1 ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts: Recommitting to Protection in Armed Conflicts on the 70th Anniversary of the Geneva Conventions, Geneva, 2019, p. 41.

2 Protection of Civilians in Armed Conflict: Report of the Secretary-General, UN Doc. S/2021/423, 3 May 2021, para. 34.

3 ICRC, above note 1, p. 41; Helen Durham and Gerard Quinn, “Lifting the Cloak of Invisibility: Civilians in Armed Conflict”, Humanitarian Law and Policy Blog, 21 April 2022, available at: https://blogs.icrc.org/law-and-policy/2022/04/21/civilians-disabilities-armed-conflict/ (all internet references were accessed in November 2022); Inter-Agency Standing Committee (IASC), Guidelines on Inclusion of Persons with Disabilities in Humanitarian Action, 2019, available at: https://interagencystandingcommittee.org/iasc-task-team-inclusion-persons-disabilities-humanitarian-action/documents/iasc-guidelines.

4 See e.g. Protection of Civilians in Armed Conflict, above note 2; Protection of Civilians in Armed Conflict: Report of the Secretary-General, UN Doc. S/2020/366, 6 May 2020, paras 27–28; Protection of Civilians in Armed Conflict: Report of the Secretary-General, UN Doc. S/2019/373, 7 May 2019, para. 49.

5 Report of the Special Rapporteur on the Rights of Persons with Disabilities, UN Doc. A/77/203, 20 July 2022, para. 67; Report of the Special Rapporteur on the Rights of Persons with Disabilities, UN Doc A/76/146, 19 July 2021, para. 34.

6 For a comprehensive analysis of barriers as well as existing legal and policy frameworks in humanitarian activities, including across different humanitarian protection and assistance domains, see Janet Lord, Desk Review on Humanitarian Action Inclusive of Persons with Disabilities, prepared for the IASC Task Team on Inclusion of Persons with Disabilities in Humanitarian Action, 1 March 2018, available at: https://interagencystandingcommittee.org/iasc-task-team-inclusion-persons-disabilities-humanitarian-action/documents/desk-review-humanitarian.

7 At the time of writing, the CRPD is one of the most widely ratified universal IHRL treaties, with 185 States Parties.

8 These efforts intensified around and after the World Humanitarian Summit in 2016. For outputs of these broader efforts, see UNSC Res. 2475, 20 June 2019; Charter on Inclusion of Persons with Disabilities in Humanitarian Action, 2016, available at: https://reliefweb.int/report/world/charter-inclusion-persons-disabilities-humanitarian-action-update-progress-world. For analysis of the complementarity between IHL and the CRPD more specifically, see Report of the Special Rapporteur, 2022, above note 5, paras 7–32; Report of the Special Rapporteur, 2021, above note 5; Office of the UN High Commissioner for Human Rights (UN Human Rights), Thematic Study on the Rights of Persons with Disabilities under Article 11 of the Convention on the Rights of Persons with Disabilities, UN Doc. A/HRC/31/30, 2016; Alice Priddy, Disability and Armed Conflict, Academy Briefing No. 14, Geneva Academy of International Humanitarian Law and Human Rights (Geneva Academy), Geneva, 2019, available at: www.geneva-academy.ch/joomlatools-files/docman-files/Academy%20Briefing%2014-interactif.pdf; Alice Priddy, Military Briefing: Disability and Armed Conflict, Geneva Academy Working Paper, Geneva, 2021, available at: www.geneva-academy.ch/joomlatools-files/docman-files/working-papers/Military%20Briefing%20Persons%20with%20Disabilities%20and%20Armed%20Conflict.%20.pdf.

9 ICRC, The ICRC's Vision 2030 on Disability, July 2020, available at: www.icrc.org/en/publication/4494-icrcs-vision-2030-disability.

