Inclusive Accountability

The field of international criminal law (ICL) has in recent years seen something of a revival with significantly more interest in seeking accountability for potential war crimes and acts of genocide in international courts, the advancement of years of work to facilitate justice for victims of international crimes through international legal cooperation, and the rare opening of negotiations for a treaty on crimes against humanity. Even as this renaissance is establishing more robust methods for ensuring greater accountability for international crimes, absent from these negotiations, discussions, and documents is consideration of persons with disabilities and their lived experiences.

This general exclusion from the ICL is not for a lack of documentation of, reporting on, or historical precedent in the specific targeting of persons with disabilities in the commission of international crimes. This exclusion is equally not for a lack of recognition of an obligation to ensure inclusion and access to justice for persons with disabilities who have been victims of international crimes. In the Convention on the Rights of Persons with Disabilities (CRPD), Article 11 provides an explicit obligation for States to accord protection to persons with disabilities by reading the disability-based rights and protections of the CRPD into all of their international law obligations including, but not limited to, those found in ICL. This obligation under the CRPD, and its continued relevance, is reiterated in paragraph two of UN Security Council resolution 2475 and in Sustainable Development Goal 16, both of which require international criminal accountability mechanisms to be inclusive of and accessible to persons with disabilities.

However, given the current interpretation, structure, and application of ICL, justice mechanisms cannot yet effectively ensure accountability for international crimes perpetrated against persons with disabilities. For example, the currently accepted interpretation of the protected categories under the Convention on the Prevention and Punishment of the Crime of Genocide does not include individuals with disabilities. While the drafters of the Genocide Convention did consider the inclusion of broader groupings of individuals, the strict understanding of the closed list of protected categories means that without alterations to the definition of genocide itself (which would require significant yet unlikely political will from States), the mass murder of persons with disabilities cannot be considered or prosecuted as genocide.

In the case of war crimes, while the international humanitarian law (IHL) duty to prevent, investigate, and prosecute necessarily includes those acts specifically targeting persons with disabilities—given that persons with disabilities are specially protected like women and children—researchers have shown that in practice there is a gap in the recognition and consideration of war crimes targeting persons with disabilities. For example, the Office of the Prosecutor of the International Criminal Court (ICC) has developed specific policy papers outlining standards and processes for investigating, charging, and prosecuting crimes—including war crimes—against children, but no similar policy has been developed for crimes against persons with disabilities. Making the duty to prevent, investigate, and prosecute war crimes inclusive of persons with disabilities in practice will require a concerted effort to mainstream the documentation and investigation of atrocities targeting persons with disabilities and the fostering of such understanding among ICL scholars and practitioners. Even with sufficient willingness to make these changes, it would, nevertheless, take significant time to fully implement.

By contrast, the crimes against humanity framework arguably provides more potential for advancing inclusive accountability for persons with disabilities. The definition of crimes against humanity contained in Article 7(2)(h) of the Rome Statute—although not universally accepted—does indirectly consider persecution specifically targeting persons with disabilities, as Rome Statute Article 21(3) requires  that the ICC apply and interpret the law in a manner “consistent with internationally recognized human rights,” which includes the CRPD. Nonetheless, the consequence of not explicitly referencing disability may explain why the Office of the Prosecutor of the ICC has not yet developed a policy on persons with disabilities, even though the logic of Articles 7 and 21 has been used to develop and update policies on crimes against children and sexual and gender-based violence (both of which are expressly mentioned in the crimes against humanity definition). This oversight is particularly conspicuous given that the stated goal of the above policies is to provide justice to groups historically excluded from, and who continue to struggle to obtain, justice within ICL mechanisms.

This omission of disability from the definition of crimes against humanity is contrary not only to the complementarity of the CRPD with ICL, but also ignores the jurisprudential legacy of the International Military Tribunals at Nuremburg, that charged and convicted individuals of crimes against humanity for the systematic targeting of a civilian population on the basis of their disability. There is, however, a unique opportunity to rectify this exclusion as draft articles on a crimes against humanity treaty are currently being negotiated within the United Nations’ Sixth Committee. While an explicit reference to disability is, at the moment, absent from draft Article 2(1)(h)—which defines persecution as a crime against humanity—the ongoing negotiations provide a critical opportunity to restore the legal legacy of Nuremburg while also harmonizing modern ICL with the international human rights law innovations ushered in by the CRPD. By adding the word “disability” to the specifically enumerated list of identifiable groups or collectives more vulnerable to targeted persecution, Article 2(1)(h) would provide recognition that persons with disabilities are protected and are guaranteed justice for atrocities under ICL.

At present, persons with disabilities and the crimes committed against them remain invisible in ICL. As a result, justice remains elusive for this historically marginalized and persecuted group. While avenues to advance inclusive accountability remain limited, the negotiation by the UN Sixth Committee of the draft articles on the prevention and punishment of crimes against humanity presents an important and rare opportunity to elevate persons with disabilities within the field of ICL.

William I. Pons is currently an Associated Member at the Institute for International Law of Peace and Armed Conflict (IFHV).