CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ QUESTIONS OF INTERNATIONAL HUMANITARIAN AND HUMAN RIGHTS LAW … Criminal Tribunal for the former Yugoslavia in its judgment in the Delalic case, where it has stated that “if an individual is not entitled to the protections of the Third Convention as a prisoner of war (or of the First or Second Conventions), he or she necessarily falls within the ambit of Convention IV, provided that its article 4 requirements are satisfied”. 61 Article 4 of the 4 th Geneva Convention states that all persons who “find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals” are entitled to the status of protected persons. 62 The only possible problem may arise regarding the nationality criteria: during foreign counter- IS military operations on the territory of Iraq and Syria, this provision of the Convention only protects Iraqi, Syrian citizens and theoretically citizens of the intervening states. Other nationals do not gain protected status as long as “the State of which they are nationals has normal diplomatic representation in the State in whose hands they are”, 63 which may lead to individuals legitimately losing protected status under the 4 th Convention. In this situation, Article 75 of the 1 st Additional Protocol becomes applicable, which has been drafted specifically to fill this gap in the system of the Geneva Conventions. 64 It creates “fundamental guarantees” which are legally binding on any state but they still mean much less obligation than the otherwise existing human rights obligations of European states under the European Convention on Human Rights. In the current situation this means that intervening states, while acting as occupying powers according to the 4 th Geneva Convention (as there is no consent from the state the territory of which is affected), have the legal possibility to introduce rules of a security nature, both in their own and the local population’s interests, which all individuals have to comply with. 65 If any individual (an IS fighter) gets “engaged in activities hostile to the security” of the occupying power (engaging in hostilities, commencing an attack of any nature or kind), he loses this protected status. 66 While the original reasoning behind this rule is better suited to “classic” inter-state conflicts (that even though every individual has the right to fight for his country, but this right is not unlimited) nothing excludes its validity in an symmetrical conflict situation like the one caused by an unconsented military intervention. The intervening state has responsibilities for example to ensure public order, which can be met by possessing the necessary legal tools: in this case the possibility to punish all those who either fail to comply with the rules introduced or endanger the security of the intervening state or public order on the territory. Those responsible for such actions may be subject to criminal proceedings not only by domestic law and authorities (which shall be left intact as much as possible by the intervening state 67 ), but these can also be conducted by the intervening state as an occupying power itself. 68

61 ICTY, Judgment, The Prosecutor v. Delalic et al., IT-96-21-T, 16 November 1998, para. 271. 62 4 th Geneva Convention. Art. 4. 63 Ibidem. 64 1 st Additional Protocol. Art. 75. 65 4 th Geneva Convention. Art. 5, 27, 30.

66 Ibidem. Art. 5. 67 Ibidem. Art. 64. 68 Ibidem. Art. 5, 27, 42.

273