A. Mass Murder and Targeted Killing

Persons with disabilities are targeted for killing, often on a mass scale, during armed conflict.Footnote ²² The most notorious example occurred prior to and during World War II under Nazi killing programs.Footnote ²³ Patients in all government- and church-run sanatoria or nursing homes with a wide range of physical, sensory, intellectual, and mental disabilities perceived to be hereditary in nature were targeted for extermination.Footnote ²⁴ The mass killing of some 250,000 persons with disabilities by the Third Reich was clearly a CAH at the time of its commission under existing international law.Footnote ²⁵

Turning to more recent examples, evidence suggests that persons with disabilities were targeted for killing by the Khmer Rouge in Cambodia.Footnote ²⁶ Likewise, the Rwandan genocide resulted in mass killing of persons with disabilities, including those housed in rehabilitation institutions and psychiatric hospitals built by missionaries in Kigali.Footnote ²⁷

North Korea presents another modern example of disability-based persecution. UN reports have provided compelling evidence pointing to CAH, including targeted killings of persons with disabilities through infanticide, disappearance of children with disabilities by forced removal from their parents, and willful neglect of prisoners with disabilities resulting in death.Footnote ²⁸ Emerging evidence indicates that these violations are rooted on assumptions about genetic “purity,”Footnote ²⁹ not unlike the claims of racial hygiene that the Nazi regime used as the basis for its program of extermination against persons with disabilities.Footnote ³⁰ Yet, remarkably, such treatment was barely noted by the UN Commission of Inquiry established to investigate possible CAH committed by the North Korean regime.Footnote ³¹ These omissions highlight the lack of enforcement and awareness of international criminal law protection for disability-based crimes, including the absence of processes to collect evidence of such crimes.

Numerous instances of persons with disabilities being subjected to human rights violations that often lead to death also exist in the situation of armed conflict.Footnote ³² There is evidence of disability-targeting in contexts involving forced displacement where persons with disabilities and or their family members were killed for lagging behind.Footnote ³³ Similarly, the practice of institutionalization in dangerous conditions has resulted in preventable mass deaths as documented in a range of instances.Footnote ³⁴ Evidence likewise exists that government-run hospitals have deliberate policies of withholding food and water to infants and children with disabilities, and that their implementation has led to the deaths of many children with disabilities.Footnote ³⁵

The well-documented ritual killing of persons with albinism, and subsequent impunity for such killings and attacks, is yet another example of the targeted killing of persons with disabilities.Footnote ³⁶ This issue is beginning to garner some attention following the appointment of an Independent Expert on the enjoyment of human rights by persons with albinism.Footnote ³⁷ A study conducted by the Independent Expert disclosed “hundreds of cases of attacks and other related violations such as murder, mutilation, ritual rape, infanticide and trafficking of persons, organs and body parts, as well as grave robberies” reported across twenty-eight countries in the East Africa region in the past decade.Footnote ³⁸

All these myriad mass murders and targeted killings clearly contravene international criminal law. Yet none of them has been prosecuted as CAH, demonstrating the differential treatment accorded when victims have been persons with disabilities.

B. Forced Sterilization

Mass forced sterilization has long been visited on women, girls, and also boys and men with disabilities, often with a eugenic justification.Footnote ³⁹ Most notorious was the Nazi legislation authorizing compulsory sterilization for persons labeled as having a broad range of physical and mental disabilities, which led to mass sterilization of some 375,000 persons.Footnote ⁴⁰ This policy drew its inspiration from the bogus “science” of American eugenics and the resulting policies to impose sterilization and marriage prohibitions on persons deemed unfit; here, the Third Reich brought to scale a practice that had proliferated in the United States and other countries prior to the onset of World War II.Footnote ⁴¹ Beyond the notorious Nazi cases, modern examples abound.Footnote ⁴² Documented cases of mass sterilization practices for girls and women (and sometimes boys and men) with disabilities have occurred in, and are sometimes committed by, a diverse range of countries including Australia,Footnote ⁴³ Canada,Footnote ⁴⁴ Colombia,Footnote ⁴⁵ Hungary,Footnote ⁴⁶ India,Footnote ⁴⁷ Japan,Footnote ⁴⁸ North Korea,Footnote ⁴⁹ Sweden,Footnote ⁵⁰ and the United States,Footnote ⁵¹ among others.Footnote ⁵²

Increased attention is slowly being paid to programs of forced sterilization perpetrated against persons with disabilities as CAH in human rights reporting.Footnote ⁵³ While forced sterilization of women with disabilities ought to constitute a CAH when committed as part of a widespread or systematic attack directed against a civilian population, well documented cases of systematic sterilization of persons with disabilities have not garnered the attention of prosecutions under modern international criminal law.Footnote ⁵⁴

C. Involuntary Medical and Scientific Experimentation

Human experimentation without consent has long been perpetrated against groups subject to historical disadvantage and discrimination, usually with impunity. Medical experimentation on persons with disabilities in the United States is documented from the late 1800s onward and includes a vast array of unethical and often harmful experiments on children and adults with disabilities without informed consent.Footnote ⁵⁵ Prominently, horrific medical experiments were visited upon persons with disabilities during the Nazi era.Footnote ⁵⁶ Most recently, North Korea is alleged to have performed experimentation without consent on children with disabilities under the administration of the South Hamgyong Province “Hospital 83.”Footnote ⁵⁷

Medical or scientific experimentation in the absence of informed consent contravenes the prohibition against torture as set out in the International Covenant on Civil and Political Rights,Footnote ⁵⁸ and affirmed by the CRPD.Footnote ⁵⁹ When occurring in the context of armed conflict, as in the Nazi cases, such conduct also clearly constitutes war crimes meriting prosecution.Footnote ⁶⁰ However, with the exception of Nazi-perpetrated crimes—which did, uncharacteristically, result in criminal responsibility for war crimes and CAHFootnote ⁶¹—these egregious human rights violations targeting persons with disabilities have not been prosecuted as CAH.

D. Use as Human Shields, Suicide Bombers, and Booby Traps

Mounting evidence indicates that, contrary to IHL, persons with disabilities are being used as human shields and as suicide bombers in armed conflict. Most recently this has been reflected in human rights documentation of atrocities committed by ISIS in Iraq using persons with disabilities as human shields.Footnote ⁶² There is also anecdotal evidence of ISIS using children with disabilities as booby traps for opposing forces.Footnote ⁶³ The use of civilians as human shields constitutes a war crime and is a serious violation of the right to life and liberty under several IHL instruments.Footnote ⁶⁴

As with data on the recruitment of women and children for violence as suicide bombers, evidence on coercive employment of persons with disabilities for suicide bombing is limited, yet emerging.Footnote ⁶⁵ Instances of forcing persons with disabilities to become agents of attacks, as in the case of human shielding and suicide bombing or booby trapping,Footnote ⁶⁶ are particularly egregious crimes, especially in view of the protected status of individuals with disabilities under IHL.Footnote ⁶⁷ These warrant the same attention, through prosecution of such acts as a CAH, given by international criminal law and process as that received by the forced recruitment of women and the recruitment of children, both of whom, like persons with disabilities, enjoy special protection.Footnote ⁶⁸ Yet these human rights violations against persons with disabilities have not been prosecuted as CAH.

