Practice Relating to Rule 88. Non-Discrimination

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. 

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. 

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. 

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. 

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. 

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. 

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.  

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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.  

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. 

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. 

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Every soldier must:

[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. 

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. 

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. 

1711. No Adverse Discrimination

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. 

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. 

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.

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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. 

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. 

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. 

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. 

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. 

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. 

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 …

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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. 

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. 

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. 

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. 

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.

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Regarding these fundamental guarantees, there is no exception whatsoever and they are binding both in times of peace and in times of 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. 

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. 

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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.

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- All protected persons must be treated equally, without any adverse distinction based on race, religion or political opinion.

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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].

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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:

… 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. 

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”. 

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:

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. 

(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:

(2) For the purpose of paragraph 1 of this Article the following terms shall have the following meanings:

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, …

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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:

… 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. 

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]. 

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]. 

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.

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(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. 

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. 

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. 

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.

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. 

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. 

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. 

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. 

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. 

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. 

(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.

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(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 –

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(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—

(2) The President may issue a Proclamation of a state of public emergency only when—

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. 

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:

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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:

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. 

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:

CHAPTER III

THE DECLARATION OF RIGHTS

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(1) Subject to the provisions of this section–

(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–

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.

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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 …

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(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. 

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. 

In this Constitution, unless the context otherwise requires–

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(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 –

(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.

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(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 –

(3) No law may limit the following rights enshrined in this Chapter, and no person may violate them –

(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 –

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.

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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.

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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.

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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.

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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.

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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. 

[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. 

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. 

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.  [footnote in original omitted]

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. 

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:

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.  [footnotes in original omitted]

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. 

[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. 

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:

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. 

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. 

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:

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. 

Paragraph 7 of the Code of Conduct of the Department of Defence (May 1999) also refers to human rights and international humanitarian law:

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. 

68. Article 17 of the Constitution of the Republic of Croatia states:

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. 

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). 

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.

…

…

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.  [footnotes in original omitted]

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.

…

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. 

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.

43. Concerning … non-discrimination, Article 11 of the Constitution [of the Republic of Rwanda (2003)] specifies that:

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). 

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. 

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. 

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. 

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:

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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.  

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. 

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. 

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. 

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. 

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. 

(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. 

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. 

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. 

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. 

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:

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].  [footnotes in original omitted]

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.

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.  [footnotes in original omitted]

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.  [footnotes in original omitted]

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. 

(b) Mens Rea

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. 

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. 

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. 

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. 

[Additional Protocol I] provides that all persons in the power of a party to the conflict are entitled to at least a minimum of humane treatment without adverse discrimination on grounds of race, gender, language, religion, political discrimination or similar criteria. 

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:

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. 

Military operations in foreign lands expose CF personnel to civilian populations that differ markedly from our own. However different or unusual a foreign land may appear, these civilians are in all circumstances entitled to respect for their persons and property, their honour, their family rights, their religious convictions and practices, and their manners and customs. In your daily interaction with the civilian population, they must at all times be humanely treated and shall not be subjected to acts of violence, threats, or insults. Women and children in particular must not be subjected to rape, enforced prostitution, and any form of indecent assault. All civilians, subject to favourable considerations based on sex, health or age, must be treated with the same consideration and without any adverse distinction based in particular on race, religion or political opinion. 

Under any circumstances international humanitarian law ensures humane treatment during an armed conflict of persons not directly involved in combat operations … without adverse distinction for reasons of race, colour, faith, birth, wealth or any other similar criteria. 

…

[1949] Geneva Convention IV article 27 provides for general protective provisions. … Geneva Convention IV article 27 also provides for specific protective provisions, to wit:

…

Protection of protected persons entails the following:

All civilian persons shall benefit from an equal treatment. No one can be disadvantaged because of race, colour, language, religion, political or other opinions, social origin, faith, sex, wealth or any other circumstance. 

Foreign civilians or civilians of an adverse party to a conflict are specifically protected under the law of armed conflict. If they are in the hands of a military unit, they must at all times be treated humanely. Any act of torture, physical or mental ill-treatment, degrading treatment or discrimination as well as measures of reprisal are prohibited.  [emphasis in original]

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”. 

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:

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]. 

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]. 

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. 

