The term fundamental guarantees describes the rules governing the minimum standards of protection for individuals that remain applicable in all circumstances. These guarantees are reflected and defined in international conventions related to international human rights law as inalienable rights in situations of internal disturbance or tensions, and under humanitarian law in situations of armed conflict. The fundamental guarantees straddle these two branches of international law and are drafted differently, depending on the international convention concerned.
In numerous situations, this difference in drafting is abusively used by States in order to deprive certain individuals from international legal protection provided by both human rights and international humanitarian law.
There is currently a tendency toward harmonization in the application of these fundamental guarantees to victims in all type of situations of tensions and armed conflict, which aims at avoiding legal black holes created by certain literal legal interpretations.
This unification is due to the evolution of the nature and characteristics of armed conflicts, which imply non-state armed groups acting in a transnational manner, and to an increasing number of international security interventions, which involve a dual dimension of security and fighting.
As a matter of law, international courts’ jurisprudence recognizes the joint and complementary application of both humanitarian law and human rights. This bridges the interpretation of the different guarantees granted to victims in all types of situations and of armed conflict. This jurisprudence also recognizes the extraterritorial obligation to implement these guarantees in any and all cases where a State has effective control over individuals or a foreign territory, specifically in cases of detention or occupation.
NonDerogable Human Rights
Certain rights and freedoms established by human rights conventions can never be infringed on or amended by States, even during times of crisis, states of emergency or armed conflict, or other exceptional circumstances. These rights are known as inalienable rights , or peremptory norms of international law—they correspond to nonderogable obligations upon States. They constitute the absolute minimum standard that must be respected at all times.
The rules of humanitarian law, applicable mainly in times of armed conflict, are more precise. It is therefore preferable, in the context of violence that can be qualified as “armed conflicts,” to rely on the Geneva Conventions and their Protocols. In situations straddling the blurry line between the absence of peace and the absence of full-blown war, it is important to utilize the complementary aspects of human rights and humanitarian law.
Although they are embodied in international conventions, these specific rights must be respected and protected in all circumstances. They are mainly considered customary norms—part of what is considered customary international law. The important point is that these rules are applicable even in countries that have not ratified the relevant international conventions.
Inalienable rights must be enforced at all times, for all individuals.
At the international level, these are defined, for instance, in the International Covenant on Civil and Political Rights (ICCPR), adopted 16 December 1966 by the General Assembly of the UN (GA Resolution 2200 A [XXI]). Article 4 of the ICCPR sets out the rights and freedoms from which no derogation is permitted. No State may suspend its protection of these rights, no matter what the circumstances may be. These rights are the ones listed in Articles 6, 7, 8.1–2, 11, 15, 16, and 18:
- Article 6 establishes the right to life and the right not to be deprived of one’s life. There is one exception. In countries that have not yet abolished the death penalty, a person may be deprived of his or her life, but only pursuant to a judgment rendered by a competent court. Extrajudicial executions are forbidden in all situations.
- Article 7 prohibits torture or cruel, inhuman, or degrading treatment or punishment. It also prohibits subjecting a person to medical or scientific experimentation without his or her free consent.
- Article 8 prohibits slavery, slave trade, and servitude.
- Article 11 states that no one shall be imprisoned merely because of inability to fulfill a contractual obligation.
- Article 15 prohibits the application of a criminal law to acts that were committed before the law was enacted.
- Article 16 establishes the right for everyone, everywhere, to be recognized as a person before the law (the right to juridical personality).
- Article 18 provides that everyone shall have the right to freedom of thought, conscience, and religion, including the right to manifest one’s religion or beliefs. It prohibits any coercion that would impair a person’s freedom to have or to adopt a religion or belief of his or her choice.
The same rights are repeated and further developed in regional conventions such as the American Convention on Human Rights (adopted by the Organization of American States on 22 November 1969) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (adopted by the Council of Europe on 4 November 1950).
- The American Convention permits no derogation from the following rights, as per Article 27: right to juridical personality (Art. 3), right to life (Art. 4), right to humane treatment (5), freedom from slavery (6), freedom from retroactive laws (9), freedom of conscience and religion (12), rights of the family (17), right to a name (18), rights of the child (19), right to nationality (20), right to participate in government (23), and “the judicial guarantees essential for the protection of such rights” (27).
- The European Convention permits no derogation from the following rights, as per Article 15: the right to life (Art. 2), right to humane treatment (Art. 3), freedom from slavery (Art. 4.1), and freedom from retroactive laws (Art. 7).
