Strengthening International Humanitarian Legal Protections for Marginalized Groups

On November 2nd, HPOD hosted a virtual panel on “Strengthening International Humanitarian Legal Protections for Marginalized Groups Accounting for Children, Women, and Persons with Disabilities.” Co-sponsored by the Harvard Humanitarian Initiative, the Harvard Law School Human Rights Program, and the Harvard Law School Program on International Law and Armed Conflict (PILAC), the panel took stock of recent developments that seek to enhance the protection of at-risk populations under international humanitarian law (IHL), so that researchers and other actors working across sectors can cooperate to better account for the harms experienced by otherwise “invisible” groups, as well as to raise awareness of ways to strengthen IHL regimes to ensure all groups receive effective protections.

HPOD’s Executive Director, Professor Michael Ashley Stein, introduced the event, and HPOD Senior Associate Janet E. Lord, who recently began working as executive director of the University of Baltimore School of Law’s Center for International and Comparative Law, moderated the discussion. She reminded the audience of how international legal regimes are characterized by fragmentation, as divergent bodies of law have emerged over time, including IHL, international refugee law, international criminal law, and international human rights law. While fragmented legal regimes present harmonization challenges in situations, such as armed conflict, where various protections may apply, fragmentation also presents opportunities for dynamism and intersectionality. Article 11 of the UN Convention on the Rights of Persons with Disabilities (CRPD) provides one such example for strengthening IHL protections for persons with disabilities, insofar as it clarifies that States Parties’ obligations under this human rights treaty are complementary and co-applicable with IHL norms in situations of armed conflict, humanitarian emergencies, natural disasters, and other situations of risk. 

Dustin A. Lewis, Research Director at PILAC, affirmed the opportunity for human rights treaty bodies to engage with IHL protections and other international legal regimes beyond human rights. One reason that treaty bodies’ engagement with IHL may prove instrumental to strengthening their effective application is that compared to IHL, international refugee law, and international criminal law, human rights norms are accompanied by “thicker” layers of accountability institutions. While there remains much debate as to whether greater engagement with these norms by human rights treaty bodies will in fact lead to enhanced protections for populations affected by armed conflict, including at-risk groups, in the case of persons with disabilities, there are certainly meaningful opportunities for treaty bodies to apply human rights-based frames to the charity and medical approaches to disability reflected in, for example, the Geneva Conventions and additional protocols.

Jillian Rafferty, Managing Editor at the International Review of the Red Cross, the world’s oldest international law journal, highlighted the International Committee of the Red Cross’s (ICRC) efforts to bring human rights-based frames to bear on the application of IHL in its own work with regard to at-risk groups. For example, the ICRC has higlighted the differentiated effects of armed conflict on women and girls and called for a recommitment to more equitable participation in legal frameworks. Its Commentaries project produces constantly and iteratively updated interpretations of IHL protections in light of emerging understandings of gendered impacts of armed conflict. With regard to children, the ICRC has sought to promote the complementarity of IHL protections and human rights norms through recent thematic reports, Children in War and Childhood in Rubble: The Humanitarian Consequences of Urban Warfare for Children. One specific way that States can better comply with their IHL obligations towards children, for example, is to accord schools greater importance in their proportionality assessments, given the outsized effects that children’s access to education has on other life outcomes. More recently, the ICRC has continued these efforts with regard to persons with disabilities through the Vision 2030 strategy for ensuring its operations are inclusive of persons with disabilities and a special edition of the International Review of the Red Cross focused on persons with disabilities.

Benyam Dawit Mezmur, who currently serves as a member of the United Nations Committee on the Rights of the Child, spoke to the Committee’s efforts to reinforce States’ understandings of their IHL obligations by seizing on opportunities presented by the text of the Convention on the Rights of the Child (CRC) itself. Similarly to CRPD Article 11, CRC Article 38 expressly obligates States Parties to the CRC to “to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child.” The African Charter on the Rights and Welfare of the Child presents similar opportunities. Gradually, engagement across fragmented bodies of international law is having an effect. For example, the Convention on Cluster Munitions expressly recognizes the CRPD and the importance of States Parties guaranteeing persons with disabilities human rights recognized under that treaty in their efforts to reduce the potential humanitarian impact of these weapons on civilians both during and long after a conflict ends. In addition to promoting the use of updated terminology about children with disabilities when States Parties consider their obligations under IHL norms that conceptualize persons with disabilities narrowly in terms of their impairments, the Committee can play a role in remedying the information gap with regard to how armed conflicts affect children with disabilities. Currently, many States Parties report to the Committee how many children are injured as a result of armed conflicts, but with few exceptions, they do not go one step further to identify how many disabilities result from these injuries.

