Practice Relating to Rule 107. Spies
Section B. Status of spies
Australia’s Commanders’ Guide (1994) states:
The most notable exception to granting of PW [prisoner-of-war] status to enemy military personnel is to those individuals who are classified as spies … Such individuals are not entitled to PW status and may be tried as common criminals under the detaining power’s criminal code. It is important to note, however, that if military clothing is worn during such operations, the perpetrators are lawful combatants and are entitled to PW status.
Australia’s LOAC Manual (2006) states:
7.18 … A member of an armed force who is in territory controlled by an adverse party to a conflict gathering, or attempting to gather, information is not considered as a spy if that person is wearing a military uniform. Any person captured while engaging in espionage is not entitled to the status of prisoner of war (PW) and is liable to be tried by the civil courts of the adversary.
7.19 … Saboteurs in uniform are combatants and entitled to PW status if captured. Civilian saboteurs or saboteurs not in uniform are not so protected. Generally speaking, saboteurs are persons operating behind the lines of the enemy to commit acts of destruction. If they are operating in civilian clothing they are liable to be treated as spies.
7.20 Members of forces participating in acts of espionage or sabotage should wear uniform whenever possible while in enemy or enemy-occupied territory. Otherwise, they run the risk of being treated as spies if captured.
7.22 A person engaged in gathering intelligence and captured in an aircraft or vessel while dressed in civilian clothes may only be charged with espionage if they are engaged in such activities. However, the crew of an aircraft carrying spies cannot be treated as spies in the absence of clear evidence that they are spying.
The manual further states: “Protected personnel lose their protected status when … an otherwise protected person in an occupied territory is detained as a spy or saboteur.”
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
In its judgment in the Ohashi case
in 1946, Australia’s Military Court at Rabaul sentenced the accused to life imprisonment – subsequently commuted to two years’ imprisonment – for the execution of 18 civilian inhabitants of New Britain during its occupation by Japanese armed forces. The accused participated in the summary court which condemned the civilians, suspected of espionage, to death and also took part in their execution.