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Who is the civilian population? Ensuring IHL is implemented for the protection of the entirety of the civilian population – including persons with disabilities

Published online by Cambridge University Press:  26 October 2022

Alice Priddy
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Abstract

Despite progress in recent years, including UN Security Council Resolution 2475 of 2019, there remains a significant gap in our awareness of the disability dynamics of armed conflict and the barriers that persons with disabilities experience in accessing the protections of international humanitarian law (IHL). This brief article will consider the protective purpose of IHL and the diversity of civilian populations, and, focussing on the principle of proportionality as an example, demonstrate how IHL must be interpreted, implemented and monitored in a manner that is inclusive and reflects the reality that civilian populations are diverse.

Keywords

disabilityconduct of hostilitiesproportionalityinclusionprotectionadverse distinction
Type
Research Article
Information
International Review of the Red Cross , Volume 105 , Issue 922: Persons with disabilities in armed conflict , April 2023 , pp. 242 - 251
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 ICTY, The Prosecutor v. Tihomir Blaškić, Case No. IT-95-14, Judgment (Trial Chamber), 3 March 2000, para. 180.

2 IHL also serves to protect fighters, including through limiting the means and methods of conflict and providing minimum standards of treatment for prisoners of war.

3 See Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005CrossRefGoogle Scholar (ICRC Customary Law Study), Rules 1–24, available at: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1 (all internet references were accessed in September 2022).

4 Torture and cruel treatment are prohibited in Article 3 common to the four Geneva Conventions, Article 12 of Geneva Convention I, Article 12 of Geneva Convention II, Articles 17,87 and 89 of Geneva Convention III (GC III), Article 32 of Geneva Convention IV (GC IV), Article 75(2) of Additional Protocol I and Article 4(2) of Additional Protocol II (APII). The prohibition against rape and other forms of sexual violence is a norm of customary international law: see ICRC Customary Law Study, above note 3, Rule 93 and its sources. The prohibition against hostage taking is found in common Article 3, Articles 34 and 147 of GC IV, Article 75(2)(c) of AP I and Article 4(2)(c) of AP II, and is a norm of customary international law: see ICRC Customary Law Study, above note 3, Rule 96. It is prohibited to convict or sentence a person “except pursuant to a fair trial affording all essential judicial guarantees”: see ICRC Customary Law Study, above note 3, Rule 100. It is prohibited to forcibly displace the civilian population “unless the security of the civilians involved or imperative military reasons so demand”: see ICRC Customary Law Study, above note 3, Rule 129. The prohibition against collective punishment is contained in Article 87 of GC III and Article 33 of GC IV, and is a norm of customary international law: see ICRC Customary Law Study, above note 3, Rule 103. Regarding non-discrimination, see ICRC Customary Law Study, above note 3, Rule 88.

5 ICRC Customary Law Study, above note 3, Rule 54; AP I, Art. 54(2); AP II, Art. 14.

6 ICRC Customary Law Study, above note 3, Rule 55; AP I, Art. 70(2).

7 World Health Organization, World Report on Disability, 2011.

8 Convention on the Rights of Persons with Disabilities, 2515 UNTS 3, 13 December 2006 (entered into force 3 May 2008) (CRPD), Preamble.

9 Ibid., Art 1.

10 UN Humanitarian Needs Assessment Programme Syria, Disability in Syria: Investigation on the Intersectional Impacts of Gender, Age and a Decade of Conflict on Persons with Disabilities, 2021.

11 Ibid.

12 Ibid.

13 UNICEF, Seen, Counted, Included: Using Data to Shed Light on the Well-Being of Children with Disabilities, November 2021.

14 Report of the UN Special Rapporteur on the Rights of Persons with Disabilities, UN Doc A/76/146, 19 July 2021; Report of the UN Special Rapporteur on the Rights of Persons with Disabilities, UN Doc. A/77/203, 2 September 2022.

15 See first-hand accounts of the impact of conflict on persons with disabilities living in Ukraine, including Olha Telna, “Here's What Ukrainians with Disabilities Face as we Cope with War”, The New Humanitarian, 18 April 2022. See also Human Rights Watch, Persons with Disabilities in the Context of Armed Conflict, 8 June 2021.

16 Committee on the Rights of Persons with Disabilities, Guidelines on Deinstitutionalization, Including in Emergencies, UN Doc CRPD/C/27/3, 9 September 2022; UN Doc. A/76/146, above note 14.

17 Office of the UN High Commissioner for Human Rights, Thematic Study on the Rights of Persons with Disabilities under Article 11 of the Convention on the Rights of Persons with Disabilities, on Situations of Risk and Humanitarian Emergencies, UN Doc. A/HRC/31/30, 39 November 2015.

18 UN Doc. A/76/146, above note 14, para. 34.

19 Human Rights Watch, “It Was Really Hard to Protect Myself’: Impact of the Armed Conflict in Syria on Children with Disabilities, 8 September 2022.

20 Common Article 3.

21 See ICRC Customary Law Study, above note 3, Rule 87, “Definition of Humane Treatment”.

22 Common Article 3; GC III, Art. 16; GC IV, Art. 13; AP I, Art. 75(1); AP II, Art. 4(1).

23 The extent of the CRPD's application will be context-dependent and influenced by factors including who the actors are (State or non-State), for how long and to what extent an actor has control over territory, and the right or rights engaged. For analysis of the application of the CRPD in armed conflict see Alice Priddy, Disability and Armed Conflict, Geneva Academy Briefing No. 14, April 2019, pp. 35–47.

24 CRPD, above note 8, Art. 2.

25 Helen Durham and Gerard Quinn, “Lifting the Cloak of Invisibility: Civilians with Disabilities 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/.

26 See CRPD, above note 8, Arts 5, 11. Note that denial of reasonable accommodation is a form of discrimination in accordance with Article 2 of the CRPD. Reasonable accommodation means “necessary and appropriate modification 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”.

27 AP I, Art. 51(5)(b). As a rule of customary IHL, this rule applies in both international and non-international armed conflicts: see ICRC Customary Law Study, above note 3, Rule 14. Launching an attack that would be excessive in relation to the concrete and direct military advantage anticipated is a war crime: see Rome Statute of the International Criminal Court, 2187 UNTS 90, 17 July 1998 (entered into force 1 July 2002), Art. 8(2)(b)(iv).

28 Gardam, Judith, “Proportionality as a Restraint on the Use of Force”, Australian Yearbook of International Law, Vol. 20, 1999Google Scholar; Watkin, Kenneth, “Assessing Proportionality: Moral Complexity and Legal Rules”, Yearbook of International Humanitarian Law, Vol. 8, 2005CrossRefGoogle Scholar; Clarke, Ben, “Proportionality in Armed Conflicts: A Principle in Need of Clarification?”, Journal of International Humanitarian Legal Studies, Vol. 3, No. 1, 2012CrossRefGoogle Scholar.

29 A. Priddy, above note 23. Feminists have pointed to the fact that proportionality assessments are likely to be highly gendered, with targeting decisions and proportionality assessments taken by military males reflecting their military priorities and biases. See, for example, Gardam, Judith, “Women and the Law of Armed Conflict: Why the Silence?”, International and Comparative Law Quarterly, Vol. 46, No. 1, 1997CrossRefGoogle Scholar.