E. Institutionalization, Sexual Violence, Human Trafficking, and Forced Disappearance

The long-term, even permanent, institutionalization of persons with disabilities, frequently in isolated environs within rural areas or locations set apart from established communities, exposes such individuals to a variety of risks up to and including human rights violations that rise to a level of CAH and constitute violations of international criminal law.Footnote ⁶⁹ This disability-targeted institutionalization and the connected crimes that follow are exacerbated during times of armed conflict as illustrated by the extermination of persons with disabilities in institutions during World War II and the Rwandan genocide.Footnote ⁷⁰ Evidence supports the finding that warehousing persons with disabilities in social care homes, orphanages, and psychiatric hospitals, leaves them at risk for some of the most egregious human rights abuses.Footnote ⁷¹ Such documentation details conditions for people with physical and mental disabilities in dismal and dangerous institutions with unhygienic conditions, use of physical restraints, lack of adequate food, water, clothing, and medical care, and other life threatening conditions, including instances of patients freezing to death.Footnote ⁷²

Women and girls with disabilities, as well as persons with intellectual and psychosocial disabilities, are at particularly high risk for systemwide violence and sexual abuse when confined to institutions, as documented by Disability Rights International (DRI) in its report released during the conflict in Kosovo.Footnote ⁷³ Human rights reporting by DRI in Guatemala revealed disturbing evidence of a pattern of trafficking highly vulnerable women patients in a dismal psychiatric institution across the street into a nearby male prison.Footnote ⁷⁴ In another of their human rights reports, which also showed a nexus between institutionalization, disability, and human trafficking, a Kenyan official from the Ministry of Labor and Social Protection admitted that “trafficking is very high” in institutions, and that “children are being recruited and shipped out of the country with promises of better lives but they go and they end up in brothels where they are sexually exploited.”Footnote ⁷⁵

The UN Flagship Report on Disability confirms that “[t]he interplay of individual, family-related, socioeconomic and structural factors has exposed persons with disabilities, especially children with disabilities, to the risks of abuse, exploitation, trafficking and violence.”Footnote ⁷⁶ Also troubling are recent reports specifically documenting the clear link between foreign funding of orphanages in poor countries and volunteerism, and the practice of recruiting families to leave their children with disabilities in the care of unqualified and minimal staff in dangerous conditions; this cycle renders children with disabilities highly vulnerable to sexual exploitation and abuse and human trafficking.Footnote ⁷⁷ The Lumos Foundation's work on ending institutionalization in Europe, and more recently in Haiti, reinforces these findings.Footnote ⁷⁸ Anecdotal evidence points to children with disabilities being trafficked, and even intentionally harmed resulting in aggravated or secondary disability, for the purposes of begging.Footnote ⁷⁹ Yet, despite increasing acknowledgment of the linkages between the institutionalization of persons with disabilities and human trafficking, such recognition has not resulted in attention by investigative bodies,Footnote ⁸⁰ including UN treaty monitoring bodies.Footnote ⁸¹

Other serious violations of the rights of persons with disabilities, with nexuses to human trafficking, are occurrences of the forced movement and forced disappearance of persons with disabilities. Some of the more grievous examples come from firsthand accounts of defectors from North Korea who indicate that persons with disabilities are forcibly removed from their families and segregated in locations inaccessible to the public.Footnote ⁸² Still, these atrocities against individuals with disabilities have not yet been considered for prosecution as a CAH.

F. Attacks Against Buildings Dedicated to Education, Health Care, and Rehabilitation

Among the violations of international criminal law that have a disproportionate effect on persons with disabilities are attacks on buildings dedicated to education, health care, and rehabilitation. When committed in the context of armed conflict, such attacks constitute war crimes under IHL.Footnote ⁸³ These attacks contribute to multilayered human rights violations in the lives of persons with disabilities residing in or otherwise utilizing facilities such as special schools, orphanages, social care homes, or psychiatric facilities by depriving them of their basic right to life, placing them at greater risk during armed conflict, and restricting their movement.Footnote ⁸⁴ When the victims are children with disabilities, the impact is compounded and suffered by a group specifically protected under IHL on two grounds: age and disability.Footnote ⁸⁵ Accordingly attacks on buildings dedicated to education, health care, and rehabilitation should, but have not yet been, prosecuted as CAH.

A. The Disability Inclusion Mandate of Article 11

CRPD Article 11 (Situations of Risk and Humanitarian Emergencies) provides an explicit obligation to accord protection to persons with disabilities consistent with international law obligations writ large. The provision—unique in the human rights lexicon—calls for a transversal reading of human rights protection in situations of risk across the domains of international law including, but not limited to, human rights and IHL. Specifically, states must take “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 ⁸⁷

Article 11's text is significant given the reluctance in legal scholarship and practice to read norms from discrete areas of international law, such as IHL and human rights law, as complementary, co-applicable, and mutually supportive.Footnote ⁸⁸ The explicit inclusion of Article 11 supports the proposition that perpetrators must be held accountable for violations of international law against persons with disabilities and that disability-based persecution must be prosecuted, including in international criminal process. The implications for a reading of the standards set forth in the CRPD for international criminal law are clear: Article 11 harnesses the treaty's power to achieve a disability-inclusive reading of international criminal law.

B. Core CRPD Concepts and Their Relevance for International Criminal Law

International criminal law and human rights law address different domains of accountability. The former accounts for crimes involving the international criminal responsibility of individuals. The latter addresses state responsibility in the event of a violation of enunciated human rights. Nevertheless, the jurisdiction of international criminal courts over genocide, war crimes, and CAH demonstrate that international criminal law is protective of core rights set out in human rights conventions.Footnote ⁸⁹ The application and interpretation of law by these international criminal tribunals must be applied consistently with internationally recognized human rights, including the CRPD, without any adverse distinction with regard to the attribute of disability, among others.Footnote ⁹⁰ Indeed, by providing the framework for recognizing persons with disabilities as equally possessing individual rights and legal capacity and expressing the specific risk and differentiated impact that human rights abuses can have on persons with disabilities, the CRPD provides a key roadmap that could enable international criminal law and process to avoid such impermissible distinctions. However, despite the CRPD's evident utility here, international criminal tribunals have yet to fully integrate into international criminal law and process. In so doing they fail to ensure that impunity is not tolerated for gross human rights violations that rise to a level of CAH committed against persons with disabilities.

