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Addressing the accountability void: War crimes against persons with disabilities

Published online by Cambridge University Press:  21 November 2022

Abstract

Academics rarely raise the need to consider persons with disabilities when preventing, investigating and prosecuting international humanitarian law (IHL) violations. Worse still, no actual attempts have been made to include a disability perspective into practical guidance and monitoring mechanisms. This article addresses that void by laying out how existing yet unutilized IHL obligations can be leveraged to repress and suppress disability-based IHL violations. In doing so, the article will detail how fact-finding approaches, criminal investigative processes and reporting methods for IHL violations can be inclusive of persons with disabilities and thus more appropriately address the endemic under-representation of a disability perspective in the planning and execution of military operations during armed conflict and the specific crimes they thereby suffer. Additionally, this article will articulate concrete changes that should be made to international criminal law procedures for prosecuting war crimes to provide recognition and accountability for disability-based IHL violations, as has been done for violations against women and children. Finally, this article will diagnose the state of the law to address any legal challenges or hurdles that may hamper the inclusion of a disability perspective in fulfilling the IHL obligation to reduce and address violations of humanitarian law.

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 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 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, 2022Google Scholar; Report of the Special Rapporteur on the Rights of Persons with Disabilities, Gerard Quinn, on the Rights of Persons with Disabilities in the Context of Armed Conflict, UN Doc. A/76/146, 19 July 2021, paras 92–4 (SR Report Disability & Armed Conflict).

2 Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (International Committee of the Red Cross (ICRC) Customary Law Study), Rule 156, available at: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule156 (all internet references were accessed in November 2022).

3 See 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. 49; 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. 50; 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. 129; 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. 146; 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); see also Rome Statute of the International Criminal Court of 17 July 1998, 2187 UNTS 38544 (entered into force 1 July 2002) (Rome Statute), Art. 8; and ICRC Advisory Service on International Humanitarian Law, “Obligations in Terms of Penal Repression”, March 2014 (ICRC Penal Repression), available at: www.icrc.org/en/download/file/1067/obligations-in-terms-of-penal-repression-icrc-eng.pdf, reflecting that while treaty law contains no specific obligation to repress such violations, the duty to suppress has been interpreted to include their repression, which has been judicially recognized; for customary law, see ICRC Customary Law Study, above note 2, Rule 158.

4 CRPD, UN Doc. A/RES/61/106, 24 January 2007 (entered into force 3 May 2008), Art. 11. For a comprehensive exploration, see Bantekas, Ilias, Stein, Michael Ashley and Anastasiou, Dimitris (eds), The UN Convention on the Rights of Persons with Disabilities: A Commentary, Oxford University Press, Oxford, 2018Google Scholar.

5 CRPD, above note 4, Art. 11.

6 W. I. Pons, J. E. Lord and M. A. Stein, above note 1, p. 71.

7 UNSC, Report of the Secretary-General on the Protection of Civilians in Armed Conflict, UN Doc. S/2007/643, 28 October 2007, paras 27–8.

8 UNSC, Report of the Secretary-General on the Protection of Civilians in Armed Conflict, UN Doc. S/2019/373, 7 May 2019, para. 49.

9 UNSC, Resolution 2475 (2019), UN Doc. S/RES/2475 (2019), 20 June 2019.

10 See ICRC Advisory Service on International Humanitarian Law, “What is International Humanitarian Law?”, December 2014, available at: www.icrc.org/en/download/file/4541/what-is-ihl-factsheet.pdf.

11 GC I, above note 3, Art. 146; GC II, above note 3, Art. 50; GC III, above note 3, Art. 129; GC IV, above note 3, Art. 146; and AP I, above note 3, Arts 85(1) and 86(1).

