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Unveiling claims of discrimination based on nationality in the context of occupation under international humanitarian and human rights law

Published online by Cambridge University Press:  31 March 2023

George Dvaladze
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Abstract

This article examines international humanitarian law (IHL) and human rights guarantees of equality and non-discrimination applicable to cases of belligerent occupation. Capitalizing on the responsibilities of the Occupying Power with respect to different categories of persons living in the occupied territory distinguished by their nationality, it looks at the contents of obligations stemming from relevant norms of the two regimes and their interplay. It also addresses questions of the adequacy, utility and limits of IHL and human rights in according protection from discrimination and inequality to the inhabitants of the occupied territory.

Keywords

discriminationoccupationIHLGeneva Convention IVhuman rights

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Selected Articles
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International Review of the Red Cross , Volume 105 , Issue 923: Organized Crime , August 2023 , pp. 947 - 964
Copyright
Copyright © The Author(s), 2023. Published by Cambridge University Press on behalf of the ICRC

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Footnotes

*

This article was presented at the Academic Colloquium on “Discrimination and Inequalities”, organized by the University of Geneva and Geneva Academy of International Humanitarian Law and Human Rights, 25–26 November 2021.

The advice, opinions and statements contained in this article are those of the author/s and do not necessarily reflect the views of the ICRC. The ICRC does not necessarily represent or endorse the accuracy or reliability of any advice, opinion, statement or other information provided in this article.

References

1 International Court of Justice (ICJ), South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, Judgment, 18 July 1966, Dissenting Opinion of Judge Tanaka, paras 293, 299–300. See also ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 of 1970, Advisory Opinion, 21 June 1971 (South West Africa Advisory Opinion), Separate Opinion of Vice-President Ammoun, p. 76.

2 Inter-American Court of Human Rights (IACtHR), Juridical Condition and Rights of Undocumented Migrants, Advisory Opinion No. OC-18/03, 17 September 2003, paras 100–101, 173; IACtHR, Yatama v. Nicaragua, Series C, No. 127, 23 June 2005, para. 184. According to the ICJ, certain forms of discrimination, such as racial discrimination, give rise to obligations erga omnes: see ICJ, Case Concerning Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, 5 February 1970, para. 34.

3 Charter of the United Nations, United Nations, 1 UNTS XVI, 24 October 1945 (UN Charter), Art. 1(3).

4 Universal Declaration of Human Rights, UNGA Res. 217 A(III), 10 December 1948 (UDHR), Art. 1.

5 Human Rights Committee, General Comment No. 18, “Non-Discrimination”, 10 November 1989, para. 9; Daniel Moeckli, Human Rights and Non-Discrimination in the “War on Terror”, Oxford University Press, Oxford, 2008, p. 55.

6 See the ICRC Challenges Reports: ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Geneva, 2003, p. 7; ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Geneva, 2007, p. 4; ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Geneva, 2015, p. 5. In the ICRC's 2019 Challenges Report, an entire chapter is dedicated to the prohibition of adverse distinction based on disability: see ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Geneva, 2019, pp. 41–43. See also ICRC, Gendered Impacts of Armed Conflicts and Implications for the Application of IHL, Geneva, 2022, pp. 22–32.

7 Regulations Annexed to the 1907 Hague Convention (IV) respecting the Laws and Customs of War on Land, 18 October 1907, Art. 42. Notably, a more functional approach that enables the applicability of certain rules of international law of occupation during the so-called “invasion phase” is also recognized: see Zwanenburg, Marten, Bothe, Michael and Sassòli, Marco, “Is the Law of Occupation Applicable to the Invasion Phase?”, International Review of the Red Cross, Vol. 94, No. 885, 2012CrossRefGoogle Scholar.

8 Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, 22 August 1864, Art. 6; Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, 27 July 1929, Art. 1; Convention relative to the Treatment of Prisoners of War, Geneva, 27 July 1929, Art. 4.

9 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (GC I), Art. 12; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) (GC II), Art. 12; Geneva Convention (III) relative to the Treatment of Prisoners of War of 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (GC III), Art. 16; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (GC IV), Arts 13, 27; Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978) (AP I), Preamble, Arts 9, 10, 70, 75; Article 3 common to the four Geneva Conventions; Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609, 8 June 1977 (entered into force 7 December 1978) (AP II), Arts 2, 4, 7.

