Practice Relating to Rule 138. The Elderly, Disabled and Infirm

Note: For practice concerning the establishment of hospital and safety zones to protect the infirm, see Rule 35.
Geneva Convention III
Article 30, second paragraph, of the 1949 Geneva Convention III provides: “Special facilities shall be afforded for the care to be given to the disabled, in particular to the blind, and for their rehabilitation, pending repatriation.” 
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 30, second para.
Geneva Convention III
Article 110 of the 1949 Geneva Convention III provides for special care for and evacuation of disabled prisoners of war. 
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 110.
Geneva Convention IV
Article 16, first paragraph, of the 1949 Geneva Convention IV provides that the infirm “shall be the object of particular protection and respect”. 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 16, first para.
Geneva Convention IV
Article 17 of the 1949 Geneva Convention IV provides: “The Parties to the conflict shall endeavour to conclude local agreements for the removal from besieged or encircled areas of … [the] infirm”. 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 17.
Geneva Convention IV
Articles 21, 22, first paragraph, and 127, third paragraph, of the 1949 Geneva Convention IV contain specific mentions of the infirm in relation to transport and evacuation. 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Articles 21, 22, first para., and 127, third para.
Geneva Convention III
Articles 16, 44, 45 and 49 of the 1949 Geneva Convention III state in relation to the treatment of prisoners of war that their state of health should be taken into account. 
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Articles 16, 44, 45 and 49; Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Articles 27, 85 and 119.
Geneva Convention IV
Articles 27, 85 and 119 of the 1949 Geneva Convention IV state in relation to the treatment of protected persons that their state of health should be taken into account. 
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Articles 16, 44, 45 and 49; Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Articles 27, 85 and 119.
Additional Protocol I
According to Article 8(a) of the 1977 Additional Protocol I, the terms “‘wounded’ and ‘sick’ mean persons … who, because of … physical or mental disability, are in need of medical assistance or care … and other persons who may be in need of immediate medical assistance or care, such as the infirm”. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 8(a). Article 8 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.37, 24 May 1977, p. 68.
Convention on the Rights of Persons with Disabilities
Article 11 of the 2006 Convention on the Rights of Persons with Disabilities provides:
States Parties shall take, in accordance with their obligations under international law, including international humanitarian law and international human rights law, all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters. 
International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, adopted by the UN General Assembly, Res. 61/106, 13 December 2006, Annex I, Article 11.
Philippines
Article 2(24) of Part III of the 1998 Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines provides:
This Agreement seeks … to protect and promote the full scope of human rights and fundamental freedoms, including: … the right of … the disabled to protection, care, and a home, especially against physical and mental abuse, prostitution, drugs, forced labour, homelessness, and other similar forms of oppression and exploitation. 
Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law between the Government of the Republic of the Philippines and the National Democratic Front of the Philippines, The Hague, 16 March 1998, Part III, Article 2(24).
Argentina
Argentina’s Law of War Manual (1969) provides: “Transports of … the infirm … effected by convoys of vehicles and hospital trains on land or on sea, shall be respected and protected.” 
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, §§ 4.004(1) and 4.006(1); see also Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 4.05.
Argentina
Argentina’s Law of War Manual (1989) states that “the infirm are considered as” included in the concept of wounded and sick. 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 2.02.
Australia
Australia’s Commanders’ Guide (1994) provides that the terms “wounded” and “sick” “also cover … other persons who may be in need of immediate medical assistance or care, such as the infirm”. 
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, glossary, p. xxiv.
Australia
Australia’s Defence Force Manual (1994) states: “The opposing parties are required to try and conclude local agreements for the removal from besieged or encircled areas of … [the] infirm”. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 735; see also Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 926.
Australia
Australia’s LOAC Manual (2006) states that, in the context of siege warfare: “The opposing parties are required to try and conclude local agreements for the removal from besieged or encircled areas of … infirm … persons.” 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 7.38.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Brazil
Brazil’s Operations Manual for the Evacuation of Non-Combatants (2007) states:
In case the Ministry of Foreign Affairs does not state who is to be evacuated with priority, the Joint Command shall follow this guidance:
b) the table below sets out who shall be evacuated with priority.
