Practice Relating to Rule 88. Non-Discrimination

UN Charter
Article 1(3) of the 1945 UN Charter provides that one of the purposes of the United Nations is “to achieve international co-operation … in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion”. 
Charter of the United Nations, adopted by the Conference on International Organisations, San Francisco, 26 June 1945, Article 1(3).
Geneva Conventions (1949)
Common Article 3 of the 1949 Geneva Conventions provides:
Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. 
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949, Article 3; Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, Article 3; Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 3; Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 3.
European Convention on Human Rights
Article 14 of the 1950 European Convention on Human Rights stipulates that the rights and freedoms contained in the Convention shall be secured “without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. Article 15(1) provides:
In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. 
European Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, as amended by Protocol No. 11, Strasbourg, 11 May 1994, Articles 14 and 15(1).
Convention on the Elimination of Racial Discrimination
Article 2 of the 1965 Convention on the Elimination of Racial Discrimination provides: “States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races.” Article 5 provides that States Parties undertake “to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law”. 
International Convention on the Elimination of All Forms of Racial Discrimination, adopted by the UN General Assembly, Res. 2106 A (XX), 21 December 1965, Articles 2 and 5.
International Covenant on Civil and Political Rights
Article 2(1) of the 1966 International Covenant on Civil and Political Rights stipulates:
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 
International Covenant on Civil and Political Rights, adopted by the UN General Assembly, Res. 2200 A (XXI), 16 December 1966, Article 2(1).
International Covenant on Civil and Political Rights
Article 4(1) of the 1966 International Covenant on Civil and Political Rights provides that during war, public danger and other emergencies, in which derogations from the obligations of the Convention are allowed, a State party is nonetheless not permitted to take measures “inconsistent with its other obligations under international law” and involving “discrimination on the ground of race, colour, sex, language, religion or social origin”. 
International Covenant on Civil and Political Rights, adopted by the UN General Assembly, Res. 2200 A (XXI), 16 December 1966, Article 4(1).
International Covenant on Civil and Political Rights
Article 26 of the 1966 International Covenant on Civil and Political Rights provides:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 
International Covenant on Civil and Political Rights, adopted by the UN General Assembly, Res. 2200 A (XXI), 16 December 1966, Article 26.
International Covenant on Economic, Social and Cultural Rights
Article 2(2) of the 1966 International Covenant on Economic, Social and Cultural Rights provides:
The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 
International Covenant on Economic, Social and Cultural Rights, adopted by the UN General Assembly, Res. 2200 A (XXI), 16 December 1966, Article 2(2).
International Covenant on Economic, Social and Cultural Rights
Article 3 of the 1966 International Covenant on Economic, Social and Cultural Rights provides: “The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant.” 
International Covenant on Economic, Social and Cultural Rights, adopted by the UN General Assembly, Res. 2200 A (XXI), 16 December 1966, Article 3.
American Convention on Human Rights
Article 1 of the 1969 American Convention on Human Rights provides:
The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition. 
American Convention on Human Rights, adopted by the OAS Inter-American Specialized Conference on Human Rights, San José, 22 November 1969, also known as Pact of San José, Article 1.
American Convention on Human Rights
Article 27 of the 1969 American Convention on Human Rights provides that during war, public danger and other emergencies, in which derogations from the obligations of the Convention are allowed, a State party is nonetheless not permitted to take measures “inconsistent with its other obligations under international law” and involving “discrimination on the ground of race, color, sex, language, religion or social origin”. 
American Convention on Human Rights, adopted by the OAS Inter-American Specialized Conference on Human Rights, San José, 22 November 1969, also known as Pact of San José, Article 27.
Additional Protocol I
The preamble to the 1977 Additional Protocol I states:
The provisions of the Geneva Conventions of 12 August 1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict.  
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, preamble.
Additional Protocol I
Article 9(1) of the 1977 Additional Protocol I states that the provisions of the Protocol shall apply “without 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”. 
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 9(1). Article 9 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.37, 24 May 1977, p. 69.
Additional Protocol I
Article 75(1) of the 1977 Additional Protocol I provides that persons who are in the power of a party shall be treated humanely and enjoy the protection provided “without any adverse distinction based upon 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”. 
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 75(1). Article 75 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.43, 27 May 1977, p. 250.
Additional Protocol II
Article 2(1) of the 1977 Additional Protocol II provides: “This Protocol shall be applied without 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.” 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva, 8 June 1977, Article 2(1). Article 2 was adopted by consensus. CDDH, Official Records, Vol. VII, CDDH/SR.50, 3 June 1977, p. 85,
Additional Protocol II
Article 4(1) of the 1977 Additional Protocol II provides: “All persons who do not take a direct part or who have ceased to take part in hostilities … shall in all circumstances be treated humanely, without any adverse distinction.” 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva, 8 June 1977, Article 4(1). Article 4 was adopted by consensus. CDDH, Official Records, Vol. VII, CDDH/SR.50, 3 June 1977, p. 90.
Convention on the Elimination of Discrimination against Women
Article 2 of the 1979 Convention on the Elimination of Discrimination against Women provides: “State Parties condemn discrimination against women in all its forms.” 
Convention on the Elimination of All Forms of Discrimination against Women, adopted by the UN General Assembly, Res. 34/180, 18 December 1979, Article 2.
African Charter on Human and Peoples’ Rights
Article 2 of the 1981 African Charter on Human and Peoples’ Rights provides:
Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status. 
African Charter on Human and Peoples’ Rights, adopted by the Eighteenth Ordinary Session of the OAU Assembly of Heads of State and Government, Nairobi, 27 June 1981, OAU Doc. CAB/LEG/67/3 rev.5, Article 2.
Convention on the Rights of the Child
Article 2(1) of the 1989 Convention on the Rights of the Child provides:
States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. 
Convention on the Rights of the Child, adopted by the UN General Assembly, Res. 44/25, 20 November 1989, Article 2(1).
ICC Statute
Under Article 7(1)(h) of the 1998 ICC Statute, the following is a crime against humanity subject to the jurisdiction of the Court, when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court. 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 7(1)(h).
European Convention on Human Rights
Article 1 of the 2000 Protocol 12 to the European Convention on Human Rights provides:
1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1. 
Protocol No. 12 to the European Convention for the Protection of Human Rights and Fundamental Freedoms concerning the general prohibition of discrimination, Rome, 4 November 2000, Article 1.
UN-Cambodia Agreement on the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea
Article 9 of the 2003 UN-Cambodia Agreement on the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea provides:
The subject-matter jurisdiction of the Extraordinary Chambers shall be the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, crimes against humanity as defined in the 1998 Rome Statute of the International Criminal Court and grave breaches of the 1949 Geneva Conventions and such other crimes as defined in Chapter II of the Law on the Establishment of the Extraordinary Chambers as promulgated on 10 August 2001. 
Agreement between the UN and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, Phnom Penh, 6 June 2003, Article 9.
In accordance with Article 2 of the Agreement, Cambodia’s Law on the Establishment of the ECCC (2001), as amended, further implements these provisions. 
Agreement between the UN and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, Phnom Penh, 6 June 2003, Article 2.
Universal Declaration of Human Rights
Article 2 of the 1948 Universal Declaration of Human Rights provides:
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 
Universal Declaration of Human Rights, adopted by the UN General Assembly, Res. 217 A (III), 10 December 1948, Article 2.
Universal Declaration of Human Rights
Article 7 of the 1948 Universal Declaration of Human Rights provides:
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. 
Universal Declaration of Human Rights, adopted by the UN General Assembly, Res. 217 A (III), 10 December 1948, Article 7.
Cairo Declaration on Human Rights in Islam
Article 1 of the 1990 Cairo Declaration on Human Rights in Islam provides:
All men are equal in terms of basic human dignity and basic obligations and responsibilities, without any discrimination on the grounds of race, colour, language, sex, religious belief, political affiliation, social status or other considerations.  
Cairo Declaration on Human Rights in Islam, adopted at the 19th Session of the Islamic Conference of Foreign Ministers, Res. 49/19-P, Cairo, 5 August 1990, annexed to Letter dated 19 September 1990 from the permanent representative of Egypt to the UN addressed to the UN Secretary-General, UN Doc. A/45/421-S/21797, 20 September 1990, Article 1.
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 4 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that all civilians be treated in accordance with Article 75 of the 1977 Additional Protocol I. 
Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia, Geneva, 27 November 1991, § 4.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
In paragraph 1 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina, the parties committed themselves to respect and ensure respect for common Article 3 of the 1949 Geneva Conventions. Paragraph 2.3 requires that all civilians be treated in accordance with Article 75 of the 1977 Additional Protocol I. 
Agreement between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representatives of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Miljenko Brkić (President of the Croatian Democratic Community), Geneva, 22 May 1992, §§ 1 and 2.3.
ICTY Statute
Under Article 5(h) of the 1993 ICTY Statute, the following is a crime against humanity subject to the jurisdiction of the Tribunal, when committed in armed conflict, whether international or internal in character, and directed against any civilian population: “persecution on political, racial and religious grounds.” 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, adopted by the UN Security Council, Res. 827, 25 May 1993, as amended by Res. 1166, 13 May 1998 and by Res. 1329, 30 November 2000, Article 5(h).
ICTR Statute
Under Article 3(h) of the 1994 ICTR Statute, the following is a crime against humanity subject to the jurisdiction of the Tribunal, when committed as part of a widespread and systematic attack against any civilian population on national, political, ethnic, racial or religious grounds: “persecution on political, racial and religious grounds.” 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994, adopted by the UN Security Council, Res. 955, 8 November 1994, as amended by Res. 1165, 30 April 1998, and by Res. 1329, 30 November 2000, Article 3(h).
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Article 18(e) of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind provides that “persecution on political, racial, religious or ethnic grounds” constitutes a crime against humanity. 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-eighth session, 6 May–26 July 1996, UN Doc. A/51/10, 1996, Article 18(e).
Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines
Article 2(10) of Part III of the 1998 Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines states that the Agreement seeks to protect and promote the “right to equal protection of the law and against any form of discrimination on the basis of race, ethnicity, gender, belief, age, physical condition or civil status and against any incitement to such discrimination”. 
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(10).
Article 4(1) of Part IV of the Agreement stipulates: “Persons hors de combat and those who do not take a direct part in hostilities … shall be … treated … without any adverse distinction founded on race, color, faith, sex, birth, social standing or any other similar criteria.” 
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 IV, Article 4(1).
UN Secretary-General’s Bulletin
Section 7.1 of the 1999 UN Secretary-General’s Bulletin provides:
Persons not, or no longer, taking part in military operations, including civilians, members of armed forces who have laid down their weapons and persons placed hors de combat by reason of sickness, wounds or detention, shall, in all circumstances, be treated humanely and without any adverse distinction based on race, sex, religious convictions or any other ground. 
Observance by United Nations Forces of International Humanitarian Law, Secretary-General’s Bulletin, UN Secretariat, UN Doc. ST/SGB/1999/13, 6 August 1999, Section 7.1.
EU Charter of Fundamental Rights
Article 21 of the 2000 EU Charter of Fundamental Rights prohibits “any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of national minority, property, birth, disability, age or sexual orientation”. 
Charter of Fundamental Rights of the European Union, signed and proclaimed by the European Parliament, the Council and the Commission of the European Union, Nice, 7 December 2000, Article 21.
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of IHL (2005)
Paragraph 25 of the 2005 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of IHL provides:
The application and interpretation of these Basic Principles and Guidelines must be consistent with international human rights law and international humanitarian law and be without any discrimination of any kind or on any ground, without exception. 
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, annexed to UN General Assembly resolution 60/147 of 16 December 2005, § 25.
Argentina
Argentina’s Law of War Manual (1969) restates the provisions of common Article 3 of the 1949 Geneva Conventions. 
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, § 8.001.
Argentina
Argentina’s Law of War Manual (1989) stipulates that the provisions of the chapter regarding non-international armed conflicts are applicable “without any adverse distinction for reasons of race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other analogous condition or criteria, to persons affected by an armed conflict”. 
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, § 7.02.
Australia
Australia’s Defence Force Manual (1994) states, with regard to non-international armed conflicts: “The general rule is that persons are to be treated humanely without adverse discrimination on the ground of race, sex, language, religion, political discrimination or similar criteria.”  
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 945.
The manual stipulates that inhabitants of an occupied territory “must be treated with the same consideration, without any adverse distinction based, in particular, on race, religion or political opinion”. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 1218.
Australia
Australia’s LOAC Manual (2006) states: “All persons are to be treated … without any adverse distinction based upon 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.” 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 9.45.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commander’s Manual (1994).
Belgium
Belgium’s Law of War Manual (1983) states, with reference to common Article 3 of the 1949 Geneva Conventions, that in internal armed conflicts “persons who do not take a direct part in hostilities, including members of the armed forces who have laid down their arms and persons placed hors de combat must be treated … without any adverse distinction”. 
Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, p. 17 and Chapter IX, § 2.
Benin
Benin’s Military Manual (1995) provides that persons placed hors de combat “shall in any circumstances be protected … without any adverse distinction”. 
Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense nationale, 1995, Fascicule II, p. 4.
Bosnia and Herzegovina
Bosnia and Herzegovina’s Military Instructions (1992) provides that the wounded and sick hors de combat must be treated without any discrimination. 
Bosnia and Herzegovina, Instructions on the Implementation of the International Law of War in the Armed Forces of the Republic of Bosnia and Herzegovina, Official Gazette of ABiH, No. 2/92, 5 December 1992, Item 14, § 1.
Burkina Faso
Burkina Faso’s Disciplinary Regulations (1994) provides that it is a custom of war to treat all persons hors de combat humanely and without distinction. 
Burkina Faso, Règlement de Discipline Générale dans les Forces Armées, Décret No. 94-159/IPRES/DEF, Ministère de la Défense, 1994, Article 35(1).
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) lists “persecution for political reasons” as a “crime against humanity”. 
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. 27.
Cameroon
Cameroon’s Disciplinary Regulations (1975) and Instructor’s Manual (1992) provide that each soldier must treat “all persons placed hors de combat without distinction”. 
Cameroon, Règlement de discipline dans les Forces Armées, Décret No. 75/700, 6 November 1975, Article 31; Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, § 421(1).
Cameroon
Cameroon’s Instructor’s Manual (2006) states that members of the armed forces are obliged “to treat humanely and without distinction all regular combatants hors de combat”. 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 256, § 612.
Cameroon
Cameroon’s Disciplinary Regulations (2007) states:
Article 31: Humanitarian rules
Every soldier must:
- treat humanely, without distinction, all persons placed hors de combat. 
Cameroon, Règlement de discipline générale dans les forces de défense, Décret N° 2007/199, Président de la République, 7 July 2007, Article 31.
Canada
Canada’s LOAC Manual (1999) establishes non-discrimination as an operational principle of the law of armed conflict, stating: “The LOAC is to be applied without any adverse distinction founded on race, colour, religion or faith, gender, birth or wealth, or any other similar criteria.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 2-2, § 14.
The manual restates common Article 3 of the 1949 Geneva Conventions and specifies:
[Additional Protocol II] applies without any adverse distinction founded on race, colour, gender, language, religion, or other opinion, national or social origin, wealth, birth or other status, or any other similar criteria.
[Additional Protocol II] provides that all persons not participating in the conflict or who have ceased to do so are entitled to respect … and to be treated … without adverse distinction. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 17-2, §§ 10–12, p. 17-3, §§ 18 and 19.
Canada
Canada’s LOAC Manual (2001) states:
The principle of non-discrimination must be considered in two aspects. First, the LOAC binds both sides in a conflict. Although one side may label the other an aggressor, it is not entitled to apply the law in a different way because of that assertion. Second, the LOAC is to be applied without any adverse distinction founded on race, colour, religion or faith, gender, birth or wealth, or any other similar criteria. The fact that the enemy is of a different colour or a different religion does not allow the other party to apply the law in a different fashion. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 204.3.
