Introduction
The Convention on the Rights of Persons with Disabilities (CRPD) accords protection to persons with disabilities in all situations of risk, including armed conflict.Footnote 1 Its principles include respect for dignity, non-discrimination on the basis of disability, participation, and respect for difference.Footnote 2 These reflect core values in international disability rights law and are closely aligned with the values that underpin the rights of the living and the dead under international humanitarian law (IHL).Footnote 3
Treatment of the dead was not a topic contemplated by the drafters of the CRPD, and there is no explicit reference to dead bodies in the CRPD text. Nor do other instruments of human rights law address dead persons in any detail. IHL, by contrast, contains multiple rules to guide how dead bodies are to be handled, and these should inform a human rights-based approach in respect of the treatment of the dead. Further, neither the CRPD nor IHL address with any specificity how the five pillars of transitional justice – truth, justice, reparation, memorialization and guarantees of non-recurrence – might apply in relation to IHL rules regarding dead bodies. Nonetheless, one of the more interesting and potentially transformative provisions in the CRPD, Article 11 on the protection of persons with disabilities in situations of risk, forges a bidirectional link to IHL protections and obligations supporting transitional justice, thereby providing a framework and entry point for integrating the rules in the CRPD, IHL and international human rights law (IHRL) and informing international law as it addresses dead bodies under various regimes.
This paper addresses, from an interdisciplinary perspective, IHL rules relating to dead bodies and the interrelationship between those rules and those set out in international disability rights law and IHRL generally. First, we interrogate disabled embodiment under critical disability studies and examine the implications of the social model(s) of disability and its reflection in IHRL for thinking about bodies.Footnote 4 We argue, pace some important voices in disability studies, that impairment and bodies must be brought back into focus for the purpose of thinking through the implications of embodiment. This position cuts against the grain of a radical social model of disability that rejects disabled bodies as a point of reference and instead foregrounds social barriers that inhibit disability rights.
Next, we address how we ought to think about dead bodies and the law in the context of persons with disabilities under both IHL and IHRL. An examination of historical and contemporary accounts reveals that the bodies of persons with disabilities have often received the kind of treatment that IHL condemns. With IHRL treaties silent on this issue, IHL informs efforts to expose the mutilation, hiding, cremation and related acts that have been carried out against the dead bodies of persons with disabilities who have experienced grave and systemic violations of their human rights in armed conflict and in peacetime. Finally, we bring into conversation ways in which human rights law principles can provide the basis for the protection made explicit under IHL. These include efforts to ensure that transitional justice arrangements in the aftermath of armed conflict or egregious violations of human rights law form part of healing.
The problem of disabled embodiment
What counts as a legitimate body – a question variously posed by feminist and disability scholars alikeFootnote 5 – has particular salience for critical disability studies discourse and for thinking about disabled embodiment in IHRL and IHL. These insights are valuable for analyzing the construction of disability in IHL, its various designations of disability and its implications for addressing the dead bodies of persons with disabilities under both IHL and IHRL.
Disability studies theorists hold that the discounting of disabled bodies has wrought significant harm on persons with disabilities under traditional paradigms of disability.Footnote 6 The predominant conception of disabled corporeality is the medical model of disability.Footnote 7 That model conceives of the disabled body as abnormal and thus emphasizes medical intervention, correction and cure to the exclusion of any other considerations, including the multitude of barriers that may be far more pertinent to the life of a person with disabilities than any medical “fix”.
Illustratively, a deaf person may derive no benefit from medical treatment but, equally, may not regard their hearing impairment as being in need of any reversal. What may be deemed beneficial is communication access such as sign language interpretation, as when they need to access health care, education or employment. An individual with a spinal cord injury may primarily be in need of rehabilitation services and physically accessible spaces, including accessible evacuation during emergencies. The medical model is thus narrow in its orientation and can serve to reinforce the stigmatizing notion that disability is a medical issue and that persons with disabilities are “broken”.
Other conceptualizations of disability paint the person with disabilities as hapless and deserving of charity or as tragic and in need of correction. Disability theorists point out the undercurrents of these perspectives and employ the concept of ableism to expose their stigmatizing and dehumanizing effects. Ableism may be defined as
a network of beliefs, processes and practices that produces a particular kind of self and body (the corporeal standard) that is projected as the perfect, species-typical and therefore essential and fully human. Disability then is cast as a diminished state of being human.Footnote 8
This concept has application across the diversity of disability and recognizes that not all disabilities are manifest or outwardly visible in a corporeal sense, as with invisible disabilities or psychosocial or intellectual disabilities.
Confronting traditional models of disability (i.e., the medical, charity and personal tragedy models), the social model of disability is a move to recognize that individuals with disabilities are disabled not by their impairments but by the social environments in which they live.Footnote 9 Social model theorists accordingly draw a sharp distinction between impairment on the one hand and disability on the other. Thus, the reconceptualization of disability away from socially constructed “abnormality” under traditional paradigms achieves a shift in narrative and performs the important function of focusing attention on the barriers in society that lead to exclusion, isolation and disability discrimination. Once the focus moves away from the body and its perceived “deficiencies”, it becomes possible, conceptually and practically, to advance a human rights framework addressing persons with disabilities as equal human beings and active agents. Recognition of the personhood and humanity of persons with disabilities also means accounting for other characteristics that shape human experience and may impact the enjoyment of human rights, such as gender, age, race, ethnicity or socio-economic background.
