December 3 marks International Day of Persons with Disabilities. Also being celebrated this December are the seventy-fifth anniversaries of the Universal Declaration of Human Rights, the foundational human rights instrument of modern international human rights law adopted on December 9, 1948, and the Genocide Convention, the first human rights treaty adopted by the UN General Assembly on December 9, 1948. These two human rights documents came in the wake of World War II and the Holocaust when hundreds of thousands of persons with disabilities were exterminated in what the Nuremberg Doctors’ Trial would deem a crime against humanity.
Atop the agenda of the international disability community this year is the need to elevate the protection of persons with disabilities in situations of risk, along the lines of the well-established agendas on Women, Peace, and Security, Youth Peace, and Security and Children Affected by Armed Conflict. An additional need is for the protection of persons with disabilities to become an integral part of those agendas, alongside its recognition as a freestanding pillar of the UN’s peace and security agenda in its own right.
The adoption in 2006 of the Convention on the Rights of Persons with Disabilities (Convention) is the starting point for redressing the disability void in the protection agenda of the United Nations and its member states. According to Article 11 of the Convention,
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.
The real power of a disability rights lens is the application of protective measures that address the status of persons with disabilities in various risk situations while acknowledging – and avoiding – the stereotypes sustained by both traditional models of disability and the terminology of international rules on protection. The protection of persons with disabilities under these various regimes—the rules of international humanitarian law, international refugee law, international criminal law among others—requires achieving complementarity between disability rights rules and these other standards. The Convention can and should help address disability rights protection in the various domains of international law that have rendered persons with disabilities either invisible or pejoratively passive and hapless.
Progress to Date
There is much in the framework of the Convention that can and should be excavated to advance protection of persons with disabilities all along the peace and conflict continuum. This is beginning to happen in real and tangible ways.
One year following the adoption of the Convention on the Rights of Persons with Disability, the UN secretary general reported on the disproportionate impact of armed conflict on persons with disabilities and the lack of attention to the specific risks that conflicts posed to them. Slowly emerging in the aftermath of that report is the evidence base to support that claim, for instance in reporting by Amnesty International, Human Rights Watch, and Disability Rights International.
Also emergent is scholarship establishing the clear connection between the Convention and the regimes of international law that ought to be harnessed to shore up the protection of persons with disabilities in situations of risk. This includes the published works of the Harvard Law School Project on Disability on the need for better protection of persons with disabilities in conflict and its aftermath and better accountability for harms perpetrated against them. Also important is the three-part reporting by the UN Special Rapporteur on the Rights of Persons with Disabilities laying out the protection agenda along the peace and conflict continuum and submitted to the UN General Assembly.
In 2019, more than a decade following the secretary general’s recognition of the link between armed conflict and its impact on persons with disabilities, in the secretary-general annual report on the protection of civilians in armed conflict, was the call for the protection and assistance to persons with disabilities impacted by conflict. This in turn led to the unanimous adoption by the UN Security Council of Resolution 2475 in June 2019, which affirms the specific obligations and protections owed to persons with disabilities during armed conflict.
What Needs to be Done
Persons with disabilities who are living in, or attempting to flee from, conflict zones face numerous threats to their physical and mental health and well-being, further aggravating pre-existing disability or leading to secondary disability. Conflict also increases the prevalence of disability within the population through newly acquired disabilities for combatants and civilians alike. At the same time, persons with disabilities are “among the most excluded groups” in peacebuilding.
Several actions can help advance the Disability, Peace and Security agenda.
First, in recognition of the well-documented history of atrocities targeting persons with disabilities on the basis of their disability, the current process to draft a Convention on Crimes against Humanity must, in its definition of such crimes, directly recognize “disability” as an identifiable group or collectivity against whom persecution could be considered a crime against humanity. Recognition that crimes against humanity may be committed on “political, racial, national, ethnic, cultural, religious, [and] gender” grounds while failing altogether to include “disability” ignores both historical jurisprudence and legal obligations in the Convention on the Rights of Persons with Disabilities. In fact, such omission ignores the jurisprudential legacy of Nuremberg establishing that persecution on the basis of disability is a crime against humanity.
Second, persons with disabilities fleeing disability-based persecution must receive a fair and accessible process to make their claims. The Office of the High Commissioner for Refugees has failed persons with disabilities in not issuing guidance on disability asylum for decision makers along the lines of those it has issued to help guide gender-based persecution, for instance. Given that 18 years have elapsed since the adoption of the CRPD by the UN General Assembly and it has been nearly five years since the adoption of the UN-wide Disability Inclusion Strategy, these gaps are both notable and unacceptable.
A third action is to promote the five-year anniversary this coming June of the adoption of UN Security Council resolution 2475. Supporting governments, including Poland, the United Kingdom, Luxembourg, Finland, Canada and the United States among others, should in the five-year follow-on resolution support its strengthening and highlight specific entry points for addressing the protection of persons with disabilities in all situations of risk, including armed conflict.