… Categories
C – The … infirm. 
Brazil, Manual de Operações de Evacuação de Não-Combatentes, Ministério da Defesa, Estado-Maior de Defesa, MD33-M-08, Ordinance No. 1351/EMD/MD of 11 October 2007, published in Diário Oficial da União, No. 198, 15 October 2007, § 7.4.1(b).
The Operations Manual also states:
1.2.1 Non-Combatant Evacuation Operations are conducted by the Ministry of Defence, upon request by the Ministry of Foreign Affairs, for the evacuation of non-combatants whose lives are in danger, from their host country to a safe place of destination …
3.4.1 Non-Combatant Evacuation Operations … may be triggered by sudden changes in the government of the host country, changes in its political or military orientation with regard to Brazil, or hostile threats to Brazilian citizens by internal or external forces in that country.
Annex A. Rules of Engagement and the Law of Armed Conflict
3. The Law of Armed Conflict
According to the policy of the Ministry of Defence, the principles of the Law of Armed Conflict regulate the actions taken by the Joint Command in the defence of its personnel, property and equipment. 
Brazil, Manual de Operações de Evacuação de Não-Combatentes, Ministério da Defesa, Estado-Maior de Defesa, MD33-M-08, Ordinance No. 1351/EMD/MD of 11 October 2007, published in Diário Oficial da União, No. 198, 15 October 2007, §§ 1.2.1 and 3.4.1 and Annex A, § 3.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states that “[t]he terms ‘wounded’ and ‘sick’ also cover … all other persons with immediate medical needs [such as] … the infirm”. 
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 57.
Canada
Canada’s LOAC Manual (1999) provides: “Special protection and respect must be given to … the infirm”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 11-2, § 16.
The manual also states: “If circumstances permit, the parties to a conflict must endeavour to conclude local agreements for the removal from besieged areas of … [the] infirm”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 6-4, § 35.
Canada
Canada’s LOAC Manual (2001) states in its chapter on land warfare: “If circumstances permit, the parties to a conflict must endeavour to conclude local agreements for the removal from besieged areas of … [the] infirm”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 614.6.
In its chapter on the treatment of civilians in the hands of a party to the conflict or an occupying power, the manual states: “Special protection and respect must be given to the wounded and sick, the infirm and expectant mothers.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1110.
Colombia
Colombia’s Basic Military Manual (1995) provides that the IHL rules favour especially the civilian population so that assistance and protection, which the parties in conflict shall bring, are given in priority to the most vulnerable persons or groups of persons, who are: … infirm”. 
Colombia, Derecho Internacional Humanitario – Manual Básico para las Personerías y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, p. 25.
El Salvador
El Salvador’s Soldiers’ Manual provides: “Every act of violence against … [the] infirm … is a criminal, cowardly and dishonourable act, punishable by serious disciplinary sanctions.” 
El Salvador, Manual del Combatiente, undated, pp. 4–5.
France
France’s LOAC Teaching Note (2000) provides: “Particular attention shall be paid to the protection of the disabled.” 
France, Fiche didactique relative au droit des conflits armés, Directive of the Ministry of Defence, 4 January 2000, annexed to the Directive No. 147 of the Ministry of Defence of 4 January 2000, p. 4.
France
France’s LOAC Manual (2001) provides: “The Parties to the conflict shall endeavour to conclude local agreements for the removal from besieged or encircled areas of … [the] infirm”. 
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 64.
The manual also provides: “Out of concern for their protection, … the disabled … are included in the same category as the wounded and sick under humanitarian law.” 
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 32.
Madagascar
Madagascar’s Military Manual (1994) provides that “persons who could need immediate medical care such as the infirm … are included in” the terms “wounded” and “sick”. 
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, Fiche No. 4-SO, § B.