In its chapter on non-international armed conflicts, the manual restates the provisions of common Article 3 of the 1949 Geneva Conventions:
By Common Article 3, the parties to a non-international armed conflict occurring in the territory of a party to the Conventions are obliged to apply, as a minimum, the following provisions:
a. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, gender, birth or wealth, or any other similar criteria. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1708.1.
In the same chapter, the manual further states:
1711. No Adverse Discrimination
1. [Additional Protocol II] applies without any adverse distinction founded on race, colour, gender, language, religion or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria.
2. [Additional Protocol II] provides that all persons not participating in the conflict or who have ceased to do so are entitled, whether under restriction or not, to respect for their persons, honour and convictions, and religious practices, and are, in all circumstances, to be treated humanely and without adverse distinction. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1711.
Central African Republic
The Central African Republic’s Instructor’s Manual (1999) states in Volume 2 (Instruction for group and patrol leaders): “Persons who are hors de combat or not directly taking part in the hostilities … must under all circumstances be protected and treated humanely, without adverse distinction.” 
Central African Republic, Le Droit de la Guerre, Fascicule No. 2: Formation pour l’obtention du certificat technique No. 2 (Chef de Groupe), du certificat Inter-Armé (CIA), du certificat d’aptitude de Chef de Patrouille (CACP), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter I, Fundamental Rules, § 1.
Central African Republic
The Central African Republic’s Disciplinary Regulations (2009) states: “In accordance with the international conventions signed or approved by the Central African Government, it is stipulated that during combat servicemen must: … treat all persons hors de combat … without any distinction.” 
Central African Republic, Décret 09.411 portant règlement de discipline générale dans les Armées, Ministre de la Défense Nationale, des Anciens Combattants, des Victimes de Guerre, du Désarmement et de la Restructuration de l’Armée, 10 December 2009, Article 12(10).
Colombia
Colombia’s Circular on Fundamental Rules of IHL (1992) provides: “Persons placed hors de combat or who do not participate directly in the hostilities … shall be protected … without any adverse distinction.” 
Colombia, Transcripción Normas Fundamentales del Derecho Humanitario Aplicables en los Conflictos Armados, Circular No. 033/DIPL-SERPO-526, Policía Nacional, Dirección General, Santafé de Bogotá, 14 May 1992, § 1.
Colombia
Colombia’s Soldiers’ Manual (1999) and Instructors’ Manual (1999) provide:
All persons are born free and equal before the law, receive the same protection and treatment from the authorities and possess the same rights, freedoms and opportunities without any discrimination based on sex, race, family or nationality, origin, language, religion or political or philosophical opinion. 
Colombia, Derechos Humanos & Derecho Internacional Humanitario – Guía de Conducta para el Soldado e Infante de Marina, Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia, Santafé de Bogotá, 1999, p. 12; Derechos Humanos & Derecho Internacional Humanitario – Manual de Instrucción de la Guía de Conducta para el Soldado e Infante de Marina, Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia, Santafé de Bogotá, 1999, p. 12.
Congo
The Congo’s Disciplinary Regulations (1986) stipulates that persons placed hors de combat “shall be treated without distinction”. 
Congo, Décret No. 86/057 du 14 janvier 1986 portant Règlement du Service dans l’Armée Populaire Nationale, 1986, Article 32.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book I (Basic instruction):
In times of war and armed conflicts, certain rules must be observed, in particular vis-à-vis the civilian population, the wounded, prisoners, and even the enemy. These rules can be found in the four Geneva Conventions of 1949 and in their Additional Protocols.
Together, these rules constitute international humanitarian law (IHL) or the law of armed conflicts (LOAC) or the law of war …
This law is based on the idea of respect for and dignity of the individual and goods. Persons who do not directly participate in hostilities and those rendered hors de combat because they are sick, wounded, shipwrecked, captured or for other reasons, must be respected and protected against the consequences of the war. All victims must be assisted without discrimination. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre I: Instruction de base, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 5; see also Droit de la guerre, Manuel d’instruction, Livre II: Instruction du gradé et du cadre, Manuel de l’instructeur, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 4; Droit de la guerre, Manuel d’instruction, Livre III, Tome 1: Instruction de l’élève officier d’active de 1ère année, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 7; Droit de la guerre, Manuel d’instruction, Livre III, Tome 2: Instruction de l’élève officier d’active de 2ème année, Manuel de l’instructeur, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 5; Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 5.
In Book III, Volume 1 (Instruction of first-year trainee officers), the Teaching Manual provides:
II. The fundamental principles of IHL
Just as military operations are based on principles concerning attack, defence, withdrawal, etc., the law of armed conflicts contains a set of well-defined principles. These concrete principles reflect the realities of conflicts. They represent a balance between the principle of humanity and military necessity, and they are valid at all times, in all places, and in all circumstances. It is essential that these rules are known by all combatants. They must permanently be taken into consideration in every activity of assessment, planning, and military training or operation. The following principles can be found throughout the texts of the law of armed conflicts.
II.6. Humane treatment and non-discrimination
All persons must be treated humanely and must not be made the object of any discrimination based on sex, nationality, race, religion or political convictions. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre III, Tome 1: Instruction de l’élève officier d’active de 1ère année, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 12 and 14; see also Droit de la guerre, Manuel d’instruction, Livre III, Tome 2: Instruction de l’élève officier d’active de 2ème année, Manuel de l’instructeur, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 13–14; Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 14.
In Book III, Volume 2 (Instruction of second-year trainee officers), the Teaching Manual provides:
Persons not or no longer participating in hostilities, including the members of the armed forces who have laid down their arms and persons rendered hors de combat by sickness, wounds, detention or any other cause, must in all circumstances be treated humanely, without any distinction founded on race, religion, faith, sex, social class, or any other similar criteria. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre III, Tome 2: Instruction de l’élève officier d’active de 2ème année, Manuel de l’instructeur, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 24.
Djibouti
Djibouti’s Disciplinary Regulations (1982) states: “Combatants must … treat all persons placed hors de combat … without distinction”. 
Djibouti, Décret no. 82-028/PR/DEF du 5 mai 1982 portant règlement de la discipline générale dans les Forces armées, Article 30(2).
El Salvador
El Salvador’s Human Rights Charter of the Armed Forces provides: “According to the law, we are all equal, without distinction based on sex, race, ideology or religion.” 
El Salvador, Derechos Humanos. Decálogo de la Fuerza Armada de El Salvador, Ministerio de la Defensa Nacional, Departamento de Derecho Humanitario, p. 7.
France
France’s Disciplinary Regulations (1975), as amended, exhorts combatants to “treat humanely and without distinction all persons hors de combat”. 
France, Règlement de Discipline Générale dans les Armées, Decree No. 75-675 of 28 July 1975, replacing Decree No. 66-749, completed by Decree of 11 October 1978, implemented by Instruction No. 52000/DEF/C/5 of 10 December 1979, and modified by Decree of 12 July 1982, Ministère de la Défense, Etat-Major de l’Armée de Terre, Bureau Emploi; Article 9 bis.
France
France’s LOAC Manual (2001) restates Article 75(1) of the 1977 Additional Protocol I. 
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. 51.
It further emphasizes that one of the three main principles common to IHL and human rights is the principle of non-discrimination, according to which “individuals are treated without any distinction based on race, sex, nationality, philosophical, religious or political opinion”. 
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, pp. 51–52.
Greece
The Hellenic Territorial Army’s Internal Service Code (1984), as amended, provides: “Members of the armed forces should: … Treat humanely and without distinction all persons hors de combat. 
Greece, Hellenic Territorial Army Regulation of Internal Service Code, Presidential Decree 130/1984, (Military Regulation 20-1), as amended, Article 14(b).
Guinea
Guinea’s Disciplinary Regulations (2012) states: “In accordance with the international agreements signed by the government of Guinea, military personnel in combat are required … to treat humanely, without distinction, all persons placed hors de combat”. 
Guinea, Règlement de Service dans les Forces Armées, Volume 1: Règlement de Discipline Générale (Service Regulations in the Armed Forces, Volume 1: General Discipline Regulations), 2012 edition, Ministère de la Défense Nationale, approved by Presidential Decree No. D 293/PRG/SGG/2012, 6 December 2012, Article 12(a).
Israel
With reference to Israel’s Law of War Booklet (1986), the Report on the Practice of Israel states:
As a general policy … all individuals falling in the power of a party to a conflict should, at a minimum, be treated in accordance with the principles of humanity, without any adverse distinction based upon 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. 
Report on the Practice of Israel, 1997, Chapter 5.6, referring to Conduct in the Battlefield in Accordance with the Law of War, Israel Defense Forces, 1986, p. 12.
Kenya
Kenya’s LOAC Manual (1997) states:
Persons not involved in the fighting because they are not taking part in hostilities, or because they are wounded or have surrendered, or have been detained, must be treated … without adverse discrimination. 
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 2, pp. 5–6.
Madagascar
Madagascar’s Military Manual (1994) states that one of the seven fundamental rules of IHL is that “persons placed hors de combat and those who do not take a direct part in hostilities … shall in all circumstances be protected and treated humanely, without any adverse distinction”. 
Madagascar, Le Droit des Conflits Armés, Ministère des Forces Armées, August 1994, p. 91, Rule 1.
Mali
Mali’s Army Regulations (1979) provides that the refusal to treat without distinction all persons hors de combat is a serious breach of its rules. 
Mali, Règlement du Service dans l’Armée, 1ère Partie: Discipline Générale, Ministère de la Défense Nationale, 1979, Article 36.
Mexico
Mexico’s Army and Air Force Manual (2009), in a section entitled “Basic rules of international humanitarian law applicable in armed conflicts”, states: “Persons placed hors de combat and those who do not take a direct part in hostilities … must be protected and treated humanely in all circumstances, without any adverse distinction.” 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 406; see also § 83.
The manual also states that Article 3 common to the 1949 Geneva Conventions “stipulates that in the event of armed conflict, protected persons must be treated humanely in all circumstances, without any adverse distinction founded on race, colour, religion or faith, sex, birth, wealth or any other such criteria.” 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 73; see also § 85(A) and § 107(A).
Morocco
Morocco’s Disciplinary Regulations (1974) provides that as a custom of war, soldiers are required to treat without distinction all regular combatants placed hors de combat. 
Morocco, Règlement de Discipline Général dans les Forces Armées Royales, Dahir No. 1-74-383 du 15 rejeb 1394, 5 August 1974, Article 25(1).
Netherlands
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”. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, pp. VIII-2/VIII-3.
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. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, pp. XI-1 and XI-4.
Netherlands
The Military Handbook (1995) of the Netherlands provides with respect to protected persons: “Any discrimination based on race, religion, sex … is prohibited.” 
Netherlands, Handboek Militair, Ministerie van Defensie, 1995, p. 7-38.
Netherlands
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. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0224(e).
The manual lists the “[p]rohibition of discrimination” as one of the standards derived from the principle of “[h]umane conduct”. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, p. 34.
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. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0809.
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. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, §§ 1049 and 1055.
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. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, p. 198.
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.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 1228.
New Zealand
New Zealand’s Military Manual (1992) states that the principle of non-discrimination is one of the key principles of the law of armed conflict. It states: “The law is to be applied without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 206.
The manual further states: “All protected persons must be treated with the same consideration, without any adverse distinction based, in particular, on race, religion or political opinion.” 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1321.2.
The manual also emphasizes the principle of non-discrimination with regard to non-international armed conflicts, and provides that the 1977 Additional Protocol II “is to apply without any adverse distinction founded on race, colour, sex, language, religion or other opinion, national or social origin, wealth, birth or other status or any other similar criteria”. It adds:
All persons not participating in the conflict or who have ceased so to do are entitled, whether under restriction or not, to respect for their persons, honour and convictions, and religious practices and are, in all circumstances, to be treated humanely and without adverse distinction. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1810.
Nicaragua
Nicaragua’s Military Manual (1996) reproduces common Article 3 of the 1949 Geneva Conventions. 
Nicaragua, Manual de Comportamiento y Proceder de las Unidades Militares y de los Miembros del Ejército de Nicaragua en Tiempo de Paz, Conflictos Armados, Situaciones Irregulares o Desastres Naturales, Ejército de Nicaragua, Estado Mayor General, Asesoría Jurídica del Nicaragua, 1996, Article 6.
Peru
Peru’s Human Rights Charter of the Armed Forces (1994) states that non-discrimination, i.e. respect for all without any distinction on the grounds of nationality, race, religion, social condition or political opinion, is one of the three common principles of the 1949 Geneva Conventions which represent the minimum level of protection to which every human being is entitled. 
Peru, Derechos Humanos: Principios, Normas y Procedimientos, MFA 09-1, Comando Conjunto de las Fuerzas Armadas, Ministerio de Defensa, Ejército Peruano, Lima, Peru, May 1994, § 24.
Peru
Peru’s IHL Manual (2004) states: “People must not be discriminated against on the grounds of race, sex, language, religion, beliefs, political or other opinions, nationality, social standing, wealth or any other such criteria.” 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 32.l.
The manual contains a similar provision with respect to situations of non-international armed conflict:
Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 71.a.
Peru
Peru’s IHL and Human Rights Manual (2010) states:
There are … principles common to the [1949] Geneva Conventions and human rights law which represent a minimum level of protection to which every human person is entitled … [including] [n]on-discrimination, [that is to say] respect for all individuals without any distinction based on nationality, race, religion, social status [or] political opinion.
Regarding these fundamental guarantees, there is no exception whatsoever and they are binding both in times of peace and in times of armed conflict. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 26, pp. 41–42.
With respect to situations of non-international armed conflict, the manual states:
Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 72(a), p. 270.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states:
Under any circumstances international humanitarian law ensures humane treatment during an armed conflict of persons not directly involved in combat operations, including those who have been rendered hors de combat by sickness, injury, detention or any other cause without adverse distinction for reasons of race, colour, faith, birth, wealth or any other similar criteria. 
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 4.
With regard to internal armed conflict, the Regulations states that applicable rules “shall be applied to all persons affected by an internal armed conflict without any adverse distinction founded on race, colour, sex, language, religion, political or other beliefs, ethnic or social origin, wealth or any other status, or on any other similar criteria.” 
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 80.
Senegal
Senegal’s Disciplinary Regulations (1990) provides that all persons placed hors de combat must be treated without distinction. 
Senegal, Règlement de Discipline dans les Forces Armées, Décret 90-1159, 12 October 1990, Article 34(1).
Senegal
Senegal’s IHL Manual (1999) restates common Article 3 of the 1949 Geneva Conventions. 
Senegal, Le DIH adapté au contexte des opérations de maintien de l’ordre, République du Sénégal, Ministère des Forces Armées, Haut Commandement de la Gendarmerie et Direction de la Justice Militaire, Cabinet, 1999, p. 4.
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
1.2 Reasons for compliance with LOAC[law of armed conflict] and basic principles thereof.
Fundamental Norms and Values (rules)
The fundamental norms/val[u]es which underlie the LOAC are:
- Persons who are hors de combat (out of combat) and those who do not take a direct part in hostilities are entitled to respect for their lives and their moral and physical integrity. They must in all circumstances be protected and treated humanely without any adverse distinction.
Prohibited Acts against Persons not taking an Active Part in Armed Conflicts
- All protected persons must be treated equally, without any adverse distinction based on race, religion or political opinion.
1.3 Relationship between LOAC and Human Rights Law and Fundamental Protection Provided under LOAC
Specific Areas that are Subject to Fundamental Protection
Non-discrimination
An unfair discriminatory distinction based on race, colour, sex, language, religion or belief, political or other opinion or similar criteria is absolutely prohibited.