Outside of those inalienable rights, States can, in the case of threats to public order or national security, derogate from other human rights, such as the right to liberty and security or the right to liberty of movement, as well as those provided for in the International Covenant on Economic, Social, and Cultural rights. However, States that wish to derogate from those rights have the obligation to notify the Secretary-General of the relevant organization (United Nations, Council of Europe, or Organization of American States). This obligation of notification is provided for in Article 4.3 of the International Covenant on Civic and Political Rights, Article 5.3 of the European Convention on Human Rights, and Article 27.3 of the American Convention on Human Rights.
States availing themselves of the right to derogate must therefore comply with the notification and justification procedures provided for by the conventions. Internal tribunals and certain international courts are in charge of controlling the proportionality between the internal security arguments invoked by the States and the restrictions to rights the derogation entails.
In this context, doctrine and jurisprudence recognize that the fundamental guarantees of Common Article 3 may also be invoked in situations of internal disturbances. This is based on an analogical reasoning, as it would be absurd to consider violations of minimum guarantees imperative in times of conflict to be lawful in peacetime.
Common Article 3 to the Four 1949 Geneva Conventions
This article establishes the most fundamental guarantees that must be provided to all persons hors de combat , that is to say, who are not or are no longer taking part in hostilities. Though the specificity of Common Article 3 to the four 1949 Geneva Conventions is that it was one of the first to establish fundamental legal principles regulating non-international armed conflicts, the Geneva Conventions clearly establish that these are minimum norms to be respected in all situations of conflict. The application of humanitarian law to conflicts that are not of an international nature has evolved since 1977, and the principles of Common Article 3 are now recognized as also applying to internal disturbances and tensions.
Common Article 3 states that each party to the conflict shall be bound to apply, as a minimum, the following provisions:
- Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
- violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
- taking of hostages;
- outrages upon personal dignity, in particular humiliating and degrading treatment;
- the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees that are recognized as indispensable by civilized peoples.
- The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the parties to the conflict.
Common Article 3 is recognized as a rule of customary international law. Several decisions of international tribunals have recognized that it contains minimum standards of humanity that apply in all circumstances. Interpretations restricting its scope of application to non-international armed conflicts or to the borders of one national territory have been rejected. It is therefore clear that this article applies even to conflicts involving non-state armed groups acting transnationally. Common Article 3 thus crystallizes fundamental, minimum, and imperative guarantees applicable to people who are not or no longer involved in the fighting. It also contains minimum and imperative judicial guarantees applicable to any person in the hands of an adverse party. Compliance with these obligations is mandatory, including as regards individuals belonging to non-state armed groups or to terrorists. The customary and imperative nature of this rule entails mandatory unconditional and non-reciprocal application, that is, even to non-state actors or to non-signatories of the Geneva Conventions. In this sense, the U.S. Supreme Court rejected the restrictive interpretation of Common Article 3 used by American authorities to refuse the right, for Guantanamo detainees in the war against terrorism, to benefit from the judicial and detention guarantees contained in this article (see Jurisprudence below).
Other Fundamental Guarantees in International Humanitarian Law
The specificity of the four 1949 Geneva Conventions is that each one applies to a category of protected persons, defining the minimum standard of treatment that must be respected for each category. The fundamental guarantees differ slightly depending on whether they relate to the protection of persons who are wounded, sick, shipwrecked, prisoners of war, or civilians. These standards are clearly established norms that States must respect in their treatment of nationals of the opposing party to the conflict and more generally to victims of conflict.
The 1977 Additional Protocols use the term “victims of conflict,” which allows them to take into account victims of non-international conflicts and extend protection of the Conventions beyond consideration of the nationality of the victim or of the armed actor. In periods of armed conflict, the State is also required to continue to comply, vis-à-vis its own citizens, with the obligations and guarantees provided for by international human rights conventions. Compliance with these obligations and guarantees also concerns foreign territories and individuals over which the State has effective control.
The strength of this approach is that it lists specific rights, carefully adapted to protect individuals in these categories from the specific risks that they may incur as a result of their status or the nature of the situation. Its weakness is that if the Conventions are applied in bad faith, this can lead to a refusal or a delay in providing necessary protection, as the concerned parties debate the specific definition or status of the protected person or of the situation. In practice, it is therefore crucial to start from the minimum standards that apply to all persons, at all times, without prejudice to more protective provisions and measures to which they may be entitled.
More specific guarantees applicable to different categories of persons are explained in the relevant entries on ▸ Children ▸ Civilians ▸ Detention ▸ Prisoners of war ▸ Protected persons ▸ Women ▸ Wounded and sick persons .
Basing themselves on the fundamental guarantees foreseen in Common Article 3 (see above), the two Additional Protocols to the Conventions, adopted in 1977, further clarified the rights that must be guaranteed for victims of internal and international armed conflicts.