The social model paradigm, reflected not only in critical disability studies discourses but now also in IHRL and legal literature, thus helpfully departs from traditional conceptualizations that mark disabled bodies as abnormal, deviant and in need of physical or mental intervention to attain (imagined) “normalcy”.Footnote 10 In line with the traditional marking of disabled bodies as deficient, the corporeal existence of persons with disabilities is exposed by critical disability theorists for its conceptualization in literature, art, science and the law as a phenomenon to be reviled, corrected where at all possible, and where not, isolated and set apart.Footnote 11
This predominant medical model of disability is written into law – disability becomes a marker of exclusion in many legal regimes – in electoral codes limiting or prohibiting voting on the basis of disability, guardianship regimes stripping away legal recognition and all attendant rights to render decisions, education statutes barring access to quality education, loss of child custody for parents with disabilities, and immigration laws excluding immigration based on disability, among other legislative examples.Footnote 12 These exclusions reach into the most personal, intimate and private spheres of life, and for women and girls with disabilities in particular, may especially and directly affect their physical bodies.Footnote 13 This tradition of exclusion and oppression prompted disability advocates to embrace a robust social model orientation that under some conceptualizations completely takes the disabled body (and mind) out of the picture.Footnote 14 In other words, the emphasis on social barriers, while much needed in reorienting attention to the real obstacles that make human rights enjoyment difficult or even impossible for persons with disabilities, can tend to push away the materiality of the body.Footnote 15
Scholars working in the critical disability studies space have levelled a critique of the social model to the effect that the body has been largely excluded from disability discourse.Footnote 16 They have therefore problematized the hard and fast distinction between the medical model and the social model in order to bring the body back into focus. This conceptual move allows for a reconsideration of issues largely left out of or relegated to the margins of disability discourse in both IHL and IHRL, including rules relating to the dead, despoilment of dead bodies, and the fate of family members with disabilities who have died, often en masse in institutions.
The treatment of disabled bodies in peacetime and in armed conflict
Persons with disabilities have been subjected to systemic violations of international legal norms in times of peace and armed conflict.Footnote 17 Many have been the victims of serious violations of IHRL and IHL, and many have died premature deaths as a result.Footnote 18 Following death, disabled bodies have been victimized, whether as a consequence of undignified burials, despoilment, mutilation and public display of remains, or disappearances about which we know very little. Documentation of serious violations perpetrated against persons with disabilities is now emerging, leaving a clearer picture of the risks they experience and the harms committed against them. Human rights organizations such as Disability Rights InternationalFootnote 19 and Human Rights WatchFootnote 20 have documented serious violations of IHRL on the bodies of persons with disabilities across the globe, many of which were carried out during armed conflict.
Civilians with disabilities are more likely to face significant risk of harm in situations of armed conflict.Footnote 21 In Nazi Germany, the Hadamar killing centre, part of the Nazi “Action T4” euthanasia programme which exterminated thousands of persons with disabilities, institutionalized persons with disabilities and killed over 15,000 persons between 1941 and 1945. At first, the bodies of the victims were cremated and canisters of random ash were sent to family members. Later, the bodies of victims were placed in mass, unmarked graves. When the US 2nd Infantry Division captured the town of Hadamar in 1945, they uncovered 481 mass graves at the killing centre. The graveyard was enclosed by high walls constructed of concrete and topped with jagged glass. Each burial pit contained up to ten bodies.Footnote 22
Beyond historical instances of mass killings by the Nazi regime, also reported are instances of targeted killings of persons with disabilities by the Khmer Rouge in Cambodia, summary executions of persons with disabilities by non-State armed groups in Colombia and mass killings of persons with psychosocial disabilities in the Rwandan genocide.Footnote 23 In many of these instances, the bodies of victims were left behind without burial, disposed of in mass graves to hide their fate, or despoiled.Footnote 24
In contemporary armed conflict, persons with disabilities have endured significant harm. In the conflicts in Ukraine and Gaza, damage to key infrastructure, collapse of basic public services and often frantic evacuations have caused widespread civilian harm. The impact is often especially acute for persons with disabilities. Recent reports have chronicled a familiar pattern for persons with disabilities in both of these conflict zones: abandonment by evacuating caretakers,Footnote 25 being turned away from inaccessible shelters,Footnote 26 and the worsening of chronic health conditions due to a lack of essential medicine and medical services,Footnote 27 among many other harms.
Outside of armed conflict, persons with disabilities have likewise experienced mass atrocities in life and after death. From the 1880s to the 1960s, over 45,000 individuals with disabilities lived and died in state institutions in California.Footnote 28 Most were buried anonymously in unmarked or mass graves, identified only by numbers that have long since vanished.Footnote 29 Another example is from Massachusetts, where the institution originally known as the “Massachusetts School for the Idiotic and Feeble-Minded Youth” and later the Metropolitan State Hospital were responsible in the period between 1947 and 1979 for burying 296 of their patients with disabilities in unnamed graves on a plot of former marshland.Footnote 30 These graves of individuals with disabilities were made of small concrete slabs with a “C” or “P” etched into the stone denoting religious status, Catholic or Protestant, and a number indicating the order in which they were buried.Footnote 31 These individuals with disabilities died in institutions without receiving the dignity, recognition and acknowledgment they deserved as human beings.
International human rights law and disability
IHRL – rules emerging from treaties and international customary law – gives rise to individual and group rights that States are obliged to respect, protect and fulfil. The progressive development of modern IHRL since the founding of the United Nations (UN) has resulted in an increasingly articulate body of rules capable of addressing a wide range of protection issues in relation to some of the same groups that enjoy special protection under IHL. These include human rights conventions establishing human rights protections for women, children, and persons with disabilities.Footnote 32
While IHRL provides a strong basis for human rights protections, the mainstream instruments rarely address rights in relation to dead persons,Footnote 33 and nor do the core human rights conventions explicitly provide for the right to know the fate of relatives. The International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) is the partial exception, as it references the remains of victims of enforced disappearance in relation to the State obligations to “guarantee to any person with a legitimate interest in this information” access to information about, “in the event of death during the deprivation of liberty, the circumstances and cause of death and the destination of the remains”, among other things.Footnote 34
Most relevant when considering individuals with disabilities and the interrelationship between rights protecting them in life and death is the CRPD. That treaty, now nearing universal ratification, is first and foremost an instrument providing a major break with traditional conceptualizations of disability and, drawing on a paradigm shift embracing a social model understanding of disability, has made possible a human rights-oriented approach to protecting persons with disabilities.
