Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 16 : Equality of treatment of prisoners
Text of the provision
Taking into consideration the provisions of the present Convention relating to rank and sex, and subject to any privileged treatment which may be accorded to them by reason of their state of health, age or professional qualifications, all prisoners of war shall be treated alike by the Detaining Power, without any adverse distinction based on race, nationality, religious belief or political opinions, or any other distinction founded on similar criteria.
Reservations or declarations
None
Contents

A. Introduction
1734  Article 16 is one of the five introductory articles in Part II of the Third Convention that set down the fundamental principles for the protection of prisoners of war. It is based on the overarching principles of humanity and humane treatment,[1] encompassing a broad prohibition of discrimination among prisoners of war and making equal treatment an essential component of their protection.
1735  The obligation of equal treatment as expressed in Article 16 has several components. First, there is an obligation on the Detaining Power to treat all prisoners of war alike. The article qualifies this obligation by requiring that provisions in the Third Convention relating to rank and sex be taken into consideration. It further makes explicit that certain grounds may justify privileged treatment of particular (groups of) prisoners in recognition that such treatment may even be necessary to comply fully with the obligation of equal treatment. In addition, Article 16 includes a prohibition of adverse distinction based on race, nationality, religious belief, political opinions or similar criteria.
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B. Historical background
1736  The insistence that certain rules be applied without distinction can be traced back to the origins of the codification of international humanitarian law. More specifically, the 1863 Lieber Code contained a number of provisions whereby the status of prisoner of war was to be granted regardless of ‘class, color, or condition’.[2]
1737  The 1929 Geneva Convention on Prisoners of War was the first international treaty to include a provision on equal treatment of prisoners of war. Paragraph 2 of Article 4 stated that ‘[d]ifferences of treatment between prisoners are permissible only if such differences are based on the military rank, the state of physical or mental health, the professional abilities, or the sex of those who benefit from them’.
1738  Despite the existence of this provision, there were many instances of differentiation in the treatment of prisoners of war during the Second World War. For example, German forces treated Soviet prisoners less advantageously than their Western counterparts. Conversely, prisoners of war belonging to political groups favoured by the Nazi regime, such as Francoists and collaborationists, were afforded preferential treatment in occupied France.[3]
1739  These experiences led the various preparatory conferences leading up to the adoption of the Geneva Conventions in 1949 to revise the equality of treatment clause. A more explicit obligation of equal treatment was included in the new Convention, together with a non-exhaustive list of prohibited grounds of adverse distinction.[4]
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C. The obligation of equal treatment
1. Substantive equality
1740  Placed between references in Article 16 to permissible distinctions and the prohibition of adverse distinctions in the treatment of prisoners of war is a statement of the principle that the Detaining Power must treat all prisoners of war alike.[5] This obligation to refrain from discrimination is an autonomous one; any discriminatory treatment is prohibited, not only in the application of the other rules of the Convention.[6] In several other places, the Geneva Conventions and Additional Protocols address equal treatment and non-discrimination by attaching the prohibition of adverse distinction to specific humanitarian obligations relating to the treatment of persons protected under these provisions.
1741  Article 16 requires that all prisoners of war be treated alike by the Detaining Power. If a Detaining Power interns prisoners of war who depend on different Powers, they must all be afforded equal treatment. Reciprocity may not serve as a basis for distinctions in the treatment of prisoners of war.[7] Accordingly, it is prohibited under Article 16 to lower the standards of treatment of one group of prisoners of war in response to violations of humanitarian law by the Power on which those prisoners depend. A more favourable treatment of certain prisoners of war may derive, however, from a special agreement concluded between two or more Parties to the conflict pursuant to Article 6 of the Third Convention, as long as such treatment neither adversely affects the situation of the prisoners of war, as defined by the Convention, nor restricts the rights which it confers upon them.[8]
1742  Article 16 does not, however, require that all prisoners of war receive identical treatment, as the statement of the principle of equality is embedded in the general concepts of adverse and non-adverse distinction. Rather, it acknowledges that such formal equality might easily become unjust if applied without regard to considerations such as state of health, age, sex, rank or professional qualifications.[9]
1743  To achieve equal treatment of prisoners of war, non-adverse distinctions, i.e. distinctions that are justified by the substantively different situations and needs of protected persons, are allowed and may even be required under humanitarian law in certain circumstances. In the context of international human rights law, this is commonly referred to as substantive rather than formal equality.[10] For a further discussion of non-adverse distinction, see section C.3.
