CYIL vol. 8 (2017)

TAMÁS LATTMANN CYIL 8 ȍ2017Ȏ 5.1 Situations that Require the Application of Rules of Non-International Armed Conflicts In situations of intervention with consent of the state the territory of which is affected, being Iraq or Syria, the legal questions regarding individuals is significantly simpler than in situations when rules of international armed conflicts are applicable. In an internal armed conflict all individuals are subject to the jurisdiction of the one state on the territory of which the hostilities take place. This is not changed by the fact that a foreign armed force is active on the territory, as long as it operates with consent of the state, practically representing the consenting state. This practically means that the fundamental distinction between the legal categories of combatants and non-combatants is not applicable; prisoner of war status is not to be invoked by anybody, as these categories apply only in international armed conflicts. The few possible ways of these becoming relevant are demonstrated in the next chapter but generally, and most probably this is not an aspect to be calculated with. Under the regime of law of a non-international armed conflicts, actions of individuals or organisations engaging in hostilities against the state or each other constitute a common crime 47 that is punishable under domestic law, and usually states uphold their ambition and will to do so even if the circumstances and realities of the given situation do not permit them to do so. This is strengthened by the provisions of the 2 nd Additional Protocol, which provide guarantees to protect confined individuals during and after the hostilities, 48 and the one that attempts the application of amnesty for direct participation in an internal armed conflict while not obliging states to do that. 49 This provision is adopted as a tool of possible reconciliation after the hostilities, but under no circumstances can it be interpreted as providing identical immunity to individuals directly participating in hostilities, like to legitimate combatants in an international armed conflict (see in the next part). 5.2 Situations that Require the Application of Rules of International Armed Conflicts In case of the applicability of the rules of international armed conflicts, which may occur in the case of conducting military activities without the consent of the territorial state, the most important differentiating aspect between possible statuses of individuals is the possibility of holding them responsible for the actions they had taken before getting captured or have took during the hostilities. This seems to be the right approach in this situation, as all states engaged in military activities consider IS being a “terrorist organisation”, meaning the will to employ criminal law against them. According to the rules applicable in an international armed conflict, an individual who falls into the category of combatant is entitled to prisoner of war (POW) status when captured. This status means the widest possible legal protection of individuals who had previously engaged in hostilities. Prisoners of war enjoy impunity for any harmful actions in accordance with the laws of war which they had performed. This means that, on this ground, they can only be held responsible by the captive state for their unlawful actions performed during combat; and rules of IHL set up legal guarantees which have to be respected by the captor. 50 47 Costumary IHL Study. p. 13. 48 2 nd Additional Protocol. Art. 5, 6. 49 Ibidem. Art. 6 Para 5. 50 The fundamental rules which contain the basic principles and guarantees of this possibility can be found in

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