CYIL vol. 8 (2017)

TAMÁS LATTMANN CYIL 8 ȍ2017Ȏ It is very important to emphasize that acts like torture and inhumane treatment, or depriving the prisoners of war of the rights to a fair and regular trial according to the Convention are considered to be grave breaches of the Convention, 79 meaning that these do not only result in the responsibility of the state but also in individual criminal responsibility for a war crime. These acts are internationally punishable under the Rome Statute of the International Criminal Court 80 to which many European intervening states are party. This does not only show the widely accepted importance of the protection against these acts but it is something these states have to calculate with. Additionally, as these crimes are under universal jurisdiction, any state can initiate domestic criminal proceedings against the alleged perpetrator – which can lead to political tensions in the future between the intervening state and any other one with any political background motivations. With POWs, it is important to calculate with the fact that the International Committee of the Red Cross has the right to enter any places where prisoners of war are detained to check if the conditions of captivity are in conformity with the Convention and if their rights are respected. 81 If talking about IS fighters, agents or leaders, transfer or extradition of these individuals have to be examined, for example in case of terrorist crimes committed earlier, before the military intervention takes place. According to the 3 rd Geneva Convention, prisoners of war may only be transferred to such other state which is also party to it, 82 which rule tries to protect the POWs from possible abuse and violation by putting him into a state with less legal obligation. However, this provision does not raise an absolute obstacle for international cooperation related to criminal matters between European states, as – similar to the rest of the world – they are all parties to the Convention. 5.3.2 Protection of Those Who Do Not Qualify for Prisoner of War Status According to the provisions of international humanitarian law, even without gaining prisoner of war status important legal protection is offered against abuses and human rights violations, which have to be respected by any intervening state regardless of the legal base of the intervention, the qualification of the situation and the details of applicable law. The provisions of Common Article 3 of the Geneva Conventions of 1949 have to be applied regardless of the status that can be acquired by any individuals, as the text does not make any difference between them. In the case of an unconsented intervention, according to the 4 th Geneva Convention, protected persons are “entitled, in all circumstances, to respect for their persons, their honour” and “shall at all times be humanely treated” and protected against violence and insults. 83 The intervening state is responsible for the violation of their rights “by its agents, irrespective of any individual responsibility which may be incurred”, 84 which can lead to more unforeseeable possible problems, as the term “agent” can be interpreted widely: any state or military authority, or private actors (for example in the case of employment of private security contractors) can be qualified as such, thus leading to the responsibility of the state. This is

79 3 rd Geneva Convention. Art. 130. 80 Rome Statute. Art. 7, Para 1 (f); Para 2 (e). 81 3 rd Geneva Convention. Art. 126. 82 Ibidem. Art. 12. 83 4 th Geneva Convention. Art. 27. 84 Ibidem. Art. 29.

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