Adverse Distinction

What in human rights law is articulated as the principle of non-discrimination is echoed in IHL in the prohibition of adverse distinction. IHL prohibits unfavourable discrimination based on race, gender, nationality, religious belief, political opinion or any other similar criteria in the treatment of prisoners of war, civilians, and persons hors de combat. The notion of “adverse” distinction implies that while unfavourable discrimination is prohibited, a distinction may be made to give priority to those in most urgent need of care. Therefore, no distinction may be made among the wounded, sick and shipwrecked, for example, on any grounds other than medical. Another example of a rule that applies the prohibition of adverse distinction while allowing for certain favourable distinctions can be found in Art. 16 of the Third Geneva Convention, which provides that all prisoners of war must be treated alike, “taking into consideration the provisions of the present Convention relating to rank and sex, and subject to any privileged treatment which may be accorded to them by reason of their state of health, age or professional qualifications.” All protected persons shall be treated with the same consideration by parties to the conflict, without distinction based on race, religion, sex or political opinion. Each and every person affected by armed conflict is entitled to his/her fundamental rights and guarantees, without discrimination. The distinctions resulting from the different statuses IHL foresees (e.g. the difference between civilians and combatants or between civilians benefitting and not benefitting from protected person status) are not viewed as adverse distinctions.

See Discrimination (adverse distinction);