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2. Permissible grounds for distinction based on rank and sex
1744  The Third Convention contains several provisions which explicitly allow for or require different treatment between certain groups of prisoners based on their rank or sex. According to Article 16, these provisions must be taken into account in the application of the obligation to treat all prisoners alike; certain distinctions in treatment based on the rank or sex of prisoners are thus permitted or even required.
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a. Rank
1745  Military ranks signify the hierarchical relationships within the armed forces. A distinction based on rank thus takes account of and maintains organization along existing military lines.[11]
1746  The Third Convention contains a number of provisions according to which rank influences certain aspects of a person’s life in a prisoner-of-war camp. Articles 44(1) and 45(1) provide generally that all prisoners of war ‘shall be treated with the regard due to their rank and age’. Other articles are more specific: who a certain prisoner is required to salute (Article 39(2) and (3)); whether and what kind of work the prisoner may be compelled to do (Articles 44(2) and 49); the different amounts of advances of pay for the different ranks (Article 60); the execution of penalties not being more severe than the punishment for members of the armed forces of the Detaining Power of equivalent rank (Article 88); the disciplinary measures applicable to different ranks (Article 89(2)); and the manner in which these measures are to be applied (Articles 97(3) and 98(2)).
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b. Sex
1747  Several provisions of the Third Convention seek to ensure that the protection and care of women prisoners take into account their specific needs and the distinct risks they face during the period of internment, in particular regarding medical care and their need for privacy and safety. Such needs and risks may be physical or physiological, but they may also stem from social, economic, cultural and political structures in a society. Relevant provisions dictate, for instance, that women be accorded separate dormitories (Article 25(4)) and hygiene facilities (Article 29(2)) and that their sex be taken into account in the assignment of work (Article 49(1)), in the application of disciplinary or judicial measures (Articles 88(2) and (3), 97(4) and 108(2)),[12] and in the provision of medical care.[13]
1748  Article 16 is also to be read in parallel with the general obligation in Article 14(2) according to which women are to be treated ‘with all the regard due to their sex’ and that their treatment may in no case be inferior to that of men prisoners of war. The present article foresees non-adverse distinction in the treatment of women prisoners of war also on matters for which no specific provisions exist in the Convention.
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3. Non-adverse distinction
1749  Embedded in the obligation of equal treatment is permissible non-adverse distinction. As discussed above, to achieve substantive equality of all, prisoners of war in different situations and with different needs must be treated differently to accommodate for these circumstances.[14]
1750  If some prisoners are afforded different treatment, it must be ‘by reason of’ one of the qualifying factors. That means that the different treatment must relate to the different situation that some prisoners are in. Without an objective and reasonable justification, the difference in treatment would be adverse and violate the obligation to treat all prisoners alike.[15]
1751  Article 16 explicitly lists health, age and professional qualifications as potential grounds for ‘privileged treatment’ of prisoners of war. The term ‘privileged’ makes clear that such distinctions may only be beneficial to that person. Privileged treatment of some prisoners may never serve as an excuse for the Detaining Power to treat other prisoners below the standards required by the Convention.[16] This list of grounds is non-exhaustive as non-adverse distinction based on other grounds is implied in the obligation of equal treatment.
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a. State of health
1752  Under Article 15, the Detaining Power must provide for the medical attention required by the state of health of the prisoners of war in its hands. Different medical conditions may require different forms of medical treatment, and therefore certain distinctions may be necessary.[17] Such distinctions are non-adverse and are important in fulfilling the obligation to provide the wounded and sick with the care required by their medical condition.[18]
1753  The Third Convention mentions various situations where considerations regarding prisoners’ health may lead to different treatment. For example, only physically fit prisoners of war may be required to work.[19] Another example is that during hostilities seriously wounded or sick prisoners of war must be repatriated to the Power on which they depend.[20] Other prisoners of war only have to be released and repatriated at the cessation of active hostilities.[21] In addition to the considerations specified in the Convention, other types of differentiation may be necessary if the circumstances or special medical needs of a prisoner so require.
