COMBATANT IMMUNITY AND «LAWFUL ACTS OF WAR»: STATUS DETERMINATION AND THE LIMITS OF CRIMINAL PROSECUTION IN AN INTERNATIONAL ARMED CONFLICT

Abstract

The article provides a comprehensive analysis of the legal nature of combatant immunity (combatant privilege) and delineates its limits through the notion of «lawful acts of war» in an international armed conflict. The point of departure is the need for Ukraine’s wartime criminal justice to simultaneously ensure the inevitability of accountability for war crimes and to prevent the unlawful «criminalization of war as such,» that is, prosecution for lawful combat activities permitted under international humanitarian law (IHL). The study уточнює the content of the definition of «combatant» within the treaty architecture of IHL and distinguishes it from domestic social-law categories, in particular the status of a «combat veteran/participant in hostilities.» It is argued that combatant immunity (combatant privilege) means the absence of criminal liability imposed by the adversary state for the mere fact of direct participation in hostilities and for those violent acts that constitute lawful acts of war; however, it does not extend to war crimes and does not legalize prohibited means and methods of warfare, including perfidy. The article further develops a methodology for the criminal-law «translation» of the rules on the conduct of hostilities into the language of war-crime offences, emphasizing an ex ante reconstruction of assessment: the relevant informational circumstances at the time of decision-making, feasible precautions taken, expected incidental civilian harm, and the mental element (intent/knowledge) are examined, alongside compliance with the «beyond a reasonable doubt» standard of proof. Particular attention is paid to the procedural consequences of prisoner-of-war status, the significance of the «in case of doubt» safeguard, and the risks posed by the «grey zone» of participation in hostilities for status qualification and the limits of domestic criminal prosecution. The article formulates methodological guidelines for Ukrainian practice and outlines avenues for legislative improvement aimed at strengthening the procedural resilience of investigations and judicial proceedings.

Keywords: war crimes; armed conflict; combatant immunity; combatant; combatant privilege; criminal law; criminal justice; Сriminal Procedure Code of Ukraine (CPC of Ukraine); international humanitarian law; perfidy; proportionality; distinction; prisoner of war status (POW status); precautions; international standards; standard of proof; liability.