International human rights law, disability and dead bodies
The CRPD provides the most detailed international legal framework on the human rights of persons with disabilities. Now ratified by 191 States across the globe, the treaty clarifies that persons with disabilities are one among many specific groups entitled to specific human rights protection in all circumstances, including in armed conflict.Footnote 35 Notably, though comprehensive in its scope, the CRPD makes no mention of the treatment or disposition of dead bodies, whether in peacetime or in the context of armed conflict. Yet the CRPD framework is pertinent in several important respects to sorting through the rights of persons with disabilities while they are living, and the treatment and disposition of their remains after death.
The CRPD affirms that States are obligated to protect persons with disabilities in all situations of risk, and that they bear additional duties to investigate and prosecute perpetrators of human rights violations against such persons. Article 11 provides:
States Parties shall 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.Footnote 36
Several important observations should be made in relation to the implications of Article 11 for rights relating to dead persons. First, Article 11 of the CRPD specifically obliges States to protect persons with disabilities from harm in situations of risk, consistent with IHL and IHRL. The necessity of such protection is recognized at first instance in the CRPD’s preamble, which proclaims that “the observance of applicable human rights instruments [is] indispensable for the full protection of persons with disabilities, in particular during armed conflicts and foreign occupation”.Footnote 37 Second, Article 11 embraces complementarity not only between IHL and human rights law but across all domains of international law wherein protection is pertinent and where risk to persons with disabilities is apparent. In this sense, Article 11 plays a unifying role in drawing together obligations to safeguard and protect persons with disabilities in both peace and conflict situations. As such, the provisions of human rights law and IHL can be read bidirectionally, each informing the other, reflecting the principle of integration and fully consonant with the Vienna Convention on the Law of Treaties, which recognizes, in Article 31(1)(c), that treaty interpretation may take into account “any relevant rules of international law applicable in the relations between the parties”.Footnote 38
Beyond Article 11, several provisions in the CRPD directly relate to serious harms and prescribe obligations to protect persons with disabilities against the occurrence of harms. From these provisions we can infer obligations in respect of deceased persons, their remains, and the rights of their families to know their fate. The CRPD recognizes the right to life for persons with disabilities (Article 10); prohibits torture or other cruel, inhuman or degrading treatment (Article 15), as well as exploitation, violence and abuse (Article 16), in respect of persons with disabilities; and protects the physical and mental integrity of persons with disabilities (Article 17).Footnote 39
It follows that these protections are hollow absent protection after their violation. In other words, where violations of these obligations result in the death of an individual with a disability, dignity – one of several core principles of the CRPD – necessitates that their bodies are respected. Trenchantly, Article 16 of the Convention contains an explicit provision that implicitly covers rights in relation to dead persons and requires States to undertake measures “to ensure that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted”.Footnote 40 Victims of potentially unlawful killings or other types of prohibited harms are protected under this provision. The protection also extends beyond the immediate victim to family members. The investigative obligation would have little meaning if it neglected to address the circumstances surrounding an unlawful death, the final disposition of the victim’s human remains, and the ways in which the rights and interests of families are also impacted.Footnote 41
The CRPD provides no explicit protection in relation to the rights of relatives of persons with disabilities to know the fate of their family members. The drafters of the CRPD opted with intentionality to maintain a sharp focus on persons with disabilities themselves and not the rights of their families or caregivers. That said, human rights treaty bodies have inferred the right to know – for example, reading into the right to a remedy the requirement for States to provide information about the violations of human rights and where a victim dies, as well as the location of the burial site of the deceased.Footnote 42 While the CRPD provides no specific right to a remedy, this right is easily inferred from the rights accorded to persons with disabilities under Article 13, the provision on equality and non-discrimination in accessing justice.Footnote 43 Finally, Article 16 of the CRPD and its provision on the duty to investigate and prosecute wrongdoers who have harmed persons with disabilities links to the right to know. As one commentator has noted, “one can only ‘know’ what happened if and when the facts surrounding the death are established, and often this information only follows from an investigation”.Footnote 44
The foregoing demonstrates the connectivity of the CRPD to domains beyond IHRL, including IHL. Its general principles are especially capable of informing other protection regimes within a disability-competent frame. That said, the CRPD does not in specific terms address obligations relating to dead bodies in the way that IHL does. Accordingly, this gap affords the opportunity to understand how the two regimes interact in respect of persons with disabilities and IHL rules relating to dead persons. Whereas the emphasis in the literature on Article 11 of the CRPD is almost exclusively focused on how the CRPD ought to inform other domains of international law, especially those that lack a disability sensibility, the present focus offers the opportunity to demonstrate how the linkages are bidirectional and how other domains like IHL can inform the CRPD and IHRL through Article 11.
International humanitarian law and disabled bodies
IHL consists of treaty- and custom-based international law focused on regulating the methods and means of warfare as well as providing protections for the victims of war.Footnote 45 Unlike IHRL, most of IHL does not formally apply outside of armed conflicts.Footnote 46 IHL norms are often the lex specialis of armed conflict,Footnote 47 though it has been widely accepted that IHRL treaties also apply in armed conflict to the extent that they do not conflict with IHL.Footnote 48 While less of a focus, IHL standards may also inform IHRL in areas insufficiently developed under the human rights framework. The CRPD itself lends support for this proposition in that Article 11 of the Convention is explicitly bidirectional and interactional – its application requires that the Convention’s provisions inform and are informed by other protection regimes of international law.Footnote 49 In many regards, therefore, these two regimes – IHRL and IHL – are complementary and mutually reinforcing. Illustratively, much like IHRL, IHL is animated by a concern for the fundamental humanity of those people falling within its purview. For example, some of the key values embodied in IHL are closely aligned with the CRPD core principles noted above, including the Convention’s respect for dignity, non-discrimination on the basis of disability, and respect for difference.
