Revisiting IHL in light of contemporary standards on gender and disability

IHL confers special protections upon those detained for reasons related to an armed conflict. Most notably, the entirety of GC III and nearly one third of GC IV contain the respective detention regimes for prisoners of war (PoWs) and civilian internees in IACs, supplemented by various provisions of AP I,Footnote ²⁵ while Article 5 of AP II contains a set of minimum guarantees for persons whose liberty has been restricted for reasons related to NIACs, and common Article 3 and various CIHL rulesFootnote ²⁶ lay out minimum standards for detention in IACs and NIACs alike. However, if these provisions are applied without due consideration for their gender and disability dimensions, they are likely to fall short of adequately protecting women detainees with disabilities. IHL norms referencing the protection needs of women have long been subject to rightful critique by feminist scholars, as they tend to characterize women as weak, passive victims and appear more concerned with protecting women’s honour or modesty rather than their physical and psychological integrity.Footnote ²⁷ Likewise, the few provisions referencing disability seem similarly outdated at best and discriminatory at worst,Footnote ²⁸ which stands in direct contrast to contemporary standards on gender and disability reflected in other areas of international law.

These standards notably include the United Nations (UN) Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)Footnote ²⁹ and the UN’s Women, Peace and Security (WPS) agenda,Footnote ³⁰ which inter alia emphasize and promote gender equality, non-discrimination and the express inclusion of gender perspectives in all areas of policy-making. More recently, the adoption of the UN Convention on the Rights of Persons with Disabilities (CRPD)Footnote ³¹ has also brought about a paradigm shift in how the international community views and responds to disability, replacing the previously dominant medical and charity models with its social model and human rights-based approach. Under the charity model, persons with disabilities are considered passive victims of their impairment deserving mainly of pity, while the medical model views them as having a medical defect in need of “fixing”. The medical model in particular reinforces the misguided assumption that persons with disabilities would automatically qualify as “wounded or sick” within the meaning of Geneva Conventions I and II (GC I and GC II),Footnote ³² thus sufficiently guaranteeing their protection.Footnote ³³ In reality, many persons with disabilities do not meet the criteria to fall within the protective scopes of Geneva Conventions I and II, and even those who do still face a multitude of risks and barriers unrelated to their medical needs.Footnote ³⁴ In a significant departure from these outdated standards, the social model of the CRPD stipulates that it is the interaction between impairment and various physical, attitudinal, environmental and societal barriers that hinders the full and active participation of persons with disabilities in society, calling upon said society as a whole to overcome these barriers.Footnote ³⁵ The human rights-based approach as the normative basis for responding to disability emphasizes that impairment must not prevent a person from accessing universal guarantees afforded by international law on an equal basis with others.Footnote ³⁶

Advancements on gender and disability in international human rights law (IHRL) are not isolated developments, but rather form part of an overarching framework of international law evolving alongside them. Indeed, IHL in particular has been designed as a remarkably flexible body of law, with the aim of enabling it – or rather, implicitly requiring it – to take into account such developments and fresh interpretations. Over time, its framing of gender has consequently evolved towards greater recognition of women as equal rights holders and active participants, in line with CEDAW standards on gender equality and the WPS agenda’s gendered perspectives on armed conflict,Footnote ³⁷ while the adoption of the CRPD has spurred similar developments regarding disability.Footnote ³⁸ What remain limited, however, are intersectional approaches to IHL taking account of both gender and disability, despite the interconnected nature of parallel IHRL standards: by way of example, Article 6 of the CRPD expressly recognizes the intrinsic interplay between a woman’s gender and her impairment,Footnote ³⁹ and both the CRPD Committee and the CEDAW Committee have repeatedly affirmed that the multiple forms of discrimination against women with disabilities require dedicated attention.Footnote ⁴⁰ The present paper therefore aims to propose such an intersectional approach by examining select IHL provisions in light of standards put forth by the CEDAW, the CRPD and other international frameworks, such as the WPS agenda, the Beijing Platform for ActionFootnote ⁴¹ and soft-law standards such as the UN’s Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules)Footnote ⁴² and Rules for the Treatment of Women Prisoners (Bangkok Rules).Footnote ⁴³

Benefits and limits of an IHRL-based intersectional approach to detention under IHL

It is by now well established that the CEDAW and the CRPD continue to apply alongside IHL during armed conflicts (with the CRPD even explicitly stating as much in its Article 11), and that IHRL and IHL complement and mutually reinforce one another.Footnote ⁴⁴ While the simultaneous application of these two bodies of law remains a controversial issue, it is not the subject of this paper, which takes a more interpretative approach – namely, that their complementary relationship allows for relevant IHRL instruments to also serve as interpretative tools, further informing the gender- and disability-specific content of IHL provisions.Footnote ⁴⁵ This approach allows for resulting obligations to remain firmly anchored within IHL itself, avoiding issues such as limited applicability of IHRL instruments to non-State armed groups (NSAGs) or States that have not ratified relevant treaties.Footnote ⁴⁶

At the same time, this approach does have certain limits, as there are considerable differences in the legal regimes governing detention in IACs and NIACs. These differences impact both the grounds for lawful detention and the protective regimes applicable to specific detention settings. Detailed considerations regarding the lawfulness of detention as such would go beyond the scope of this paper, as the provisions chosen for examination below primarily regulate conditions during detention; however, as persons with disabilities continue to be deprived of their liberty precisely because of their impairment, it would be remiss of the article not to at least briefly address this issue. In a very general sense, States party to an IAC may detain PoWs for as long as active hostilities are ongoing and no grounds call for their immediate repatriation,Footnote ⁴⁷ and civilians may be interned until such time as they no longer pose a security threat.Footnote ⁴⁸ The legal basis for internment in NIACs, meanwhile, remains contested, particularly in cases where the detaining authority is an NSAG, though there is a general consensus that persons detained during NIACs must also be released once they no longer pose a threat to the security of the detaining authority.Footnote ⁴⁹ Arbitrary deprivation of liberty, on the other hand, is universally prohibited, not least by virtue of common Article 3, meaning that irrespective of the type of armed conflict, there must be a valid reason both for initially depriving an individual of their liberty and to continue doing so.Footnote ⁵⁰ Conversely, during armed conflicts, persons with psychosocial impairments have for example been detained because their behaviour was misinterpreted as threatening, and persons with sensory or mobility impairments have been taken captive because their assistive devices were mistaken for weapons.Footnote ⁵¹ There is no need to further elaborate in cases like these – depriving an individual of their liberty for reasons solely related to their impairment always constitutes arbitrary deprivation of liberty in violation of both IHRL and IHL,Footnote ⁵² and arguably, so does continued deprivation of liberty if considerations with regard to disability would mandate their release from captivity.Footnote ⁵³

