Making every life count : ensuring equality and protection for persons with disabilities in armed conflicts
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Monash university law review, Vol. 40, no. 1, 2014, p. 148-174
Ben Saul... [et al.]
This paper considers the implications of article 11 of the Convention on the Rights of Persons with Disabilities (CRPD), which obliges states parties to take 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 natural disasters. Unusually among human rights conventions, the CRPD explicitly invokes international humanitarian law as a source of states’ obligations. This paper focuses on one type of emergency situation, armed conflict. It argues that the CRPD reorients and transforms the protections offered through international humanitarian law by casting them in the language of ‘rights’, advancing a ‘social’ model of disability which conceptualises persons with disabilities as rights-bearing agents, rather than as subjects in need of medical attention, welfare and passive protection. The paper also contends that the CRPD approaches disability as a context-specific phenomenon that is the result of society and environment as much as the product of a personal condition. After analysing various rules of international humanitarian law — including specialised protections for the ‘disabled and infirm’, protections for the sick and wounded, fundamental guarantees of human treatment, restrictions on weapons during armed conflict, and the prohibition on discrimination — the paper concludes that article 11 makes a profoundly important and novel contribution to both IHL and international human rights law as these affect persons with disabilities.