spy.
Here arises a question about which I have often
heard a discussion among soldiers of rank, namely, whether at the order
of his general or his sovereign it is permissible for a nobleman to desert
to the enemy, with the idea of spying out their situation and reporting
it. Many judged this to be discreditable business for an honourable man
of high standing; because both the act and the penalties are degrading;
for anything is degrading which all good men so regard, inasmuch as ever
what is honourable is determined either by law or by custom; again, an
action brings no honour if it cannot be preformed without loss of dignity.
As we might expect from the hypothetical tone
of Belli's description of recieved notions of honor, he does not agree,
and reverts to the honorable/dishonorable spy distinction to argue that
it is permissible for a nobleman to be a spy.
Those upholding the other side of the argument
declared that the action, as described, was not disgraceful, and that it
ought not to be so classed; though the case is different with the low and
base fellows who follow this pursuit as a business for pay, not, as the
man in question, to assure the well-being of the state; for intent and
purpose differentiate wrongs. Moreover, to imperil one's self for the safety
of the public and in the service of the Emperor is a great honour.
We can establish a spectrum of positions, not
necessarily on the honorablility of espionage per se, but on the permissibility
of sponsoring it. Belli thinks it allowable for a superior to command an
instance of spying, Vattel does not allow for an order to commit what for
him is an unworthy act but does permit the enticement of spies.(8)
Halleck does not allow of either command or enticement, which means that
one either responds to the asking price for spying or relies on the voluntary
services of "noble" spies. This range of opinions could probably be completed
with those who make no distinction between honorable and dishonorable spies,
either Realpolitikers such a Machiavelli or Byndershoek who think
any means are allowable in war, or Grotius' people of "loftiness of mind"
who consider any form of espionage to be impermissible. Belli's argument
against the dishonor of espionage, however, implies that the this position
was dominant, as we conclude also from the consensus on the law of war
regarding espionage. But to argue that spying is dishonorable simply because
of the ignoble penalty attached to it is to argue in a circle. We want
to know why it should deserve the death penalty, which should also give
an explanation of why spying is an affront to honor.
Vattel is most enlightening on this question. He argues, as does Halleck, that war does not mean the suspension of law, and so not all or any means are allowable in war. If spying fits ambiguously into the class of disallowed means, a statement of the critera for excluding certain means should allow us to answer the question of what is wrong with espionage. Vattel uses a variety of arguments to support the existence of law even in war, roughly falling into the categories of natural law, consequentialism, and legalism. All of these, however, have their basis in "faith between enemies".
Fidelity to promises and to treaties is the
basis of the peace of Nations, as we have shown in a separate chapter.
This good faith is sacred among men, and is absolutely essential to their
common welfare. Are they to be dispensed from keeping it towards an enemy?
It would be an error equally abhorrent and disastrous to imagine that all
duties cease and all ties of humanity are broken when two Nations go to
war. Because they are reduced to the necessity of taking up arms for the
defense and the maintenance of their rights, men do not therefore cease
to be men. They are still subject to the Laws of Nature; otherwise there
would be no laws of war.
The idea that human beings are defined by sociability, as with Aristotle's zoon politikon, produces at once a basis for natural law in the necessary preconditions for social existence. If war is to be a human activity, it cannot undercut these conditions, whatever the benefits of doing so appear to be.
Secondly, the breaking of faith during war would have deleterious effects, for the control and conclusion of war requires the cooperation of both sides.
Now, the obligation of keeping faith, far from
ceasing in time of war because of the precedence to be given duties towards
oneself, becomes more necessary than ever. There are a thousand occasions
during the actual course of the war when, for the sake of setting bounds
to its fury and to the disasters which accompany it, the common interest
and the welfare of both belligerents require that they be able to agree
together on certain things. What would become of prisoners of war, of garrisons
which capitulate and towns which surrender, if the word of an enemy could
not be relied upon? War would degenerate into cruel and unrestrained violence,
and there would be no limit to its calamities. How could it ever be brought
to an end and peace re-established? If there were no longer any faith between
enemies, the only certain end to a war would be the complete destruction
of one of the parties.
