Rule 88. Non-Discrimination
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.
Volume II, Chapter 32, Section B.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
The prohibition of adverse distinction in the treatment of civilians and persons hors de combat is stated in common Article 3 of the Geneva Conventions, as well in the Third and Fourth Geneva Conventions.[1] It is recognized as a fundamental guarantee by Additional Protocols I and II.[2] It is contained in numerous military manuals.[3] It is also supported by official statements and other practice.[4]
The notion of “adverse distinction” implies that while discrimination between persons is prohibited, a distinction may be made to give priority to those in most urgent need of care. In application of this principle, no distinction may be made among the wounded, sick and shipwrecked on any grounds other than medical (see Rule 110). Another application can be found in Article 16 of the Third Geneva Convention, which provides that all prisoners of war must be treated alike, “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”.[5] There is no indication that adverse distinction is lawful in relation to some rules, and no State has asserted that any such exception exists.
The human rights law equivalent of the prohibition of adverse distinction is the principle of non-discrimination. The prohibition of discrimination in the application of human rights law is included in the Charter of the United Nations and in the major human rights treaties.[6] With respect to the derogability of the right to non-discrimination, the UN Human Rights Committee stated in its General Comment on Article 4 of the International Covenant on Civil and Political Rights that:
Even though article 26 or the other Covenant provisions related to non-discrimination … have not been listed among the non-derogable provisions in article 4, paragraph 2, there are elements or dimensions of the right to non-discrimination that cannot be derogated from in any circumstances. In particular, the provision of article 4, paragraph 1, must be complied with if any distinctions between persons are made when resorting to measures that derogate from the Covenant.[7]
Article 4(1) of the Covenant provides that measures that derogate from it may not involve “discrimination solely on the ground of race, colour, sex, language, religion or social origin”.[8] While discrimination on grounds of political or other opinion, national origin, property, birth or other status is prohibited under Article 2(1) of the Covenant, these grounds are not listed in Article 4(1) dealing with derogations.[9] It is significant, however, that the Additional Protocols prohibit discrimination on grounds of political or other opinion, national origin, wealth, birth or other status and thus recognize that the prohibition of discrimination on such grounds cannot be dispensed with, even during armed conflict.[10] This is also the approach of the African Charter on Human and Peoples’ Rights and the Convention on the Rights of the Child, which prohibit discrimination on grounds of political or other opinion, national origin, property, birth or other status and do not allow for any derogation.[11]
According to Additional Protocol I, “practices of apartheid and other inhuman or degrading practices involving outrages upon personal dignity, based on racial discrimination” constitute grave breaches.[12] This rule is set forth in several military manuals.[13] The legislation of many States also contains this rule.[14] In addition, apartheid constitutes a crime against humanity under several international treaties and other international instruments.[15] The legislation of several States also prohibits apartheid as a crime against humanity.[16]
[1] Geneva Conventions, common Article 3 (cited in Vol. II, Ch. 32, § 356); Third Geneva Convention, Article 16; Fourth Geneva Convention, Article 13.
[2] Additional Protocol I, Article 75(1) (adopted by consensus) (cited in Vol. II, Ch. 32, § 368); Additional Protocol II, Article 4(1) (adopted by consensus) (ibid., § 370); see also Additional Protocol I, preamble (ibid., § 366), Article 9(1) (adopted by consensus) (ibid., § 367), Article 69(1) (adopted by consensus) (ibid., § 462) and Article 70(1) (adopted by consensus) (ibid., § 463); Additional Protocol II, Article 2(1) (adopted by consensus) (ibid., § 369) and Article 18(2) (adopted by consensus) (ibid., § 464).
[3] See, e.g., the military manuals of Argentina (ibid., §§ 385–386, 469, 499 and 554–555), Australia (ibid., §§ 387, 500–501 and 556), Belgium (ibid., §§ 388 and 502–503), Benin (ibid., §§ 389, 504 and 557), Bosnia and Herzegovina (ibid., §§ 390 and 505), Burkina Faso (ibid., § 391), Cameroon (ibid., § 392), Canada (ibid., §§ 393, 470–471, 506 and 558–559), Colombia (ibid., §§ 394–395), Congo (ibid., § 396), Croatia (ibid., § 507), Dominican Republic (ibid., § 508), Ecuador (ibid., §§ 509 and 560), El Salvador (ibid., § 397), France (ibid., §§ 398–399 and 510), Germany (ibid., §§ 472, 511 and 561–562), Israel (ibid., §§ 400 and 512), Italy (ibid., §§ 473 and 513), Kenya (ibid., § 401), Madagascar (ibid., § 402), Mali (ibid., § 403), Morocco (ibid., §§ 404 and 514), Netherlands (ibid., §§ 405–406, 515–516 and 563), New Zealand (ibid., §§ 407, 474 and 564), Nicaragua (ibid., §§ 408, 475 and 517), Nigeria (ibid., §§ 518–519 and 565), Peru (ibid., § 409), Senegal (ibid., §§ 410–411), Spain (ibid., §§ 520 and 566), Sweden (ibid., §§ 412 and 476), Switzerland (ibid., §§ 477, 521 and 567), Togo (ibid., §§ 413, 522 and 508), United Kingdom (ibid., §§ 414, 478–479, 523–524 and 569), United States (ibid., §§ 415–417, 480–481, 525–527 and 570–572) and Yugoslavia (ibid., § 528).
