CYIL vol. 8 (2017)

TAMÁS LATTMANN CYIL 8 ȍ2017Ȏ possible visits and interviews, 95 which may require domestic legislation. And while IS fighters may be tried by the intervening states on the conditions set by the 4 th Geneva Convention (properly constituted, independent military court with its seat on the territory), 96 it also sets limitations on possible punishments, most importantly related to capital punishment. 97 The does not seem to be an imminent problem, as all of the possibly intervening European states had already abolished the death penalty via domestic legislation and international rules on the level of the Council of Europe, 98 but it can cause difficulties in case of any possible intention to extradite an individual to the United States or any other country that still has it in its domestic legal system. It is very important to emphasize again, similar to the previous chapter, that acts like torture or inhuman treatment, wilfully causing great suffering or serious injury to body or health, unlawful confinement of a protected person, or wilfully depriving a protected person of the rights of fair and regular trial are all qualified to be grave breaches of the Convention, 99 drawing the same possible consequences. Conclusions As we have seen, a foreign military intervention against IS leads to numerous legal questions which shall be properly addressed, in an optimal case, already before the political decision is made about it. The applicable law during the military intervention would stretch from international law to domestic law, including not only norms of IHL but international human rights law as well. Additionally, European states also have to consider their obligations under the European human rights system. The asymmetric warfare situation poses serious risks, mostly related to protection of civilians, and intervening states have to prepare to be able to handle these, including their delicate political implications. States participating in a military operation against IS have tomake legal preparations to be able to handle, confine and if needed, punish IS fighters in conformity with both their humanitarian and human rights legal obligations. As European states are subject to the control of the European Court of Human Rights, they have to be especially cautious regarding this problem. Two of the most important activities of any state to meet the above mentioned goals are legal preparation, meaning a “screening” of the domestic legal system, and the proper training of its personnel. Of course in an optimal case, this training has to be implemented into ordinary military training even without having any special intention like participating in counter-IS military operations, but in the case of that decision it gains a very high importance. 6.

95 4 th Geneva Convention. Art. 43. 96 Ibidem. Art. 66. 97 Ibidem. Art. 68.

98 The abolishment of the death penalty has been achieved by a gradual amendment of the provisions of the European Convention of Human Rights. The first step was Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty (ETS No. 114), adopted in 1983, which has still made it possible for a state party to uphold the death penalty for “acts committed in time of war or of imminent threat of war” with the obligation of communicating this to the Secretary General of the Council of Europe. The prohibition has become complete with the adoption of Protocol No. 13 to the Convention in 2002, with the aim to abolish the death penalty in all circumstances (ETS No. 187). 99 4 th Geneva Convention. Art. 147.

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