More important for the purposes of this paper is that while PoWs and civilian internees during IACs benefit from the extensive protective frameworks laid out in GC III and GC IV, the protection of those detained in the context of NIACs under IHL is generally limited to common Article 3 and CIHL.Footnote ⁵⁴ Notwithstanding considerations on the lawfulness of detention itself, it appears most pressing in light of this dichotomy to substantiate universally binding standards for the protection of female detainees with disabilities, especially given the asymmetric nature of modern-day armed conflicts and the large number of NSAGs acting as detaining authorities.Footnote ⁵⁵ The IHL provisions examined below have thus been selected due to their fundamental character, as they stipulate core obligations of States and NSAGs alike.

The principle of humane treatment

The principle of humane treatment is arguably the most fundamental guarantee of IHL. For the purposes of this paper, it is most prominently enshrined in Articles 13 and 14 of GC III, Article 27 of GC IV, Article 75 of AP I, Article 4 of AP II, common Article 3 and CIHL Rule 87. In essence, these provisions require that all detainees be treated humanely at all times, stating in particular that they are entitled to respect for their persons and their honour.Footnote ⁵⁹ The obligation of detaining authorities to treat detainees humanely is universal and absolute in character,Footnote ⁶⁰ and crucially goes beyond simply obliging them to abstain from inhuman treatment – they are also required to “take all precautions and measures in [their] power to prevent such acts and to assist victims in case of need”.Footnote ⁶¹ What does and does not constitute humane treatment has been deliberately left undefined by drafters, as any such attempt would restrict the principle’s applicability and detract from its fundamental, all-encompassing nature as an essential safeguard.Footnote ⁶² Whether or not a specific treatment is inhuman, or even amounts to torture or other prohibited acts, must therefore be determined not based on an abstract act but rather on a case-by-case basis, taking into consideration the situation of a specific person and all surrounding circumstances:Footnote ⁶³ on the one hand, this will include objective factors such as the environment in which the treatment is taking place, the context in which it occurs, and its duration, while on the other, subjective factors will include the mental and physical effects that a treatment has on the specific person in question, which will in no small part be informed by their personal circumstances.Footnote ⁶⁴

It is here that the major impact of gender and disability becomes apparent. In determining whether or not a certain conduct is in keeping with the principle of humane treatment, the detaining authorities must give due consideration to the way in which a detained woman’s gender, as well as any impairment she may have, impact the way she experiences the treatment, and the effects it will have specifically on her.Footnote ⁶⁵ In this sense, IHRL can assist in further shaping the meaning and content of “humane treatment” for women with disabilities deprived of their liberty during armed conflicts, not least because it shares a common nucleus with IHL in aiming to safeguard respect for a person’s inherent dignity and inviolable quality as a human being.Footnote ⁶⁶ When read in line with Article 6 of the CRPD, the assessment of whether or not a certain treatment complies with the “minimum standard” of being humane must specifically also take into account the compounding nature of the relationship between a female detainee’s gender and her disability. Both of these factors, individually and in their interplay with one another, will significantly influence her experience and may result in a treatment having much more severe effects on her than it would on detainees of a different gender and/or without an impairment. In other words, treatment that would generally be considered humane may nonetheless amount to inhuman treatment when it is afforded to a female detainee with a disability.Footnote ⁶⁷ By way of example, while PoWs may generally be held in confinement for up to thirty days as a disciplinary measure,Footnote ⁶⁸ the same sanction would certainly breach this threshold if it were imposed on a pregnant detainee with a psychosocial disability, as both her impairment and her pregnancy would significantly compound the negative effects that the punishment would have on her.Footnote ⁶⁹

While the broad nature of the principle of humane treatment is precisely what allows for this broad intersectional approach, taken on its own the principle may appear somewhat vague and abstract. Other provisions giving expression to the meaning of “humane treatment” in specific contexts will be examined further below, with a view to the very real and concrete risks faced by disabled women in detention settings. What can be stated at the outset is that any violation of the principle of humane treatment, including violations of more specific provisions that de facto amount to inhuman treatment, are categorically impermissible under IHL: in other words, detention conditions must meet the minimum standard of being humane, the detainee’s dignity must be respected at all times, and whether or not these requirements are met is to be determined based on the specific circumstances of each individual case.Footnote ⁷⁰ Where detaining authorities cannot guarantee that female detainees with disabilities in their power will at all times be treated humanely, the only feasible conclusion would therefore seem to be that they must cease detaining these women in order to comply with their universal obligations under common Article 3.Footnote ⁷¹