These concerns are "humanitarian" in more than a single sense: not only is a world without good faith inhuman, but would as well be inhumane. On the other hand, these two grounds for the keeping of faith can be theoretically separated, and depending upon circumstance produce different directives.
Thirdly, Vattel points out that the initiation of war abrogates only certain agreements between states, those treaties meant to regulate conduct in time of war cannot be dismissed, nor those actually made during the hostilities,
. . .for in treating with the enemy while he
is actually engaged at war with him he necessarily, thought tacitly, renounces
the power to break the agreement, . . . otherwise nothing would be gained
by treating with the enemy and it would be absurd to make the attempt.
Along with the tacit renunciation of power to annul goes a "tacit condition of mutual observation," the essence of the contract. As with the consequentialist view of things, the legal procedure has to point to the benefits that result from compliance, or the disutility that would result from general noncompliance. The Legalist only adds the specifics of what compliance, or breach, consists in, and so is concerned with procedure.
But Vattel goes further than this, to a more
general characterization of good faith. From the necessity of being human,
and the amelioration of conflict, and the sanctity of contracts, he produces
the notion that good faith entails telling the truth.
Good faith does not consist solely in keeping
our promises, but also in not decieving the enemy on those occasions when,
for one reason or another, we are bound to speak the truth.
The constellation of evaluative terms surrounding good faith focus on a singular notion: truth-telling. As a matter of personal honor, keeping one's word is essential. In terms of consequences, the maintenance of good faith even in war is indispensible. And the legalist interpretation of when one's word must be given in good faith clarifies when and what the fulfillment of good faith entails. Vattel is mostly concerned with the latter, as we can see in his specification of what it means to lie. Lying only takes place, writes Vattel, "on those occasions when he is under obligation to speak the truth."
These principles having been laid down, it
is not difficult to point out on what occasions it is necessary to speak
the truth to the enemy and when it is lawful to lie to him. Whenever we
have expressly or tacitly pledged ourselves to speak the truth to him,
we are indispensibly bound to do so by that good faith the inviolability
of which we have just set forth.
The entire purpose of the legalist specification of lying in bad faith is to distinguish it from allowable uses of deception under the laws of war. If we are not under explicit or tacit obligation to speak the truth, then lying or deception is not a violation either of natural law or customary law. Indeed, Vattel takes issue with "theologians" who hold truth to be something divine, to be safeguarded regardless of circumstances and consequences. Of the foundations for the law of war regarding espionage, then, Vattel ultimately opts for consequentialist grounds. And as is often the case with consequentialism, by shifting the locus of moral evaluation from the act itself to some secondary value, the act becomes allowable under certain circumstances. If there is no obligation to speak the truth, and concealing or misrepresenting the truth produces a strategic advantage, then it is permissible.
But when, either by falsehood on occasions
when we are not pledged to speak the truth or by some feint, we can deceive
the enemy and gain an advantage in the war which it would be lawful to
obtain by open force, there is no question that we may do so.
Deceptions practised upon the enemy, without
perfidy, whether by word or act, and snares laid for him in the exercise
of the rights of war, are strategems; their use has always been
recognized as lawful, and has often constituted the glory of the greatest
generals.
A further condition of the use of strategems is the properly humanitarian:
In the use of strategems we must respect not
only the good faith due to an enemy, but also the rights of humanity, and
we must be careful not to do anything which as a practice would be hurtful
to mankind.
