War Crime and No Punishment?

Violence during armed conflict disproportionately affects persons with disabilities. In 2019, the United Nations (UN) Security Council recognized as much in its landmark Resolution 2475, where it expressed "serious concern regarding the disproportionate impact that armed conflict has on persons with disabilities, including abandonment, violence, and lack of access to basic services." As HPOD senior associate Janet E. Lord notes in the recent special issue of the International Review of the Red Cross (IRRC) on persons with disabilities in armed conflict:

Much as armed conflict has been characterized as sexed and gendered, it is likewise ableist, reflective of systems (social, political, legal, environmental, cultural) that accord value to certain typical characteristics of body and mind based on strict standards of appearance, functioning and behaviour.

Thus, for the first time, in Resolution 2475 the Security Council expressly urged "all parties to armed conflict to take measures, in accordance with applicable international law obligations to protect civilians, including those with disabilities." This has helped spur action by humanitarian actors, such as the International Committee of the Red Cross (ICRC), which adopted its transversal "Vision 2030 on Disability" strategy addressing disability inclusion mainstreaming across physical rehabilitation operations, legal and policy advocacy at the intersections of international humanitarian law and the UN Convention on the Rights of Persons with Disabilities (CRPD), and inclusive hiring and employment practices at the ICRC.

The lack of attention paid to the application of international humanitarian law to persons with disabilities has contributed to the perpetuation of the disproportionate effects of armed conflict on the world's largest minority group. In addition to HPOD scholarship, the first two of three planned thematic reports on this topic by the United Nations Special Rapporteur on the rights of persons with disabilities are beginning address this gap. The first report highlighted the extent to which persons with disabilities have largely been invisible within the context of international humanitarian law despite their express inclusion (albeit in outmoded terms) in the Geneva Conventions. The second report addressed obligations during military operation which grew out of a series of extensive, multisectoral, cross-regional consultations, some of which brought together military authorities and organizations of persons with disabilities (OPDs). The third report, due next year, will address the role of persons with disabilities as active participants in peace-building processes. 

One particular gap focused on by Lord, HPOD annual fellow William I. Pons, and HPOD Executive Director Michael Ashley Stein is that of war crimes. Following on their previous exploration of the dearth of crimes against humanity prosecutions involving persons with disabilities for the American Journal of International Law, Pons, Lord, and Stein's contribution to the IRRC point to numerous examples of historic and modern-day war crimes against persons with disabilities that demand coordinated action to redress. They contrast the relative invisibility of persons with disabilities in international humanitarian law with evidence of

targeted killings of individuals with disabilities by the Khmer Rouge in Cambodia, summary execution of persons with disabilities by guerrilla forces in Colombia, and the mass killing of persons with disabilities housed in psychiatrist hospitals and rehabilitation centres during the Rwandan genocide.

Atrocities continue to this day, among them the targeted use of persons with disabilities as suicide bombers in Afghanistan or as human shields in Syria. 

Still, legal mechanisms established to address such violations have often failed to act. Pons, Lord, and Stein point to the the South Sudan Commission, whose numerous reports have alluded to the connection between the violence of armed conflict and physical and mental impairments, while failing address head on the situation of persons with disabilities, or specifically to women and children with disabilities, who are at heightened risk of sexual and gender-based violence in armed conflict. Similarly, the resolutions establishing the Independent International Commission of Inquiry on Ukraine to investigate all alleged violations and abuses of human rights and violations of international humanitarian law related to the armed conflict between Ukraine and the Russian Federation fail to mention the disability dimension of the armed conflict and possible crimes committed against persons with disabilities. 

Nevertheless, there are openings that hint at more disability-inclusive approaches to international humanitarian law are indeed possible. At least in the case of Urkaine, the UN Human Rights Monitoring Mission in Ukraine, established in 2014 to monitor, report and advocate for accountability in the conflict area of eastern Ukraine and the Autonomous Republic of Crimea, lists persons with disabilities as a spotlighted population for reporting and monitoring, placing them alongside women and children. Indeed, inclusion of Article 11 in the UN CRPD provides a clear handhold for disability rights advocates to continue to press for greater recognition of persons with disabilities in international humanitarian law.