There is a clear middle course between both extremes. Instead of being
hung or shot or sent away scot free, a spy might fairly be made a
prisoner of war. Suggestions in this sense were made at the Brussels
Conference on the Laws of War. The Spanish delegate proposed that the
custom of hanging or shooting detected spies should be abolished, and
the custom be substituted of interning them as prisoners of war during
the continuance of hostilities. The Belgian delegate proposed that in
no case should they be put to death without trial; and it was even
sought to establish a distinction between the deserts of the really
patriotic and the merely mercenary spy. The feeling in fact made itself
clearly visible, that an act of which a general might fairly avail
himself could not in common justice be regarded as criminal in the
agent. Between a general and a spy the common-law rule of principal and
agent plainly holds good: ‘He who acts through another acts through
himself.’ In a case of espionage either both principal and agent are
guilty of a criminal act, or neither is. If the spy as such violates
the laws of war, so does the general who employs him; and either
deserves the same punishment. Were it not so, a general who should
hire a bravo to assassinate an enemy would incur no moral blame, nor
could be held to act outside the boundary of lawful and honourable
hostilities.
In some other respects the Brussels Conference displayed the vagueness
of sentiment that prevails about the use of spies in war. It was
agreed between all the Powers that no one should be considered as a
spy but one who secretly or under false pretences sought to obtain
information for the enemy in occupied districts; that military men
collecting such information within the zone of hostile operations
should not be regarded as spies if it were possible to recognise their
military character; and that military men, and even civilians, if
their proceedings were open, charged with despatches, should not, if
captured, be treated as spies; nor individuals who carried despatches
or kept up communications between different parts of an army through
the air in balloons. The German delegate proposed, with regard to
balloons, that those who sailed in them might be first of all summoned
to descend, then fired at if they refused, and if captured be treated
as prisoners, not as spies. The rejection of his proposal implies
that by the laws of modern war a balloonist is liable to be shot as a
spy; so that, from the point of view of personal danger, the service
of a balloon becomes doubly heroic. The Brussels Conference settled
nothing, owing to the withdrawal of England from that attempt to settle
by agreement between the nations the laws that should govern their
relations in war-time; but from what was on that occasion agreed to or
rejected may be gathered the prevalent practice of European warfare.
Is it not then a little remarkable that for the dangerous service of
Public-domain text, read in full here on John Shaqi.
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