Practice Relating to Rule 88. Non-Discrimination
The Military Manual (1993) of the Netherlands provides that protected persons shall be treated humanely “without adverse distinction based on race, colour, sex, language, religion or belief, political or other opinion, nationality or social origin, wealth, birth or other status, or on any other similar criteria”.
With respect to non-international armed conflict, the manual restates the principle of non-discrimination contained in common Article 3 of the 1949 Geneva Conventions and Article 4 of the 1977 Additional Protocol II.
The Military Handbook (1995) of the Netherlands provides with respect to protected persons: “Any discrimination based on race, religion, sex … is prohibited.”
The Military Manual (2005) of the Netherlands states:
Individuals should be treated without detrimental discrimination on the grounds of race, gender, nationality, language, status, health, political, philosophical or religious conviction or any other such criteria.
This principle does not prejudice the distinction which may be made in the treatment of individuals in order to remedy irregularities arising from their personal circumstances, needs or emergency situation.
The manual lists the “[p]rohibition of discrimination” as one of the standards derived from the principle of “[h]umane conduct”.
The manual further states:
Protected persons must be humanely treated in all circumstances, and should at least receive protection under the fundamental guarantees, without any negative discrimination against them on grounds of race, skin colour, sex, language, religion or belief, political or other convictions, national or social origin, wealth, birth or other status, or any other similar criteria.
In its chapter on non-international armed conflict, the manual states:
1049. Common Article 3 of the Geneva Conventions of 1949, and Article 4 of AP II [1977 Additional Protocol II], contain a number of fundamental guarantees of humane treatment that relate to all who are not participating directly in the hostilities, or have ceased to do so. Primarily this means civilians, but also members of the armed forces, dissident militias and armed groups who, due to wounds, sickness or capture, are no longer taking part in the combat or have been placed hors de combat. They must be treated without any negative discrimination on any grounds whatsoever …
1055. The wounded, the sick and shipwreck survivors must be respected and protected, whether or not they have taken part in the armed conflict. They must in all circumstances be humanely treated, and provided with the requisite medical care without discrimination.
In its chapter on peace operations, under the heading “Code of Conduct for the Armed Forces”, the manual states:
Members of the armed forces must scrupulously obey the rules of national and international law. They must show respect to their fellow human beings, even when they belong to another ethnic group or have a different culture.
In addition, the manual provides: “Persons who are not, or have ceased to be, participants in fighting or hostilities should be protected and treated without any form of discrimination.”
Under the International Crimes Act (2003) of the Netherlands, the following is a crime against humanity:
persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this subsection or any other crime as referred to in this Act.
Persecution is defined as “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity”.