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Accounting for disability in international humanitarian law

Published online by Cambridge University Press:  24 November 2022

Abstract

The adoption of the Convention on the Rights of Persons with Disabilities (CRPD) represents an important and (potentially) progressive development in the protection framework under international humanitarian law (IHL). Article 11 of the CRPD specifically obliges States to protect persons with disabilities from harm in situations of risk, including armed conflict, consistent with IHL and human rights law. The CRPD framework signals the need to address the traditional framing of disability under IHL and to draw from human rights concepts in the CRPD in order to inform the protection accorded to persons with disabilities in armed conflict.

This article is divided into four main parts: the first three address three main lines of inquiry, while the fourth is forward-looking. The first part analyzes the framing and construction of disability in IHL and the implications of such framing for the protection of persons with disabilities. The second part analyzes fundamental IHL rules in an effort to demonstrate how the framing of disability and the protection framework of the CRPD can be used in the application of IHL. The third part identifies some specific problem areas ripe for further disability scoping and harmonization of the CRPD and IHL. Looking forward, the fourth part identifies entry points for focused action and research aimed at bringing about the kind of dynamic treaty practice envisioned by Article 11 of the CRPD.

Type
Research Article
Copyright
Copyright © The Author(s), 2022. Published by Cambridge University Press on behalf of the ICRC

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Footnotes

*

The author is grateful for the thoughtful comments generously provided by Bruno Demeyere, Jillian Rafferty and Michael Ashley Stein.

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 World Health Organization and World Bank, World Report on Disability, Washington, DC, 2011 (World Report on Disability); Berghs, Maria and Kabbara, Nawaf, “Disabled People in Conflicts and Wars”, in Grech, Shaun and Soldatic, Karen (eds), Disability in the Global South: The Critical Handbook, Springer, London, 2016Google Scholar.

2 Alice Priddy, Disability and Armed Conflict, Academy Briefing No. 14, Geneva Academy of International Humanitarian Law and Human Rights (Geneva Academy), April 2019; Alexander Breitegger, How Law Protects Persons with Disabilities in Armed Conflict, ICRC, Geneva, 2017.

3 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 CRPD, on Situations of Risk and Humanitarian Emergencies, UN Doc. A/HRC/31/30, 3 November 2013, available at: https://undocs.org/en/A/HRC/31/30 (all internet references were accessed in November 2022); Report of the Special Rapporteur on the Rights of Persons with Disabilities on the Protection of the Rights of Persons with Disabilities in the Context of Military Operations, UN Doc. A/77/203, 20 July 2022 (SR Report on Disability and Military Operations).

4 See Pons, William I., Lord, Janet E. and Stein, Michael Ashley, “Disability, Human Rights Violations, and Crimes against Humanity”, American Journal of International Law, Vol. 116, No. 1, 2022CrossRefGoogle Scholar.

5 See e.g. Rashida Manjoo, Report of the Special Rapporteur on Violence against Women, Its Causes and Consequences, U.N. Doc. A/67/227, 3 August 2012; Human Rights Watch, “As If We Weren't Human”: Discrimination and Violence against Women with Disabilities in Northern Uganda, 2010, available at: www.hrw.org/en/reports/2010/08/26/if-we-weren-t-human.

6 Convention on the Rights of Persons with Disabilities, UNGA Res. 61/106, 13 December 2006 (CRPD). The CRPD currently has 185 States Parties which have made a commit to “ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability”: CRPD, Art. 5. States therefore undertake to establish legislative provisions to prevent, prohibit or punish any acts, customs or regulations that discriminate against persons with disabilities.

7 Ibid., Art. 11. For more on the drafting of Article 11, see Stephanie Motz, “Article 11: Situations of Risk and Humanitarian Emergencies”, in Ilias Bantekas, Michael Ashley Stein and Dimitris Anastasiou (eds), The UN Convention on the Rights of Persons with Disabilities: A Commentary, Oxford Commentaries on International Law, Oxford University Press, Oxford, 2018, p. 314. See also the article by Andrew Begg in this issue of the Review.

8 CRPD, above note 6, preamble para. (o).

9 Assessing the trajectory of Article 11 and the CRPD framework into IHL accepts that IHL and human rights law are not discrete realms with no interrelationship: They connect, intersect, complement and inform each other. On the interrelationship between human rights and IHL, see International Committee of the Red Cross (ICRC), “IHL and Human Rights”, available at: www.icrc.org/eng/war-and-law/ihl-other-legal-regmies/ihl-human-rights/index.jsp (“International humanitarian law and international human rights law are two distinct but complementary bodies of law. They are both concerned with the protection of the life, health and dignity of individuals. IHL applies in armed conflict while human rights law applies at all times, in peace and in war”).