10 ICRC, above note 1, pp. 42–43.

11 The CRPD is the only universal IHRL treaty which has a provision explicitly covering situations of armed conflict, apart from the Convention on the Rights of the Child (Articles 38 and 39) and its Optional Protocol on the Involvement of Children in Armed Conflict, which is sometimes referred to as a hybrid IHL–IHRL treaty. It should also be noted that – unlike, for instance, the International Covenant on Civil and Political Rights – the CRPD does not contain a derogation clause. The general renvoi to obligations is without prejudice to general differences in scope of application between IHL and IHRL. This includes the extraterritorial applicability of IHRL and whether and how IHRL applies to non-State armed groups. Complementarity with the CRPD should also not be interpreted to mean new protected groups under IHL. For a specific exploration of the respective general scope of application of IHL and the CRPD, see A. Priddy, 2019, above note 8, pp. 34–46. For the most recent expression of ICRC views on the applicability of IHRL to non-State armed groups, see ICRC, above note 1, p. 54.

12 See Convention on the Rights of Persons with Disabilities, UN Doc. A/RES/61/106, 24 January 2007 (entered into force 3 May 2008) (CRPD), Arts 3, 4(3).

13 While these consultations were conducted under Chatham House rules, the content of challenges and potential recommendations will be reflected throughout this article. Salient findings from these consultations were also presented in the 2022 report by the UN Special Rapporteur on the Rights of Persons with Disabilities, Mr Gerard Quinn, on the implementation and application of obligations under IHL towards persons with disabilities during the conduct of hostilities. See Report of the Special Rapporteur, 2022, above note 5, paras 64–74.

14 Many other areas could be examined in this regard – for instance, IHL rules in relation to displacement, to preventing and clarifying the fate of missing persons, or to humanitarian access. A detailed intersectional analysis of specific barriers and risks between disability, age and gender is equally beyond the scope of this article, as is an analysis of the interlinkages between victim assistance provisions in weapons treaties and the CRPD.

15 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), Art. 48; Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study), Rule 1, available at: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1.

16 OPD testimonies, joint consultations on persons with disabilities and military operations in armed conflict, May 2022.

17 ICRC, Reducing Civilian Harm: A Commander's Handbook, Geneva, 2021, p. 25.

18 Ibid., p. 27.

19 Ibid., p. 20.

20 AP I, Art. 51(5)(b); ICRC Customary Law Study, above note 15, Rule 14.

21 AP I, Arts 57(2)(a)(iii), 57(2)(b); ICRC Customary Law Study, above note 15, Rules 14, 18, 19.

22 ICRC, Explosive Weapons with Wide Area Effects: A Deadly Choice in Populated Areas, Geneva, 2022, pp. 97–98.

23 ICRC, above note 1, p. 18.

24 Ibid.

25 Ibid., p. 20.

26 ICRC, above note 22, p. 98; ICRC, above note 17, p. 27.

27 ICRC, above note 1, p. 18. See also ICRC, Gendered Impacts of Armed Conflicts and Implications for the Application of International Humanitarian Law, Geneva, 2022, p. 16Google Scholar.

28 ICRC, above note 1, p. 18; ICRC, Gendered Impacts, above note 27, p. 16.

29 See H. Durham and G. Quinn, above note 3. Regarding the data gap on specific gendered impacts of attacks, see ICRC, Gendered Impacts, above note 27, p. 16.

30 CRPD, above note 12, Art. 31.

31 Joint consultations on persons with disabilities and military operations in armed conflict, April and May 2022.

32 On this general challenge, particularly in urban warfare, and the ICRC's legal position, see ICRC, above note 1, p. 19.

33 Joint consultations on persons with disabilities and military operations in armed conflict, April and May 2022.

34 For an exploration of this issue though a gender lens, see ICRC, Gendered Impacts, above note 27, p. 16.

35 AP I, Arts 57–58; ICRC Customary Law Study, above note 15, Rules 15–24.

36 ICRC, above note 1, p. 17.

37 Yves Sandoz, Christophe Swinarski and Bruno Zimmmerman (eds), Commentary on the Additional Protocols, ICRC, Geneva, 1987 (ICRC Commentary on the APs), p. 680, para. 2191.

