Armed conflicts have a disproportionate impact on persons with disabilities. Those confined in institutions and requiring vital support services are particularly vulnerable to be left behind. The International Committee of the Red Cross plays a crucial role in their protection.
Transcript
Gerard Quinn: When I took up the post as SR I said I wanted to connect the disability rights agenda to broader challenges facing humanity.
Sadly, one of them has to do with conflicts. Some of the causes of conflicts have deep roots in inequality – no stranger to persons with disabilities right around the world. And armed conflicts tend to impact civilian populations extremely negatively. Persons with disabilities – due to the vulnerable situations they find themselves in as a result of systemic inequality – are often disproportionately affected. The inter-generational effects of the trauma of war are palpable.
Those living in institutions and requiring vital support services are probably among the most vulnerable to violence and to being left behind.
Thankfully, we do have an elaborate filigree of international law protecting civilians in armed conflict – particularly the 4th Geneva Convention of 1949. Although it does include persons with disabilities – albeit as the ‘sick and inform, nothing much was made of it in a disability context until relatively recently. This was both a surprise and a disappointement.
To discuss this, I am joined by Alex Breitegger, Legal adviser at the International Committee of the Red Cross. The ICRC in Geneva is the independent body charged with overseeing the implementation of the 4th Geneva Convention amongst other things and is widely trusted by states on account of its impartiality.
Since 2011, Alex works at the ICRC focusing on the legal protection of health care in situations of danger. He has written extensively about the connections between international humanitarian law like the Geneva conventions and international human rights law like the UN CRPD, and the protection of persons with disabilities during conflict.
Alex, you are very welcome…
Alexander Breitegger: Many thanks, Gerard, and it's a great honour and pleasure to be here with you.
GQ: We usually start by asking guests just to say a few words about themselves, maybe your early life, your education, the influences that guided your career path and what led you to where you are today. So over to you, Alex.
AB: Okay, so to start off, I'm Austrian. I was born and raised in Vienna, which is, of course, one of the cities that are readily associated with history, with culture, but also, in terms of an international law perspective, with international law treaties. If one only thinks about certain international treaties with Vienna in the name, like the Vienna Convention on the Law of Treaties, as well as it's, of course, one of the seats of the United Nations. And while I started studying law a little bit by default, experiences that notched me in the direction of specializing in IHL and so international humanitarian law and international human rights law included an international law moot court competition during my undergraduate studies, and a postgraduate European Master's of Human Rights and Democratization in Venice and Seville. And I then started as a young researcher and lecturer at the University of Vienna in the section for International Law and International Relations, where I set up a course I taught on IHL. And besides, I also worked for Cluster Munition Coalition Austria. We were actually two people - one seasoned campaigner and I -, on the Austrian NGO Campaign Against Cluster Munitions, which also led me internationally to witness the adoption in 2008 of the Convention on Cluster Munitions in Dublin.
So that treaty has a strong component of requiring inclusion of persons who have acquired an impairment because of the prior use of these weapons. And this part of the treaty was directly influenced by the CRPD (Committee on the Rights of Persons with Disabilities), which had just entered into force at the time. And that process honestly left a lasting impression on me because I saw the power of agency firsthand, where especially the contribution from civil society, including persons with disabilities, as well as organisations such as the International Committee of the Red Cross, brought a human face to these disarmament negotiations.
So I joined the ICRC, as you said, in 2011, where I was lucky enough to be among a number of new recruits in the legal division at headquarters in Geneva at the time.
And today I'm very happy to work with you and your great team, the International Disability Alliance and others externally on increasing visibility of civilians with disabilities in IHL and internally within the ICRC as part of the fantastic legal team as well, as a team of facilitators of the ICRC's Vision 2030 on disability. And finally, not only as a professional, I'm deeply committed to disability inclusion, but also personally, as a father of three children, one of whom is a girl with a developmental disability and one a boy with autism. So here I am.
GQ: And people hear a lot of terminology these days like international humanitarian law - IHL. Could you just unzip that or decode it for us and maybe connect it to the broader human rights realm?