The prohibition of adverse distinction

The prohibition against sexual violence

Sexual violence continues to be a widespread phenomenon during armed conflicts. Having long been acknowledged as a major concern for women,Footnote ⁹⁴ sexual violence against men has rightfully received growing attention in recent years,Footnote ⁹⁵ as has the particularly high risk faced by certain groups of people: these notably include persons deprived of their liberty,Footnote ⁹⁶ as well as persons with disabilities.Footnote ⁹⁷ While there is no reliable estimate on the specific issue of sexual violence against women with disabilities detained by parties to an armed conflict, it appears inevitable that where the risk factors of gender, disability, deprivation of liberty and armed conflict coincide, they will result in a disproportionately high likelihood of being subjected to this type of gender-based violence.Footnote ⁹⁸ Defined as “any act of a sexual nature which is committed on a person under circumstances which are coercive”,Footnote ⁹⁹ sexual violence is prohibited explicitly by Article 27(2) of GC IV, Article 76(1) of AP I, Article 4(2)(e) of AP II and CIHL Rule 93, as well as implicitly by common Article 3 and Article 13 of GC III.Footnote ¹⁰⁰ Common Article 3 in particular prohibits sexual violence in no less than three implicit ways: first, through the general requirement of humane treatment contained in common Article 3(1);Footnote ¹⁰¹ second, by means of the prohibition against torture and other cruel treatment contained in common Article 3(2)(a);Footnote ¹⁰² and third, in the form of common Article 3(2)(c) prohibiting outrages upon personal dignity.Footnote ¹⁰³

Rape and sexual violence also constitute inhuman, cruel or degrading treatment within the meaning of IHRL, particularly when perpetrated in detention settings.Footnote ¹⁰⁴ Article 15(2) of the CRPD, for instance, requires duty bearers to protect persons with disabilities, on an equal basis with others, against torture or cruel, inhuman or degrading treatment or punishment. Read in conjunction with Articles 6 and 16 of the CRPD, such treatment includes gender-based violence against women with disabilities. As gender-based violence also constitutes a form of discrimination against women, Article 2 of the CEDAW similarly obliges duty bearers to take all appropriate measures to prevent and eliminate this type of misconduct.Footnote ¹⁰⁵ In light of these IHRL standards, the prohibition against sexual violence as per common Article 3 no doubt imposes a due diligence obligation on detaining authorities to take note of the disproportionately high risk faced by detained women with disabilities, and to develop adequate, targeted measures in response.Footnote ¹⁰⁶ In doing so, it must be kept in mind that measures aimed at preventing sexual violence against female detainees in general may not prove sufficient for those who also have an impairment – where that is the case, detaining authorities must adopt additional measures to comply with both the principle of humane treatment and the prohibition of adverse distinction.

Specific measures in this sense could include the adoption of clear, practicable policies on limiting, to the maximum extent possible, any interactions between female detainees with disabilities and male staff or male detainees. Detaining authorities should also consider offering specialized training to all staff members on spotting signs of sexual abuse among female detainees with disabilities, as well as on how to properly address, report and investigate suspected sexual abuse cases in order to avoid secondary victimization.Footnote ¹⁰⁷ Reporting mechanisms and investigation procedures must be confidential and accessible for detained women with a wide range of impairments, as must information on how and where to report instances of sexual violence.Footnote ¹⁰⁸ If sexual violence has occurred, accessible medical and psychological support must be made available to affected women immediately,Footnote ¹⁰⁹ and detention staff must be sensitized towards the inherent coerciveness of detention settings.Footnote ¹¹⁰

Overall conditions and premises of detention

The overall conditions under which women with disabilities are being detained will have a major impact on their mental and physical well-being;Footnote ¹¹¹ in line with the principle of humane treatment and the prohibition of adverse distinction, the detaining authority must therefore pay particular attention to their specific needs and exercise due diligence in its corresponding assessments. Article 22 of GC III, Article 85(1) of GC IV and CIHL Rule 121, for instance, establish basic safeguards regarding the premises in which detainees are held. In order to comply with these provisions, detaining authorities must, to the best of their abilities, ensure that a site’s geographical location and its facilities afford “every guarantee of hygiene and healthfulness”.Footnote ¹¹² This should be understood as referring to both the area’s general suitability for human habitation and its suitability for individual detainees.Footnote ¹¹³

In what can be considered a direct parallel to the principle of accessibility stipulated by Article 9 of the CRPD, the detaining authority is required to ensure, to the maximum extent possible, that these minimum conditions are met from the outset – that is, prior to placing a detainee at a specific detention site.Footnote ¹¹⁴ Reading these provisions together, considerations on disability must therefore factor into the planning and building of detention facilities, and, keeping in mind the prohibition of adverse distinction along with Article 6 of the CRPD and Article 2 of the CEDAW, male and female camp sections must be constructed to the same standard of accessibility. To this end, detaining authorities should seek input from stakeholders with insight on gender- and disability-specific considerations, including organizations of persons with disabilities, and should develop broad, standardized accessibility policies to be implemented throughout their detention facilities.Footnote ¹¹⁵ At the same time, it is conceivable that time constraints or limited resources might hinder their ability to ensure full accessibility of all detentions sites from the outset, not least because the required measures will depend on a variety of factors (e.g., different types of impairments among detainees, specific area and terrain, modalities of services). Such constraints are reflected in the wording of the above-mentioned IHL provisions, and contrary expectations would also go beyond the larger-scale principles stipulated by Article 9 of the CRPD.Footnote ¹¹⁶ However, these generally lawful considerations cannot serve as a justification to entirely disregard basic accessibility requirements over prolonged periods of time:Footnote ¹¹⁷ Detaining authorities must at the very least endeavour to monitor detention sites once detainees have been placed in them in order to identify fundamental accessibility gaps that should be addressed in future policies, and for this purpose should facilitate input of female detainees with disabilities on barriers they have encountered.Footnote ¹¹⁸ Beyond general accessibility considerations, Article 22 of GC III and Article 85(1) of GC IV furthermore call for the adoption of “mitigating measures”,Footnote ¹¹⁹ allowing for another parallel to be drawn to Article 5(3) of the CRPD and its concept of reasonable accommodation. “Mitigating measures” must then be understood as obliging detaining authorities to address remaining accessibility gaps by means of providing reasonable accommodation to female detainees with disabilities on a case-by-case basis. This obligation will be mandatory in light of the prohibition of adverse distinction, especially if the overall conditions of detention would otherwise fall below the minimum safeguards established by IHL.Footnote ¹²⁰