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b. Age
1754  Prisoners of different ages may have different needs which the Detaining Power must take into account in applying the Convention. The Convention mentions age in several other articles. For example, Articles 44 and 45 require the Detaining Power to treat prisoners of war with the regard due to their age, and Article 49(1) requires that age be a consideration in assigning work. More generally, respect for a person’s age is mandated by Article 14, which enjoins the Detaining Power to respect a prisoner of war’s person and honour. This criterion covers all age groups.
1755  The Third Convention does not include any specific provisions relating to the treatment of child prisoners of war.[22] In general, if humanitarian law is respected, certain age cohorts of children would never be recruited into armed forces and therefore would not become prisoners of war, depending on the treaties to which a State is party.[23] Whether they are recruited lawfully or unlawfully, children in the power of an adverse Party remain entitled to special respect and protection.[24] In a prisoner-of-war camp setting, such special treatment includes access to education suited to their age[25] and separate accommodation (except where families are accommodated together as units).[26] It may furthermore consist of a distinct disciplinary or judicial regime[27] and special arrangements for family contacts. A balance must be found in each case between accommodating families together and the potential need to separate minors from all adult prisoners of war. Any such measures must also take into account cultural norms relating to the way in which families live together, for instance regarding the sharing of rooms by family members of different genders.
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c. Professional qualifications
1756  This consideration is particularly relevant to the rules on labour and financial resources of prisoners of war. Professional qualifications may influence the type of work prisoners of war are assigned to, and therefore their pay.
1757  According to Article 32, prisoners of war who are physicians, surgeons, dentists, nurses or medical orderlies but are not attached to the medical services of their armed forces must be treated in the same way as retained medical personnel if they are required to do medical work for fellow prisoners of war.[28] Similarly, Article 36 requires that prisoners of war who are ministers of religion without being formally attached to the religious personnel of their armed forces be treated in the same way as retained chaplains.[29]
1758  Article 16 makes clear that different work assignments and other distinctions in treatment justified by a prisoner of war’s professional qualifications are non-adverse and do not violate the requirement of equality of treatment.
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d. Other grounds for non-adverse distinction
1759  Further to the above grounds for privileged treatment, other factors may also provide objective and reasonable justification for non-adverse distinction and require different treatment of some prisoners of war to achieve substantive equality.
1760  For example, the geographic location of a camp and climatic conditions may naturally affect the treatment of prisoners of war.[30] If a Detaining Power runs prisoner-of-war camps in different climatic zones, objective considerations relating to the climate and existing health hazards, such as vector-borne diseases, may call for specific preventive measures such as the provision of mosquito nets or vaccination, as well as different standards of clothing, a different food regime or different recreational activities for prisoners.
1761  Grounds for non-adverse distinction may also be influenced by how the social, economic, cultural or religious context in a society shapes roles or needs and capacities among prisoners of war based on age, gender, disability and background. Taking such considerations into account is not a violation of the prohibition of adverse distinction, but rather contributes to the humane and equal treatment of prisoners of war. For example, to ensure equal treatment of prisoners with disabilities in relation to prisoners without disabilities, specific measures may be required to make camp services and facilities accessible for them, such as presenting information about those services and facilities in accessible formats or making adjustments to infrastructure. To ensure equal treatment of women, they must be treated with all due regard to their sex.[31] This means that in terms of medical care, for example, female prisoners may require access to ante- and postnatal care and gynaecological and reproductive health care.[32] Similarly, a prisoner’s religious beliefs may make some differentiation necessary in such aspects of life as nutrition, clothing and leisure activities.