AB: Yes, of course. International Humanitarian Law is the specific legal regime of international law that tries to bring some modicum of humanity to what is otherwise an inhuman affair, namely wars. So we have to be clear from the outset, international humanitarian law is not about outlawing war itself that is subject to a separate international legal regime, namely the rules that govern the prohibition of use of force in international relations that are laid down in the UN charter. So International Humanitarian Law, in essence, takes the reality of armed conflict as a fact, as a reality, and tries to govern restraint for those who are fighting wars and most importantly, tries to ensure protection of those who do not or do no longer fight in an armed conflict.
GQ: Would it be true to say and I'm asking you as a non specialist here, that the original focus, inasmuch as there was a focus on disability, was on disabled soldiers, disabled prisoners, and then it gradually spread out to include civilians?
AB: Absolutely. If we look back to the history of how international humanitarian law emerged, and it's also inextricably connected with the foundation of the International Committee of the Red Cross, the ICRC, and the entire Red Cross Red Crescent movement. International humanitarian law was born out of the battlefield, so to speak. So our founder Henri Dunant, who many might know, observed the horrors of the Battle of Solferino at the time, in 1859, and observed that a lot of soldiers fighting in a war were left to die on the battlefield or were disabled on a long term basis. So that concern governed the very first Geneva Convention. And only gradually, also with the evolution of warfare, especially with World War II, did we see an evolution in international humanitarian law to be more concerned with the protection of civilians.
GQ: Yeah, I was reading recently, and this is quite beside the point, that during the American Civil War, which saw the first use of intensive artillery, that a lot of European militaries sent over attaches simply to witness how the conflict was unfolding and learn lessons - good, bad or otherwise -, in their own countries. Could you tell us a little bit about the International Committee of the Red Cross, which has had a long and storied history, and could you tell us something about its history and maybe what its primary tasks are?
AB: Yes, of course. So, as I've already said, the ICRC is already, by standards of international organisations, a fairly old one. It was established in 1863 and it is at the origin of the Geneva Conventions and the International Red Cross and Red Crescent Movement. Our job is basically to prevent human suffering both by providing protection as well as assistance to victims of armed conflict and to prevent such suffering by promoting and strengthening international humanitarian law and universal humanitarian principles. States parties to the Geneva Conventions - and this is perhaps the particularity of the ICRC - have explicitly given the ICRC a mandate to do certain things during an armed conflict. To visit, for instance, certain conflict related detainees, namely prisoners of war and civilian detainees, as well as undertake more broadly humanitarian activities in armed conflicts. And these today span a very wide spectrum ranging from the protection of civilians tracing activities for preventing people from going missing and reuniting families assistance, for instance. Direct medical assistance or provision of medical materials to hospitals physical rehabilitation, especially for persons with physical impairments working on repair of damaged water installations or providing food distributions, to name just a few activities. And we also can take the initiative to offer our humanitarian services to parties to armed conflicts. And we also have a mandate, as per the Red Cross Red Crescent statutes, to take any humanitarian initiative outside of armed conflict situations which come within our role of a neutral and independent institution. And of course, we work quite in depth on international humanitarian law, the promotion of its implementation and dissemination as well as its clarification. And we also may prepare any development of international humanitarian law.
GQ: That's really fascinating, and you unzip it very, very clearly. And I think listeners would be very interested to know that persons with disabilities have always been protected by the Geneva Convention of 1949, especially the Third Convention - Prisoners with disabilities, and the Fourth Geneva Convention on Civilians. Maybe, can you describe how they were protected and how disability was viewed and understood under the 1949 Conventions?
AB: Indeed Gerard; already in these 1949 Geneva Conventions, IHL contains specific references to persons with disabilities. For instance, we see in the Third Geneva Convention, which deals with prisoners of war, specific obligations on the part of detaining powers to afford special facilities for the care to be given to the disabled, in particular to the blind, and for their rehabilitation. So here I'm directly quoting from that provision or to provide what the Convention calls apparatus to maintain them in good health that we can, in today's parlance, understand inter alia also as assistive devices like prosthesis, crutches, others today like hearing aids or white canes. And there is a similar obligation to provide also for these apparatuses for civilian internees, so civilian security detainees under the Fourth Geneva Convention. Both Geneva Convention Three and Geneva Convention Four also provide for the isolation of cases of mental disease. And Geneva Convention Four also provides generally that the so called infirm shall be the object of particular protection and respect, again directly quoting from the provision. And it requires parties to international armed conflicts to endeavor to conclude local agreements for the removal from besieged or encircled areas of particular groups of civilians, among whom are the so called infirm.
