religion or belief, political or other opinion, national or social origin, wealth, birth or other
status, or any other similar criteria. Hence, the prohibition of adverse distinction includes that
members of national, ethnic, religious, or linguistic minorities are not to be discriminated
against. Yet, it is also broader as it includes other grounds, such as political opinion. In other
words, the prohibition of adverse distinction protects minorities, but it is not specifically
designed or tailored towards the protection of minorities.
Although the prohibition of adverse distinction is a guiding principle underlying IHL, it
remains remarkably underexplored in scholarship and state practice. In relation to the
protection of minorities, two issues would deserve further analysis.
First, the prohibition of adverse distinction is geared towards the treatment of individuals. It is
not clear whether and how the direct and indirect impact of an armed conflict on minority
groups and their identity could be covered.
Second, the prohibition of adverse distinction is generally understood as being limited to the
treatment of persons who are in the hands of a party to a conflict, including those who are
detained, who are in internment camps, or who are in occupied territory. It applies to
protection obligations, such as the provision of medical aid or the guarantee of humane
treatment. It is an open question whether the prohibition of adverse distinction may have a
broader, “umbrella” function in requiring non-discrimination in the application of all the rules
in IHL, including those governing the conduct of hostilities. In this context, it could also play
a further role for the protection of minority groups.
3) The prohibition of adverse distinction underlying humanitarian relief
The third aspect that deserves to be mentioned is that the principle prohibiting adverse
distinction also applies to humanitarian relief. IHL regulates the question of access for
humanitarian relief. Without entering into a detailed discussion of the relevant rules, it is
generally understood that the parties to an armed conflict must allow humanitarian relief for
civilians in need which is impartial in character and conducted without any adverse
distinction.
This brings me to my concluding remarks on the accountability of humanitarian actors during
humanitarian crises. IHL does not address the accountability of humanitarian actors as such.
Yet, as just explained, no adverse distinction in the delivery of humanitarian relief is
permitted. If a State or armed group told a provider of humanitarian relief that it could provide
assistance to only some national, ethnic, religious, or linguistic groups and not others,
amounting to adverse distinction against minorities, humanitarian actors would arguably be
outside the framework provided by IHL and have an obligation to reject such operations as
incompatible with principled impartial humanitarian action. Finally, one could also argue that
in order to ensure that humanitarian relief does not have an indirect adverse distinction based
on prohibited grounds, including in relation to minorities, humanitarian actors should take
into account the specific needs and challenges faced by minorities in accessing humanitarian
relief during armed conflict.