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D. Adverse distinction
1762  According to Article 16, all prisoners of war must be treated alike by the Detaining Power, without any adverse distinction based on race, nationality, religious belief or political opinions, or any other distinction founded on similar criteria. The list of criteria of prohibited adverse distinction in Article 16 is similar, but not identical, to those found in other provisions of humanitarian law.[33]
1763  To be fully effective, the prohibition of ‘any adverse distinction’ under Article 16 covers not only measures that single out certain persons protected under the Third Convention, but also standardized and seemingly neutral measures that have the effect of adversely affecting certain prisoners of war. For example, the distribution of standardized food rations, while generally of adequate nutritional value, may be inadequate or culturally intolerable for some. When adopting general policies, the Detaining Power therefore needs to take into account the potential consequences of these policies on all prisoners of war who are affected by them.
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1. Race
1764  In common parlance, the notions of race, nationality and ethnicity are sometimes used interchangeably, while at other times they are used to denote different concepts.[34] Discrimination based on all these grounds is prohibited by Article 16.[35] Given the ill-treatment and discrimination that prisoners of war of certain origins or backgrounds suffered during the Second World War,[36] race was included in all the provisions governing equality of treatment in the 1949 Geneva Conventions.[37]
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2. Nationality
1765  No distinction may be made on the basis of nationality. Thus, nationals of third States who belong to the armed forces of an enemy belligerent must be treated the same way as prisoners of war who are nationals of the enemy belligerent.[38] By the same token, nationals of the Detaining Power who are held as prisoners of war by their own country must be given the same treatment as other prisoners of war.[39] Any differentiation in treatment of prisoners of war based on nationality during captivity would amount to adverse distinction.
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3. Religious belief
1766  Article 14(1) requires that religious beliefs be respected in all circumstances.[40] The religious preferences of prisoners of war are also taken into account in a number of provisions of the Convention.
1767  Pursuant to Article 26(1), consideration must be given to the prisoners’ habitual diet. This allows the prisoners to maintain cultural and religious practices.[41] Article 34 enjoins the Detaining Power to respect the religious practices of prisoners of war and to provide them with adequate premises in which to perform them. According to Article 72(1), prisoners of war must be allowed to receive, among other things, articles of a religious character in their relief shipments. Article 120(4) and (5) provides that religious practices must be taken into account when burying a prisoner of war. Non-compliance with any of these provisions as a result of adverse distinction may thus also be a violation of Article 16.
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4. Political opinions
1768  Political opinions are an essential component of freedom of thought and form part of the person of a prisoner of war that, according to Article 14(1), must be respected in all circumstances.[42] Since the Second World War, the ICRC has encountered a number of examples where prisoners of war were treated differently, for example with regard to the amount of time allocated for outdoor activities or access to doctors, depending on whether or not they expressed support for a Detaining Power’s ideology.
1769  Affording different treatment to prisoners of war based solely on their political opinions or convictions constitutes an adverse distinction and is thus prohibited.[43] This includes any adverse distinction based on political opinions the prisoners of war are believed to hold, irrespective of whether they have shown signs of such opinions or not. Nevertheless, prisoners of war may in limited cases be segregated from other prisoners based on their specific role, for instance as political officer or propagandist, if so doing serves a security purpose. In such cases, the Detaining Power would need to exercise great care that segregation does not involve, or evolve into, unequal adverse treatment prohibited by this article.
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5. Any other distinction founded on similar criteria
1770  In addition to the specific grounds listed, Article 16 prohibits ‘any other distinction founded on similar criteria’. This phrase confirms that the list in Article 16 is non-exhaustive. The drafters rightly anticipated a dynamic evolution of the catalogue of prohibited criteria and chose a sufficiently open formulation which could accommodate additional grounds.[44] The wording of Article 16 allows for the consideration of such criteria, including those spelled out in Additional Protocol I, which prohibits any adverse distinction founded 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’.[45] Adverse distinctions founded on other grounds, such as ethnicity,[46] disability, level of education or family connections of a prisoner of war, and as noted above, age or state of health, would therefore equally be prohibited.
1771  Any list of prohibited criteria will necessarily be incomplete. Article 16 needs to be interpreted in light of legal and social developments, and the residual category of ‘any other distinction based on similar criteria’ makes express provision for this.