Appeals to accommodate “vulnerable persons” collectively in the aggregate as an undifferentiated group are ineffective at best, as much work on gender, disability, children, Indigenous persons, LGBTQIA+ persons, among others, makes apparent. Indeed, notwithstanding the detailed provisions spelled out in the CRPD—tagged by the Office of the High Commissioner for Human Rights as a core international human rights conventionFootnote ⁹¹—international criminal law lags well behind the kind of age and gender considerations elevated in recent practice in the international criminal law sphere, and awaits the expression of a CRPD-informed approach in the context of disability.

There are a number of ways in which the CRPD stands to inform international criminal law and process. First, the treaty provides the framework for recognizing persons with disabilities as equally possessing individual rights and legal capacity and thus processes that break with individual decision making are highly suspect.Footnote ⁹² The CRPD clarifies the position that persons with disabilities have legal capacity and must recognized in all legal processes, whether as witnesses, lawyers, judges, criminal defendants, or another role. Where required in an individual case, reasonable accommodations and other accessibility supports must be provided to facilitate equal access to and participation in legal processes. This is a clear departure from traditionally medically focused and deficit-oriented conceptualization of disability that provide the rationale—still pervasive but slowly under reform in domestic law and policy—for the denial of witness or juror eligibility, exclusion from serving as lawyer or judge, and the like. Recognition of legal capacity together with provisions to guarantees procedural justice in the CRPD ought to animate international criminal process.Footnote ⁹³

The treaty has other implications for international criminal law. To cite but a few examples of proscribed conduct consistent with the CRPD and too often visited upon persons with disabilities with impunity: arbitrary and forced institutionalization of individuals with disabilities; the imposition of plenary guardianship removing legal capacity in relation to any and all decision making; experimentation absent informed consent of the individual with a disability (and cannot be provided via proxy); or forced treatment such as electroshock “therapy” absent consent. Such treatment is not protection, therapy, or science. The CRPD and the dynamic treaty practice it has brought about clarify that such conduct is unacceptable, contrary to human rights law, and, in certain situations, may amount to CAH. This perspective is only possible when disability is conceived in alignment with the social model understanding which “results from the interaction between person with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others.”Footnote ⁹⁴ This turn is even reflected in the terminology chosen for the title of Article 11 which expresses vulnerability in Article 11 in a context such as armed conflict as a “situation of risk.”Footnote ⁹⁵

This reorientation of the conceptualization of disability challenges physical and social environments—as well as legal frameworks—to accommodate impairment as an anticipated incident of human diversity.Footnote ⁹⁶ In particular, the social model orientation, in combination with individual as well as collective human rights set out in the CRPD, allows disability rights abuses to be assessed against principles of non-discrimination, accessibility, autonomy, inclusion, and participation.Footnote ⁹⁷ This perspective also foregrounds the barriers that persons with disabilities so often face in realizing their human rights and that make access to protection in times of crisis difficult or impossible.Footnote ⁹⁸ The identification of barriers is a fundamental precondition to their dismantling and, hence, to the fulfillment of disability rights.Footnote ⁹⁹ The implications for international criminal law are clear: international criminal justice process must adopt a disability-inclusive approach to ensure that barriers manifesting in international criminal law and process are accounted for and dismantled, and that allows for the full and effective prosecution of crimes perpetrated against persons with disabilities, including as CAH.

A final implication of the CRPD with salience for advancing a disability-sensitive international criminal law narrative, is its expression of the specific risk and differentiated impact that human rights abuses can have on persons with disabilities. In other words, the difference of disability means that the risk of harm may be elevated, that protection may necessitate positive, proactive measures to achieve the protection objective, and that the impact of human rights abuses may be especially acute.Footnote ¹⁰⁰

How, then, does the CRPD respond to these risks and how might they find expression in the international criminal law domain? The provisions set out in the CRPD affirm what is already explicit in IHL, namely, that persons with disabilities are entitled to specific care and protection and that their interests, rights, and individual circumstances must be given due consideration and effective accommodation and support.Footnote ¹⁰¹ This notion finds only minimal expression in the ICC Statute insofar as it recognizes respect for the “interests and personal circumstances of victims and witnesses”Footnote ¹⁰² and requires the Office of the Prosecutor “take appropriate measures to protect the safety, physical and psychological well-bring, dignity and privacy of victims and witness.”Footnote ¹⁰³ No explicit recognition is given in the Statute to the specially protected status of persons with disabilities and how their interests are to be accommodated. Such recognition would include not only crimes against persons with pre-existing disabilities, but also those injured during the course of combat. By way of illustration, prosecuting those responsible for a policy of killing prisoners of war disabled through combat, would open up a new category of international criminal law relating to persons with disabilities.

One might ask why disability, as a category, has been left behind in terms of international criminal prosecutions. Several hypotheses come to mind. The first conjecture is that the CRPD is the most recent of the UN identity-specific core human rights treaties—one that was precipitated by persons with disabilities not being accorded protection under “universal” coverage—and thus the focus on disability has been slower than that accorded other groups. A second reason might be that egregious conduct perpetrated against persons with disabilities has long been the norm, and is only just becoming recognized as criminal in domestic law, for instance, the 2008 Special Rapporteur's Report on Torture, notes specific cases where certain types of treatment is not yet recognized as criminal.Footnote ¹⁰⁴ The same is true, for example, in relation to mass rape, which was only recognized within the past score of years despite existing as a weapon of war and humiliation from time immemorial. An additional surmise is that, having been excluded from legal recognition for millennia, local groups of disability rights advocates have prioritized national level law reform rather than international criminal law reform.

