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4.19.4.1 Unprivileged Belligerency and the Law of War – Notes on Terminology.In contemporary parlance, spying and other forms of unprivileged belligerency generally havenot been referred to as “violations of the law of war” or “war crimes.” 416 For example, spying ispermissible under the law of war in the sense that belligerents are not prohibited from employingspies; these activities are punishable but not prohibited under international law. 417However, in some cases, offenses related to unprivileged belligerency have beencharacterized as violations of the law of war. 418 For example, spying has been called a violationof the law of war or “war crime.” 419 Spying and other acts of unprivileged belligerency havebeen called offenses against the law of nations or law of war – the punishment of these offendershas been viewed as a recognized incident or exercise of a belligerent’s war powers under the lawof war. 420The difference in these characterizations may be traced to different definitions of “warcrime” that have been used over time. The difference in these characterizations may also betraced to different definitions of the “law of war.” If one views the law of war as only containingprohibitions, the punishment of unprivileged belligerents, like all exercises of the war powers,emanates from the domestic law of the belligerent State. 421 On the other hand, if one views the416 Richard R. Baxter, So-Called ‘Unprivileged Belligerency’: Spies, Guerillas, and Saboteurs, 28 BRITISH YEARBOOK OF INTERNATIONAL LAW 323, 324 (1951) (“The correct legal formulation is, it is submitted, that armed andunarmed hostilities, wherever occurring, committed by persons other than those entitled to be treated as prisoners ofwar or peaceful civilians merely deprive such individuals of a protection they might otherwise enjoy underinternational law and place them virtually at the power of the enemy. ‘Unlawful belligerency’ is actually‘unprivileged belligerency’.”).417 Refer to § 4.17.4 (Spying and Sabotage Permissible Under the Law of War).418 See, e.g., 10 U.S.C. § 950t (27) (defining the offense of spying as “in violation of the law of war”); G.I.A.D.Draper, The Status of Combatants and the Question of Guerrilla Warfare, 45 BRITISH YEAR BOOK OFINTERNATIONAL LAW 173, 173, 176 (1971) (“On balance, the theory that illicit combatants may be killed aftercapture, as an act of warfare, subject to any restraint imposed by the law of war, is somewhat artificial. There maybe some substance in the contention, and it may be more consonant with the war practices of belligerents, theofficial manuals on the law of war issued by States, and the decisions of national tribunals applying the law of war,that illegal participation in combat is a violation of the law of war exposing the offender to loss of immunity fromattack, and, upon capture, to trial and punishment upon conviction. However, the matter is controversial, and thereare certain passages in the classical writers on the law of war, such as Grotius, which lend support to the theory of‘unprivileged belligerency’.”).419 See, e.g., U.N. SECRETARY-GENERAL, Historical Survey of the Question of International Criminal Jurisdiction,U.N. Doc. A/CN.4/7/Rev.1, 1 (1949) (“During the greater part of modern history customary law has also recognizedso-called war crimes of various description. Perfidy, particularly that type of perfidy which is described asespionage, is the oldest example of such a war crime.”); Ex parte Quirin, 317 U.S. 1, 31 (1942) (describing spies as“offenders against the law of war subject to trial and punishment by military tribunals.”); WINTHROP, MILITARYLAW & PRECEDENTS 770 (“Under the law of nations and of war, [a spy’s] offence is an exclusively military one,cognizable only by military tribunals.”); G. SHERSTON BAKER, I HALLECK’S INTERNATIONAL LAW 628-29 (18.20)(1908) (“the act of spying is an offence against the laws of war alone”); James Speed, Attorney General, MilitaryCommissions, July 1865, 11 OPINIONS OF THE ATTORNEY GENERAL 297, 312-13 (1869) (“to act as spy is an offenceagainst the laws of war, … every lawyer knows that a spy was a well-known offender under the laws of war,”).420 Ex parte Quirin, 317 U.S. 1, 28 (1942) (holding that the trial and punishment of enemy saboteurs by militarycommission was an “important incident to the conduct of war”).421 Refer to § 1.3.3.1 (Law of War as Prohibitive Law).165