IHL’s connection to “dignity” is clear through the wording of Article 3 common to the four Geneva Conventions (common Article 3), which is permeated with concerns about human dignity and, moreover, expressly prohibits “outrages upon personal dignity”.Footnote 50 This aligns with Article 3 of the CRPD, wherein dignity is a general principle of the treaty. Common Article 3 is of special importance in the realm of IHL, as it has been found to represent the “elementary considerations of humanity” which constitute the minimum yardstick for the rules that apply in all armed conflicts, regardless of classification.Footnote 51 The core of common Article 3 is an obligation to provide humane treatment to those not or no longer actively participating in hostilities.Footnote 52 Many other provisions throughout the Geneva Conventions are also clearly concerned with dignity, such as the prohibitions against “inhuman”, “degrading” and “humiliating” treatment.Footnote 53
Other IHL concepts track with the CRPD’s core value of non-discrimination on the basis of disability and respect for difference. Multiple IHL treaty provisions either prohibit adverse distinctions or require heightened protections on the basis of specific differences. For example, parties to an international armed conflict (IAC) are prohibited from making adverse distinctions “on race, religion, or political opinion” in their treatment of the civilians of an adverse party to the conflict.Footnote 54 Common Article 3 applies an even broader prohibition on adverse distinction to any person not or no longer taking active part in hostilities, requiring that parties provide such persons with humane treatment “without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria”. Additionally, such parties are required to provide special protections to women, children, the wounded and sick, the infirm and expectant mothers.Footnote 55
These IHL articles often do not specifically mention persons with disabilities, and when they do they rely on antiquated terminology such as “infirm”.Footnote 56 However, the open-ended nature of the “other similar criteria” wording of common Article 3 and the overarching humanitarian impulse of IHL protections supports the inference that discriminating on the basis of disability is similarly prohibited.Footnote 57 The provisions of CRPD Article 11, discussed above, reinforce these protections and make them explicit.Footnote 58
The protections afforded by IHL for dead bodies contain no textual references to disability – however, the dead persons who are protected by various IHL protections are very often rendered disabled before passing away. In one of the early IHL codification efforts, the 1868 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight (St Petersburg Declaration), States acknowledged that disabling the armed forces of the opposing State is the primary means by which States pursue their “only legitimate object” during war: to “weaken the military forces of the enemy”.Footnote 59 The St Petersburg Declaration provides that to accomplish war’s sole legitimate objective, “it is sufficient to disable the greatest possible number of men”.Footnote 60 This is a reminder that IHL accepts that parties to a conflict intentionally create widespread disability, though IHL provides various limits on the methods, means and lawful targets of these efforts to disable. Of course, many of those persons disabled in armed conflict end up dying.
Thus, the graves of those killed in armed conflict often hold disabled bodies, at least as disability is understood under IHL: persons who have physical disabilities, such as amputees, older persons with disabilities (the “infirm”), children with disabilities, and individuals with intellectual, mental or sensory disabilities. The bodies of these casualties of war are necessarily marked by various forms of severe trauma. While some may have started the conflict with pre-existing disabilities, a great many more acquired impairments during the conduct of hostilities. These bodies are not merely war dead – they are victims of armed conflict that were disabled so severely that they ultimately succumbed to the final and complete disability of death. When we speak of the bodies destroyed by war, then, we are generally speaking, in the most literal sense, of disabled bodies. Thus, though IHL treaty protections of the dead do not make explicit textual references to disability, this may be due to the fact that the disabled status of the dead is so obviously linked to the entire endeavour of armed conflict that it would have been redundant to make separate provisions for dead bodies of persons with disabilities. Indeed, the very nature of war is such that most of the bodies of the dead in armed conflict would fall within the category of disabled bodies.
Specific protections for the dead arising under IHL
IHL imposes detailed requirements relating to the proper treatment of dead bodies. These obligations are infused with a respect for individual human dignity and a pragmatic concern with easing the transition to peaceful post-conflict relations between adversaries. This makes the IHL protections for the dead an ideal lens through which to consider how IHL, IHRL and transitional justice inform and reinforce each other. These IHL protections for the dead can be roughly grouped into three related categories requiring parties to recover, respect and record information about the bodies of those killed in armed conflict. Each of these categorical groupings of protections is examined in more depth below.
Recover
Parties to an IAC have long been obligated to search for and collect the bodies of those killed in hostilities.Footnote 61 These protections are premised on the importance of respecting the dignity of the dead and to avoid people going missing.Footnote 62 Both of these concerns directly correlate with issues addressed in human rights treaties adopted many years after the 1949 Geneva Conventions, including the CRPD and the ICPPED. Though the text of common Article 3Footnote 63 does not by itself create an obligation to search for the dead in a non-international armed conflict (NIAC), this obligation was expressly stated in Article 8 of Additional Protocol II (AP II),Footnote 64 which applies to some NIACs. Some scholars have also concluded that the rule has the status of customary international law in all armed conflicts regardless of classification.Footnote 65
Respect
The obligation to search for the dead in the Geneva Conventions is directly coupled with an obligation to respect the bodies recovered.Footnote 66 This is sometimes phrased in these treaties as preventing “despoilment”Footnote 67 or “pillage and ill-treatment”.Footnote 68 Additional Protocol I (AP I) broadens the obligation to be one of “respect”.Footnote 69 The 2016 Commentary on Geneva Convention I (GC I) by the International Committee of the Red Cross (ICRC) emphasizes that a key reason for requiring recovered bodies to be treated with respect is to avoid setting off a “cycle of barbarity”.Footnote 70 This is a concern that overlaps with one of the key purposes of transitional justice, which will be explored further in the next section. This obligation of respect for the dead has been found to extend to NIACs through common Article 3’s prohibition against “outrages upon personal dignity, in particular humiliating and degrading treatment”,Footnote 71 as well as the text of AP II Article 8 obligating parties to “search for the dead, prevent their being despoiled, and decently dispose of them”.