38 ICRC, above note 22, p. 102 (with further references).

39 OPD testimony, joint consultations on persons with disabilities and military operations in armed conflict, May 2022.

40 Ibid.

41 AP I, Art. 57(2)(a)(ii); ICRC Customary Law Study, above note 15, Rule 17.

42 See ICRC Commentary on the APs, above note 37, p. 682, para. 2200.

43 Testimony by State armed forces, joint consultations on persons with disabilities and military operations in armed conflict, May 2022.

44 AP I, Art. 57(2)(c); ICRC Customary Law Study, above note 15, Rule 20.

45 ICRC, above note 1, p. 17.

46 For planning considerations for issuing effective advance warnings to the civilian population, see ICRC, above note 17, pp. 48–49. On timing aspects in relation to advance warnings, see also Quéguiner, Jean-François, “Precautions Under the Law Governing the Conduct of Hostilities”, International Review of the Red Cross, Vol. 88, No. 864, 2006, p. 808Google Scholar.

47 H. Durham and G. Quinn, above note 3.

48 This was suggested by military representatives participating in the joint consultations on persons with disabilities and military operations in armed conflict, April and May 2022.

49 For examples of precautions against the effects of attacks, see ICRC Customary Law Study, above note 15, commentary on Rule 22, which constitutes customary IHL in both IAC and NIAC. For in-depth planning considerations for military commanders related to evacuations of civilians, see ICRC, above note 17, pp. 55–56.

50 See 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), Art. 49; 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), Art. 17; ICRC Customary Law Study, above note 15, Rule 129.

51 GC IV, Art. 49(2); ICRC Customary Law Study, above note 15, Rule 132; ICRC, above note 1, p. 40.

52 H. Durham and G. Quinn, above note 3.

53 ICRC, above note 1, p. 17; ICRC, above note 22, p. 104.

54 See e.g. GC IV, Arts 16–18, 20–22.

55 Ibid. “Infirm” means “not physically or mentally strong, especially through age or illness”, and stems from the Latin word infirmus, which means weak or not strong. See “Infirm”, Cambridge Dictionary, available at: https://dictionary.cambridge.org/dictionary/english/infirm. While this term is often closely associated with older persons, the drafting history of GC IV provides evidence that the term was understood to encompass persons with disabilities, especially persons with physical impairments, during the drafting process. See, for instance, Final Record of the Diplomatic Conference of Geneva of 1949, Vol. 2.B, Federal Political Department, Berne, 1949, p. 471 (the French delegate is quoted as saying that the term “infirm” dealt with the protection of persons with disabilities); 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 (1958 Commentary on GC IV), pp. 125 (clarifying that despite the fact that they are not explicitly mentioned, persons with physical impairments would also qualify for specific protection of groups of civilians who could be accommodated in hospitals or safety zones), 146 (mentioning in the context of civilian hospitals that “homes for the blind or the deaf and dumb” could qualify as civilian hospitals, “provided that the inmates are receiving care”).

56 See ICRC, How Law Protects Persons with Disabilities in Armed Conflict, Geneva, 2017, available at: www.icrc.org/en/document/how-law-protects-persons-disabilities-armed-conflict.

57 1958 Commentary on GC IV, above note 55, p. 134.

58 GC IV, Art. 16(1); ICRC Customary Law Study, above note 15, Rule 138.

59 For a similar interpretation of the various dangers or harms covered by the obligation to protect, see 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), para. 1361.

60 See e.g. Belgium, Droit des conflits armés, 2009, chap. V, p. 3; Denmark, Military Manual on International Law Relevant to Danish Armed Forces in International Operations, 2nd ed., 2020, p. 247; Peru, International Humanitarian Law Manual for the Armed Forces, 2004, para. 84 (b).