- This does not mean that justifiable differentiation is prohibited. Under unequal circumstance, it might be justifiable to treat people unequal[ly], e.g. t[t]reatment of sick versus healthy POW [prisoners of war].
1.4 Different Types of armed Conflict and those bound by LOAC
Application: Civil Wars and Non-International Armed Conflicts
Current Op[]inio Juris on Common Article 3 [of the 1949] Geneva Conventions. This article determines that, in the case of armed conflicts not of an international character, each Party to the conflict shall be bound to apply certain minimum rules. Although originally written for situations of non-international armed conflicts, the current legal opinion is that its contents are so fundamental that it is applicable in both international and non-international armed conflicts. The minimum rules contained in Common article 3 Geneva Conventions are the following:
- Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 1, pp. 13, 16–18, 21, 24–25, 26 and 28–29.
Sweden
Sweden’s IHL Manual (1991) considers that the fundamental guarantees for persons in the power of one party to the conflict as contained in Article 75 of the 1977 Additional Protocol I are part of customary international law. 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 2.2.3, p. 19.
Togo
Togo’s Military Manual (1996) provides that persons placed hors de combat “shall in any circumstances be protected … without any adverse distinction”. 
Togo, Le Droit de la Guerre, III fascicules, Etat-major Général des Forces Armées Togolaises, Ministère de la Défense nationale, 1996, Fascicule II, p. 4.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981) incorporates the provisions of common Article 3 of the 1949 Geneva Conventions. 
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 12, p. 42, § 2(a).
United Kingdom of Great Britain and Northern Ireland
In its chapter on the applicability of the law of armed conflict, the UK LOAC Manual (2004) states:
… every victim of armed conflict is entitled to the protection afforded by the law. The fact that he is a national, or member of the armed forces, of any particular state or that he has particular religious convictions or political opinions is irrelevant in this context. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 3.12.1.
In its chapter on the protection of civilians in the hands of a party to the conflict, the manual states:
All persons are to be treated humanely in all circumstances and “without any adverse distinction based upon 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”. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 9.3.
In its chapter on internal armed conflict, the manual restates the provisions of common Article 3 of the 1949 Geneva Conventions:
Under the terms of Common Article 3, the parties to a non-international armed conflict occurring in the territory of a party to the Conventions are obliged to apply “as a minimum”, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.4.
Furthermore, the manual provides that, in internal armed conflicts in which the 1977 Additional Protocol II is applicable, it applies “without 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” to all persons affected by the conflict. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.36.
United States of America
The US Field Manual (1956) restates common Article 3 of the 1949 Geneva Conventions. 
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, § 11.
The manual provides that the wounded and sick in the hands of one party to the conflict shall be cared for “without any adverse distinction founded on sex, race, nationality, religion, political opinions, or any other similar criteria”. 
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, § 215.
The manual also states:
Without prejudice to the provisions relating to their state of health, age and sex, all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion or political opinion. 
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, § 266.
United States of America
The US Air Force Pamphlet (1976) provides that the provisions of common Article 3 of the 1949 Geneva Conventions “insure humane treatment to civilians and others who are hors de combat, without regard to race, colour, religion, sex, birth, or wealth”. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 11-3.
The Pamphlet also stipulates that under the 1949 Geneva Convention IV, “any distinction in treatment based upon race, religion or political opinion is specially forbidden”. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 14-4.
The Pamphlet quotes Article 1 of the 1945 UN Charter and adds that the set of documents elaborated by the UN and the Geneva Conventions safeguard such fundamental freedoms as “freedom from discrimination based on race, sex, language, or religion”. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 11-4.
United States of America
The US Instructor’s Guide (1985) restates the provisions of common Article 3 of the 1949 Geneva Conventions. 
United States, Instructor’s Guide – The Law of War, Headquarters Department of the Army, Washington, April 1985, p. 8.
Australia
Australia’s ICC (Consequential Amendments) Act (2002) incorporates in the Criminal Code the crimes against humanity defined in the 1998 ICC Statute, including persecution. 
Australia, ICC (Consequential Amendments) Act, 2002, Schedule 1, § 268.20.
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).
Bosnia and Herzegovina
Bosnia and Herzegovina’s Criminal Code (2003) criminalizes the following as crimes against humanity:
(1) Whoever, as part of a widespread or systematic attack directed against any civilian population, with knowledge of such an attack, perpetrates any of the following acts:
h) Persecutions against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious or sexual gender or other grounds that are universally recognized as impermissible under international law …
(2) For the purpose of paragraph 1 of this Article the following terms shall have the following meanings:
g) Persecution means the intentional and severe deprivation of fundamental rights, contrary to international law, by reason of the identity of a group or collectivity. 
Bosnia and Herzegovina, Criminal Code, 2003, Article 172(1)(h) and (2)(g).
[emphasis in original]
Burundi
Burundi’s Law on Genocide, Crimes against Humanity and War Crimes (2003) lists “persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious or gender grounds” as a crime against humanity “when committed as part of a widespread or systematic attack against any civilian population, with knowledge of the attack”. 
Burundi, Law on Genocide, Crimes against Humanity and War Crimes, 2003, Article 3(h).
Cambodia
Cambodia’s Law on the Establishment of the ECCC (2001), as amended in 2004, provides:
Article 4
The Extraordinary Chambers shall have the power to bring to trial all Suspects who committed the crimes of genocide as defined in the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, and which were committed during the period from 17 April 1975 to 6 January 1979.
The acts of genocide, which have no statute of limitations, mean any acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, …
Article 5
The Extraordinary Chambers shall have the power to bring to trial all suspects who committed crimes against humanity during the period 17 April 1975 to 6 January 1979.
Crimes against humanity … are any acts committed as part of a widespread or systematic attack directed against any civilian population, on national, political, ethnical, racial or religious grounds, such as:
• persecutions on political, racial, and religious grounds. 
Cambodia, Law on the Establishment of the ECCC, 2001, as amended in 2004, Articles 4–5.
Canada
Canada’s Crimes against Humanity and War Crimes Act (2000) provides that the crimes against humanity defined in Article 7 of the 1998 ICC Statute are “crimes according to customary international law” and, as such, indictable offences under the Act. 
Canada, Crimes against Humanity and War Crimes Act, 2000, Section 4(1) and (4).
Congo
Under the Congo’s Genocide, War Crimes and Crimes against Humanity Act (1998), “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”, when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack, is a crime against humanity. 
Congo, Genocide, War Crimes and Crimes against Humanity Act, 1998, Article 6.
Croatia
Croatia’s Criminal Code (1997) provides for the punishment of “any person who, on the basis of race, sex, skin colour, nationality or ethnic origin, violates basic human rights and freedoms accepted by the international community”. 
Croatia, Criminal Code, 1997, Article 174.
Croatia
Croatia’s Criminal Code (1997), as amended to 2006, provides for the punishment of anyone who:
… on the basis of a difference in race, religion, political or other belief, property, birth, education, social position or other characteristics, or on the basis of gender, color, national or ethnic origin, violates fundamental human rights and freedoms recognized by the international community. 
Croatia, Criminal Code, 1997, as amended to 2006, Article 174(1); see also Article 106(1).
The Criminal Code further states that “[ordering] the persecution of a person by depriving them of their fundamental rights because this person belongs to a particular group or community” is a crime against humanity. 
Croatia, Criminal Code, 1997, as amended in June 2006, Article 157a.
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).
Ethiopia
Ethiopia’s Criminal Code (2004) states:
Article 4.- Equality Before the Law.
Criminal law applies to all alike without discrimination as regards persons, social conditions, race, nation, nationality, social origin, colour, sex, language, religion, political or other opinion, property, birth or other status.
No difference in treatment of criminals may be made except as provided by this Code, which are derived from immunities sanctioned by public international and constitutional law, or relate to the gravity of the crime or the degree of guilt, the age, circumstances or special personal characteristics of the criminal, and the social danger which he represents.
Article 15.- Crimes Committed in a Foreign Country by a Member of the Defence Forces.
(2) In cases of crimes against international law and specifically military crimes as defined in Article 269–322, the member of the Defence Forces shall remain subject to national law and be tried under the provisions of this Code by Ethiopian military courts. 
Ethiopia, Criminal Code, 2004, Articles 4 and 15(2).
Finland
Finland’s Revised Penal Code (1995), under the heading “Offences against humanity”, provides for the punishment of
any persons who, in their private or public functions, discriminate on grounds of race, national or ethnic origin, language, colour, sex, age, family ties, sexual preferences, state of health, religion, political orientation, political or industrial activity or other comparable circumstance. 
Finland, Revised Penal Code, 1995, Chapter 11, Section 9.
Guatemala
Guatemala’s Law on the Protection of Childhood and Adolescence (2003) states:
Right to equality and non-discrimination. During the investigation and in the course of proceedings, as well as in the execution of [punitive] measures, the adolescents’ right to equality before the law and to non-discrimination on any ground shall be respected. 
Guatemala, Law on the Protection of Childhood and Adolescence, 2003, Article 143; see also Article 260(b).
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1949 Geneva Conventions, including violations of common Article 3, and of the 1977 Additional Protocol I, including violations of Articles 9(1) and 75(1), as well as any “contravention” of the 1977 Additional Protocol II, including violations of Articles 2(1) and 4(1), are punishable offences. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Israel
Israel’s Nazis and Nazi Collaborators (Punishment) Law (1950) includes “persecution on national, racial, religious or political grounds” in its definition of crimes against humanity. 
Israel, Nazis and Nazi Collaborators (Punishment) Law, 1950, Section 1(b).
Kenya
Kenya’s Constitution (1992) provides that every person in Kenya is entitled to the fundamental rights and freedoms of the individual whatever his or her race, tribe, place of origin or residence or other local connection, political opinions, colour, creed or sex. 
Kenya, Constitution, 1992, Article 70.
Netherlands
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”. 
Netherlands, International Crimes Act, 2003, Articles 4(1)(h) and 4(2)(c).
New Zealand
Under New Zealand’s International Crimes and ICC Act (2000), crimes against humanity include the crime defined in Article 7(1)(h) of the 1998 ICC Statute. 
New Zealand, International Crimes and ICC Act, 2000, Section 10(2).
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 … [and in] the two additional protocols to these Conventions … is liable to imprisonment. 
Norway, Military Penal Code, 1902, as amended in 1981, § 108.
Peru
Peru’s Law on Internal Displacement (2004) states:
Internally displaced persons enjoy the same rights and freedoms under international and domestic law as do other persons in the country. They are not to be discriminated against in the enjoyment of their rights and freedoms merely because they are internally displaced. 
Peru, Law on Internal Displacement, 2004, Article 3.
Peru
Peru’s Regulations to the Law on Internal Displacement (2005) states:
Internally displaced persons have the same rights as other persons in the country, without prejudice to the special rights and duties recognized in the Law [on Internal Displacement (2004)] and the present Regulations. National and international laws are applicable to internally displaced persons without discrimination of any kind, particularly without discrimination based on them being displaced persons. 
Peru, Regulations to the Law on Internal Displacement, 2005, Article 5.
Peru
Peru’s Decree on the Use of Force by the Armed Forces (2010) states that “persons placed hors de combat for … any … reason must in all circumstances be treated … without any unfavourable distinction based on race, colour, religion or belief, sex, birth, socio-economic status or any other similar criterion.” 
Peru, Decree on the Use of Force by the Armed Forces, 2010, Article 8.2.1.
Philippines
The Philippines’ Executive Order No. 134 (1999), declaring August 12, 1999 and every 12th Day of August thereafter as International Humanitarian Law Day, states that the Philippines “subscribes to the basic principle of disinterested humanitarian aid to all victims of war and armed conflict without discrimination”. 
Philippines, Executive Order No. 134, 1999.
Women shall have the right to protection and security in situations of armed conflict and militarization … The State … shall not … relocate [women] in special centers for military purposes under any discriminatory condition. 
Philippines, Magna Carta of Women, 2009, Section 9(b).
Poland
Poland’s Penal Code (1997) provides for the repression of incitement and use of violence or unlawful threat against a group or a particular person because he or she belongs to a particular racial group. 
Poland, Penal Code, 1997, Article 119.
Republic of Korea
The Republic of Korea’s ICC Act (2007) provides for the punishment of crimes listed in the 1998 ICC Statute, including as a crime against humanity:
Persecution against any identifiable group or collectivity by depriving such group or collectivity of fundamental human rights or by substantially restricting the same, on political, racial, national, ethnic, cultural, religious, gender, or other grounds that are recognized as impermissible under international law. 
Republic of Korea, ICC Act, 2007, Article 9(2)(7).
Serbia
Serbia’s Criminal Code (2005) states:
Whoever on grounds of race, colour, nationality, ethnic origin or other personal characteristic violates fundamental human rights and freedoms guaranteed by universally accepted rules of international law and international treaties ratified by Serbia and Montenegro, shall be punished by imprisonment for between six months and five years. 
Serbia, Criminal Code, 2005, Article 387(1).
Sierra Leone
Sierra Leone’s Constitution (1991) states:
27. Protection from discrimination.
(1) Subject to the provisions of subsection (4), (5), and (7), no law shall make provision which is discriminatory either of itself or in its effect.
(3) In this section the expression “discriminatory” means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, tribe, sex, place of origin, political opinions, colour or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject, or are accorded privileges or advantages which are not accorded to persons of another such description.
(4) Subsection (1) shall not apply to any law so far as that law makes provision –
f. for authorising the taking during a period of public emergency of measures that are reasonably justifiable for the purpose of dealing with the situation that exists during that period of public emergency; or
29. Public emergency.
(1) Whenever in the opinion of the President a state of public emergency is imminent or has commenced, the President may, at any time, by Proclamation which shall be published in the Gazette, declare that—
a. a state of public emergency exists either in any part, or in the whole of Sierra Leone; or
b. a situation exists which, if it is allowed to continue, may lead to a state of public emergency in any part of or the whole of Sierra Leone.
(2) The President may issue a Proclamation of a state of public emergency only when—
a. Sierra Leone is at war; [or]
b. Sierra Leone is in imminent danger of invasion or involvement in a state of war; or
c. there is actual breakdown of public order and public safety in the whole of Sierra Leone or any part thereof to such an extent as to require extraordinary measures to restore peace and security; or
d. there is a clear and present danger of an actual breakdown of public order and public safety in the whole of Sierra Leone or any part thereof requiring extraordinary measures to avert the same; or
e. there is an occurrence of imminent danger, or the occurrence of any disaster or natural calamity affecting the community or a section of the community in Sierra Leone; or
f. there is any other public danger which clearly constitutes a threat to the existence of Sierra Leone. 
Sierra Leone, Constitution, 1991, Sections 27(1) and (3)–(4)(f) and 29(1)–(2).
South Africa
South Africa’s ICC Act (2002) reproduces the crimes against humanity listed in the 1998 ICC Statute, including:
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 paragraph or any crime within the jurisdiction of the Court. 
South Africa, ICC Act, 2002, Schedule 1, Part 2, § 1(h).
Switzerland
Switzerland’s Military Criminal Code (1927), taking into account amendments entered into force up to 2011, states:
Art. 5
1 In times of war, in addition to the persons mentioned in art. 3 [Personal conditions] and 4 [Extension in case of active service], the following are subject to military criminal law:
1. Civilians who make themselves culpable of one of the following offences:
d. … crime against humanity (Part 2, chapter 6) … ;
5. foreign military persons who make themselves culpable of … a crime against humanity (Part 2, chapter 6) … ;
Chapter 6 – Genocide and crimes against humanity
Art. 109
1. The penalty shall be a custodial sentence of not less than five years for any person who, as part of a widespread or systematic attack directed against the civilian population:
i. in relation with one of the acts under chapters 6 [genocide and crimes against humanity] and 6bis [war crimes] or with the aim of systematically oppressing or dominating a racial group, seriously injures the fundamental rights of members of a group of persons by depriving them or stripping them of these rights for political, racial, ethnical, religious or social reasons or any other reason that is contrary to international law. 
