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).