CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ QUESTIONS OF INTERNATIONAL HUMANITARIAN AND HUMAN RIGHTS LAW … cannot be directed against those persons on the adverse side who are responsible for the earlier unlawful conduct. For this reason, IHL has introduced rules to limit this option, and also to categorically prohibit it against any protected persons and objects. 44 The prohibition is reaffirmed especially in relation to civilians and civilian objects. 45 Additionally, in armed conflicts of a non-international character, belligerent reprisals pose a legal problem as well. As this practice has been evolved in conflicts between states, their legitimate applicability in non-international conflicts is questioned. Text of international treaties do not make a reference to it, sources of scholarly literature argue that it is not a possibility, and there is a consensus about existing customary norm denying this. Rule 148 recognised by the ICRC study on customary law clearly states: “Parties to non-international armed conflicts do not have the right to resort to belligerent reprisals”. 46 As the tactics and methods of IS make a distinction between military and civilian persons and objects very hard, intervening states shall not be entertaining the possibility of the employment of reprisals at all, as in the case of applicability of rules of international armed conflicts it would be very easy to slide into a legal violation, and in the case of applicability of rules of a non-international conflict it would be unlawful. And in both cases, at the same time, there are serious chances of non-legal risks present, demonstrated when analysing problems with collateral damage. Situation of IS Fighters When planning possible military operations against IS, one of the burning questions is the status of individuals the armed forces may encounter, most importantly the individual fighters of the IS. It is necessary to be able to determine possible legal actions against them – if needed – and especially important for European states, as they are under constant control of the European Court of Human Rights. In situations of armed conflict, whether internal or international, applicable laws permit capture and confinement of individuals for various reasons: for taking an active part in the hostilities or for performing of hostile activities which may pose a security risk. While provisions of international law do not impose absolute limitations on states in armed conflicts, they also provide for protection of individuals to prevent abuse of power by states. These protective norms have to be respected by states participating in any military operation against IS. The scope of protection provided by law depends on more factors. First, the qualification of the situation, second, the reason for the captivity. The different reasons which can result in a person being confined lead to the applicability of different protective norms, even from different fields of international law, while domestic legal norms are always applicable, with international norms in the background. 5.

44 1 st Geneva Convention. Art. 46; 2 nd Geneva Convention. Art. 47; 3 rd Geneva Convention. Art. 13; 4 th Geneva Convention. Art. 33; 1 st Additional Protocol. Art. 20. 45 1 st Additional Protocol. Art. 51-55. 46 Customary IHL Study. p. 526.

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