The combatant who comes across a wounded person must not only spare him. He has also an obligation of active assistance. He is obliged, if operations permit, to search for and collect the wounded, to care for them and to evacuate them from areas of combat. In this respect, no difference may be made between friendly wounded and enemy wounded. 

1. The wounded, sick and shipwrecked are to be protected, respected, treated humanely and cared for by the Detaining Power without any adverse discrimination.

2. … The term “wounded, sick and shipwrecked”, includes civilians.

1. Only urgent medical requirements will justify any priority in treatment among those who are sick and wounded.

2. Regardless of the party to which they belong, or whether they are combatants or non-combatants, the wounded, sick and shipwrecked are to be respected and protected without any adverse discrimination. 

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:

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. 

All the wounded and sick, whether friend or foe, shall be respected and protected. In all circumstances they shall be treated humanely and shall receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition. There shall be no distinction among them based on any grounds other than medical ones. 

Persons not or no longer participating in hostilities, including … persons rendered hors de combat by sickness, wounds … must in all circumstances be treated humanely, without any distinction founded on race, religion, faith, sex, social class, or any other similar criteria. 

The wounded, sick and shipwrecked shall be respected and protected in all circumstances … They shall be treated humanely and cared for …

There shall be no distinction among them other than on medical grounds. 

The IDF [Israel Defense Forces] has a strict policy [according to which] all wounded and sick shall be treated, respected and protected, irrespective of whichever party they belong to, and without any distinction based upon race, colour, sex, language, religion, belief, political or other opinion, national or social origin, wealth, birth or other similar criteria. 

There must be no distinction among them [the wounded and sick] founded on race, skin colour, sex, language, religion or belief, political conviction, national or social origin, wealth, birth or other status or any other such criterion. 

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. 

People who do not participate directly in hostilities, including persons placed hors de combat because … of sickness or wounds … shall be treated in all circumstances with humanity without any adverse distinction based on race, colour, language, religion or belief, sex, birth, economic status or any other similar criteria or situation. 

a. Medical personnel providing medical services in armed conflicts have a duty to respect the principles of medical ethics as in peacetime. They must behave in the following way:

Medical ethics in armed conflict are the same as in peacetime, taking into account that:

c. …

In accordance with the principle of non-discrimination, there must be no distinction in determining priority of treatment founded on race, political opinion, religion or faith, sex, birth, language, nationality, social standing or wealth, or any other similar criteria. 

a. Medical personnel providing medical services in armed conflicts have a duty to respect the principles of medical ethics as in peacetime. They must behave in the following way:

…

Medical ethics in armed conflict are the same as in peacetime, taking into account that:

…

c. … In accordance with the principle of non-discrimination, there must be no distinction in determining priority of treatment founded on race, political opinion, religion or faith, sex, birth, language, nationality, social standing, wealth, or any other similar criterion. 

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 [or] injury … without adverse distinction for reasons of race, colour, faith, birth, wealth or any other similar criteria. 

7.3. The wounded and sick are to be protected and respected. …

7.3.1. The duty of respect means that the wounded and sick are not to be made the target of attack. The duty of protection imposes positive duties to assist them. The Geneva Conventions and Additional Protocol I do not seek the unattainable by what would be a vain attempt at removing all hardships arising from armed conflict affecting the groups of persons defined above; they merely seek to ameliorate their conditions. They expressly do so “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”.

7.3.2. Paragraph 7.3 applies to all wounded and sick, whether United Kingdom, allied or enemy, military or civilian. They are entitled to respect and protection [and] humane treatment. 

There must be no discrimination on grounds of sex, race, nationality, religion, political belief or any other similar test. Spies, saboteurs, partisans and illegal combatants who are wounded or sick are entitled to the same treatment. 

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:

States are under a general obligation to issue orders and instructions requiring compliance with the law of armed conflict and to take steps to see that those orders and instructions are observed. There is a specific provision in relation to the handling of the wounded, sick and shipwrecked, extending to a requirement to provide for unforeseen situations “in conformity with the general principles” of the Geneva Conventions 1949. These are that the wounded, sick and shipwrecked should be cared for and treated without any adverse distinction. 

One of the important principles relating to wounded and sick requires medical care and humane treatment to friend and foe without distinction founded on sex, race, nationality, religion, political opinions or similar criteria. 

