Practice Relating to Rule 107. Spies
France’s LOAC Manual (2001) defines spies with reference to Article 29 of the 1907 Hague Regulations.
The manual further provides:
Trained, equipped and organized for carrying out special operations in the enemy zone, commandos, whatever their mission and their weapons, must respect the law of armed conflicts. In case of capture, they are protected by prisoner-of-war status if they comply with the definition of a combatant specified by Article 4 of Geneva Convention II of 12 August 1949 relative to the Treatment of Prisoners of War.
Under the heading “Intelligence activity”, the manual restates, inter alia, Article 46(2) of the 1977 Additional Protocol I and further provides:
The gathering of information, compatible with the law of armed conflicts, is based on the distinction which is to be made between permitted and prohibited methods. Gathering of information of military value in zones dominated by the enemy is lawful if it is carried out in uniform and without concealing the status as combatant. Gathering of information of military value in zones dominated by the enemy is considered as espionage if it is carried out under false pretexts or by acting in a deliberately clandestine manner. A combatant captured while engaging in espionage (i.e.
who conceals his status as combatant) loses his right to prisoner-of-war status and can be convicted by the tribunals of the State on whose territory he is captured. The captured combatant, if he carried out a lawful intelligence mission, is entitled to prisoner-of-war status and to the protections linked to it.
France’s LOAC Teaching Note (2000) states: “Spies … are not combatants and have no right to prisoner-of-war status.”
France’s LOAC Manual (2001) states: “A spy has no right to prisoner-of-war status and is subject to the national legislation of the territory where he is captured.”