New Zealand
New Zealand’s Military Manual (1992) refers to Article 17 of the 1949 Geneva Convention IV, which “requires that belligerents endeavour to conclude local agreements for the removal from besieged or encircled areas of … [the] infirm”. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 508(3).
The manual further provides: “Special protection must be given to … the infirm”. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1108.
The manual also states: “Infirm internees … must not be transferred if the journey would seriously prejudice their health, except when their safety imperatively so demands.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1131(1).
The manual further states: “Convoys of vehicles or hospital trains on land, and specially provided vessels at sea, conveying … the infirm … must be protected and respected in the same way as civilian hospitals.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1110(1).
In addition, it is forbidden to attack “aircraft used for the removal of … the infirm”. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1110(2).
Nigeria
Nigeria’s Military Manual (1994) provides:
Duly recognized civilian hospitals with their staff, as well as land, sea or air transport of … the infirm … are entitled to similar respect and protection as provided in the first and second [Geneva] conventions for their military counterparts. 
Nigeria, International Humanitarian Law (IHL), Directorate of Legal Services, Nigerian Army, 1994, p. 18, § 12.
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
2.4 Specifically Protected Persons and Objects:
a. Civilians
[1949] Geneva Convention IV further stipulates special categories of civilian persons who enjoy special protection under the Convention (articles 4, 14, 16, 17 and 24), to wit:
- Infirm persons;
Conclusion
… Article 4 of Geneva Convention IV provides for further refinements to this definition [of civilians]. …
Special categories of civilian persons who enjoy special protection under the Convention are expectant mothers, mothers of children under the age of seven, aged or infirm persons, wounded and sick civilians and children younger than fifteen. 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 2, pp. 112, 113–114 and 123.
Spain
Spain’s LOAC Manual (1996) provides: “In besieged or encircled areas where there is a civilian population, it shall be endeavoured to conclude local agreements with the enemy to organize the evacuation of … [the] infirm”. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 9.4.a.
Spain
Spain’s LOAC Manual (2007) states: “The parties to the conflict are encouraged to conclude agreements to establish safety zones to protect … the disabled … from the effects of war.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 1.3.c.(1).
In addition, the manual states: “In besieged or encircled areas where there are civilians, efforts must be made to conclude local agreements with the enemy for the evacuation of … the infirm.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 9.4.a.
Switzerland
Switzerland’s Basic Military Manual (1987) provides: “Belligerents shall conclude special agreements in order to evacuate the … infirm … from besieged areas.” It also states: “The infirm … shall be the object of a particular protection and respect.” The manual further provides: “Transports of … the infirm … effected by vehicles and hospital trains, shall be respected in the same way as hospitals.” 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Articles 33, 36 and 37.
Switzerland
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states: “Women and children as well as elderly and disabled persons must be specially protected.” 
Switzerland, Bases légales du comportement à l’engagement (BCE), Règlement 51.007/IVf, Swiss Army, issued based on Article 10 of the Ordinance on the Organization of the Federal Department for Defence, Civil Protection and Sports of 7 March 2003, entry into force on 1 July 2005, § 199. The German language version of § 199 notes: “… as well as elderly and infirm gebrechliche persons must be specially protected”.
(emphasis in original)
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) provides:
Special protection and respect must be given to … the infirm …
The belligerents shall endeavour to conclude local agreements for the removal from besieged or encircled areas of … [the] infirm …
Convoys of vehicles or hospital trains on land, and specially provided vessels at sea, conveying … the infirm … must be protected and respected in the same way as civilian hospitals. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, §§ 28, 29, 32 and 33.
United States of America
The US Field Manual (1956) provides:
Special facilities shall be afforded for the care to be given to the disabled [POWS], in particular to the blind, and for their rehabilitation, pending repatriation …
The Parties to the conflict shall endeavour to conclude local agreements for the removal from besieged or encircled areas, of … [the] infirm …
Civilian hospitals organized to give care to … the infirm … may in no circumstances be the object of attack, but shall be respected and protected by the Parties to the conflict …
Convoys of vehicles or hospital trains on land or specially provided vessels on sea, conveying … the infirm …shall be respected and protected in the same manner as the hospitals provided for in Article 18. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, §§ 107, 256, 257 and 260; see also § 44.