In practice, detaining authorities will have to take into account a woman’s specific impairment and any risks or barriers that may result from placing her in a certain detention facility. Such an assessment could for example include the (in-)accessibility of female-only bathroom facilities in the camp if she has a mobility impairment, or if she is pregnant and has a hearing impairment, the availability of medical staff trained in sign language to ensure adequate prenatal care. If any shortcomings are identified, the detaining authority may still consider placing the woman at said facility, so long as she is provided with individual accommodations suitable to overcome these barriers. Going back to the previous examples, this could include making modifications to a sufficient number of female-only hygienic facilities in order to make them accessible, or employing medical staff trained in her preferred means of communication. After placement, similar assessments should be carried out periodically to ascertain that the minimum safeguards under IHL are still being complied with, and where this is not the case, necessary accommodations must be provided.

Where far-reaching flaws would result in fundamentally unhealthy, unhygienic or dangerous conditions for a woman detainee with a disability, and where these cannot adequately be mitigated by way of reasonable accommodation, Article 22(2) of GC III and Article 85(1) of GC IV oblige the detaining authority to place her in a more suitable detention facility from the start, or to relocate her to such a facility as soon as possible.Footnote ¹²¹ While CIHL Rule 121 does not explicitly stipulate the same duty, in light of CIHL Rules 87 and 88, there can be little doubt that it is universally applicable: if key features of a detention site remain inaccessible to a woman with an impairment, and this inaccessibility is rooted in the site’s overall design or location, not only does the site fall short of affording every guarantee of hygiene and healthfulness, but the resulting detention conditions will almost inevitably breach the threshold of inhuman treatment and will in any case constitute adverse distinction.Footnote ¹²² This would for example be the case if pathways connecting sleeping quarters to female-only bathroom facilities cannot be navigated safely even with the use of mobility aids, if cold climates would severely aggravate pre-existing conditions such as arthritis, or if psychological support and reproductive health services were not accessible to a woman with a vision impairment whose sexual assault has resulted in pregnancy.

Crucially, relocation remains a means of reasonable accommodation even in cases where the detaining authority is unable or unwilling to implement other mitigating measures. Since compliance with the minimum guarantees of common Article 3 is not subject to exceptions and must be observed by all parties to any armed conflict, it must be argued that where fundamental shortcomings in a detention site’s design or location put a disabled woman’s humane and equal treatment at risk, the duty to relocate her is equally absolute. If relocation is genuinely not possible, or if similar shortcomings in alternative detention facilities mean that relocation would not, in fact, serve to ensure her humane and equal treatment, her release and repatriation would thus have to be considered as a final (and mandatory) means of reasonable accommodation, both in IACs and in NIACs.Footnote ¹²³

Personal hygiene

Women with disabilities deprived of their liberty in the context of an armed conflict will face a multitude of barriers in their access to essential facilities and services,Footnote ¹²⁴ including those relating to personal hygiene. At the same time, the ability to keep clean with the maximum degree of independence possible is directly tied to their dignity as human beings and forms an essential component of their humane treatment within the meaning of IHL.Footnote ¹²⁵ The direct linkages between disability, maintenance of personal hygiene in detention settings and human dignity are perhaps best illustrated by a case brought before the European Court of Human Rights (ECtHR) in 2001. In this case, a woman with a severe mobility impairment who had been imprisoned in the UK was housed in premises where both the bed and the toilet were inaccessible to her. She was left sitting on the toilet for hours at a time, routinely lifted on and off the toilet by male officers, undressed from the waist up in the presence of male officers, made to sleep in her wheelchair, and generally “unable to go to the toilet or keep clean without the greatest difficulty”.Footnote ¹²⁶ Such conditions are frighteningly common experiences among persons with disabilities deprived of their liberty,Footnote ¹²⁷ and can hardly be reconciled with the basic safeguards set forth in the CRPD.Footnote ¹²⁸

IHL stipulates similar basic safeguards for detainees, namely in the form of Article 29 of GC III, Article 85 of GC IV and CIHL Rules 118 and 119, obliging detaining authorities to provide detainees with adequate hygienic facilities segregated by gender.Footnote ¹²⁹ Read alongside the prohibition of adverse distinction, these provisions require detaining authorities to pay especially due regard to the hygiene needs of female detainees by, inter alia, providing them with safe and regular access to clean, female-only toilets and shower facilities, sufficient and suitable sanitary products for menstruation free of charge (along with the means to dispose of them), and any other means required to deal with their personal hygiene in dignity and privacy.Footnote ¹³⁰ The provision of such facilities and services is a strict obligation.Footnote ¹³¹ Considering again the prohibition of adverse distinction, in combination with Article 2 of the CEDAW and Articles 5 and 6 of the CRPD, and the intrinsic links to detainees’ humane treatment as per common Article 3, it is clear that all such facilities must also be made accessible to female detainees with a wide range of impairments, and that their intersectional needs must be taken into account by providing reasonable accommodation wherever necessary.Footnote ¹³² Such intersectional needs include the hygiene needs of pregnant, postpartum, nursing or menstruating detainees with disabilities, who must be provided with safe, daily access to bathing facilities and a regular supply of water.Footnote ¹³³ By way of reasonable accommodation, they may for example be provided with menstruation cups if these facilitate ease of use (even if the same materials are not available to menstruating detainees without disabilities), or be temporarily housed closer to washroom facilities. Other accommodations could take the form of structural adjustments such as equipping showers with extra stools,Footnote ¹³⁴ installing handrails, increasing the spaciousness of a sufficient number of bathroom stalls in order to facilitate access with mobility aids, and installing waste bins that do not need to be opened with a foot pedal for the disposal of sanitary products.Footnote ¹³⁵ In keeping with the express requirement to provide hygienic facilities segregated by gender, detaining authorities cannot meet these obligations by requiring female detainees with disabilities to make use of accessible sanitary installations in male camp sections instead: not only would this expose the women in question to humiliation, degradation and an unacceptably high risk of sexual assault, but given that they would likely have to remain in a state of undress around persons of the opposite gender for considerable amounts of time, it would in and of itself amount to an act of gender-based violence.Footnote ¹³⁶