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Articles 5(1)(1)(d) and (5) and 109(1)(i).
[footnotes in original omitted]
United Kingdom of Great Britain and Northern Ireland
Under the UK ICC Act (2001), it is a punishable offence to commit a crime against humanity as defined in Article 7(1)(h) of the 1998 ICC Statute. 
United Kingdom, ICC Act, 2001, Sections 50(1) and 51(1) (England and Wales) and Section 58(1) (Northern Ireland).
United States of America
Under the US War Crimes Act (1996), violations of common Article 3 of the 1949 Geneva Conventions are war crimes. 
United States, War Crimes Act, 1996, Section 2441(c).
United States of America
The US Regulations Governing the Trials of Accused War Criminals in the Pacific Region I (1945) established military commissions which had jurisdiction over offences such as “persecution on political, racial, national or religious grounds”. 
United States, Regulations Governing the Trials of Accused War Criminals in the Pacific Region I, 1945, Regulation 5.
United States of America
The US Regulations Governing the Trials of Accused War Criminals in the Pacific Region II (1945) established military commissions which had jurisdiction over offences such as “persecution on political, racial, national or religious grounds”. 
United States, Regulations Governing the Trials of Accused War Criminals in the Pacific Region II, 1945, Regulation 2(b).
United States of America
In July 2006, the US Deputy Secretary of Defense issued a memorandum to senior military and civilian personnel in the Department of Defense (DoD) on the subject of common Article 3 to the 1949 Geneva Conventions and its application to the treatment of detainees:
The Supreme Court Hamdan v. Rumsfeld, 548 US 557, 29 June 2006] has determined that Common Article 3 to the Geneva Conventions of 1949 applies as a matter of law to the conflict with Al Qaeda. The Court found that the military commissions as constituted by the Department of Defense are not consistent with Common Article 3.
It is my understanding that, aside from the military commission procedures, existing DoD orders, policies, directives, execute orders, and doctrine comply with the standards of Common Article 3 … In addition, you will recall the President’s prior directive [President George W. Bush, Memorandum, Humane Treatment of Al Qaeda and Taliban Detainees, 7 February 2002] that “the United States Armed Forces shall continue to treat detainees humanely,” humane treatment being the overarching requirement of Common Article 3.
You will ensure that all DoD personnel adhere to these standards. In this regard, I request that you promptly review all relevant directives, regulations, policies, practices and procedures under your purview to ensure that they comply with the standards of Common Article 3. 
United States, Department of Defense, Deputy Secretary of Defense, Gordon England, Memorandum, Application of Common Article 3 of the Geneva Conventions to the Treatment of Detainees in the Department of Defense, 7 July 2006.
Uruguay
Uruguay’s Law on Cooperation with the ICC (2006) states:
26.2. Persons and objects affected by the war crimes set out in the present provision are persons and objects which international law protects in international or internal armed conflict.
26.3. The following are war crimes:
29. Committing … practices based on discrimination for reasons of race, gender or belonging to a group with its own identity. 
Uruguay, Law on Cooperation with the ICC, 2006, Article 26.2 and 26.3.29.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Penal Code (1976), as amended in 2001, provides that racial and other discrimination is a war crime. 
Yugoslavia, Socialist Federal Republic of, Penal Code, 1976, as amended in 2001, Article 154.
Zimbabwe
Zimbabwe’s Constitution (1979), as amended to 2009, states:
CHAPTER III
THE DECLARATION OF RIGHTS
23 Protection from discrimination on the grounds of race, etc.
(1) Subject to the provisions of this section–
(a) no law shall make any provision that is discriminatory either of itself or in its effect; and
(b) no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.
(2) For the purposes of subsection (1), a law shall be regarded as making a provision that is discriminatory and a person shall be regarded as having been treated in a discriminatory manner if, as a result of that law or treatment, persons of a particular description by race, tribe, place of origin, political opinions, colour, creed, sex, gender, marital status or physical disability are prejudiced–
(a) by being subjected to a condition, restriction or disability to which other persons of another such description are not made subject; or
(b) by the according to persons of another such description of a privilege or advantage which is not accorded to persons of the first-mentioned description;
and the imposition of that condition, restriction or disability or the according of that privilege or advantage is wholly or mainly attributable to the description by race, tribe, place of origin, political opinions, colour, creed, sex, gender, marital status or physical disability of the persons concerned.
25 Savings in the event of public emergencies
Notwithstanding the foregoing provisions of this Chapter [III], an Act of Parliament may in accordance with Schedule 2 derogate from certain provisions of the Declaration of Rights in respect of a period of public emergency …
26 Interpretation and other savings
(7) No measures taken in relation to a person who is a member of a disciplined force of a country with which Zimbabwe is at war or with which a state of hostilities exists and no law, to the extent that it authorises the taking of such measures, shall be held to be in contravention of the Declaration of Rights. 
Zimbabwe, Constitution, 1979, as amended to 2009, Sections 23(1)–(2), 25 and 26(7).
The Constitution also states:
SCHEDULE 2
1 Savings in the event of public emergencies
(1) Nothing contained in any law shall be held to be in contravention of section 13, 17, 20, 21, 22 or 23 to the extent that the law in question provides for the taking, during a period of public emergency, of action for the purpose of dealing with any situation arising during that period, and nothing done by any person under the authority of any such law shall be held to be in contravention of any of the said provisions unless it is shown that the action taken exceeded anything which, having due regard to the circumstances prevailing at the time, could reasonably have been thought to be required for the purpose of dealing with the situation. 
Zimbabwe, Constitution, 1979, as amended to 2009, Schedule 2, Article 1(1).
The Constitution further states:
In this Constitution, unless the context otherwise requires–
“period of public emergency” means–
(a) any period when Zimbabwe is engaged in any war and the period immediately following thereon until such date as may be declared by the President, by proclamation in the Gazette, as the end of the period of public emergency caused by that war. 
Zimbabwe, Constitution, 1979, as amended to 2009, Section 113(1).
Zimbabwe
Zimbabwe’s Constitution (2013) states:
Chapter 4 – Declaration of Rights
56. Equality and non-discrimination
(1) All persons are equal before the law and have the right to equal protection and benefit of the law.
(2) Women and men have the right to equal treatment …
(3) Every person has the right not to be treated in an unfairly discriminatory manner on such grounds as their nationality, race, colour, tribe, place of birth, ethnic or social origin, language, class, religious belief, political affiliation, opinion, custom, culture, sex, gender, marital status, age, pregnancy, disability or economic or social status, or whether they were born in or out of wedlock.
(4) A person is treated in a discriminatory manner for the purpose of subsection (3) if –
(a) they are subjected directly or indirectly to a condition, restriction or disability to which other people are not subjected; or
(b) other people are accorded directly or indirectly a privilege or advantage which they are not accorded.
(5) Discrimination on any of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair, reasonable and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom.
86. Limitation of rights and freedoms
(2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors, including –
(b) the purpose of the limitation, in particular whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;
(3) No law may limit the following rights enshrined in this Chapter, and no person may violate them –
87. Limitations during public emergency
(1) In addition to the limitations permitted by section 86, the fundamental rights and freedoms set out in this Chapter may be further limited by a written law providing for measures to deal with situations arising during a period of public emergency, but only to the extent permitted by this section and the Second Schedule.
(2) A written law referred to in subsection (1) and any legislative measures taken under that law, must be published in the Gazette.
(3) Any limitation which a written law referred to in subsection (1) imposes on a fundamental right or freedom set out in this Chapter must not be greater than is strictly required by the emergency.
(4) No law that provides for a declaration of a state of emergency, and no legislative or other measure taken in consequence of such a declaration may –
(a) indemnify, or permit or authorise an indemnity for, the State or any institution or agency of the government at any level, or any other person, in respect of any unlawful act; or
(b) limit any of the rights referred to in section 86(3), or authorise or permit any of those rights to be violated. 
Zimbabwe, Constitution, 2013, Sections 56(1)–(5), 86(2)(b) and (3) and 87.
Bosnia and Herzegovina
In 2007, in the Damjanović case, the Appellate Panel of the Court of Bosnia and Herzegovina stated that “an act of persecution on national, ethnic or religious grounds … is impermissible not only under the criminal legislation of Bosnia and Herzegovina but also under international law”. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Damjanović case, Judgment, 13 June 2007, p. 10.
Canada
In 2005, in the Mugesera case, Canada’s Supreme Court confirmed a deportation order on grounds of incitement to murder, hatred and genocide, and a crime against humanity, in Rwanda in 1992. The Court stated:
2. The outcome of the appeal hinges on the characterization of a speech delivered by the respondent Léon Mugesera in Rwanda in the Kinyarwandan language. The speech triggered a series of events that have brought the Government of Canada and Mr. Mugesera to this Court.
4. In 1995, the Minister of Citizenship and Immigration became aware of allegations against the respondent and commenced proceedings under s. 27 of the Immigration Act. A permanent resident of Canada may be deported if it is determined, inter alia, that before or after being granted permanent residency, the individual committed criminal acts or offences. In this case, the speech was alleged to constitute an incitement to murder, hatred and genocide, and a crime against humanity.
5. In July 1996, an adjudicator concluded that the allegations were valid and issued a deportation order against Mr. Mugesera and his family. The Immigration and Refugee Board (Appeal Division) (“IAD”) upheld the adjudicator’s decision and dismissed the respondents’ appeal… The findings of fact and law were subject to judicial review in the Federal Court – Trial Division (“FCTD”)…, and then in the Federal Court of Appeal (“FCA”). Décary J.A., writing for the FCA, reversed several findings of fact made by the IAD and reversed the deportation order, concluding that the Minister had not met his burden… The Minister has now appealed to this Court, and he asks that the IAD’s deportation order be confirmed.
7. For the reasons that follow, we would allow the appeal. The decision of the FCA should be set aside and the decision of the IAD in favour of deportation should be restored.
C. Crimes Against Humanity
129. The proscribed acts listed in s. 7(3.76) of the Criminal Code provide a first and essential requirement for a crime against humanity: an “underlying offence” must be committed. In essence, the listed acts represent the different ways in which a crime against humanity can be committed. This means that various acts may become crimes against humanity as long as the other elements of the offence are met. In s. 7(3.76) those crimes are murder, extermination, enslavement, deportation, persecution or any other inhumane act or omission.
131. The question we must now consider is whether, as alleged by the Minister, Mr. Mugesera’s speech satisfies the initial criminal act requirement for a crime against humanity. We have found that the speech counselled murders which were not committed and incited hatred and genocide. This raises two issues: whether counselling a murder that is not committed meets the initial criminal act requirement for murder as a crime against humanity and whether speech inciting hatred meets the initial criminal act requirement for persecution as a crime against humanity.
2. Speech that Incites Hatred and Persecution as a Crime Against Humanity
138. Both the ICTR and the ICTY have approached the question of speech inciting hatred as relating to the enumerated act of “persecution”. Persecution is expressly listed in s. 7(3.76) of the Criminal Code as one of the underlying acts which, in the appropriate circumstances, may constitute a crime against humanity.
139. Determining whether an act constitutes persecution can be difficult. Persecution, unlike the other acts enumerated in s. 7(3.76), is not a standalone crime in Canadian law or in the legal systems of other countries: M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (2nd rev. ed. 1999), at p. 327. In contrast with murder, for instance, it is not evident from our domestic law what types of acts will constitute persecution.
140. … In considering the criminal act of persecution in Prosecutor v. Tadic, 112 ILR 1 (Trial Chamber II 1997), the ICTY, having reviewed the relevant jurisprudence and academic commentary, found that persecution “is some form of discrimination [on traditionally recognized grounds such as race, religion, or politics] that is intended to be and results in an infringement of an individual’s fundamental rights” (para. 697).
141. A danger arises, however, that the criminal act of persecution, as so defined, might apply to acts that are far less serious than the other forms of crimes against humanity. Crimes against humanity should not be trivialized by applying the concept to fact situations which do not warrant the full opprobrium of international criminal sanction. Thus, the ICTY found in Prosecutor v. Kupreskic, Case No. IT-95-16-T (Trial Chamber II) 14 January 2000, that the alleged persecution, in order to satisfy the criminal act requirement, must reach the same level of gravity as the other enumerated underlying acts. Persecution as a crime against humanity must constitute a “gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited” (para. 621).
142. Turning to the requisite mental element for persecution, we find that the accused must have intended to commit the persecutory acts and must have committed them with discriminatory intent. The requirement for discriminatory intent is unique to persecution and need not be shown in respect of the other forms of crimes against humanity … This point was made persuasively in the appeal from the Trial Chamber’s decision in Tadic, in which the Appeals Chamber of the ICTY conducted a thorough review of the international law principles on discriminatory intent and crimes against humanity in reaching a conclusion that the discriminatory intent requirement is unique to crimes against humanity which take the form of persecution: 124 ILR 61 (1999), at paras. 287–92.
143. The ICTR too has concluded that discriminatory intent is relevant only to persecution: Prosecutor v. Akayesu, Case No. ICTR-96-4-A (Appeals Chamber), 1 June 2001, at paras. 460– 69. This is particularly significant since crimes against humanity as defined in art. 3 of the ICTR statute must be committed as part of a widespread and systematic attack against any civilian population “on national, political, ethnic, racial or religious grounds”. In this respect, the judgment of our Court in Finta appears to be inconsistent with the recent jurisprudence of the ICTR and the ICTY. …
144. We see no reason to depart from the well-reasoned and persuasive findings of the ICTY and the ICTR on the question of discriminatory intent. Insofar as Finta suggested that discriminatory intent was required for all crimes against humanity … it should no longer be followed on this point.
145. We conclude from the preceding discussion that the criminal act of persecution is the gross or blatant denial of a fundamental right on discriminatory grounds. The guilty mental state is discriminatory intent to deny the right. The fundamental question remains to be answered: Was Mr. Mugesera’s speech a gross or blatant denial of fundamental rights on discriminatory grounds such that it was equal in gravity to the other acts enumerated in s. 7(3.76)?
146. The ICTR and the ICTY have both considered whether hate speech can ever satisfy the criminal act requirement for persecution. In one prominent case, the ICTR found that it was “evident” that hate speech targeting a population on the basis of ethnicity, or other discriminatory grounds was equal in gravity to the other enumerated acts: Media Case, at para. 1072. The ICTY, on the other hand, found in Kordic that the hate speech alleged in the indictment did not constitute persecution because it did not rise to the same level of gravity as the other enumerated acts (para. 209). The Trial Chamber distinguished hate speech that could properly form the basis of a crime against humanity from the hate speech alleged in the indictment, which fell short of incitement to murder, extermination, and genocide (footnote 272). The guiding concern must therefore always be whether the alleged persecutory act reaches the level of a gross or blatant denial of fundamental rights equivalent in gravity to the other enumerated acts.
147. In Keegstra, this Court found that the harm in hate speech lies not only in the injury to the self-dignity of target group members but also in the credence that may be given to the speech, which may promote discrimination and even violence … This finding suggests that hate speech always denies fundamental rights. The equality and the life, liberty and security of the person of target-group members cannot but be affected: see, e.g., Prosecutor v. Ruggiu, 39 ILM 1338 (ICTR, Trial Chamber I 2000), at para. 22. This denial of fundamental rights may, in particular instances, reach the level of a gross or blatant denial equal in gravity to the other acts enumerated in s. 7(3.76). This is particularly likely if the speech openly advocates extreme violence (such as murder or extermination) against the target group, but it may not be limited to such instances. In contrast to the case of counselling an enumerated violent act, whether the persecution actually results in the commission of acts of violence is irrelevant: Media Case, at para. 1073.
