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  #1  
Old 09-25-2007, 01:19 PM
Roadfood Roadfood is offline
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In War: out of uniform == can be shot as a spy?

You hear it all the time in war movies, that if a soldier is found by the enemy out of that soldier's native uniform (either in civilian clothes or in the enemy's uniform), he can be shot as a spy.

Is there any truth to that? Is there some "rule" (de facto or otherwise) or agreement or something in the Geneva Conventions that really does say that, or is it another Hollywood invention?
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  #2  
Old 09-25-2007, 01:29 PM
Jas09 Jas09 is online now
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I'm gonna go with Hollywood invention.

The Geneva Conventions do not define "spy" directly but are based largely on 1907 Hague Convention. It defines spy as:

Quote:
Art. 29. A person can only be considered a spy when, acting clandestinely or on false pretences, he obtains or endeavours 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, entrusted 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.
http://www.icrc.org/ihl.nsf/4e473c7b...8!OpenDocument

Also, from here : http://www.icrc.org/ihl.nsf/COM/380-600177?OpenDocument

Quote:
The definition of a spy given in this Article remains completely valid since the Geneva Convention contains no similar provision. However, a spy is also a protected person in so far as he conforms to the definition given in Article 4 of the Fourth Convention. Under Article 5 of the Convention, the spy may nevertheless be deprived temporarily of certain rights, particularly the right of communication.
So, it seem shooting someone as a spy is a no-no - they must be treated as a POW for the most part.

ETA: Being out of uniform might affect the applicability of Article 4 - see the whole "unlawful combatant" debate. I think the rest still applies.

Last edited by Jas09; 09-25-2007 at 01:32 PM..
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  #3  
Old 09-25-2007, 04:44 PM
Quartz Quartz is offline
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Quote:
Originally Posted by Roadfood
Is there any truth to that? Is there some "rule" (de facto or otherwise) or agreement or something in the Geneva Conventions that really does say that, or is it another Hollywood invention?
It can't be a Hollywood invention - remember all those WW2 escape movies?
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  #4  
Old 09-25-2007, 08:59 PM
smiling bandit smiling bandit is offline
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Quote:
Originally Posted by Jas09
So, it seem shooting someone as a spy is a no-no - they must be treated as a POW for the most part.

ETA: Being out of uniform might affect the applicability of Article 4 - see the whole "unlawful combatant" debate. I think the rest still applies.
Yes, the uniform issue is the key thing. A soldier can infiltrate the enemy without becoming a spy. A spy, guerrilla (often, though not always), or terrorist (usually), however, has forfeited the protections of military justice by virtue of hiding among the civilian population, exposing it to risk for his own ends.
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  #5  
Old 09-26-2007, 05:14 AM
Szlater Szlater is offline
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Quote:
Originally Posted by Quartz
It can't be a Hollywood invention - remember all those WW2 escape movies?

Take me with you, I can see. I can see perfectly.
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  #6  
Old 09-26-2007, 07:14 AM
Harmonious Discord Harmonious Discord is offline
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You have to remember that sometimes the enemy doesn't care what the rules on being a spy are.
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  #7  
Old 09-26-2007, 07:22 AM
Paul in Qatar Paul in Qatar is offline
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Being a spy is not a war crime. Spies are simply not soldiers and so are not protected from the actions of the capturing party. A nation may shot spies, but not because they committed a war crime, but simply as a means of making spying operations difficult and dangerous.
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  #8  
Old 09-26-2007, 07:27 AM
Szlater Szlater is offline
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A uniform isn't a guarantee that you won't be shot, for example, Hitler's Commando Order.
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  #9  
Old 09-26-2007, 10:19 AM
flurb flurb is online now
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Current status under international law aside, there is certainly historical precedent for such a situation. One of the most famous examples would be the execution of John Andre during the American Revolution. Ironically, he wanted to be shot, since that was considered a more honorable method of executing than hanging.
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  #10  
Old 09-26-2007, 10:29 AM
John Mace John Mace is online now
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If you are a uniformed soldier, part of a regular military, and are operating as such in a foreign country under armed conflict, you have certain protections. You can be held as a POW, but you cannot be put on trial and you cannot be executed. This, per the Geneva Conventions, although not every country is going to honor them.