61 GC IV, Art. 16(2).

62 See e.g. Denmark, above note 60, p. 208; Norway, Manual of the Law of Armed Conflict, 2013, p. 86, para. 4.54.

63 CRPD, above note 12, Art. 31.

64 OPD testimony, joint consultations on persons with disabilities and military operations in armed conflict, May 2022.

65 See ICRC, above note 1, p. 42. This criticism is often based on the mention of “disability” in the definition of “wounded and sick” persons who may be in need of medical assistance or care under Article 8(a) of AP I.

66 1958 Commentary on GC IV, above note 55, p. 136.

67 Ibid.

68 H. Durham and G. Quinn, above note 3.

69 That said, parties to armed conflict, including non-State parties, have proceeded with evacuations of civilians with disabilities themselves, such as in one NIAC where one non-State party to the conflict reportedly evacuated civilians with disabilities based on its information on the population in areas under its control, in accordance with its religious values. This was shared in an OPD testimony at the joint consultations on persons with disabilities and military operations in armed conflict, May 2022.

70 GC IV, Art. 16(2).

71 1958 Commentary on GC IV, above note 55, pp. 136–137; see also Final Record, above note 55, p. 392.

72 GC IV, Art. 17.

73 1958 Commentary on GC IV, above note 55, p. 139. See also ICRC, above note 17, pp. 55–56, which contains a detailed planning checklist for military commanders as a useful resource for informing the details of evacuation agreements.

74 Common Art. 3; AP I, Art. 75; AP II, Art. 4.

75 2016 Commentary on GC I, above note 59, para. 553; ICRC, above note 56; ICRC, above note 1, pp. 41–43.

76 See ICRC Customary Law Study, above note 15, commentary on Rule 87.

77 See, for instance, ICRC, Commentary on the Third Geneva Convention: Convention (III) relative to the Treatment of Prisoners of War, 2nd ed., Geneva, 2020 (2020 Commentary on GC III), para. 465.

78 See common Art. 3; 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; GC IV, Art. 27; AP I, Art. 75; AP II, Art. 2; ICRC Customary Law Study, above note 15, Rule 88; 2020 Commentary on GC III, above note 77, paras 26–27.

79 ICRC, above note 56; CRPD, above note 12, Art. 5(2).

80 See in this sense, see 2020 Commentary on GC III, above note 77, paras 610–616. See also ICRC, Detention by Non-State Armed Groups: IHL Obligations and NSAG Practices to Implement Them, Geneva, forthcoming, Rules 1, 4–5 and commentaries thereto.

81 ICRC, above note 1, p. 42; CRPD, above note 12, Art. 5(4).

82 CRPD, above note 12, Arts. 5(3). 9. According to Article 2 of the CRPD, “reasonable accommodations” are “necessary modifications and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”.

83 CRPD, above note 12, Art. 9(1).

84 ICRC, above note 56.

85 OPD testimony, joint consultations on persons with disabilities and military operations, April 2022; CRPD Committee, “General Comment No. 6 on Equality and Non-Discrimination”, UN Doc. CRPD/C/GC/6, 2018, paras 24, 31; Amanda Keeling, “Commentary on Article 16: Freedom from Exploitation, Violence and Abuse”, in Ilias Bantekas, Michael Ashley Stein and Dimitris Anastasiou (eds), The UN Convention on the Rights of Persons with Disabilities: A Commentary, Oxford University Press, Oxford, 2018, p. 483.

86 OPD testimony, joint consultations on persons with disabilities and military operations, April 2022; A. Priddy, 2019, above note 8, p. 54.

87 ICRC, above note 17, p. 60.

88 However, it has been observed that in such operations little specific consideration has been given to persons with disabilities, among other groups facing specific risks. See Laurent Saugy and Tilman Rodenhäuser, “5 Operational Realities of Detention in Contemporary Armed Conflict”, Humanitarian Law and Policy Blog, 30 November 2018, available at: https://blogs.icrc.org/law-and-policy/2018/11/30/5-operational-realities-detention-contemporary-armed-conflict/.