Another form of reasonable accommodation may consist in the provision of physical assistance to female detainees with disabilities. Considering the intimate and sensitive nature of one’s personal hygiene and its intrinsic links to human dignity, physical safety and mental well-being, it must however remain of paramount priority that detained women with disabilities be permitted to take care of their personal hygiene with the greatest possible degree of independence:Footnote ¹³⁷ wherever other forms of reasonable accommodation (including relocation and repatriation)Footnote ¹³⁸ are feasible, the detaining authority has a duty to implement them first, and failure to do so will amount to inhuman treatment. Only in remaining cases may detaining authorities arrange for assistance, but in those cases, they are under an absolute obligation to do so. Great caution must then be exercised in adjusting each individual arrangement to the precise needs of the woman concerned, ensuring her safety and avoiding undue invasions of her privacy or independence. To this end, the following guidelines are proposed:

• • Assistance with personal hygiene is to be recognized as an official duty – that is, it must be officially assigned to staff members of the detaining authority. This is to prevent instances where female detainees with disabilities would have to rely on pure luck or the goodwill of fellow detainees:Footnote ¹³⁹ most notably, the detaining authority cannot absolve itself from its own obligations by claiming that other detainees are (or could be) “helping out”, not least because this opens up the very real possibility of the women in question not being able to keep sufficiently clean when nobody is found to assist them.Footnote ¹⁴⁰

• • Assistive duties must be assigned exclusively to female staff members. The reasons for this are rather self-explanatory: preventing humiliation and degradation of women with impairments by having to undress in front of men and enduring prolonged physical contact with them while naked, as well as minimizing the risk of sexual assault.

• • Any female staff member officially assigned such assistive duties must receive prior, adequate training. These trainings should address aspects such as the distinct needs resulting from specific impairments, sensitivity on both gender- and disability-related matters, and practical guidance on how the required assistance is to be properly carried out.Footnote ¹⁴¹ On the one hand, this serves to ensure the physical safety of women who are to be assisted, as improper assistance can quickly become painful or even result in serious injuries. On the other hand, it allows for maintaining the greatest possible respect for women’s dignity and privacy. Detaining authorities must also not presume that female personnel have expertise in assisting other women simply by virtue of being women themselves;Footnote ¹⁴² trainings should thus include guidance on issues such as assisting postpartum, pregnant or menstruating women with disabilities.

• • Finally, the concrete form and modalities of assistance must be determined in close, continuous consultation with each individual female detainee with a disability, in order to ensure that they meet her specific needs without going beyond what is actually required. Some women may, for example, only require assistance in washing certain parts of their body, in which case they must be given sufficient room to cleanse the remaining areas in private. Female detainees who require some degree of assistance should also receive it on a more frequent basis while they are menstruating, as well as during pregnancy, after giving birth and while breastfeeding.Footnote ¹⁴³

Assistance that does not follow these principles will almost certainly amount to inhuman treatment in some shape or form; hence, it would seem advisable for detaining authorities to develop general policies and training modules in this regard. Even beyond the provision of physical assistance, it must be kept in mind that where detaining authorities do not take into account the intersectional personal hygiene needs of female detainees with disabilities, the result will more often than not be a de facto deprivation of basic sanitary standards, which at a minimum violates both the principle of humane treatmentFootnote ¹⁴⁴ and the prohibition of adverse distinction, and may even amount to cruel or degrading treatment, outrages upon personal dignity and/or torture in violation of the universally applicable standards established by common Article 3.Footnote ¹⁴⁵

Adequate and necessary medical care

Article 30 of GC III, Article 91 of GC IV and CIHL Rule 118 serve to ensure that detainees receive adequate and necessary medical care as required by both their mental and physical state of health.Footnote ¹⁴⁶ A detailed examination of these provisions would go beyond the scope of this paper, but their fundamental significance for female detainees with disabilities nevertheless merits general examination – not least because gender- and disability-based discrimination is exceedingly common in medical settings.Footnote ¹⁴⁷ While the concrete modalities of medical care may differ depending on the specific circumstances of an armed conflict, medical care provided by detaining authorities must, at a minimum, safeguard detainees’ humane treatment.Footnote ¹⁴⁸ The gender and disability dimension of humane treatment in relation to medical care can be further substantiated by consulting the current IHRL framework on the right to health: Article 12 of the CEDAW in this sense requires the elimination of all forms of discrimination against women in the medical field. Beyond ensuring women’s equal access to general health services alongside men, this includes the provision of gender-specific services such as those addressing women’s sexual and reproductive health, and any medical care necessary to meet the needs of women who have been subjected to sexual violence.Footnote ¹⁴⁹ Article 25 of the CRPD takes a similarly differentiated approach to the right to health of persons with disabilities, mandating both access to general health care on an equal basis with others and access to health services specifically in relation to impairment.Footnote ¹⁵⁰ The latter distinction serves as a safeguard against the outdated medical approach to disability, as do the explicit references to informed consent and the gender-sensitivity of medical services.Footnote ¹⁵¹ In light of these provisions, “adequate and necessary medical care” within the meaning of IHL must no doubt be gender- and disability-sensitive, remain guided by medical necessity and limited by informed consent, and take a multi-pronged approach that sufficiently addresses the multilayered health-care needs of disabled female detainees without reducing them to their impairment.Footnote ¹⁵²

