Introduction

The phrase ‘fundamental guarantees’ which appears as the title to Chapter 32 of the Study does not appear to be a term of art. Whilst it is to be found in treaty law, it is only in the title to Article 75 of Protocol I of 1977 to the Geneva Conventions of 1949 and in the title of Article 4 of Protocol II. The phrase is not found within the provision itself. This suggests that ‘fundamental guarantees’ is simply a label and a way of bringing together certain rules which have something in common, something that generally is not found in other rules.

The obvious definition would be rules which apply irrespective of the status of the individual. That would suggest that such rules represent a bottom line. In that case, given that those with a particular status may be protected by other provisions, the concept would need to be further clarified. Fundamental guarantees are those rules which apply irrespective of the status of the individual and where they are not protected by any other provisions of international humanitarian law. As it stands, this definition might still be too broad. It would apply to the treatment of persons both during military operations and also when in the power of the other side. The first situation is regulated by other rules. The second situation needs to be analysed further.