United States of America
The US Air Force Pamphlet (1976) provides that the “infirm … must be the object of particular protection and respect”. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 14-3.
Azerbaijan
Azerbaijan’s Law concerning the Protection of Civilian Persons and the Rights of Prisoners of War (1995) provides that, in case of evacuation of civilian persons from a besieged zone, “special attention is given to the invalids, and they are taken great care of”. 
Azerbaijan, Law concerning the Protection of Civilian Persons and the Rights of Prisoners of War, 1995, Article 15.
Bangladesh
Bangladesh’s International Crimes (Tribunal) Act (1973) states that the “violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949” is a crime. 
Bangladesh, International Crimes (Tribunal) Act, 1973, Section 3(2)(e).
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 
Denmark, Military Criminal Code, 2005, § 36(2).
Ireland
Under Ireland’s Geneva Conventions Act (1962) as amended in 1998, any “minor breach” of the 1949 Geneva Conventions, including violations of Articles 16, 30, 44, 45 and 49 of the Geneva Convention III and Articles 16, 17, 18, 21, 22, 27, 119 and 127 of the 1949 Geneva Convention IV, is a punishable offence. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Norway
Norway’s Military Penal Code (1902) as amended in 1981 provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the Geneva Conventions of 12 August 1949 … is liable to imprisonment. 
Norway, Military Penal Code, 1902, as amended in 1981, § 108(a).
Venezuela
Venezuela’s Law against Kidnapping and Extortion (2009) states:
Article 9. Forcible enlistment
Anyone who, by means of threat or deception, holds, hides, takes or transfers by any means whatsoever, one or more persons for purposes of subjecting them to forcible enlistment, in order to include them in irregular armed groups, shall be punished with imprisonment of 15 to 20 years.
Article 10. Aggravating factors
The penalties for the offences envisaged in the preceding articles shall be increased by one third when:
1. The victim is … a person with physical or mental disabilities, … or a person with a life-threatening illness. 
Venezuela, Law against Kidnapping and Extortion, 2009, Articles 9–10(1).
Colombia
In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated:
Taking into account … the development of customary international humanitarian law applicable in internal armed conflicts, the Constitutional Court notes that the fundamental guarantees stemming from the principle of humanity, some of which have attained ius cogens status, … [include] the obligation to respect the special rights of … the disabled affected by the armed conflict. 
Colombia, Constitutional Court, Constitutional Case No. C-291/07, Judgment of 25 April 2007, p. 112.
[footnote in original omitted]
South Africa
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed. 
South Africa, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.
South Africa
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.
Afghanistan
In 2009, in its initial report to the Committee on the Rights of the Child, Afghanistan stated:
National Strategy for Children with Disabilities
57. In addition to social policies for children, the National Strategy for Children with Disabilities ha[s] been adopted by the MoLSAMD [Ministry of Labour, Social Affairs, Martyrs & Disabled] in 2008 which assists children with disabilities by taking measures in education, health, and technical and professional training according to their disability needs and promoting participation in national and international forums …
211. Afghanistan has around 1,000,000 people who were disabled during the conflict years. It is estimated that there are around 196,000 children with disabilities aged 7 to 18 years, of which 56 per cent are boys and 44 per cent are girls. Some 268 children with hearing impairment have been enrolled in special schools. Computer and English courses have been provided for 51 children with disabilities, six hearing impaired children have finished grade 12, and 105 ramps have been built for accessibility in different locations. 
Afghanistan, Initial report to the Committee on the Rights of the Child, 13 June 2010, UN Doc. CRC/C/AFG/1, submitted 28 August 2009, §§ 57 and 211.
[footnote in original omitted]
Jordan
The Report on the Practice of Jordan states that special care is provided for the disabled. 