In addition to the strict obligation one might
have to a particular party, there is also a responsibility to uphold good
faith in general, much as one has a duty to tell the truth in trivial cases
so that respect for truth and truth telling will prevail. We here have
Vattel's principles for the use of strategems, the criteria by which we
might distinguish those that are
The use of strategems gets a lot of attention in arm-chair military theory. But there is disagreement over the relative effectiveness of ruses. Clausewitz, for example, says that such things are of little strategic value.(9) Vattel is quite concerned, as are many authors of his period, to overcome the classical Roman example which eschewed any form of deception. Thus Vattel, and those other authors, must be convinced of the strategic value of strategems or ruses. It is notable that Clausewitz does not discount ruses on the grounds of morality or international law, or even Roman tradition. The writers that do focus on such considerations are usually doing so only to argue against them. A position which settles between Clausewitz's dismissal and the traditional denunciation of deception has to assume not only that deception is permissible, but also that it can be effective. Thus Vattel, among others, assumes that a ruse can substititute for the direct utilization of force.
To a certain extent, the efficiency of the ruse presents us with an economy of conflict. If a ruse can substititute for force, then it is most valuable when we are lacking in force vis-a-vis our enemy, and to a lesser extent when we wish to conserve our forces. Repeatedly we see statements that historical examples only eschewed guile because they had at hand the necessary capacity to prevail in a straightforward manner. But the allowal of deception is not unfettered. If it is the case, in any particular use of a ruse de guerre, that the gains obtained by such means are countered by equal or greater losses in either the immediate or long-range future, then obviously the use of deception is counter-productive.
The two areas where deception is ruled out are, from Vattel's discussion, either where the particular benefits we gain from practicing good faith outweigh any advantage that might accrue from abusing it, such as in specific agreements about prisoner exchanges, et cetera; or where the overall results of the use of deception undercut the general practices of humanity so as to eventually result in making the world a much worse place, even for ourselves. Vattel gives the example of the use of distress signals to lure rescuers, so that they may be captured. Similar is the use of the flag of truce as a cover for an attack. Even where a ruse that takes advantage of such general practices of humanity produces immense benefits for our side in a conflict, we have to have very good reasons to justify violating the trust such practices, such as self-preservation, and even then the ruse may still not be morally justified.
There is a tension here between the economy
of conflict and a tradition that holds deceit to be dishonorable. If deception
is morally wrong, no amount of compensatory benefit can justify it. On
the other hand, if all we need consider is enlightened self-interest, then
there need be no prohibition which is overriden by the weight of more important
considerations. But writers like Vattel and Grotius maintain an uneasy
position between these clear cut alternatives. The retention of a restricted
prohibition on deception, however, provides us with an insight into just
what it is that makes such actions either disgraceful, illegal, or counter-productive.
If we do not, as the noble Romans, eschew all use of deception, there still
remains a class of ruses that are not permissible. These are either those
that violate a pledge to speak the truth, or those which are harmful to
humanity in general.
Cornelius Van Bynkershoek takes issue with
the notion that there are limits in war in his work,
Questions of Public
Law, arguing that "in short everything is legitimate against an enemy."(10)
But even Bynkershoek has to admit some limits to the means that can be
used in war, though he does so without giving up his initial position.
In my definition I was not even willing to
omit 'fraud', since it is immaterial whether we employ strategy or courage
against the enemy. Opinions differ, to be sure, and Grotius offers a great
number of authorities and precedents on both sides. I would permit every
kind of deceit with the sole exception of perfidy, and I make this exception
not because of anything is illegitimate against an enemy, but because when
an engagement has been made the enemy ceases to be an enemy as far as regards
the engagement.
Bynkershoek has substituted the notion of "engagement" for Grotius' and Vattel's "good faith", which is significant in that it replaces the general requirement that one keep faith for the sake of humanity with a legalist interpretation that must specify an obligation owed to a specific party. But this is neither here nor there, for it exposes what is the objection to espionage, and thus the grounds for the impostion of the death penalty: perfidy.
A spy is someone who has "engagement" with the enemy. This is in fact what makes the spy valuable: the spy pretends to not be the enemy, and thus is privy to information which the opposition could not obtain by any other methods. But the spy uses this trust to betray those with whom he has engagement: he is given information on the confidence that he will keep it from the enemy, when in fact that is precisely his purpose. Here our earlier discussion of treason returns: the spy is the same as a traitor, except that the allegance he owes is feigned and not real.