While the infusion of a disability narrative into the effort to expand the reach of international criminal law and process shows little to no momentum, the rapid and significant number of ratifications of the CRPDFootnote ¹⁰⁵ continues to provide the impetus for law and policy reform and a new wave of disability rights activism. In that vein, persons with disabilities are successfully pressing their claims as participants in law and advocacy efforts at all levels.Footnote ¹⁰⁶ Accounting for persons with disabilities and their lived experience ought to be part of the vigorous calls for international criminal process wherever grave and systemic abuses occur, but this requires grappling with sometimes complex, multifaceted and little understood concepts around risk and protection in the context of disability.Footnote ¹⁰⁷

It is thus perhaps no surprise that the CRPD framework has yet to be systematically reflected in mechanisms to ensure impunity is not tolerated for gross human rights violations against persons with disabilities. Much like other marginalized populations it is not until society recognizes their exclusion that the turn toward substantive equality before the law can be fulfilled. Women and girls have been subjected to rape as a byproduct of war and children conscripted as child soldiers into armed conflict—neither of these garnered serious and sustained international attention until roughly a decade ago. It comes as no surprise, therefore, that the uptake of the CRPD in the specific context of international criminal law is slow in coming nor that the UN Security Council acted more than ten years following the adoption of the CRPD to recognize the its implications for armed conflict, peacebuilding, and transitional justice. It also bears mention that the attention of civil society has been focused on the nascent development of (any) sort of legal protection—the prevailing domestic disability law and policy framework post-CRPD adoption was one of breathtaking underdevelopment. As such, only recently has attention turned to the implications of the CRPD on the law of armed conflict, international criminal law, and other domains. Directing attention to explicitly discriminatory laws that mandate segregated education, segregated employment, institutionalization without consent, and disenfranchisement from the vote for persons with disabilities writ large or for subgroups of persons with disabilities has understandably been the primary focus in the first decade of CRPD implementation and advocacy. This means that organizations of persons with disabilities have tended to prioritize the righting of wrongs written into legislation (e.g., sweeping away direct discrimination) over dedication of scare resources to less familiar domains of international criminal law or the law of armed conflict, for instance.

C. Ensuring the Accessibility of International Criminal Law Proceedings

Integral to ensuring the accountability and transparency of mechanisms to investigate and sanction gross violations of human rights law is the design of accessible justice facilities, services, procedures, and materials. Accessibility is a core principle of the CRPD, expressed in Article 3 (General Principles).Footnote ¹⁰⁸ It is also the subject of a general provision that is applicable across the treaty, Article 9 (Accessibility), according to which states must identify and eliminate “obstacles and barriers to accessibility.”Footnote ¹⁰⁹ Although these provisions have implications for both domestic and international criminal legal process, states have made some progress in ensuring such accessibility in domestic legal processes, while no such progress has been made in international criminal legal process.

The general obligations required of all states parties to the CRPD are clearly applicable in the international criminal responsibility space. The Committee on the Rights of Persons with Disabilities (CRPD Committee) has repeatedly recommended to states parties that they review their civil and criminal legislation with the objective of meeting the duty to provide procedural accommodations in all legal proceedings consistent with Article 4 (General Obligations) and Article 13 (Access to Justice).Footnote ¹¹⁰ This might include, for example: engagement with organizations of persons with disabilities in the review of the criminal justice system against CRPD principles; ensuring that criminal procedures recognize their right to serve as witnesses, making disability-based persecution an aggravated offense; and specifically addressing the accessibility of criminal processes and victim reparation procedures, including the work of investigative bodies, truth commissions, and transitional justice efforts. Some headway has been made in enhancing access to justice for persons with disabilities at the domestic level across a diverse range of countries,Footnote ¹¹¹ yet international criminal legal process significantly lags in considering specific requirements for accessible justice aligned with the CRPD. Of particular note is the work of the South African NGO, Child Witness Institute, which works to train and sensitize stakeholders in the legal system—from police to prosecutors—about the specific needs of vulnerable witnesses, including children, victims of sexual violence, and victims with disabilities.Footnote ¹¹² Another example is witness intermediary schemes, initiated in England and Wales and New South Wales, Australia, the purpose of which is to facilitate communication with, and specifically the questioning of, vulnerable people, which often includes persons with disabilities, particularly individuals with intellectual disabilities.Footnote ¹¹³

In effectuating reviews of the legal framework against CRPD requirements, states must abolish or amend existing laws, regulations, customs, and practices that discriminate against persons with disabilities. This would include, for instance, redressing laws that deny legal capacity to persons with disabilities and thus undermine their ability to serve as a witness in a criminal proceeding or on juries.Footnote ¹¹⁴ The explicit recognition in Article 12 (Equal Recognition Before the Law) that persons with disabilities possess legal capacity and, further, that states must enable their exercise of legal capacity through supportive measures—in contrast to denials of legal capacity and substituted decision making— avows this recognition of agency in the context of criminal law and process.Footnote ¹¹⁵ Given that Article 12 affirms, and explicitly presumes the legal capacity of persons with disabilities,Footnote ¹¹⁶ it follows that the exercise of legal capacity must be appropriately facilitated, for instance in terms of providing accessible court processes, providing plain language materials for individuals seeking access to justice or benefits. It is in this way that Article 12 is directly responsive to firmly held presumptions in law and practice, as to the legal incapacity of individuals with disabilities and their unreliability and credibility as witnesses.Footnote ¹¹⁷ The implications for international criminal process are suggested in the CRPD, yet they remain unaddressed in any meaningful way by international criminal law proceedings and tribunals.

Fundamental to the development of inclusive and accessible law, policy and programming is the CRPD requirement in Article 4(3) that states parties “closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations.”Footnote ¹¹⁸ In the protection context, such as in situations of risk, the interests, rights, and personal circumstances of individuals with disabilities must be given due consideration. Much like the calls for international criminal law bodies, transitional justice mechanisms, and other processes to be inclusive of women as well as children in their design and operation,Footnote ¹¹⁹ effective disability inclusion hinges on the participation of persons with disabilities. Here, of course, it behooves organizations of persons with disabilities to engage in international criminal law decision-making or fact-finding processes to ensure appropriate government responses to decisions impacting their interests.Footnote ¹²⁰

Disability-inclusive protections must inform international criminal process in much the same way that the ICC Office of the Prosecutor, in its Policy on Children, has given explicit recognition to the Convention on the Rights of the Child in delineating the contours of that policy and the accommodation of children in its operations.Footnote ¹²¹ Indeed, the CRPD provides specific recognition that states must undertake measures to ensure the accessibility of justice mechanisms to persons with disabilities, on an equal basis with others. It underscores specifically that states are obliged to “facilitate their effective role as direct and indirect participants, including as witnesses.”Footnote ¹²² Persons with disabilities—who have a long history of being denied personhood in the form of non-recognition as witnesses—may participate, directly or indirectly, in “all legal proceedings” including as witnesses and including investigative fact-finding or other preliminary stages.Footnote ¹²³ Further, the provision requires states to undertake measures to that end, “including through the provision of procedural and age-appropriate accommodations.”Footnote ¹²⁴ And Article 13(2) requires states to promote training for those working in the field of administration of justice.Footnote ¹²⁵ There is thus a framework in place for addressing access to justice for persons with disabilities and the CRPD Committee has repeatedly expressed its concern about the lack of procedural, gender and age-appropriate accommodation in judicial procedures for persons with disabilities and the need training of justice personnel on the human rights-based approach to disability.Footnote ¹²⁶

