Introduction
Disability in both periods of the country’s peace and war times tends to be a challenge. In terms of an armed conflict, people with disabilities are radically vulnerable to various risks due to the disruption of essential services and their inability to access better facilities and because of increased chances of experiencing violence. Most IHL missions have failed to address the issues of people with disabilities appropriately. This lacuna in law puts persons with disabilities more at risk than others from the perils of war.
IHL, codified primarily in the Geneva Conventions of 1949 and their Additional Protocols, affords protection to the sick and wounded and to civilians in conflict. It fails, however, to introduce specific provisions addressing individuals with disabilities, leaving their distinct vulnerabilities outside its considerations in situations of conflict. This essay, therefore, considers the implications of the relationship of disability rights with IHL focusing on existing challenges, assessment of legal protections and openings for better protections in the context of armed conflict.
Introduction to International Humanitarian Law and Its Application
International Humanitarian Law is that body of law which governs the conduct of armed conflict and aims at limiting its effects especially on those who do not take part nor no longer continue to take part in the hostilities. The primary sources of International Humanitarian Law are the Geneva Conventions and their Additional Protocols. These conventions are universally accepted and apply both to international and non-international armed conflicts.
The Geneva Conventions of 1949 are composed of four treaties that focus on the protection of individuals from war. The first Geneva Convention oversees the treatment of wounded and sick soldiers on land with regard to armed conflict, the second Geneva Convention covers such care for seafarers, and the third Geneva Convention focuses on the treatment of prisoners of war; finally, the fourth Geneva Convention provides protection for civilians during a time of war. However, these Conventions, offering wide protection to the sick and wounded, have no particular provisions relating to disability.
Geneva Conventions refer to the “wounded” and the “sick”, but it does not specify or protect individuals who may have long-term disabilities or whose conditions may worsen due to the effects of armed conflict. For instance, people with disabilities who have mobility impairments or intellectual impairments/chronic health conditions usually face serious barriers to accessing medical care and other humanitarian services. In such cases, without proper humanitarian legislation protecting people with disabilities, loopholes in humanitarian responses abound.
a. Geneva Conventions and Additional Protocols
The Geneva Conventions ensure minimum humanitarian protection for all, including the humane treatment of persons, non-discrimination, and providing care for the sick and the wounded. Common Article 3 of the Convention, applicable in both international and non-international conflicts, establishes the standard that any persons not participating directly in hostilities- such as civilians and prisoners-must be treated humanely. The rights in this article prohibit violence, mistreatment degrading, and has medical care for the sick and wounded; however, it fails to say anything about the needs of individuals with disabilities.
b. The Additional Protocols to the Geneva Conventions
The Additional Protocols to the Geneva Conventions, adopted in 1977, offer further protection to civilians and fighters in situations of armed conflict. Even though both Protocols I and II list the protection of civilians as a primary concern, neither of them contains any provisions specific to persons with disabilities. As measures to expand protection for civilians in armed conflicts, such protocols overlook the specific requirements of persons with disabilities.
Although the Geneva Conventions and their Protocols offer some relevant protections, they do not consider the special obstacles people with disabilities face in armed conflict situations, thus leaving a large protection gap in international law.
Obstacles to Disability Rights under IHL
Despite the vast protections offered by IHL, people with disabilities face a wide range of issues that arise in the context of conflict. These are found both in the failure to identify persons with disabilities within the frameworks of IHL and in the practical obstacles in gaining access to protection, health care, and humanitarian assistance. The main challenges can be identified as follows:
a. The failure of IHL to contain any disability-specific provisions
Probably the most significant lacuna in IHL is that it makes no specific provision relating to people with disabilities. The Geneva Conventions and their Protocols confer general protection upon the sick and wounded, as well as civilian populations, but are silent on matters pertaining to people with disabilities. There is a vast chasm in protection to be filled in IHL because of the non-inclusion of disability-specific language.
For example, in cases of armed conflict, people with disabilities, especially those with mobility or intellectual impairments, are barred from evacuating or obtaining medical aid and other forms of shelter. The absence of provisions that specially pertain to disabled persons means that many of them are generally not taken into consideration when evacuation plans are being formulated and, hence, their needs cannot be accounted for in any relief operations.
b. Barriers in Accessing Humanitarian Aid
Humanitarian assistance may be very essential to those affected by conflict; however, persons with disabilities experience significant challenges in accessing humanitarian aid. It is, in fact, true that humanitarian organisations such as the United Nations and the International Committee of the Red Cross have achieved incredible milestones in aid delivery to civilians trapped in conflict situations; however, to a large extent, persons with disabilities are left out of these programs.
A common malpractice of relief efforts is its failure to be responsive to the needs of disabled people. For example, food distribution centres are not accessible to those with mobility impairments. Similarly, shelters will not be prepared for people who need special medical equipment or assistive devices. Due to the lack of accessible infrastructure, transportation, and medical care, persons with disabilities cannot be availed with humanitarian aid equal to others.
c. Increased Exposure to Exploitation and Violence
People with disabilities in conflict zones are more likely to be exposed to violence, exploitation, and abuse. In a lot of ways, it is because of the stigma and discrimination heaped upon conflicted persons with disabilities from the affected communities and the humanitarian system, as a whole. Disabled persons, especially women and children, are frequently subjected to sexual attacks, trafficking, and exploitative labor.
