CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ QUESTIONS OF INTERNATIONAL HUMANITARIAN AND HUMAN RIGHTS LAW … This prohibition also extends to disciplinary punishments lawfully imposed on POWs for the violation of the rules of captivity, based on the Convention, as well. 73 The background reason behind this rule is to spare prisoners of war from any harmful psychological effects of being locked up where criminals are also accommodated. 74 Concerning IS fighters, this argument may come into the crossfire as many would argue that they are “terrorists”, but this is irrelevant right after their capture – as long as they are not found guilty of terrorist (or any other) crimes and sentenced to prison, their captivity has to be governed by the Convention. The time period, the length of captivity is also not unlimited or unregulated; indefinite confinement is prohibited. According to the Convention, prisoners of war shall be released “without delay after the cessation of active hostilities”, 75 which makes the obligation to release these individuals a question of facts, not legal or political considerations. There is no need for an armistice, a peace treaty or any other formal act of finishing the war, which is especially important in this situation. The intervention of states will probably not be ever qualified as being a “war” against the states the territory of which is affected, and it is questionable, when “the cessation of active hostilities” is considered to occur. For this reason, it is very important to prepare prompt investigations and charges against any IS members whom the intervening states want to stand criminal trial. This is needed to make sure that their captivity is legally justified even after the military operations have ended, as the abovementioned strict rule of the Convention diminishes the legitimate ground of keeping these individuals confined without any proper reason. The Convention strictly regulates the possibility of interrogation of POWs, as the original background idea was not only to protect the individual prisoner of war but the states drafting the text definitely wanted to protect the delicate military information these individuals may possess which are useful to the adverse party to acquire. Interrogating a prisoner of war is not prohibited, but it is not allowed to employ any method of forcing him to give any information. The most important norms are those which expressly prohibit “physical or mental torture” or “any other form of coercion”. 76 On the other hand, disclosure of any information may constitute a criminal act by the prisoner based on domestic law, which usually evokes his criminal liability after being repatriated and gets back under domestic jurisdiction – but this is not a concern of the captor state, and the information disclosed may be used. As we have concluded earlier, IS members may only qualify for prisoner of status as individuals; they have no allegiant obligations towards any states. Torture or cruel treatment is also forbidden by the Convention to be employed as collective or individual punishment, corporal punishment, and disciplinary punishment. In case of a criminal trial against an individual prisoner of war with committing a criminal act, it is also prohibited to exert “moral or physical coercion (…) in order to induce him to admit himself guilty of the act of which he is accused”, 77 which obligation is identical to the human rights obligations of European states deriving from the European Convention on Human Rights. 78 73 Ibidem. Art. 97. 74 Commentary. Vol. III. Art. 22, Para 1. 75 3 rd Geneva Convention. Art. 118. 76 Ibidem. Art. 17. 77 Ibidem. Art. 87, 89, 99. 78 Prohibition of torture and right to a fair trial are among the most important human rights recognised by the Convention. ECHR. Art. 3 and Art. 6.

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