Article 18. Provision of Emergency Medical Aid.

Health services shall be provided by the nearest health facility to … those whose health condition requires emergency aid, without any discrimination. 

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]. 

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]. 

A Physician shall listen to, examine, advise or treat with the same conscientiousness all persons irrespective of their origin, their customs, their marital status, their affiliation to an ethnic group, nation or religion or lack thereof, their disability or state of health, their reputation or the feelings he might have for them. He shall provide them with his assistance in all circumstances. 

Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the Geneva Conventions of 12 August 1949 … is liable to imprisonment. 

In order to achieve [the] objectives [of the 2008 Convention on Cluster Munitions], each State Party has an obligation to adequately provide assistance, including medical care, rehabilitation, psychological support and social and economic inclusion to cluster munition victims in areas under its direction and control.

These precautions are determined by humanitarian and military considerations and can consist of … assessing the needs of cluster munition victims, developing a national plan and budget, and not discriminating against cluster munition victims. 

A commander who causes serious harm … to the sick, wounded or shipwrecked, by not according them the treatment prescribed by law or by international agreements … shall be punished, unless the act constitutes a more serious offence, by military confinement for not less than three years. 

All prisoners of war shall be treated alike by the Detaining Power, without any adverse distinction based on race, nationality, religious belief or political opinions, or any other distinction founded on similar criteria. 

The following rules shall be applied impartially. There shall be no discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 

These principles shall be applied to all persons within the territory of any given State, without distinction of any kind, such as race, colour, sex, language, religion or religious belief, political or other opinion, national, ethnic or social origin, property, birth or other status. 

10.2 The fundamental rules for the treatment of PW [prisoners of war] are:

…

10.21 All PW shall be treated without distinction based on race, nationality, religious belief or political opinions or any other distinction subject to privileged treatment which may be given to them by reason of their rank and sex, state of health, age or professional qualifications. 

Subject to specified advantageous differences in treatment based on rank, gender or health, all PWs are to be treated alike without any adverse distinction based on race, nationality, religious belief or political opinions, or any other distinction founded on similar criteria. 

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:

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. 

…

3. On occasion it may be necessary to detain civilians who as a result of their actions are considered to be opposing forces. For example, looters or other common criminals may have to be detained in order to protect the military compound. In certain circumstances, civilians who interfere with and prevent the CF from accomplishing the mission may also be detained when authorized by the ROE [rules of engagement]. These civilians become “detainees” and as such, shall be treated at least as well as any other detained persons (see Rule # 6).

…

…

3. The primary reasons for which members of the CF may be called upon to detain individuals in the course of an operation are to prevent their further participation in a conflict or, when authorized, to prevent them from interfering with the military mission. The reason for captivity is never related to revenge or punishment. The concept of humane treatment toward those under your control and the standard of treatment which applies to all detained persons, without adverse distinction based on race, nationality, sex, religious belief or political opinion, is a long standing rule. 

Persons not or no longer participating in hostilities, including … persons rendered hors de combat by … detention … must in all circumstances be treated humanely, without any distinction founded on race, religion, faith, sex, social class, or any other similar criteria. 

II.1.2. Adverse discrimination prohibited

Subject to certain advantageous differences in treatment based on rank, sex or health, all POWs [prisoners of war] shall be treated alike, without any adverse distinction based on race, nationality, religious belief or political opinions, or any other distinction founded on similar criteria. 

Prisoners shall be treated with equality, without any distinction based on race, nationality, religion, political beliefs or any other criteria. The only exception is the preferential treatment based on the health situation, age … 

In principle, prisoners of war must be treated alike, without adverse distinction based on race, nationality, religious belief, political opinions or any other similar criteria. An exception to this principle exists when preferential treatment is desirable due to gender (see point 0719), state of health, age or special skill. Different treatment on the grounds of military rank is permitted, and even mandatory to a certain degree. 

By Article 16 of [the 1949 Geneva Convention III], subject to differences in treatment based on rank, sex, or health, all prisoners are to be treated alike without any adverse distinction based on race, nationality, religious belief or political opinions, or any other distinction founded on similar criteria. 

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 … detention … without adverse distinction for reasons of race, colour, faith, birth, wealth or any other similar criteria. 