The term "perfidy" is not often used of late. The origins of the word, however, help us understand why even such a political realist as Bynkershoek declines to allow it. Perfidy comes from the Latin word "perfidus", with the full phrase having been "per fidem decipere"(11): to deceive by trust. The relation to a ruse de guerre is quite clear in that all ruses involve deception, but only certain ones are deception based on trust. The notion of "taking advantage," and that of "fair play" apply to**. The old saw, "fool me once, shame on you; fool me twice, shame on me" has application here. The responsibility for a deception lies with the deciever when the decieved had no reason to suspect such action, when she had trust in the the deciever. But once that trust is broken, the responsibility for a deception lies in the decieved's lack of caution and gullibility.
The breaking of trust, then, is the crucial point: we trust someone until they provide reasons for acting otherwise, but there is always the chance that those reasons will be revealed too late. For example, we assume that the person we meet on the street is not intent on doing us bodily harm. We walk alone and unarmed, possibly even offer a greeting. But when our assumption turns out to have been mistaken, we do not have readily available the means to defend ourselves. To the extent that our assailant has attempted to appear as a trustworthy fellow-citizen, until it was too late for us to take defensive measures, we have been decieved. So much more the case with the con artist, who pretends to be family, friend, or a government agent in order to gain our trust only in order to relieve us of our property. The worse case, however, is the person who, in times of war, pretends to be worthy of trust, and uses that confidence to betray us. The traitor or the spy are not so dangerous in what they do, however important the post they hand over or the information they convey, but in how they do it: per fidem.
Bynkershoek's notion of engagement, and Grotius' and Vattel's idea of good faith, have a general instance in those situations where trust must be presupposed. A distress signal ought to be sent in good faith, even though it is not necessarily directed at anyone in particular, and anyone who responds must also do so in good faith, without seeking to take advantage of the advertised distress. Both false distress signals, aimed at luring in those expecting to render aid rather than repel an attack, and false responses that intend to attack or rob those who expect aid, violate the trust that is entailed in the sending of such signals at all. Thus such actions are perfidy.
Certain conventions of war are of a similar nature. The flag of truce, like a distress signal, testifies that the bearer can be trusted to cease (at least temporarily) hostilities, and thus the other side must as well respect the the truce. No doubt this is what Bynkershoek has in mind when he speaks of engagement. The mutual (if tenuous) trust that attends the flag of truce is taken advantage of if one side violates the agreement for their own benefit. Such benefit is only to be obtained, however, because the other side believed that the truce would be respected. Again, they are not only decieved, but decieved by means of trust.
A further example from war conventions hints at a broader application of perfidy. The prime difficulty for theorists like Bynkershoek who define war negatively as the absence of all obligation, relation, and engagement with an enemy (Hobbes's state of nature being the root paradigm for this), is the identification of an enemy. Actually in theory this is no problem, for everyone who is not a friend is a foe. This assumes a primordial state of war, with peace being an artificial, if positive, human achievement. Those who are not our enemy must therefore have some distinguishing mark, so that we will know not to attack them and be able to relax our guard knowing they will not attack us.
Of course this is too simplistic. It reduces the world to only two categories, when it is obvious that there are degrees of hostitily and friendship between groups, and that within groups there are distinctions between those who are actively prosecuting war, those who are only passively involved or completely innocent, and even those that oppose it. The identification of an enemy is therefore positive, distinguishing the combatant from non-combatants, rather than friend from enemy. The distinctive mark, or the wearing of a uniform, or the open bearing of arms, is not meant to identify the soldier as a friendly, but instead is a declaration of hostility, or that is, a message to the enemy that we are prepared to fight. On this view, as Thomas Nagel says, hostility is a personal relation, and entails an "engagement" with the enemy: a declaration of war and the identification of oneself as an enemy. We can make this explict with examples of deception that play upon the convention of combatant self-identification.