148. What then can be said of Mr. Mugesera’s speech? Mr. Duquette found as a matter of fact that Mr. Mugesera’s speech had incited hatred of Tutsi and of his political opponents … This incitement included the encouragement of acts of extreme violence … Keeping in mind that acts of persecution must be evaluated in context, Mr. Duquette’s finding that Mr. Mugesera’s speech occurred in a volatile situation characterized by rampant ethnic tensions and political instability which had already led to the commission of massacres is also compelling … A speech such as Mr. Mugesera’s, which actively encouraged ethnic hatred, murder and extermination and which created in its audience a sense of imminent threat and the need to act violently against an ethnic minority and against political opponents, bears the hallmarks of a gross or blatant act of discrimination equivalent in severity to the other underlying acts listed in s. 7(3.76). The criminal act requirement for persecution is therefore met.
149. Having concluded that the criminal act requirement for persecution is made out, we must go on to consider whether the culpable mental element of persecution is made out. Mr. Duquette found that Mr. Mugesera had a discriminatory intent in delivering his speech … He found that Mr. Mugesera targeted Tutsi and political opponents on the sole basis of ethnicity and political affiliation with the intent to compel his audience into action against these groups. The IAD’s [Immigration and Refugee Board Appellate Division] findings of fact thus amply support a finding that Mr. Mugesera not only committed the criminal act of persecution, but did so with the requisite discriminatory intent.
150. In sum, the criminal act requirement for a crime against humanity under ss. 7(3.76) and 7(3.77) of the Criminal Code contains two primary elements: (1) the accused has committed an underlying enumerated act; and (2) that act contravened international law. With respect to the first element, both the physical and mental elements of the underlying act must be made out. In the case at bar, there were two possible underlying acts: counselling of murder, and persecution by hate speech. For counselling of murder to be considered a crime against humanity under international law, murders must actually have been committed. Mr. Duquette’s finding that no murders were proven to have resulted from the speech therefore precludes a finding that Mr. Mugesera counselled murder within the meaning of s. 7(3.76). The other possible underlying act, persecution is a gross or blatant denial of fundamental rights on discriminatory grounds equal in severity to the other acts enumerated in s. 7(3.76). Hate speech, particularly when it advocates egregious acts of violence, may constitute persecution. In this case, it does.
179. Based on Mr. Duquette’s findings of fact, each element of the offence in s. 7(3.76) of the Criminal Code has been made out. We are therefore of the opinion that reasonable grounds exist to believe that Mr. Mugesera committed a crime against humanity. 
Canada, Supreme Court, Mugesera case, Judgment and Reasons for Judgment, 28 June 2005, §§ 2, 4–5, 7, 129, 131, 138–150 and 179.
Canada
In 2013, in the Sapkota case, Canada’s Federal Court dismissed a request for review of a decision denying refugee protection to the applicant on grounds of complicity in crimes against humanity in Nepal between 1991 and 2009. While reviewing the submissions of the respondent, Canada’s Minister of Citizenship and Immigration, the Court stated: “The Respondent notes that the Rome Statute of the International Criminal Court … is endorsed in Canada as a source of customary law.” 
Canada, Federal Court, Sapkota case, Reasons for Judgment and Judgment, 15 July 2013, § 28.
Chile
In its judgment in the Contreras Sepúlveda case in 2004, Chile’s Supreme Court stated:
[W]ithout any doubt, the 1949 Geneva Conventions are in force … and oblige State parties in case of armed conflict not of an international character occurring within their territory, which is exactly the situation in Chile during the period of 12 September 1973 and 11 March 1975, to treat humanely … opponents who have laid down their arms, without any adverse distinction. 
Chile, Supreme Court, Second Chamber, Contreras Sepúlveda case, Case No. 2182-98, Judgment of 17 November 2004, § 34.
Colombia
In 2005, in the Constitutional Case No. C-203/05, the Plenary Chamber of Colombia’s Constitutional Court stated:
As members of the civilian population affected by internal armed conflicts, children and adolescents have the right to respect for the fundamental guarantees granted to all persons not actively participating in hostilities, as established by Article 3 common to the [1949] Geneva Conventions … In accordance with this Article, in cases of non-international armed conflicts in the territory of one of the Parties, each party to the conflict shall be bound to apply certain minimum guarantees without affecting their legal status as parties to the conflict, including: (1) Persons taking no active part in the hostilities shall be treated humanely in all circumstances without adverse distinction based on discriminatory criteria. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment, 8 March 2005, § 5.4.2.2.
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] prohibition of discrimination in the application of international humanitarian law. 
Colombia, Constitutional Court, Constitutional Case No. C-291/07, Judgment, 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.
United States of America
In 2004, in the Demjanjuk case, the US Court of Appeals for the Sixth Circuit affirmed a ruling by the district court which revoked the US citizenship of the appellant, due to his participation in Nazi-sponsored acts of persecution while serving during World War II as an armed guard at Trawniki Concentration Camp and other places of persecution. The Court stated:
[T]he district court found that the Government has proven by clear, convincing, and unequivocal evidence that [the] Defendant assisted in the persecution of civilian populations during World War II, based on evidence that the Trawniki service pass was an authentic German wartime document issued to [the] Defendant sufficiently identifying him and establishing his presence at the Nazi training camp between 1942 and 1944. Demjanjuk 7.a United States v. Demjanjuk, No. 1:99CV1193, 2002 WL 544622 (N. D. Ohio Feb. 21, 2002)]. … Given the credibility determination made with respect to the identification elements of the Government’s case, this Court agrees with the Government that the district court’s factual findings were not clearly erroneous.
The district court correctly ruled that voluntariness is not an element of an assistance-in-persecution charge under the DPA [Displaced Persons Act of 1948]. The Supreme Court has previously ruled that “an individual’s service as a concentration camp armed guard – whether voluntary or not – made him ineligible for a visa.” Fedorenko, 449 U.S. at 512. [Fedorenko v. United States, 449 U.S. 490, 505, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981)] Additionally, a defendant need not engage in “personal acts” of persecution in order to be held ineligible for a visa, because an individual’s service in a unit dedicated to exploiting and exterminating civilians on the basis of race or religion constitutes assistance in persecution within the meaning of the DPA. United States v. Dailide, 227 F.3d 385, 390-91 (6th Cir. 2000).
Furthermore, the district court did not clearly err in concluding that [the] Defendant misrepresented and concealed his wartime residence and activities, which included his service at Trawniki, Sobibor, Majdenek, with the Guard Forces of the SS and Police Leader in Lublin District, and with the SS Death’s Head Battalion at Flossenburg Concentration Camp. This information was material because its disclosure would have precluded Defendant from being placed in the “of concern,” category under the DPA, thus affecting the disposition of his visa application as a “displaced person.” See Fedorenko, 449 U.S. at 514–15. If [the] Defendant had disclosed the information regarding his service in the Austrian and German armies during his application process, the immigration officials would have naturally been influenced in their decision, because service in such armies leaves applicants ineligible under the DPA. Therefore, upon signing his Application for Immigration Visa, Defendant knowingly misrepresented material facts, leaving his entry to the United States unlawful and naturalization illegally procured. 
United States, Court of Appeals for the Sixth Circuit, Demjanjuk case, Judgment, 30 April 2004, pp. 13–14 and 20–21.
United States of America
In 2006, in the Kumpf case, the US Court of Appeals for the Seventh Circuit affirmed a ruling by the lower court which revoked the US citizenship of the appellant, due to his participation in Nazi-sponsored acts of persecution while serving during World War II as an armed SS guard at Sachsenhausen Concentration Camp and other places of persecution. The Court stated,
The Refugee Relief Act of 1953 provides that a person who “personally advocated or assisted” in persecution is ineligible for a visa. Pub.L. No. 83-203 § 14(a), 67 Stat. 400 (1953). The Refugee Relief Act added the word “personally.” The prior governing act, the Displaced Persons Act of 1948, which was amended in 1950, considered any person who “advocated or assisted” in persecution to be ineligible for a visa, regardless of whether he “personally” did so. Pub.L. No. 81-555 § 13, 64 Stat. 219 (1950). The amendment thus narrowed the class of potential immigrants who could be excluded based on their assistance in persecution. …
Under the narrower language of the Refugee Relief Act, Kumpf argues that his service in the Waffen SS does not constitute personal assistance in persecution, and therefore does not disqualify him from obtaining a visa. The Supreme Court described conduct that would satisfy the broader “assisting in persecution” under the Displaced Persons Act by stating:
an individual who did no more than cut the hair of female inmates before they were executed cannot be found to have assisted in the persecution of civilians. On the other hand, there can be no question that a guard who was issued a uniform and armed with a rifle and a pistol, who was paid a stipend and was regularly allowed to leave the concentration camp to visit a nearby village, and who admitted to shooting at escaping inmates on orders from the commandant of the camp, fits within the statutory language about persons who assisted in the persecution of civilians. Other cases may present more difficult line-drawing problems but we need decide only this case.
Fedorenko, 449 U.S. at 512 n. 34 … [Fedorenko v. United States, 449 U.S. 490, 505, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981)] Thus, an armed guard who took direct action against prisoners unquestionably assisted in persecution. It is undisputed that persecution occurred at the locations where Kumpf served. The issue in this case, however, is whether Kumpf’s particular actions as a guard constituted “personal” assistance in the persecution under the Refugee Relief Act.
Kumpf emphasizes in his brief that he “never personally harmed any individual” and never “aimed or discharged his weapon at anyone.” He argues that his limited conduct cannot constitute personal assistance in persecution. This lack of affirmative acts, however, does not undermine the fact that he fulfilled his role as a guard. The Refugee Relief Act’s parameters are not limited to personally harming or personally shooting individuals; the language instead addresses personal assistance. Kumpf’s personal presence functioned to discourage escape attempts and maintain order over the prisoners. His participation was not through monetary contributions, mere membership, or other indirect actions. Rather, he presided over and witnessed the torture and murder of helpless people. Because no one tried to escape during his watch, he claims he did not have to shoot anyone. Nevertheless, his personal presence as an armed guard clearly assisted in the persecution of the prisoners. As the Eighth Circuit explained, “[t]he pertinent question is [ ] whether Friedrich ‘personally assisted’ on persecution, not whether he engaged in direct persecution.” Friedrich, 402 F.3d at 845. [United States v. Friedrich, 402 F.3d 842, (8th Cir.2005)] The Eighth Circuit concluded that “[b]y guarding the perimeter of the [ ] concentration camps to ensure that prisoners did not escape from these unspeakable conditions, Friedrich personally assisted in the persecution that occurred in those camps.” Id. at 846. We agree with this reasoning. While the precise parameters of personal assistance under the Refugee Relief Act have not been delineated by the courts, Kumpf’s own actions clearly constitute personal assistance in persecution. His claim of no affirmative or direct acts of harm does not alter this conclusion.
Kumpf next argues that his service in the Waffen SS was involuntary. He submits that the involuntariness of his service should be considered in determining his eligibility for a visa under the Refugee Relief Act. Even assuming that Kumpf served involuntarily, the Refugee Relief Act does not require a person to assist voluntarily in persecution. In the context of the Displaced Persons Act, courts have held that the voluntariness of the service is irrelevant. Fedorenko, 449 U.S. at 513, 101 S.Ct. 737 (“an individual’s service as a concentration camp armed guard –whether voluntary or involuntary – made him ineligible for a visa.”); Wittje, 422 F.3d at 489 [United States v. Wittje, 422 F.3d 479, (7th Cir.2005)] (“there is no voluntariness requirement in the plain language” of the Displaced Persons Act). Similarly, the plain language of the Refugee Relief Act lacks a voluntariness requirement.
Kumpf’s actions as an armed guard at Nazi concentration camps constitute personal assistance in persecution under the Refugee Relief Act. Because of this service, Kumpf was ineligible for a visa, making his entry into this country improper and his citizenship illegally procured. Denaturalization is therefore warranted. … Accordingly, we AFFIRM the judgment of the district court. 
United States, Court of Appeals for the Seventh Circuit, Kumpf case, Judgment, 23 February 2006.
United States of America
In 2008, in the Geiser case, the US Court of Appeals for the Third Circuit affirmed a ruling by the lower court which revoked the US citizenship of the appellant, due to his participation in Nazi-sponsored acts of persecution while serving during World War II as an armed SS guard at Sachsenhausen Concentration Camp and other places of persecution. The Court stated,
On April 9, 2004, the United States filed a complaint to revoke Geiser’s citizenship … The complaint alleged that Geiser’s service as an SS concentration camp guard rendered him ineligible for a visa under the RRA [Refugee Relief Act of 1953], which provides: “No visa shall be issued under this Act to any person who personally advocated or assisted in the persecution of any person or group of persons because of race, religion, or national origin.” RRA § 14(a). …
[T]he precise question at issue … [is] whether serving as a concentration camp guard constitutes “personally advocat[ing] or assist[ing] in … persecution.”
Geiser argues that RRA § 14(a) is silent as to the meaning of the term “persecution,” and that the definition of “persecution” is therefore ambiguous. …
In a case involving the denaturalization of a former Nazi, we defined “persecution” … United States v. Koreh, 59 F.3d 431, 440 (3d Cir. 1995). We said that persecution is “the infliction of sufferings, harm, or death on those who differ … in a way regarded as offensive or meriting extirpation[;] a campaign having for its object the subjugation or extirpation of the adherents of a religion.” Id. …
Under … [this] definition, the experiences of prisoners at Nazi concentration camps fit squarely within the plain meaning of “persecution.” Thus, the meaning of “persecution” is not ambiguous, even though the statute does not define the term. Indeed, Geiser concedes that Sachscnhauscn and Buchenwald [concentration camps] were “places of persecution.” This admission forecloses his argument that “persecution” is an ambiguous term in the context of this case, because even if it is, he agrees that the concentration camps where he was a guard were places of persecution.
[T]he Supreme Court and this Court have both acknowledged that the term “persecution” has gray boundaries where ambiguity may legitimately be found. Id.; Chen [Chen v. Ashcroft, 381 F.3d 221 (3d Cir. 2004)], at 232. However, these cases also recognize that certain conduct (guarding a concentration camp or forcing a woman to undergo an abortion) falls squarely within the definition of “persecution.” Geiser’s case presents an example of such conduct. It cannot be rationally argued that prisoners at Sachscnhauscn and Buchenwald were not persecuted within the plain meaning of that term. Therefore, the text of the RRA is not ambiguous due to the use of the term “persecution.”
Geiser’s conduct as an SS guard fits the plain meaning of “personally advocated or assisted in ... persecution.” Geiser stood watch at the perimeter of the concentration camps with instructions to fire his rifle if a prisoner tried to escape. Thus, his personal actions assisted in keeping the prisoners confined in the camps where they were persecuted. In addition, he marched prisoners to and from their work sites, and these personal actions assisted in coercing the prisoners into performing forced labor.
We conclude, as have other Courts of Appeals, that according to the plain meaning of the RRA, concentration camp guards “personally advocated or assisted in ... persecution.” RRA § 14(a).
We [therefore] conclude that … [a]s an armed concentration camp guard in World War II, Geiser “personally advocated or assisted in the persecution of [a] ... group of persons because of race, religion, or national origin.” RRA § 14(a). Therefore, we will affirm the District Court’s order granting the Government’s motion for summary judgment and revoking Geiser’s citizenship. 
