Who are protected by the fundamental guarantees under international humanitarian law ? : part 1 : breaking with the status requirement in light of the ICC case law / Raphaël van Steenberghe

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Document type:

Article

Title:

Who are protected by the fundamental guarantees under international humanitarian law ? : part 1 : breaking with the status requirement in light of the ICC case law

Author zone:

Raphaël van Steenberghe

Host item entries:

International criminal law review, Vol. 22, no. 3, 2022, p. 347-400

Languages:

English

Abstract:

International humanitarian law provides for fundamental guarantees, the content of which is similar irrespective of the nature of the armed conflict and which apply to individuals even if they do not fall into the categories of specifically protected persons under the Geneva Conventions. Those guarantees, all of which derive from the general requirement of human treatment, include prohibitions of specific conduct against persons, such as murder, cruel treatment, torture, sexual violence, or against property, such as pillaging. However, it is traditionally held that the entitlement to those guarantees depends upon two requirements: the ‘status requirement’, which basically means that the concerned persons must not or no longer take a direct part in hostilities, and the ‘control requirement’, which basically means that the concerned persons or properties must be under the control of a party to the armed conflict. This paper, to be followed by a second paper in the next issue of the same journal, deals with the status requirement. It especially delves into the ICC decisions in the Ntaganda case with respect to the issue of protection against intra-party violence. It advocates for the applicability of the fundamental guarantees in such a context by rejecting the requirement of a legal status, on the basis of several arguments. Those arguments rely on IHL provisions protecting specific persons, on the potential for humanizing IHL on the matter and on the approach making the status requirement relevant only when the fundamental guarantees apply in the conduct of hostilities.

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