CYIL vol. 8 (2017)

TAMÁS LATTMANN

CYIL 8 ȍ2017Ȏ

5.3 Protection Provided for Individuals by International Law International law has developed a complex system of protective rules for all possible actors of an armed conflict where both provisions of international humanitarian law and of international human rights law are applicable and have to be respected by actors of the conflict. Concerning international humanitarian law, protection of prisoners of war is provided by the 3 rd Geneva Convention, while civilians, or all those individuals who for any reason do not fall into this status, are protected by the 4 th Geneva Convention. The general prohibition of violence to life and person, mutilation, cruel treatment and torture, outrages upon personal dignity, humiliating and degrading treatment can be found in Common Article 3 of the four Geneva Conventions of 1949, the substance of the provisions of which is applicable both in an international and in a non-international armed conflict and is also accepted as binding customary law under all circumstances, as it sets up minimum standards. The norms engraved in Common Article 3 have later developed to also be basic rules of international human rights law, as they have been reaffirmed by the various sources of international human rights law quickly developing during the post-second world war era. International human rights law is generally applicable also in peacetime and in non-armed conflict situations, meaning that if a state for any reason refuses to accept that a domestic conflict reaches the level of an armed conflict and with this also refuses the application of international humanitarian law, some legal protection is still provided for individuals. This obligation has to be respected by states regardless of the fact that rules of international human rights law directly do not bind non-state actors, such as the IS. At the same time, their individual members bear individual responsibility for violations. 69 For the sake of the current analysis, based on the distinction explained above, we classify persons as those who qualify for prisoner of war status and as those who do not. 5.3.1 Protection of Individuals Who Qualify for Prisoner of War Status Individuals qualifying for prisoner of war status are primarily protected by the detailed, complex set of rules codified in the 3 rd Geneva Convention. Apart from the fact that it is currently ratified by all of the states, there is a wide international consensus today about the customary force of the protective norms of this international treaty, meaning that its provisions have to be respected under all circumstances in an international armed conflict. According to the Convention, the general obligation of intervening states related to IS fighters qualifying for prisoner of war status it to treat them humanely and to protect them “against acts of violence or intimidation and against insults”. 70 This means for example the prohibition of broadcasting images of these individuals in mass media. International humanitarian law does not prohibit intervening states from keeping captured IS fighters locked up, 71 but regarding the place of detention, the Convention sets up a very important rule with a special significance here, namely that prisoners of war “shall not be interned in penitentiaries”, only if “the interest of the prisoners” justifies it. 72

69 SIMMA, Bruno, PAULUS, Andreas L., The responsibility of individuals for human rights abuses committed in internal conflicts, 36 Stud. Transnat’l Legal Pol’y 23 2004. 70 3 rd Geneva Convention. Art. 13.

71 Ibidem. Art. 21. 72 Ibidem. Art. 22.

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