10 CRPD, above note 6, Art. 5.

11 UNSC Res. 2475, 20 June 2019, available at: https://undocs.org/s/res/2475(2019). For discussion of Resolution 2475 and its genesis, see the article by Bogna Ruminowicz in this issue of the Review.

12 Report of the Special Rapporteur on the Rights of Persons with Disabilities on the Rights of Persons with Disabilities in the Context of Armed Conflict, UN Doc. A/76/146, 19 July 2021 (SR Report on Disability and Armed Conflict), paras 92–94 (noting the need to provide disability-inclusive protections for persons with disabilities during armed conflict and throughout the entire peace continuum).

13 Chinkin, Christine, “Gender and Armed Conflict”, in Clapham, Andrew and Gaeta, Paola (eds), The Oxford Handbook of International Law in Armed Conflict, Oxford University Press, Oxford, 2014Google Scholar.

14 Lord, Janet E., Heideman, Elizabeth and Stein, Michael Ashley, “Advancing Disability Rights-Based Asylum Claims”, Virginia Journal of International Law, Vol. 62, No. 3, 2022Google Scholar.

15 Report of the Special Rapporteur on the Rights of Persons with Disabilities on the Impact of Ableism in Medical and Scientific Practice, UN Doc. A/HRC/43/41, 17 December 2019 (SR Report on Ableism).

16 C. Chinkin, above note 13.

17 Amundson, Ron, “Disability, Ideology, and Quality of Life: A Bias in Biomedical Ethics”, in Wasserman, David, Bickenbach, Jerome and Wachbroit, Robert (eds), Quality of Life and Human Difference, Cambridge University Press, Cambridge, May 2005Google Scholar. See also SR Report on Ableism, above note 15.

18 See ICRC, “How Law Protects Persons with Disabilities in Armed Conflict”, 13 December 2017, available at: www.icrc.org/en/download/file/62399/how_law_protects_persons_with_disabilities_in_war.pdf. See also UNSC Res. 2475, above note 11 (“expressing its commitment to address the disproportionate impact of armed conflict and related humanitarian crises on persons with disabilities …”).

19 Committee on the Rights of Persons with Disabilities, “Persons with Disabilities ‘Forgotten Victims’ of Syria's Conflict – UN Committee”, press release, 17 September 2013.

20 Ibid.

21 Non-exhaustively, these terms appear in the following instruments: 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 (“state of health”); Art. 30 (“the disabled” and “the blind); Art. 49 (referencing, for the determination of prisoners of war (PoWs) eligible for work, “physical aptitude” and the desire to ensure that they are kept in “a good state of physical and mental health”, though making no mention of disability status as such); 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. 16 (“wounded, sick and infirm”). And interestingly, the term “disabled” as used in the 1868 St Petersburg Declaration connotes rendering a solider hors de combat. In its enunciation of the principles of military necessity and humanity, the Declaration states that “the only legitimate object which States should endeavor to accomplish during war is to weaken the military forces of the enemy; … for this purpose it is sufficient to disable the greatest possible number of men”. Declaration Renouncing the Use, in Time of War, of Certain Explosive Projectiles, 29 November/11 December 1868. It should be noted that terminology around disability is highly contested in all fields, including in international human rights law, and formed a major line of dialogue and discussion during the drafting of the CRPD, in which the terminology ultimately settled on was “persons with disabilities” as the term best reflecting the social model orientation and rights-based approach to disability. For a useful and parallel discussion regarding the use of the term “victim” in the humanitarian work of the ICRC, see Meredith, Valerie M., “Victim Identity and Respect for Human Dignity: A Terminological Analysis”, International Review of the Red Cross, Vol. 91, No. 874, 2009CrossRefGoogle Scholar.

22 UN Human Rights, above note 3.

23 See, generally, Stein, Michael Ashley, “A Quick Overview of the United Nations Convention on the Rights of Persons with Disabilities and Its Implications for Americans with Disabilities”, Mental and Physical Disability Law Reporter, Vol. 31, No. 5, 2007Google ScholarPubMed.

