The Practical Guide to Humanitarian Law

« Calling things by the wrong name adds to the affliction of the world. » Albert Camus.

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Discrimination

The principle of non-discrimination is the pillar of the system of protection for individuals. Individuals may be protected in two ways. The first is to define specific rights and guarantees for them; the second is to ensure—at the very least—that all persons are treated equally. Non-discrimination is therefore one of the most basic tenets of protection.

When a government adopts legislation that discriminates negatively against certain individuals or groups of individuals, this is often the first step—in the legal domain—toward a singling out and isolation of these persons that may eventually lead to persecution or other crimes, perhaps as serious as genocide.

It is important to distinguish between adverse discrimination (or adverse distinction), which is illegal, and positive forms of discrimination or distinction, which are aimed at improving the conditions of one group of persons or compensating them for inequality, rather than oppressing another. Such acts or legislation occur at both domestic and international levels and are not illegal. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), for instance, establishes that the “adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards” (Art. 4 of CEDAW).

In Times of Conflict

In addressing the treatment of individuals or peoples in situations of conflict, humanitarian law forbids any adverse distinction to be made on the basis of “race, color, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria” (API Art. 9, APII Art. 2, GCI–IV Common Art. 3, GCI and GCII Art. 12, GIII Art. 16, and GCIV Art. 13). The Statute of the International Criminal Court (adopted 17 July 1998) further details the list by adding “age” and “ethnic origin” and replacing “sex” with “gender” (Art. 21.3 of ICC Statute).

In addition to this non-discrimination clause, the articles of the Geneva Conventions and their Additional Protocols give certain specific instructions on the prohibition of any form of discrimination for specific situations:

  • The provisions of the Conventions aimed at alleviating the suffering of civilians caused by war must be applied equally for all individuals (GCIV Art. 13).
  • In occupied territories, supplies must be distributed to civilian populations without adverse distinction between individuals (API Art. 69).
  • This also applies to relief actions for the civilian population, whether carried out in occupied territories or other situations, especially in the case of medical care and attention (GCIV Art. 16; API Arts. 10, 11; APII Arts. 7.2, 9.2), and when providing other essential supplies (API Arts. 69, 70; APII Art. 18.2).
  • Humanitarian law clearly states that the principle of non-discrimination must be applied to prisoners of war (GCIII Art. 16). It contains multiple provisions establishing that prisoners of war must be treated under conditions as favorable as those for the forces and civilian population of the detaining power. This applies to living conditions (GCIII Art. 25), transfers (Art. 46), working conditions (Art. 51), and penal and disciplinary sanctions (Arts. 82, 84, 88, 102, and 106).
  • If internees commit offenses that are not punishable if committed by persons who are not internees, they may only incur disciplinary punishments, not penal sanctions (GCIV Art. 117).

In Times of Peace

Discrimination is also forbidden in times of peace. It violates one of the most basic principles guiding society: that all individuals are equal before the law. The practice of discrimination can fall under different categories, and several conventions and declarations forbid it:

  • International Convention on the Elimination of All Forms of Racial Discrimination (GA Resolution 2106 [XX] of 21 December 1965);
  • International Convention on the Suppression and Punishment of the Crime of Apartheid (GA Resolution 3068 [XXVIII] of 30 November 1973);
  • Convention on the Elimination of All Forms of Discrimination against Women (GA Resolution 34/180 of 18 December 1979);
  • Convention against Discrimination in Education, adopted under the aegis of UNESCO at its Eleventh Session on 14 December 1960;
  • Convention (No. 100) Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, adopted under the aegis of the International Labor Organization (ILO) at its Thirty-fourth Session on 29 June 1951;
  • Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (GA Resolution 36/55 of 25 November 1981).

The Rights of Individual Complaint

The Committee on the Elimination of Racial Discrimination

A Committee on the Elimination of Racial Discrimination was established per Article 8 of the International Convention on the Elimination of All Forms of Racial Discrimination. Under Article 11, if a State Party considers that another State Party is not adequately implementing the provisions of the Convention, it may bring this to the attention of the Committee.

Article 14 of Convention establishes an optional procedure by which a State Party can recognize the competence of the Committee to receive communications from individuals or groups of persons who claim to be victims of a violation of the Convention by their State. As of June 2015, fifty-four States had accepted this competence: Algeria, Andorra, Argentina, Australia, Austria, Azerbaijan, Belgium, Bolivia, Brazil, Bulgaria, Chile, Costa Rica, Cyprus, Czech Republic, Denmark, Ecuador, Estonia, Finland, France, Georgia, Germany, Hungary, Iceland, Ireland, Italy, Kazakhstan, Lichtenstein, Luxembourg, Macedonia, Malta, Mexico, Monaco, Montenegro, Morocco, Netherlands, Norway, Peru, Poland, Portugal, Republic of Korea, Romania, Russian Federation, San Marino, Senegal, Serbia, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Ukraine, Uruguay, and Venezuela.

Other Mechanisms

Discrimination is strictly forbidden by most human rights conventions. Under certain conditions, it is therefore also possible to refer cases to human rights monitoring bodies.

ApartheidCommittee on the Elimination of Discrimination against WomenCommittee on the Elimination of Racial DiscriminationHuman rightsIndividual recourseProtectionWomenWar crimes/Crimes against humanity

List of States Party to International Human Rights and Humanitarian Conventions (nos.25, 26, 27)

Committee on the Elimination of All Forms of Racial Discrimination

Office of the High Commissioner for Human Rights (OHCHR)

52 rue Paquis

1202 Geneva, Switzerland

Tel.: (00 41) 22 917 92 39

Fax: (00 41) 22 917 90 12

For Additional Information: Weiwei, Li. Equality and Non-discrimination under International Human Rights Law . Research Notes 03/2004. Norwegian Center for Human Rights, University of Oslo, 2004. Available at http://www .humanrights.uio.no/forskning/publ/rn/2004/0304.pdf .

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