A member of the armed forces of a Belligerent Party who gathers or attempts to gather information in a territory controlled by the enemy is not considered a spy if, while so acting, he is in the uniform of his armed forces.
- This Rule is based on Art. 46 (2) of AP/I.
- Aerial warfare presents unique circumstances as regards espionage (see Rule 123 and Rule 124). Generally, it is the marking of the aircraft, or other characteristics (such as the electronic signals transmitted by the aircraft), which determine whether the operation is covert (“clandestine”), or is carried out under false pretences. The wearing of civilian clothing by military members of the aircrews in no way affects the nature of the flight. Thus, members of military aircrews wearing civilian clothing in properly marked military aircraft are not spies (see the Commentary on Rule 117). However, if captured, the non-wear of the uniform may put them at risk of not being accorded POW status (see Rule 117).
- By the same token, wearing a military uniform in an aircraft engaged in covert (“clandestine”) operations does not shield aircrews from being treated as a spy because the uniform worn in no way diminishes the covert (“clandestine”) nature of the operation.
- Art. 46 (2) of AP/I: “A member of the armed forces of a Party to the conflict who, on behalf of that Party and in territory controlled by an adverse Party, gathers or attempts to gather information shall not be considered as engaging in espionage if, while so acting, he is in the uniform of his armed forces.”
Categories: R: General Rules