Summary Fundamental Guarantees of Humanitarian Law
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Course
International Humanitarian Law
Institution
The University Of Nottingham (UON)
In this seminar, we will consider (1) the fundamental guarantees afforded to persons hors de combat as well as the protections afforded to particular classes of persons. The classes of persons we shall consider are (2) the wounded and sick; (3) prisoners of war; and (4) women and children.
Seminar 4 – Fundamental Guarantees and the Treatment of Particular Classes
of Persons
Fundamental Guarantees
Common Article 3 GC
In the case of armed 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, 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:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and
torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) 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.
(2) 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.
The Parties to the conflict should further endeavour to bring into force, by means of special
agreements, all or part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the Parties to the
conflict.
Article 75 of Additional Protocol 1 – ‘Fundamental Guarantees’
1. In so far as they are affected by a situation referred to in Article 1 [ Link ] of this Protocol, 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.
2. The following acts are and shall remain prohibited at any time and in any place whatsoever,
whether committed by civilian or by military agents:
(a) violence to the life, health, or physical or mental well-being of persons, in particular:
(i) murder;
(ii) torture of all kinds, whether physical or mental;
(iii) corporal punishment; and
(iv) mutilation;
(b) outrages upon personal dignity, in particular humiliating and degrading treatment, enforced
prostitution and any form of indecent assault;
(c) the taking of hostages;
(d) collective punishments; and
(e) threats to commit any of the foregoing acts.
3. 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 offences, 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.
4. No sentence may be passed and no penalty may be executed on a person found guilty of a penal
offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and
regularly constituted court respecting the generally recognized principles of regular judicial procedure,
which include the following:
(a) the procedure shall provide for an accused to be informed without delay of the particulars of the
offence alleged against him and shall afford the accused before and during his trial all necessary rights
and means of defence;
, Seminar 4
(b) no one shall be convicted of an offence except on the basis of individual penal responsibility;
(c) no one shall be accused or convicted of a criminal offence on account of any act or omission which
did not constitute a criminal offence under the national or international law to which he was subject at
the time when it was committed; nor shall a heavier penalty be imposed than that which was
applicable at the time when the criminal offence was committed; if, after the commission of the
offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit
thereby;
(d) anyone charged with an offence is presumed innocent until proved guilty according to law;
(e) anyone charged with an offence shall have the right to be tried in his presence;
(f) no one shall be compelled to testify against himself or to confess guilt;
(g) anyone charged with an offence shall have the right to examine, or have examined, the witnesses
against him and to obtain the attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him;
(h) no one shall be prosecuted or punished by the same Party for an offence in respect of which a final
judgement acquitting or convicting that person has been previously pronounced under the same law
and judicial procedure;
(i) anyone prosecuted for an offence shall have the right to have the judgement pronounced publicly;
and
(j) a convicted person shall be advised on conviction of his judicial and other remedies and of the
time-limits within which they may be exercised.
5. Women whose liberty has been restricted for reasons related to the armed conflict shall be held in
quarters separated from men's quarters. They shall be under the immediate supervision of women.
Nevertheless, in cases where families are detained or interned, they shall, whenever possible, be held
in the same place and accommodated as family units.
6. Persons who are arrested, detained or interned for reasons related to the armed conflict shall enjoy
the protection provided by this Article until their final release, repatriation or re-establishment, even
after the end of the armed conflict.
7. In order to avoid any doubt concerning the prosecution and trial of persons accused of war crimes
or crimes against humanity, the following principles shall apply:
(a) persons who are accused of such crimes should be submitted for the purpose of prosecution and
trial in accordance with the applicable rules of international law; and
(b) any such persons who do not benefit from more favourable treatment under the Conventions or
this Protocol shall be accorded the treatment provided by this Article, whether or not the crimes of
which they are accused constitute grave breaches of the Conventions or of this Protocol.
8. No provision of this Article may be construed as limiting or infringing any other more favourable
provision granting greater protection, under any applicable rules of international law, to persons
covered by paragraph 1.
Customary IHL Rules (Rules 87-105) – Treatment of Civilians and Persons Hors de combat
Rule 87 -Civilians and persons hors de combat must be treated humanely. [IAC/NIAC]
Rule 88. Adverse distinction in the application of international humanitarian law based on 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 is prohibited. [IAC/NIAC]
Rule 89. Murder is prohibited. [IAC/NIAC]
Rule 90. Torture, cruel or inhuman treatment and outrages upon personal dignity, in particular
humiliating and degrading treatment, are prohibited. [IAC/NIAC]
Rule 91. Corporal punishment is prohibited. [IAC/NIAC]
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. [IAC/NIAC]
Rule 93. Rape and other forms of sexual violence are prohibited. [IAC/NIAC]
Rule 94. Slavery and the slave trade in all their forms are prohibited. [IAC/NIAC] Volume 87 Number
857 March 2005 207
Rule 95. Uncompensated or abusive forced labour is prohibited. [IAC/NIAC]
Rule 96. The taking of hostages is prohibited. [IAC/NIAC]
Rule 97. The use of human shields is prohibited. [IAC/NIAC]
Rule 98. Enforced disappearance is prohibited. [IAC/NIAC]
Rule 99. Arbitrary deprivation of liberty is prohibited. [IAC/NIAC]
Rule 100. No one may be convicted or sentenced, except pursuant to a fair trial affording all essential
judicial guarantees. [IAC/NIAC]
Rule 101. No one may be accused or convicted of a criminal offence on account of any act or omission
which did not constitute a criminal offence under national or international law at the time it was
committed; nor may a heavier penalty be imposed than that which was applicable at the time the
criminal offence was committed. [IAC/NIAC]
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