Michael Walzer discusses the problems of combatant identity in chapter eleven of his Just and Unjust Wars. He relates an incident where a platoon of German soldiers in occupied France during WWII marched past what appeared to be a group of peasants digging potatoes in a field. At the proper time, the "peasants" dropped their shovels and picked up guns and fired. Walzer insists that the "peasants", who were actually French partisans, had an unfair advantage not only because they did not identify themselves as combatants, but also because they were citizens of a country that had officially surrendered. The German soldiers did not, and we might add, should not have, suspected that they would be attacked. As Walzer writes, "The surprise achieved by the partisans was of a kind vitually impossible in actual combat." The ambiguity we are examining is present here in Walzer's assessment of this incident: did the partisans have an "engagement" with the occupying force, which they violated by resuming armed conflict without giving notice, or did they take advantage of the immunity of non-combatants in general, and so resort to hostile action without identifying themselves as combatants? While this may seem a small point, it does bear directly on what was the unfair deception in this case, and thus on what about it may have qualified as perfidy, and thus what is wrong with spying.
If we hold, with Bynkershoek, that any means are permissible in war, except perfidy, then guerrila actions within occupied territory are permissible when there has been no surrender, and even the subterfuge of pretending to be civilian or non-combatant personnel is allowable. Even in an insurrection, where there may not be a publically recognized authority that conducts the war, and thus is capable of having "engagements" with the enemy, such methods are permissible. For if everyone who has not identified themselves as a friend is an enemy, then it is to be expected that we must treat everyone within an occupied territory (and indeed, without it as well) as an enemy. In order for guerrila resistance groups to practice perfidy, then, they would have to have identified themselves as friends, or at least as parties to an agreement of surrender.
The laws of war, however, do not take this approach. The Hague and Geneva conventions attempt to require that anyone who is a combatant in an armed conflict must so identify themselves. Typically this means the use of uniforms, but as this is not always practicable, the wearing of a distinguishing mark, such as an armband or cap is mandated, or at the very least the open bearing of arms. The French partisans in question, then, violated the rules of war by failing to identify themselves as combatants, which in this case is tantamount to falsely identifying themselves as non-combatants. The reason for making this requirement for combatants, however, remains unclear. On the one hand, the wearing of a distinctive mark provides for discriminate warfare, and makes possible the principle of non-combatant immunity. If it is the value of non-combatant immunity that motivates the convention, it is only in terms of that value that violations are to be judged. Using the cover of the civilian population in order to carry on a guerrila war has the disadvantage of making the civilian populace combatants as well, whether they will or no, but this is hardly perfidy unless we assume that non-combatant immunity is a prior agreement, on which the disguised guerrila depends in order to gain tactical advantage by violating it. Then indeed it is perfidy, and hardly requires Walzer's further specification of an agreement to surrender to render it so.
If we take for example a situation where an army has conquered a part of a territory, or taken a country without any agreed upon surrender, or for that matter an insurgency, we could ask whether the action Walzer considers would still be an example of perfidy. Here the partisans would have made no "engagement" with the enemy, and would only be violating some aspects of the Hague and Geneva conventions. So the question is, would such an ambush be a clever, albeit illegal, ruse de guerre or an example of perfidy? Certainly it would be a war-crime, given the existence of the conventions, but the international law on the question, unlike Bynkershoek, does not necessarily equate impermissibility with perfidy. Guerrila resistance often provokes reprisals, and with the nazis often disproportionate ones, which suggest that military personnel who have successfully defeated the military forces of a nation do expect that the non-combatants who remain in occupied territory to acquiesce to the new situation, and refrain from attacks upon the occupying forces or serving as guides to counter-invading forces, or conveying information to their government. Walzer's discounting of the traditional categories of international law, the "war-traitor" (the resistance patriot), or the war-rebel, while perhaps reflecting the actual practice of states, or more often insurrectionists, also betrays a shift in the location of perfidy. If perfidy only concerns explicit agreements with the enemy, then the wrongness of the potato-field ambush was in the fact that the attackers were Frenchmen who had ostensibly surrendered. But this assumes that everyone who has not declared themselves to be non-combatant is to be taken as an enemy: war is a state of nature.