And for Geneva Convention Three, where prisoners have certain impairments, those are also listed as grounds on which earlier releases from their deprivation of liberty are recognized, albeit those grounds are very much based on the severity of the impairment. So from this overview, we can draw two basic conclusions. The first is, of course, the terminology and the understanding, which you can see also from my direct quotes of how persons with disabilities were viewed in 1949.
So persons with disabilities were primarily seen as a case either for medical treatment or as weak and not being able to actively influence their own fate. And the overall picture that we can draw from here is also fragmented in the sense that there is no consistent concept of disability under IHL. So there are various terms that are used to refer to persons with disabilities as a whole or persons with specific impairments. However, and that's perhaps most interesting for today's efforts, the explicit references for its uppermost part reflect a basic recognition that persons with disabilities face specific risks in armed conflict and are therefore entitled to specific protection.
GQ: Wonderful. I have to admit, when I read the Fourth Geneva Convention first, maybe four years ago, I was surprised at how elegant and simply written it was, and very accessible. But I was also pleasantly surprised at the many textual entry points, as you put it, that there are to disability in the text. And why wasn't much met of that, do you think, in the last six or seven decades? Or were there periods where sometimes something interesting was happening and other times nothing? I know a lot's happening now, but why from, let's say, 1949 to the 1980s, 1990s, was this a relatively dormant sphere?
AB: That's a very interesting question. I can only give you perhaps my own reading of that, but perhaps to be cross checked with the reading of others. But I believe that the fundamental reason has been the relative invisibility of persons with disabilities, with a resulting ignorance, really, from parties to armed conflicts, authorities, but also societies as a whole. And if a group is invisible, then their concerns will not be recognized in practice, right? So hence the barriers and risks faced by civilians with disabilities will also, as a result, not be reflected in the systems that will govern those who fight in a war. In military doctrine, training, planning and conduct of operations, visibility is also increased when those who are affected can make themselves heard in the interpretation and implementation of IHL as persons with disabilities and their representative organizations are the experts of their own situation. However, it does not seem that this has been done so far, or not at least systematically, because if I just see the traditional way of operating perhaps as a humanitarian organization, normally you would have a humanitarian organization like the ICRC represent the positions of persons affected by military operations towards parties to armed conflict. So we act a little bit as the representative. That direct channels of communication between persons with disabilities and militaries were lacking was also evident when the ICRC co-organized regional consultations with you and your team, the International Disability Alliance, the Diakonia IHL Center and the European Disability Forum last year, which brought together persons with disabilities, organizations of persons with disabilities, OPDs with members of armed forces. The military has clearly lacked awareness of the specific barriers and risks faced by persons with disabilities during military operations in armed conflict. And they had not necessarily been directly exposed to the testimonies of persons with disabilities of death, of ill treatment during military operations or inaccessibility of evacuations or shelter to be protected from hostilities. Just to give a few examples. On the other hand, I think one could not say that the specific barriers and risks were deliberately ignored by armed forces, but they were generally genuinely unaware. And in the consultations I personally sensed a genuine interest by many of the members of armed forces represented and the general willingness to think about ways to enhance protection of civilians with disabilities during military operations in armed conflict. And this is an indispensable first step from which then the more systemic steps in terms of military doctrine, training, planning and conduct of operations should ideally follow.
PART II
GQ: A lot of people say that the UN disability treaty represents a paradigm shift and has a ripple effect right throughout all the outlying domains of international law. It doesn't matter whether it's refugee law or IHL, the laws of armed conflict, or indeed other domains such as climate change and so forth. Can you talk a little bit about that kind of interaction? Where do you see the added value of the UNCRPD in the context of refreshing, let's say IHL, of course.