12 See GC I, GC II, GC III, GC IV and AP I, and ICRC Penal Repression, above note 3.

13 See Prevention and Punishment of the Crime of Genocide, 78 UNTS 277, 9 December 1948 (entered into force 12 January 1951), Art. 4; Convention for the Protection of Cultural Property in the Event of Armed Conflict, 249 UNTS 215, 14 May 1954 (entered into force 7 August 1956), Art. 28; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 1986, 10 December 1984 (entry into force 26 June 1987), Art. 7; 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. 14; 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), Art. 9; and Convention on Cluster Munitions, 2668 UNTS 39, 3 December 2008 (entered into force 1 August 2010), Art. 9.

14 See Statute of the International Criminal Tribunal for the Former Yugoslavia (as amended on 17 May 2002), UNSC Res. 808/1993, 827/1993 and amended by UNSC Res. 116/1998, 1329/2000, 114/2002, 25 May 1993, Art. 3; Statute of the International Criminal Tribunal for Rwanda, UNSC Res. 955, Arts 2–4, Annex, 8 November 1994, Art. 4; and Statute of the Special Court for Sierra Leone, UNSC Res. 1315, 16 January 2002, Art. 3.

15 See ICRC Penal Repression, above note 3, stating that the duty to suppress has been interpreted to include the repression of war crimes occurring during non-international armed conflicts as codified by Article 8 of the Rome Statue.

16 Rome Statute, above note 3, preamble and Art. 8.

17 This article will also refer to grave breaches and other serious violations of the laws and customs of war collectively as war crimes for continuity and constituency.

18 ICRC Customary Law Study, above note 2, Rule 156.

19 See Stephanie Motz, “Article 11: Situations of Risk and Humanitarian Emergencies”, in I. Bantekas, M. A. Stein and D. Anastasiou (eds), above note 4, p. 314.

20 CRPD, above note 4.

21 For a discussion, see Duffy, Helen, “Trials and Tribulations: Co-applicability of IHL and Human Rights in an Age of Adjudication”, in Bohrer, Ziv, Dill, Janina and Duffy, Helen, Law Applicable to Armed Conflict, Max Planck Trialogues, Vol. I, Cambridge University Press, Cambridge, 2020Google Scholar.

22 See W. I. Pons, J. E. Lord and M. A. Stein, above note 1.

23 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.

24 See UNSC Res. 2475, above note 9.

25 W. I. Pons, J. E. Lord and M. A. Stein, above note 1.

26 SR Report Disability & Armed Conflict, above note 1, para. 66.

27 Fiala-Butora, Janos, “Disabling Torture: The Obligation to Investigate Ill-treatment of Persons with Disabilities”, Columbia Human Rights Law Review, Vol. 45, No. 1, 2013, pp. 219–40Google Scholar; and 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, 2010Google Scholar.

28 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.

29 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.

30 J. Fiala-Butora, above note 27, p. 214.

31 CRPD, above note 4, Art. 16.

32 J. Fiala-Butora, above note 27, p. 214. See European Court of Human Rights, Assenov and Others v. Bulgaria, Case No. 24760/94, Judgment (Court Chamber), 28 October 1998, § 102, the Court finding that “where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State's general duty under Article 1 of the Convention to ‘secure to everyone within their jurisdiction the rights and freedoms defined in … [the] Convention’, requires by implication that there should be an effective official investigation”.

33 See W. I. Pons, J. E. Lord and M. A. Stein, above note 1.

34 Ibid.

35 See ICRC, above note 23, p. 3, footnote 7.

36 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.

37 See, e.g., Lord, Janet E., “Genocide, Crimes against Humanity and Human Rights Abuses against People with Disabilities”, in Shelton, Dinah L. (ed.), Encyclopedia of Genocide and Crimes against Humanity, Macmillan Library Reference, New York, 2004Google Scholar.