Fundamental Guarantees for the Victims of International Armed Conflicts
Additional Protocol I of the 1949 Geneva Conventions is applicable to victims of international armed conflicts. In particular, it reinforces the protection that one party to the conflict must provide to the nationals of the adverse party. Its aim is to standardize the set of minimum rights that must be guaranteed for all victims of international armed conflicts. However, these minimum standards are applicable only if more favorable measures for the protection of these individuals do not exist under other provisions in Additional Protocol I or in the Geneva Conventions.
In comparison with the Geneva Conventions, Additional Protocol I adds to the number of acts that remain absolutely prohibited in all circumstances. For instance, it broadens the definition of torture to clearly include mental torture and adds a reference to sexual offenses. Furthermore, it elaborates detailed rules for judicial guarantees of due process. ▸ Judicial guarantees
Additional Protocol I, Article 75: Fundamental Guarantees
- In so far as they are affected by a situation [of international armed conflict], persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided by this Article without any adverse distinction based upon race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria. Each Party shall respect the person, honour, convictions and religious practices of all such persons.
- The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents:
- violence to the life, health, or physical or mental well-being of persons, in particular:
- torture of all kinds, whether physical or mental;
- corporal punishment; and
- outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault;
- the taking of hostages;
- collective punishments; and
- threats to commit any of the foregoing acts.
- Any person arrested, detained or interned for actions related to the armed conflict shall be informed promptly, in a language he understands, of the reasons why these measures have been taken. Except in cases of arrest or detention for penal offenses, such persons shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist.
Fundamental Guarantees for the Victims of Noninternational Armed Conflicts
Additional Protocol II of the Geneva Conventions develops and supplements the guarantees for the protection of victims of non-international armed conflicts, foreseen in Common Article 3.
As its first Article explains, Additional Protocol II addresses the protection of victims of armed conflicts that “take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol” (APII Art. 1.1).
Additional Protocol II does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence, and other acts of a similar nature, because these are not qualified as armed conflicts (APII Art. 1.2).
It establishes the rights and freedoms that a State caught up in an internal armed conflict must as a minimum guarantee its nationals. Among other guarantees added to those in the Geneva Conventions, it reinforces the fundamental rights of children and the right to protection from gender violence and from slavery.
Additional Protocol II, Article 4: Fundamental Guarantees
- All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction. It is prohibited to order that there shall be no survivors.
- Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph I are and shall remain prohibited at any time and in any place whatsoever:
- violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;
- collective punishments;
- taking of hostages;
- acts of terrorism;
- outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault;
- slavery and the slave trade in all their forms;
- threats to commit any of the foregoing acts.
- Children shall be provided with the care and aid they require, and in particular:
- they shall receive an education, including religious and moral education, in keeping with the wishes of their parents, or in the absence of parents, of those responsible for their care;
- all appropriate steps shall be taken to facilitate the reunion of families temporarily separated;
- children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities;
- the special protection provided by this Article to children who have not attained the age of fifteen years shall remain applicable to them if they take a direct part in hostilities despite the provisions of subparagraph (c) and are captured;
- measures shall be taken, if necessary, and whenever possible with the consent of their parents or persons who by law or custom are primarily responsible for their care, to remove children temporarily from the area in which hostilities are taking place to a safer area within the country and ensure that they are accompanied by persons responsible for their safety and well-being.
- Article 5 adds provisions that must be respected, as a minimum, with regard to persons who are deprived of liberty for reasons related to the armed conflict, whether they are interned or detained. ▸ Detention
- The fundamental guarantees foreseen for the protection of the wounded, sick, and shipwrecked are established in Articles 7 to 12. ▸ Medical duties ▸ Wounded and sick persons
- Those for the protection of the civilian population in general are in Articles 13 to 18. ▸ Civilians
- Judicial guarantees are established in Article 6, to ensure respect for due process. ▸ Judicial guarantees
Fundamental Guarantees in Customary International Humanitarian Law
The customary IHL study published by the International Committee of the Red Cross (ICRC) in 2005 takes up the fundamental guarantees established by the 1949 Geneva Conventions and their 1977 Additional Protocols.
These rules unify the content of the protection granted to victims of international and non-international armed conflicts. They are considered the basic minimum rules applicable in all situations of armed conflict, whatever the polemic on their nature or whether the parties to the conflict are signatories to the Conventions and their Additional Protocols. Signatories of the Conventions and their Additional Protocols are additionally bound by their treaty obligations.
Out of the 161 rules of customary international humanitarian law, nineteen were included in the general fundamental guarantees category (Rules 87–105).
Minimum guarantees applicable both in international and non-international armed conflicts:
- Rule 87: Civilians and persons hors de combat must be treated humanely.
- Rule 88: Adverse distinction in the application of international humanitarian law based on race, color, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth, or other status, or on any other similar criteria is prohibited.