10 Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study), Rule 88, available at: https://ihl-databases.icrc.org/en/customary-ihl/v1; Henckaerts, Jean-Marie and Beck, Louise Doswald, Customary International Humanitarian Law, Vol. 2: Practice, Cambridge University Press, Cambridge, 2005, pp. 2024–2061CrossRefGoogle Scholar, available at: https://ihl-databases.icrc.org/en/customary-ihl/v2.

11 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996 (Nuclear Weapons Advisory Opinion), para. 25; ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004 (Wall Advisory Opinion), paras 105–106; ICJ, Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, 19 December 2005, para. 216; Human Rights Committee, General Comment No. 31, “The Nature of the General Legal Obligation Imposed on States Parties to the Covenant”, 26 May 2004, para. 11.

12 Among others, see ICJ, Wall Advisory Opinion, above note 11, paras 107–113; ICJ, Armed Activities, above note 11, para. 216; Human Rights Committee, above note 11, para. 10. For the case law of the European Court of Human Rights (ECtHR) on the matter, see ECtHR, Al-Skeini and Others v. the United Kingdom, Appl. No. 55721/07 (Grand Chamber), 16 September 2014, paras 131–150; ECtHR, Al-Jedda v. the United Kingdom, Appl. No. 27021/08 (Grand Chamber), 7 July 2011, para. 86; ECtHR, Chiragov and Others v. Armenia, Appl. No. 13216/05 (Grand Chamber), 16 June 2015, para. 186; ECtHR, Hassan v. the United Kingdom, Appl. No. 29750/09 (Grand Chamber), 16 September 2014, para. 75; ECtHR, Georgia v. Russia (II), Appl. No. 38263/08 (Grand Chamber), Merits, 21 January 2021, paras 81–84. For detailed analysis, see Goldman, Robert Kogod, “Extraterritorial Application of the Human Rights to Life and Personal Liberty, including Habeas Corpus, during Situations of Armed Conflict”, in Kolb, Robert and Gaggioli, Gloria (eds), Research Handbook on Human Rights and Humanitarian Law, Edward Elgar, Cheltenham, 2013Google Scholar; Gaggioli, Gloria and Ohlin, Jens David, “Remoteness and Human Rights Law”, in Ohlin, Jens David (ed.), Research Handbook on Remote Warfare, Edward Elgar, Cheltenham, 2017Google Scholar; Milanovic, Marko, “Al-Skeini and Al-Jedda in Strasbourg”, European Journal of International Law, Vol. 23, No. 1, 2012CrossRefGoogle Scholar; Wilde, Ralph, “Triggering State Obligations Extraterritorially: The Spatial Test in Certain Human Rights Treaties”, Israel Law Review, Vol. 40, No. 2, 2007CrossRefGoogle Scholar.

13 UDHR, above note 4, Arts 2, 7; International Covenant on Civil and Political Rights, 171 UNTS 999, 16 December 1966 (ICCPR), Arts 2, 26; International Covenant on Economic, Social and Cultural Rights, 3 UNTS 993, 16 December 1966 (ICESCR), Art. 2. Universal human rights treaties devoted to the specific categories of persons also outlaw discrimination: International Convention on the Elimination of All Forms of Racial Discrimination, 195 UNTS 660, 21 December 1965 (CERD), Art. 2; Convention on the Elimination of All Forms of Discrimination against Women, 13 UNTS 1249, 18 December 1979 (CEDAW), Art. 2; Convention on the Rights of the Child, 3 UNTS 1577, 20 November 1989, Arts 2, 28; Convention on the Rights of Persons with Disabilities, 3 UNTS 2515, 24 January 2007 (CRPD), Art. 1; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 3 UNTS 2220, 18 December 1990, Arts 1, 7. All major regional human rights instruments include guarantees of equality and non-discrimination: African Charter on Human and Peoples’ Rights, Organization of African Unity, 27 June 1981 (Banjul Charter), Arts 2, 3, 18(3–4), 28; American Convention on Human Rights, Organization of American States, 22 November 1969 (Pact of San Jose), Arts 1, 24; American Declaration on the Rights and Duties of Man, Ninth International Conference of American States, 2 May 1948, Art. II; Arab Charter on Human Rights, League of Arab States, 15 September 1994, Arts 2, 9, 35; Cairo Declaration of Human Rights in Islam, Organization of the Islamic Conference, 5 August 1990, Art. 1; ASEAN Human Rights Declaration, Association of Southeast Asian Nations,18 November 2012, Arts 1, 2, 3, 9; European Convention for the Protection of Human Rights and Fundamental Freedoms, Council of Europe, ETS 5, 4 November 1950, Art. 14; Protocol 12 to the European Convention on Human Rights and Fundamental Freedoms on the Prohibition of Discrimination, Council of Europe, ETS 177, 4 November 2000, Art. 1; European Social Charter (Revised), Council of Europe, ETS 163, 3 May 1996, Arts 15, 20, 27, E; Charter of Fundamental Rights of the European Union, European Union, 2012/C 326/02, 26 October 2012, Arts 20, 21, 23.

