Rule 122
A member of the armed forces of a Belligerent Party who, having been engaged in espionage rejoins his own forces but is subsequently captured by the enemy, may no longer be prosecuted for his previous acts of espionage.
[Commentary]
- This Rule is based on Art. 31 of the 1907 Hague Regulations,[664] as well as on Art. 46 (4) of AP/I.[665] See also Para. 12.9 of NWP.[666]
- Under Rule 122, a member of the armed forces who has engaged in espionage achieves immunity for such acts if this person manages to rejoin his own armed forces. Upon subsequent capture, the individual can no longer be prosecuted for his previous acts (although he may be prosecuted for a new act of espionage committed after having rejoined his own armed forces).
- Rule 122 does not apply to civilians who have engaged in espionage and managed to return to friendly territory, but were later captured; they remain subject to prosecution under domestic law for all acts of espionage.
- Art. 31 of the 1907 Hague Regulations: “A spy who, after rejoining the army to which he belongs, is subsequently captured by the enemy, is treated as a prisoner of war, and incurs no responsibility for his previous acts of espionage.”
- Art. 46 (4) of AP/I: “A member of the armed forces of a Party to the conflict who is not a resident of territory occupied by an adverse Party and who has engaged in espionage in that territory shall not lose his right to the status of prisoner of war and may not be treated as a spy unless he is captured before he has rejoined the armed forces to which he belongs.”
- Para. 12.9 of NWP, third and fourth sentence: “Should a spy succeed in eluding capture and return to friendly territory, he is immune from punishment for his past espionage activities. If subsequently captured during some other military operation, the former spy cannot be tried or punished for the earlier act of espionage.”
Categories: R: General Rules