24 The former Special Rapporteur's report on ableism notes: “Contrary to common belief, persons with disabilities can experience a good quality of life. They consistently report a quality of life as good as, or sometimes even better than, that of persons without disabilities.” SR Report on Ableism, above note 15. See also Coco, Adrienne Phelps, “Diseased, Maimed and Mutilated: Categorizations of Disability and an Ugly Law in Late 19th Century Chicago”, Journal of Social History, Vol. 44, No. 1, 2010Google Scholar.

25 CRPD, above note 6, preambular para. (e).

26 Ibid., Art. 1. And as in preambular paragraph (e), Article 1 acknowledges that disability results from the “interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others”.

27 Ibid., Preamble and Art. 1.

28 SR Report on Disability and Armed Conflict, above note 12. See also 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; W. I. Pons, J. E. Lord and M. A. Stein, above note 4.

29 A representative sampling includes Eytan, Ariel et al. , “Determinants of Post-Conflict Symptoms in Albanian Kosovars”, Journal of Nervous and Mental Disease, Vol. 192, No. 10, 2004CrossRefGoogle Scholar; Fernandez, William et al. , “Mental Health Status among Ethnic Albanians Seeking Medical Care in an Emergency Department Two Years after the War in Kosovo: A Pilot Project”, Annals of Emergency Medicine, Vol. 43, No. e-1, 2004CrossRefGoogle Scholar; Hasanovic, Mevludin, “Posttraumatic Stress Disorder in Bosnian Internally Displaced and Refugee Adolescents from Three Different Regions after the 1992–1995 War in Bosnia and Herzegovina”, Paediatrics Today, Vol. 8, No. 1, 2012Google Scholar. See also the article by Emina Ćerimović in this issue of the Review.

30 See UNSC Res. 2475, above note 11 (“Expressing serious concern regarding the disproportionate impact that armed conflict has on persons with disabilities, including abandonment, violence, and lack of access to basic services, stressing the protection and assistance needs of all affected civilian populations …”). For a recent accounting of these violations, see W. I. Pons, J. E. Lord and M. A. Stein, above note 4. See also the articles in this issue of the Review by Alexander Breitegger; Alice Priddy; and William I. Pons, Janet E. Lord and Michael Ashley Stein.

31 See the article by Sara La Vecchia in this issue of the Review. See also Stephanie Ortoleva and Hope Lewis, Forgotten Sisters – A Report on Violence against Women with Disabilities: An Overview of Its Nature, Scope, Causes and Consequences, Northeastern University School of Law Research Paper No. 194, 2012, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2133332.

32 Eloise Barry, “Disabled Ukrainians Are Fighting for Survival”, Time, 7 April 2022, available at: https://time.com/6161800/disabled-refugees-ukraine/.

33 UNICEF, Children with Disabilities in Situations of Armed Conflict, New York, November 2018. See also the article by Emina Ćerimović in this issue of the Review.

34 Aitcheson, Rozanna et al. , “Resilience in Palestinian Adolescents Living in Gaza”, Psychological Trauma: Theory, Research, Practice and Policy, Vo1. 9, No. 1, 2016Google ScholarPubMed; Ayazi, Touraj et al. , “Disability Associated with Exposure to Traumatic Events: Results from a Cross-Sectional Community Survey in South Sudan”, BMC Public Health, Vol. 13, 2013CrossRefGoogle ScholarPubMed; Sonis, Jeffrey et al. , “Probable Posttraumatic Stress Disorder and Disability in Cambodia”, Journal of the American Medical Association, Vol. 302, No. 5, 2009Google ScholarPubMed; Bleich, Avi, Dycian, Anat, Koslowsky, Meni, Solomon, Zahava and Wiener, Michael, “Psychiatric Implications of Missile Attacks on a Civilian Population: Israeli Lessons from the Persian Gulf War”, Journal of the American Medical Association, Vol. 268, No. 5, 1992Google ScholarPubMed.

35 Bryce Austin Hollander, Janet E. Lord and Michael Ashley Stein, “Yemen Disability, Food Insecurity, and Health: Examining Linkages between International Humanitarian Law, Human Rights, Disability Assistance, and Food Aid in the Yemini Context”, in Handbook on Global Health and Disability, Routledge, London, 2023 (forthcoming). See also UN Economic and Social Commission for Western Asia, Looking the Other Way: Disability in Yemen, Social Development Division, Bangkok, 2009.

36 Barbara F. Walter, Conflict Relapse and the Sustainability of Post-Conflict Peace, World Development Report 2011 Background Paper, World Bank, Washington, DC, 13 September 2010.