It is not uncommon to find that disabled individuals in areas of conflict often cannot voice their needs and also are not usually consulted upon discussions made regarding their safety. This largely puts them at greater risks for violence and exploitation. For example, such individuals may not be safeguarded better by the armed groups or are sent into scenarios which compromise their safety.
The role of international legal frameworks beyond IHL: The CRPD
The IHL still has some weaknesses toward providing proper needs of all persons with disabilities; besides, the other international legal frameworks outside IHL, namely, the United Nations Convention on the Rights of Persons with Disabilities (CRPD), offer additional safeguards to the latter.
a. The relevance of CRPD in armed conflict
The CRPD adopted in 2006 is a landmark treaty that specifically focuses on the rights of persons with disabilities. Notwithstanding that it does not clearly define armed conflict, Article 11 on protection and safety obliges parties to take all appropriate measures to ensure the protection and safety of persons with disabilities in situations of risk, including in armed conflicts. It emphasizes that consideration of persons with disabilities should be incorporated into their emergency preparedness and responses.
Although the CRPD is not an IHL instrument, per se, its principles may be applied in national and international humanitarian frameworks to further stress the protection of persons with disabilities in armed conflict-affected areas.
b. Integration of Principles of the CRPD to IHL
One of the most effective ways of protection persons with disabilities is by incorporation of CRPD principles into existing humanitarian law. The heart of the CRPD centres on the dignity and rights of persons with disabilities, which include the right to accessible humanitarian aid and medical care. It can thus be ensured by making IHL compatible with the CRPD that persons with disabilities are not left behind in any conflict situations around the globe.
For example, a reading of provisions of the CRPD could inform humanitarian organisations on disability-inclusive program design that guarantees people with disabilities access to food, shelter, health care, among other basic services.
Room for Advancement of Disability Rights in IHL
While the current legal frameworks do not fully meet the needs of people with disabilities, there remain various opportunities to enhance the protection of their disability rights in IHL. These opportunities include:
First and foremost, provisions that expand the inclusion of disability-specific protections in IHL would strengthen the positions of persons with disabilities against treatment under IHL. This can be extended by amending the Geneva Conventions and their Additional Protocols to include specific provisions related to disabilities. These would provide clear protections for persons with disabilities in conflict zones through measures that ensure their needs are met as regards care during medical treatment, shelter, and access to humanitarian aid.
Disability-specific language should be incorporated in IHL, which will ensure that the needs of people with disabilities are factored in at each stage of war management-from evacuation planning to rehabilitation after the war.
More inclusive practice that development and humanitarian organisations need to address includes infrastructure that is accessible for persons with disabilities, specialised medical care, accessibility transport that is accessible for persons with mobility aids and assistive devices, and shelters that would facilitate accessibility and appropriateness for persons with mobility aids and assistive devices.
Inclusive humanitarian programs can help prevent exclusion of persons with disabilities from essential aid and services that would be undertaken in the event of armed conflict.
The CRPD is a sound framework protecting people with disabilities, hence it should be included in conflict-related humanitarian efforts. In consolidating such principles within IHL, the international community is generally seen to improve protection for persons with disabilities within conflict regions.
Conclusion
Persons with disabilities are on a higher risk in armed conflicts because gaps in protection under International Humanitarian Law are exceptionally large. Although the Geneva Conventions and its Additional Protocols provide wide-reaching protections both to civilians and combatants, it fails to offer any sort of special provisions for people with disabilities. Such a failure to provide provisions under IHL considering disabilities and prohibition of access to humanitarian aid means that persons with disabilities have an increased likelihood of suffering disproportionate harm in conflict areas.
A critical one that will lay the main framework under which these issues can be addressed is the United Nations Convention on the Rights of Persons with Disabilities. Persons with disabilities will be better protected in armed conflict by the integration of the CRPD principles into IHL as well as enhancing capacity in disability-inclusive humanitarian responses.
Such opportunities are currently available through the adaptation of specific disability provisions in IHL; promotion of inclusive humanitarian aid; and strengthening the role and implementation capacity of the CRPD in conflict settings. In all these efforts, we can ensure that persons with disabilities are not left behind by armed conflict or deprived of protection and dignity.
Citation List:
- Geneva Conventions of 1949, Art. 3, Aug. 12, 1949.
- Common Article 3, Geneva Conventions.
- Geneva Conventions of 1949, Art. 3, Aug. 12, 1949.
- United Nations Convention on the Rights of Persons with Disabilities (CRPD), Art. 11.
- Geneva Conventions of 1949, Art. 3, Aug. 12, 1949.
- Geneva Conventions of 1949, Art. 3, Aug. 12, 1949.
- United Nations Convention on the Rights of Persons with Disabilities (CRPD).