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

What is it about?

International humanitarian law provides for fundamental guarantees whose content is similar irrespective of the nature of the armed conflict and which are applicable 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 conducts against persons, such as murder, cruel treatment, torture and sexual violence. However, it is traditionally held that the entitlement to those guarantees depends upon a ‘status requirement’, which basically means that the concerned persons must not or no longer take a direct part in hostilities. This article argues in favour of breaking with this requirement in light of the existing case law of the International Criminal Court, in particular a series of decisions taken in the Ntaganda case. It aims at extending the personal scope of application of those guarantees and, in particular, making them applicable to intra-party relations, in order to afford protection to persons even against violence committed by their own party to the conflict.

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