…

- Minimum Protection of Persons Who Participated in Hostilities. Article 45.3 read with article 75.1 Additional Protocol I determines that any person who has taken part in hostilities and any other person who is in the power of a Party to a conflict, who is not entitled [to] POW [prisoner-of-war] status and who does not benefit from more favourable treatment under the Conventions and the Protocol shall be treated humanely and shall enjoy, as a minimum, the protection of fundamental judicial guarantees without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

…

…

Any person in the power of a Party to a conflict, who is not entitled [to] POW status and who does not benefit from more favourable treatment under the LOAC shall be treated humanely and shall enjoy, as a minimum, the protection of fundamental judicial guarantees without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. 

Prisoners must be humanely treated at any time and in any place. Any act of torture, physical or mental ill-treatment, degrading treatment or discrimination as well as measures of reprisal are prohibited. The State is responsible for the treatment of prisoners; each individual may be held liable for violations.  [emphasis in original]

Prisoners of war must be humanely treated and their persons and honour respected at all times. “Women shall be treated with all the regard due to their sex and shall in all cases benefit by treatment as favourable as that granted to men.” 

There must be no adverse discrimination towards prisoners of war based on race, nationality, religious belief, political opinions or similar criteria. However, the detaining power is permitted to allow privileged treatment to prisoners of war by virtue of their rank, state of health, age or professional qualifications as well as the special rules already mentioned relating to women. 

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:

DODD 2310.01E [Department of Defense Directive, The Department of Defense Detainee Program requires that all DOD [Department of Defense] personnel and contractors will apply, without regard to a detainee’s legal status, at a minimum, the standards articulated in Common Article 3 to the Geneva Conventions of 1949 …

The detaining power is … prohibited from imposing any adverse distinctions within the detainee population based on religion. In this regard, it should be noted that in some situations, segregating the detainee population based on religious affiliation may be beneficial and therefore not prohibited, particularly when conflict has been based in part on religious affiliation. 

Article 4. Observance of Human Rights

1. Employees of Juvenile Justice Department Centres (JJDC) & Juvenile Rehabilitation Centres (JRCs), prosecutors, judges and other individuals who are dealing with the juveniles … must communicate with convicted juveniles impartially and … without any discrimination. 

Persons detained by an individual, a group of persons, some organization or military unit from the Republic of Azerbaijan as a party to the conflict, are entitled to respect for their dignity and honour irrespective of their status, nationality, religion, language, political opinions, their belonging to a defined social group or other similar criteria. 

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]. 

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]. 

The protection to be given to prisoners of war and other detainees pursuant to the provisions of this Act (including orders based on this Act) shall not be unjustly discriminative based on race, nationality, religious or political opinions or any other similar criteria. 

Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the Geneva Conventions of 12 August 1949 … is liable to imprisonment. 

Persons who have laid down their arms as well as persons placed hors de combat by … detention … 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. 

A commander who causes serious harm to lawful enemy belligerents who have fallen into his power … by not according them the treatment prescribed by law or by international agreements … shall be punished, unless the act constitutes a more serious offence, by military confinement for not less than three years. 

In addition, prisoners of war must at all times be treated humanely and treated equally, meaning that there is a prohibition against discrimination, although subject to preferential treatment based on rank, sex, health status, age or professional qualifications. 

…

Apart from the direct fight against insurgents, international humanitarian law also addresses other anti-guerrilla tactics. … If members of militias or opposition groups fall into the hands of the government they benefit from the protection of art. 75 of [the 1977] Additional Protocol I as well as that of art. 3 common to the [1949] Geneva Conventions.  [footnotes in original omitted]

All prisoners of war must be treated alike, subject … to the provisions of [the 1949 Geneva Convention III and the 1977 Additional Protocol I] relating to rank, sex and age … [and] to any privileged treatment accorded to them by reason of their state of health, age or professional qualification. 

1. An individual who as a leader or organizer commits or orders the commission of the crime of apartheid shall, on conviction thereof, be sentenced.

2. Apartheid consists of any of the following acts based on policies and practices of racial segregation and discrimination committed for the purpose of establishing or maintaining domination by one racial group over any other racial group and systematically oppressing it:

The term [apartheid] comprises inhuman acts committed for the purpose of establishing and maintaining the domination by one racial group of persons over any other racial group of persons and systematically oppressing them.