38 Deutsche Presse Agentur, “U.N. Team Arrives in Cambodia to Investigate Khmer Rouge Genocide”, LexisNexis(r) Academic Universe, 14 November 1998; Committee on the Rights of Persons with Disabilities, Concluding Observations on the Initial Report of Colombia, UN Doc. CRPD/C/COL/CO/1, 30 September 2016, para. 24; Blaser, Art, “From the Field – People with Disabilities and Genocide: The Case of Rwanda”, Disability Studies Quarterly, Vol. 22, No. 53, 2002CrossRefGoogle Scholar; Arthur Blaser, “Always the First to Go?: People with Disabilities and Genocide”, in Alexandre Kimenyi and Otis Scott (eds), Anatomy of Genocide: State-Sponsored Mass-Killings in the Twentieth Century, 2001, p. 78; and United States Holocaust Memorial Musem, “Nazi Persecution of the Disabled: Murder of the ‘Unfit’”, available at: www.ushmm.org/information/exhibitions/online-exhibitions/special-focus/nazi-persecution-of-the-disabled.

39 Soraya Sarhaddi Nelson, “Disabled Often Carry Out Afghan Suicide Missions”, NPR, 15 October 2007, available at: www.npr.org/2007/10/15/15276485/disabled-often-carry-out-afghan-suicide-missions; and Iraqi Observatory for Human Rights, “ISIS Uses Children and People with Disabilities as Human Shields”, ReliefWeb, 31 March 2017, available at: https://reliefweb.int/report/iraq/isis-uses-children-and-people-disabilities-human-shields.

40 The list of wider acts constituting war crimes is significant given the extensive overlap with those actions found in CRPD articles obligating States to take action to provide protection from, and accountability for, torture, murder, medical experimentation and the equal enjoyment of the right to life. CRPD, above note 4, Arts 10, 14, 15, 16 and 17. This alignment between those acts constituting war crimes and a need for accountability makes the required harmonization of the IHL duty to suppress and repress straightforward in legal theory, but elusive in practice, because of lack of considered attention to the co-applicability of the CRPD to ICL. This present article does not seek to resolve the uncertainty as to the proper source of individual criminal responsibility and confusion over which acts constitute a war crime. Instead, the authors seek to raise awareness to the fact that the IHL obligation to repress war crimes is a tool yet to be employed to provide accountability for the overlooked reality that persons with disabilities are more likely to be targeted and impacted by war crimes. See Hathaway, Oona A., Strauch, Paul K., Walton, Beatrice A. and Weinber, Zoe A. Y., “What is a War Crime?”, Yale Journal of International Law, Vol. 44, No. 1, 2019Google Scholar, discussing the history, evolution and current state of confusion and uncertainty surrounding the term of war crime.

41 Report of the Special Rapporteur of the Human Rights Council on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, UN Doc. A/63/175, 28 July 2008.

42 See UN Office of the High Commissioner, Commissions of Inquiry and Fact-finding Missions on International Human Rights and Humanitarian Law: Guidance and Practice, New York and Geneva, 2015, available at: www.ohchr.org/Documents/Publications/CoI_Guidance_and_Practice.pdf.

43 See UNSC, Resolution 2217 (2015), UN Doc. S/RES/2217 (2015), 28 April 2015.

44 Report of the Commission of Inquiry on Lebanon pursuant to Human Rights Council Resolution S-2/1, UN Doc. A/HRC/3/2, 23 November 2006, p. 50, para. 204.

45 While the CRPD did not enter into force until 2009, disability as an issue and the disproportionate harm faced by persons with disabilities in armed conflict did not simply surface with the establishment of the treaty.

46 See generally, Won, Jae-Chun, Lord, Janet E., Stein, Michael Ashley and Song, Yosung, “Disability, Repressive Regimes, and Health Disparity: Assessing Country Conditions in North Korea”, in Bonnevalle-Kok, Ruth and Vidmar, Jure (eds), Hague Yearbook of International Law, Vol. 27, Brill Nijhoff, Leiden, 2014Google Scholar.

47 Report of the Commission of Inquiry on Human Rights in the Democratic People's Republic of Korea, UN Doc. A/HRC/25/63, 7 February 2014.