37 Geneva Convention IV specifies measures relating to child welfare that must be taken by parties to an international armed conflict, including measures to ensure that children under 15, who are orphaned or are separated from their families as a result of the war, are not left to their own resources, and that their maintenance, the exercise of their religion and their education are facilitated in all circumstances. Their education must, as far as possible, be entrusted to persons of a similar cultural tradition. The parties to the conflict must facilitate the reception of such children in a neutral country for the duration of the conflict, and they must endeavour to arrange for all children under 12 to be identified by the wearing of identity discs, or by some other means. GC IV, Arts 23–24, 38, 50, 76, 89. See also 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 12 July 1978) (AP I), Art. 70(1).

38 According to the World Report on Disability, above note 1, persons with disabilities experience disproportionate rates of poverty.

39 Maria Kett and Jean-Francois Trani, “Vulnerability and Disability in Darfur”, Forced Migration Review, No. 35, July 2010.

40 Paolo Vargiu, “The Rights of Persons with Disabilities in a Post-conflict Ukraine and the Failures of International Law”, 2 April 2022, available at: www.paolovargiu.com/blog/the-rights-of-persons-with-disabilities-in-a-post-conflict-ukraine-and-the-failures-of-international-law.

41 Inter-Agency Standing Committee (IASC), Guidelines on the 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.

42 S. Ortoleva and H. Lewis, above note 31.

43 See, generally, Janet E. Lord, “Genocide, Crimes against Humanity and Human Rights Abuses against People with Disabilities,” in Dinah L. Shelton (ed.), Encyclopedia of Genocide and Crimes against Humanity, Macmillan Reference, Detroit, MI, 2004.

44 See Gallagher, Hugh Gregory, By Trust Betrayed: Patients, Physicians, and the License to Kill in the Third Reich, Vandamere Press, Arlington, VA, 1995, p. 53Google Scholar; Evans, Suzanne E., Forgotten Crimes: The Holocaust and People with Disabilities, Disability Rights Advocates, Berkeley, CA, 2001, pp. 2729Google Scholar; Robert Proctor, Racial Hygiene: Medicine under the Nazis, Harvard University Press, Cambridge, MA, 1988, pp. 41–43, 188–194.

45 See CRPD, above note 6, Art. 15; International Covenant on Civil and Political Rights, UNGA Res. 2200A (XXI), 16 December 1966, Art. 7.

46 Lord, Janet E., “Shared Understanding or Consensus-Masked Disagreement? The Anti-Torture Framework in the Convention on the Rights of Persons with Disabilities”, Loyola of Los Angeles International and Comparative Law Review, Vol. 33, No. 1, 2010, fn. 240Google Scholar and accompanying text. See also Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary , Oxford University Press, Oxford, 1993, p. 126. On the Nazi Doctors trial, see Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law, No. 10, US Government Printing Office, 1949, pp. 795–796, 801 (twenty-three German physicians and administrators were criminally prosecuted by a US military tribunal for their willing participation in war crimes and crimes against humanity, including medical experimentation against disabled persons. Sixteen of the accused were found guilty, and seven were sentenced to death).

47 AP I codifies the principle of proportionality in attack. AP I, Art. 57.

48 UNSC Res. 2475, above note 11. For more on data disaggregation in relation to Resolution 2475, see the article by Gopal Mitra and Georgia Dominik in this issue of the Review.

49 CRPD, above note 6, Art. 31(1).

50 Article 31(2) provides in this regard: “The information collected in accordance with this article shall be disaggregated, as appropriate, and used to help assess the implementation of States Parties’ obligations under the present Convention and to identify and address the barriers faced by persons with disabilities in exercising their rights.”

51 SR Report on Disability and Armed Conflict, above note 12.

52 World Report on Disability, above note 1.

53 AP I, Arts 51(5)(b), 57(2)(a)(iii).

54 CRPD, above note 6, Art. 11 (emphasis added).

55 For a discussion on this topic, see Ziv Bohrer, Janina Dill and Helen Duffy, “Trials and Tribulations: Co-Applicability of IHL and Human Rights in an Age of Adjudication”, in Law Applicable to Armed Conflict, Max Planck Trialogues No. 2, Cambridge University Press, Cambridge, 2020.

