INTERNATIONAL NORMS
AND STANDARDS RELATING TO DISABILITY
Part II. International Human Rights System. 11/11  
10. Human Rights and Humanitarian Law
10.1 Persons with disabilities and armed conflicts
The evolution of international law related to the protection of war victims and to the conduct of war has been strongly affected by the development of human rights protection after the Second World War. The adoption of important international instruments in the field of human rights contributed to affirm the idea that everyone is entitled to the enjoyment of human rights, whether in times of peace or war. In times of peace human rights are the fundamental principles for the protection of all persons in all contexts, but the different circumstances during wartime require special protection for the individual-civilians as well as combatants.
Today, the impact of armed conflicts on civilians is one of the major causes of disability. The nature and extent of the harm suffered by victims of a situation of an armed conflict depends to a large extent on the combat methods used and the use of certain particularly harmful weapons. Often violations of humanitarian law, such as ill treatment of prisoners of war or civilians and illegal military operations, lead to an increased number of disabilities among the population, and especially permanent disabilities.
The United Nations Security Council, expressing its belief in the connection between holding individuals responsible for international crimes and future prevention, established the Ad hoc International Criminal Tribunals for the Former Yugoslavia and Rwanda, as well as the permanent International Criminal Court. The United Nations Voluntary Fund for Victims of Torture was established to meet the immediate medical, psychological, and financial needs of survivors. This Fund redistributes voluntary contributions of donor governments primarily to nongovernmental programs providing direct medical and psychological treatment and economic, social and legal assistance to survivors of torture.
10.2 Human Rights in Times of Emergency
The enjoyment of some human rights may be restricted during times of war or public emergency. The international instruments on human rights define a state of emergency as a "…public emergency which threatens the life of a nation.", like article 4 of the International Covenant on Civil and Political Rights. Accordingly, war is the greatest public emergency; the emergency must be actual, affect the whole population and the threat must be to the very existence of the nation. The declaration of emergency must also be a last resort and a temporary measure.
Three of the most important human rights conventions, the International Covenant on Civil and Political Rights, the European Convention on Human Rights and the American Convention on Human Rights, contain derogation clauses with specific standards on human rights in states of emergencies, e.g. Article 4 of the International Covenant on Civil and Political Rights allows States to take measures temporarily derogating from some of their obligations under the Covenant "…in times of public emergency which threatens the life of a nation." but only to the "…exigencies of the situation."
Certain rights have been considered so important that they are non-derogable. In the three conventions there exist four common non-derogable rights. These are the right to life, the right to be free from torture and other inhumane or degrading treatment or punishment, the right to be free from slavery or servitude and the right to be free from retroactive application of penal laws. These rights are also known as peremptory norms of international law or jus cogens norms.
The basic object of both human rights law and humanitarian law are to extend protection to the human person in all circumstances and in all types of conflicts. The most relevant of the laws of war as far as human rights are concerned are the four Geneva Conventions and the two Additional Protocols. The Geneva Conventions and Protocols try specifically to protect all human beings affected by armed conflict, especially those who are not, or no longer, directly engaged in hostilities. These persons hors de combat are the wounded and sick, shipwrecked, prisoners of war and civilians. The Conventions also contain specific provisions covering the four common non-derogable rights of human rights treaties. Accordingly, the rights protected in the Geneva Conventions and Protocols overlap to a certain extent with those included in the human rights treaties.
The 1863 Lieber Code and the first Geneva Convention of 1864 can be regarded as the foundation of international humanitarian law. A need to broaden the scope of the Geneva Convention and to take the changing character of warfare into account, soon resulted in the adoption of several international conventions. In the aftermath of the Second World War, the international community wanted to update international humanitarian law to the changing character of warfare. New conventions were drawn up covering, respectively, the sick and the wounded on land (First Convention), wounded, sick and shipwrecked members of the armed forces at sea (Second Convention), prisoners of war (Third Convention) and civilian victims (Fourth Convention). The four Geneva Conventions remain in force today, and are considered to reflect customary law, but new forms of armed conflicts called for further action. Two Additional Protocols to the 194 9 Conventions were adopted in 1977. Additional Protocol I concerns the victims of international conflicts and the Second Protocol concerns the victims of internal conflicts. The vast majority of states have adopted the above-mentioned conventions.
10.3 Civilians and Persons Hors de Combat
The four Geneva Conventions of 1949 established the principle of international humanitarian law that a distinction should be made between combatants and civilians, who take no active part in hostilities. This customary rule of non-combatant immunity is also codified in the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1). Article 51 contains specific rules for the protection of civilians. Civilians shall enjoy general and specific protection from military operations and indiscriminate attacks. The provisions of Protocol I, relating to civilian protection, are of great significance because they establish concrete rules; non-combatant immunity is no longer an abstract formulation.
