Berkeley Law

This paper treats the question in political theory and international law of whether non-uniformed fighters ought to enjoy combatant privileges. It does so by exploring our treatment of collective violence, and of citizen responsibility for state action. Consider two forms of involvement in collective violence. On the criminal law model, an individual can be punished for violent acts committed only by confederates, so long as he was part of a joint criminal enterprise. On the law of war model, by contrast, an individual cannot be punished for killings and violence committed on the battlefield (subject to certain humanitarian restrictions), so long as the killings are committed as part of international hostilities, and independent of the legitimacy of the case for war. Reconciling these two models means probing the logic of participation in both violence and politics.

I argue for extending combatant privileges to some non-uniformed combatants who are pursuing what can be termed "political" objectives, provided they observe other humanitarian constraints, roughly along the lines of Article 44 of the First Protocol to the Geneva Conventions. The reasoning that exculpates the regular soldier naturally extends to the non-uniformed combatant as well. While instrumental considerations do bear on non-uniformed combatancy, I argue that the basic question of non-uniformed combatant privilege has to be answered from within a theory of shared citizen responsibility for war. A corollary of this argument is that there is (very limited) conceptual room for holding liable soldiers fighting unjust wars by otherwise legal means.