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Select bibliography
Green, Leslie C., The Contemporary Law of Armed Conflict, 3rd edition, Manchester University Press, 2008.
Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law, Volume I: Rules, ICRC/Cambridge University Press, 2005, https://www.icrc.org/customary-ihl/eng/docs/v1.
Kolb, Robert and Hyde, Richard, An Introduction to the International Law of Armed Conflicts, 3rd edition, Hart Publishing, Oxford, 2008.
Levie, Howard S., Prisoners of War in International Armed Conflict, International Law Studies, U.S. Naval War College, Vol. 59, 1978.
Maia, Catherine, Kolb, Robert and Scalia, Damien, La Protection des Prisonniers de Guerre en Droit International Humanitaire, Bruylant, Brussels, 2015.
Moeckli, Daniel, ‘Equality and non-discrimination’, in Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumaran (eds), International Human Rights Law, 3rd edition, Oxford University Press, 2018, pp. 148–163.
Pathé, Anne-Marie and Théofilakis, Fabien (eds), Wartime Captivity in the Twentieth Century: Archives, Stories, Memories, Berghahn Books, Oxford, 2016.
Rona, Gabor and McGuire, Robert J., ‘The Principle of Non-Discrimination’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 191–205.
Sassòli, Marco, International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare, Edward Elgar Publishing, Cheltenham, 2019, pp. 559–561.
Scheipers, Sibylle (ed.), Prisoners in War, Oxford University Press, 2010.

1 - Kolb/Hyde, p. 209.
2 - Lieber Code (1863), Articles 49, 50 and 57. See also Geneva Convention (1864), Article 6; Geneva Convention (1906), Article 1; Hague Convention (X) (1907), Article 11; and Geneva Convention on the Wounded and Sick (1929), Article 1.
3 - Maurice Bretonnière, L’application de la Convention de Genève aux prisonniers français en Allemagne durant la seconde guerre mondiale (typewritten thesis), Paris, 1949, p. 62.
4 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 278. On the inclusion of the same principle and wording in the First Convention, see Report of the Preliminary Conference of National Societies of 1946, p. 19, and Report of the Conference of Government Experts of 1947, p. 12. See also Levie, pp. 173–174.
5 - Similar obligations are found in First Convention, Article 12; Second Convention, Article 12; Fourth Convention, Articles 13 and 27; common Article 3; Additional Protocol I, Articles 9 and 75; and Additional Protocol II, Articles 2 and 4. See also ICRC Study on Customary International Humanitarian Law (2005), Rule 88. Applicable in both international and non-international armed conflict, this rule prohibits discrimination in the application of humanitarian law for all categories of persons affected by an armed conflict; Henckaerts/Doswald-Beck, commentary on Rule 88, pp. 308–310.
6 - See Rona/McGuire, pp. 192–193.
7 - For a contrary view, see Rup C. Hingorani, Prisoners of War, 2nd edition, Oceana Press, Dobbs Ferry, 1982, pp. 113–114.
8 - In relation to Article 4 of the 1929 Geneva Convention on Prisoners of War, see also Alfons Waltzog, ‘Commentaires sur la Convention relative au traitement des prisonniers de guerre du 27 juillet 1929’, unpublished, available in the ICRC library, 1929, p. 8: ‘[D]es améliorations dérogeant à la Convention relative aux P.G., peuvent être consentie à l’ensemble des prisonniers, par accord entre les belligérants.’ (‘[I]mprovements derogating from the Convention relative to Prisoners of War may be agreed for all prisoners, by agreement between the belligerents.’)
9 - Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 154.
10 - See e.g. Moeckli, pp. 149–151, and Rona/McGuire, pp. 194–195. See also Committee on the Elimination of Discrimination against Women, General recommendation No. 25: Article 4, paragraph 1, of the Convention (temporary special measures), 2004, paras 8–12; PCIJ, Minority Schools in Albania case, Advisory Opinion, 1935, paras 64–65; European Court of Human Rights, Thlimmenos v. Greece, Judgment, 2000, para. 44; and Inter-American Court of Human Rights, Juridical Condition and Rights of Undocumented Migrants case, Advisory Opinion, 2003, paras 83–84.