To comply with these obligations, the detaining authority must for example ensure that available medical services are adequately equipped to address women’s gender-specific health issues, as well as manage their existing impairments.Footnote ¹⁵³ In line with Article 9 of the CRPD, all medical services, facilities and pieces of equipment must be accessible to female detainees with different impairments, including information on how or where to seek treatment and information provided by medical staff.Footnote ¹⁵⁴ Where general accessibility standards fall short of meeting a detainee’s individual accessibility requirements, detaining authorities must facilitate access by adopting individual measures on a case-by-case basis, in parallel to reasonable accommodation as per Article 5(3) of the CRPD.Footnote ¹⁵⁵ Medical screenings of female detainees with disabilities must be thorough, taking into account that in some contexts, women may have greater primary health-care needs than men upon arrival in detention due to gendered biases in health-care systems and the effects of gender-based violence, and that these circumstances are further exacerbated for women who also have a disability.Footnote ¹⁵⁶ Medical examinations should wherever possible be carried out by female medical staff or at the very least in the presence of a female staff member; non-medical male personnel must not be present unless absolutely necessary, meaning that any assistive personnel accompanying female detainees with disabilities (e.g. sign language translators) should be female.Footnote ¹⁵⁷ In a more general sense, detaining authorities must take disabled female detainees’ reports of pain, discomfort or any other complaint regarding their mental or physical health equally as seriously as those of male detainees, including in cases where the woman has a psychosocial or intellectual disability, and must not disregard or ascribe less importance to health issues which primarily or exclusively affect women, or those which stem from impairments.Footnote ¹⁵⁸ If sufficient gender- and disability-sensitive medical care cannot be provided on site (for example, because there is no female medical staff member available that is familiar with a detainee’s specific impairment, or because a swimming pool that could be used for physiotherapy exercises is also frequented by male detainees), another form of reasonable accommodation that the detaining authority is obliged to provide consists in arranging for the necessary care to be provided by external specialists.Footnote ¹⁵⁹

Beyond these general considerations, there is one aspect of medical care which, throughout history, has proven particularly fraught for women with disabilities: their sexual and reproductive health rights.Footnote ¹⁶⁰ As a deep-seated disregard for these rights continues to result in widespread practices of forced sterilization, forced abortion, coercive use of contraceptives and forced pregnancy,Footnote ¹⁶¹ it suffices to say that any such conduct not only fails to comply with IHL provisions mandating “adequate and necessary” medical care based on women’s free and informed consent, but also constitutes gender-based violence and discrimination in violation of the CEDAW,Footnote ¹⁶² a violation of a myriad of provisions stipulated by the CRPD,Footnote ¹⁶³ and inhuman treatment, cruel treatment, outrages upon personal dignity and sexual violence in violation of common Article 3.Footnote ¹⁶⁴ Aside from categorically refraining from these practices, detaining authorities must furthermore take active steps to safeguard the sexual and reproductive health of women with disabilities detained in their power:Footnote ¹⁶⁵ If one of them has been subjected to rape or other types of sexual assault, she must for example receive immediate access to sexual and reproductive health services, including testing for and treatment of sexually transmitted diseases based on her informed consent, and accessible psychological support.Footnote ¹⁶⁶ Women with an impairment who are pregnant upon capture or become pregnant over the course of captivity must receive accessible information on available sexual and reproductive health services as soon as possible, and be granted access to the services they wish to use without delay.Footnote ¹⁶⁷ Available services in this sense must include timely and safe abortions if a detainee chooses to terminate the pregnancy, as well as disability-sensitive prenatal care, support during childbirth and postnatal care if they choose to carry the pregnancy to term.Footnote ¹⁶⁸ Equipment used for obstetrical and gynaecological health services must be suitable for use by women with a wide range of impairments, and individual courses of treatment must be responsive to any potential impact that a woman’s specific impairment may have on her mental and physical health during and after pregnancy, as well as during childbirth.Footnote ¹⁶⁹ After giving birth, female detainees with disabilities must finally not be separated from their children and must not be prevented or discouraged from breastfeeding them.Footnote ¹⁷⁰

In sum, detained women with disabilities must receive the medical care they require on an equal basis with others, including medical care that is responsive to their intersectional health-care needs.Footnote ¹⁷¹ Experience has shown that where this is not the case, shortcomings in medical care can and will very quickly amount to inhuman or cruel treatment, outrages upon personal dignity and even torture in violation of both IHL and IHRL.Footnote ¹⁷²

Disciplinary punishments

A detailed analysis of the IHL frameworks governing disciplinary punishments of detainees would again go beyond the scope of this paper,Footnote ¹⁷³ but among these frameworks, Article 89 of GC III and Article 119 of GC IV do lend themselves particularly well to closer examination. Listing an exhaustive array of disciplinary punishments to which detainees may be subjected, these provisions also establish the minimum safeguard that such punishments must in no case be inhuman, brutal or dangerous to detainees’ health.Footnote ¹⁷⁴ Albeit less detailed, common Article 3(1)(a) and (c), as well as CIHL Rules 87 and 90, establish the same standards as applicable to NIACs.Footnote ¹⁷⁵ A punishment is considered in breach of these provisions if it causes serious physical or mental suffering, which must be determined on a case-by-case basis, factoring in detainees’ individual circumstances.Footnote ¹⁷⁶ As with the general prohibition against inhuman treatment, a detainee’s gender and disability will have a major impact on this assessment, one which detaining authorities must adequately consider when determining the form and modalities such punishments may take.Footnote ¹⁷⁷ Three of the generally permissible punishments listed in Article 89 of GC III and Article 119 of GC IV shall briefly be discussed here, to illustrate what form this assessment could take.

As far as the withdrawal of privileges is concerned, it is well established that “privileges” only extend insofar as their withdrawal does not touch upon minimum guarantees enshrined within IHL.Footnote ¹⁷⁸ Any accommodations that serve to achieve the humane and equal treatment of female detainees with disabilities – such as accessible sanitary products for menstruation, assistive devices or psychological care after sexual assault – therefore do not constitute “privileges” that can be lawfully withdrawn as a form of disciplinary punishment.

