Reversing Disability Discrimination in Armed Conflict

An estimated 1.3 billion people, approximately 16 per cent of the world population, live with some form of disability, with substantially higher rates in conflict-affected populations. In armed conflict, the gendered dimension is undeniable, and women and children with disabilities find themselves at the intersection of vulnerable identities and a higher risk of exposure to war-related crimes, sexual violence, trafficking, and enslavement. Indeed, these vulnerabilities impede these groups’ equal enjoyment of International Humanitarian Law (IHL) guarantees, calling into question the existing approach to disability under the current IHL framework. This blog post argues that a human-rights-based approach to women and children with disabilities in armed conflict grounded in the inherent dignity and equal rights of all people offers an alternative framework for a more inclusive, rights-based IHL model.

A Case of Intersecting Vulnerabilities

Women and children have a higher likelihood of becoming disabled due to violence and armed conflict (The World Bank, p. 32). Their mere proximity to conflict theatres markedly increases their mortality risk from non-violent causes. During hostilities, the fragility of women and children with disabilities and impairments becomes increasingly complex and multidimensional, as they are more likely to lack sufficient financial resources to cope with injury and impairment. Furthermore, they often face unique structural barriers impeding access to health care, such as needing male guardianship to access care or only being permitted to receive care from female health workers.

As the primary caregivers of family members with disabilities or impairments, women and children also shoulder increased burdens and exposures. In their caregiving roles, women and girls face heightened levels of intensity with shrinking available resources. They are exposed to many of the same risks to their lives and safety — difficulty fleeing attacks, inaccessible humanitarian assistance, and a lack of access to basic needs and services — as the persons for whom they are caring (Save the Children, p. 28).

Ongoing hostilities lead to newly acquired physical and psychosocial impairments due to conflict-related injuries and a lack of medical care. Protracted conflicts have markedly high rates of disability, such as in Syria, where at least 25 per cent of persons over 12 have a disability. Individuals with newly acquired impairments due to crises are a high-risk population with specific needs further exacerbated by the absence of previous lived experience navigating environmental and societal barriers.

Disability and the Current IHL Framework

IHL has been slow to develop effective measures to address the disproportionate harms experienced by marginalised groups, such as women and children with disabilities. Common Article 3(1) of the Geneva Conventions protects civilians and persons hors de combat “without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria”. Although this language is far from inclusive, it indicates the non-exhaustive scope of the protections afforded and underscores that IHL applies without prejudice to those with physical or mental disorders and disabilities.

Article 8 of Additional Protocol (AP) I  explicitly extended the scope of the legal protection granted to persons with disabilities by including “physical or mental disorder or disability” in the definitions of the terms “wounded” and “sick” in the 1949 Geneva Conventions. Yet, the discourse concerning the rights of persons with disabilities remained static for another three decades until the ratification of the Convention on the Rights of Persons with Disabilities (CRPD).

The adoption of the CRPD and its near-universal ratification by 190 States signals a progressive evolution in the protections accorded to persons with disabilities. The treaty has undoubtedly broadened the international legal frameworks and regulatory landscape for disability inclusion. Furthermore, a gender equality, disability, and social inclusion lens has become an important and transformative means of ensuring inclusive decision-making and programming in peace and security. Nevertheless, IHL remains seemingly uninfluenced by the core principles of the CRPD and other IHRL instruments on disability inclusion, with disability rights being relegated to soft law and political or moral obligations.

“Constant Care” for Intersecting Vulnerabilities

While the well-known principle of “constant care” under Article 57 of AP I calls for precautions to “avoid or minimize incidental civilian losses” to spare the civilian population in all military operations, this is further qualified in that all parties must take “all feasible precautions” to avoid or minimise harm. Such precautions include advance warnings, verifying that military objectives are not illicit, and cancelling attacks with excessive incidental loss of civilian life relative to the anticipated direct military advantage.

In an unpredictable and dynamic conflict environment, “feasible” precautions are often not disability-inclusive. For example, persons with visual impairments may be unable to read advance warnings on leaflets, those with hearing impairments may not hear radio messages, and the evacuation routes recommended may not be accessible to those with physical impairments. In the Gaza conflict, the Israel Defense Forces provided a range of general and specific warnings; however, these have done little to protect the general civilian population from the consequences of bombardments, let alone those with disabilities and impairments.

A Human-Rights-Based Model to Disability: A Non-Derogable Right

The CRPD is considered ground-breaking, not merely because of the expanded protections integrated into IHRL, but because it represents a complete transformation of the philosophical and theoretical approach to understanding and responding to disability. While prior theoretical and social lenses of understanding disability include the charity, medical, and social models (Priddy, p. 18–19), the evolution of a human-rights-based model under the CRPD redirected the gaze on disability. Conceptions of stigmatisation, marginalisation, discrimination, and “otherness” began to be replaced by an emphasis on ableness and the inherent dignity and equal rights of all people, regardless of any disability or impairment.

Furthermore, a crucial feature distinguishing the CRPD from other IHRL is its non-derogation clause [Article 4(4)]. Contrary to the rights codified in the International Covenant on Civil and Political Rights, States Parties cannot suspend their obligations under the CRPD in specific emergency contexts, such as an armed conflict.

The Special Rapporteur on the Rights of Persons with Disabilities further emphasised these non-derogable rights, explaining that the CRPD “applies at all times and does not allow for the derogation or suspension of its provisions during national emergency, foreign occupation, natural disaster or armed conflict. This means that, with respect to the conduct of conflicts, both the Convention and international humanitarian law apply” (para. 10).

While there are known exceptions to the applicability of CRPD in armed conflicts, such as the lack of control of a State Party over its territory, the CRPD purposefully informs and contextualises the scope and terms of protection under IHL (Priddy, p. 37).

From a Disability-Inclusive Approach to a Human-Rights-Based Model of IHL

Specific disability-inclusive protections under IHL should not be viewed in isolation or as alternatives to general protection but as recognition that vulnerable groups face specific risks while still enjoying the inherent protections guaranteed by their fundamental rights as human beings. The “constant care” required for populations with intersecting vulnerabilities, such as women and children with disabilities, is not a privilege granted or a right earned, nor is it conditional on resource availability. A human rights-based approach to disability inclusion stresses the moral agency of persons with disabilities and utilises the CRPD as an interpretative tool and framework for IHL.

The core principles of IHL, including military necessity, proportionality, and distinction, ensure respect for the most basic elements of humanity. Human dignity is preserved despite the violence, upheaval, and unpredictability characterising times of conflict. IHL’s underlying legal framework is relatively flexible and adaptive to new developments and changes in weapons systems, technology, and social change. Accordingly, it has ample space to adopt a more disability-inclusive perspective that considers the interplay of multiple vulnerabilities (e.g., gender, age, disability, etc.) from a human rights perspective.

A human-rights-based approach underscores that persons with disabilities and impairments, like all other human beings, are full subjects of human rights. Furthermore, groups with intersecting vulnerabilities, such as women and children with disabilities, must be protected through a fully encompassing inclusive approach based on “constant care” rather than using “feasibility” to marginalise these populations further. Ultimately, IHL can only be considered to offer its full scope of protection once these vulnerable groups no longer suffer from adverse distinction and are afforded their long-overdue guarantees of humanitarian access.