This post is based on a part of my master’s thesis, “Forgotten Victims of Armed Conflict: Challenges Faced By Persons With Disabilities” in International Human Rights Law at the Faculty of Law, Lund University, defended in 2017. The full thesis (including citations) can be found here: https://lup.lub.lu.se/student-papers/search/publication/8926382
International Human Rights treaties are led by the UN and monitored by its Committees. These treaties are binding for all States. Besides the obligations and the Committee documents based on binding treaties, the UN emphasises the protection of persons with disabilities in case of armed conflict in other ways and through other organs, particularly the Security Council and the Human Rights Council.
The Security Council has mentioned persons with disabilities explicitly in its resolution “The Protection of Civilians in Armed Conflict”, which stresses that the particular impact that armed conflict has on women and children, including as refugees and internally displaced persons, as well as on other civilians who may have specific vulnerabilities including persons with disabilities and older persons, highlighting the protection and assistance needs of all affected civilian populations. The President of the Security Council delivered a statement entitled “Protection of Civilians in Armed Conflict” on February 12th, 2014. The statement reaffirmed that parties to armed conflict have responsibilities for taking all feasible measures to meet and to protect the affected civilians including the specific needs of persons with disabilities.
Additionally, The Office of United Nations High Commissioner (OHCHR) prepared a report to lay out the standards on human rights of persons with disabilities in case of risks, disasters, and humanitarian emergencies, “A 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”. It highlights the particular impact of armed conflict on persons with disabilities and gives recommendations and guidelines to the States. It further stresses that not being able to access humanitarian assistance, sufficient shelter, communication, and means of transportation results in the violation of the human rights of persons with disabilities. The report emphasises that the obligation to give effective warnings before an attack must be accessible, otherwise, this non-inclusive manner would be discrimination based on disability.
The UN also protects civilians, including persons with disabilities, during its operations. UN Security Council Resolution 1270 sent its peacekeepers to Sierra Leone in 1999 to use force to protect civilians “under imminent threat” of harm or death. In 2006, the UN passed Resolution 1672 to commit to take action to protect civilians in armed conflict. In 2010, the UN Department of Peacekeeping Operations (DPKO)/Department of Field Support (DFS) reinforces the protection of civilians as one of the most important outcomes from UN military interventions.
At the UN World Humanitarian Summit in Turkey in 2016, “The Charter on Inclusion of Persons with Disabilities in Humanitarian Action” was endorsed with the participation of State parties; UN agencies; the international civil society community; and global, regional and national organizations of persons with disabilities. The Charter contains the responsibility to include persons with disabilities in all humanitarian efforts and activities, including a statement on the protection of civilians with disabilities during situations of risk and armed conflict. It states that:
We recognize that further progress towards principled and effective humanitarian action will only be realized if humanitarian preparedness and response becomes inclusive of persons with disabilities, in line with the humanitarian principles of humanity and impartiality, and the human rights principles of inherent dignity, equality and non-discrimination.
We recall the obligations of States under international human rights law, in particular the Convention on the Rights of Persons with Disabilities, international refugee law and further stress the obligations of States and all parties to armed conflict under international humanitarian law, including their obligations under the Geneva Conventions of 1949 and the obligations applicable to them under the Additional Protocols thereto of 1977, to respect and protect persons with disabilities and pay attention to their specific needs during armed conflicts.
This Charter, which was developed and written by humanitarian organizations and actors to promote the inclusion of persons with disabilities in humanitarian activities, has a primary focus on providing humanitarian safety, security and relief, during and after armed conflict and disasters. However, the Charter did not include how these recommendations and obligations could be operationalized. Furthermore, while it refers to the existing treaties and policies, it does not offer any new legal analysis or suggestions for practical implementation.
The North Atlantic Treaty Organization (NATO) was created in 1949 by Western countries and all members, except the United States, have signed and ratified the UNCRPD. In this regard, these countries have adopted the UNCRPD and have agreed to legally enforce all of the Articles on the participation of its soldiers in NATO military activities, wars, and conflicts. NATO military forces must comply with the principles and articles of the UNCRPD, including Article 11.
Although NATO has not issued any policy specific to persons with disabilities, NATO has a policy to protect civilians. In July 2016 at the Warsaw Summit, NATO adopted a new policy for the Protection of Civilians and promised that NATO will “identify and implement lessons learned on the protection of civilians, including through a gender-sensitive approach, in all relevant areas of operations and missions, as well as in training and education”.
In addition, the NATO policy states that “the Protection of Civilians (persons, objects and services) includes all efforts taken to avoid, minimize and mitigate the negative effects that might arise from NATO and NATO-led military operations on the civilian population and, when applicable, to protect civilians from conflict-related physical violence or threats of physical violence by other actors, including through the establishment of a safe and secure environment.”
It further states that “NATO and its partner nations, shall, as appropriate, integrate the protection of civilians from the outset of NATO and NATO-led operations, missions and other Council-mandated activities. As such, a PoC perspective should be included in the planning and conduct of operations and missions, training, education and exercises, lessons learned, as well as defense and security-related capacity building activities.”
The Center for Civilians in Conflict issued a press release after NATO’s announcement stating that: “NATO’s new policy sets a strong foundation for the protection of civilians in future operations by capturing the hard-learned lessons over the past 13 years in Afghanistan… This policy, once implemented, will standardize and strengthen NATO's capabilities on civilian protection and harm mitigation, including capabilities to learn from those operations that have harmed civilians and adjust tactics in order to avoid harm. It will allow the Alliance to work more closely with civil society organizations, and to train Allied security forces to better protect civilians on their own. Notably missing from this policy, however, is a standing commitment to make amends for harm done to civilians. We will continue to push at NATO HQ to ensure civilians are recognized and that amends are made for harm suffered.”