In some cases, the compounding effects of gender and impairment may also render the imposition of fatigue duties on a female detainee with a disability inhuman, brutal or dangerous to her health.Footnote ¹⁷⁹ This threshold could for example be breached if she is pregnant or has recently given birth, if performing the duty would aggravate an existing condition, if she were faced with barriers in the operation of tools or equipment that would render the task unsafe, or if the assigned duty were physically or psychologically much more difficult for her to perform compared to male detainees or detainees without an impairment.Footnote ¹⁸⁰

Lastly, Article 89 of GC III and Article 119 of GC IV list confinement as an admissible form of disciplinary punishment, but the imposition of close or solitary confinement carries serious implications both from a gender and a disability perspective. From a gender perspective, isolating women from daily life in captivity creates opportunities for physical and sexual assault and risks further traumatization.Footnote ¹⁸¹ The mental and physical effects of confinement on pregnant women, nursing mothers or mothers of young infants can be particularly severe, as it may result in the deprivation of essential medical care, prolonged periods of separation from young children, and an increased risk of obstetric violence.Footnote ¹⁸² Overwhelming evidence also suggests that even short periods of solitary confinement can cause mental or physical suffering so severe for persons with disabilities that it breaches the threshold of cruel, inhuman or degrading treatment, especially for detainees with pre-existing psychosocial or intellectual impairments.Footnote ¹⁸³ At the same time, persons with these types of impairments are disproportionately likely to be held in confinement as a substitute for proper medical or psychiatric care, because their behaviour is misinterpreted as a danger to others, or simply because it is viewed as a disturbance.Footnote ¹⁸⁴ For female detainees with disabilities, any form of confinement carries particularly high risks as it is likely to result in the restriction of essential accommodations and loss of access to important reporting and monitoring mechanisms.Footnote ¹⁸⁵ The use of close confinement as a measure of disciplinary punishment for female detainees with disabilities is therefore strongly discouraged, whereas solitary confinement must be seen as wholly impermissible under the principle of humane treatment.Footnote ¹⁸⁶ Similarly, the imposition of any type of confinement on pregnant, postpartum or nursing detainees with an impairment or disabled mothers who are detained together with their young children can in no case be reconciled with these minimum safeguards.Footnote ¹⁸⁷ In any case, a woman detainee’s impairment must not be the primary reason for the imposition of confinement as a disciplinary measure.Footnote ¹⁸⁸

Repatriation of female detainees with disabilities as a means of reasonable accommodation

From the considerations discussed so far, it is evident that women detainees with disabilities face an exceedingly high risk of inhuman treatment and discrimination, unless their distinct needs are met by means of reasonable accommodation. In some cases, however, a detaining authority might be unable or unwilling to implement the necessary measures. Articles 109–110 of GC III, Article 132 of GC IV and CIHL Rule 128 offer another, overarching means of reasonable accommodation, laying out the respective frameworks under which detainees can or must be repatriated while hostilities are still ongoing: in essence, detaining authorities must repatriate PoWs who are “seriously wounded or sick”,Footnote ¹⁸⁹ while civilian interneesFootnote ¹⁹⁰ and those detained in NIACsFootnote ¹⁹¹ must generally be released as soon as the reasons for their internment cease to exist, meaning as soon as they no longer pose a security threat.

Without accounting for differences in these regimes, some female detainees with disabilities will certainly fall within their immediate scope, such as women who are paralyzed from the neck down, those with severe psychosocial impairments,Footnote ¹⁹² or pregnant detainees whose impairment places them at risk of experiencing serious complications.Footnote ¹⁹³ Beyond these clear-cut cases, however, an approach in line with the social model of the CRPD demands caution: it must not be assumed that women detainees with disabilities will automatically qualify as “seriously wounded or sick” or “no longer posing a security threat” simply because they have an impairment.Footnote ¹⁹⁴ Such an assumption would fail to recognize that impairments take different forms, occur at varying degrees of severity and can be of a periodical rather than a permanent nature. Women experiencing chronic migraines or endometriosis, for example, may be perfectly fine outside of acute episodes, and thus perfectly capable of posing a security threat upon release. In light of this tension between the protective mandate of IHL and the social model of the CRPD, the argument has been put forth that detaining authorities’ inability to ensure compliance with fundamental IHL guarantees should equally trigger an obligation to repatriate certain detainees.Footnote ¹⁹⁵

Considering the intersectional dimension of common Article 3 as informed by the CEDAW and the CRPD, this indeed seems to be the more appropriate approach. By extending the scope of respective provisions, repatriation will serve as a final, mandatory form of reasonable accommodation in cases where detaining authorities are unable or unwilling to otherwise guarantee the humane and equal treatment of individual women with a disability:Footnote ¹⁹⁶ reasonable accommodation as per Article 5(3) of the CRPD must namely be provided so long as it does not constitute a “disproportionate or undue burden”, which refers to a “proportional relationship between the means employed [i.e., repatriation] and its aim” (i.e., preventing inhuman treatment and/or adverse distinction).Footnote ¹⁹⁷ If the aim is to ensure compliance with fundamental IHL guarantees, then the resources required for repatriation must in no case be seen as imposing an excessive burden.Footnote ¹⁹⁸ A different interpretation would arguably run counter to the very nature of common Article 3 as a universal safeguard, since failure to release these women from captivity would inevitably result in their inhuman treatment and discrimination. Assessments determining whether or not a specific woman detainee must be repatriated will then have to encompass the full spectrum of intersectional circumstances that inform her experiences throughout detention; with reference to the above considerations, she would for example have to be repatriated if the location and/or premises of all potential detention sites were fundamentally unsuitable for her, if available medical services were not adequately equipped to respond to her intersectional health-care needs, if she were not able to maintain her personal hygiene as independently as possible or if detaining authorities could not sufficiently protect her against sexual violence.

