Updated: Apr 19, 2021
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 Humanitarian Law
International humanitarian law (IHL) establishes rules for all civilians, including persons with disabilities, and also sets out some specific rights and obligations for specific categories of persons. Persons with disabilities fall within these categories. States and all parties to armed conflicts have obligations to protect persons with disabilities in situations of risk. Furthermore, states are required to consider the specific needs of persons with disabilities.
Therefore, the protection of persons with disabilities is referred to in customary IHL and in Geneva Convention (GC) IV. According to customary IHL, as stated by the International Committee of the Red Cross (ICRC), “The elderly, disabled and infirm affected by armed conflict are entitled to special respect and protection.”
As per Article 16 (2) of GC IV Relative to the Protection of Civilian Persons in Time of War, “the wounded and sick, as well as the infirm, and expectant mothers, shall be the object of particular protection and respect.” The infirm have a special status as they are “in a state of weakness which demands special consideration.” The commentary specifies that the term “respect” refers to “spare, not to attack” and the term “protect” means "to come to someone's defense, to give help and support”. The commentary further states that the protection of the infirm covers their protection against pillage, ill-treatment, and preventing the dead from being robbed. As persons with disabilities are also in a vulnerable situation, they are also considered infirm.
As per Article 21, convoys of vehicles or hospital trains on land, or specially provided vessels on the sea, carrying the infirm and civilian hospitals shall be respected. This article promotes the rights of persons with disabilities to receive medical treatment. Persons with disabilities should also be priorities in case of evacuations from besieged or encircled areas according to Article 17.
Article 30 of GC III Relative to the Treatment of Prisoners of War states that “Special facilities shall be afforded for the care to be given to the disabled, in particular to the blind, and for their rehabilitation, pending repatriation.”
The ICRC adopted a Plan of Action in 1999, which states that all parties to an armed conflict should take protective measures for persons with special vulnerabilities, such as persons with disabilities, and should take effective measures to guarantee that every attempt is made to protect, respect and save the lives of civilians.
International Human Rights Law
Human rights are rights inherent to all human beings regardless of nationality, sex, color, religion, language, origin, place of residence or any other, status. Fundamental rights are universal, inalienable, interdependent, and indivisible. International human rights law (IHRL) obliges states to respect, protect, and fulfil their human rights obligations. Many of the human rights enshrined in the Universal Declaration of Human Rights are accepted as part of customary international law. Among the most widely accepted human rights treaties are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).
According to the International Court of Justice, the protections guaranteed by human rights conventions, including social, economic, and cultural rights, do not cease in case of armed conflict. On the question of the relationship between IHL and IHRL, it stated that there can be three possible situations during armed conflict: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. The Human Rights Council also acknowledged that IHRL and IHL are mutually reinforcing and complementary. It also considered that human rights law should be protected equally and should continue to apply in armed conflict.
Furthermore, article 4 (2) of the ICCPR stipulates non-derogable rights. These are Article 6 (right to life), 7 (prohibition of torture), 8(1) and 8(2) (prohibition of slavery and servitude), 11 (prohibition of imprisonment for debt), 15 (not being held for an offence that was not a crime at the time it was committed), 16 (right to recognition as a person before the law), and 18 (freedom of thought, conscience, and religion).
In this regard, IHRL provides protection to civilians, and as a result, considering that persons with disabilities are civilians, it can be assumed that IHRL would protect them any time during the armed conflict.
Article 11 of the Convention on the Rights of Persons with Disabilities (CRPD), adopted in 2006, stipulates the situations of risk and humanitarian emergencies by stating that, “States Parties shall take, in accordance with their obligations under international law, including international humanitarian law and international human rights law, all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters.” It also further states in the preamble that, “human rights instruments are indispensable for the full protection of persons with disabilities, in particular during armed conflicts.”
The CRPD Committee emphasised the obligation to guarantee that all emergency-related information must be accessible to persons with different types of disabilities, such as using sign language for a deaf person.
The Convention on the Rights of the Child (CRC), effective from 1990, provides further protection for children with disabilities. Article 38 (4) of the CRC stipulates that “States Parties shall take all feasible measures to ensure protection and care of children who are affected by an armed conflict.” Article 23 of the CRC regulates the rights of children with disabilities. It states that “a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance”.
The Committee on the Rights of the Child also enshrined that state parties are obliged to ensure access to sufficient health and social services to children with disabilities affected by armed conflict. The Committee on the Rights of Persons with Disabilities (CRPD Committee) has urged that states should ensure the safety of all children with disabilities and prioritize these children in conflict-affected areas.
In this regard, the Articles of ICCPR and ECSCR, especially the prohibition of torture, the right to life, and the prohibition of slavery, provide human rights protection to persons with disabilities. Furthermore, the CRPD obliges States to give special attention to ensure the protection and safety of persons with disabilities.