14 GC IV, Art. 49.

15 UN Charter, above note 3, Art. 2(4); Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, UNGA Res. 2625 (XXV), 24 October 1970.

16 Moeckli, Daniel, “Equality and Non-Discrimination”, in Moeckli, Daniel, Shah, Sangeeta and Sivakumaran, Sandesh (eds), International Human Rights Law, Oxford University Press, Oxford, 2014, p. 156Google Scholar; Bayefsky, Anne, “The Principle of Equality and Non-Discrimination in International Law”, Human Rights Law Journal, Vol. 11, No. 1–2, 2015, pp. 72–73Google Scholar; Sheik, Dagmar, Waddington, Lisa and Bell, Mark, Cases, Materials and Text on National, Supranational and International Non-Discrimination Law, Hart, Oxford, 2007, p. 26Google Scholar.

17 See the relevant provisions of the main IHL instruments, as listed in above note 9: namely, GC I, Art. 12; GC II, Art. 12; GC III, Art. 16; GC IV, Art. 13, 27; AP I, Preamble, Arts 9, 10, 70, 75; common Article 3; AP II, Arts 2, 4, 7. Compare to some of the main human rights instruments, such as UDHR, above note 4, Arts 2, 7; ICCPR, above note 13, Arts 2, 26; ICESCR, above note 13, Art. 2.

18 Most notably, see ICRC Customary Law Study, above note 10, Rule 88, which frames the customary rule as “non-discrimination”.

19 Final Record of the Diplomatic Conference of Geneva of 1949, Federal Political Department, Berne, Vol. 2, Section A, 1949, pp. 821, 852. See also Dvaladze, George, “Non-Discrimination under International Humanitarian and Human Rights Law”, in Kolb, Robert, Gaggioli, Gloria and Kilibarda, Pavle (eds), Research Handbook on Human Rights and Humanitarian Law, Edward Elgar, Cheltenham, 2022Google Scholar.

20 Human Rights Committee, above note 5, para. 7. The pronouncement of the Human Rights Committee builds upon the definition provided in the universal human rights instruments dealing with specific forms of discrimination, such as the CEDAW, above note 13; CERD, above note 13; and CRPD, above note 13. The same definition is adopted in UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 20, “Non-Discrimination in Economic, Social and Cultural Rights”, 2 July 2009, para. 7.

21 See Human Rights Committee, above note 5, para. 8; CESCR, above note 20, para. 10; Human Rights Committee, Althammer v. Austria, Communication No. 998/2001, 2003, para. 10.2. See also D. Moeckli, above note 16, p. 163; Moeckli, Daniel, “Anti-Terrorism Laws, Terrorist Profiling, and the Right to Non-Discrimination”, in De Frias, Ana María Salinas, Samuel, Katja L. H. and White, Nigel D. (eds), Counter Terrorism: International Law and Practice, Oxford University Press, Oxford, 2012, p. 600Google Scholar.

22 For a more comprehensive analysis of the elements of discrimination see, among others, D. Moeckli, above note 16; A. Bayefsky, above note 16; Choudhury, Tufyal, “Interpreting the Right to Equality under Article 26 of the International Covenant on Civil and Political Rights”, European Human Rights Law Review, Vol. 8, No. 1, 2003Google Scholar; Schabas, William A., U.N. International Covenant on Civil and Political Rights: Nowak's CCPR Commentary, 3rd revised ed., N. P. Engel, Kehl am Rhein, 2019Google Scholar; Gerards, Janneke, Judicial Review in Equal Treatment Cases, Martinus Nijhoff, Leiden, 2005CrossRefGoogle Scholar.

23 ICJ, South West Africa Cases, above note 1, Dissenting Opinion of Judge Tanaka, paras 293, 299–300. See also South West Africa Advisory Opinion, above note 1, Separate Opinion of Vice-President Ammoun, p. 76.