The Common Article 3 of the Third and Fourth Geneva Conventions of 1949, relative to the treatment of Prisoners of War and the Protection
of Civilian Persons in Times of War, and customary law also in international conflicts, provides that "…persons taking no active
part in the hostilities, including members of the armed forces who have laid down their arms and those placed hors de combat by sickness,
wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any distinction founded on race, colour,
religion or faith, sex, birth or wealth, or any other similar criteria."
The same article prohibits violence to life and person, particularly
murder,
, cruel treatment or torture, humiliating and degrading
treatment.
10.4 Special Protection for the Wounded and Sick
Article 12 of the Geneva Convention of 1864 states that "…Members of the armed forces and other persons (…) who are wounded or sick, shall be respected and protected in all circumstances. They shall be treated humanely and cared for by the Party to the conflict in whose power they may be, without any adverse distinction founded on sex, race, nationality, religion, political opinions or any other similar criteria. Any attempts upon their lives, or violence to their persons, shall be strictly prohibited; in particular, they shall not be murdered or exterminated, subjected to torture or to biological experiments…". The Parties to the Geneva Conventions also have to search for and collect the wounded and sick and to ensure them protection and care (article 15).
In Common Article 3 of the Third and Fourth Geneva Conventions of 1949, relative to the treatment of Prisoners of War and the Protection of Civilian Persons in Times of War special protection is given to wounded and sick persons in an internal conflict. The article states that "…the wounded and sick shall be collected and cared for (…) they shall be treated humanely and cared for by the Party to the conflict in whose power they may be, without any adverse distinction founded on sex, race, nationality, religion, political opinions or any other similar criteria." The parties to the Conventions also have to search for and collect the wounded and sick and to ensure them protection and care (article 15).
The definition of wounded and sick for the purpose of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1) is "…persons, whether military or civilians, who, because of trauma, disease or other physical or mental disorder or disability, are in need of medical assistance or care and who refrain from any act of hostility." The wounded and the sick shall be respected and protected. They shall be treated humanely in all circumstances, and they shall receive the medical care they require. It is prohibited to carry out physical mutilations, medical experiments or removal of tissue or organs, if the medical state of the wounded does not require it.
If the civilians and combatants are not protected by the Protocol or by other international agreements, they remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of the public conscience (article 1).
10.5 Victims of Land Mines and Armed Conflicts
Anti-personnel land mines are primarily designed to cause severe injury to a person. Mines are also deployed to hinder access or usage of farmlands, roads, waterways and other public utilities. It is estimated that over 2,000 people are killed or injured by mine explosions every month, most of the victims are civilians after the hostilities have ended, especially women and children. The victims of mine explosions, who survive, suffer the loss of one or more limbs in almost all cases. This is why anti-personnel landmines are a major cause of disability. It is estimated that more than 110 million active mines are scattered in 70 countries and since a land mine can remain active up to 50 years after it has been planted, one can speak of a global crisis that requires the attention of the international community.
The use of anti-personnel land mines is regulated under international humanitarian law both by custom and by treaties. The existing customary and treaty law was not able to give protection in an effective way, and a total ban on anti-personnel land mines enjoyed widespread support of the international community. The efforts of the United Nations, governments and non-governmental organisations to ban landmines resulted in the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and Their Destruction. The Parties to the Convention undertake never under any circumstances to use anti-personnel mines or to develop, produce or otherwise acquire anti-personnel mines (article 1). Each Party also undertakes to destroy anti-personnel mines. To ensure that the substantive obligations of the Convention become reality in practice, the Convention contains a provision on national implementation measures. Each State Party shall take all appropriate legal, administrative and other measures, including the imposition of penal sanctions, to prevent and suppress any activity prohibited under the Convention (article 9). The Convention also provides for on-site inspections if a Party is suspected of breaching its obligations under the Convention. Under the Convention, each State Party in a position to do so has a duty to provide assistance to mine victims. In addition to care and rehabilitation, social and economic reintegration should also be provided (article 6).
Such assistance may be provided through the United Nations System, the International Committee of the Red Cross (ICRC) or different organisations.
A State Party also has the right to seek assistance from others in its efforts to care for its mine victims (article 6).
The Convention is an important step in banning this method of warfare, which causes injury and unnecessary suffering. However, the problem is far from being resolved. The level of ratification is still low and with millions of mines already planted, civilians will continue to be killed or injured. National societies play an important role in ensuring that the provisions of the Convention are implemented and respected at the national level. Through discussions and co-operation with their Governments, Parties can work to promote adoption of effective national legislation or other administrative measures in order to ensure that the objectives of the Convention are achieved.
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