If you are operating as a civilian in a foreign country, you are subject to the laws of that country. If you litter, and the punishment for littering is to be shot, you can be shot. If they say you are a spy, you can be punished per that country's laws regarding spies.
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  #11  
Old 09-26-2007, 10:55 AM
Rick Rick is online now
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Damn you flurb I came in here to mention him.
Oh well, I will add that you can read more about Andre here. The 76 house is still operating as a tavern and restaurant. Home page. Despite what you may read on their site, it is kind of expensive, but dinner comes with a history lesson.
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  #12  
Old 09-26-2007, 11:04 AM
smiling bandit smiling bandit is offline
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Quote:
Originally Posted by Paul in Saudi
Being a spy is not a war crime. Spies are simply not soldiers and so are not protected from the actions of the capturing party. A nation may shot spies, but not because they committed a war crime, but simply as a means of making spying operations difficult and dangerous.
Technically, spies commit treason. Even if they have no loyalty or admitted loyalty to the government in question (upon whom they spied) they have accepted its laws as a price of entering its soil.
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  #13  
Old 09-26-2007, 11:11 AM
Lemur866 Lemur866 is online now
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John Mace is exactly right. It's not that spies can be shot on sight, it's that un-uniformed spies are subject to the laws of the country they are operating in, and do not have to be treated as POWs.

So a uniformed enemy soldier can wander around behind enemy lines shooting people and collecting information, and if captured must legally be treated as a POW. An un-uniformed enemy agent doing the same thing can be tried for murder, mopery, dopery, theft, trespass, and so forth.

And escaping POWs are in an interesting situation. If they stay in uniform they retain their status as enemy soldiers. They can be engaged and shot at just like regular enemy soldiers. But if they surrender, then they are again treated as ordinary POWs. But if they disguise themselves as civilians then they lose their protected status under the Geneva Convention. If they shoot enemy soldiers, steal food and weapons, and so forth, they can be tried as common criminals.
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  #14  
Old 09-26-2007, 12:11 PM
mlees mlees is offline
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Interesting question, but there is a difference between the "legal" answer and the practical one.

Consider:

I am a US Navy sailor, on liberty in Pusan, South Korea, dressed in civilian clothes.

In a surprise attack, a North Korean parachute unit drops in and seizes the city while I'm snoozing in a hooker's hotel flat. My ship flees port.

I wake up, hear the commotion, get dressed (in my civies), and attempt to make my back to my ship. (At least, back to where I last saw it.)

I get captured by a North Korean patrol.

IMO, I should be treated as a POW, legally speaking. But in a real world situation, the patrol may already be running on high adrenaline, and assume that I was a spy, or something devious like that, and decide to execute me as a suspected/probable enemy spy. Or, the patrol leader may decide that he can't afford to assign a guard detail to me, so uses the spy pretext to shoot me as being the more convenient option.
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  #15  
Old 09-26-2007, 12:20 PM
askeptic askeptic is offline
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Quote:
Originally Posted by smiling bandit
Technically, spies commit treason. Even if they have no loyalty or admitted loyalty to the government in question (upon whom they spied) they have accepted its laws as a price of entering its soil.
Not really, or cite? Treason involves a Citizen aiding a foreign entity. The fact that you are subject to a countries laws does not make one a traitor. Notice no treason trials for all those Soviet agents back in the day.
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  #16  
Old 09-26-2007, 01:49 PM
John Mace John Mace is online now
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Quote:
Originally Posted by Lemur866
John Mace is exactly right. It's not that spies can be shot on sight, it's that un-uniformed spies are subject to the laws of the country they are operating in, and do not have to be treated as POWs.

So a uniformed enemy soldier can wander around behind enemy lines shooting people and collecting information, and if captured must legally be treated as a POW. An un-uniformed enemy agent doing the same thing can be tried for murder, mopery, dopery, theft, trespass, and so forth.
The thing that might have to be better defined here is "behind enemy lines". I'm not sure what "level of hostilities" have to be in effect for this rule to kick in. Clearly, it would be in effect in Afghanistan or Iraq for the US, but what about Iran? Or, what about Venezuela? This, I am not sure of.
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  #17  
Old 09-26-2007, 02:21 PM
Roadfood Roadfood is offline
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Thanks for all the replies. I certainly realize that there's a world of difference between the "legal" and the practical; I was just interested in what the "legal" or "proper" thing is. Certainly, if a soldier comes upon an enemy in uniform holding his hands up, there's nothing to prevent the former from just shooting the latter. But that's not the "proper" conduct of a soldier; you are "supposed" to accept your enemy's surrender and treat him as a POW. By the same token, if you find an enemy out of uniform, nothing stops you from just shooting him, but my question was whether "Hey, he was out of uniform, therefore a spy, therefore I could shoot him" would be generally accepted as "proper" or "civiized" conduct during war.