Going back to the example above, a woman experiencing chronic migraines – a neurological condition primarily affecting women,Footnote ¹⁹⁹ which is associated with debilitating symptoms such as extreme pain, nausea, vision or speech impairments and partial paralysis – will thus have to be repatriated if the detaining authority is unable or unwilling to provide her with medication for symptom relief during acute attacks, or if all of its detention sites are located in climatic conditions such as to trigger attacks at higher than usual frequency. Yet another example would be that of a woman with a vision impairment who becomes pregnant while being detained as a civilian internee or by an NSAG,Footnote ²⁰⁰ and whose pregnancy could lead to further deterioration of her eyesight. If she decides to terminate the pregnancy but the detaining authority is unwilling or unable to facilitate access to safe abortion, she must instead be released without delay.Footnote ²⁰¹ Conversely, she must also be released if she decides to carry the pregnancy to term and the detaining authority is unable or unwilling to offer accessible medical treatment aimed at safeguarding her vision. Finally, in light of the prerequisite of informed consent as per Article 12 of the CEDAW and Article 25(d) of the CRPD, the detaining authority must not coerce her to undergo an abortion in an attempt to avoid having to arrange for specialized medical care, and her refusal to do so cannot be cited as a reason not to have to repatriate her.Footnote ²⁰²

Representation, participation and inclusion

In the quest to better respond to the needs of women detainees with disabilities, one resource remains valuable above all others: the input of these women themselves, not least because policies adopted without such input are likely to fall short of effectively addressing the barriers they face. Yet as harmful stereotypes around gender and disability continue to persist, women with disabilities continue to be excluded from decision-making processes even in matters that directly concern them.Footnote ²⁰³ An opportunity for counteracting these blind spots lies in Article 78 of GC III and Article 101 of GC IV, which expressly enshrine the right of detainees to make requests or voice complaints regarding the conditions under which they are being detained, as well as Articles 79–80. of GC III and Articles 102–103 of GC IV, which provide for the election of prisoners’ representatives and internee committees tasked with a range of functions. Obligations flowing from these provisions will only apply to States Parties that are involved in IACs, however, as neither common Article 3 nor CIHL establish similar duties. Despite the lack of a direct legal obligation, detaining authorities in NIACs should nevertheless be encouraged to facilitate meaningful participation of women with disabilities they are detaining – on the one hand, this serves to ensure compliance with fundamental IHL obligations that are binding on them, and on the other, it can significantly reduce the amount of resources spent on measures that ultimately turn out to be ineffective.Footnote ²⁰⁴

IHRL already offers extensive grounds for promoting the full and equal participation of women with disabilities in decision-making processes at all levels. Article 7 of the CEDAW, for instance, mandates the elimination of all forms of discrimination against women in political and public life, including by ensuring their right to vote, be eligible for election and participate in the formulation and implementation of policies. Article 29 of the CRPD equally stipulates the participation of persons with disabilities in political and public life.Footnote ²⁰⁵ Frameworks such as the WPS agenda or the Beijing Platform further highlight the importance of mainstreaming gender perspectives in conflict-related decision-making processes, also recognizing that diverse representation presupposes equal and meaningful participation of women with disabilities.Footnote ²⁰⁶

While it has been traditionally difficult to point to parallel IHL obligations facilitating direct and diverse participation, the above provisions offer an important opportunity to push for parties to an armed conflict to facilitate the inclusion of gender, disability and other intersectional or marginalized perspectives.Footnote ²⁰⁷ The right of detainees to address shortcomings in detention conditions as per Article 78 of GC III and Article 101 of GC IV is thus of particular importance as a means of drawing attention to and rectifying barriers or protection gaps: female detainees with disabilities must be encouraged to make use of this right as much as possible, to which end camp authorities should consider implementing policies to inform them of it (as well as the modalities on where and how it can be exercised) in accessible formats, for example as part of processing procedures upon arrival.Footnote ²⁰⁸ Procedures for submitting requests or complaints must allow for accommodations if standard procedures were to create barriers for certain types of impairments,Footnote ²⁰⁹ and by virtue of the prohibition of adverse distinction, all submitted requests must be considered equally and in good faith, meaning for instance that detaining authorities must not automatically dismiss requests submitted by women with intellectual or psychosocial impairments.Footnote ²¹⁰ Lastly, detaining authorities must ensure that complaints related to sexual assault can be relayed confidentially to female staff members, who must have been sensitized towards the circumstances of detained women with disabilities and must have received training on how to proceed without causing further victimization, including by implementing measures to protect them against retaliation.Footnote ²¹¹

Aside from individual complaint mechanisms, prisoners’ representatives and internee committees established on the basis of Articles 79–80 of GC III and Articles 102–103 of GC IV also fulfil an essential function in furthering the physical, spiritual and intellectual well-being of detainees – notably all detainees, including female detainees with disabilities.Footnote ²¹² They will naturally be best placed to achieve this purpose if the diverse backgrounds of said detainees are also represented among their membership; detaining authorities should therefore consider facilitating the election of women representativesFootnote ²¹³ and undertake to sensitize these representatives towards the distinct circumstances of female detainees with disabilities, for example through introductory trainings or by facilitating meaningful consultations. An even better approach would be to facilitate the election of female detainees with various impairments to fill such roles themselves, alongside other detainees with diverse backgrounds. Detaining authorities should proactively point them towards these opportunities and must provide the accommodations necessary to allow them to carry out their responsibilities effectively. In light of Article 7 of the CEDAW and Article 29 of the CRPD, detaining authorities must finally under no circumstances restrict women detainees with disabilities from voting for representatives (including by indirect means, such as inaccessible voting procedures),Footnote ²¹⁴ prevent them from standing for election themselves, or otherwise directly or indirectly preclude them from holding these positions.Footnote ²¹⁵