Whereas accessibility is a measure to facilitate participation and inclusion collectively to persons with disabilities, the CRPD also recognizes the need for individualized measures of accommodation and support. Thus, in order “to promote equality and eliminate discrimination,” states parties are required to “take all appropriate steps to ensure that reasonable accommodation is provided.”Footnote ¹²⁷ This accommodation duty applies equally to all rights and applies in all contexts including, of course, criminal proceedings. As UN agencies work to develop reasonable accommodation procedures across the Organization as part of the UN Disability Strategy, it stands to reason that international criminal mechanisms should respond in like measure.Footnote ¹²⁸ These efforts for disability-inclusion, of course, should track with protocols developed in international criminal process to mitigate the risk of women survivors of rape being retraumatized during the course of serving as witness before their accusers and those to accommodate child witnesses.Footnote ¹²⁹ While the ICC Rules of Procedure do specifically reference disability as an aspect of a victim or witness requiring consideration by the court of their special needs, no disability-specific measures have been formally put into place, which given that disability is not homogenous is problematic in light of the ICC's recognition of non-discrimination with regard to victims.Footnote ¹³⁰

D. The CRPD's Mandate to End Impunity for Gross Human Rights Violations

While the efforts of the CRPD's drafters to end impunity for gross violation of human rights against persons with disabilities have begun to inform domestic legal practice and process, the law and process of international criminal law must also be informed by disability rights principles and conform to the requirements of accessibility in respect of legal proceedings. Much like the failure to tailor international criminal proceedings to the needs and circumstances of women victims—a practice that was changed with the two ad hoc criminal proceedings of the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY)—the CRPD contemplates positive measures in order to ensure access to justice, which must be enacted to arrest international criminal process’ failure to tailor proceedings to the needs and circumstances of persons with disabilities.Footnote ¹³¹ The additional element of non-discrimination in the CRPD, via the requirement of reasonable accommodation, affords persons with disabilities with protection in all stages of legal process. Together with Article 13, addressing state obligations in respect of ensuring accessibility throughout all aspects of the justice system, non-discrimination and the duty to provide reasonable accommodation must inform international criminal proceedings. The failure to do so can result in impunity, revictimization of survivors, and an undermining of the legitimacy of criminal process.

In sum, even when emendation would seem patently obvious, the international criminal law system has generally been silent in addressing individuals with disabilities and has not tailored its law or process to them. Worse, in the rare instances where international law has explicitly addressed the protection of individuals with disabilities (as in the Nuremberg Code), those protections were removed in subsequent instruments.Footnote ¹³² The necessity of such protection is recognized overtly in the CRPD's preamble, which affirms that “the observance of applicable human rights instruments are indispensable for the full protection of persons with disabilities.”Footnote ¹³³ Moreover, inasmuch as the CRPD provides a framework for the acknowledgement and recognition of the lived experience of disability, including crimes against persons with disabilities, it is incumbent on the international criminal law system to explicitly account for such violations. Meaning that such violations must be recognized and accorded the same seriousness as other crimes involving vulnerable groups, as has been done through the recognition of crimes involving women and children as CAH.

A. Evolution of Crimes Against Humanity

At the close of World War II, CAH emerged as a legal term and was codified in the Nuremberg Charter.Footnote ¹³⁶ The definition of CAH has since evolved and been refined as a legal concept, starting first with the Statutes of the ICTY and ICTR, and followed by the Statute for the Special Court of Sierra Leone (SCSL) and then the Extraordinary Chambers in the Courts of Cambodia (ECCC).Footnote ¹³⁷ Today, the current iteration of the international definition of a CAH is contained in Article 7 of the Rome Statute governing the ICC (Rome Statute).Footnote ¹³⁸ Illustrating why the current definition of CAH must be understood as encompassing disability-related crimes—even though it has not generally been so-applied in practice—requires tracking its evolution through the legal incubators of many ad hoc tribunals spanning the twentieth century.Footnote ¹³⁹

Initially what constituted a CAH mirrored the definition set forth by the Nuremburg Charter, while narrowing the temporal scope of actions to those occurring during an armed conflict, as exemplified by the ICTY Statue.Footnote ¹⁴⁰ The armed conflict nexus was soon removed by the ICTR Statute and replaced with the requirement that the act be committed “as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds.”Footnote ¹⁴¹ The type of acts able to be charged and prosecuted as CAH was expanded by the SCSL, eight years later, to include specific sexual crimes that were committed as part of a widespread or systematic attack against any civilian population.Footnote ¹⁴² The establishment of the ECCC signaled the final coalescence as to the definition and usage of CAH within international criminal law by relying on the ICC Rome Statute.Footnote ¹⁴³

The prosecution of CAH by ad hoc tribunals reveals a few significant factors. First, in light of the strict interpretation of genocide and war crimes, CAH allow prosecutors and victims to seek legal redress for horrific crimes involving those groupings overlooked by the Genocide Convention and lacking the conflict-nexus.Footnote ¹⁴⁴ Second, changes made to the legal requirements for an action qualify as a CAH has not impacted the ability to prosecute and secure convictions. Third, even when courts take a more restrictive view regarding the crimes that can fulfill the legal requirements of a CAH, the majority of the charges and convictions in the tribunals came under the framework of CAH. Most importantly, taken as a whole, the current framework of CAH provides the flexibility, efficacy, and jurisprudence necessary to prosecute crimes against persons with disabilities. How and why CAH must encompass disability-related crimes is best illustrated by the deployment in cases involving sexual and gender-based crimes and crimes against children for actions that in prior eras did not garner legal repercussions.Footnote ¹⁴⁵

B. Sexual and Gender-Based Crimes

The concept of rape as a crime punishable by international criminal law has undergone a significant evolution; from a condoned byproduct of conflict, if not an outright spoil of war, to a universally reviled international crime.Footnote ¹⁴⁶ Best highlighting the acceptance of rape as a prosecutable action, the ICTR found Jean-Paul Akayesu guilty of encouraging the commission of rape—and punishable because “outrages on personal dignity, notably rape, [are] degrading and humiliating treatment and indecent assault.”Footnote ¹⁴⁷ This direct recognition of rape as an act that violated and degraded an individual did more than simply elevate it to an actionable crime, it established the legal precedent and analytical framework necessary for international criminal tribunals to seek prosecution crimes of sexual violence.Footnote ¹⁴⁸

The convictions by the ad hoc tribunals established clear precedents that have been codified into international criminal law by the Rome Statute, which lists rape as a specifically enumerated act that can constitute a CAH.Footnote ¹⁴⁹ Further solidifying rape as crime that can constitute a CAH, the ICC Office of the Prosecutor has published a policy paper that sought to “ensure effective investigation and prosecution” of sexual and gender-based crimes, including rape as a CAH, through the continued advancement of international jurisprudence.Footnote ¹⁵⁰ Recognition of the crime of rape, and more specifically sexual and gender-based crimes,Footnote ¹⁵¹ lends credence to the idea that certain heinous crimes are protected against by international criminal law, even if that action was previously ignored or accepted and that such an act must be prosecuted as an independent crime of international importance. This same rationale applies to targeted and systemic egregious acts against persons with disabilities, having been overlooked previously by the international criminal law regime, now being prosecuted as CAH.