11 - As such, it also reflects the broader principle in Article 14(1) whereby prisoners of war should in all circumstances be treated with respect for their persons and their honour.
12 - See also Article 76(3) of Additional Protocol I, which prohibits the infliction of the death penalty on pregnant women or mothers with dependent infants. The US military manual states that, although it is not expressly provided for by the Convention, female prisoners of war should be under the immediate supervision of women even when outside of the disciplinary or judicial setting; Law of War Manual, 2016, p. 551, para. 9.5.6.
13 - See the commentary on Article 30, para. 2230. Regarding maternity cases, see also the commentary on Article 12(4) of the First Convention. Expectant mothers and mothers of newborn babies should receive adequate antenatal and postnatal treatment. As far as possible they should not be separated from their babies, at least while breastfeeding. Pregnant or nursing women in detention may similarly require tailored nourishment and medical care or adjustments in the organization and equipment of their accommodation. Pregnant women who are fit to travel and who cannot be accommodated in a neutral country must be repatriated; see Articles 109(1), 110(1) and Annex I, para. I.A.3(f). Women with children in the camp should, together with their children, also benefit from accommodation in a neutral country or repatriation. See also Maia/Kolb/Scalia, p. 174, and Sandesh Sivakumaran, ‘Armed Conflict-Related Detention of Particularly Vulnerable Persons: Challenges and Possibilities’, International Law Studies, Vol. 94, No. 39, 2018, pp. 39–74, at 71. See also the commentary on Article 109, para. 4291.
14 - See para. 1743 of this commentary.
15 - See Rona/McGuire, pp. 192–194. The US military manual states that differentiated treatment is permissible as long as it is non-adverse and is effected to advance legitimate interests, such as maintaining order in the camp; Law of War Manual, 2016, p. 550, para. 9.5.5. More favourable treatment of some prisoners of war may also be based on a special agreement; see para. 1741 of this commentary. With regard to affording certain prisoners better treatment as an incentive in the context of interrogations, see the commentary on Article 17, para. 1830, fn. 51. Some States and commentators consider this permissible, while others say that it would be unlawful to give particularly cooperative prisoners more favourable treatment.
16 - Report of the Conference of Government Experts of 1947, p. 121. See also the commentary on Article 3, para. 616.
17 - On the distinct medical needs of women, see the commentary on Article 14(2), paras 1683–1685. Differentiated treatment between pregnant women/women with young children and other women may also be justified.
18 - This rationale is also reflected in Article 12(2) of the First Convention and Article 12(3) of the Second Convention, which provide that urgent medical reasons are a ground for priority in treatment; see the commentaries on Article 12 of the First Convention, paras 1392–1396, and on Article 12 of the Second Convention, paras 1437–1441.
19 - See Articles 49(1) and 55(2).
20 - See Article 109(1).
21 - See Article 118(1).
22 - See also Introduction, para. 25.
23 - Prohibitions of the recruitment and use of children in hostilities are contained in a number of international humanitarian law and human rights treaties, as well as in customary law. See Additional Protocol I, Article 77(2); Additional Protocol II, Article 4(3)(c); Convention on the Rights of the Child (1989), Article 38(3); Optional Protocol on the Involvement of Children in Armed Conflict (2000), Articles 2, 3 and 4; African Charter on the Rights and Welfare of the Child (1990), Article 22(2); and ICRC Study on Customary International Humanitarian Law (2005), Rules 136–137.
24 - See Additional Protocol I, Article 77(3), and ICRC Study on Customary International Humanitarian Law (2005), Rule 135.
25 - See the commentary on Article 38, section C.2.b.
26 - See ICRC Study on Customary International Humanitarian Law (2005), Rule 120, and Additional Protocol I, Articles 77(4) and 75(5). See also the commentaries on Article 25, para. 2103, and on Article 108, para. 4214.
27 - On child justice matters, see the commentaries on Article 84, para. 3609, on Article 102, section D, and on Article 108, para. 4200. See also Article 77(5) of Additional Protocol I, which provides that prisoners of war below the age of 18 may not be executed for offences related to an armed conflict.