- Rule 89: Murder is prohibited.
- Rule 90: Torture, cruel or inhuman treatment, and outrages upon personal dignity, in particular humiliating and degrading treatment, are prohibited.
- Rule 91: Corporal punishment is prohibited.
- Rule 92: Mutilation, medical or scientific experiments, or any other medical procedure not indicated by the state of health of the person concerned and not consistent with generally accepted medical standards are prohibited.
- Rule 93: Rape and other forms of sexual violence are prohibited.
- Rule 94: Slavery and the slave trade in all their forms are prohibited.
- Rule 95: Uncompensated or abusive forced labor is prohibited.
- Rule 96: The taking of hostages is prohibited.
- Rule 97: The use of human shields is prohibited.
- Rule 98: Enforced disappearance is prohibited.
- Rule 99: Arbitrary deprivation of liberty is prohibited.
- Rule 103: Collective punishments are prohibited.
- Rule 104: The convictions and religious practices of civilians and persons hors de combat must be respected.
- Rule 105: Family life must be respected as far as possible.
Other fundamental guarantees for specific categories of people and victims:
- Wounded and sick persons (Rules 109–111)
- Persons deprived of their liberty (Rules 118–128)
- Displaced persons (Rules 129–133)
- Other vulnerable persons (Rules 134–138)
- Civilian population (Rules 1.2, 53–56)
- Medical, religious, humanitarian, or relief personnel (Rules 25–32)
▸ Civilians ▸ Detention ▸ Inalienability of rights ▸ International law ▸ Internment ▸ Inviolability of rights ▸ Judicial guarantees ▸ Occupied territory ▸ Situations and persons not expressly covered by humanitarian law ▸ State of emergency/State of siege
Supreme Court of the United States, No. 05-184, Salim Ahmed Hamdan, Petitioner, v. Donald H. Rumsfeld, Secretary of Defense, et al. , 29 June 2006, pp. 65–69 (extracts):
In this decision, the Supreme Court of the United States held that the right to habeas corpus and the judicial guarantees contained in Common Article 3 are applicable to the detainees of the war on terror.
The conflict with al Qaeda is not, according to the Government, a conflict to which the full protections afforded detainees under the 1949 Geneva Conventions apply because Article 2 of those Conventions (which appears in all four Conventions) renders the full protections applicable only to “all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties. . . . Since Hamdan was captured and detained incident to the conflict with al Qaeda and not the conflict with the Taliban, and since al Qaeda, unlike Afghanistan, is not a “High Contracting Party,” i.e., a signatory of the Conventions, the protections of those Conventions are not, it is argued, applicable to Hamdan. . . . We need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not one between signatories. Article 3, often referred to as Common Article 3 because, like Article 2, it appears in all four Geneva Conventions, provides that in a “conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum,” certain provisions protecting “[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by . . . detention.” . . . One such provision prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” . . . The Court of Appeals thought, and the Government asserts, that Common Article 3 does not apply to Hamdan because the conflict with al Qaeda, being “international in scope,” does not qualify as a “conflict not of an international character.” . . . That reasoning is erroneous. The term “conflict not of an international character” is used here in contradiction to a conflict between nations. So much is demonstrated by the “fundamental logic [of] the Convention’s provisions on its application.” . . . Common Article 2 provides that “the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.” . . . High Contracting Parties (signatories) also must abide by all terms of the Conventions vis-à-vis one another even if one party to the conflict is a non-signatory “Power” and must so abide vis-à-vis the non-signatory if “the latter accepts and applies” those terms. . . . Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a non-signatory “Power” who are involved in a conflict “in the territory of” a signatory. The latter kind of conflict is distinguishable from the conflict described in Common Article 2 chiefly because it does not involve a clash between nations (whether signatories or not). In context, then, the phrase “not of an international character” bears its literal meaning. . . . Although the official commentaries accompanying Common Article 3 indicate that an important purpose of the provision was to furnish minimal protection to rebels involved in one kind of conflict not of an international character, i.e., a civil war, . . . the commentaries also make clear that the scope of the Article must be as wide as possible. . . . In fact, limiting language that would have rendered Common Article 3 applicable especially [to] cases of civil war, colonial conflicts, or wars of religion, was omitted from the final version of the Article, which coupled broader scope of application with a narrower range of rights than did earlier proposed iterations. . . . Common Article 3, then, is applicable here and, as indicated above, requires that Hamdan be tried by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. . . . While the term “regularly constituted court” is not specifically defined in either Common Article 3 or its accompanying commentary, other sources disclose its core meaning. The commentary accompanying a provision of the Fourth Geneva Convention, for example, defines “regularly constituted” tribunals to include “ordinary military courts” and to “definitely exclud[e] all special tribunals.”
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