9-1. Introduction. The international law regulating armed conflict recognizes that certain types of operations differing from traditional military engagements, reconnaissance or bombardments, are utilized to secure military advantage. Such covert operations, generally carried out by small numbers of people, are termed independent missions. Although independent missions are not prohibited, persons who engage in such missions without complying with conditions prescribed by GPW, Article 4, for recognition as lawful combatants may be subjected to domestic criminal processes by the adversary for violation of the local law. This chapter discusses some basic rules of the law of armed conflict affecting independent missions. Two major types of independent missions are espionage and sabotage.

In the context of law regulating armed conflict, espionage refers to the clandestine collection or transmission of intelligence gathered inside the territory of an adversary. As Oppenheim noted:

War cannot be waged without all kinds of information about the forces and intentions of the enemy, and about the character of the country within the zone of military operations. To obtain the necessary information, it has always been considered lawful to employ spies, and also to make use of the treason of enemy soldiers or private enemy subjects, whether they were bribed, or offered the information voluntarily and gratuitously.2

Sabotage refers to clandestine acts of hostility particularly for the purpose of destroying materiel belonging to or intended for military use of an adversary while in territory under the adversary's control.

endeavors 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, intrusted 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 29, HR)

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. (Article 31, HR)

Members of armed forces in uniform and other combatants referred to in Article 4 of the Third Convention, as well as other lawful combatants who, in their operations, distinguish themselves from the civilian population and who, having entered enemycontrolled territory or having remained therein, gather or attempt to gather military information for further transmission shall not be considered as spies. In the event of their capture, the persons referred to above shall be prisoners of war.

b. Discussion. Although states are not precluded from securing military intelligence, other states, as objects of intelligence operations, are not prohibited from taking measures against spying under their own laws to prevent such activity. In the United States,

for example, Article 106, of the Uniform Code of Military Justice (UCMJ), provides,

Spies. Any person who in time of war is found lurking as a spy or acting as a spy in or about any place, vessel, or aircraft, within the control or jurisdiction of any of the armed forces, or in or about any shipyard, any manufacturing or industrial plant, or any other place or institution engaged in work in aid of the prosecution of the war by the United States, or elsewhere, shall be tried by a general court-martial or by a military commission and on conviction shall be punished by death.

In addition, persons charged with espionage committed in the United States are also subject to trial and punishment by criminal courts under espionage laws (18 USC §§ 792-799 (1970)). Thus, although resort to espionage by a state during a period of armed conflict involves no violation of international law, a state which is the object of that espionage may subject captured spies, whether civilian or military, to trial and punishment. This is to make espionage as difficult and dangerous as possible, and to enhance the distinction between combatants and noncombatants. 3 However, members of the armed forces who are in their own uniform and other lawful combatants1 who distinguish themselves from the civilian population during their operations are not "spies" and cannot be treated as such. Therefore only those persons engaging in espionage who, acting in a clandestine manner, fail to distinguish themselves from the general populace, i.e., military personnel out of their own uniform and civilians, can lawfully be punished as spies.

Espionage is an insoluble enigma in the law of armed conflict because of its nature. Acts of espionage including spying are not prohibited by international law itself, but persons who commit acts of spying and are spies may be punished, in some cases by death. This is true regardless of the success or failure of his mission.5 However, once a combatant who engaged in espionage activities while out of uniform rejoins the armed

force to which he belongs, he is entitled to PW status under Article 4, GPW, and gains immunity from prosecution for all prior acts of espionage. 6

Persons lawfully convicted of spying may also be executed in areas under occupation under Article 68, GC.7

9-3. Sabotage:

a. General Rules:

(1) Members of armed forces in uniform and other combatants referred to in Article 4 of the Third Convention [GPW], as well as other lawful combatants who, in their operations, distinguish themselves from the civilian population and who, having entered enemy-controlled territory or having remained therein, destroy or attempt to destroy military objectives, shall not be considered as saboteurs.

(2) In the event of their capture, the persons referred to above shall be prisoners of war.

b. Discussion. As a military tactic, sabotage has been legitimized by long use and custom. Sabotage, like espionage, has a dual nature. It is a lawful act of armed conflict which may be performed in such a manner that those who commit the destruction fail to satisfy the conditions under which they may obtain lawful combatant status. Since civilian and military personnel must comply with different conditions to be eligible for PW treatment in case of capture, the criteria for each will be discussed separately.

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(1) Civilians. Private persons may lawfully take up arms or engage in hostilities as members of a spontaneous general uprising against an invading army (levee en masse), or of an organized resistance movement which fulfills criteria entitling them to be treated as PWs. However, private persons who engage in hostilities against an invading, occupying, or other adversary power without falling under one of the classifications entitling them to PW status may, if captured, be tried as criminals under the national law of the adversary or under occupation law, depending on the circumstances. 10

(2) Military Personnel. Members of the

prescribed for recognition as lawful combatants, and military personnel out of uniform, who commit hostile acts on the ground in territory under the jurisdiction of the adversary, are not entitled to PW treatment. They may be tried and sentenced to imprisonment or to execution, under certain circumstances. They must be provided a trial. "Hostile acts" include, but are not limited to, sabotage, destruction of communication facilities, intentional misleading of troops by guides, liberation of PWS and other acts. Civilians who participate in a recognized resistance movement or a levée en masse and uniformed military personnel, even if camouflaged, who effectuate sabotage as lawful combatants are entitled to PW status and thus cannot be tried or punished for these

acts.