There are also a number of protections under IHL relating to the respectful internment of dead bodies. Generally, bodies must be respectfully and honourably buried or cremated,Footnote 72 individuallyFootnote 73 and in accordance with the religious rituals to which the person belonged.Footnote 74 Gravesites are also required to be respected and properly maintained.Footnote 75 The purpose behind these obligations is the “preservation of the dignity of the dead”.Footnote 76 As with many other obligations arising under IHL regarding the dead, the obligation to respectfully inter the dead has been interpreted to extend to NIACs through the text of AP II Article 8 and as a matter of customary international law.Footnote 77
Record
The obligations of parties to an IAC to identify, record and share information regarding the dead are one of the first dutiesFootnote 78 to attach in an IAC and one of the last IHL obligations to expire.Footnote 79 From the outset, parties are required to record data about the dead bodies that they recover, including such details as the deceased’s name, date of birth and date of death, as well as information about the cause of death.Footnote 80 In instances where the deceased’s identity is not known, all information capable of assisting with identification is needed. All four of the Geneva Conventions also include requirements to share this information along with the location of the deceased’s remains as soon as possible during the conflict.Footnote 81 The Geneva Conventions further require the establishment of a Graves Registration ServiceFootnote 82 and Information BureauFootnote 83 in each country that is a party to an IAC in order to facilitate this process of information collection and exchange.
There are heightened requirements for records related to cremation as a result of the strong preferenceFootnote 84 in the Geneva Conventions for burialFootnote 85 of bodies rather than cremation. The default method under IHL for disposing of bodies is via a respectful burial, with cremation only permitted “for imperative reasons of hygiene or for motives based on the religion of the deceased”.Footnote 86 When a cremation does occur, parties are required to provide detailed records regarding “the circumstances and reasons” of the cremation.Footnote 87 This stems, in part, from concerns that cremation makes it easier to obscure evidence of war crimes.Footnote 88
Cremation is also linked to historical atrocities against persons with disabilities, including the systematic execution and cremation of persons with disabilities by the Nazis starting as early as 1939 with the “Action T4” programme. This notorious programme was used by the Nazi regime to kill approximately 80,000 former patients of German mental hospitals and institutions. Victims were killed in gas chambers before having their bodies dissected for medical training or to remove gold teeth, and then all were cremated.Footnote 89
An important purpose animating these recording requirements is to facilitate the termination of hostilities and the subsequent ability of the groups or nations involved to achieve a stable peace.Footnote 90 This noble goal is furthered by the mandated compilation of information that can (eventually) be used by grieving families to honour the graves of their loved ones, or in some cases to exhume remains for investigatory purposes or for reburial in the home country of the deceased.Footnote 91 The concern exhibited by these IHL provisions with providing closure to families of the fallen has clear parallels with the “truth” pillar of transitional justice and IHRL.
While the rights of the family are not mentioned in the actual text of the 1949 Geneva Conventions, a family’s right to know is mentioned in AP I Article 32, which observes that States implementing AP I’s requirements governing the missing and the dead should be “prompted mainly by the right of families to know the fate of their relatives”. This requires, as part of the obligation, the undertaking of all feasible means to identify dead persons.Footnote 92 This right of families to know is both an important principle of IHRL and an essential component of achieving the goals of transitional justice, a connection that will be explored more thoroughly in the next section.
Addressing undignified treatment of disabled dead bodies through transitional justice processes
Transitional justice addresses the legacy of serious IHRL and IHL violations. The various mechanisms of transitional justice confront past abuses and are also regarded as an integral component of major political reform.Footnote 93 Transitional justice at its best places victims at the centre and strives to ensure acknowledgement, accountability and redress for those who have suffered wrongful acts.Footnote 94 The five pillars of transitional justice – truth, justice, reparation, guarantee of non-repetition and memorialization – are complementary and interrelated in order to ensure the most effective means of justice and accountability.Footnote 95
Persons with disabilities are often overlooked among the overall victims of conflict, and the transitional justice movement has lacked integration of a disability perspective.Footnote 96 The reference point for transitional justice too often falls short of integrating the voices of persons with disabilities and their families;Footnote 97 this is increasingly understood as a major gap.Footnote 98 Notably, UN Security Council Resolution 2475 affirms that persons with disabilities are disproportionately impacted in situations of armed conflict. Further, it recognizes the indispensable role that persons with disabilities play in conflict resolution, prevention and reconstruction processes and thus supports transitional justice as a process that must be non-discriminatory, accessible and facilitative of the participation of persons with disabilities.Footnote 99 Additional support for inclusive transitional justice mechanisms is found in Article 11 of the CRPD and its mandate for States to protect persons with disabilities from harm in situations of risk and humanitarian emergencies.Footnote 100 Article 11 unifies State obligations to safeguard and protect persons with disabilities in both peace and conflict situations, and obligates States to undertake measures to that end and consistent with their international law obligations writ large.Footnote 101 As such, Article 11’s protection ambit ought to be read in connection with the mechanisms of transitional justice – and any such reading should include accounting for violations perpetrated on the bodies of persons with disabilities.Footnote 102
The protection of the dead and the concomitant right of families to know the fate of their disabled family members is beginning to be addressed from the perspective of disability rights. Advocates from the disability rights community are highlighting specific instances of how the bodies of persons with disabilities subjected to unlawful killings were subjected to undignified treatment following premature death. This stems in part from an increasingly well-documented history in many countries of failures to advance the respect, protection and preservation of the remains of persons with disabilities who have died – very often prematurely due to violence or neglect in institutions. Yet it is also reflected in efforts to expose other types of abuses, such as the non-consensual use of the bodies of deceased disabled individuals for medical science or display in museums, or instances of undignified burials in unmarked graves of enslaved persons found to have had disabilities when disinterred by archaeologists.Footnote 103 This is important for establishing accountability and for allowing families and societies to heal. Likewise, there is a prevention element insofar as safeguarding bodies of deceased persons serves to combat enforced and involuntary disappearances. This includes the dignified management of remains, proper final disposition and memorialization, and respect for the rights of the families and their communities. The discussion that follows analyzes how the various pillars of transitional justice can be harnessed to redress and account for violations of IHL rights and serious violations of IHRL in relation to deceased individuals with disabilities.