[4] See, e.g., the statements of Bosnia and Herzegovina (ibid., § 534) and United States (ibid., § 440), the practice of Iraq (ibid., § 438) and the reported practice of China (ibid., § 487) and United States (ibid., § 441).
[5] Third Geneva Convention, Article 16.
[6] UN Charter, Article 1(3) (cited in Vol. II, Ch. 32, § 355); International Covenant on Civil and Political Rights, Article 2(1) (ibid., § 359); International Covenant on Economic, Social and Cultural Rights, Articles 2(2) and 3 (ibid., §§ 362–363); European Convention on Human Rights, Article 14 (ibid., § 357); American Convention on Human Rights, Article 1(1) (ibid., § 364); African Charter on Human and Peoples’ Rights, Article 2 (ibid., § 372); Convention on the Elimination of Racial Discrimination, Article 2 (ibid., § 358); Convention on the Elimination of Discrimination against Women, Article 2 (ibid., § 371); Convention on the Rights of the Child, Article 2(1) (ibid., § 373).
[7] UN Human Rights Committee, General Comment No. 29 (Article 4 of the International Covenant on Civil and Political Rights) (ibid., § 450).
[8] International Covenant on Civil and Political Rights, Article 4(1) (ibid., § 360); see also American Convention on Human Rights, Article 27(1), which contains a similar provision (ibid., § 365).
[9] International Covenant on Civil and Political Rights, Article 2(1) (ibid., § 359) and Article 4(1) (ibid., § 360).
[10] Additional Protocol I, preamble (ibid., § 366), Article 9(1) (adopted by consensus) (ibid., § 367) and Article 75(1) (adopted by consensus) (ibid., § 368); Additional Protocol II, Article 2(1) (adopted by consensus) (ibid., § 369) and Article 4(1) (adopted by consensus) (ibid., § 370).
[11] African Charter on Human and Peoples’ Rights, Article 2 (ibid., § 372); Convention on the Rights of the Child, Article 2(1) (ibid., § 373).
[12] Additional Protocol I, Article 85(4)(c) (adopted by consensus) (ibid., § 584).
[13] See, e.g., the military manuals of Argentina (ibid., § 589), Canada (ibid., § 590), Germany (ibid., § 592), Italy (ibid., § 593), Netherlands (ibid., § 594), New Zealand (ibid., § 595), South Africa (ibid., § 597), Spain (ibid., § 598) and Switzerland (ibid., § 599).
[14] See, e.g., the legislation of Armenia (ibid., § 600), Australia (ibid., §§ 601–602), Azerbaijan (ibid., § 603), Belgium (ibid., § 604), Bulgaria (ibid., § 605), Canada (ibid., § 607), Colombia (ibid., § 609), Cook Islands (ibid., § 611), Cyprus (ibid., § 612), Czech Republic (ibid., § 613), Georgia (ibid., § 615), Hungary (ibid., § 616), Ireland (ibid., § 617), Moldova (ibid., § 621), Netherlands (ibid., § 622), New Zealand (ibid., § 623), Niger (ibid., § 626), Norway (
ibid., § 627), Peru (ibid., § 628), Slovakia (ibid., § 629), Spain (ibid., § 630), Tajikistan (ibid., § 631), United Kingdom (ibid., § 633) and Zimbabwe (ibid., § 635); see also the draft legislation of El Salvador (ibid., § 614), Jordan (ibid., § 618), Lebanon (ibid., § 619) and Nicaragua (ibid., § 625).
[15] International Convention on the Suppression and Punishment of the Crime of Apartheid, Article I (ibid., § 583); ICC Statute, Article 7(1)(j) (ibid., § 585); UNTAET Regulation 2000/15, Section 6(1)(j) (ibid., § 588).
[16] See, e.g., the legislation of Australia (ibid., § 602), Canada (ibid., § 608), Congo (ibid., § 610), Mali (ibid., § 620), New Zealand (ibid., § 624) and United Kingdom (ibid., § 634); see also the draft legislation of Burundi (ibid., § 606) and Trinidad and Tobago (ibid., § 632).
