CYIL vol. 8 (2017)

TAMÁS LATTMANN CYIL 8 ȍ2017Ȏ some of them have binding power because of being a customary norm. If applied carefully, this can be very useful. The relevance of this question has given birth to a very important study by the International Committee of the Red Cross (ICRC) concerning customary law, which will also be used during this analysis as a reference. 7 The commentaries published by the International Committee of the Red Cross 8 are of essential importance when it comes to evaluating and interpreting the texts of these international treaties. Though the comments are not binding per se , they will be used through this analysis – together with other sources of scholarly literature – to adapt written legal norms to practical realities of the complex situation of military operations against the Islamic State. The main goal of international humanitarian law is to set up protective rules for all possible actors of an armed conflict. As we will see later for example, protection of prisoners of war is provided by the 3 rd Geneva Convention, while civilians are protected by the 4 th Geneva Convention of 1949. These protective rules are applicable to armed conflicts regardless of factors like legitimacy of the use of force, political or legal reasons etc. Their goal is strictly to lessen the damages caused by the hostilities that occur during conflicts. The only relevant factor is the qualification of the conflict, as demonstrated in the previous sub-chapter. International armed conflicts require the application of the whole system of laws of international humanitarian law, while a non-international armed conflict is not regulated in such detail. The reason behind this is that traditionally, the dominant view in states’ thinking was that internal conflicts are domestic matters of states, as they do not affect inter-state relations, especially if hostilities are directed against the legitimate government. 9 As a consequence, originally only Common Article 3 of the 1949 Geneva Conventions was made applicable to internal conflicts (which sets up some very basic, human rights-related constraints), while scholarly literature and professional practice has tried to determine the applicability of “classic” warfare rules to these situations. 10 Later the 2 nd Additional Protocol of 1977 amended it, significantly extending the amount of applicable rules. Of course there are some common elements – for example the general prohibition of violence to life and person, mutilation, cruel treatment and torture, outrages upon personal dignity, humiliating and degrading treatment is included in Common Article 3, also accepted 8 PICTET, Jean, Commentary on the Geneva Conventions of 12 August 1949. Volume I, ICRC, 1952. (Commentary. Vol. I.); PICTET, Jean, Commentary on the Geneva Conventions of 12 August 1949. Volume II, ICRC, 1960. (Commentary. Vol. II.); DE PREUX, Jean, Commentary on the Geneva Conventions of 12 August 1949. Volume III, ICRC, 1960. (Commentary. Vol. III.); COURSIER, Henri, UHLER, Oscar, Commentary on the Geneva Conventions of 12 August 1949. Volume IV, ICRC, 1958. (Commentary. Vol. IV.); SANDOZ, Yves, SWINARSKI, Christophe, ZIMMERMANN, Bruno (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC – Martinus Nijhoff Publishers, 1987. (Commentary. Additional Protocols). 9 CULLEN, Anthony, The Concept of Non-International Armed Conflict in International Humanitarian Law, Cambridge University Press, 2010. p. 8. 10 For examples see: MERON, Theodor, International Criminalization of Internal Atrocities, 89 Am. J. Int’l L. 577 1995. p. 554-577; BOND, James E., Application of the Laws of War to Internal Conflicts, 3 Ga. J. Int’l & Comp. L. 345 1973; VEUTHEY, Michel, Implementation and enforcement of humanitarian law and human rights law in non-international armed conflicts: the role of the International Committee of the Red Cross, 33 Am. U. L. Rev. 83 1983-1984. 7 HENCKAERTS, Jean-Marie – DOSWALD-BECK, Louise (eds.), Customary International Humanitarian Law, ICRC-Cambridge University Press, 2005. (Customary IHL Study).

262