56 Here, there are lessons learned in relation to the diverse views of expert witnesses during the Gotovina trial before the International Criminal Tribunal for the former Yugoslavia (ICTY). They help demonstrate how military commanders might come to very different assessments concerning the application of principles governing the conduct of hostilities. See Brehm, Maya, Unacceptable Risk: Use of Explosive Weapons in Populated Areas through The lens of Three Cases before the ICTY, PAX, 2014, p. 60Google Scholar.

57 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.

58 Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact-Finding Mission on the Gaza Conflict, UN Doc. A/HRC/12/48, 25 September 2009, para. 596 (recognizing that certain groups, including persons with disabilities, children and widows, often experience aggravated impacts from armed conflict).

59 ICRC Customary Law Study, above note 57, Rule 156.

60 AP I, Arts 51(5)(b), 57(2)(a)(ii), 57(2)(b); ICRC Customary Law Study, above note 57, Rule 14 (“Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited”).

61 ICRC Customary Law Study, above note 57, Rule 9. Illustratively, in Côte d'Ivoire's military teaching manual, examples of civilian objects include:

  • buildings and installations used by civilians, as long as they are not used for military purposes, for example houses, apartment buildings, hospitals, factories and workshops producing goods devoid of military significance;

  • offices, markets, warehouses, farms, schools, museums, places of worship and other similar buildings, as well as means of transport such as civilian aircraft, cars, trains and buses;

  • foodstuffs and areas for the production of foodstuffs, springs, wells, water conveyance works and reservoirs. See Côte d'Ivoire, Law of War Teaching Manual, Book III, Vol. 1, Ministry of Defence, 2007.

62 See e.g. ICRC, Gendered Impacts of Armed Conflicts and Implications for the Application of IHL, Geneva, June 2022.

63 The obligation to take indirect effects on the civilian population into account is well grounded in IHL through Article 51(5)(b) of AP I.

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

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

66 Geneva Academy, “Odai, Gaza, 2015”, Disability and Armed Conflict, photo exhibition, Geneva, 2019. On 10 July 2014, while Odai was tending to cows on his family's farm, it came under attack. Not hearing the warning alarms, he did not take cover. A rocket landed near him, throwing him 5 metres; he landed on his back and the impact left him paralyzed. Now in a wheelchair, Odai has struggled to regain his independence. Living in a second-floor apartment, he relies on his family to get him down the stairs. He is too scared to visit the farm and is prone to mood swings. For guidance on this type of risk, see especially Alice Priddy, Military Briefing: Persons with Disabilities and Armed Conflict, Geneva Academy, Geneva, 2021, available at: https://www.geneva-academy.ch/research/publications/detail/567-military-briefing-persons-with-disabilities-and-armed-conflict.

67 CRPD, above note 6, Art. 2.

68 AP I, Art. 57(1); ICRC Customary Law Study, above note 57, Rule 15.

69 Responsibilities for States in respect of protection and humanitarian assistance derive from the Geneva Conventions and international customary law and are informed by the central rationale of IHL, which is to limit human suffering, even within the context of armed conflict. See Eve Massingham and Kelisiana Thynne, “Humanitarian Relief Operations”, in Ben Saul and Dapo Akande (eds), The Oxford Guide to International Humanitarian Law, Oxford University Press, Oxford, 2020, p. 319. For more on the specific risks arising in humanitarian assistance contexts, see the articles in this issue of the Review by Kirsten Young; Carolin Funke; and Gauthier de Beco.

70 For individuals detained in the context of armed conflict, GC IV requires access to protected persons by the ICRC (as well as other humanitarian organizations) for the purposes of providing assistance, such as the distribution of relief supplies. GC IV, Art. 142.

71 Successive Security Council resolutions underscore this right and call upon parties to respect access of civilian populations to assistance. See e.g. UNSC Res. 1265, 1296 and 1314.

72 Gerard Quinn, Shantha Rau Barriga, Catalina Devandas and Janet E. Lord, “Protecting Civilians with Disabilities in Conflict”, NATO Review, 1 December 2017, available at: www.nato.int/docu/review/2017/Also-in-2017/Protecting-civilians-with-disabilities-in-conflicts/EN/index.htm.

