Brain Booster Articles
PROTECTION OF DISABLED PEOPLE IN ARMED CONFLICT
Updated: Jan 3, 2022
Author: Satwik Sengupta, V year of B.A.,LL.B.(Hons.) from Amity Law School, Delhi (GGSIPU)
The United Nations Security Council unanimously adopted resolution 2475(2019), which talks about the protection of disabled people in the situation of armed conflicts. This resolution was adopted on 20th June, 2019 in the 8556th meeting of the United Nations Security Council. On this day, the council called upon all its 15 members to decide unanimously on the vital matter at hand and to request all parties indulging in the practices of armed conflict on the international level to allow and facilitate timely, indiscriminatory and unrestricted access to humanitarian resolutions to all people in need of assistance in case of any significant problem arising out of such conflicts. and to prevent any sort of abuse or violence against civilians in scenarios pertaining to armed conflict. This meeting further encouraged all the present member states to ensure that any person with disability should have equal provisions of enjoyment of basic services like health care, sanitation, education, transportation and information and communication technology (ICT). The council also urged the present member states to enable meaningful representation and participation of persons with disabilities in various important and valuable organisations on the international pedestal.
The inception of such ground breaking resolution came with the Convention on the Rights of Person with Disabilities (CRPD). This convention is considered as a touchstone in the aspect of giving equal rights and treatment to persons with disabilities. It was stated by the World Health Organisation (WHO) that around 15% of the world population (which is roughly 1 billion people) have or suffer from some form of disability varying merely on the basis of the magnitude of it. Out of such population, an approximate of 9.7 million people have been displaced due to armed conflict on the international sphere by the states and any other form of humanitarian violation. The Convention on the Rights of Person with Disabilities (CRPD) resulted in the formulation of various legislations in regard to the subject at hand and it was joined by 161 states. The most vital Article of such convention is Article 11 which states that “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 resolution 2475(2019) urged all the member party states to comply with all the regulations formed due to the CRPD and therefore ensure that the safety and security of the people during these scenarios.
The meeting regarding the discussion and acceptance of the resolution lasted for about 20 minutes, commencing from 9:31a.m. To 9:53a.m,implying that there was not much discussion and debate regarding the acceptance of the resolution. However, there were few delegates who highlighted some aspects of the resolution which in their opinion was flawed. One such delegate was Gennady V. Kuzmin, representing the Russian Federation. He noted that the protection of the disabled persons suggested by the resolution at hand should not come at the cost of the other people of the society. He stressed on the point that there should be a level of equality when considering the situation of protection of all people in the scenario of armed conflict. The suggestion made by the delegate was that the United Nations should not invent any new international legal concepts which would resulting in devising new categories of individuals who should require specific protection under the provisions of international humanitarian law and have an obligatory effect on the states.Striking the same chord, Yao Shaojun, a delegate representing the People’s Republic of China stated that the issue of protection of person with disabilities should be dealt with according to the prevalent Council resolutions which talk about the protection of civilians and he also added thatthis responsibility was something which needed to be shouldered by all the states and the United Nations should play a complimentary role in it.
The contentions made by the Delegates can be summarised as:
1. No new international legislations for specific tasks: Out of the many points put forth by the delegate representing the Russian Federation, the most basic and main point was that there should not be any new legislation on the international front which would maybe lead to not following of the other prevalent regulations present within the United Nations. This till an extent is a valid point because if the states focus on the new legislation formulated then tit may cause some sort of violation or negligence towards other provisions of the same nature. The counsel Kuzmin, linked this point with the issue regarding the aspect of equality in protecting people from situations regarding armed conflict. His basic point of contention was that due to these legislations which enable special provisions for disabled persons, it may prove to be a hindrance for the general population of people who are also equally subject to the harshness caused due to these acts of armed conflicts. The Counsel was of the opinion that this legislation should not be such which shall create a kind of reservation for the targeted category of people. According to the delegate, there should not be a requirement of a separate legislation for tackling this problem as the United Nations already has many provisions regarding the subject matter which this legislation or resolution talks about.
2. Obligatory effect: According to the ‘partly dissenting’ delegate, the wordings of the resolution were ambiguous in pointing out the fact that whether this resolution was obligatory in nature and implies that every participant state shall follow that resolution mandatorily or it was of such nature that if a state wishes to follow the resolution it may implying a degree of discretion on the party states. Although Article 25 of the U.N Charter imposes an obligation upon the member states of the United Nation to “accept and carry out the decisions of the Security Council ...”there is no clear consensus regarding the required language that needs to be used to express the intention of the United Nations to ascertain a factor of obligation upon the member states.
The International Court of Justice gave an advisory opinion on the matter related to the obligatory nature of resolutions under Article 25 of the United Nations Charter in its 1971 Namibia Advisory Opinion. The 1971 Namibia Advisory Opinion was the result of the approach made by the Security Council to the International Court of Justice regarding the situation wherein there was continued presence of South Africa in the internal matters of Namibia. The International Court of Justice then upholding the views of the Security Council advised the South African authorities to curtail their continued presence in Namibia as the Security Council had passed an obligatory order regarding the same. However, it was challenged during the proceedings by the South African Authorities that there was no clear indication that such order was obligatory or not. That is when, in their relevant statement the International Court of Justice put forth their opinion that “The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council.”
Moreover, the former legal advisor for the United States Department Of State, John Bellinger has articulated that there has been a consensus amongst many international lawyers that there are three major factors which determines if a resolution is to be considered binding or not and those are:
That the legislation deals with counteracting any sort of threat to international peace and security
If the legislation mentions that the United Nations is acting under Chapter VII of the UN charter
Usage of the word ‘Decides’ in any operative paragraph which intends to be binding
On the contrary, the resolution 2475 uses words like “requests”, or “suggests” clearly implying that the resolution is not binding but act like a set of guidelines (similar in nature to the Directive Principles of State Policy present in the Indian Constitution).
In conclusion, I would like to shed light on the fact that the basic principle feature of the resolution is to curtail the humanitarian and social abuse faced by the Disabled people and even though the Legislation is not binding upon the member states it has to be a primary focus of all the member countries to follow the guidelines given under such legislation as it promotes equality and hopes to curtail acts of unnecessary violence.