C. Crimes Against Children

Parallel to the evolution of the crime of rape within international criminal law is the initiative to prosecute crimes against children, and in particular the gross violation of human rights through use of child soldiers.Footnote ¹⁵² The judicial foundation for crimes committed against children first emerged when the ICTY took the age and sex of victims into account “as an aggravating factor in the process of sentencing.”Footnote ¹⁵³ Finding relevance in the fact that “offenses were committed against particularly vulnerable and defenceless girls and a woman,” the ICTY Trial Chamber, in Kunarac, held that certain factors make a crime more abhorrent for the purposes of sentencing.Footnote ¹⁵⁴ Of relevance is the fact that the crimes were charged under the CAH framework with the tribunal relying on age as an aggravating factor to those crimes.Footnote ¹⁵⁵

The recognition by the ICTY that an individual's personal characteristic, such as age, as an aggravating factor in sentence for a CAH created a legal precedent that has been codified by the ICC in Rule 145 of the Rules of Procedure and Evidence.Footnote ¹⁵⁶ The most prominent progress to prosecute crimes against children as CAH has been the Rome Statute's prohibition on the recruitment and use of child soldiers,Footnote ¹⁵⁷ the only specifically enumerated crime against children in international criminal law. Its codification cements the acceptance of the need to successfully prosecute crimes against children.Footnote ¹⁵⁸ Illustrating this is the ICC Office of the Prosecutor's policy paper on children, which notes that it will investigate, charge, and prosecute a number of crimes that impact and involve children, in addition to the use of child soldiers, as crimes against humanity.Footnote ¹⁵⁹

Strikingly, as the recognition of the crime of rape has led to the prosecution of sexual and gender-based crimes being recognized as an independent CAH, there also has been a progression for the prosecution of crimes against children. Prior to this, both sets of crimes had been accepted as collateral and/or unfortunate aspects of armed conflict. It is evident that special consideration as to personal characteristics of victims is a proven method through which to prosecute crimes that target groups historically disenfranchised by the international criminal system as CAH. Seen in this light, the prosecution of disability-based crimes as CAH is not creating new or “special” protections but instead, as with women and children, giving recognition to and realizing the full coverage of persons with disabilities as considered by international criminal law.

D. ILC Draft Articles for a CAH Convention

From 2014Footnote ¹⁶⁰ to 2019, the UN ILC's developed draft articles, with commentary, for possible use in the creation of “a global convention on prevention, punishment and inter-State cooperation with respect to crimes against humanity,” which its special rapporteur described as “a key missing piece in the current framework of international law and, in particular, international humanitarian law, international criminal law and international human rights law.”Footnote ¹⁶¹ However, the special rapporteur also made it explicit that the draft articles by the ILC would focus exclusively on CAH and not endeavor to “address other serious crimes, such genocide or war crimes, which are already the subject of widely-adhered-to global treaties relating to their prevention and punishment.”Footnote ¹⁶² Earlier work on this issue was also pursued by the CAH Initiative at the Whitney R. Harris World Law Institute.Footnote ¹⁶³ In 2019, the ILC adopted the final text of the draft articles and recommended elaboration of a convention by the UN General Assembly or by a diplomatic conference on the basis of the draft articles.Footnote ¹⁶⁴

The draft articles retain the definition of CAH found within the Rome Statute, but the focus is on the improving of national laws and jurisdiction for the prevention and punishment of CAH, as well as promoting interstate cooperation on matters such as extradition and mutual legal assistance.Footnote ¹⁶⁵ Notably absent in the definition is any express reference to disability or any other personal characteristic, although the catch-all of “other grounds”Footnote ¹⁶⁶ presumably includes disability (even if it has not yet been applied as such by the ICC). Significantly, though, a group of UN special rapporteurs and independent experts recommended to the ILC without success that the act of persecution should be expanded and updated to include disability, as well as a host of other individual identities.Footnote ¹⁶⁷

The decision not to expressly include disability as one of the grounds of prohibited persecution in the draft articles is regrettable—it is a missed opportunity to overtly ensure more inclusive justice. It also undercuts the role that progressive developments in international human rights law can and should play in shaping international criminal law. As demonstrated in the above Sections, the definition of CAH has evolved in reference to previously marginalized groups.Footnote ¹⁶⁸ Furthermore, CRPD Article 11 is clearly aimed at precipitating the incorporation of the human rights of persons with disabilities across all realms of international law, including criminal prosecutions.Footnote ¹⁶⁹ Hence, the draft articles clearly miss the mark in reflecting on and responding to developments in IHL, international criminal law, and human rights law. The omission of an explicit mention of persons with disabilities likewise overlooks the history of egregious and systemic abuses faced by that population, significantly the largest and among the most vulnerable minority groups in the world. That said, if governments do proceed on the recommendation of the ILC, the negotiation of a CAH Convention presents a genuine opportunity to explicitly recognize and enforce accountability for disability-based crimes in-line with the protections envisioned by and provided to other marginalized groups by international criminal law.

A. Domestic Courts

The suggestion that “[t]he prosecution of crimes under international law . . . is primarily the obligation of individual states and should be dealt with at the level of national jurisdiction,”Footnote ¹⁷² finds some validity in the fact that there are a number of states that maintain criminal code provisions or statutes that allow for the domestic prosecution of CAH.Footnote ¹⁷³ One of the earliest examples of national courts exercising jurisdiction over international crimes, and specifically CAH, was the prosecution under French domestic law of Klaus Barbie, the Gestapo chief in Lyons during World War II who ran “a campaign of torture and death against Resistance leaders” and sent “uncounted other people, most of them Jews” to extermination at Auschwitz.Footnote ¹⁷⁴ This case is notable because it illustrates the flexibility of a national court to assess the legal interpretation of what constitutes an act considered a CAH.Footnote ¹⁷⁵ Domestic courts have also been at the forefront in the use of innovative national laws, such as universal jurisdiction, to prosecute international crimes such as CAH.