The inverse of this view, and evidently the postition taken by international law on the question, is that everyone who does not explicitly identify themselves as a combatant is to be taken to be noncombatant. The status ante bellum here is taken to be peace, so that the failure to identify oneself as an enemy is to allow one to be taken for a friend, or at least a neutral. Now this means that a partisan pretending to be a peasant is relying upon the trust of his enemy, even where no specific engagement has been given, and thus such an attack is an example of perfidy, whether there had been a surrender or not. War treason makes sense under such an interpretation, for the treason involved in any such action is not a matter of going over to the other side, for one could quite plausibly assume that many residents of an occupied territory do in fact politically support the vanquished government, but instead the treason betraying the status, claimed by default, to be non-combatant.
There is a certain conventionality to military uniforms, and for that matter to the limitation of actual fighting to identified and recognized military forces, but these conventions rest on a particular concept of war as a relation between states, which therefore is amenable to regulation by international law. The notion that war is a relation, rather than the severing of all relations which Bynkershoek holds it to be, sets up certain requirements that cannot be avoided. The necessity of communicating hostile intent is the first of these, whether in a requirement for a declaration of war by the state, or in the wearing of distinctive marks or the open bearing of arms by an individual combatant. Failure to make such a self-identification does, in fact, produce some strategic advantage, as when a state declares war with a surprise attack, or as in the case of the potato diggers. But in either case the surprise rests on a tacit agreement, and thus is an unfair advantage, one that plays upon the trust of the enemy.
False distress signals, violation of the flag
of truce, and disguise as noncombatants are examples of perfidy, in that
they rely on the trust of the enemy in order to succeed. Strictly, therefore,
they are not ruses de guerre which would be permissible under international
law. Now it remains to be shown whether espionage falls into the same category.
We must accept that espionage is a strategem, one that is instrumental to the formulation of strategy and tactics that can only be based on reliable intelligence about the enemy. The question, again, is whether espionage is an allowable ruse de guerre or an example of perfidy. Again, it is not the potential advantage that is to be gained by espionage that makes it permissible or not, but whether it is consistent with the laws of war, and the moral position which underlies these laws. In other words, it is not whether information is obtained, but how it is obtained that will make espionage either a ruse de guerre or a war crime. This changes the focus of the illegality of being a spy (in contrast to the sending of spies), from a concern to deter potential spies to the delineation of what is of itself criminal. The central feature of espionage, as we can surmise from the definitions above, is the use of disguise or false pretences.
It is the disguise, or false pretense, which
constitutes the perfidy, and forms the essential elements of the crime,
which, by the laws of war, is punishable with an ignominious death.
Halleck, Id. 406:
The gravamen of the offense of a spy is the
treachery of deception practiced, the being in disguise or acting under
false pretense.
A spy, then, is someone who obtains information not merely through observation, nor even by stealth, but through misrepresentation: she is granted access to strategically important information because she pretends to be trustworthy. There are, of course, many ways of doing this, two types of which parallel our discussion above. First of all, the spy may make an "engagement" with the enemy, the most notable instance is the case mentioned by Belli, where a member of the enemy armed forces pretends to defect and become a member of our forces. He is then made privy (depending on the success of the ruse) to such information as he seeks to obtain based on the trust we now place in him as a member of our forces. Since he does this only to betray us, this is a clear example of perfidy. The lesser case is where a member of the enemy armed forces pretends to be a civilian, and on the basis of that misrepresentation is granted access to information that would not have been available to them otherwise. This may not be a case of directly promising fidelity, and so would not be considered perfidy under Bynkershoek's definition. But the failure to identify oneself as a partisan of the enemy is as much a deception, and if to a lesser extent still gives the spy opportunity to "lurk about" and obtain information that a self-identified member of the enemy armed forces would not have access to.(12)
Treachery, disguise, and false pretences are
definitive of the crime of espionage. No doubt this is why Vattel and others
maintain that no honorable gentleman would be a spy: such behavior is a
violation of the code of honor. But as well, such actions are what entail
the death penalty, as would other examples of perfidy. Even if we dissallow
only perfidy in the conduct of war, as does Bynkershoek, we have to conclude
that the commission of espionage is not allowable.