28 - This work must be distinguished from that of permanent medical personnel who fall into the hands of the adverse Party and who are retained personnel and not prisoners of war; see Articles 24 and 28(2) of the First Convention.
29 - Chaplains formally attached to the armed forces who fall into the hands of the adverse Party are retained personnel and not prisoners of war; see Articles 24 and 28(2) of the First Convention.
30 - At the 1947 Conference of Government Experts, it was stated that differentiation in treatment ‘might arise from sometimes unavoidable outside circumstances (e.g. geographical situation of camps)’; Report of the Conference of Government Experts of 1947, p. 121.
31 - Article 14(2). See also section C.2.b of this commentary.
32 - See fn. 17 of this commentary.
33 - See First Convention, Article 12(2); Second Convention, Article 12(2); Fourth Convention, Article 27(3); common Article 3; Additional Protocol I, Articles 9(1) and 75(1); and Additional Protocol II, Articles 2(1) and 4(1).
34 - See e.g. Article 1(1) of the 1965 Convention on the Elimination of Racial Discrimination, according to which the term ‘racial discrimination’ must be read as including differentiation based on race, colour, descent, or national or ethnic origin.
35 - Race and nationality are explicitly mentioned in Article 16 as prohibited grounds for adverse distinction. Nationality is discussed in section D.2. Adverse distinction based on ethnicity is also prohibited by Article 16 and covered by the phrase ‘or any other distinction founded on similar criteria’; see para. 1770 of this commentary.
36 - See Scheipers, pp. 115–116. Article 9(3) of the 1929 Convention allowed for prisoners of war to be separated on the basis of ‘races or nationalities’. Because of abuses of this provision during the Second World War, the reference to ‘race’ was omitted in the 1949 Convention. Article 22(3) of the 1949 Convention provides that prisoners of war must in principle be assembled according to their nationality, language and custom. For further details, see the commentary on Article 22, section E.
37 - See e.g. Report of the Preliminary Conference of National Societies of 1946, p. 68, and Report of the Conference of Government Experts of 1947, p. 12.
38 - Green, p. 227. See also Article 22(3), which provides that even though the assembly of prisoners of war must be based on nationality, language and customs, prisoners belonging to the same armed forces may not be separated. Only if they consent may prisoners of different nationality belonging to the same armed forces be separated.
39 - For a discussion of the granting of prisoner-of-war status to own nationals, see the commentary on Article 4, section C.2.
40 - See also the commentary on Article 14, paras 1659–1660 and 1665–1666.
41 - See the commentary on Article 26, section C.2.
42 - See the commentary on Article 14, paras 1665, 1669–1670 and 1672.
43 - See also Allan Rosas, The Legal Status of Prisoners of War: A Study in International Humanitarian Law Applicable in Armed Conflicts, Åbo Akademi University, Turku/Åbo, 1976, reprinted 2005, p. 436.
44 - See the discussion of adverse distinction in the context of Article 12 of the First Convention, Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 190–191.
45 - See Additional Protocol I, Articles 9(1) and 75(1). See also ICRC Study on Customary International Humanitarian Law (2005), Rule 88. The human rights law principle of non-discrimination refers to similar criteria; see e.g. UN Charter (1945), Article 1(3); Convention on the Elimination of Racial Discrimination (1965), Article 1(1); International Covenant on Civil and Political Rights (1966), Article 2(1); International Covenant on Economic, Social and Cultural Rights (1966), Articles 2(2) and 3; Convention on the Elimination of Discrimination against Women (1979), Article 1; Convention on the Rights of the Child (1989), Article 2(1); European Convention on Human Rights (1950), Article 14; American Convention on Human Rights (1969), Article 1(1); African Charter on Human and Peoples’ Rights (1981), Article 2; and Arab Charter on Human Rights (2004), Article 2.
46 - See e.g. Eritrea-Ethiopia Claims Commission, Prisoners of War, Ethiopia’s Claim, Partial Award, 2003, para. 83. See also para. 1764 of this commentary.