United States, Court of Appeals for the Third Circuit, Geiser case, Judgement, 10 June 2008, pp. 4, 8, 12, 14–15, 17–18, 20–21 and 24. [footnote in original omitted]
Afghanistan
In 2009, in its initial report to the Committee on the Rights of the Child, Afghanistan stated:
Concerted efforts have been undertaken by the MoE [Ministry of Education] to eliminate all forms of discrimination and to ensure accessibility to education by both “girls” and “boys” regardless of their ethnicity, race, religion, and social status … To achieve the determined objectives the following steps have been implemented:
- The MoE, in cooperation with relevant civil society organizations, has implemented a two phase accelerated education programme targeting children, especially girls, who were deprived of education during conflict and Taliban era and reintegrate them into mainstream education. From February 2003 to end of 2005, education was provided in 17 provinces in more than 6,800 classes to 170,000 primary students by 6,800 teachers. The second stage, which is currently continuing, supports students aged 10 to 15 years to complete two education years in one year upon which they are enrolled into basic mainstream education schools. 
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, § 230.
[footnotes in original omitted]
Belgium
In 2001, in its thirteenth periodic report to the Committee on the Elimination of Racial Discrimination, Belgium stated:
Following reports of acts, particularly acts of a racist nature, which were allegedly committed by soldiers from a Belgian battalion of the international peacekeeping force in Somalia and for which sentences were handed down, the Minister of Defence took strong action, by agreement with the army chief of staff, to rid the army of racism and, in particular, make multiculturalism a positive feature of the army’s corporate culture. The general watchword adopted in 1999 thus relates to the topic of racism and xenophobia. A code of conduct was also drawn up and includes the question of racism and xenophobia. 
Belgium, Thirteenth periodic report to the Committee on the Elimination of Racial Discrimination, 9 August 2001, UN Doc. CERD/C/381/Add.1, submitted 12 February 2001, § 30.
Belgium
In 2001, in its initial report to the Committee against Torture, Belgium stated:
Paragraph 7 of the Code of Conduct of the Department of Defence (May 1999) also refers to human rights and international humanitarian law:
“7. … I undertake to treat every individual with respect on a basis of equality. I will not tolerate any form of discrimination. I will assist any individual in danger.” 
Belgium, Initial report to the Committee against Torture, 8 July 2002, UN Doc. CAT/C/52/Add. 2, submitted 14 August 2001, § 21.
Bosnia and Herzegovina
In 2004, in its initial report to the Committee against Torture, Bosnia and Herzegovina stated that its Law on the Movement and Stay of Aliens and Asylum (2004) prescribes:
No discrimination whatsoever based on any grounds, including sex, race, colour of skin, language, religion, political and other opinions, national and social origin, ethnic minority, property status, age, psychological or physical disability, status gained by birth or some other status may be expressed towards aliens. 
Bosnia and Herzegovina, Initial report to the Committee against Torture, 29 July 2005, UN Doc. CAT/C/21/Add. 6, submitted 4 October 2004, § 243.
Bosnia and Herzegovina
In 2005, in its initial report to the Human Rights Committee, Bosnia and Herzegovina stated that its Law on Freedom of Religion and on the Legal Status of Churches and Religious Communities in Bosnia and Herzegovina (2004) prohibits “any kind of discrimination that is based on religion or belief”. 
Bosnia and Herzegovina, Initial report to the Human Rights Committee, 24 November 2005, UN Doc. CCPR/C/BIH/1, § 206.
Croatia
In 2007, in its second periodic report to the Human Rights Committee, Croatia stated:
68. Article 17 of the Constitution of the Republic of Croatia states:
During a state of war … individual freedoms and rights guaranteed by the Constitution may be restricted. …
69. The extent of such restrictions shall be adequate to the nature of the danger, and may not result in the inequality of persons in respect of race, colour, gender, language, religion, national or social origin. 
Croatia, Second periodic report to the Human Rights Committee, 2 December 2008, UN Doc. CCPR/C/HRV/2, submitted 28 November 2007, §§ 68–69; see also § 427.
Finland
In 2003, in its fifth periodic report to the Human Rights Committee, Finland stated:
The Emergency Powers Act (1080/1991) requires that the basic necessities of the population, the maintenance of law and order and the protection of the territorial integrity and independence of Finland be ensured in emergency situations. Section 9 (198/2000) specifically provides that the rights protected by the Constitution or other recognised rights may only be restricted under the Emergency Powers Act to the extent it is necessary in order to control the situation. The prohibited grounds of discrimination are listed in the Act in the same way as in the Constitution … A corresponding provision is included in section 7 (199/2000) of the Defence Act (1083/1991). 
Finland, Fifth periodic report to the Human Rights Committee, 24 July 2003, UN Doc. CCPR/C/FIN/2003/5, submitted 17 June 2003, § 111.
Georgia
In 2014, in its fourth periodic report to the Committee on the Rights of the Child, Georgia stated:
II. Violation of the rights of the child in the occupied regions of Georgia and the programs of the Government of Georgia addressing the needs of the children in the occupied regions
Introduction
6. Information below covers violations of the rights of the child in the occupied regions of Georgia in the two-year period of 2012–2013. However, many trends identified in the document date back to more than a decade, but have become particularly manifest after the Russian occupation of the Abkhazia and Tsk[h]invali regions in 2008. The Russian troops drawing barbed wire fences, digging trenches and erecting other physical barriers along the Administrative Boundary Lines (hereinafter ABL) near Abkhazia and Tskhinvali Region became commonplace and intense throughout 2012. As a result, lives of residents in the occupied regions and those living in the vicinity, including children, have been adversely affected. Even worse, children of Georgian descent, mostly those living in the Gali district in Abkhazia, have been targeted on ethnic grounds. Violations of the rights of the child in the Occupied Regions have taken place in the fields of freedom of movement, freedom of expression, preservation of identity, protection of privacy, health and education, and constitute a grave breach of the [1989] Convention on the Rights of the Child. The matter of fact that the effective control over these Georgian territories is now exercised by the Russian military and the political officialdom, puts the responsibility over these violations on the shoulders of the Russian Federation as the subject of international law.
IV. General principles
Non-discrimination
47. Due to Russia’s occupation of Tskhinvali Region/South Ossetia and Abkhazia[,] Georgia has been prevented from the opportunity to ensure protection of human rights, including children’s rights in th[ose] parts of the country. Serious facts of discriminations and human rights violations have been reported by numerous … reputable international organizations, committed predominantly against population of Georgian origin. People of Georgian ethnicity, including children, have been deprived of fundamental rights, such as right to property, right to receive education in their “mother tongue”, right to fair trial, etc. As a result of ethnic cleansing[,] hundreds of thousands of IDPs [internally displaced persons], predominantly of Georgian origin, are unable to return to their homes due to their ethnic belonging. Families who live in conflict zones are under constant pressure. They are forced to obtain Russian citizenship. If they refuse to comply they are threatened with punitive measures or expulsion. People living in adjacent areas are arbitrar[il]y arrested and detained by illegal armed groups and Russian military forces.  
Georgia, Fourth periodic report to the Committee on the Rights of the Child, 28 June 2016, UN Doc. CRC/C/GEO/4, submitted 11 December 2014, §§ 6 and 47.
[footnotes in original omitted]
Equal protection of rights in the Covenant
17. Indonesia has ensured non-discrimination in the protection of the rights provided for in the Covenant through national legislations, particularly the 1945 Constitution (Article 28 and Chapter XA on Human Rights). Article 28I Paragraph (2) of the Constitution states that every person shall have the right to be free from discriminatory treatment on any grounds whatsoever and shall have the right to protection from such discriminatory treatment.
Islamic Republic of Iran
In 2003, in its second periodic report to the Committee on the Rights of the Child, the Islamic Republic of Iran stated:
The Constitutional Law of Iran, according to its articles 19 and 20, while considering all persons equal, has forbidden any kind of discrimination based on race, gender, colour, etc. It has guaranteed equality before the law, and protection of the people. … [T]here is no bar to admissions based on religion. 
Islamic Republic of Iran, Second periodic report to the Committee on the Rights of the Child, 1 December 2003, UN Doc. CRC/C/104/Add.3, submitted 16 July 2002, § 17.
Iraq
On the basis of the reply by Iraq’s Ministry of Defence to a questionnaire, the Report on the Practice of Iraq states that, during the Iran–Iraq War, members of the opposing forces who were hors de combat were treated without distinction based on military rank or category. 
Report on the Practice of Iraq, 1998, Reply by the Ministry of Defence to a questionnaire, July 1997, Chapter 2.1.
Jordan
The Report on the Practice of Jordan states that Article 75 of the 1977 Additional Protocol I embodies customary law. 
Report on the Practice of Jordan, 1997, Chapter 5.
Rwanda
In 2010, in its initial report to the Committee on the Rights of the Child under the 2000 Optional Protocol on the Involvement of Children in Armed Conflict, Rwanda stated:
42. With regard to the conformity of the implementation of the [2000] Optional Protocol [on the Involvement of Children in Armed Conflict] to the general principles of the [1989] Convention on the Rights of the Child, the following should be noted.
1. Non-discrimination
43. Concerning … non-discrimination, Article 11 of the Constitution [of the Republic of Rwanda (2003)] specifies that:
All Rwandans are born and remain free and equal in rights and duties.
Discrimination of whatever kind based on, inter alia, ethnic origin, tribe, clan, colour, sex, region, social origin, religion or faith, opinion, economic status, culture, language, social status, physical or mental disability or any other form of discrimination is prohibited and punishable by law.
44. All national legal instruments conform to this constitutional principle. … Law [Relating to] the Rights and Protection of the [C]hild [A]gainst [V]iolence [(2001)] … is one of those laws. … [It] does not make any discrimination among [the] rights and obligations that it stipulates with regard to children, and this applies [also] to penal acts.
45. In practice, no discrimination is made among beneficiaries of rehabilitation and social reintegration measures. … [Although] there are very few girls who return according to official procedures, the facilities were however provided for them at the demobilisation camp ([such as] dormitories and toilet amenities separate from those of boys, [and the presence of] a female social worker). 
Rwanda, Initial report to the Committee on the Rights of the Child under the Optional Protocol on the Involvement of Children in Armed Conflict, 6 December 2011, UN Doc. CRC/C/OPAC/RWA/1, submitted 20 January 2010, §§ 42–45.
Serbia and Montenegro
In its initial report to the Human Rights Committee in 2003, Serbia and Montenegro stated:
According to Article 99, paragraph 11, of the Constitution of the Federal Republic of Yugoslavia, enactments adopted during a state of war may throughout the duration of the state of war restrict various rights and freedoms of man and the citizen, except specific rights and freedoms guaranteed by the Constitution (equality of citizens. 
Serbia and Montenegro, Initial report to the Human Rights Committee, UN Doc. CCPR/C/SEMO/2003/1, 24 July 2003, § 151.
Somalia
In 2011, in its report to the Human Rights Council, Somalia stated:
Somalia has not ratified AP II [1977 Additional Protocol II] and it is therefore not directly applicable to Somalia as a matter of treaty law. The Government is aware that many provisions of AP II represent customary IHL rules and therefore apply to the situation in Somalia. Such provisions include Article 4 providing guarantees to persons taking no active part in hostilities … due to the fact that these norms are reflected in Common Article 3 of the [1949] Geneva Conventions. 
Somalia, Report to the Human Rights Council, UN Doc. A/HRC/WG.6/11/SOM/1, 11 April 2011, § 75.
Humanitarian law is based on a number of fundamental principles. They are apparent in current treaties and customary law and express the core of humanitarian law. They concern the principles of distinction, proportionality and precaution, the prohibition on causing superfluous damage and unnecessary suffering and the principle of non-discrimination as well as the so called Martens Clause. 
Sweden, Government Bill 2013/14:146 on criminal liability for genocide, crimes against humanity and war crimes, 20 February 2014, p. 33.
Switzerland
In 2012, Switzerland’s Federal Department of Foreign Affairs issued a press release entitled “Appeal by the Swiss authorities for compliance with international humanitarian law in Syria”, which stated: “Persons who are not or no longer taking part in the hostilities must be treated humanely without any discrimination. This is especially important in the case of detainees.” 
Switzerland, Federal Department of Foreign Affairs, “Appeal by the Swiss authorities for compliance with international humanitarian law in Syria”, Press Release, 15 November 2012.
Ukraine
In 1999, in its sixth periodic report to the Human Rights Committee, Ukraine stated:
72. In article 64, paragraph 2, the Constitution lists those rights and freedoms which may not be restricted under martial law or a state of emergency.
73. These rights and freedoms include, among others, the following:
- There may be no privileges or restrictions on the grounds of race, colour, sex, political, religious or other conviction, ethnic or social origin, property, place of residence, or linguistic or other attributes. 
Ukraine, Sixth periodic report to the Human Rights Committee, 3 November 1999, UN Doc. CCPR/C/UKR/6, 11 April 2006, §§ 72–73.
United Kingdom of Great Britain and Northern Ireland
In 2010, in its closing submissions to the public inquiry into the circumstances surrounding the death of Baha Mousa and the treatment of those detained with him by UK armed forces in Iraq in 2003, the UK Ministry of Defence stated regarding common Article 3 of the 1949 Geneva Conventions: “On its face this protection is restricted to armed conflicts not of an international character. However, it is understood to apply in all forms of armed conflict as part of customary international law to set out the irreducible minimum standard.” 
United Kingdom, Ministry of Defence, Closing Submissions to the Baha Mousa Public Inquiry on Modules 1–3, 25 June 2010, § 10.2, p. 10.
United States of America
In 1987, the Deputy Legal Adviser of the US Department of State affirmed:
We support in particular the fundamental guarantees contained in article 75 [of the 1977 Additional Protocol I], such as the principle that all persons who are in the power of a party to a conflict and who do not benefit from more favourable treatment under the Conventions be treated humanely in all circumstances and enjoy, at a minimum, the protections specified in the Conventions without any adverse distinction based upon race, sex, language, religion or belief, political or other opinion, national or social origin, or any similar criteria. 
United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American University Journal of International Law and Policy, Vol. 2, 1987, p. 427.
United States of America
According to the Report on US Practice, “Articles 4, 5 and 6 [of the 1977 Additional Protocol II] reflect general US policy on treatment of persons in the power of an adverse party in armed conflicts governed by common Article 3 [of the 1949 Geneva Conventions]”. 
Report on US Practice, 1997, Chapter 5.3.
UN General Assembly
In a resolution adopted in 2003 on global efforts for the total elimination of racism, racial discrimination, xenophobia and related intolerance, the UN General Assembly acknowledged that “no derogation from the prohibition of racial discrimination, genocide, the crime of apartheid or slavery is permitted, as defined in the obligations under the relevant human rights instruments”. 
UN General Assembly, Res. 58/160, 22 December 2003, § 1, voting record: 174-2-2-13.
UN General Assembly
In a resolution adopted in 2004 on global efforts for the total elimination of racism, racial discrimination, xenophobia and related intolerance, the UN General Assembly acknowledged that “no derogation from the prohibition of racial discrimination, genocide, the crime of apartheid or slavery is permitted, as defined in the obligations under the relevant human rights instruments”. 
UN General Assembly, Res. 59/177, 20 December 2004, § 1, voting record: 183-3-2-3.
UN General Assembly
In a resolution adopted in 2005 on global efforts for the total elimination of racism, racial discrimination, xenophobia and related intolerance and the comprehensive implementation of and follow-up to the Durban Declaration and Programme of Action, the UN General Assembly:
Stresses that States and international organizations have a responsibility to ensure that measures taken in the struggle against terrorism do not discriminate in purpose or effect on grounds of race, colour, descent or national or ethnic origin, and urges all States to rescind or refrain from all forms of racial profiling. 
UN General Assembly, Res. 60/144, 16 December 2005, § 4, voting record: 172-3-4-12.