Report on the Practice of Jordan, 1997, Chapter 5.3.
United Kingdom of Great Britain and Northern Ireland
The UK Government Strategy on the Protection of Civilians in Armed Conflict (2010) states: “Specific population groups such as … the disabled benefit from additional protection provided for in specific conventions.” 
United Kingdom, Foreign and Commonwealth Office, Government Strategy on the Protection of Civilians in Armed Conflict, March 2010, p. 4.
Venezuela
In 2011, in its initial report to the Committee on the Rights of the Child under the Optional Protocol on the Involvement of Children in Armed Conflict, Venezuela stated:
83. The Act against Kidnapping and Extortion, published in Gaceta Oficial No. 39194, of 5 June 2009, defines forcible enlistment as a criminal offence separate from kidnapping. Article 9 of the Act stipulates that anyone who, by means of threat or deception, holds, hides, takes or transfers by any means whatsoever, one or more persons for purposes of subjecting them to forcible enlistment, in order to include them in [irregular armed] groups, shall be punished with imprisonment of 15 to 20 years.
84. … Article 10, paragraph 1 provides that penalties for the offences envisaged in the preceding articles shall be increased by one third when: 1. The victim is … a person with physical or mental disabilities, … or a person with a life-threatening illness. 
Venezuela, Initial report to the Committee on the Rights of the Child under the Optional Protocol on the Involvement of Children in Armed Conflict, 12 September 2013, UN Doc. CRC/C/OPAC/VEN/1, submitted 5 July 2011, §§ 83–84.
UN General Assembly
In a resolution adopted in 2003 on the strengthening of the coordination of emergency humanitarian assistance of the United Nations, the UN General Assembly:
Reaffirms the obligation of all States and parties to an armed conflict to protect civilians in armed conflicts in accordance with international humanitarian law, and invites States to promote a culture of protection, taking into account the particular needs of women, children, older persons and persons with disabilities. 
UN General Assembly, Res. 58/114, 17 December 2003, § 12, adopted without a vote.
UN General Assembly
In a resolution adopted in 2004 on the strengthening of the coordination of emergency humanitarian assistance of the United Nations, the UN General Assembly:
Reaffirms the obligation of all States and parties to an armed conflict to protect civilians in armed conflicts in accordance with international humanitarian law, and invites States to promote a culture of protection, taking into account the particular needs of women, children, older persons and persons with disabilities. 
UN General Assembly, Res. 59/141, 15 December 2004, § 15, adopted without a vote.
UN General Assembly
In a resolution adopted in 2004 on a new international humanitarian order, the UN General Assembly:
Reaffirms the obligation of all States and parties to armed conflicts to protect civilians in armed conflicts in accordance with international humanitarian law, and invites States to promote a culture of protection, taking into account the particular needs of women, children, older persons and persons with disabilities. 
UN General Assembly, Res. 59/171, 20 December 2004, § 2, adopted without a vote.
UN General Assembly
In a resolution adopted in 2005 on the strengthening of the coordination of emergency humanitarian assistance of the United Nations, the UN General Assembly:
Reaffirms the obligation of all States and parties to an armed conflict to protect civilians in armed conflicts in accordance with international humanitarian law, and invites States to promote a culture of protection, taking into account the particular needs of women, children, older persons and persons with disabilities. 
UN General Assembly, Res. 60/124, 15 December 2005, § 3, adopted without a vote.
UN General Assembly
In a resolution adopted in 2006 on the strengthening of the coordination of emergency humanitarian assistance of the United Nations, the UN General Assembly:
Reaffirms the obligation of all States and parties to an armed conflict to protect civilians in armed conflicts in accordance with international humanitarian law, and invites States to promote a culture of protection, taking into account the particular needs of women, children, older persons and persons with disabilities. 
UN General Assembly, Res. 61/134, 14 December 2006, § 21, adopted without a vote.