It sounds, from the replies here, that there really isn't any specific "rule", as often stated in the movies, that an enemy soldier, out of uniform, can just be summarily shot. He can be treated as a civilian in the local country, subject to whatever laws exist therein, and treated accordingly. But the specific "out of uniform == spy == ok to kill" line of reasoning sounds like it is NOT supported in the real world as generally accepted military conduct, no?
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  #18  
Old 09-26-2007, 02:22 PM
smiling bandit smiling bandit is offline
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Quote:
Originally Posted by askeptic
Not really, or cite? Treason involves a Citizen aiding a foreign entity. The fact that you are subject to a countries laws does not make one a traitor. Notice no treason trials for all those Soviet agents back in the day.
Yes and no. First off, they usually don't kill spies for practical reasons. It's better to get the info, then trade the spy back. You get something for the spy and find out what he knew. During the Cold War, we didn't kill actual Russian spies because (a) we often didnt' have jurisdiction, and (b) we didn't want ours sent to the gallows.

Second, while most countries only apply treason to their own citizens, it could be applied more broadly without a change in law and has been in the past.

Quote:
Originally Posted by U.S. Cpnstitution
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
Note that the idea of who ought to be subject to the law remains vague. Current caselaw suggests it only applies to citizens and legal residents, but that's a fuzy line. What about a recent illegal immigrant? Or someone who's been here 30 hears but is still illegal? Or someone with a greencard?

The current law defining it more directly only says "whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States"

But "owing allegiance" is still pretty vague. It might refer to citizenry, but very few cases of treason have ever been prosecuted, so the courts have not defined it more accurately. And especially since the legal code there (and throughout the western world) came from time when treason was more eaily defined: did you screw with your King?

Suffice it to say I wouldn't risk my neck on a treason charge if I were a foreign resident, thinking I was "beyond the law" in that regard.
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  #19  
Old 09-26-2007, 03:26 PM
Spiny Norman Spiny Norman is offline
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Quote:
Originally Posted by Lemur866
And escaping POWs are in an interesting situation. If they stay in uniform they retain their status as enemy soldiers. They can be engaged and shot at just like regular enemy soldiers. But if they surrender, then they are again treated as ordinary POWs. But if they disguise themselves as civilians then they lose their protected status under the Geneva Convention. If they shoot enemy soldiers, steal food and weapons, and so forth, they can be tried as common criminals.
That is not entirely correct. The Geneva Convention is very specific about what punishments can be handed down for escape attempts - even if the attempt involves wearing civilian clothes or the theft of food etc. My italics:

Quote:
Article 93

Escape or attempt to escape, even if it is a repeated offence, shall not be deemed an aggravating circumstance if the prisoner of war is subjected to trial by judicial proceedings in respect of an offence committed during his escape or attempt to escape.

In conformity with the principle stated in Article 83, offences committed by prisoners of war with the sole intention of facilitating their escape and which do not entail any violence against life or limb, such as offences against public property, theft without intention of self-enrichment, the drawing up or use of false papers, the wearing of civilian clothing, shall occasion disciplinary punishment only.

Prisoners of war who aid or abet an escape or an attempt to escape shall be liable on this count to disciplinary punishment only.
A POW who is recaptured in stolen civvies still retain his Geneva Convention rights and will have the right of trial at a POW tribunal, not in a civilian court.
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Old 09-26-2007, 03:36 PM
Spiny Norman Spiny Norman is offline
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Quote:
Originally Posted by Spiny Norman
A POW who is recaptured in stolen civvies still retain his Geneva Convention rights and will have the right of trial at a POW tribunal, not in a civilian court.
Forgot to add: An escaping POW in civvies who takes it upon himself to do a little intelligence-gathering en route is abusing his POW privileges. If found with extensive notes on enemy positions etc., he is very much at risk of being considered a spy, if re-captured. If found guilty of that crime - again, at a tribunal, not by a civilian court and certainly not by the capturing unit - the withholding power is within their rights to mete out punishment, including execution.
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  #21  
Old 09-26-2007, 04:16 PM
Lemur866 Lemur866 is online now
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Quote:
Originally Posted by Roadfood
It sounds, from the replies here, that there really isn't any specific "rule", as often stated in the movies, that an enemy soldier, out of uniform, can just be summarily shot. He can be treated as a civilian in the local country, subject to whatever laws exist therein, and treated accordingly. But the specific "out of uniform == spy == ok to kill" line of reasoning sounds like it is NOT supported in the real world as generally accepted military conduct, no?
Can soldiers summarily execute enemy civilians legally?
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  #22  
Old 09-26-2007, 04:31 PM
askeptic askeptic is offline
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Quote:
Originally Posted by Lemur866
Can soldiers summarily execute enemy civilians legally?
Depends on whether the country they are from signed the Geneva Convention Treaty. If not then legality really has no meaning. I mean are they going to be subject to the laws of the country they invaded? I guess if they loose the war they could. Or if their own millitary prohibits it. But generally the various treaties prohibit the killing of unarmed non-combatants, but like I said that does not apply to countries who are not signitories of the treaty. Also there is the issue of enforcement, see Sudan.
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  #23  
Old 09-26-2007, 05:20 PM
Spiny Norman Spiny Norman is offline
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Quote:
Originally Posted by Lemur866
Can soldiers summarily execute enemy civilians legally?
Under the conventions, no. Civilians taking up arms against enemy soldiers have given up their protected status and they can be killed in combat without it being a war crime - but there's absolutely no provision for on-the-spot execution-style killings of any sort of captive.
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  #24  
Old 09-27-2007, 04:18 AM
Lust4Life Lust4Life is offline
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Quote:
Originally Posted by Spiny Norman
Under the conventions, no. Civilians taking up arms against enemy soldiers have given up their protected status and they can be killed in combat without it being a war crime - but there's absolutely no provision for on-the-spot execution-style killings of any sort of captive.

