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?
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:
Also, from here : http://www.icrc.org/ihl.nsf/COM/380-600177?OpenDocument
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.
It can’t be a Hollywood invention - remember all those WW2 escape movies?
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.
Take me with you, I can see. I can see perfectly.
You have to remember that sometimes the enemy doesn’t care what the rules on being a spy are.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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?
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.
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.
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:
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.