Jens David Ohlin (Cornell University - School of Law) has posted The Combatant's Privilege in Asymmetric & Covert Conflicts on SSRN. Here is the abstract:
In armed conflicts against extraterritorial non-state actors, covert action has quickly moved from the exception to the rule. U.S. military and paramilitary forces are engaged in global drone and infantry deployments that remain officially unacknowledged by the government. However, the literature has lagged behind in not questioning how basic principles of the law of war — whose architecture depends on the link between individual combatants and the political entities they fight for — apply in covert action, which obscures and denies this link. This Article provides a deeper analysis of covert action by concentrating on the basic building block of the law of war: the combatant's privilege — the right of lawful belligerents to kill in wartime free from criminal liability. In order to analyze this question, this article first interrogates a deeper orthodoxy of the field: that the combatant's privilege never applies in non-international armed conflicts. Drawing on historical and conceptual analysis, this Article concludes that the orthodox view is both simplistic and exaggerated; the more subtle answer is that government forces and rebels can qualify for the privilege in some situations, though governments retain the right to prosecute vanquished rebels for treason (but not murder). Applying this insight to asymmetric conflicts against terrorist networks, the privilege attaches to any side that meets the classical requirements for lawful belligerency: wearing a fixed emblem, carrying arms openly, a responsible command, and respect for basic customs of warfare — a standard that terrorists inevitably fail. However, government forces also fail the standard when they participate in covert action, regardless of whether the force is exercised by CIA operatives or uniformed soldiers of the Armed Forces. Individual soldiers become legitimate combatants only when they carry their arms openly and their state asserts the privilege on their behalf — a logical impossibility when the state refuses to acknowledge the use of force in the first place.