The celebrated military historian, John Keegan, once wrote that ‘Soldiers are not as other men’. This sentiment certainly holds true in international law. The foundations of international humanitarian law rest on the premise that there is a distinction between combatants and civilians, with the former being liable to attack (unless hors de combat) and the latter being protected (unless directly participating in hostilities).
In human rights law, the European Court of Human Rights has held that the interpretation and application of the European Convention of Human Rights can be different when being applied to members of state armed forces than to civilians (Engel v The Netherlands (No 1) (1976) 1 ECtHR 647).
In international criminal law too, the fact that someone has been fighting has implications. In the Erdemović case, for example, Judges McDonald and Vohrah found that a soldier who had taken part in a firing squad under threat to his own life could not plead duress because ‘soldiers or combatants are expected to exercise fortitude and a greater degree of resistance to a threat than civilians, at least when it is their own lives that are being threatened.’
In my new book, Fighting and Victimhood in International Criminal Law (Routledge, 2018), I explore how the act of fighting, or having been involved in fighting, makes a difference in the context of when an individual can qualify as a victim of an international crime.
Issues explored include: how have international criminal courts and tribunals untangled lawful casualties of war from victims of war crimes? How have they determined who is a member of a non-state armed group and who is not? What crimes can those who fight be victims of during hostilities? When does it become relevant in international criminal law that an alleged victim of crime was a person hors de combat rather than a civilian? Can war crimes be committed against members of non-opposing forces? Can persons hors de combat be victims of crimes against humanity? Can those who fight be victims of genocide? What special considerations surround peacekeepers and child soldiers as victims of international crimes?
I argue that while those who fight can be victims of war crimes, crimes against humanity and genocide, the fact that they have been fighting can have implications concerning their victimhood, and these implications have not always been adequately taken into account by international criminal courts and tribunals.