24 Given the similarity of those provisions, recently updated Commentary to Article 16 of GC III provides important clarifications: see ICRC, Commentary on the Third Geneva Convention: Convention (III) relative to the Treatment of Prisoners of War, 2nd ed., Geneva, 2021.

25 Pejic, Jelena, “Non-Discrimination and Armed Conflict”, International Review of the Red Cross, Vol. 83, No. 841, 2001, p. 186Google Scholar.

26 ICJ, Armed Activities, above note 11, para. 209.

27 For the difference between accessory and autonomous rules on non-discrimination, see D. Moeckli, above note 16. See also G. Dvaladze, above note 19.

28 Rona, Gabor and McGuire, Robert J., “The Principle of Non-Discrimination”, in Clapham, Andrew, Gaeta, Paola and Sassòli, Marco (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, Oxford, 2015, p. 199Google Scholar.

29 See above note 13.

30 Ramcharan, Bertrand, “Equality and Non-Discrimination”, in Louis Henkin (ed.), The International Bill of Rights: The Covenant on Civil and Political Rights, Columbia University Press, New York, 1981, p. 250Google Scholar.

31 See above notes 11 and 12.

32 ICCPR, above note 13, Art. 4(1).

33 Human Rights Committee, General Comment No. 29, “Article 4: Derogations during a State of Emergency”, 31 August 2001, para. 8. See also D. Moeckli, “Anti-Terrorism Laws, Terrorist Profiling, and the Right to Non-Discrimination”, above note 21, p. 603.

34 For a detailed analysis of those theories, see e.g. Mačák, Kubo, “The Role of International Human Rights Law in the Interpretation of the Fourth Geneva Convention”, Israel Yearbook on Human Rights, Vol. 52, 2002Google Scholar; Prud'homme, Nancie, “Lex Specialis: Oversimplifying a More Complex and Multifaceted Relationship?”, Israel Law Review, Vol. 40, No. 2, 2007CrossRefGoogle Scholar.

35 Wall Advisory Opinion, above note 11, para. 106; ICJ, Armed Activities, above note 11, para. 216.

36 Nuclear Weapons Advisory Opinion, above note 11, para. 25.

37 Human Rights Committee, General Comment No. 35, “Article 9 (Liberty and Security of Person)”, 16 December 2014, para. 66; Human Rights Committee, General Comment No. 36, “Article 6 on the Right to Life”, 3 September 2019, para. 64.

38 See, e.g., ECtHR, Hassan, above note 12, para. 107.

39 ICJ, Armed Activities, above note 11, para. 209.

40 Final Record, above note 19, p. 641. See also ICRC, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 2nd ed., Geneva, 2016 (2016 Commentary on GC I), p. 200 fn. 333.

41 Jean Pictet (ed.), Commentary on the Geneva Conventions of 12 August 1949, Vol. 4: Geneva Convention relative to the Protection of Civilian Persons in Time of War, ICRC, Geneva, 1958, p. 206. In this respect the Commentary on Article 27 of GC IV takes a different stance than with respect to the same issue under common Article 3. According to the ICRC's initial Commentary on GC I, despite the decision of the Diplomatic Conference to omit this criterion in certain provisions of the Geneva Conventions on the prohibition of adverse distinction, nationality should be still read as a subsumed protected ground under the category “any similar criteria”, at least as far as common Article 3 is concerned: see Jean Pictet (ed), Commentary on the Geneva Conventions of 12 August 1949, Vol. 4: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, ICRC, Geneva, 1952, p. 56. This position was reaffirmed in the ICRC's 2016 Commentary on GC I, above note 40, p. 200, para. 572.

42 Article 75 of AP I mentions “national origin”, which is not identical but a related notion: see 2016 Commentary on GC I, above note 40, p. 199 fn. 330; Sivakumaran, Sandesh, The Law of Non-International Armed Conflict, Oxford University Press, Oxford, 2012, p. 259Google Scholar.

43 In any event, save for their accessory nature as explained above, Article 13 of GC IV and Article 75 of AP I do not deal with discrimination in a substantively different manner to human rights instruments, including Article 26 of the ICCPR.

44 GC IV, Arts 47 and 49 respectively.

45 Sassòli, Marco, “The Role of Human Rights and International Humanitarian Law in New Types of Armed Conflicts”, in Ben-Naftali, Orna (ed.), International Humanitarian Law and International Human Rights Law: Pas de Deux, Oxford University Press, Oxford, 2011, p. 72Google Scholar.