89 ICTY, Prosecutor v. Mile Mrkšić et al., Case No. IT-95-13/1, Judgment (Trial Chamber), 27 September 2007, para. 517.

90 ICTY, Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, Judgment (Trial Chamber), 16 November 1998, paras 530, 554–558; ICTY, Prosecutor v. Milorad Krnojelac, Case No. IT-97-25, Judgment (Trial Chamber), 15 March 2002, paras 128–173.

91 ICTY, Krnojelac, above note 90, para. 183.

92 Ibid., para. 148.

93 Ibid., para. 146.

94 Ibid., para. 159.

95 Ibid., Testimony of Witness FWS-111, 27 November 2000, p. 1230, available at: www.icty.org/x/cases/krnojelac/trans/en/001127ed.htm.

96 ICTY, Prosecutor v. Naser Orić, Case No. IT-03-68, Judgment (Trial Chamber), 30 June 2006, para. 466.

97 Ibid., Testimony of Ilija Ivanovic, 25 January 2005, pp. 4068–4069, available at: www.icty.org/x/cases/oric/trans/en/050125IT.htm.

98 2020 Commentary on GC III, above note 77, paras 26, 28, 29, 1761, 2258.

99 Ibid., para. 2207.

100 Ibid.

101 See A. Priddy, 2021, above note 8, p. 13.

102 2020 Commentary on GC III, above note 77, para. 2259.

103 GC III, Art. 38; 2020 Commentary on GC III, above note 77, para. 2471.

104 GC III, Art. 30(2).

105 2020 Commentary on GC III, above note 77, para. 2257; A. Priddy, 2019, above note 8, p. 68.

106 2020 Commentary on GC III, above note 77, para. 2260.

107 GC III, Art. 30(5); GC IV, Art. 91. See also 2020 Commentary on GC III, above note 77, paras 2277–2282.

108 Cf. A. Priddy, 2019, above note 8, p. 68.

109 AP II, Art. 5; ICRC Customary Law Study, above note 15, Rules 121, 138. See also Sivakumaran, Sandesh, “Armed Conflict-Related Detention of Particularly Vulnerable Persons: Challenges and Possibilities”, International Law Studies, Vol. 94, 2018, p. 53Google Scholar.

110 S. Sivakumaran, above note 109, p. 53.

111 See the discussion on precautions in the conduct of hostilities above; and see S. Sivakumaran, above note 109, p. 53.

112 S. Sivakumaran, above note 109, p. 53.

113 See ICRC, Resolution 1, “Strengthening Legal Protection for Victims of Armed Conflicts”, 31st International Conference of the Red Cross and the Red Crescent, 2011, op. para. 3; ICRC, Strengthening International Humanitarian Law Protecting Persons Deprived of Their Liberty: Concluding Report, 32IC/15/19.1, 32nd International Conference of the Red Cross and the Red Crescent, 2015, pp. 26, 47.

114 CRPD Committee, Guidelines on the Interpretation of Article 14 of the CRPD, 2015, paras 17–18, available at: www.ohchr.org/Documents/HRBodies/CRPD/14thsession/GuidelinesOnArticle14.doc.

115 See CRPD Committee, X v. Argentina, Individual Communication No. CRPD C/11/D/8/2012, 18 June 2014, paras 8.4, 8.5; CRPD Committee, Al Adam v. Saudi Arabia, Individual Communication No. CRPD C/20/D/38/2016, 24 October 2018, paras 11.2, 11.3; Human Rights Committee, Hamilton v. Jamaica, Views on Communication No. 616/1995, CCPR/C/66/D/616/1995, adopted on 28 July 1999, paras 3.1, 8.2; Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. A/63/175, 28 July 2008, para. 53; European Court of Human Rights, Bayram v. Turkey, Appl. No. 7087/12, Judgment, 4 February 2020, paras 51–63.