Since the close of the Nuremburg trials, the use of domestic laws to prosecute CAH has demonstrated a level of judicial fearlessness within national courts.Footnote ¹⁷⁶ Of these, the prosecutions for CAH by the national courts of France, Spain, Peru, and Guatemala are noteworthy examples.Footnote ¹⁷⁷ However, their use has also been fraught with concerns over the influence of politics and public opinion, raising questions of impartiality and fairness.Footnote ¹⁷⁸ The reality is that the adoption of national laws related to CAH has been uneven at best and at worst non-existent.Footnote ¹⁷⁹ A July 2013 study found that “at best 54 per cent of States Members of the United Nations (104 of 193) have some form of national law relating to crimes against humanity,” with the “remaining Member States (89 of 193) appear[ing] to have no national law relating to crimes against humanity.”Footnote ¹⁸⁰ Relatedly, an in-depth qualitative analysis of eighty-three UN member states found that “only 41 per cent of States . . . actually possessed a national law specifically on ‘crimes against humanity’ (34 of 83).”Footnote ¹⁸¹ Unlike the judicial structure and precedent of the former ad hoc tribunals, the recognition and acceptance of the legal interpretation of what constitutes a CAH by national laws has been far from universal.Footnote ¹⁸² Even among states parties to the Rome Statute, “at best 66 per cent . . . (80 of 121) have some form of national law relating to crimes against humanity, leaving 44 percent of Rome Statute parties (41 of 121) without any such law.”Footnote ¹⁸³ This lack of consistency in the adoption or existence of national laws has significant consequences on the effective prosecution of CAH by domestic courts as well as on state obligations to assist, extradite, and prosecute alleged perpetrators “on the basis of the principle aut dedere aut iudicare.”Footnote ¹⁸⁴

Further, while the CRPD is approaching global ratification, a significant gap remains between the rights enumerated in the treaty and the protections accorded to persons with disabilities by national governments, both in law and in practice.Footnote ¹⁸⁵ Accordingly, even if a national government were to acknowledge and be willing to prosecute disability-based CAH—improbable, given the historical record—the domestic legal framework would be unlikely to provide a specific charge for prosecuting crimes against persons with disabilities. Instead, in the best case, prosecution would occur based on the underlying act (e.g., rape, torture, false imprisonment, etc.) leading to a haphazard approach and a likely perpetuation of impunity. This, taken in concert with the uneven adoption of national laws on CAH, makes it untenable to use domestic courts as the primary avenue to prosecute disability-based CAH crimes and could harm efforts to legitimize such an approach.

B. Hybrid Courts

Hybrid courts, a relatively recent development in post-conflict accountability, have emerged as a potential alternative to the standard international ad hoc tribunals because they “combine the best of two worlds, the purely domestic and the purely international prosecution of international crimes, and transcend the shortcomings of each world taken separately.”Footnote ¹⁸⁶ This transcendence, of sorts, is said to be necessary because within “a post-conflict situation domestic trials often lack legitimacy because the judicial institutions are not impartial . . . [and] purely international courts . . . lack legitimacy because those who have been most directly affected by crimes lack ‘ownership.’”Footnote ¹⁸⁷ It has also been suggested that hybrid courts help to rebuild the capacity of domestic institutions and strengthen national norms within a country by incorporating the higher standards of international laws and jurisprudence.Footnote ¹⁸⁸

However, hybrid courts are not a monolith; there is no single definition of what constitutes a hybrid court, rather there is a spectrum of judicial bodies that are neither purely international nor purely domestic in nature.Footnote ¹⁸⁹ The creation of hybrid courts is varied and highly dependent on the buy-in of the national government even when there is significant interest in, and pressure by, the international community.Footnote ¹⁹⁰ Hybrid courts are also diverse in their foundational instruments and documents, leading to a variety of legal bases for the investigation, charging, and prosecution of crimes.Footnote ¹⁹¹ Most notably, the mixture of domestic and international law used by hybrid tribunals varies significantly. For instance, one hybrid court may require nexus to a conflict to prove a CAH charge, while in another, the charge of CAH may not even be available because it does not exist within the relevant domestic law.Footnote ¹⁹²

With no framework for deciding applicable law and the inherent challenges in prosecuting international crimes generally, the efficacy of hybrid courts is unpredictable.Footnote ¹⁹³ Further, the reliance on the support of the national government, the domestic judicial system, and interstate cooperation all pose significant obstacles to the use of hybrid courts to prosecute disability-based CAH crimes.Footnote ¹⁹⁴ Thus, as with domestic courts, it would be untenable to use hybrid courts as the primary avenue to prosecute disability-based CAH crimes.

C. The International Criminal Court

Since its inception—and as a court of last resort—the ICC has sought to prosecute the most serious of international crimes. Currently the ICC is investigating fourteen situations, all but one of which involve alleged CAH.Footnote ¹⁹⁵ Of the thirty cases it has brought to date, the ICC has charged twenty individuals, or 66 percent, with CAH.Footnote ¹⁹⁶ The high rate at which the ICC charges individuals with CAH very much parallels the pattern exhibited by the ad hoc tribunals, and has solidified the fact that “crimes against humanity prosecutions have quickly emerged as central to the ability of the ICC to fulfill its mandate.”Footnote ¹⁹⁷

These developments, coupled with the ICC's reliance on the foundational jurisprudence of the ad hoc tribunals and legal framework for prosecuting CAH, makes the ICC the most promising legal forum in which to pursue, and successfully prosecute, disability-based CAH.Footnote ¹⁹⁸ However, using the ICC in this manner—to fully realize the prosecution of crimes against persons with disabilities as a CAH—will require an expansion of the strict interpretation of Article 7(2)(a) and the development of a policy on persons with disabilities. These two impediments, unlike those mentioned for domestic and hybrid courts, can be more easily overcome. Indeed, their elimination is required by the CRPD.

1. Current Interpretation of Article 7(2)(a)

Article 7(2)(a) of the Rome Statute contains three preconditions necessary to successfully charge and prosecute an individual with crimes against humanity before the ICC. First, the crime must be part of a widespread or systematic attack; second, the crime must be directed against a civilian population; and third, the individual charged must have knowledge of the attack.Footnote ¹⁹⁹ Additionally, the Rome Statute defines such attack as “a course of conduct involving the multiple commission of acts . . . pursuant to or in furtherance of a State or organizational policy to commit such attack.”Footnote ²⁰⁰ This required nexus, between the crime and an organized policy, in some ways strips the flexible nature of the charge of CAH that previously allowed for the prosecution of crimes otherwise overlooked by the frameworks of genocide and war crimes.