73 CRPD, above note 6, Arts 9, 19, 20, 24, 25, 26, 28.

74 IASC, above note 41.

75 Lord, Janet E. and Stein, Michael Ashley, “Peacebuilding and Reintegrating Combatants with Disabilities”, International Journal of Human Rights, Vol. 19, No. 3, 2015CrossRefGoogle Scholar; Velarde, Minerva Rivas, Lord, Janet E., Stein, Michael Ashley and Shakespeare, Thomas, “Disarmament, Demobilization, and Reintegration in Colombia: Lost Human Rights Opportunities for Ex-Combatants with Disabilities”, Journal of Human Rights, Vol. 21, No. 1, 2021Google Scholar. For an early treatment, see ICRC, Report on Assistance to War-Disabled: Replies to an Enquiry Opened by the International Committee of the Red Cross, Geneva, 1949; ICRC, The Return of the War-Disabled to Normal Life, Geneva, 1949.

76 Nathalie de Watteville, Addressing Gender Issues in Demobilisation and Reintegration Programs, Africa Regional Working Paper Series No. 33, World Bank, Washington, DC, 2001, available at: http://hdl.handle.net/10986/9810.

77 See e.g. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, 2056 UNTS 211, 3 December 1997 (entered into force 1 March 1999) (Mine Ban Treaty), Art. 6, available at: www.icbl.org/en-gb/the-treaty/treaty-in-detail/treaty-text.aspx.

78 Convention on Cluster Munitions, 2668 UNTS 39, 3 December 2008 (entered into force 1 August 2010), Art. 9.

79 Convention on the Rights of the Child, UNGA Res. 44/25, 20 November 1989 (entered into force 2 September 1990), Art. 19(1–2) (providing that “States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child”, and further, that “[s]uch protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement”).

80 Inter-Agency Working Group on Disarmament, Demobilization and Reintegration, “Integrated Disarmament, Demobilization and Reintegration Standards (IDDRS)”, New York, 2019, available at: www.unddr.org/. The original IDDRS was adopted in 2006 and is available at: https://digitallibrary.un.org/record/609144?ln=en.

81 See, generally, S. E. Evans, above note 44.

82 GC IV, Art. 49(1).

83 Ibid., Art. 147; AP I, Art. 85(4)(a). In addition, the Rome Statute of the International Criminal Court provides that “the deportation or transfer [by the Occupying Power] of all or parts of the population of the occupied territory within or outside this territory” constitutes a war crime in international armed conflicts. Rome Statute of the International Criminal Court, 2187 UNTS 38544, 17 July 1998 (entered into force 1 July 2002), Art. 8(2)(b)(viii).

84 See CEDAW, Statement of the CEDAW Committee on the Situation in Gaza, July 2014, available at: www.ohchr.org/sites/default/files/Documents/HRBodies/CEDAW/StatementsChair/GazaStatement_AsAdopted_18072014.pdf.

85 See CEDAW, Concluding Observations on the Report of Israel, UN Doc. CEDAW/C/ISR/CO/5, 4 February 2011, para. 38.

86 Global Compact for Safe, Orderly Migration, UNGA Res. 73/195, Annex, 11 January 2019.

87 Global Protection Cluster, Guiding Principles on Internal Displacement, ADM 1.1, PRL 12.1, PR00/98/109, 22 July 1998, available at: www.refworld.org/docid/3c3da07f7.html (Principle 4(2) provides: “Certain internally displaced persons, such as children, especially unaccompanied minors, expectant mothers, mothers with young children, female heads of household, persons with disabilities and elderly persons, shall be entitled to protection and assistance required by their condition and to treatment which takes into account their special needs”). See also Office of the UN High Commissioner for Refugees, Working with Persons with Disabilities in Forced Displacement, 2011, available at: www.un.org/disabilities/documents/WHS/Working-with-persons-with-disabilities-UNHCR-2011.pdf.

88 Global Protection Cluster Working Group, Handbook for the Protection of Internally Displaced Persons, June 2010, pp. 9, 14, 29, available at: www.unhcr.org/en-us/protection/idps/4c2355229/handbook-protection-internally-displaced-persons.html.

89 Disability Rights International (DRI), Left Behind in the War: Dangers Facing Children with Disabilities in Ukraine’s Orphanages, May 2022. For an earlier example, see Mental Disability Rights International, Not on the Agenda: Human Rights of People with Mental Disabilities in Kosovo , Washington, DC, 2002, pp. 9–11.

90 DRI, above note 89.

91 See e.g. ICRC Customary Law Study, above note 57, Rules 87 (“Humane Treatment”), 118 (“Provision of Basic Necessities to Persons Deprived of Their Liberty”), 126 (“Visits to Persons Deprived of their Liberty”), 128 (“Release and Return of Persons Deprived of their Liberty”). Also see the article by Alexander Breitegger in this issue of the Review.