UN General Assembly
In a resolution adopted in 2007 on the strengthening of the coordination of emergency humanitarian assistance of the United Nations, the UN General Assembly:
Reaffirms the obligation of all States and parties to an armed conflict to protect civilians in armed conflicts in accordance with international humanitarian law, and invites States to promote a culture of protection, taking into account the particular needs of women, children, older persons and persons with disabilities. 
UN General Assembly, Res. 62/94, 17 December 2007, § 19, adopted without a vote.
UN Economic and Social Council
In a resolution adopted in 2003 on the strengthening of the coordination of emergency humanitarian assistance of the United Nations, ECOSOC:
Reaffirms the obligation of all States and parties to armed conflict to protect civilians in armed conflicts in accordance with international humanitarian law, and invites States to promote a culture of protection, taking into account the particular needs of women, children, older persons and persons with disabilities. 
ECOSOC, Res. 2003/5, 15 July 2003, preamble and § 3, adopted without a vote.
UN Secretary-General
In 1992, in a report submitted to the UN Security Council, the UN Secretary-General reported that ICRC delegates in Bosnia and Herzegovina were “involved in the evacuation of specially vulnerable groups, such as … handicapped people”. 
UN Secretary-General, Report pursuant to Security Council Resolution 752 (1992), UN Doc. S/24000, 26 May 1992, §§ 9 and 10.
No data.
World Conference on Human Rights
In the Vienna Declaration and Programme of Action, the World Conference on Human Rights in 1993 expressed deep concern about “violations of human rights during armed conflicts, affecting the civilian population, especially … the disabled” and therefore called upon States and all parties to armed conflicts “strictly to observe international humanitarian law”.  
World Conference on Human Rights, Vienna, 14–25 June 1993, Vienna Declaration and Programme of Action, UN Doc. A/CONF.157/23, 12 July 1993, § I(29); see also § II(63).
International Conference of the Red Cross and Red Crescent (1999)
The Plan of Action for the years 2000–2003 adopted in 1999 by the 27th International Conference of the Red Cross and Red Crescent requested that all the parties to an armed conflict take effective measures to ensure that “in the conduct of hostilities, every effort is made … to spare the life, protect and respect the civilian population, with particular protective measures for … groups with special vulnerabilities such as … persons with disabilities”. 
27th International Conference of the Red Cross and Red Crescent, Geneva, 31 October–6 November 1999, Res. I, Annex 2, Plan of Action for the years 2000–2003, Actions proposed for final goal 1.1, § 1(a).
No data.
No data.
DRC Pledge of Commitment
In 2008, the armed groups party to the DRC Pledge of Commitment, “deeply deploring the insecurity that has prevailed for a long time in the province of North Kivu, causing massive displacements of populations and enormous suffering of civilians as well as massive violations of human rights”, made a commitment to strictly observe “rules of international humanitarian law and human rights law, notably … [to] halt acts of violence, abuse, discrimination and exclusion, in any form … and in particular against … the disabled.” 
Acte d’engagement signé par le CNDP-Mouvement Politico-Militaire, la PARECO/FAP, les Mai-Mai Kasindien, les Mai-Mai Kifuafua, les Mai-Mai Vurondo, les Mai-Mai Mongol, l’UJPS, les Mai-Mai Rwenzori et le Simba avec l’engagement solennel des Représentants de la Communauté Internationale, facilitateurs du présent acte d’engagement – les Nations-Unies, la Conférence Internationale sur la Région des Grands Lacs, les Etats-Unis d’Amérique, l’Union Africaine, l’Union Européenne et le Gouvernement (Pledge of Commitment signed by the CNDP-Mouvement Politico-Militaire, PARECO/FAP, Mai-Mai Kasindien, Mai-Mai Kifuafua, Mai-Mai Vurondo, Mai-Mai Mongol, UJPS, Mai-Mai Rwenzori and Simba with the solemn commitment of the representatives of the international community, facilitators of this pledge of commitment – the United Nations, the International Conference on the Great Lakes Region, the United States of America, the European Union and the Government), Goma, 23 January 2008, Preamble and Article III, §§ 1–5.