The term [apartheid] comprises … inhuman acts committed for the purpose of establishing and maintaining the domination by one racial group of persons over any other racial group of persons and systematically oppressing them.

1.2.11. “Apartheid” means policy and practice of racial discrimination of certain peoples or ethnic groups.

…

1.8.5. Serious violations of international humanitarian law directed against people include:

Additional Protocol I extends the definition of grave breaches to include the following:

…

c. the following, when committed wilfully and in violation of the Conventions or the protocol:

A person (the perpetrator) commits an offence if:

Penalty: Imprisonment for 17 years. 

A crime against humanity, as defined below, whether committed in time of peace or in time of war, constitutes a crime under international law and shall be punished in accordance with the provisions of the present title. In accordance with the Statute of the International Criminal Court, crime against humanity means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

War crimes envisaged in the 1949 [Geneva] Conventions … and in the [1977 Additional Protocols I and II] … , as well as in Article 8(2)(f) of the [1998 ICC Statute], and listed below, … constitute crimes under international law and shall be punished in accordance with the provisions of the present title … :

A crime against humanity, as defined below, whether committed in time of peace or in time of war, constitutes a crime under international law and shall be punished in accordance with the provisions of the present title. In accordance with the Statute of the International Criminal Court, crime against humanity means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

War crimes envisaged in the 1949 [Geneva] Conventions … and in the [1977 Additional Protocols I and II] … , as well as in Article 8(2)(f) of the [1998 ICC Statute], and listed below, … constitute crimes under international law and shall be punished in accordance with the provisions of the present title … :

Bosnia and Herzegovina’s Criminal Code (2003) criminalizes the following acts 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:

(2) For the purpose of paragraph 1 of this Article the following terms shall have the following meanings:

… publicly states or disseminates ideas on the superiority or subordination of one race, ethnic or religious community, gender, ethnicity, or ideas on superiority or subordination on the basis of colour for the purpose of spreading racial, religious, sexual, national and ethnic hatred or hatred based on colour or for the purpose of disparagement shall be punished. 

[To order] within an institutionalized regime of systematic oppression and domination of one racial group over another racial group or groups that an inhumane act described in this Article be committed or an act similar to any of these offences so as to maintain such a regime (the crime of apartheid). 

Crimes against humanity are grave violations of international humanitarian law committed against any civilian population before or during war.

Crimes against humanity are not necessarily linked to the state of war and can be committed not only between persons of different nationality, but even between subjects of the same State.

The grave breaches listed hereafter, affecting, by action or omission, the persons and objects protected by the Geneva Conventions of 12 August 1949 and the Additional Protocols of 8 June 1977, constitute crimes against humanity, repressed according to the provisions of the present Code, without prejudice to more severe penal provisions provided by the ordinary Penal Code:

The offences contained in the preceding article are punished with penal servitude for life.

If those contained in points 1, 2, 5, 6, 10 to 14 of the same article lead to the death or cause grave injury to the physical integrity or health of one or several persons, the perpetrators are liable to the death penalty. 

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]. 

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]. 

Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the two additional protocols to [the 1949 Geneva] Conventions … is liable to imprisonment. 

A war crime is one of the following acts, committed during armed conflicts against persons or property protected under the Geneva Conventions of 12 August 1949 and its Additional Protocols I and II of 8 June 1977:

(1) A person of whatever nationality commits an offence if that person, whether within or outside Sierra Leone[,] commits, aids, abets or procures any other person to commit a grave breach specified in –

(1) Any person who, whether within or outside the Republic, commits a grave breach of the [1949 Geneva] Conventions, is guilty of an offence.

(2) For the purposes of subsection (1), “a grave breach” means –

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:

[T]he essential principles of international humanitarian law have acquired ius cogens status, based on the fact that the international community as a whole has recognised their peremptory and imperative nature in the same way it has recognised this for other cardinal provisions such as … the prohibition of apartheid. 

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. 

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:

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.  [footnotes in original omitted]

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. 