1. This feature of the UCMJ is under scrutiny, since the Supreme Court decision on the consititutionality of the death penalty in Furman v. Georgia (1972). See Major David A. Anderson, "Spying in Violation of Article 106, UCMJ: The Offense and the Consitutionality of its Mandatory Death Penalty," Military Law Review , 127(1990):1. However, what is at issue here is the articulation of judicial proceedings, especially in sentencing, which does not of itself challenge the notion that death is the appropriate punishment for cases of unmitigated espionage. And any change in national military justice codes would not affect the traditional law of war that allows (but does not require) the death penalty for spying, a provision left in place by the Hague and Geneva Conventions.
2. See Susan Jacoby, Wild Justice, p. 262:
Procedure and proportionality-- from the rabbinical courts of the first century B.C. through the political debates of the past twenty years-- have always been the main concerns of those who have labored to reduce or eliminate the use of capital punishment in peacetime. (Wartime executions have generally been treated as another matter altogether, although pacifists would, and do, argue that they ought not to be. Every nation with an army has different provisions for military and civilian justice, and countries that long ago abandoned the death penalty in time of peace-- like the Scandinavian nations-- have special provisions for the execution of traitors in war.)
3. Instead of money or glory, or even a lot of sheep, spies could be motivated by blackmail, hostages, or a counter-offer of certain execution versus the risk of the same if they engage in espionage. Not exactly legal or ethical methods, but deterrence is after all also a method of coercion.
4. Sun Tzu: ". . . no one should be more liberally rewarded than spies, . . " (Sun Tzu:The Art of Warfare, Roger Ames translator, [13:* ] p. 170)
Frederich the Great: "In general it is necessary to pay spies well and not be miserly in that respect. A man who risks being hanged in your service merits being well paid." (Shafritz, Words on War [New York: Simon & Schuster, 1990], p. 374.)
5. Halleck, "Military Espionage," *** , p. 593.
6. What of the civilian who undertakes to spy for his own side in a war, what Lieber terms a "war-traitor"? If one of the defining characteristics of a spy is that they be a member of the enemy armed forces, does the acceptance of a contract to spy convert the non-combatant civilian into a combatant? This is a greater responsibility for the crime than Halleck admits to, for by employing a spy we give him precisely the status that allows him to be punished with death.
8. The Law of Nations , p. 299:
Hence the sovereign is not warranted in demanding such service of his subjects, except perhaps in some particular instance when the gravest interests are at stake. He therefore offers rewards, in order to induce persons of a mercenary spirit to undertake the work.
Analogous things in war--plans and orders issued for appearances only, false reports designed to confuse the enemy, etc.--have as a rule so little strategic value that they are used only if a ready-made opportunity presents itself. They should not be considered as a significant independent field of action at the disposal of the commander.
10. Questions of Public Law , p. 16.
12. It is of note that it does not make much difference if the spy pretends to be a citizen of the enemy state, or only a citizen of his own state, most likely in occupied territory, for in either case a non-combatant will be presumed by the local military forces not to be in communication with the enemy. Thus the deception, and the access to information, would be much the same in both cases, which shows that the primary distinction, and the one the ruse depends upon, is between combatant and non-combatant, and not between enemy and friendly civilians.