CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ QUESTIONS OF INTERNATIONAL HUMANITARIAN AND HUMAN RIGHTS LAW … as binding customary law under all circumstances, 11 as they set up minimum standards which are also basic rules of international human rights law, a special field of international law dealing with protection of individuals not only during wartime but in general, under all circumstances. Additionally, international human rights law has been seriously developed on the level of international law after the second World War, while some important elements of it have always been present in IHL, for example early legal provisions for the protection of property of civilian population (but also of combatant individuals) in the 1899/1907 Hague regulations. 12 The rules we can find in Common Article 3 have later been reaffirmed and developed by numerous conventions of international human rights law, which are applicable both in times of peace and conflicts, either international or non-international conflict situations. 13 Currently the most important sources of international human rights law are the 1966 International Covenant on Civil and Political Rights, adopted in the framework of the UN, 14 and for European states the European Convention on Human Rights, adopted in 1950. 15 The latter is guarded by the Strasbourg-based European Court of Human Rights, which has a standing jurisdiction over member states of the Council of Europe, meaning that their actions, in case of violation of their human rights obligations, may be examined by the Court. This is especially important in the case of a foreign involvement by European states as they are under constant scrutiny by this judicial forum. The legal norms of international humanitarian law and human rights law supplement each other. That means that even if a state refuses to admit that a domestic conflict has reached the level of an armed conflict and as a result, refuses to apply the norms of international humanitarian law, legal protection to persons still exists. It is important to emphasise, that there is no situation without any applicable legal regime. As the IS has represented a systematic, organised resistance towards the government in Iraq, and the situation in Syria has clearly been civil war, this problem may not seem to be a serious question at this point. But considering the fact and the possible future, that IS, its affiliated or similar organisations may become more active in other states, this problem may have to be re-evaluated with other territories in the future (e.g. Libya). The current situation is determined by the fact that international human rights law and international humanitarian law are all applicable to the territories of Iraq, Syria. The affected states are all party to all the relevant international human rights treaties and many of the international treaties related to international humanitarian law, which contain binding legal norms applicable to both international and non-international conflicts. Some of the particularities will be addressed below, when we look over single IHL issues, one by one. 11 Customary IHL Study. pp. 165, 306, 308, 311, 315, 320, 323, 334, 344, 352, 397, 400, 409, 442, 475, 496, 498, 526. 12 Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 29 July 1899. Art. 4, 23 Para (g), 28, 46-56; Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907. Art. 4, 23 Para (g), 28, 46-56. (Hague Regulations). 13 DOSWALD-BECK, Louise, Human Rights in Times of Conflict and Terrorism, Oxford University Press, 2011, pp. 5, 122. 14 International Covenant on Civil and Political Rights. New York, 16 December 1966, UNTS vol. 999. (Covenant). 15 Convention for the Protection of Human Rights and Fundamental Freedoms. Rome, 4 November 1950, ETS No. 005. (European Convention).

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