UN General Assembly
In a resolution adopted in 2005 on the elimination of all forms of intolerance and of discrimination based on religion or belief, the UN General Assembly:
Resolved to adopt all necessary and appropriate measures for the speedy elimination of … intolerance based on religion or belief in all its forms and manifestations and to prevent and combat discrimination based on religion or belief,
Noting that a formal or legal distinction at the national level between different kinds of religions or faith-based communities may, in some cases, constitute discrimination and may impinge on the enjoyment of the freedom of religion or belief,
2. Condemns all forms of intolerance and of discrimination based on religion or belief;
6. Expresses concern over the persistence of institutionalized social intolerance and discrimination practised against many in the name of religion or belief;
7. Condemns any advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence, whether it involves the use of print, audiovisual and electronic media or any other means;
10. Urges States to step up their efforts to eliminate intolerance and discrimination based on religion or belief. 
UN General Assembly, Res. 60/166, 16 December 2005, preamble and §§ 2, 6–7 and 10, adopted without a vote.
UN General Assembly
In a resolution adopted in 2006 on the Human Rights Council, the UN General Assembly:
Emphasizing the responsibilities of all States, in conformity with the Charter, to respect human rights and fundamental freedoms for all, without distinction of any kind as to race, colour, sex, language or religion, political or other opinion, national or social origin, property, birth or other status. 
UN General Assembly, Res. 60/251, 15 March 2006, preamble, voting record: 170-4-3-14.
UN General Assembly
In a resolution adopted in 2006 on global efforts for the total elimination of racism, racial discrimination, xenophobia and related intolerance and the comprehensive implementation of and follow-up to the Durban Declaration and Programme of Action, the UN General Assembly:
Stresses that States and international organizations have a responsibility to ensure that measures taken in the struggle against terrorism do not discriminate in purpose or effect on grounds of race, colour, descent or national or ethnic origin, and urges all States to rescind or refrain from all forms of racial profiling. 
UN General Assembly, Res. 61/149, 19 December 2006, § 4, voting record: 179-2-4-7.
UN General Assembly
In a resolution adopted in 2006 on the elimination of all forms of intolerance and of discrimination based on religion or belief, the UN General Assembly:
Resolved to adopt all necessary and appropriate measures for the speedy elimination of … intolerance based on religion or belief in all its forms and manifestations and prevent and combat discrimination based on religion or belief,
Noting that a formal or legal distinction at the national level between different kinds of religions or faith-based communities may, in some cases, constitute discrimination and may impinge on the enjoyment of the freedom of religion or belief,
2. Condemns all forms of intolerance and of discrimination based on religion or belief;
6. Expresses concern over the persistence of institutionalized social intolerance and discrimination practised against many in the name of religion or belief;
7. Condemns any advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence, whether it involves the use of print, audio-visual and electronic media or any other means;
10. Urges States to step up their efforts to eliminate intolerance and discrimination based on religion or belief. 
UN General Assembly, Res. 61/161, 19 December 2006, preamble and §§ 2, 6–7 and 10, adopted without a vote.
UN General Assembly
In a resolution adopted in 2006 on the situation of human rights in Myanmar, the UN General Assembly:
2. Expresses grave concern at:
(a) The ongoing systematic violations of human rights and fundamental freedoms of the people of Myanmar … including discrimination and violations suffered by persons belonging to ethnic nationalities of Myanmar …
3. Strongly calls upon the Government of Myanmar:
(b) To take urgent measures to put an end to the military operations targeting civilians in the ethnic areas, and the associated violations of human rights and humanitarian law against persons belonging to ethnic nationalities …
4. Calls upon the Government of Myanmar:
(b) To pursue through dialogue and peaceful means the immediate suspension and permanent end of conflict with all ethnic nationalities in Myanmar. 
UN General Assembly, Res. 61/232, 22 December 2006, §§ 2(a), 3(b) and 4(b), voting record: 82-25-45-40.
UN General Assembly
In a resolution adopted in 2007 on the situation in Afghanistan, the UN General Assembly:
19. Calls for the full respect of the human rights and fundamental freedoms of all, without discrimination of any kind, including on the basis of gender, ethnicity or religion, in accordance with obligations under the Afghan Constitution and international law;
26. Recognizes the significant progress achieved on gender equality in Afghanistan in recent years, and strongly condemns incidents of discrimination and violence against women and girls, including women activists, in Afghanistan, wherever they occur. 
UN General Assembly, Res. 62/6, 11 November 2007, §§ 19 and 26, adopted without a vote.
UN General Assembly
In a resolution adopted in 2007 on the elimination of all forms of intolerance and of discrimination based on religion or belief, the UN General Assembly:
Recalling its previous resolutions on the elimination of all forms of intolerance and of discrimination based on religion or belief, the most recent being resolution 61/161 of 19 December 2006, as well as Human Rights Council resolution 5/1 of 18 June 2007,
1. Condemns all forms of intolerance and of discrimination based on religion or belief, as well as violations of freedom of thought, conscience, religion or belief;
2. Stresses that the right to freedom of thought, conscience and religion applies equally to all people, regardless of their religions or beliefs, and without any discrimination as to their equal protection by the law;
6. Expresses concern over the persistence of institutionalized social intolerance and discrimination practised against many in the name of religion or belief;
7. Condemns any advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence, whether it involves the use of print, audio-visual and electronic media or any other means;
10. Urges States to step up their efforts to eliminate intolerance and discrimination based on religion or belief. 
UN General Assembly, Res. 62/157, 18 December 2007, preamble and §§ 1–2, 6–7 and 10, adopted without a vote.
UN General Assembly
In a resolution adopted in 2007 on the protection of human rights and fundamental freedoms while countering terrorism, the UN General Assembly reaffirmed that “counter-terrorism measures should be implemented in full consideration of the human rights of persons belonging to minorities and must not be discriminatory on grounds such as race, colour, sex, language, religion or social origin”. 
UN General Assembly, Res. 62/159, 18 December 2007, § 5, adopted without a vote.
UN General Assembly
In a resolution adopted in 2007 on global efforts for the total elimination of racism, racial discrimination, xenophobia and related intolerance and the comprehensive implementation of and follow-up to the Durban Declaration and Programme of Action, the UN General Assembly:
1. Acknowledges that no derogation from the prohibition of racial discrimination, genocide, the crime of apartheid or slavery is permitted, as defined in the obligations under the relevant human rights instruments;
4. Stresses that States and international organizations have a responsibility to ensure that measures taken in the struggle against terrorism do not discriminate in purpose or effect on grounds of race, colour, descent or national or ethnic origin, and urges all States to rescind or refrain from all forms of racial profiling. 
UN General Assembly, Res. 62/220, 22 December 2007, §§ 1 and 4, voting record: 105-46-6-35.
UN General Assembly
In a resolution adopted in 2007 on the situation of human rights in Myanmar, the UN General Assembly:
2. Expresses grave concern at:
(d) The discrimination and violations suffered by persons belonging to ethnic nationalities of Myanmar, particularly in border and conflict areas, and attacks by military forces and non-State armed groups on villages in Karen State and other ethnic States in Myanmar, leading to extensive forced displacements and serious violations and other abuses of the human rights of the affected populations;
4. Strongly calls upon the Government of Myanmar:
(h) To take urgent measures to put an end to the military operations targeting civilians in the ethnic areas, and to the associated violations of human rights and humanitarian law directed against persons belonging to ethnic nationalities, to end the systematic forced displacement of large numbers of persons and other causes of refugee flows to neighbouring countries and to respect existing ceasefire agreements. 
UN General Assembly, Res. 62/222, 22 December 2007, §§ 2(d) and 4(h), voting record: 83-22-47-40.
UN Commission on Human Rights
In a resolution adopted in 2003 on combating defamation of religions, the UN Commission on Human Rights:
Reaffirming that discrimination against human beings on the grounds of religion or belief constitutes an affront to human dignity and a disavowal of the principles of the Charter of the United Nations,
Alarmed at the serious instances of intolerance, discrimination and acts of violence based on religion or belief, intimidation and coercion motivated by extremism, religious or otherwise, occurring in many parts of the world and threatening the enjoyment of human rights and fundamental freedoms,
2. Expresses deep concern at negative stereotyping of religions and manifestations of intolerance and discrimination in matters of religion or belief still in evidence in some regions of the world;
7. Urges all States, within their national legal framework, in conformity with international human rights instruments, to take all appropriate measures to combat hatred, discrimination, intolerance and acts of violence, intimidation and coercion motivated by religious intolerance, including attacks on religious places, and to encourage understanding, tolerance and respect in matters relating to freedom of religion or belief;
8. Also urges all States to ensure that all public officials, including members of law enforcement bodies, the military, civil servants and educators, in the course of their official duties respect different religions and beliefs and do not discriminate on the grounds of religion or belief, and that necessary and appropriate education or training is provided. 
UN Commission on Human Rights, Res. 2003/4, 14 April 2003, preamble and §§ 2 and 7–8, voting record: 32-14-7.
UN Commission on Human Rights
In a resolution adopted in 2003 on the situation of human rights in Myanmar, the UN Commission on Human Rights expressed its grave concern at “discrimination and persecution on the basis of religious or ethnic background”. 
UN Commission on Human Rights, Res. 2003/12, 16 April 2003, § 3(c), adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2003 on the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance and the comprehensive implementation of and follow-up to the Durban Declaration and Programme of Action, the UN Commission on Human Rights:
Stresses that States and international organizations have a responsibility to ensure that measures taken in the struggle against terrorism do not discriminate in purpose or effect on grounds of race, colour, descent or national or ethnic origin, and urges all States to rescind or refrain from all forms of racial profiling. 
UN Commission on Human Rights, Res. 2003/30, 23 April 2003, § 4, voting record: 38-1-13.
UN Commission on Human Rights
In a resolution adopted in 2004 on combating defamation of religions, the UN Commission on Human Rights:
Recalling that all States have pledged themselves, under the Charter of the United Nations, to promote and encourage universal respect for and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion,
Reaffirming that discrimination against human beings on the grounds of religion or belief constitutes an affront to human dignity and a disavowal of the principles of the Charter of the United Nations,
Alarmed at the serious instances of intolerance, discrimination and acts of violence based on religion or belief, intimidation and coercion motivated by extremism, religious or otherwise, occurring in many parts of the world and threatening the enjoyment of human rights and fundamental freedoms,
2. Expresses deep concern at negative stereotyping of religions and manifestations of intolerance and discrimination in matters of religion or belief still in evidence in some regions of the world;
9. Urges all States, within their national legal framework, in conformity with international human rights instruments, to take all appropriate measures to combat hatred, discrimination, intolerance and acts of violence, intimidation and coercion motivated by religious intolerance, including attacks on religious places, and to encourage understanding, tolerance and respect in matters relating to freedom of religion or belief;
10. Also urges all States to ensure that all public officials, including members of law enforcement bodies, the military, civil servants and educators, in the course of their official duties respect different religions and beliefs and do not discriminate on the grounds of religion or belief, and that necessary and appropriate education or training is provided. 
UN Commission on Human Rights, Res. 2004/6, 13 April 2004, preamble and §§ 2 and 9–10, voting record: 29-16-7.
UN Commission on Human Rights
In a resolution adopted in 2004 on the situation of human rights in Myanmar, the UN Commission on Human Rights expressed its grave concern at “discrimination and persecution on the basis of religious or ethnic background”. 
UN Commission on Human Rights, Res. 2004/61, 21 April 2004, § 3(d), adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2004 on assistance to Somalia in the field of human rights, the UN Commission on Human Rights expressed deep concern “at discrimination against children belonging to minority clans, who are vulnerable to violence, including murder, poverty and lack of access to education”. 
UN Commission on Human Rights, Res. 2004/80, 21 April 2004, § 7, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2004 on the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance and the comprehensive implementation of and follow-up to the Durban Declaration and Programme of Action, the UN Commission on Human Rights:
Stresses that States and international organizations have a responsibility to ensure that measures taken in the struggle against terrorism do not discriminate in purpose or effect on grounds of race, colour, descent or national or ethnic origin, and urges all States to rescind or refrain from all forms of racial profiling. 
UN Commission on Human Rights, Res. 2004/88, 22 April 2004, § 2, voting record: 38-1-14.
UN Commission on Human Rights
In a resolution adopted in 2005 on combating defamation of religions, the UN Commission on Human Rights:
Recalling that all States have pledged themselves, under the Charter of the United Nations, to promote and encourage universal respect for and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion,
Reaffirming that discrimination against human beings on the grounds of religion or belief constitutes an affront to human dignity and a disavowal of the principles of the Charter of the United Nations,
Alarmed … at the serious instances of intolerance, discrimination and acts of violence based on religion or belief, intimidation and coercion motivated by extremism, religious or otherwise, occurring in many parts of the world and threatening the enjoyment of human rights and fundamental freedoms,
1. Expresses deep concern at negative stereotyping of religions and manifestations of intolerance and discrimination in matters of religion or belief still in evidence in some regions of the world;
7. Recognizes that in the context of the fight against terrorism and the reaction to counterterrorism measures, defamation of religions becomes an aggravating factor that contributes to the denial of fundamental rights and freedoms of target groups, as well as their economic and social exclusion;
8. Stresses the need to effectively combat defamation of all religions, Islam and Muslims in particular especially in human rights forums;
9. Urges States to take resolute action to prohibit the dissemination through political institutions and organizations of racist and xenophobic ideas and material aimed at any religion or its followers that constitute incitement to discrimination, hostility or violence;
10. Also urges States to provide, within their respective legal and constitutional systems, adequate protection against acts of hatred, discrimination, intimidation and coercion resulting from defamation of religions, to take all possible measures to promote tolerance and respect for all religions and their value systems, and to complement legal systems with intellectual and moral strategies to combat religious hatred and intolerance;
11. Urges all States to ensure that all public officials, including members of law enforcement bodies, the military, civil servants and educators, in the course of their official duties, respect different religions and beliefs and do not discriminate on the grounds of religion or belief, and that necessary and appropriate education or training is provided. 
UN Commission on Human Rights, Res. 2005/3, 12 April 2005, preamble and §§ 1 and 7–11, voting record: 31-16-5.
UN Commission on Human Rights
In a resolution adopted in 2005 on the situation of human rights in Myanmar, the UN Commission on Human Rights expressed its grave concern at:
(a) The ongoing systematic violation of human rights, including civil, political, economic, social and cultural rights, of the people of Myanmar, in particular discrimination and violations suffered by persons belonging to ethnic minorities, women and children, especially in nonceasefire areas;
(f) … discrimination and persecution on the basis of religious or ethnic background. 
UN Commission on Human Rights, Res. 2005/10, 14 April 2005, § 3(a) and (f), adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2005 on the elimination of all forms of intolerance and of discrimination based on religion or belief, the UN Commission on Human Rights urged States:
To ensure that all public officials and civil servants, including members of law enforcement bodies, the military and educators, in the course of their official duties, respect different religions and beliefs and do not discriminate on the grounds of religion or belief, and that all necessary and appropriate education or training is provided.  
UN Commission on Human Rights, Res. 2005/40, 19 April 2005, § 4(g), adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2005 on the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance and the comprehensive implementation of and follow-up to the Durban Declaration and Programme of Action, the UN Commission on Human Rights:
Stresses that States and international organizations have a responsibility to ensure that measures taken in the struggle against terrorism do not discriminate in purpose or effect on grounds of race, colour, descent or national or ethnic origin, and urges all States to rescind or refrain from all forms of racial profiling. 
UN Commission on Human Rights, Res. 2005/64, 20 April 2005, § 2, voting record: 38-1-14.
UN Commission on Human Rights
In a resolution adopted in 2005 on assistance to Somalia in the field of human rights, the UN Commission on Human Rights expressed deep concern “at discrimination against children belonging to minority clans, who are vulnerable to violence, including murder, poverty and lack of access to education”. 