AB: So I think it's the complementarity between the Convention of the Rights of Persons with Disabilities - the CRPD - and IHL, which may usefully contribute to a disability inclusive interpretation and implementation of IHL. And that contribution I think you can dissect on a substantive as well as a procedural level, because complementarity generally means that although the respective norms under IHL and the CRPD may not regulate disability in the same manner, at the end of the day there are means to interpret them with a view to their harmonization. So, substantively, the CRPD provides a bridge towards a disability inclusive understanding of IHL that takes into account the specific barriers and risks of persons with disabilities. And here the social and human rights model concept of disability, which considers not only the person's variety of impairments, but also the interaction of those impairments with the variety of barriers be that communication of physical attitudinal and institutional are important, and those barriers are the source of increased risks for civilians with disabilities or for other persons with disabilities protected under IHL, like detainees, as opposed to other persons without disabilities that are protected under IHL. It's still interpreting IHL, if you like, but IHL as it does not have its own uniform concept of disability.
It's about interpreting IHL in light of the concept of disability enshrined in the CPRD and practically. For example, taking into account specific barriers, such as communication barriers, would ensure that persons with a diversity of impairments as part of the civilian population would be identified and could access information, for instance, crucial for their safety, including when military operations might be imminent or how to access safe shelter. So these are very practical issues that are addressed by IHL. And procedurally, the great contribution of the CRPD is about really mandating participation by persons with disabilities. It means to actively consult persons with disabilities and their representative organizations at various levels. At the more strategic level in discussions on interpreting and implementing IHL such as, for instance, the consultations that we have co-convened and more operationally when it comes to cooperating and coordinating, for example, for identifying persons with disabilities and to implement things like feasible precautions, like issuing effective advance warnings unless the military circumstances do not permit, or making sure that persons with disabilities can, for instance, access safe shelters or involuntary and temporary evacuations to protect them from the effects of hostilities.
GQ: So you're very right to emphasize that there is no unitary view of disability in the Geneva Conventions, which possibly makes them ripe for a kind of different kind of interpretation. And the CRPD, in a sense, provides that unified field theory that we can then, as it were, absorb into the Geneva Conventions to try and make them more alive, more relevant to the actual situation of people with disabilities. And there are the big differences between a more medicalized model of disability in the 1940s compared with the human rights model of disability enshrined in the UN CRPD. But would you go further than that? Would you say that the object of protection has slightly changed in the sense that if you read the Geneva Conventions, you get the sense that we're protecting almost inert objects? Whereas, of course, one of the selling points of the UN CRPD is "No, we are advancing the rights of autonomous human agents in and of themselves". So does the object of protection change any by the interaction between the CRPD and international humanitarian law? I know it's a speculative question, but I love your view.
AB: Yes, I mean let's say in terms of the text of international humanitarian law, it will be indeed difficult to find support for more agency in this respect. One could get there a bit more implicitly if it is, for instance, about humanity, to make sure that you will address the humanitarian concerns of populations wherever they may be found, you would better make an effort to identify also persons that might be specifically at risk within those populations. So there might be certain implicit arguments here in terms of humanity, but of course it's much more explicit within the Convention on the Rights of Persons with Disabilities that have participation really as one of the fundamental principles. And there are also very specific obligations on states parties to the CRPD on participation in the CRPD. So it's really about the cross fertilization, I would say, between international humanitarian law and the CRPD in this respect. And it's the CRPD that will inform a more active agency understanding of protection that would also give rise in practice to actively involve persons with disabilities in humanitarian responses. This is, for instance, what humanitarian organizations like the ICRC are trying to do more generally under the heading of accountability to affected populations against the justification that affected persons are the experts of their own situations. And this is very much true, of course, also for persons with disabilities. And this is also one of the our guiding light motifs of our own ICRC vision 2030 on disability.
GQ: If I were to ask you what are the two or three core issues where you would like to see the CRPD having a constructive influence over IHL if you could single out two or three, that would be exceptionally useful, I think, for our listeners.
