a Treaty Provision.
A person can only be considered a spy when, acting clandestinely or on false pretences, he obtains or 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 dispatches and, generally, of maintaining communications between the different parts of an army or a territory. (HR, art. 29.)
b. American Statutory Definition. The first paragraph of the foregoing Hague Regulation has been in effect somewhat modified, as far as American practice is concerned, by the subsequently enacted Article 106 of the Uniform Code of Military Justice (64 Stat. 138; 50 U. S. C. 700), as follows:
ART. 106. 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 of the United States, 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.
c. Article 106 Governs. Insofar as Article 29, HR, and Article 106, Uniform Code of Military Justice, are not in conflict with each other, they will be construed and applied together. Otherwise Article 106 governs American practice.
76. Who Included in Definition
The definition embodied in the Hague Regulations (par. 75a) and that contained in Article 106 of the Uniform Code of Military Justice (par. 75b) include persons of all classes, whether military or civilian, without regard to citizenship or sex. Both likewise apply only where the acts are committed in time of war. The Hague definition applies only where the information is obtained or sought "in the zone of operations," while the statutory definition is not so limited The latter includes only persons "found lurking as a spy or acting as a spy" in those places specifically designated "or elsewhere." It has not been decided whether the phrase "or elsewhere" justifies trial by a military tribunal of any person who is not found in one of the places designated or in the field of military operations or territory under martial law and is not a member of the armed forces or otherwise subject to the Uniform Code of Military Justice. Persons charged with espionage committed in the United States outside military jurisdiction are nevertheless liable to trial and punishment by the civil courts under the espionage laws (18 U. S. C. (chap. 37)).
77. Employment of Spies Lawful
The foregoing Article 29, HR (par. 75), and Article 24, HR (par. 48), tacitly recognize the well-established right of belligerents to employ spies and other secret agents for obtaining information of the enemy. Resort to that practice involves no offense against international law. Spies are punished, not as violators of the laws of war, but to render that method of obtaining information as dangerous, difficult, and ineffective as possible.
Вот этот последний пункт меня поразил. Шпионаж законен, но шпионов расстреливают. Не за нарушение закона, а чтобы неповадно было.