UN Commission on Human Rights, Res. 2005/83, 21 April 2005, § 5(b), adopted without a vote.
UN Human Rights Council
In a resolution adopted in 2007 on combating defamation of religions, the UN Human Rights Council:
Urges all States to ensure that all public officials, including members of law enforcement bodies, the military, civil servants and educators, in the course of their official duties, respect different religions and beliefs and do not discriminate against persons on the grounds of their religion or belief, and that any necessary and appropriate education or training is provided. 
UN Human Rights Council, Res. 4/9, 30 March 2007, § 9, voting record: 24-14-9.
UN Sub-Commission on Human Rights
In a resolution adopted in 1995 on the former Yugoslavia, the UN Sub-Commission on Human Rights demanded that “those who have engaged in incitement to ethnic or religious hatred be brought to justice and held individually accountable for their acts”. 
UN Sub-Commission on Human Rights, Res. 1995/8, 18 August 1995, § 9.
UN Secretary-General
In 2000, in his report on the establishment of a Special Court for Sierra Leone, the UN Secretary-General stated that common Article 3 of the 1949 Geneva Conventions and Article 4 of the 1977 Additional Protocol II “have long been considered customary international law”. 
UN Secretary-General, Report on the establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915, 4 October 2000, § 14.
Council of Europe Parliamentary Assembly
In an opinion adopted in 1995 in the context of Turkey’s military intervention in northern Iraq, the Council of Europe Parliamentary Assembly observed that “ICRC efforts have been directed towards a pragmatic approach, whose operational objectives are … to assess on the spot the medical and sanitary needs of the wounded and sick, civilian or combatant, regardless of their origin”. 
Council of Europe, Parliamentary Assembly, Doc. 7295, 25 April 1995, §§ 10 and 11.
International Conference of the Red Cross (1973)
The 22nd International Conference of the Red Cross in 1973 adopted a resolution on the elimination of racial discrimination in which it condemned “all forms of racism and racial discrimination at all levels”. 
22nd International Conference of the Red Cross, Teheran, 8–15 November 1973, Res. X.
World Conference on Human Rights
In the Vienna Declaration and Programme of Action, the World Conference on Human Rights in 1993 expressed dismay and condemnation that “gross and systematic violations and situations that constitute serious obstacles to the full enjoyment of all human rights continue to occur in all parts of the world, [including] … all forms of racism, racial discrimination and … discrimination against women”. 
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(30).
Extraordinary Chambers in the Courts of Cambodia
In the Kaing case before the ECCC, the accused was charged, both individually and as a superior, with, inter alia, various crimes against humanity and grave breaches of the 1949 Geneva Conventions. In its judgment in 2010, the Trial Chamber considered the crime of persecution, stating
374. Persecution has long been proscribed as a crime under customary international law. The crime of persecution has in the case law of the ad hoc Tribunals come to describe large-scale and discriminatory offending in situations involving massive criminality but which may not entail the necessary physical destruction or exterminatory intent required for genocide.
375. Whilst an offence charged before the Nuremberg and Tokyo Tribunals, the elements of this offence received limited elaboration prior to the establishment of the ad hoc Tribunals. It has instead fallen to the international jurisprudence post-1992 to outline the contours of this offence. As the Kordic Trial Judgement notes:
Neither international treaty law nor case law provides a comprehensive list of illegal acts encompassed by the charge of persecution, and persecution as such is not known in the world’s major criminal justice systems. The Trial Chamber agrees […] that the crime of persecution needs careful and sensitive development in light of the principle of nullum crimen sine lege. [ICTY, Kordić and Čerkez case, Judgement, § 192]
376. The Chamber finds that as early as 1975, persecution nonetheless clearly included an “act or omission which […] discriminates in fact and which denies or infringes upon a fundamental right laid down in international customary or treaty law.” [ICTR, Bagosora case, Judgement, § 2208]
377. This act or omission must actually discriminate: a discriminatory intention is not sufficient, the act or omission must have discriminatory consequences. An act is discriminatory when a victim is targeted because of the victim’s membership in a group defined by the perpetrator on specific grounds, namely on a political, racial or religious basis. In this case, the Accused has been indicted only for persecution on political grounds.
378. Persecutory acts include (but are not limited to) the other underlying offences for crimes against humanity, for example murder, extermination, enslavement, imprisonment and torture. While no comprehensive enumeration of other acts constituting persecution is possible, relevant examples include harassment, humiliation and psychological abuse, confinement in inhumane conditions, cruel and inhumane treatment, deportation, forcible transfer and forcible displacement, and forced labour assignments. Such acts must be of “equal gravity or severity” to the specified underlying offences to constitute persecution and must be evaluated not in isolation but in context, by looking at their cumulative effect. Not every denial of a human right may constitute a crime against humanity, and to reach the level of gravity required the act or omission generally needs to be a gross or blatant denial of a fundamental human right.
379. The perpetrator must have carried out the act or omission “deliberately with the intention to discriminate on one of the listed grounds.” [ICTR, Bagosora case, Judgement, § 2208] This requires “evidence of a specific intent to discriminate on political, racial or religious grounds.” [ICTY, Kvočka case, Judgement on Appeal, § 460] There is no requirement in law that the perpetrator possess a “persecutory intent” over and above a discriminatory intent. The existence of a “specific intent to cause injury to a human being because he belongs to a particular community or group” is sufficient to establish the intent required for the crime of persecution. This specific intent is not a legal element of the other underlying crimes against humanity.
380. The requisite discriminatory intent may not be inferred directly from the general discriminatory nature of an attack, but may be inferred from this context if “in view of the facts of the case, circumstances surrounding the commission of the alleged acts substantiate the existence of such intent.” [ICTY, Krnojelac case, Judgement on Appeal, § 184]. 
ECCC, Kaing case, Judgment, 26 July 2010, §§ 374–380.
[footnotes in original omitted]
International Court of Justice (ICJ)
In its judgment in the Nicaragua case (Merits) in 1986, the ICJ held that the rules contained in common Article 3 of the 1949 Geneva Conventions reflected what the Court in 1949 in the Corfu Channel case (Merits) had called “elementary considerations of humanity”. 
ICJ, Nicaragua case (Merits), Judgment, 27 June 1986, § 218.
International Criminal Tribunal for Rwanda
In the Bikindi case, the accused, a composer and singer, director of a performance group, official in the Rwandan Ministry of Youth and Sports, and member of the political party Mouvement républicain national pour la démocratie et le développement (MRND), was charged with, inter alia, various counts of genocide under Article 2 of the 1994 ICTR Statute, and with murder as a crime against humanity under Article 3(a) of the 1994 ICTR Statute. In its judgment in the case in 2008, the ICTR Trial Chamber considered whether hate speech could form the underlying act of the offence of persecution as a crime against humanity under Article 3 of the 1994 ICTR Statute. The Trial Chamber stated:
390. … [H]ate speech that does not directly call for genocide may, in certain contexts, constitute persecution as a crime against humanity.
391. The crime of persecution consists of an act or omission that discriminates in fact and that denies or infringes upon a fundamental right laid down in international customary or treaty law, and was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion or politics.
392. Underlying acts of persecution need not be considered crimes in international law. For example, harassment, humiliation, psychological abuse, as well as denial of the rights of employment, freedom of movement, proper judicial process, and proper medical care have been recognised as underlying acts of persecution. It follows that it is not necessary to find that certain hate speech was in and of itself a crime under international law in order to regard such a speech as an underlying act of persecution. The Chamber is satisfied that hate speech may in certain circumstances constitute a violation of fundamental rights, namely a violation of the right to respect for dignity when that speech incites to hate and discrimination, or a violation of the right to security when it incites to violence.
393. The Appeals Chamber recently recalled that the underlying acts of persecution, whether considered in isolation or in conjunction with other acts, must be of equal gravity to the crimes listed under Article 3 of the [1994 ICTR] Statute. It also held that hate speeches may be considered of equal gravity to the crimes listed under Article 3 of the Statute if they occur as part of a larger campaign of persecution. In its determination, the Appeals Chamber considered the cumulative effect of all the underlying acts of the crime of persecution, namely the cumulative effect of the hate speeches and the direct calls to commit genocide broadcast in the context of a campaign of anti-Tutsi violence.
394. The question remains as to whether hate speech occurring in isolation could be considered to be of equal gravity to the other crimes listed under Article 3. In such a scenario, the hate speech would occur without any other underlying acts of persecution, and as such, would be the only act discriminating against the group. However, given that a widespread or systematic attack against a civilian population on national, political, ethnic, racial or religious grounds would have to be established in order to support a conviction for persecution under the Tribunal’s Statute, the Chamber considers that the same facts that would lead it to find the existence of such an attack could also support a finding of many other underlying acts of persecution, as both must be committed on discriminatory grounds.
395. Finally, depending on the message conveyed and the context, the Chamber does not exclude the possibility that songs may constitute persecution as a crime against humanity.
3. CONCLUSION
396. The Chamber appreciates the precarious nature of restricting speech and discouraging political opinion through the criminalisation of certain kinds of expression. Although the Statute does not criminalise acts of expression per se, the inclusion of expressive acts within the underlying elements of the crimes under the jurisdiction of the Tribunal comes close to having such an effect. However, the Chamber is of the opinion that there is a discernible hierarchy of expression, one which requires the Chamber to treat different forms of expression differently. In fact, because of the serious nature of the crimes involved – persecution as a crime against humanity and direct and public incitement to commit genocide – it would be injudicious for the Chamber to treat the seeds of such grievous acts in the same fashion as any other act of expression, especially when accompanying a recognisable campaign of ongoing persecution or genocide.
397. While there is murky ground between some forms of expression, at some point, in the words of Judge Shahabuddeen, “[n]o margin of delicate appreciation is involved.” [Nahimana case, Judgment, Partly Dissenting Opinion of Judge Shahabuddeen, § 73] There are cases that are made up of simple criminality, in which the perpetrators know what they are doing and why they are doing it. These are the cases that will be punished under the Statute, no less. 
ICTR, Bikindi case, Judgment, 2 December 2008, §§ 390–397.
[footnotes in original omitted]
International Criminal Tribunal for the former Yugoslavia
In the Milutinović case, the accused were charged with violations of the laws or customs of war and crimes against humanity as members of a joint criminal enterprise to, amongst other things, modify the ethnic balance in Kosovo to ensure Serbian control of the province through a campaign of terror and violence directed at the Kosovo Albanian population. In its judgment in 2009, the ICTY Trial Chamber considered the definition of the crime against humanity of persecution. On the actus reus of the crime, the Trial Chamber stated:
175. A number of underlying offences are charged as persecution. The underlying conduct for persecution is generally described in Tribunal jurisprudence as an act or omission that (a) discriminates in fact and (b) denies or infringes upon a fundamental right laid down in customary international law or treaty law.
176. The Trial and Appeals Chambers of the Tribunal have consistently emphasised that the crime against humanity of persecution requires intent to discriminate on political, racial, or religious grounds. Moreover, in practice, discrimination on the basis of ethnicity has been accepted as a ground upon which the requirement is satisfied. 
ICTY, Milutinović case, Judgment, 26 February 2009, §§ 175–176.
[footnotes in original omitted]
The Trial Chamber then considered the mens rea of the crime of persecution, specifically the nature of the discriminatory intent required, stating:
With regard to the question of who must have the requisite discriminatory intent, namely the physical perpetrator or the accused who planned, ordered, or instigated the conduct of the physical perpetrator, the Trial Chamber considers that, so long as it is proved that one of these individuals possessed discriminatory intent, this element is satisfied. The Chamber reiterates here that this analysis should not be confused with the question of whether the accused bears criminal responsibility for persecution. Instead, the above is simply a determination as to whether such persecution was committed at all. 
ICTY, Milutinović case, Judgment, 26 February 2009, § 181.
(b) Mens Rea
Human Rights Committee
In its General Comment on non-discrimination under the 1966 International Covenant on Civil and Political Rights in 1989, the Human Rights Committee held:
The Committee believes that the term “discrimination” as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. 
Human Rights Committee, General Comment No. 18 (Non-discrimination), 10 November 1989, § 7.
Human Rights Committee
In its General Comment on Article 4 of the 1966 International Covenant on Civil and Political Rights in 2001, the Human Rights Committee held:
According to article 4, paragraph 1, one of the conditions for the justifiability of any derogation from the Covenant is that the measures taken do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. Even though article 26 or the other Covenant provisions related to non-discrimination (article 2, 3, 14, paragraph 1, 23, paragraph 4, 24, paragraph 1, and 25) 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, this 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. 
Human Rights Committee, General Comment No. 29 (Article 4 of the International Covenant on Civil and Political Rights), 24 July 2001, § 8.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that:
Any discriminatory distinction of treatment is prohibited if based upon race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or any other similar criteria. 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 199.
Council of Delegates (1973)
At its Teheran Session in 1973, the Council of Delegates adopted a resolution on action in the struggle against racism and racial discrimination in which it noted that “racism and racial discrimination constitute a serious violation of basic human rights” and of the Red Cross principle of impartiality. The resolution recalled the “provisions of the Geneva Conventions forbidding any discrimination of a racial character” and stressed the necessity “to engage still more actively in the struggle for the elimination of racism and racial discrimination”. 
International Red Cross and Red Crescent Movement, Council of Delegates, Teheran, 8–15 November 1973, Resolution on action in the struggle against racism and racial discrimination.
ICRC
In an appeal issued in 1979 with respect to the conflict in Rhodesia/Zimbabwe, the ICRC specifically requested that the Transitional Government in Salisbury “allow the ICRC to provide medical care without discrimination to all wounded and sick war victims”. 
ICRC, Conflict in Southern Africa: ICRC appeal, 19 March 1979, § 6, IRRC, No. 209, 1979, p. 88.
ICRC
In a communication to the press issued in 1993, the ICRC stated that its delegates in Bosnia and Herzegovina were once more witnessing “blatant violations of the basic principles of international humanitarian law” and cited the “adverse discrimination … practiced in the medical care given to sick and wounded civilians and combatants” as an example. 
ICRC, Communication to the Press No. 93/16, Bosnia-Herzegovina: The ICRC appeals for humanity, 16 June 1993.
National Society (Mexico)
In a declaration issued in 1994 in the context of the conflict between the Mexican Government and the Ejército Zapatista de Liberación Nacional (EZLN), the Mexican Red Cross reminded the parties of their obligation to treat without any distinction non-combatants and persons hors de combat. It recalled the 1949 Geneva Conventions and the 1977 Additional Protocol I. 
Mexican Red Cross, Declaración en torno a los acontecimientos que se han presentado en el estado de Chiapas a partir del 1 de Enero de 1994, 3 January 1994.
American Law Institute
The Restatement (Third) of the Foreign Relations Law of the United States, adopted and promulgated by the American Law Institute in 1986, provides: “A state violates international law if, as a matter of state policy, it practices, encourages, or condones … (f) systematic racial discrimination”. 
The American Law Institute, Restatement Third. Restatement of the Foreign Relations Law of the United States, American Law Institute Publishers, St. Paul, 1987, § 702(f).
Turku Declaration of Minimum Humanitarian Standards
The Turku Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights of Åbo Akademi University in Turku/Åbo, Finland in 1990, states: “All persons, even if their liberty has been restricted … shall in all circumstances be treated … without any adverse distinction.” 
Turku Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights, Åbo Akademi University, Turku/Åbo, 30 November–2 December 1990, Article 3(1), IRRC, No. 282, 1991, p. 331.
Sudan People’s Liberation Movement (SPLM)
The SPLM Constitution provides that a member of the SPLM has the duty and obligation to “combat racism, tribalism, political sectarianism, religious intolerance and all other forms of discrimination in the New Sudan”. 
SPLM, Constitution, March 1996, Article 7(2).