Transitional justice pillar 1: Truth-seeking
Truth-seeking, the first pillar of transitional justice, includes various mechanisms to determine the facts, causes and consequences of past systemic violations of international human rights and IHL.Footnote 104 Truth mechanisms are imperative for discerning the facts surrounding premature and suspicious deaths of individuals with disabilities, particularly civilians who die in armed conflict and those who die during peacetime, whether in disasters or in institutions and prisons. The UN Human Rights Committee’s General Comment No. 36 on the right to life underscores that States “must take, among other things, appropriate measures to establish the truth relating to the events leading to the deprivation of life”.Footnote 105 This has come to be known as the human right to truth,Footnote 106 which is similar yet distinct from the right of families to know the whereabouts of their relatives that animates core IHL protections for the dead.Footnote 107
Transitional justice truth-seeking mechanisms often take the form of truth commissions – official, non-judicial or quasi-judicial bodies established during periods of political change, often in the aftermath of armed conflict.Footnote 108 Truth commissions and other truth-seeking mechanisms place priority on putting victims at the centre of the truth-seeking process and work to protect, acknowledge and empower both victims in their death and survivors and their families.Footnote 109 They give visibility to victims and ensure that victims participate in transitional justice processes.Footnote 110 While there is an emphasis on the importance of including marginalized groups in truth-seeking processes, persons with disabilities and their families are often forgotten as victims.Footnote 111
The framework established in the CRPD shores up the human rights that give rise to truth-seeking as a transitional justice measure. According to Article 21 of the CRPD, States Parties must ensure that persons with disabilities have equal rights to freedom of expression, opinion and access to information.Footnote 112 This includes ensuring that persons with disabilities can express their opinions and ideas and access information in various alternative and accessible formats.Footnote 113 The voices and experiences of persons with disabilities who have lost their lives during conflict are crucial to truth-seeking processes, and their inclusion in such processes is guaranteed under the CRPD.Footnote 114 To ensure that persons with disabilities are represented, truth-seeking mechanisms must incorporate the perspectives of families and friends of persons with disabilities in their fact-finding processes.
In as much as persons with disabilities must be afforded the opportunity to participate in transitional justice processes relating to truth-seeking, so too must families of the dead be able to seek the truth. For these families, the truth-seeking function of transitional justice is significantly advanced by the obligations arising under IHL for the maintenance and sharing of detailed records relating to the identity and cause of death of the deceased, as well IHL’s strong preference for individual burials over cremation or mass graves. In this way, IHL’s protections for the dead lay the foundation for transitional justice truth-seeking efforts related to discovering the whereabouts of the dead and the circumstances surrounding their deaths.
Transitional justice pillar 2: Criminal prosecution
Justice, and specifically the legal obligation to prosecute and punish violations of IHRL and IHL, is a second pillar of transitional justice that seeks to ensure accountability for wrongful actions.Footnote 115 Identifying and prosecuting perpetrators of serious violations of international human rights and IHL is essential for societal repair and for reparation of victims. Transitional justice processes support accountability and non-recurrence.Footnote 116
Despite the emphasis on accountability and prioritizing victims in such processes, persons with disabilities and their family members are often excluded from being recognized as victims and thus do not take part in the justice process. Here, Article 13 of the CRPD provides that persons with disabilities must have equal access to justice and that administrators of the State justice system must take positive steps to ensure that access, with support where needed.Footnote 117 Implicit in this obligation is the need to ensure that families of persons with disabilities also have rights in relation to seeing justice served.
States have legal obligations to prosecute and punish human rights and IHL violations, ensuring that no obstacles impede this duty.Footnote 118 Scholars have demonstrated, however, that these obligations, equally applicable to persons with disabilities, are little enforced in practice. Barriers catalogued by scholars in this context include ableist understandings about disability and lack of understanding about how ill-treatment manifests against persons with various disabilities and how protection, investigation and prosecution must respond to the specific circumstances of persons with disabilities.Footnote 119
One example of these obstacles in practice is the failure of investigators and prosecutors for the Special Court for Sierra Leone to pursue atrocities likely committed against residents of Kissy Mental Home in 1999. After being ordered to attack civilians in Freetown, where Kissy Mental Home was located, members of the Revolutionary United Front committed a wide range of atrocities. While several prosecutions were conducted in response to those actions, the only war crimes at the Kissy Mental Home that were prosecuted were the murders of eight nuns,Footnote 120 despite the facility having approximately 400 residents who were reportedly chained to their beds and would have been unable to protect themselves from the rebels, who had been ordered to “amputate up to 200 civilians”Footnote 121 Commentators have criticized the lack of investigation and prosecution of abuses to which the disabled residents of Kissy Mental Home were almost certainly exposed during the onslaught.Footnote 122
The obligation to prosecute is essential for achieving equitable, just and lasting reconciliation for victims. Prosecutions of perpetrators are expected to be prompt and achieve the most desirable outcome for victims while ensuring the right to a fair trial.Footnote 123 Punishment for serious human rights violations is mandatory under international law, and it is the responsibility of States to ensure that this obligation is fulfilled.Footnote 124 In order to comply with international standards of justice, States must adopt and enforce safeguards to ensure that the rule of law is not abused. All victims of gross violations of IHL and IHRL should have equal access to effective judicial remedies.Footnote 125
Although access to justice is a fundamental right and is essential for the enjoyment of all other rights, the participation of persons with disabilities in justice systems worldwide is limited, and persons with disabilities frequently face challenges in obtaining access to justice.Footnote 126 Persons with disabilities face significant barriers within the justice system, including denial of legal capacity and multiple barriers to accessing courts (or other, quasi-judicial bodies) and essential information.
