CYIL vol. 8 (2017)

TAMÁS LATTMANN CYIL 8 ȍ2017Ȏ who on the approach of the enemy spontaneously take up arms to resist the invading forces”, 56 even if they are not connected to the state in any ways. It is important to emphasise, that this option is only opened if the conditions of carrying arms openly and conducting operations with respect to legal rules of warfare are met. Additionally, only “inhabitants of a non-occupied territory” are eligible for the POW status, which practically means that while foreign fighters of IS will not be able to invoke this rule, individuals living on the territory of the area of operations of intervening states may qualify for this. One of the weaknesses of this idea is that it requires a military occupation against which the local population can resist, while it is questionable if an “occupation” would take place in the case of a military intervention. 3. Additionally, we must take note of the fact that the 1st Additional Protocol sets up less strict rules according to the combatant status. The Protocol considers members of “organized armed forces (…) under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party” if those forces are “subject to an internal disciplinary system which (…) shall enforce compliance with the rules of international law applicable in armed conflict” being legitimate combatants, 57 additionally stipulating that sometimes only the open carrying of arms before and during military action is a satisfactory condition. 58 The applicability of these provisions in the current situation regarding military operations against IS leads to a complex situation. The United States is technically not bound by the letters of the Protocol as it has not ratified it and, to make things more difficult, one of the main reasons for the United States having denied ratification is the ambiguous nature of this re- definition of combatant. 59 Doubts related to the Protocol’s text are reflected by the fact of the numerous reservations made by other states who otherwise have ratified the Protocol. 60 Many of these are European states who, together with Syria and Iraq, are all parties to Additional Protocol I, not only the Geneva Conventions, so in the case of a military operation, they are legally bound by these provisions, which means that they have to consider this aspect as well. 5.2.2 Individuals Not Entitled to Combatant/Prisoner of War Status According to the rules applicable in international armed conflict, combatant/prisoner of war status is reserved for all those who have lawfully engaged in combat before falling into the hands of the adversary party, in our case into captivity of the intervening foreign states. Apart from the special protection offered by IHL to those individuals in the form of the POW status, those who do not qualify for this (in the current situation probably the majority of IS fighters) still enjoy protection by the 4 th Geneva Convention. The concept behind the system of the Geneva conventions is that there shall be no individuals left without any legal protection by law. This argument is supported by the interpretation of the International

56 Ibidem. Art. 4. A. Paragraph (6). 57 1 st Additional Protocol. Art. 43. 58 1 st Additional Protocol. Art. 44. Para 4.

59 For detailed arguments, see: A Message from the President of the United States regarding Protocol II Additional to the 1949 Geneva Conventions, and Relating to the Protection of Victims of Non-International Armed Conflicts, December 3, 1986, Online: http://www.loc.gov/rr/frd/Military_Law/pdf/protocol-II-100-2.pdf (1 May 2017). 60 These reservations and declarations are available online at: http://www.icrc.org/ihl (1 May 2017).

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