116 OPD testimony, joint consultations on persons with disabilities and military operations in armed conflict, May 2022.

117 See common Art. 3(1)(d); AP I, Art. 75(3); AP II, Art. 6.

118 See GC III, Arts 21 ff.; GC IV, Arts 42, 78.

119 GC III, Art. 21.

120 GC IV, Art. 42.

121 Ibid., Art. 78.

122 ICRC, Strengthening International Humanitarian Law, above note 113, p. 28.

123 GC III, Art. 5(2); see also 2020 Commentary on GC III, above note 77, paras 1114, 1121.

124 ICRC, Strengthening International Humanitarian Law, above note 113, p. 16.

125 The ICRC upholds this requirement for internment both in IAC and NIAC. This was laid down in the ICRC institutional position entitled “Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and Other Situations of Violence”. This ICRC position was published as Annex 1 in ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, 30th International Conference of the Red Cross and Red Crescent, Geneva, 2007. See Pejic, Jelena, “Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and Other Situations of Violence”, International Review of the Red Cross, Vol. 87, No. 858, 2005, pp. 381–382CrossRefGoogle Scholar, available at: www.icrc.org/eng/assets/files/other/icrc_002_0892.pdf.

126 ICTY, Delalic, above note 90, para. 577; Belgium, above note 60, p. 22; Denmark, above note 60, p. 493, para. 5.2.2; United Kingdom, The Manual of the Law of Armed Conflict, 2004, para. 9.3.1.

127 CRPD, above note 12, Art. 14(1)(b); CRPD Committee, above note 114, paras 6–10, 13–15.

128 A. Priddy, 2021, above note 8, p. 70.

129 For a detailed discussion of the nexus requirement, see Rodenhäuser, Tilman, “The Legal Protection of Persons Living under the Control of Non-State Armed Groups”, International Review of the Red Cross, Vol. 102, No. 915, 2021, pp. 1000–1009Google Scholar.

130 GC IV, Arts 43, 78; AP I, Art. 75(3).

131 J. Pejic, above note 125, p. 381.

132 See e.g. AP II, Art. 6(2); AP I, Art. 75(3–4); 2020 Commentary on GC III, above note 77, para. 685.

133 International Covenant on Civil and Political Rights, 999 UNTS 171, 16 December 1966 (ICCPR), Art. 9(3); ICRC Customary Law Study, above note 15, commentary on Rule 99. IHL does not contain general rules on the judicial supervision and control of pre-trial detention; however, Article 75(8) of AP I, which is considered customary IHL applicable in all types of armed conflicts, includes a general saving clause according to which the minimum fundamental guarantees may not be construed as “limiting or infringing any other more favourable provision granting greater protection, under any applicable rules of international law”, which includes IHRL. See Pejic, Jelena, “The Protective Scope of Common Article 3: More than Meets the Eye”, International Review of the Red Cross, Vol. 93, No. 881, 2011, pp. 212–214CrossRefGoogle Scholar.

134 ICCPR, above note 133, Art. 9(4); ICRC Customary Law Study, above note 15, commentary on Rule 99; J. Pejic, above note 133. In this regard, the right to challenge the lawfulness of detention has been deemed as non-derogable by the Human Rights Committee. See Human Rights Committee, General Comment No. 29, “States of Emergency (Article 4)”, UN Doc. CCPR/C/21/Rev.1/Add.11, 31 August 2001, para. 16.

135 Common Art. 3(1)(d); GC III, Art. 84(2); AP II, Art. 6(2); AP I, Art. 75(4).

136 GC III, Arts 84(2), 96(4); GC IV, Arts 72(1), 123(1); AP I, Art. 75(4); AP II, Art. 6(2).

137 GC III, Art. 106; GC IV, Art. 73(1); AP I, Art. 75(4); AP II, Art. 6(3).

138 See AP I, Art. 75(3–4); J. Pejic, above note 125, p. 384. Articles 5, 9, 13 and 14(2) of the CRPD (above note 12), on reasonable accommodations and accessibility, both general and specific, provide further guidance for interpreting IHL procedural safeguards and fair trial rights, including against arbitrary deprivations of liberty, so that detainees with disabilities may effectively enjoy them, without adverse distinction.