Article 13 of the CRPD affirms that persons with disabilities must have equal access to justice.Footnote 127 This includes ensuring that persons with disabilities are not excluded from the justice system based on legal capacity, as Article 12 of the CRPD makes clear that persons with disabilities have full legal capacity.Footnote 128 Despite the clarity of the latter provision, domestic law often holds the position that persons with disabilities lack legal capacity, thereby foreclosing equal participation in the justice process. With such high hurdles for living persons with disabilities, achieving justice for the dead through criminal prosecution is doubly challenging. Nonetheless, IHL’s detailed record-keeping and grave registration obligations create an opportunity for future investigations to piece together evidence of crimes. In this way, IHL’s protections for the dead contribute in a small but important way to the potential for criminal accountability where appropriate.
Transitional Justice Pillar 3: Reparations
The obligation to make reparation is triggered on the occurrence of a human rights or IHL violation and implies a duty on the part of the State to make reparation and the possibility for victims to seek redress from the perpetrator.Footnote 129 The right accrues to the victim or their beneficiaries and notably may also amount to collective forms of redress, beyond making restitution for individual victims.Footnote 130 Reparations processes must be accessible to victims, and this means the procedures by which reparations are sought must be readily available, timely and effective.Footnote 131
The CRPD sets out principles that should guide reparations procedures in relation to access by persons with disabilities. First, like all victims, persons with disabilities and their representative organizations should play a meaningful role in the design and implementation of reparations programmes.Footnote 132 This requires specific measures to ensure that persons with disabilities and other groups subject to exclusion have the opportunity to participate in public consultations aimed at developing, implementing and assessing reparations programmes. Second, the principle of accessibility must both guide equal access to decision-making on reparations at all levels, including applicable international and regional procedures, and address more broadly the accessibility needs of persons with disabilities as beneficiaries of reparations.Footnote 133
There are numerous ways in which decisions on reparations can impact persons with disabilities and their families, but such decisions have too often neglected the disability dimension of programming. This is beginning to change, at least in terms of reparations for violations against persons with disabilities who have died untimely deaths in institutional care in some countries.Footnote 134 At the design stage of a reparations programme, measures to facilitate access for persons with disabilities and to gather disability-specific information in order to guide the programme downstream should be undertaken. The participation of persons with disabilities in programme design should be secured – their presence might be crucial if decisions about criteria of access (including, importantly, application deadlines and evidentiary thresholds) are to be taken in ways that increase the likelihood that they will be appropriately served by an eventual reparations programme.
In the selection of rights whose violation triggers reparations, it is important for benefits under a reparations programme to account for the specific and diverse needs of persons with disabilities. Though the dead will not directly benefit from any reparations regime, their harms must still be factored into any reparations;Footnote 135 additionally, the families of dead disabled persons are often victims in their own right.Footnote 136 Absent the participation of persons with disabilities in designing the reparations scheme, it will be difficult or impossible to ensure that the kinds of violations perpetrated against persons with disabilities are included.Footnote 137 Requiring those responsible for the design of reparations programmes to articulate the principles or reasons underlying the selection of “repairable violations” may have a positive impact from the standpoint of disability, by preventing gratuitous exclusions.
Transitional justice pillar 4: Guarantees of non-recurrence
The fourth pillar of transitional justice is guarantees of non-recurrence.Footnote 138 Guarantees of non-recurrence or non-repetition help respond to systemic and structural inequalities that serve as barriers to the enjoyment of human rights and fundamental freedoms.Footnote 139 Such guarantees can take various forms, including institutional reforms such as the establishment of independent human rights mechanisms, legal reforms such as the repeal of discriminatory laws and the enactment of human rights standards, and administrative reforms that give voice to affected persons.
States are under an obligation to ensure that international human rights and IHL violations do not recur and to guarantee the protection of victims from future violations. To achieve this, States must implement mechanisms for preventing and resolving social conflicts, inclusive of institutional reforms and other measures to uphold the rule of law, promote human rights and restore public trust in government institutions. Here too it is crucial to have adequate representation of persons with disabilities in order to guarantee that specific violations of their rights do not recur. Several elements of this transitional justice pillar show promise for identifying and combating the kinds of barriers that can make recurrence of wrongs against persons with disabilities more likely.
Education and awareness-raising
One of the key methods by which States can prevent the recurrence of past abuses is through effective and comprehensive education about disability, using a social model and a human rights orientation towards disability. States party to the CRPD are under an obligation to adopt effective and appropriate measures to raise societal awareness about persons with disabilities, fostering respect for their rights and dignity, as set forth in Article 8.Footnote 140 Measures should aim to combat stereotypes, prejudices and harmful practices related to persons with disabilities while promoting awareness of their capabilities and contributions. Raising awareness at all educational levels is essential and should begin in early education, continuing through higher education. This also includes educating officials in the public sector and at all levels of governance, and those in the media.
Institutionalization
Article 19 of the CRPD mandates that States Parties recognize the equal right of persons with disabilities to live in the community.Footnote 141 Persons with disabilities must have equal opportunity to choose where and with whom they live. Throughout the world, the practice of placing persons with disabilities into institutions presents a barrier to the exercise of the rights contained in Article 19. Institutions operate in isolation, restrict the autonomy of individuals and commonly do not provide adequate care for persons with disabilities. As a result of institutionalization, premature deaths of persons with disabilities are common, leading to the mass production of dead bodies.
