The rights of persons with disabilities in a post-conflict Ukraine and the failures of international law

This is the text of a talk delivered at "International law, conflict and disabilities: How do international conflicts affect disabled people?", webinar organized by Bringing [Dis]Ability to the Bar and Goldsmith Chambers on 29 March 2022. It briefly raises questions about how international law can protect persons with disabilities in post-conflict areas, with particular reference to Ukraine.

First of all, I would like to thank Bringing my (Dis)Ability to the Bar and Goldsmith Chambers for organizing the event, and for inviting me to join the discussion. Even though Russia's invasion of Ukraine rightly monopolizes information spaces on traditional and new media, the space given to minority problems, which are exacerbated by the ongoing conflict, remains minimal, if not entirely absent, and events like this are fundamental for remembering which problems arise during a conflict, and which ones are ready to emerge as soon as the conflict ends.

With my speech I intend to focus specifically on this point. We are now a month away from the beginning of war, and the timid openings in recent days towards an agreement leading to a ceasefire (calling it "peace" seems out of place) do not particularly affect the effects that a month of attacks, fighting and bombing have had on persons with disabilities in Ukraine - and by this term I would like to emphasize that I refer both to those who were disabled before the conflict as well as those who became disabled as a result of it. In what sort of present they live, and what kind of future awaits them, are questions that international law could help answering: however, what international law is suggesting is rather worrying.

To talk about human rights in times of conflict always leaves an aftertaste of naivety. The law does not press “pause” in the event of a war - if anything, it temporarily changes into that curious set of norms and principles that go by the name of ius in bello - and human rights are among the few areas of international law that should see, in theory, a strengthened and protected application during a conflict. The reality of a war, however, reminds the theory that its place is in university classrooms, while the practice creates and knows hierarchies and priorities that can hardly be reconciled with principles of equality, respect and protection. The world has been shown footage of people in wheelchairs carried by others to inaccessible shelters, symbols of the ableism that permeates every aspect of contemporary society and symbols of how such society sees disabled people – that is, as second-class human beings. However strong and dramatic, these are images that do not really convey the depth of the problem: at the time of the invasion by Russia, persons with disabilities in Ukraine were about 2,700,000, of which about 261,000 with intellectual disabilities - almost three million people excluded, for various reasons, from shelters and evacuation plans. The inaccessibility by wheelchair of bunkers, subway stations and underground shelters, the absence of accessible information on plans and paths of protection and evacuation for those with sensory disabilities, the abandonment of people with intellectual and psychosocial disabilities in institutions, the destruction of hospitals and centres, the cessation of manufacturing and import of basic aids: these effects of the invasion have made Ukrainian disabled people, in fact, the first victims of the conflict, expendable ones unable to leave the country and made even more vulnerable to violence and abuse, in addition the typical risks of armed conflict.

Talking about the rights of persons with disabilities in the context of an armed conflict is, therefore, almost a mere academic exercise. Treaties on international humanitarian law use a series of terms that include various forms of disability ("injured and sick", "infirm", "people with mental illness", "blind"). Even though they refer to a now outdated medical model of disability, at least they introduce in the ius in bello a modicum of protection for people with disabilities. The Convention on the Rights of Persons with Disabilities (CRPD) itself explicitly provides that member states take all necessary measures to ensure the protection and safety of persons with disabilities during armed conflicts and humanitarian emergencies. Both the conduct of Russia and that of Ukraine, however, show that this battle is already lost, and it is not optimistic to foresee compensation in the short term. International law - especially the law of war and humanitarian law - are fundamentally conceived by and for the able-bodied, and the rules for the protection of persons with disabilities sound de facto like empty words, from the perspective of language, coercive power, and feasibility.

Therefore, only the question of the treatment and protection of people with disabilities after the conflict will reach its end remains open - a situation that is still rather obscure, since it is not known what the final outcome to the hostilities will be with reference to the future borders of Ukraine, to the actions of his government and the responsibilities of Russia. However, it is possible to raise some fundamental problems and theorize a plausible scenario.

To begin with, Russia will be fundamentally free from any liability with regard to persons with disabilities in Ukraine. Not only have they not ratified the Additional Protocol to the CRPD, but it is also difficult to configure Russia's responsibility under the CRPD towards persons with disabilities in Ukraine. It will therefore be Ukraine that will have to shoulder the burden of protecting the rights of disabled people in the post-conflict phase, and the prospect looks quite troublesome. First of all, we do not know how many of the nearly three million Ukrainian persons with disabilities are still alive, how many are still in Ukraine, and how many of those who managed to leave the country will return. The newly disabled must then be added to the number of survivors, who will not only be physically or mobility disabled. War, in addition to killing, psychologically annihilates and creates permanent trauma: the number of people with intellectual disabilities will probably exceed the nearly 300,000 ascertained before the war. All of these people with disabilities will have medical and social needs in a country that is basically destroyed, with almost no infrastructure and supply networks to be completely rebuilt. The main risk on the horizon, probably ignored by anyone not familiar with activism or disability scholars, is the revival of the medical model of disability: in the most influential media, the narrative on disability with regard to the invasion of Ukraine has in fact been centered on the disabled as fragile subjects – or indeed objects - to be protected not as human beings but as beings unable to provide for themselves. It would be desirable that the rebuilding of the country takes into account the issues relating to disabilities according to the social model, if not the human rights one: is it realistic, however, to think in these terms? Even though the CRPD itself is based on the social model of disability and has been a vehicle for overcoming the medical model, it suffers from an ableist perspective that subjects the questions of accessibility and accommodation to a blatantly financial assessment. Article 5 provides that ‘[i]n order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided’; but Article 2 defines this 'reasonable accommodation' as ‘necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden'. Now, these are norms that even in situations of peace and relative prosperity are difficult to accept from a perspective of equality and equal rights: how can equality be promoted and discrimination eliminated, if equality and the elimination of discrimination must not impose a disproportionate or undue burden? And in post-conflict situations, where expenses are enormous, resources scarce and interests divergent, what does a "reasonable", "proportionate" and "fair" accommodation consist of? And from what perspective should reasonableness, proportionality and appropriateness be evaluated?

The answer to these questions is obvious: if the rights of persons with disabilities are those of the CRPD, and the CRPD stems from an ableist matrix, it is obvious that the reconstruction will also be conducted from an exquisitely ableist perspective, in which the rights of persons with disabilities will be subject, as per usual, to the assessment of their opportunity by a majority, if not openly ableist, certainly not concerned with pursuing that substantial equality which is, or should be, at the basis of the instruments of international law relating to the life and rights of people. In this sense, it can be said that, once again, international law has failed its mission, openly stated in the Charter of the United Nations and the Universal Declaration of Human Rights, to pursue peace, equality and prosperity: the ius in bello only considers persons with disabilities as victims; humanitarian law does not see persons with disabilities as subjects of rights but only as objects; and the CRPD introduces a categorization of persons with disabilities that is hardly acceptable for any other minority. Consider a sentence like 'people have the right to enjoy their human rights and fundamental freedoms on an equal basis with all others, as long as this does not impose a disproportionate or undue burden' with reference to any other minority: in contemporary society, this sentence is socially, politically and legally unacceptable. When referring to persons with disabilities, this sentence is factually, politically and legally correct: the concept is at the basis of the United Nations Convention on the Rights of Persons with Disabilities, and the foundation of national disability policies and legislations of most states. If post-war Ukraine will likely be a place where persons with disabilities are de facto second-class human beings, it will not be right to put all the blame on Ukraine, or even on that Russia that destroyed the country: it will be, first of all, the failure of international law and the result of the ableism of the international community as a whole.