Chapter 3: 'The right to participate in hostilities': Combatant privilege vs criminal responsibility for members of organised armed groups during international and domestic criminal trials
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Combatants, i.e., members of the armed forces of a party to an international armed conflict, have the right to directly participate in hostilities. This so-called combatant privilege applies both in case of domestic criminal law and before international criminal courts and tribunals. Combatants cannot be prosecuted for their mere participation in the fighting, so long as they act in accordance with international humanitarian law (IHL). Those fighting on behalf of the parties to a non-international armed conflict do not enjoy such an immunity from criminal prosecution by virtue of IHL. However, as a result of the limited jurisdiction of international criminal courts and tribunals, and due to the treatment of IHL as legitimising otherwise unlawful conducts, members of organised armed groups are effectively afforded a status akin to combatant privilege. Domestic criminal trials treat members of non-State actors differently, also when they do comply with IHL. The present chapter analyses the treatment of participation in hostilities by members of armed non-State actors and the interplay between IHL and (international) criminal law in this regard.

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