139 See 2020 Commentary on GC III, above note 77, para. 2238.

140 See e.g. “Isolation Ward”, Collins Dictionary, available at: www.collinsdictionary.com/dictionary/english/isolation-ward.

141 See 2020 Commentary on GC III, above note 77, para. 2240.

142 See GC III, Art. 29; GC IV, Art. 85; AP II, Art. 5; ICRC Customary Law Study, above note 15, Rule 121. With regard to GC III, the predecessor 1929 Geneva Convention on Prisoners of War already contained a similar provision.

143 See 2020 Commentary on GC III, above note 77, para. 3711. This understanding of “solitary confinement” is based on the non-legally binding Rule 44 of the 2015 UN Standard Minimum Rules on the Treatment of Prisoners (Mandela Rules), which define solitary confinement for the purpose of the Rules as “confinement of prisoners for 22 hours or more a day without meaningful human contact”.

144 See 2020 Commentary on GC III, above note 77, paras 2238, 3753–3757. On the necessity of the distinction between medical isolation and confinement as a penal or disciplinary punishment in criminal detention settings, specifically in the COVID-19 context, see Centers for Disease Control and Prevention, “Guidance on Prevention and Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities”, 3 May 2022, available at: www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html#Medical_Isolation.

145 See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. 2.A, Federal Political Department, Berne, 1949, pp. 259, 800, 810, 838.

146 See 1958 Commentary on GC IV, above note 55, p. 399.

147 Ibid.

148 Report of the Special Rapporteur on the Rights of Persons with Disabilities, UN Doc. A/HRC/40/54, 11 January 2019, para. 27; Desmarais, S. L. et al. , “Community Violence Perpetration and Victimization among Adults with Mental Illness”, American Journal of Public Health, Vol. 104, No. 12, 2014CrossRefGoogle Scholar.

149 See 2020 Commentary on GC III, above note 77, para. 2242; CRPD Committee, above note 114. See also UN Human Rights, above note 8, paras 10, 47, 55; A. Priddy, 2021, above note 8, p. 15.

150 See e.g. New Zealand, Manual of Armed Forces Law: Law of Armed Conflict, 2017, para. 12.10.62; United Kingdom, Joint Doctrine on Captured Persons, 2015, p. 10-8, para. 1009; United States, Medical Support to Detainee Operations, 2007, p. 4-10, para. 4-51, and p. 4-12, para. 4-64. Beyond situations of armed conflict, mental health legislations of many States still provide for deprivation of liberty of persons with disabilities, especially persons with psychosocial or intellectual disabilities, based on the perceived dangerousness to themselves or others, or the necessity of involuntary care or treatment. See, for example, Report of the Special Rapporteur, above note 148, para. 15; CRPD Committee, above note 114, paras 6, 13.

151 See e.g. GC III, Arts 13–16; GC IV, Art. 27; ICRC Customary Law Study, above note 15, Rule 88.

152 See e.g. the 2020 Commentary on GC III, above note 77, para. 1770, which states that the drafters “rightly anticipated a dynamic evolution of the catalogue of prohibited criteria”.

153 See e.g. ibid., para. 2243.

154 This was already recognized at the 1949 Diplomatic Conference. See Final Record, above note 145, p. 490 (United Kingdom).

