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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.
Article 11 of the Convention on the Rights of Persons with Disabilities requires that the rights and protections of the Convention not be derogated or suspended during “situations of risk, including situations of armed conflict”. Even so, persons with disabilities are still often the group most disproportionately impacted by armed conflict. This reality is not due to a failing of international humanitarian law to protect and consider persons with disabilities; rather, it is due to a failure to mainstream disability into the application of and approach to existing protection frameworks. Impactful mainstreaming of disability necessitates the inclusion of all relevant mutually reinforcing legal frameworks and traditions. By examining four main areas – military operations, evacuation, humanitarian assistance, and long-term assistance and services – this paper argues that the protection of persons with disabilities in armed conflict, and specifically within Muslim contexts, will be enhanced through the inclusion and consideration of Islamic law.
Persons with disabilities have historically been subjected to egregious human rights violations. Yet despite well-documented and widespread harms, one billion persons with disabilities remain largely neglected by the international laws, legal processes, and institutions that seek to redress those violations, including crimes against humanity (CAH). This Article argues for the propriety of prosecuting egregious and systemic human rights violations against persons with disabilities as a CAH, and, in addition, asserts the necessity of ensuring the accessibility of international criminal processes to those individuals. The UN Security Council's recent acknowledgement of the enhanced risk that persons with disabilities experience during armed conflict, the growing evidence of widespread human rights violations against them, and an ongoing effort to forge a UN convention on the prevention and punishment of CAH make these arguments especially timely.
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