CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ QUESTIONS OF INTERNATIONAL HUMANITARIAN AND HUMAN RIGHTS LAW … Additionally, POWs are entitled to leave captivity after the cease of hostilities, 51 which may become an effective obstacle to criminal proceedings against IS members. 5.2.1 Combatant Status of IS Members? Do IS members qualify for combatant status? At first, this questions may seem a bit unrealistic, but a deeper analysis demonstrates that it is not necessarily impossible. To gain combatant status, thus becoming eligible for the prisoner of war status, an individual has to be in a position or fulfils some criteria set by the 3 rd Geneva Convention. 52 The easiest way, the position of being a “member of the armed forces of a Party to the conflict” or a “member of militias or volunteer corps forming part of such armed forces” is not applicable to IS members, as the IS is not a state 53 and these persons do not belong to the forces of the states the territory of which is being affected by the intervention. The same argument is applicable to individuals belonging to some kind of volunteer corps, organized resistance movements, even if the conditions set by the Convention are met (being under responsible command, display of a distinctive sign, carrying arms openly, and conduct of the operations “in accordance with the laws and customs of war”), 54 as these organisations also have to belong to a state, a party to the Geneva Conventions. Still, exceptionally, there are two theoretically possible ways under the Geneva Conventions, and one under the 1 st Additional Protocol for IS fighters to gain POW status without fulfilling the condition of being regularly organised as an agent of the state affected, which makes the status of IS to some extent irrelevant regarding the rules applicable to its fighters in case of captivity by the intervening state. It is important to emphasise that these are options which are open to arguments. 1. The first option reflects the original intention of the drafters of the Convention, who have preferred providing protection to individuals while trying to minimize the effects of possible political considerations of states regarding to recognition of another state. Thus, POW status is also given to individuals who serve as “members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power”. 55 If IS fighters are active as part of an organised armed force, they may be individually entitled to POW status, regardless of the status of the IS. To tackle this, we can argue that – using a restrictive, textual interpretation of the Convention’s text – this provision applies only to situations of unrecognised governments, not unrecognised states. Another possible argument against this is questioning the “organised armed force” nature of IS forces, additionally pointing out that the required combatant criteria are not properly met (e.g. distinctive signs). 2. The second option exists as the Convention respects the liberty and the free will of individuals to defend their country on the level of international law, regardless of any domestic legal provisions. Thus, POW status is also granted to the participants of a so-called “levee en masse”, meaning the “inhabitants of a non-occupied territory, Chapter III. “Penal and Disciplinary Sanctions” of Section VI. “Relations between Prisoners of War and the Authorities” of the 3 rd Geneva Convention.

51 3 rd Geneva Convention. Art. 118. 52 3 rd Geneva Convention. Art. 4. 53 For a detalied analysis on this question, see the study of Veronika Bílková in this volume. 54 3 rd Geneva Convention. Art. 4.A. Para (1)-(2). 55 Ibidem. Art. 4.A. Paragraph (3).

271