The war in Ukraine presents three issues salient to the disability community:
- Reports of the Russian military targeting facilities where disabled people may reside or receive care;
- The question of care for disabled communities and persons seeking refuge; and
- How the law of war regards combatants with disabilities — that is, combatants who are disabled before they join combat.
1. Strikes Targeting Communities of People with Disabilities
Populations of persons with disabilities are increasing worldwide. The CDC reports that more than one in four Americans have a disability. Reliable data specific to Eastern Europe is harder to come by — partially by design. Soviet officials routinely denied the existence of disabled people within their borders and research on the topic has been heavily circumscribed in the former Eastern bloc. The Swedish International Development Cooperation Agency estimates that countries in the Eastern part of the continent have disabled populations that comprise approximately 10% of their general populations. In Ukraine, this should yield a figure of approximately 4.4 million disabled people in the country. However, the European Disability Forum supplies a figure of 2.7 million “persons with disabilities registered in the Ukraine.”
A 2017 report from the Open Society Foundation points out that in Eastern Europe, group homes and institutionalization are still the prevailing norms. This is in sharp contrast with the United States, where the Supreme Court ruled in Olmstead v. L.C. ex rel. Zimring that antidiscrimination laws require that people with disabilities be generally integrated into their communities within the least restrictive settings available, considering their needs and available resources. The Eastern European tendency towards group home living situations has made people with disabilities particularly vulnerable during times of war.
Early reports indicate that Russian forces bombed the “Oskil psychoneurological boarding school,” which appears to be the type of group housing that the Open Society report describes. These homes were Soviet era policy choices: state homes which were kept operational even after the Eastern Bloc style of autocracy faded away due to the economic collapse that accompanied the end of the Soviet Union. Russian society and decisionmakers were familiar with the default mode of institutionalization. Stalin’s 1936 Constitution and subsequent decrees and policies focused narrowly on workers and had no interest in the welfare of persons with disabilities who were not active workers. Consider Article 43 of the Constitution, which ties disability payments to losing the household earner or to becoming disabled due to work or old age and Article 12, which emphasizes “From each according to his ability, to each according to his work,” a perversion of the Marxist credo “from each according to his ability, to each according to his needs.” This history provides context for the Russian government and military forces’ shelling of the Oskil psychoneurological boarding school with the knowledge that a disproportionate number of casualties would likely be disabled civilians. Given the foregoing, war crimes’ prosecutions would likely focus on the Rome Statute of the International Criminal Court. Article 8(2)(b)(9) prohibits targeting “hospitals and places where the sick and wounded are collected.”
2. Care for Refugee Communities of Civilians with Disabilities
Regarding civilians seeking refuge, mobility impairments and the need for medical attention have left many people with disabilities and their families unable to make the journey to become refugees in neighboring countries. Instead, people with disabilities and their families have established ad hoc groups in an effort to take people with disabilities to safe zones. This raises various concerns. Even when disabled people are not specifically targeted, they may still be victimized by the circumstances of war. The laws of war do not address this disparity. Chapter 3, Article 30 of the 1949 Geneva Convention requires prisoners of war be given medical treatment as needed, with specifically designated facilities to care for persons with disabilities. Article 110 requires that prisoners with certain disabilities be repatriated. However, neither discusses those caught up in war who are neither combatants nor prisoners. Even the Rome Statute, passed in 1998 and most recently amended in 2010, is silent on this issue. Given the hardships faced by the disability community, international bodies should amend and clarify laws of war to provide provisions for the persons with disabilities, particularly as populations with disabilities are increasing globally.
Notably, U.S. Citizenship and Immigration Services does not define refugees by location or movement but by qualities such as being able to demonstrate fear of persecution and not being firmly settled in another nation. The very moment a person walks out the door of their home, they could be considered refugees under certain circumstances. By contrast, the United Nations defines a refugee as someone “outside the country of his nationality.” The USCIS definition is vastly preferable, and the United States could lead by example here. One can become a refugee in their own nation. Indeed, history is rife with examples of persecuted peoples who were paradoxically forbidden by their persecutors from leaving.
The need to update protections for persons with disabilities in war is particularly urgent given the trend, embodied by the Ukrainian military, to incorporate disabled fighters into their regiments. To be sure, as the National Museum of American History documents, disabled soldiers have always been with us. The museum’s exhibit describes disabled enlistees in the Civil War, but scholarship also discusses disabled people enlisting as far back as ancient Sparta. However, what stands out in the Ukrainian conflict is the speed and degree with which the region’s population with disabilities — whose ill-treatment this post discusses — gained broad societal acceptance through enlistment not just on the battlefield but in civil society, where soldiers are instrumental in a broad, blossoming social movement to recognize, accommodate, and socially integrate persons with disabilities. Mere decades ago, many of these people or their ancestors would have been relegated to boarding schools and group housing.
This movement is grounded in patriotism and war: The celebration of not only persons with disabilities but of those who are now seen as warriors. Other people with disabilities now join the military seeking the same acceptance. This is not a new phenomenon; U.S. Civil War enlistees joined despite being called “the cripple brigade” and spoke of the desire to be accepted more than a century before the passage of the Americans with Disabilities Act of 1990.
3. The Laws of War and Combatants with Disabilities
How do the laws of war treat soldiers with disabilities once they reach battlegrounds? The main international law governing disability is the United Nations Convention on the Rights of Persons with Disabilities, to which both the Russian Federation and Ukraine (as well as the United States) are signatories. Yet it makes only an oblique reference to wartime disabilities in Article 11, requiring that parties “ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict . . . .”
Neither the Rome Statute nor the Geneva Conventions address the specific issue of the treatment of disabled enlistees. The Geneva Conventions’ preliminary remarks mention “the principle of disinterested aid to all victims of war without discrimination — to all those who, whether through wounds, capture or shipwreck, are no longer enemies but merely suffering and defenceless human beings,” but painstakingly distinguish between combatants and former combatants and assume that being wounded entails an end to one’s enemy status. If, however, as in Ukraine and the U.S. Civil War, soldiers enter a conflict already having become disabled in peacetime, these principles carry little weight.
Case law is similarly bereft of guidance. Again, many courts have discussed how prisoners of war or soldiers who are wounded in battle must be treated. The Second Circuit in Kadic v. Karadzic, for example, discussed and applied the Geneva Conventions. However, very little has been clearly decided regarding disabled soldiers entering battle. Undoubtedly, there is a serious moral quandary here: should disabled people, many motivated by the hope that they will gain patriotic acceptance, be allowed to enlist? Ukraine is certainly moving in that direction. I expect that countries facing the need for massive, rapid enlistment in times of sudden conflict will take this page out of the Ukrainian playbook. As the number of disabled people rises globally, the number of disabled enlistees rises as well, even absent an emergency. The time to establish a comprehensive legal framework around the protection of disabled enlistees is now.
Disability rights and war combine at multiple intersections. In a world where conflict has not abated and the number of people with disabilities continues to rise — and where the number of disabled enlistees will likely rise — there is a need to update legal protections and expectations around disability: a status that wartime is making increasingly complex.