155 See the 1958 Commentary on GC IV, above note 55, p. 399 (with accompanying fn. 91). Human rights experts, such as the UN Special Rapporteur on Torture, are of the view that solitary confinement of any duration imposed on persons with mental health conditions constitutes cruel, inhuman or degrading treatment or punishment: see Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. A/66/268, 5 August 2011, paras 67–68, 78. See also Article 45(2) of the non-binding Mandela Rules of 2015, which provides that solitary confinement should not be applied to detainees with “mental or physical disabilities” when their condition would be exacerbated by such measures. During ICRC consultations with States on strengthening legal protection for persons deprived of their liberty, the ICRC presented to States a number of provisions for NIACs “drawn from existing international law”, including a prohibition on solitary confinement as a disciplinary punishment for persons with mental disabilities. See ICRC, Strengthening International Humanitarian Law Protecting Persons Deprived of Their Liberty: Thematic Consultation of Government Experts on Conditions of Detention and Particularly Vulnerable Detainees, 29–31 January 2014, p. 38.

156 See in this regard similar ICRC observations from a study of several Council of Europe criminal detention facilities – while not necessarily from armed conflict settings – in which it was found that solitary confinement or other forms of restrictive detention regimes were anything but exceptional. See ICRC, Restrictive Regimes in Places of Detention, Geneva, 2018, p. 12.

157 See 2020 Commentary on GC III, above note 77, para. 2245.

158 Ibid., para. 2246.

159 See ibid., para. 2229.

160 GC III, Art. 30(2); GC IV, Art. 91(2).

161 GC III, Art. 30(2); GC IV, Art. 91(2); see also 2020 Commentary on GC III, above note 77, para. 2249.

162 See Palomino, Priscilla Denisse Coria, “A New Understanding of Disability in International Humanitarian Law: Reinterpretation of Article 30 of Geneva Convention II”, International Review of the Red Cross, Vol. 104, No. 919, 2022, pp. 1453–1454CrossRefGoogle Scholar (pointing out that if a Detaining Power opts to transfer a person with a psychosocial disability to a psychiatric hospital, the risk of potential IHRL violations committed there must be taken into account).

163 See e.g. Canada, Prisoner of War Handling Manual, 2004, p. 3F-9, para. 3F08(6); Japan, Act on the Treatment of Prisoners of War and Other Detainees in Armed Attack Situations, 2004, Art. 31(1); United Kingdom, Joint Doctrine on Captured Persons, 2020, p. 88, para. 3-9(b).

164 GC III, Art. 30(4); GC IV, Art. 91(4). These rights also extend to those PoWs or civilian internees who are undergoing disciplinary punishments: see GC III, Art. 98(4); GC IV, Art. 125.

165 GC III, Art. 31; GC IV, Art. 92.

166 See e.g. 2020 Commentary on GC III, above note 77, paras. 1731–1733, 2297–2298.

167 See also CRPD, above note 12, Art. 25(1)(d), which requires States Parties to provide health-care services to persons with disabilities of the same quality as to others, including on the basis of free and informed consent.

168 See e.g. GC III, Arts 109–110 and Annex I; GC IV, Art. 132.

169 GC III, Arts 109–110 and Annex I, Part I, section A.

170 GC IV, Art. 132.

171 See A. Priddy, 2019, above note 8, p. 72; P. D. C. Palomino, above note 162, pp. 1450–1453.

172 ICRC, above note 80, commentary on Rule 5.

173 See in particular GC I–IV, Arts 47/48/127/144; AP II, Art. 19; ICRC Customary Law Study, above note 15, Rule 143.

174 CRPD, above note 12, Art. 8.

175 ICRC, The Roots of Restraint in War, Geneva, 2018, p. 65.

176 See Denmark, above note 60; Norway, above note 62.

177 See CRPD, above note 12, Art. 33.

178 For instance, on the protection of health care and on detention. See e.g. ICRC Health Care in Danger, Safeguarding the Provision of Health Care: Operational Practices and Relevant International Humanitarian Law Concerning Armed Groups, Geneva, 2015; ICRC, above note 80. Furthermore, the interplay between IHL and Islamic law may be of particular relevance for some of these groups: see the article by Ahmed Al-Dawoody and William I. Pons in this issue of the Review.

179 For instance, as mentioned, discussions conducted by the ICRC in the past on strengthening legal protection for persons deprived of their liberty included consideration of detention conditions in relation to detainees with disabilities.