Written by Contributing Author William Pons
With “[m]ore than one billion [or 15% of] people in the world living with some form of disability,” as reported by the World Health Organization (WHO), there is little doubt that they are especially affected by armed conflicts. Indeed, it is estimated that the prevalence of disability “is likely to increase to 18-20% in conflict-affected populations.” The international community having recognized the need to enhance the “specific protections afforded . . . [to] persons with disabilities . . . in armed conflict,” has primarily (and correctly) focused on ensuring access/accessibility to vital humanitarian aid for persons with disabilities. Nonetheless, this is only one part of the equation as there also needs to be a renewed emphasis on prosecution of crimes that specifically target persons with disabilities during armed conflict.
One of the fundamental tenets of international humanitarian law (IHL) is that all civilians in armed conflicts must be respected and protected from direct targeting and indiscriminate attacks by the warring factions. As part of this protection, there is recognition that there are certain more vulnerable groups within civilian populations who are “entitled to special respect and protection.” These special protections are best illustrated by Article 16 of Geneva Convention IV and Article 8(a) of Additional Protocol I of the Geneva Conventions, both of which consider the need to care for and protect those civilians who are wounded, sick, disabled, and in need of medical assistance. However, this protection does not simply extend to the providing of humanitarian assistance, but also encompasses the prosecution of acts targeting vulnerable populations as war crimes or crimes against humanity.
Illustrative of the need to protect through the prosecution of crimes was the trial of Nazi doctors and administrators, which laid bare the atrocities perpetrated against vulnerable civilian populations, including persons with disabilities. During the decades of the ad hoc tribunals, jurisprudence emerged from the International Criminal Tribunal for the Former Yugoslavia, International Criminal Tribunal for Rwanda, and the Special Court for Sierra Leone recognizing the vulnerabilities faced by certain sub-groups of civilians during armed conflicts and the need to prosecute crimes targeting those sub-groups. These tribunals developed the necessary legal framework to allow for the prosecution of crimes targeting women and children, where no such framework or crime had previously existed.
In turn, this framework—illustrated by the cases of Jean-Paul Akayesu and Kunarac—elevated the crimes targeting vulnerable sub-groups of civilians to ensure full protection through prosecution. Of particular note was the affirmation by the Appeals Chamber in the Kunarac case that the Trial Chamber had “an inherent discretion to consider the victim's age as an aggravating factor," establishing the importance of an identifying aspect (i.e. gender or age) of the victims in the consideration of the seriousness of a crime. The impact this aggravating factor allowed the Special Court for Sierra Leone (SCSL) to become the first international court to convict individuals of the crime of recruitment and use of child soldiers. The ruling by the SCSL proved the validity of using an aggravating factor to effectively prosecute those crimes targeting vulnerable sub-groups of civilians.
Persons with disabilities are “often the forgotten victims of conflict” and are more likely—like women and children—to be the targets of violence and abuse. Acknowledging that fact, Article 11 of the Convention on the Rights of Persons with Disabilities (CRPD) requires that “State Parties . . . in accordance with their obligations under international law, including international humanitarian law and international human rights law, [take] all the necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including armed conflict.” This obligation established by the CRPD—one of the most widely ratified human rights treaty with 173 ratifications—clearly establishes a legal duty during an armed conflict to protect persons with disabilities and can be argued to simply reiterate the requirements of Articles 16 and 8(a) previously mentioned.
Unfortunately, this has not translated into the prosecution of crimes against persons with disabilities by either international tribunals or domestic courts. While the jurisprudence and legal framework for the consideration of aggravating factors exists, there has been no active movement to continue in the tradition of the ad hoc tribunals to create the ability to prosecute those crimes that target persons with disabilities, a recognized vulnerable sub-group of civilians.
Much in the same way that the aggravating factor of a victim’s age or gender can impact the prosecution of a crime, so too should the fact that a victim is a person with a disability. This recognition of disability as an aggravating factor will utilize the already existing international criminal legal framework—established by the ad hoc tribunals—and subsequent prosecutions will follow in the spirit and principles of the CRPD, as well as the Geneva Conventions. Ultimately, for the international community to provide full protection for persons with disabilities during armed conflict there must be—in addition to access to humanitarian aid—prosecutions of those crimes that target persons with disabilities.
Published on Relief Web on May 11, 2017.