92 Article 16 of GC III provides: “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 prisoners of war shall be treated alike by the Detaining Power, without any adverse distinction based on race, nationality, religious belief or political opinions, or any other distinction founded on similar criteria.” As noted in the ICRC's 2020 Commentary on GC III, experiences of differential treatment of PoWs during World War II led to the revision of the equality of treatment clause as drafted in the 1929 Geneva Convention: “A more explicit obligation of equal treatment was included in the new Convention, together with a non-exhaustive list of prohibited grounds of adverse distinction.” ICRC, Commentary on the Third Geneva Convention: Convention (III) relative to the Treatment of Prisoners of War, 2nd ed., Geneva, 2020 (ICRC Commentary on GC III), Art. 16.

93 Ibid.

94 CRPD, above note 6, Art. 5. See also the article by Alice Priddy in this issue of the Review.

95 ICRC Commentary on GC III, above note 92, Art. 16. See Méndez, Juan E. and Nicolescu, Andra, “Evolving Standards for Torture in International Law”, in Başoğlu, Metin (ed.), Torture and Its Definition in International Law: An Interdisciplinary Approach, Oxford University Press, Oxford, 2017Google Scholar (affirming that the legal definition of torture is not confined to circumstances of pain and suffering inflicted during the course of internment or as punishment, and that other practices may cross the threshold of severity so as to constitute torture or other cruel treatment. The prohibition is evolving in the light of the CRPD and indeed other developments under international human rights law).

96 See also ICRC Commentary on GC III, above note 92.

97 GC III, Art. 28.

98 Ibid., Art. 30.

99 See the article by Alexander Breitegger in this issue of the Review.

100 Robert Wildeboer, “The Impact of Solitary Confinement in a Youth Prison”, WBEZ, 2010; Grassian, Stuart, “Psychiatric Effects of Solitary Confinement”, Washington University Journal of Law and Policy, Vol. 22, No. 1, 2006Google Scholar; American Civil Liberties Union, “Abuse of the Human Rights of Prisoners in the United States: Solitary Confinement”, Washington, DC, 2011; Metzner, Jeffrey L. and Fellner, Jamie, “Solitary Confinement and Mental Illness in U.S. Prisons: A Challenge for Medical Ethics”, Journal of the American Academy of Psychiatry and the Law, Vol. 38, No. 1, 2010Google ScholarPubMed.

101 AP I, Art. 35.

102 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as Amended on 3 May 1996, 2048 UNTS 93, 10 October 1980 (entered into force 3 December 1998), Art. 7.

103 See WHO, Priority Assistive Products List, WHO/EMP/PHI/2016.01, Geneva, 2016. The List includes fifty priority assistive products, selected on the basis of widespread need and impact on a person's life.

104 Convention on Cluster Munitions, above note 78, Art. 5(1).

105 See e.g. United Nations Institute for Disarmament Research, “Gendered Impacts of Explosive Weapons in Populated Areas”, fact sheet, New York, 2021.

106 World Report on Disability, above note 1.

107 Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, 18 October 1907, Art. 47 (pillage is formally forbidden). See also ICRC Customary Law Study, above note 57, Rule 52.

108 AP I, Art. 36.

109 UNSC Res. 2475, above note 11.

110 Artificial Intelligence and the Rights of Persons with Disabilities: Report of the Special Rapporteur on the Rights of Persons with Disabilities on Artificial Intelligence, UN Doc. A/HRC/49/52, 28 December 2021.

111 SR Report on Disability and Military Operations, above note 3.

112 See the article Mariana Díaz Figueroa, Anderson Henao Orozco, Jesús Martínez and Wanda Muñoz Jaime in this issue of the Review.

113 W. I. Pons, J. E. Lord and M. A. Stein, above note 4. See also the articles in this issue of the Review by Sara La Vecchia; Alexa Magee and David McIntire; and William I. Pons, Janet E. Lord and Michael Ashley Stein.

114 See e.g. Deutsche Presse Agentur, “U.N. Team Arrives in Cambodia to Investigate Khmer Rouge Genocide”, LEXIS-NEXIS Academic Universe, 14 November 1998 (suggesting that persons with disabilities were targeted for killing by the Khmer Rouge in Cambodia); Blaser, Art, “From the Field – People with Disabilities and Genocide: The Case of Rwanda”, Disability Studies Quarterly, Vol. 22, No. 3, 2002CrossRefGoogle Scholar (referencing the Rwandan genocide, in which mass killings of persons with disabilities, including those housed in rehabilitation institutions and psychiatric hospitals built by missionaries in Kigali, were among the atrocities that took place).

