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4.17.5.1 Liability of Persons Not Captured While Spying for Previous Acts ofEspionage. Persons who qualify for the privileges of combatant status who engage in spying,and then return to friendly lines, incur no responsibility or liability for previous acts ofespionage. 365 Persons who have never qualified for the privileges of combatant status would notbenefit from this rule because they cannot regain a status that they did not receive in the firstplace. 3664.17.5.2 Cases of Doubt. During international armed conflict, should there be anydoubt as to whether persons suspected of committing a belligerent act and having fallen into thehands of the enemy are entitled to POW status, such persons are entitled to have their statusdetermined by a competent tribunal and should be treated as POWs pending thatdetermination. 367under the Geneva Convention when they had landed to commit sabotage and had been dressed in civilian clothesboth when they had placed the explosives and lit them and when they were arrested.”).363 2001 CANADIAN MANUAL 320(1) (“Generally speaking, persons engaging in espionage may be attacked and ifcaptured while doing so shall NOT have the right to the status of prisoner of war.”); 1992 GERMAN MANUAL 321(“Even if they are members of their armed forces, they do not have the right to the status of prisoner of war.”); 1958UK MANUAL 96 (noting that “regular members of the armed forces who are caught as spies are not entitled to betreated as prisoners of war”); 1956 FM 27-10 (Change No. 1 1976) 74 (“Members of the armed forces of a party tothe conflict and members of militias or volunteer corps forming part of such armed forces lose their right to betreated as prisoners of war whenever they deliberately conceal their status in order to pass behind the military linesof the enemy for the purpose of gathering military information or for the purpose of waging war by destruction oflife or property.”).364 LEVIE, POWS 82-83 (noting that “[e]ven individuals who fall within the categories specifically enumerated inArticle 4 are not entitled to prisoner-of-war status if, at the time of capture by the enemy, they were dressed incivilian clothes and were engaged in an espionage or sabotage mission behind enemy lines”); WINTHROP, MILITARYLAW & PRECEDENTS 769 (“A spy, under capture, is not treated as a prisoner of war but as an outlaw, and is to betried and punished as such.”).365 See HAGUE IV REG. art. 31 (“A spy who, after rejoining the army to which he belongs, is subsequently capturedby the enemy, is treated as a prisoner of war, and incurs no responsibility for his previous acts of espionage.”);LIEBER CODE art. 104 (explaining that “[a] successful spy or war-traitor, safely returned to his own army, andafterwards captured as an enemy, is not subject to punishment for his acts as a spy or war-traitor”); Rieger, DallozHebdomadaire (France, Cour de Cassation, Jul. 29, 1948), summarized in 44 AJIL 422 (1950) (“The court sustainedthe acquittal of a German national who, after mobilization as a German army officer, had been in France a spy and arecruiter of spies, but had not been apprehended until after he had rejoined the German Army and been demobilizedin Germany.”); In re Martin, 45 BARB. 142, 148 (New York County Supreme Court, Dec. 4, 1865) (Court directedthe release of a prisoner who “was not taken in the act of committing the offense charged against him, of being aspy. He had returned within the lines of the confederate forces, or had otherwise escaped, so that he was notarrested till after the confederate armies had surrendered, been disbanded and sent to their homes, with the promisethat they should not be further disturbed if they remained there and engaged in peaceful pursuits.”). Consider AP Iarts. 46(3), 46(4) (referring to persons who “engage in espionage in [the] territory” of a hostile party, and noting thata person “may not be treated as a spy unless he is captured while engaging in espionage”).366 See LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 424-25 (§161) (“But Article 31 applies only to spieswho belong to the armed forces of the enemy; civilians who act as spies, and are captured later, may be punished.”).Cf. HAGUE IV REG. art. 31 (referring only to a spy who rejoins “the army to which he belongs” in connection withprotection against subsequent prosecution).367 Refer to § 4.27.2 (POW Protections for Certain Persons Until Status Has Been Determined).156