Events Contact Information

The Erik Castrén Institute of International Law and Human Rights
Faculty of Law
P.O. BOX 4 (visiting address: Yliopistonkatu 3)
Tel: +358 (0)29 4123140


Why is Killing in War (Not) Murder? Combatant’s Privilege in International and Domestic Law

ECI Brown Bag Seminar by Dr Rain Liivoja
Time: Wednesday 30 April 2014 at 12.15-14.00
Venue: Room P667 (Yliopistonkatu 3, Porthania 6th floor)

The event is open to everyone. Registration is not required.

Abstract: The function of the armed forces, it has been bleakly said, is to kill people and break things. While international law sets strict limitations on the exercise of this function it accepts the basic premise that combatants have the right to participate directly in hostilities. This notion is known as ‘combatant’s privilege’ and, in the words of the Inter-American Commission on Human Rights, it ‘is in essence a licence to kill or wound enemy combatants and destroy other enemy military objectives’. Yet, members of the armed forces are generally subject to their own national criminal law while engaged in military operations, even when engaged in hostilities overseas. This leads to a curious situation: a member of the armed forces who, in complete conformity with international law, kills an enemy combatant, prima facie satisfies all the elements of the crime of murder.

This presentation explores this conundrum in three parts. First, it considers the nature and scope of combatant’s privilege under international law, arguing that although the principle is central to the law of armed conflict, it is not well conceptualised. Second, the presentation looks at the diverse ways of implementing combatant’s privilege in domestic legal systems. The third and final part of the presentation tries to find a place for combatant’s privilege in criminal law theory and to figure out whether it is a justification, an excuse or something else altogether.

Rain Liivoja is a Senior Lecturer at Melbourne Law School and Project Director for the Law of Armed Conflict at the Asia Pacific Centre for Military Law. He is also an Affiliated Research Fellow of the Erik Castrén Institute of International Law and Human Rights, where he was based before joining Melbourne Law School.