Who are protected by the fundamental guarantees under international humanitarian law ? : part 2 : breaking with the control 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 2 : breaking with the control requirement in light of the ICC case law

Author zone:

Raphaël van Steenberghe

Host item entries:

International criminal law review, Vol. 22, no. 4, 2022, p. 583-640

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 study argues in favour of breaking with these two requirements in light of the existing ICC case law. This second paper, following a first paper published in the previous issue of the same journal, deals with the control requirement. It examines several ICC cases in detail, including the Katanga and Ntaganda cases, in relation to the issue of the applicability of the fundamental guarantees in the conduct of hostilities. It is argued that the entitlement to those guarantees is not dependent upon any general control requirement, and that, as a result, some of these guarantees may apply in the conduct of hostilities. This concerns mainly those guarantees whose application or constitutive elements do not imply any physical control over the concerned persons or properties.

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