Combatant Privilege in Asymmetrical Warfare: A Reexamination of Belligerent Equality

Abstract

The legal equality between belligerents is one of the core principles of International Humanitarian Law (“IHL”). Belligerent equality standardly entails that IHL rules regulating the conduct of hostilities apply symmetrically among enemy belligerents regardless of whether they are fighting war that is ad bellum lawful or unlawful. It is a corollary of the principle of separation between jus ad bellum and jus in bello. Belligerent equality has been at the center of contemporary debates regarding the regulation of asymmetrical conflicts and “new wars.” In this Article, I argue, first, that despite the fact that IHL rules apply symmetrically to different belligerents, there is a deeper sense in which this regime treats enemy belligerents unequally—namely, by conferring only some of them the status of combatants. In effect, combatant “privilege” (or “status”) is distributed unevenly among participants in armed conflicts. I hereby offer here a unified account of combatant privilege that can, on the one hand, explain some of the normatively appealing features of the existing IHL regulation while, on the other, provide some critical bite to advance particular legal reforms. Second, I argue that combatant privilege ought not to be construed as a legal right (permission) to fight but, rather, as a legal immunity against being prosecuted for acts of war in compliance with IHL. I identify an underlying rationale that accounts for the distribution of combatant privilege as a matter of law, and explains this distribution on the basis of deeper normative considerations. Ultimately, I suggest that such privilege is grounded on the epistemic credentials of an individual’s decision to take part in armed conflict (the evidence he or she had at her disposal). These credentials are largely determined by the function of authoritative directives, the empirical context in which decisions to resort to force are adopted, including the cognitive biases at play, as well as the salience of the justness of particular wars. Accordingly, the argument I favor accounts for the privilege of state armed forces by reference to the normative weight of state authorization in the empirical conditions in which individuals must decide to take part in asymmetrical wars—including, notably, the persisting influence of cognitive biases and the circumstances that constitute the “fog of war.” These same considerations, in turn, account for the unequal treatment traditionally afforded to non-state armed groups under IHL. They also account for particular instances of non-state forces being conferred this privilege, such as individuals taking part in a levée en masse, or fighting national liberation wars, and even those militias and resistance movements acting as de facto organs of the state. Finally, I suggest that this argument accounts for the conditions under which participants in asymmetrical wars, such as foreign fighters, members of private military security companies, and child soldiers, ought to be conferred some form of immunity for taking part in armed conflict. The resulting framework not only identifies the precise normative basis of combatant privilege, its connection with ad bellum considerations, and its implications as an immunity against prosecution; it also brings IHL more in line with its fundamental normative commitments concerning agency, responsibility, and the reduction of wrongful harm.