48 See, e.g., Korean Institute for National Unification, White Paper on Human Rights in North Korea, 2007.

49 Korean Institute for National Unification, White Paper on Human Rights in North Korea, 2012, p. 482, noting that forced sterilization was often coupled with other abuses; thus, in 2011, 80% of refugee respondents indicated that North Korea segregated and relocated little people, and 67% indicated that the State forced those individuals to undergo sterilization. See also Damien McElroy, “North Korea Locks up Disabled in ‘Subhuman’ Gulags, Says UN”, The Telegraph, 21 October 2006, available at: www.telegraph.co.uk/news/worldnews/1532036/North-Korea-locks-up-disabled-in-subhuman-gulags-says-UN.html.

50 Resolution adopted by the Human Rights Council on the Situation of Human Rights in South Sudan, UN Doc. A/HRC/RES/31/20, 27 April 2016.

51 Report of the Commission of Human Rights in South Sudan, UN Doc. A/HRC/49/78, 15 February 2022, para. 41.

52 CRPD Committee, General Comment No. 3 (2016) on Women and Girls with Disabilities, UN Doc. CRPD/C/GC/3, 25 November 2016.

53 Resolution adopted by the Human Rights Council on the Situation of Human Rights in Ukraine Stemming from the Russian Aggression, UN Doc. A/HRC/RES/49/1, 7 March 2022; and Resolution adopted by the Human Rights Council on the Deteriorating Human Rights Situation in Ukraine Stemming from the Russian Aggression, UN Doc. A/HRC/RES/S-34/1, 16 May 2022.

54 Ibid.

55 Persons with disabilities are highlighted on the HRMMU's website. See Office of the High Commissioner for Human Rights (OHCHR), “UN Human Rights in Ukraine”, available at: www.ohchr.org/en/countries/ukraine/our-presence#:~:text=The%20UN%20Human%20Rights%20Monitoring,occupied%20by%20the%20Russian%20Federation.

56 See OTP, Policy Paper on Children, November 2016 (International Criminal Court Child Policy Paper); OTP, Policy Paper on Sexual and Gender-Based Crimes, June 2014 (International Criminal Court Sexual and Gender-Based Crimes).

57 International Criminal Court Child Policy Paper, ibid., p. 4; International Criminal Court Sexual and Gender-Based Crimes, ibid., p. 5.

58 International Criminal Court Child Policy Paper, ibid., para. 51; International Criminal Court Sexual and Gender-Based Crimes, ibid., para. 26.

59 Ibid.

60 See generally, Committee on the Rights of Persons with Disabilities, Concluding Observations, available at: https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=4&DocTypeID=5.

61 See W. I. Pons, J. E. Lord and M. A. Stein, above note 1, pp. 62–70.

62 The High Contracting Parties to the Geneva Conventions and Additional Protocol I are obliged to enact legislation needed to provide effective penal sanctions for those committing (or ordering to be committed) any grave breaches of the Geneva Conventions and Additional Protocol I; to take measures for the suppression of other acts contrary to those treaties or to other IHL obligations; and to repress serious violations of IHL. They are also obliged to search for persons alleged to have committed (or have ordered to be committed) such grave breaches, and to bring these persons before their own domestic courts; or to hand them over for trial, in accordance with their national legislation, to another High Contracting Party concerned, provided that this High Contracting Party has made out a prima facie case. See GC I, above note 3, Art. 49; GC II, above note 3, Art. 50; GC III, above note 3, Art. 129; GC VI, above note 3, Art. 146; and AP I, above note 3, Art. 85.

63 See Noam Lubell, Jelena Pejic and Claire Simmons, Guidelines on Investigating Violations of International Humanitarian Law: Law, Policy, and Good Practice, Geneva Academy of International Humanitarian Law and Human Rights and ICRC, September 2019, available at: www.icrc.org/en/download/file/123868/guidelines_on_investigating_violations_of_ihl_final.pdf.

64 Ibid., paras 126, 131 and 142.

65 See Report of the Office of the United Nations High Commissioner for Human Rights on the Right to Access to Justice under Article 13 of the Convention on the Rights of Persons with Disabilities, UN Doc. A/HRC/37/25, 27 December 2017, paras 22 and 30.

66 See W. I. Pons, J. E. Lord and M. A. Stein, above note 1, pp. 82–3.