CYIL vol. 8 (2017)

TAMÁS LATTMANN CYIL 8 ȍ2017Ȏ relations, meaning that its practical existence does not lead to the recognition of a state, not even under our present analysis. The IS is active on the territory of Iraq and Syria, while some of its affiliated armed groups operate in other states. When the organisation conducts hostilities against the armed forces of the states on whose territory it is active, these beingthe armed forces of Iraq, the Iraq Security Forces (ISF) or Syrian Armed Forces (SAF), it amounts to an armed conflict of a non-international character at most. A non-international armed conflict means a situation where no clash between sovereigns occur, and only the territory of only one state is affected by the hostilities conducted by an organised armed force having control over some parts of the territory. This is the current situation in Iraq and Syria (and becomes applicable to any other regions where IS or its affiliated groups grow to such influence), the legal consequence of which will be elaborated in the next chapter. Any armed clashes between the IS and other non-state actors (rebel groups in Syria, or the Kurdish armed forces in Iraq) are similarly qualified as non-international armed conflicts. This qualification issue gets more complicated in the theoretical situation if IS uses the territory under its control within one state to support its combat activities against the government in another one, as we could see in the case of Iraq and Syria. This question may become especially important because as a reaction, the armed forces of the other state may decide to continue their military action against the organisation by crossing the state borders, possibly claiming self-defence. While this does not change the status of IS or its fighters, the legal qualification of the situation will definitely change. The fact of a state using its military on the territory of another state turns the situation into an international armed conflict, based on the provisions of Common Article 2 of the Geneva Conventions. As we will see in the next chapter, it triggers the applicability of the rules of an international armed conflict, regardless of the motivation; the goal of the military activities on foreign soil and even the lack of any resistance from the other state’s armed forces does not have any relevance here. In that case the state crossing the border will have to respect laws applicable to international conflicts when conducting its military activities and encountering the other state’s armed forces or civilians on that territory. Additionally, as we will see later, this may have an effect on the treatment of fighters of the IS, but not the status of the organisation itself. 2.2 Qualification of the Situation in Case of Foreign Involvement The analysis above has outlined the qualification of the situation between the IS and the states the territory of which it has used. This qualification may change in the case of a foreign involvement, the idea of which has gained more and more support in international politics after the crimes of IS have more and more become known in the eyes of the public. 2 A foreign military involvement may be possible on various legal bases, but this study does not focus on this issue. 3 Depending on its legal basis, more qualifications are possible, while on the other hand, if the states wishing to intervene decide to act unlawfully, not basing their action on any adequate international legal base, the situation still has to be qualified to be able to

2 See inter alia : Report of the Office of the United Nations High Commissioner for Human Rights on the human rights situation in Iraq in the light of abuses committed by the so-called Islamic State in Iraq and the Levant and associated groups. 13 March 2015, Geneva. A/HRC/28/18. 3 For a complete overview of these arguments, see the study by Veronika Bílková in this volume .

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