115 W. I. Pons, J. E. Lord and M. A. Stein, above note 4.

116 See e.g. Dixon, Rosalind, “Rape as a Crime in International Humanitarian Law: Where to from Here?”, European Journal of International Law, Vol. 13, No. 3, 2002CrossRefGoogle Scholar; Chinkin, Christine, “Rape and Sexual Abuse and Women in International Law”, European Journal of International Law, Vol. 5, No. 3, 1999Google Scholar; Happold, Matthew, Child Soldiers in International Law, Manchester University Press, Manchester, 2005Google Scholar.

117 Jae-Chun Won et al., “Disability, Repressive Regimes, and Health Disparity: Assessing Country Conditions in North Korea”, in Jure Vidmar and Ruth Kok (eds), Hague Yearbook of International Law, Vol. 27, 2014 (noting the absence of meaningful fact-finding in respect of international law violations against persons with disabilities in the work of commissions of inquiry).

118 Janet E. Lord, William Pons and Michael Ashley Stein, “Commissions of Inquiry and Persons with Disabilities”, Harvard Law School Project on Disability Research Initiative Paper, Cambridge, MA, 2022 (under submission).

119 Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact-Finding Mission on the Gaza Conflict, UN Doc. A/HRC/12/48, 25 September 2009.

120 UNSC Res. 2475, above note 11.

121 See the article by William I. Pons, Janet E. Lord and Michael Ashley Stein in this issue of the Review.

122 See e.g. testimonies of organizations of persons with disabilities, regional consultations convened by the UN Special Rapporteur on the Rights of Persons with Disabilities, ICRC, IDA and Diakonia, May 2022. See also A. Priddy, above note 65.

123 For a detailed account of certain aspects relating to this broad realm, see the articles in this issue of the Review by Bonnie Docherty and Alicia Sanders-Zakre; and Mariana Díaz Figueroa, Anderson Henao Orozco, Jesús Martínez and Wanda Muñoz Jaime.

124 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. 4.

125 GC III, Art. 3.

126 ICRC Customary Law Study, above note 57.

127 See e.g. Robin Geib and Christophe Paulussen, “Specifically Protected Persons and Objects”, in B. Saul and D. Akande (eds), above note 69, p. 186 (wrongly asserting that “IHL does not single out disabled persons as a specific category of protected persons”).

128 See Fiederlein, Suzanne, “Victim Assistance: A Way Forward Emerges”, Journal of Mine Action, Vol. 6, No. 3, 2002Google Scholar (discussing victim assistance as a pillar of United Nations Mine Action Service (UNMAS) programming). A useful practice of the Mine Ban Treaty implementation process lies in regular meetings of States Parties providing an important forum for the reporting on and sharing of best practices in Mine Ban Treaty implementation. For more on Mine Ban Treaty implementation and meetings of States Parties, respectively, see the International Campaign to Ban Landmines website, available at: www.icbl.org/en-gb/the-treaty/treaty-status.aspx and www.icbl.org/en-gb/the-treaty/treaty-meetings/meetings-of-states-parties.aspx.

129 UNMAS, “Victim Assistance in Mine Action”, International Mine Action Standard 13.10, Draft 1, September 2021.

130 CRPD, above note 6, Art. 40.

131 Stein, Michael Ashley and Lord, Janet E., “Monitoring the Committee on the Rights of Persons with Disabilities: Innovations, Lost Opportunities, and Future Potential”, Human Rights Quarterly, Vol. 32, No. 3, 2010CrossRefGoogle Scholar (arguing for the COSP to take on an active role in the development of the treaty, parallel to similar conferences in the international environmental law domain).

132 Janet E. Lord, “Treaty Practice, Connectivity and the Potentiality of Article 11 of the CRPD in Advancing Disability Rights within IHL”, in Gloria Gagglioi (ed.), The Role of Human Rights Mechanisms in Implementing International Humanitarian Law, 2023 (forthcoming) (assessing the practice of the CRPD Committee in relation to its engagement with IHL in its reporting).

133 SR Report on Disability and Military Operations, above note 3.

134 AP I, Art. 8(a). That said, even the language of AP I Article 8 does evoke the traditional conceptualization of disability given its emphasis on medical and care needs as opposed to a broader set of human needs and the reality that societal barriers greatly inhibit full participation by persons with disabilities.

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