CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ QUESTIONS OF INTERNATIONAL HUMANITARIAN AND HUMAN RIGHTS LAW … in conformity with the well-established practice of the European Court of Human Rights as well, 85 but is also explicitly reaffirmed by the Convention with the prohibition of causing physical suffering, including “torture, corporal punishments, mutilation”, emphasising this by stating “whether applied by civilian or military agents”. 86 This is very important as European states and military forces employ more and more private actors. 87 Concerning possible criminal proceedings against IS members, anybody arrested has to be “treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial”, which is the fundamental rule that ensures legal protection to all individuals. 88 Human information gathering, mainly in the form of interrogations, is allowed, but the prohibition of exercising any physical or moral coercion is stipulated by the Convention as well, 89 as it is considered to be a violation according to the text and practice of the International Covenant on Civil and Political Rights and of the European Convention on Human Rights. 90 In case of internment or confinement of any protected person (like an IS fighter being tried for a crime), special protective rules are applicable. 91 It has to be justified by security necessity; 92 in the current situation we can conclude that participation in the activities of the terrorist organisation qualifies for this, even applying the standards of the European Court of Human Rights. 93 The Geneva Convention requires that a “competent authority” shall revise the necessity of the captivity at least twice a year, which is a more loose obligation than is vested upon European states by the Strasbourg court’s practice, 94 but in case of a military intervention, participating states have to make sure that their domestic legal provisions and existing institutions are fit to take on this task. They also have to make sure that they are capable of cooperating with the International Committee of the Red Cross, as they are obliged to give the names of captured individuals to it for registration and for 85 Relevant cases from the practice of the Court are inter alia : Ramanauskas v. Lithuania. (Application no. 74420/01); Vanyan v. Russia. (Application no. 53203/99); Riera Blume and Others v. Spain. (Application no. 37680/97); Rantsev v. Cyprus and Russia. (Application no. 25965/04); Medova v. Russia. (Application no. 25385/04). 86 4 th Geneva Convention. Art. 32. 87 The Role of Private Security Companies (PSCs) in CSDP Missions and Operations (2011), European Parliament April 2011, EXPO/B/SEDE/FWC/2009-01/LOT6/10/REV1; WHITE, Nigel D. – MACLEOD, Sorcha, EU Operations and Private Military Contractors: Issues of Corporate and Institutional Responsibility, European Journal of International Law (2008), Vol. 19 No. 5, p. 965-988. 88 4 th Geneva Convention. Art. 5. 89 Ibidem. Art. 31. 90 CASSESE, ACQUAVIVA, FAN, WHITING, op. cit., p. 257; DOSWALD-BECK, op. cit. pp. 194, 255. 91 4 th Geneva Convention. Art. 79. 92 Ibidem. Art. 42. 93 Relevant cases from the practice of the Court are inter alia: Lawless v. Ireland (no. 3). (Application no 332/57); Ireland v. the United Kingdom. (Application no. 5310/71); Ječius v. Lithuania. (Application no. 34578/97); Schwabe and M.G. v. Germany. (Applications nos. 8080/08 and 8577/08); Ostendorf v. Germany. (Application no. 15598/08). 94 Relevant cases from the practice of the Court are inter alia : Bozano v. France. (Application no. 9990/82); Erkalo v. the Netherlands. (89/1997/873/1085); Yefimenko v. Russia. (Application no. 152/04); Ječius v. Lithuania. (Application no. 34578/97); Benham v. the United Kingdom. (Application no. 19380/92); Lloyd and Others v. the United Kingdom. (Applications nos. 29798/96, 30395/96, 34327/96, 34341/96, 35445/97 36267/97, 36367/97, 37551/97, 37706/97, 38261/97, 39378/98, 41590/98, 41593/98, 42040/98, 42097/98, 45420/99, 45844/99, 46326/99, 47144/99, 53062/99, 53111/99, 54969/00, 54973/00, 54997/00, 55046/00, 55068/00, 55071/00, 56109/00, 56231/00, 56232/00, 56233/00, 56429/00, 56441/00, 2460/03, 2482/03, 2483/03, 2484/03 and 2490/03); Engel and Others v. the Netherlands. (Application no. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72); Galstyan v. Armenia. (Application no. 26986/03).

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