AB: First of all, to contribute to more specific awareness by members of armed forces of persons with disabilities in their diversity of impairments or on how to, for instance, simply behave when faced with persons with disabilities. Because what persons with disabilities themselves have told us, for instance, in the case of persons with hearing impairments, who will not hear when militaries, for instance, come from behind. So there was experiences where they have been shot from behind and killed by the military because they could not understand that the military was coming and that they needed to run and they were killed because they were being wrongly assumed to be a military adversary. So first of all, if we through more specific awareness also with the aid of persons with disabilities themselves and OPDs could contribute to a greater understanding and awareness so that things like those will perhaps happen less frequently or avoid happening altogether. That would already be great. And then another fundamental issue that I would see is that of accessibility of either vital security information that would allow civilians to perhaps leave their own place in the face of hostilities or to hide in safe shelter or be part of temporary evacuations that here practical reflections would be undertaken to include persons with disabilities. And I know that these reflections have already started but it would be great if that could then also lead to tangible impact in armed conflict settings. And then there are also additional barriers that have been communicated to us, for instance in the regional consultations to accessibility of the physical environment, information or communication in armed conflicts that have to do with destruction, damage or confiscation of assistive devices. And that's a specific concern because if assistive devices that have supported the person's functioning for a long time and which the person sees really an extension of their bodies are damaged or are confiscated and are not returned, that will, of course, be a harm to not only to a person's daily functioning, but also to their own dignity. So also here if there could be reflections on how to correctly handle assistive devices, for instance, when you as a military field, checkpoints or the like, that would already also be something practical and useful.
GQ: Groups like International Disability Alliance, Diaconia, the Geneva Academy, and the ICRC have been quite active in the last five or six years on this issue of disability and armed conflict. And I just have before me very, very impressive volume of your International Review, the International Review of the Red Cross special edition on persons with disabilities in armed conflicts. Could you tell us a little bit about that? Did it throw up any surprises for you? There's some really fascinating essays in there, yes.
AB: So for me, most significantly already the fact that my really competent ICC colleagues from our editorial team of the Review, with our support, managed to put together such a substantial volume of almost 30 contributions with virtually all the relevant stakeholders contributing to it, is already impressive and I would say surprising. So it includes contributions by persons with disabilities themselves, state representatives, representatives from international organizations, NGOs, academics.
For me, what really made the review especially unique and rich is also that it includes testimonies from a diversity of persons with disabilities and humanitarian aid professionals working with them across all regions with a very powerful message, I would say, that connects them all of the importance of social and economic opportunities for persons with disabilities, despite armed conflicts.
Then, there are also drawings from children with disabilities which capture very eloquently daily emotions and barriers and even capture those more eloquently than so many words could describe them. However well articles are written and also quite original pieces such as one that has really left a lasting impression on me, that was written almost in the style of a theater play to communicate from the perspective of a person with a disability. Some of the things that they have experienced when working with humanitarian professionals and to be frank, also drawing out very clearly what sometimes we as humanitarians might do wrong also when working with persons with disabilities.
So it is a review issue that is available publicly and for free on the ICRC website.
GQ: Well, again, it's a highly impressive piece of work. I'm about halfway through it and it's quite riveting and we will put a reference, rather a web link to it on our website accompanying this podcast. Bringing together the UN Disability Convention with the Geneva Conventions is obviously an ongoing work in progress. How do you see that work moving forward? How do you see the role of the ICRC in helping to move that forward?
AB: Well, first of all, on a positive note, there seems to be growing interest among different stakeholders, state experts, OPDs, as I said, who have often understandably many different priorities, human rights experts, humanitarian organizations such as ours, and academics. And there is a lot of sense of, I think, overall common purpose. And there is also no dearth of recommendations which you and your team have so wonderfully laid out in your 2022 report to the UN General Assembly. What is absolutely key to me to progress is to continue raising specific awareness about the specific barriers and risks of civilians with disabilities in military operations, in armed conflict, and especially to work on dismantling, especially attitudinal barriers. And to be very honest, apart from the heavy lifting we did together last year with the regional consultations and mobilized militaries for that purpose, it continues to be sometimes a bit challenging to mobilize the military. But we should explore all possible vectors of influence. For instance, in a follow up meeting to our regional consultations, what was mentioned was bringing together organizations of persons with disabilities and organizations of ex veterans. Possibly because that could be a way to approach militaries or perhaps also consult with civilian police as possibly being easier to mobilize an approach because civilian police might face certain scenarios quite frequently where there might be a connection with the military when they carry out similar security operations. For instance, at checkpoints. And that's very important because as we have said earlier, lack of awareness and engagement has real effects that may lead to death and injury.
The second thing I would say is also that facilitation of more direct exchanges between persons with disabilities in militaries would also be very beneficial. And it would be great if not only perhaps organizations such as ours, yourself and your team either, but if states also perhaps themselves that are interested could look into the possibility to organize some of these kinds of exchanges, be it on a national, regional or international level. On a national level, we have national IHL committees or similar bodies that will be interesting forums to explore given that those forums really involve a multitude of stakeholders, including ministries of defense, armed forces, but also other line ministries as well as national societies, very often of the Red Cross Crescent and academics and civil society. And there you could also explore perhaps synergies with national implementation mechanisms under the CRPD.