Resistance forces fighting enemy soldiers must have a recognised chain of command and wear something that identifies them as a combatent even if its just an arm band.

I think technically a civilian who attempts to kill a soldier can be shot on the spot though thats just my hunch but in practice its unlikely to happen in this day and age.

For surrendering soldiers it is allowed by the rules of war to shoot them if they are attempting an "instantaneous" surrender,that is they are shooting at you one instant and then suddenly throw down their weapon the next in a hot firefight.
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  #25  
Old 09-27-2007, 08:08 AM
muldoonthief muldoonthief is offline
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Quote:
Originally Posted by Spiny Norman
That is not entirely correct. The Geneva Convention is very specific about what punishments can be handed down for escape attempts - even if the attempt involves wearing civilian clothes or the theft of food etc. My italics:


In conformity with the principle stated in Article 83, offences committed by prisoners of war with the sole intention of facilitating their escape and which do not entail any violence against life or limb, such as offences against public property, theft without intention of self-enrichment, the drawing up or use of false papers, the wearing of civilian clothing, shall occasion disciplinary punishment only.


A POW who is recaptured in stolen civvies still retain his Geneva Convention rights and will have the right of trial at a POW tribunal, not in a civilian court.
Does the "not entail any violence against life or limb" mean that the POW camp guards are off-limits? If Lebeau strangles Schultz on his way out of camp to Dusseldorf one night, can/will he be tried for murder?
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Old 09-27-2007, 12:01 PM
Lemur866 Lemur866 is online now
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Quote:
Originally Posted by Spiny Norman
Under the conventions, no. Civilians taking up arms against enemy soldiers have given up their protected status and they can be killed in combat without it being a war crime - but there's absolutely no provision for on-the-spot execution-style killings of any sort of captive.
That's exactly my point. A guy without a uniform wandering around taking notes can't be shot summarily, any more than a random civilian can be shot summarily. Of course, soldiers can and do kill civilians during military operations, all legally under the Geneva Conventions. But you can't just take a civilian prisoner, shout "He's a spy!" and shoot him right there. You can take a civilian prisoner and hand him over to the MPs, and a tribunal can determine the fate of that civilian. If the civilian was not part of an organized force but was shooting at your soldiers, that civilian could face murder charges, and therefore could face the death penalty if your laws allowed the death penalty.

The revelation that an person is a spy does not entitle any soldier to summarily execute that person. Of course, on the real battlefield soldiers sometimes do summarily execute prisoners, or surrendering enemy soldiers, but they violate the Geneva Conventions when they do...that is, they commit murder. Now, since this is a battlefield the likelihood of being prosecuted for these murders is a lot lower than if they shot their neighbor back home.

Of course, this only applies to prisoners, or people attempting to surrender. If a civilian is shooting at you, you can legally shoot back, just as you could against enemy soldiers. If that civilian stops shooting at you and starts running away, you can still keep shooting. It's only when you take the civilian prisoner that it matters. An enemy soldier POW can't be tried for murder just because he shot a dozen of you. An enemy civilian prisoner can.
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  #27  
Old 09-27-2007, 03:15 PM
Jonathan Chance Jonathan Chance is online now
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Irregular combatants, such as civilian guerillas or soldiers out of uniform for the purposes of deception, can be (but might not be) considered francs-tireurs and thus are liable to execution upon capture according to the laws of war, at least following WWII.

The Wilhelm List trial in Nuremburg held that "We are obliged to hold that such guerrillas were francs tireurs who, upon capture, could be subjected to the death penalty. Consequently, no criminal responsibility attaches to the defendant List because of the execution of captured partisans..."

In short, it was not a war crime for List to have executed captured prisoners who did not meet the status of POW. Captured soldiers under arms would (should) not be treated this way. But guerillas and suchlike can (and have) been.

Wiki for the Hostages Trial (that concerned List): http://en.wikipedia.org/wiki/Hostages_Trial

Wiki for the Laws of War: http://en.wikipedia.org/wiki/Laws_of_war
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