Guest Post: Henderson & Cavanagh on Self-Defense & The Privilege of Combatancy
[Jens David Ohlin is Professor of Law at Cornell Law School.]
Ian Henderson and Bryan Cavanagh have hit the nail on the head in identifying a crucial and under-theorized question that goes right to the basic structure of the laws of war. I am in complete agreement that invocations of self-defense during armed conflict are both confused and confusing.
There is already the frequent problem of conflating individual self-defense (in the criminal law sense) with collective self-defense (jus ad bellum and article 51 of the UN Charter). In addition, one often hears talk of a soldier’s right of self-defense – a claim that is mostly redundant since soldiers hold the privilege of combatancy and have no need to invoke a separate justification for their behavior. A justification like self-defense serves to negate the wrongdoing of the act, but a privileged soldier who kills a legitimate target has committed no wrongful act that requires negating. Consequently, the justification of self-defense is only relevant during armed conflict when the defender is unprivileged, such as a civilian who has no right to participate in armed conflict. If the civilian is challenged by an enemy combatant who refuses to obey the principle of distinction, then the civilian is entitled to kill the soldier in self-defense. If a soldier is attacked by a civilian, the soldier can legitimately kill the civilian because he is directly participating in hostilities; no claim of self-defense is required because the privilege applies.
Understanding self-defense from a civilian’s perspective is more difficult. Consider the complicated problem of a civilian who kills an enemy soldier who is in the process of killing the civilian as collateral damage during a lawful attack against a military objective. In that scenario, does the civilian have the right of self-defense? In the criminal law we usually view the right of self-defense as only applicable against unlawful attacks, but in this case the attacking soldier’s original assault is lawful under LOAC as long as the anticipated collateral damage is not disproportionate to the value of the military objective. If the envisioned collateral damage is disproportionate, then the attack is unlawful. So, in that case, the right of the civilian to exercise self-defense would depend entirely on the civilian making the correct assessment of not only the collateral damage, but also the anticipated collateral damage viewed — not from his perspective – but rather from the perspective of the person attacking him! A greater conceptual riddle I cannot fathom. This would be a nightmare for a criminal court, international or domestic, to adjudicate.
The deeper issue imbedded in Henderson and Cavanaugh’s research is the application of the privilege of combatancy to non-international armed conflicts. The standard textbook answer is that the privilege is inapplicable to NIAC because the very concept of “combatant” is part of the legal architecture of IAC. Under this view, a NIAC can only have government forces and rebels – never combatants per se.
To my mind, this statement is often reflexively repeated in the literature without due consideration for whether it is always and universally true. Few individuals have challenged it, though Henderson himself is one of the few to have seriously studied the issue, writing articles suggesting that government forces in NIACs are privileged belligerents and that prosecuting them domestically would violate the laws of war. Henderson is to be commended for tackling an understudied but vital topic.
However, I might go even further than Henderson and Cavanagh, whose view is largely asymmetrical because it entails that only government forces (but never rebels) are entitled to the privilege. In some circumstances I think we are too hasty to conclude that rebels can never be privileged (though I will subsequently qualify this statement below).
The standard argument for why rebels can’t be privileged is the last clause of Common Article 3 of the Geneva Conventions, which states that the protections therein do not alter the legal status of the parties. Most people take from this statement the assumption that rebels, though protected from torture and other forms of ill treatment, remain unprivileged. But Common Article 3 merely preserves the status quo, so the real question is the status of rebels prior to Geneva.
In the 19th Century, the classification scheme between conflicts was not as simplistic and dualist as today’s binary classification between IAC and NIAC. The great publicists believed in a plethora of different type of internal conflicts, including disturbances, rebellions, and insurrections. At some point such conflicts could ripen into full-blown civil wars that became the functional equivalent of international armed conflicts and triggered much of the machinery of international law. It was therefore not true that civil wars were solely the province of sovereign prerogative; they could be matters of international concern.
Of course, this doesn’t mean that rebel leaders couldn’t be prosecuted for treason if the rebels were vanquished by the government. They certainly could, because they violated an oath of loyalty to their own government when they decided to rebel. But as long as the rebels met the functional criteria for lawful belligerency (carrying arms openly and following the customs of war) wholesale prosecutions of regular rebel soldiers for domestic murder was disfavored – something that didn’t even happen during the U.S. Civil War.
The important point here is to keep separate the crime of treason from the crime of murder – which are based on totally different foundations. Treason is a betrayal of one’s duty of loyalty. The privilege of combatancy negates the unlawfulness of the killing that would otherwise be murder, but it does nothing to negate the betrayal that stands at the core of treason. And the same thing is true of IAC as well. If an American citizen joins the Russian Army and fights as a uniformed solider against the United States, he could be prosecuted for treason but the privilege of combatancy would prevent the United States from prosecuting him for murder committed on the battlefield.
All of this suggests that the modern classification scheme has lost the richness of these older conceptual categories. And we might have been too hasty in concluding that rebels can never enjoy the privilege of combatancy. In some situations it may be logically coherent to extend the privilege of combatancy to them during some non-international armed conflicts – and at the same time prosecute them for treason and other loyalty-based offenses if they have violated a pertinent duty or oath to their sovereign.