Fundamental Guarantees

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, the case law of international court recognizes the joint and complementary application of both humanitarian law and human rights and provides a unified interpretation of the various safeguards applicable in situations of both international and non-international armed conflict. This jurisprudence also recognizes the obligation to apply these obligations extraterritorially in all cases where a State exercises effective control over foreign individuals and territory, particularly in cases of detention or occupation.

➔ Detention; European Court of Human Rights; Human rights; International armed conflict; International Court of Justice; Non-international armed conflict; Occupied territory

I. Non Derogable Human Rights

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.

II. 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:

1. 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:

1. violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
2. taking of hostages;
3. outrages upon personal dignity, in particular humiliating and degrading treatment;
4. 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.
5. 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 IV Jurisprudence ).

➔Customary international law; International Court of Justice; Interntational criminal court; International humanitarian law (see Section II.2 for the complete version of Common Article 3); International armed conflict; Non-international armed conflict

III. 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.

➔Human rights; International humanitarian law

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, we must therefore always start with the minimum common standard that applies to everyone (Article 3), without prejudice to the application of other, more protective measures to which they may be entitled due to the specific vulnerability of certain individuals in certain situations

More specific guarantees applicable to different categories of persons are explained in the relevant entries on ➔Children; Civilians; Detention; Occupied territory;Prisoners of war; Protected persons; Women; Wounded and sick persons .

Basing themselves on the fundamental guarantees foreseen in Common Article 3 , the two Additional Protocols to the Conventions, adopted in 1977, further developped the rights that must be guaranteed for victims of international and non international armed conflicts.

 3. Fundamental guarantees of Customary international humanitarian law

The customary rules of 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.

a. General fundamental guarantees

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.

b. 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; Humanitarian and relief personnel;Internment; Judicial guarantees; Medical personnel;Occupied territory; Population displacement; Protected persons; Wounded and sick