Rule 138. The Elderly, Disabled and Infirm

Rule 138. The elderly, disabled and infirm affected by armed conflict are entitled to special respect and protection.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
The recognition of the special respect and protection due to the elderly is contained in various provisions of the Third and Fourth Geneva Conventions relating to their evacuation and the treatment of persons deprived of their liberty.[1] These provisions are set forth in numerous military manuals,[2] including those which apply to non-international armed conflicts.[3] They are also included in the legislation of some States.[4]
The Plan of Action for the years 2000–2003, adopted by the 27th International Conference of the Red Cross and Red Crescent in 1999, requires that all parties to an armed conflict take effective measures to ensure that in the conduct of hostilities, every effort is made to spare the lives of and protect and respect the civilian population, with particular protective measures for groups with special vulnerabilities such as the elderly.[5] The Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights in 1993 called upon States and parties to armed conflicts strictly to observe international humanitarian law out of concern for the violations that affected the civilian population, in particular the elderly.[6]
No official contrary practice was found with respect to either international or non-international armed conflicts.
The recognition of the special respect and protection due to the disabled and infirm is contained in various provisions of the Third and Fourth Geneva Conventions relating to their evacuation and the treatment of persons deprived of their liberty.[7] The Fourth Geneva Convention provides that the infirm “shall be the object of particular protection and respect”.[8] The right of the disabled to protection and care is also recognized in instruments pertaining to non-international armed conflicts.[9]
Many military manuals require special respect and protection for the disabled and infirm,[10] including those which apply to non-international armed conflicts.[11] This requirement is also set forth in the legislation of some States.[12]
The Plan of Action for the years 2000–2003, adopted by the 27th International Conference of the Red Cross and Red Crescent in 1999, requires that all parties to an armed conflict take effective measures to ensure that in the conduct of hostilities, every effort is made to spare the lives of, protect and respect the civilian population, with particular protective measures for groups with special vulnerabilities such as persons with disabilities.[13] The Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights called upon States and parties to armed conflicts strictly to observe international humanitarian law out of concern for the violations that affected the civilian population, in particular the disabled.[14]
No official contrary practice was found with respect to either international or non-international armed conflicts.
The protection due to the elderly and disabled may differ according to the circumstances in which they find themselves. For example, the Fourth Geneva Convention indicates as possibilities of honouring this obligation the establishment of safety zones and agreements for the evacuation from besieged or encircled areas of the elderly, disabled and infirm.[15] Priority in the release and repatriation of wounded and sick detainees is another way of honouring this obligation.[16] With respect to the disabled, Additional Protocol I considers that the protection and care due to the wounded and sick is also due to persons with a disability and to “other persons who may be in need of immediate medical assistance or care, such as the infirm … and who refrain from any act of hostility”.[17] They are thus entitled to the rights identified in Chapter 34, including adequate medical care and priority in treatment based on medical grounds (see Rule 110).
[1] Third Geneva Convention, Articles 16, 44–45 and 49 (cited in Vol. II, Ch. 39, § 604); Fourth Geneva Convention, Articles 17, 27, 85 and 119 (ibid., §§ 603–604).
[2] See, e.g., the military manuals of Argentina (ibid., § 606), Australia (ibid., § 607), Canada (ibid., § 608), Colombia (ibid., § 609), El Salvador (ibid., §§ 610–611), France (ibid., §§ 612–613), Kenya (ibid., § 614), Morocco (ibid., § 615), New Zealand (ibid., § 616), Philippines (ibid., § 617), Spain (ibid., § 618), Sweden (ibid., § 619), Switzerland (ibid., § 620), United Kingdom (ibid., §§ 621–622) and United States (ibid., §§ 623–624).
[3] See, e.g., the military manuals of Australia (ibid., § 607), Colombia (ibid., § 609), El Salvador (ibid., §§ 610–611), Kenya (ibid., § 614) and Philippines (ibid., § 617).
[4] See, e.g., the legislation of Azerbaijan (ibid., § 625), Bangladesh (ibid., § 626), Ireland (ibid., § 627), Norway (ibid., § 628) and Venezuela (ibid., § 629).
[5] 27th International Conference of the Red Cross and Red Crescent, Res. I (adopted by consensus) (ibid., § 635).
[6] World Conference on Human Rights, Vienna Declaration and Programme of Action (ibid., § 634).
[7] Third Geneva Convention, Articles 16, 30, 44–45, 49 and 110 (ibid., §§ 639–640 and 644); Fourth Geneva Convention, Articles 16–17, 21–22, 27, 85, 119 and 127 (ibid., §§ 641–644).
[8] Fourth Geneva Convention, Article 16, first paragraph (ibid., § 638).
[9] See, e.g., Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines, Part III, Article 2(24) (ibid., § 646).
[10] See, e.g., the military manuals of Argentina (ibid., §§ 647–648), Australia (ibid., §§ 648–649), Canada (ibid., § 651), Colombia (ibid., § 652), El Salvador (ibid., § 653), France (ibid., §§ 654–655), Madagascar (ibid., § 656), New Zealand (ibid., § 657), Nigeria (ibid., § 658), Spain (ibid., § 659), Switzerland (ibid., § 660), United Kingdom (ibid., § 661) and United States (ibid., §§ 662–663).
[11] See, e.g., the military manuals of Australia (ibid., § 648), Colombia (ibid., § 652), El Salvador (ibid., § 653), Madagascar (ibid., § 656) and Nigeria (ibid., § 658).
[12] See, e.g., the legislation of Azerbaijan (ibid., § 664), Bangladesh (ibid., § 665), Ireland (ibid., § 666) and Norway (ibid., § 667).
[13] 27th International Conference of the Red Cross and Red Crescent, Res. I (adopted by consensus) (ibid., § 673).
[14] World Conference on Human Rights, Vienna Declaration and Programme of Action (ibid., § 672).
[15] Fourth Geneva Convention, Articles 14 and 17 (ibid., §§ 603 and 642).
[16] Third Geneva Convention, Articles 109–117; Fourth Geneva Convention, Article 132.
[17] Additional Protocol I, Article 8(a) (adopted by consensus) (cited in Vol. II, Ch. 39, § 645).