Jocelyn Kelly, Director for Harvard Humanitarian Initiative’s (HHI) Gender, Rights and Resilience (GR2) program, reflected on the decades of advocacy that have led to strengthened IHL protections in light of the disparate gendered impacts of armed conflicts. Whereas thirty years ago, violence against women was widely considered “invisible, inevitable, and inconsequential” in the IHL community, a confluence of advocacy, research, and policy reform efforts have catalyzed a sea change. Particularly, Kelly highlighted five good practices that may provide a roadmap for other at-risk groups seeking greater protections and visibility in situations of risk: 1) striving for recognition that humanitarian responses must be inclusive and intersectional in order to be effective; 2) making the systems and processes for designing and implementing humanitarian responses more inclusive and equitable for at-risk groups; 3) ensuring that accountability to affected populations is a core aspect of crisis response; 4) advocating for laws and policies to be evidence-based; and 5) coordinating with others in a sustainable manner to build the evidentiary bases where needed in order to inform the design of effective laws and policies.

Finally, William Pons, an HPOD annual fellow and Senior Legal Advisor to the former UN Special Rapporteur on Persons with Disabilities Gerard Quinn, noted that the outmoded language contained in some IHL protections is stripped away, the substance of many of these provisions is to establish a special duty by States to specific populations, including persons with disabilities. For example, while Article 16 of the Fourth Geneva Convention on the Protection of Civilian Persons in Times of War refers to the “wounded and sick, as well as the infirm,” it specifies that they singularly “shall be the object of particular protection and respect.” Despite efforts by organizations like the ICRC to ensure that IHL norms and the CRPD are complementary and co-applicable, in practice military and peacekeeping operations need to do more to implement such obligations, such as by ensuring their rules of engagement reflect that persons with disabilities are less likely to flee conflict areas and thus are more susceptible to IHL violations including targeted killings, use as human shields, sexual violence, and enforced disappearances. Pons concluded by observing that protecting persons with disabilities, however they were described at the time, was viewed as a core IHL remit, as evidenced by the Nuremberg Trials, where Nazi doctors were prosecuted for crimes against humanity for their role in the notorious T4 program that specifically targeted children and adults with disabilities for starvation and sterilization. Somehow, this early history of recognizing persons with disabilities as objects of IHL protection has all but disappeared.

Thus, concerted advocacy is necessary to ensure that persons with disabilities, as well as other often overlooked at-risk groups such as indigenous persons, LGBTI persons, and older persons, do not remain forgotten from efforts to update and operationalize IHL protections. For example, as Lord, Pons, and Stein urged earlier this year, States participating in the process to develop a treaty on crimes against humanity should “should seize the opportunity to create a more progressive legal instrument that reflects developments in both international human rights law and dynamics at the U.N. Security Council.” Specifically, rather than copying and pasting the definition of crimes against humanity from the Rome Statute of the International Criminal Court, States should expressly include “disability” as a grounds of persecution, as UN special mandate holders and other independent experts have previously called for the International Law Commission to do in developing the draft currently before the UN’s Sixth Committee. Inclusion of disability in the definition can have a meaningful impact in how this treaty will ultimately be enforced. For example, although the Office of the Prosecutor for the International Criminal Court has utilized the language of Articles 7 and 21 of the Rome Statute to develop specific policies on gender persecution, gender-based crimes, and children, it so far has not done so for persons with disabilities.

More broadly, as signaled by HPOD in its June 2023 side event at the 16th annual Convention of States Parties to the CRPD, 2024 will mark the five-year anniversary of the UN Security Council’s adoption of Resolution 2475, affirming the specific obligations and protections owed to persons with disabilities during armed conflict. For example, in a follow-on resolution, governments that were instrumental in supporting this resolution, including Poland, the United Kingdom, Luxembourg, Finland, Canada and the United States among others, should seek to broaden the growing support for addressing the protection of persons with disabilities in all situations of risk. Failing to seize such opportunities for intersectionality will only weaken already fragmented international legal regimes designed to protect at-risk groups during situations of risk.

Event Co-Sponsors:

---