5cjxburmr

Although spying and sabotage are not prohibited by the law of war, acting clandestinelyor under false pretenses could, in some circumstances, constitute “feigning a protected status,”one of the elements of perfidy. 357 Persons engaged in these activities and commanders whoemploy them should take special care not to kill or wound by resort to perfidy.4.17.5 Spying and Sabotage – Forfeiture of the Privileges of Combatant Status. Althoughthe law of war allows belligerents to employ spies, saboteurs, and other persons engaged insecretive hostile activities behind enemy lines, the law of war also permits belligerents to takeadditional measures to defend against these persons.These individuals, by acting clandestinely or under false pretenses, fail to distinguishthemselves as combatants generally must do. 358 Thus, persons otherwise entitled to privileges ofcombatant status, including POW status, forfeit their entitlement to those privileges whileengaged in spying, sabotage, or other hostile, secretive activities behind enemy lines. 359Although not explicitly reflected in the GPW, this understanding was the general understandingat the 1949 Diplomatic Conference 360 and is reflected in other treaties, 361 judicial decisions, 362military manuals, 363 and scholarly works. 364the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 UNTS 280,288; ICTY STATUTE arts. 2-5; ICTR STATUTE arts. 2-4. Consider ROME STATUTE arts. 5-8.356 See HAGUE IV REG. arts. 24, 29-31 (governing the classification, conduct, and treatment of spies). Consider AP Iart. 46 (same).357 See § 5.22.1 (Definition of Perfidy).358 Refer to § 5.14.5 (Carrying Arms Openly and Wearing of Distinctive Emblems by the Armed Forces toDistinguish Themselves From the Civilian Population).359 Compare § 4.6.1.3 (Application of GPW 4A(2) Conditions to the Armed Forces of a State).360 II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 509 (noting the UK representative’sstatement that “spies … according to general opinion, should not have the benefits of the privileges accorded by” theGPW); II-A FINAL REPORT OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 621 (Norwegian representativeexplaining that “Saboteurs could not of course claim protection under the Prisoners of War Convention; they shouldnevertheless be protected against criminal treatment and torture.”).361 See HAGUE IV REG. art. 31 (impliedly contrasting the position of a spy captured while spying with 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.”). Consider AP I art. 46 (1) (“Notwithstanding anyother provision of the Conventions or of this Protocol, any member of the armed forces of a Party to the conflictwho falls into the power of an adverse Party while engaging in espionage shall not have the right to the status ofprisoner of war and may be treated as a spy.”); AP I art. 44(4) (“A combatant who falls into the power of an adverseParty while failing to meet the requirements set forth in the second sentence of paragraph 3 [certain obligations todistinguish himself during military engagements] shall forfeit his right to be a prisoner of war, but he shall,nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war by the ThirdConvention and by this Protocol. This protection includes protections equivalent to those accorded to prisoners ofwar by the Third Convention in the case where such a person is tried and punished for any offences he hascommitted.”).362 See, e.g., Ex parte Quirin, 317 U.S. 1, 31 (1942) (describing spies as “familiar examples of belligerents who aregenerally deemed not to be entitled to the status of prisoners of war”); Mohamad Ali and Another v. PublicProsecutor [1969] A.C. 430 (P.C.) (appeal taken from U.K.), LEVIE, DOCUMENTS ON POWS 766 (“[A]ppellants, ifthey were members of the Indonesian armed forces, were not entitled to be treated on capture as prisoners of war155