[T]he tenuous interest of the United States in the issues raised by these cases is also reflected in the fact that, under customary international law, we could not exercise subject matter jurisdiction over a cause of action against the primary tortfeasor – the officials of the Union of South Africa –or the foreign corporate defendants. This is so, because apartheid, however abhorrent it may have been, has not been regarded as an offense subject to the exercise of universal jurisdiction. This concept, as its name implies, “recognize[s] that international law permits any state to apply its laws to punish certain offenses although the state has no links of territory with the offense, or of nationality with the offender (or even the victim).” Restatement (Third) of Foreign Relations Law ß 404 cmt. a (1987); see also Matter of Extradition of Demjanjuk, 612 F. Supp. 544, 555–58 (N.D. Ohio 1985). Universal jurisdiction is dependent not only on “substantive agreement as to certain universally condemned behavior,” which transforms the behavior into a violation of customary international law, but also “procedural agreement that universal jurisdiction exists to prosecute a subset of that behavior.” Sosa, 542 U.S. at 762 (Breyer, J., concurring in part and concurring in the judgment).

There is no agreement with respect to the latter issue. Although the Restatement (Third) of Foreign Relations Law cites racial discrimination, “when practiced systematically as a matter of state policy, e.g., apartheid,” as a violation of customary international law, id. ß 702 cmt. i (emphasis deleted), it omits apartheid from the list of offenses subject to universal jurisdiction. Instead, the Restatement states that universal jurisdiction exists only for “certain offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism.” Id. ß 404. Indeed, while the Reporters of the Restatement observed that the International Convention on the Suppression and Punishment of the Crime of Apartheid, adopted Nov. 30, 1973, 1015 U.N.T.S. 243 (the “Apartheid Convention”), provided for universal jurisdiction, they stated that it did so only “[a]mong [the] parties to the Convention.” Restatement (Third) of Foreign Relations Law ß 702 reporters’ note 7. See also Antonio Cassese, Crimes Against Humanity, in 1 The Rome Statute of the International Criminal Court: A Commentary 353, 376 (Antonio Cassese et al., eds., 2002) (observing that the Rome Statute, enacted in 1998, is broader than customary international law and “expands general international law” insofar as it, inter alia, “broadens the classes of conduct amounting to crimes against humanity” to include “the crime of apartheid”). Likewise, the European Commission, the executive body of the European Union, has stated explicitly that, while “apartheid is widely condemned by states … at least at present, it does not give rise to universal jurisdiction because, among other reasons, the [Apartheid Convention] … has not been widely ratified.” Br. for the European Commission as Amicus Curiae Supporting Neither Party, Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S. Ct. 2739, 159 L. Ed. 2d 718 (No. 03-339), 2004 WL 177036, at 16 n.35. Another reason is that jurisdiction is limited to certain universally condemned crimes which “by their nature occur either outside of a State or where there is no State capable of punishing, or competent to punish, the crime (as in a time of war).” United States v. Yousef, 327 F.3d 56, 105 (2d Cir. 2003). 

The construction of the wall and the resulting situation correspond to a number of the constituent acts of the crime of apartheid, as enumerated in Article 2 of the International Convention on the Suppression and Punishment of the Crime of Apartheid, adopted by the General Assembly on 30 November 1973: that is to say, the denial of the liberty and dignity of a group, the deliberate imposition on a group of living conditions calculated to cause its physical destruction in whole or in part, measures calculated to deprive a group of the right to work, the right to education and the right to freedom of movement and residence, the creation of ghettos, the expropriation of property, etc. 

In light of the references to apartheid in the United Nations instruments and resolutions mentioned in the preamble to the draft Convention, it could be said that apartheid was already regarded in international law as constituting a crime against humanity. 

Reaffirms that the policy of apartheid is a crime against the conscience and dignity of mankind and is incompatible with the rights and dignity of man, the Charter of the United Nations and the Universal Declaration of Human Rights, and seriously disturbs international peace and security. 

Reaffirms its support for the legitimate struggle of the South African people for the total eradication of apartheid through peaceful means and their right to establish a non-racial, democratic system which is consistent with the International Bill of Human Rights. 

Declares that all forms of racism and racial discrimination, particularly in their institutionalized form, such as apartheid, or resulting from official doctrines of racial superiority or exclusivity, are among the most serious violations of human rights in the contemporary world and must be combated by all available means.