On the international level, I wanted to mention that in 2024 there will be a dedicated forum, a multilateral forum for discussing issues related to IHL and humanitarian action. The International Conference of the Red Cross and the Red Crescent that takes place every four years, and that includes all state parties to the Geneva Conventions, as well as all the components of the Red Cross Red Crescent movement.
So us - the ICRC, national societies of the Red Cross and the Red Crescent and also would like to mention the International Federation of Red Cross and Red Crescent Societies and that is open to observers as well. And we have plans to bring actually this issue to that conference in an official event, as well as work on possible what we call voluntary pledges of conference participants. And those could be quite action oriented. For instance, one could envisage organizing direct exchanges further on between OPDs and militaries, bringing this issue before national IHL committees or integrate the protection of persons with disabilities in military manuals, for example.
Now, seizing other opportunities where states can discuss thematic IHL issues could also be interesting within the UN. One obvious entry point would be the protection of civilians agenda, where there is already a dedicated resolution 2475, as we know.
However, here, perhaps a next step would be to render the conversation more concrete in terms of more concrete scenarios and how to address them and bring in also in terms of participation, some of the relevant experts as well as perhaps try to make an effort to boost participation with persons with disabilities in these forums. And it's also emblematic to note that also to date, if we talk about systems, while some military doctrine, in particular law of armed conflict, military manuals that are usually present wide views across the relevant areas of international humanitarian law in terms of states and many of those address various protection of civilians issues including protection of children or protection of women.
The same is not yet true for the specific barriers and risks faced by civilians with disabilities. And that might also be very important to try to ensure that where processes for revision of such military manuals are ongoing, to ensure that specific risks and barriers faced by civilians with disabilities are integrated within relevant chapters.
And then finally, going further on than this, it would also be more, in a long term perspective, be great if this specific sensitization and integration within military doctrine would also filter through to practical, hands on training, and also then to more practical mechanisms in terms of coordination and cooperation when, for instance, performing things like evacuations in case an armed conflict will take place.
GQ: Excellent. And you've assembled a wonderful team in Geneva at the ICRC. How can people with disabilities support you and your work in the ICRC?
AB: Well, let me say that I would say that they have already supported my work, notably through OPD representatives who participated already in a number of not only regional consultations, but also a number of other awareness raising events. I was happy to be part of and who were kindly mobilized through the International Disability Alliance and who demonstrate, really, a never ending willingness to share their lived experiences. And it is those experiences really, which provide for me the concrete humanitarian backdrop which make an IHL analysis and then recommendations we issue compelling so that's at the policy level and at the delegation level, we have in a number of delegations now colleagues who are working on disability inclusion.
Be that as part of our team of accountability for affected populations, as well as the wonderful colleagues among our physical rehabilitation teams, as well as we have now, since recently, also working groups within delegations on disability inclusion.
So I would say it's really also a two way street. On the one hand, it's also for us to really try to be proactive and seek and contact with persons with disabilities and also as an encouragement for persons with disabilities to reach out to those relevant colleagues. And this is also, of course, part of our own overall global efforts as ICRC, as a vision 2030 on disability to boost also our engagement with persons with disabilities.
GQ: Well, Alex, this is absolutely fascinating work and you're giving life to the underlying values and vision of the CRPD in a very, very important domain of international law and policy. And I can only wish you even more success in the next few years. Thank you so much, Alex.
AB: Many thanks Gerard. And I just wanted to express once again how much of a pleasure it has been working with you on these issues and very happy to be part of this and hopefully other conversations.
GQ: Listeners, you can read Alex's work on the International Committee of the Red Cross following the links provided on our website. We have a short reading list accompanying this podcast and every podcast which you will find at our website. Do get in touch with us with ideas about topics or potential interviewees.
Well, that's it for this episode of Disability Dialogues. The executive producer is Hernan Bonomo. Original sound, design and editing is by Jeremy Bouquet and Thomas Kusberg from the Bulle Media Podcast Agency. My name is Gerard Quinn, and until the next episode, goodbye.