Guarantees of non-recurrence may have a collective impact, as reflected in the UN Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law Footnote 142 and in court-mandated measures. Illustratively, in the Plan de Sánchez Massacre case (2004), the Inter-American Commission on Human Rights recommended that individual reparations be combined with community-level reparations and other measures to avoid recurrence.Footnote 143 In that case, the investigation into a massacre of nearly 300 civilians which occurred during an internal armed conflict was severely complicated by violations of IHL protections for the dead, including burning the bodies and burying them in unrecorded mass graves.Footnote 144
Transitional Justice Pillar 5: Memorialization
Memorialization, the fifth pillar of transitional justice, encompasses the various methods by which the memory of persons who have fallen victim to violations of IHRL or IHL is sustained.Footnote 145 Memorialization thus serves as a tribute, acknowledgment and recognition of victims of international human rights and humanitarian law violations.Footnote 146 It aims to preserve and transmit accurate accounts of past human rights and IHL violations, inform society, restore a victim’s dignity and identity, promote healing and reconciliation, and prevent future wrongs. Such processes of transitional justice, whether addressing violations committed in the recent or distant past, are intended to address systemic human rights violations or wrongs committed during the conflict. Forms of memorialization include museums, public acknowledgement, renaming of public facilities, reburials, memory projects, and creative and academic publications.
There are examples of such practices in relation to persons with disabilities who have died, often in the context of human rights and humanitarian law violations. At Hadamar, the site of the mass murder of persons with disabilities by the Nazi regime, now stands the Hadamar Memorial Museum,Footnote 147 with the mission of commemorating the victims of the euthanasia programme and recognizing the suffering of persons with disabilities who lost their lives there.
In 2002, California Senate Bill 1448 (Chesbro)Footnote 148 addressed the conditions of the state institution gravesites, providing support for the disability community, and that same year, three organizations for persons with disabilities (OPDs) – Disability Rights California’s Peer Self-Advocacy Program, People First of California and the California Network of Mental Health Clients – launched the California Memorial Project (CMP). The Bill’s co-sponsor emphasized that “restoration of state hospital and developmental center graveyards is a priority because, ‘How we are treated in death is indicative of the way we were valued in life.’” The CMP has since erected monuments to honour those who lost their lives in California state-run institutions and has held ceremonies for individuals with disabilities who died in such institutions to honour their memory and preserve their dignity.Footnote 149
For persons with disabilities who have lost their lives due to violations of IHRL or IHL, memorialization is a vital tool to honour them and to remember and account for past harms. According to one OPD supporting memorialization,
when we dishonor deceased institutionalized persons by inadequately remembering them in death, we are also making a statement: people with severe mental illness don’t count, they are not worth remembering. By restoring honor to the dead, we bring honor to the living.Footnote 150
While adhering to the social model of disability – which focuses less on the disabled body – within the context of memorialization, the disabled body must be brought back into the picture. Memorialization often portrays the normative able-bodied victims but does not make any mention of persons with disabilities.Footnote 151 Disabled bodies are portrayed with the erasure of impairment in memorials, which may take away from the identity of the victims. The way in which a person is treated in death is indicative of how a person is treated during their lifetime.
The IHL protections for dead bodies capture both sides of this issue, requiring respectful internment of bodies in a manner that can itself be considered a form of memorialization of the dead,Footnote 152 while remaining mostly silent on the details of the person’s disability beyond requiring the documentation related to the cause of death.Footnote 153 Here it bears repeating that a major focus of IHL is to take steps to identify deceased and missing persons, or to ensure the future possibility of scientific identification as soon as is practically possible. The scientific process for identification, which relies upon anthropology and genetic comparison with relatives, places a strong focus on the physical body. Key questions asked in this context focus on specific characteristics of a person, which can facilitate the identification process. It thus warrants consideration whether a transitional justice and disability rights lens in the process of preservation, protection and identification of deceased persons can honour the diversity of persons, and of disabled bodies. Lessons are starting to emerge from the work of identifying the remains of enslaved persons at the Catoctin Iron Furnace in Maryland, whose hard labour caused disabling conditions or aggravated existing ones. These conditions were identified by anthropologists and made part of the enslaved persons’ story in transitional justice efforts to reclaim the past.Footnote 154
Summing up transitional justice, disability and accounting for wrongs
Transitional justice processes play important roles in fostering the transition to a sustainable peace.Footnote 155 Where such mechanisms appropriately account for all those affected by serious violations of international human rights and IHL, they can serve to affirm the humanity and human dignity of both victims and survivors, including persons with disabilities. Article 11 of the CRPD is the springboard for a disability-inclusive approach in such processes. This provision seeks to ensure that the rights of persons with disabilities are realized in every domain, with a protection remit and across all five pillars of transitional justice. IHL protections relating to dead persons shore up principles of humanity and dignity and provide concrete rules establishing that dead persons must be respected and protected, and their dignity fulfilled. The IHL protections for the dead are also unique relative to other IHL protections in that some of these obligations extend well beyond the end of the armed conflict, thus overlapping both substantively and temporally with the traditionally post-conflict transitional justice process. This feature of the IHL protections for the dead thus extends the reach of both transitional justice and IHL beyond their traditional spheres, supporting transitional justice efforts from the very start of hostilities and continuing IHL protections for the dead many decades beyond the end of those hostilities. What is clear is that far more work is required to address the five pillars of transitional justice for persons with disabilities who have died or have been disappeared during armed conflict.
Conclusion
The disabled body has been the subject of a host of serious violations of IHRL and IHL. These have occurred during conflict and in peacetime, during life and after death. The shift away from the medical and tragedy models of disability to the social model of disability serves to render persons with disabilities more visible in relation to serious violations of human rights law and IHL. This shift has helped bring into focus the myriad of societal barriers that oppress and make human rights violations more likely against persons with disabilities. The social model of disability has upended traditional models, and the CRPD is effecting dramatic change across legal frameworks worldwide given its near-universal ratification. That said, understanding the dead under human rights and humanitarian law requires a shift away from conceptualizing disability as exclusively a problem of social barriers. Achieving justice for persons with disabilities whose bodies have been treated and disposed of in ways that contravene the principles set out in IHL, and whose bodies are indirectly protected by IHRL, requires visibility. Bringing disabled bodies back into focus is necessary for ensuring that transitional justice is served for persons with disabilities who have perished at the hands of State or non-State actors, and for their families. These are bodies that should not be buried in transitional justice mechanisms.
Open access
