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The Role of Judges in Identifying the Status of Combatants

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International humanitarian law facilitates legitimate human endeavours and safeguards social values in armed conflict. Persuasive standards of belligerent conduct ought to account for its peculiarities. Combatants make life-and-death decisions — e.g. the status of persons present in the battlefield — quickly and based on limited and often conflicting information. Judges tasked with reviewing such decisions must utilise legal presumptions. Arguably, some judicial rulings have created the impression that presumptive civilians under international humanitarian law become presumptive combatants under international criminal law. This need not be so, however. In case of doubt whether a victim was liable to attacks, in dubio pro reo does not require that he or she be considered an able-bodied, non-surrendering enemy combatant. It only requires that the victim be considered a civilian directly participating in hostilities, leaving the mandatory civilian presumption unaffected. International humanitarian law creates no mandatory presumption against direct participation in hostilities. Whereas combatants are duty-bound to treat a person with doubtful status as a civilian, they are not forbidden to treat a presumptive civilian with doubtful behaviour as a direct participant in hostilities. When reviewing the factual basis for combat decisions, judges must examine whether the relevant information was known or reasonably knowable to the decision-makers at the time. This necessitates a sound understanding of the realities of hostilities. Judges must avoid alienating reasonable and law-abiding combatants by holding them to unrealistic standards, such as a choice between self-sacrifice and criminal liability. Nor should judges risk undermining the legal protection of war victims by being unduly deferential to military commanders.


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