The Pre-Trial Chamber opinion in the Katanga case best illustrates the current interpretation as to what constitutes an “organizational policy” by stating that “even if carried out over a large geographical area or directed against a large number of victims” the CAH “must still be thoroughly organised and follow a regular pattern.”Footnote ²⁰¹ Possibly realizing the high standard of proof necessary to prove a systematic attack, the Pre-Trial Chamber attempted to clarify the type of organization that could be found to implement such an organized plan by stating that the policy “may be made either by groups of persons who govern a specific territory or by any organization with the capability to commit a widespread or systematic attack against a civilian population.”Footnote ²⁰² This statement suggests that the group developing and carrying out the atrocities as part of some overarching policy is not required to be a state itself, but must otherwise maintain some governing control of the region or have the power to commit such widespread atrocities. However, confusing the point, the Chamber went on to claim that the “policy need not be explicitly defined by the organizational group.”Footnote ²⁰³ In a final attempt to bring clarity to the requirements of what action constitutes a CAH, the Chamber stated that “an attack which is planned, directed or organized—as opposed to spontaneous or isolated acts of violence—will satisfy this [Article 7] criterion.”Footnote ²⁰⁴

Although government action no longer seems to be a requirement under Article 7(2)(a) to constitute a CAH, there is now an obligation to show that an organization or group has a zone of control and an organized policy or plan of action for an act to be considered a CAH. Consequently, the somewhat murky logic of what constitutes an action or plan, that can be both highly organized without being explicitly defined but at the same time not spontaneous or isolated, could possibly raise some doubts on the ability to use CAH as the framework for charging and prosecuting crimes against persons with disabilities committed by non-state actors.Footnote ²⁰⁵ While the nexus requirement may appropriately pose an impediment to charge certain disability-related acts as CAH (for instance, the actions of private individuals, including family members, in isolating, sterilizing, or torturing persons with disabilities), as stated above, a majority of the systematized violence and abuse committed against persons with disabilities is pursuant to domestic laws and policies and perpetuated by state and non-state actors thereby making such acts prima facie eligible under Article 7.Footnote ²⁰⁶ Thus, the actions of state and non-state actors, as well as their armed forces, who have a zone of control over a geographic area, that target persons with disabilities either through systemic violence or abusive policies likewise fall within the current conception of CAH even if they have not as yet been prosecuted as such.

The numerous examples of disability-based persecution found in Part II can be categorized into three types of situations that constitute disability-based CAHs. First, are acts that directly target persons with disabilities on the basis of their disability. Examples of this include the torture, killing, forced sterilization, involuntary institutionalization,Footnote ²⁰⁷ infanticide, disappearance of children with disabilities, and willful neglect of prisoners with disabilities precipitated through policy, encouragement, or tacit support from authorities. Second, are acts that have a disparate impact on persons with disabilities. Examples of this include attacks on or destruction of independent living facilities, rehabilitation centers, specialized schools, and psychiatric hospitals. Third, are acts that have an incidentally larger impact on persons with disabilities. Examples of this include attacks on or destruction of hospitals, utility services, public transportation, schools, orphanages, and other public institutions. As detailed in Part II, persons with disabilities are more likely to use and rely on these facilities and are therefore placed at a much higher risk of harm by their destruction or inoperability, whether purposeful or not.Footnote ²⁰⁸

It is important that all three types of situations be recognized as CAH to provide appropriate recourse for and to end impunity of gross human rights violations perpetrated against persons with disabilities. The successful incorporation and prosecution of disability-based CAH by the ICC requires no jurisprudential leap of faith given the direct similarities between crimes targeting persons with disabilities and the established CAH of gender-based crimes and crimes against children, even setting aside the fact that Article 11 of the CRPD mandates a disability-inclusive reading of international criminal law.

2. Policy on Persons with Disabilities

To date, the ICC does not have a policy on persons with disabilities to match its policies on sexual and gender-based crimes and children. The lack of policy on persons with disabilities is surprising given the adoption of the CRPD in 2006 the provision in Article 11 that tie CRPD principles not only into human rights law, but also into IHL and other international law domains including international criminal law. Accordingly, the adoption of a specific policy on persons with disabilities is long overdue and should be a top priority for the Office of the Prosecutor (OTP). As a first step, the OTP should lay out the strategic goal of creating a disability-focused perspective that spans all of the areas of the OTP's work, just as it has done for sexual and gender-based crimes and children.Footnote ²⁰⁹ The policy on persons with disabilities should—as per the policies on sexual and gender-based crimes and children—focus on building the necessary institutional capacity of the ICC to “conduct preliminary examinations, investigations and prosecutions” of crimes against or affecting persons with disabilities and require that its engagement with persons with disabilities meets with disability rights principles of accessibility non-discrimination and the duty to provide reasonable accommodation, among others.Footnote ²¹⁰

Notably, the basis for the creation of an ICC policy on persons with disabilities rests within Article 21 of the Rome Statue, which establishes the applicable law to be used by the ICC.Footnote ²¹¹ In both the sexual and gender-based crimes and child policies, the OTP cites directly to Article 21(3) as establishing the regulatory framework for the development of each policy. Further, the OTP finds that gender and children are considered covered as part of the “other status” designation of Article 21(3).Footnote ²¹² Going even further, the OTP states that it will apply and interpret the Rome Statute according to human rights standards and will “take into account the evolution of internationally recognised human rights.”Footnote ²¹³ The CRPD, like the Convention on the Rights of the Child (CRC) and the Convention on the Elimination of Discrimination Against Women (CEDAW) are core human rights instruments—so designated by the Office of the High Commissioner for Human Rights—and each establish protection for groups recognized as disadvantaged and at high risk for discrimination. Persons with disabilities also fall within the “other status” category under Article 21(3) and the Rules of Procedure and Evidence for the ICC recognize victims of sexual or gender violence, children, and persons with disabilities as requiring special procedures and treatment as victims and witnesses.Footnote ²¹⁴ Therefore, the creation of an OTP policy for persons with disabilities is not only necessary but feasible, building on the same legal foundation used for sexual and gender-based crimes and crimes against children. The formulation of such a policy aligns with the explicit mandate of the UN and the newly adopted Organization-wide UN Disability Strategy and can be supported by the CRPD Committee and the UN special rapporteur on the rights of persons with disabilities.Footnote ²¹⁵

3. Role of the CRPD Committee and UN Special Rapporteur on the Rights of Persons with Disabilities

While the reforms needed in international criminal law and process to effectuate the aims of the CRPD fall within the purview of international criminal law institutions, nonetheless, the CRPD's institutional arrangements have a role to play in this effort, one that has not to date been taken up proactively. Notably, unlike other core human rights conventions, the CRPD enjoys two co-secretariats (the Office of the UN High Commissioner for Human Rights and UN Department of Economic and Social Affairs) and an annual Conference of States Parties. The latter body meets to elect members of the CRPD Committee and, pursuant to Article 40 of the CRPD, to consider “any matter with regard to the implementation of the present Convention.”Footnote ²¹⁶ The Conference has to date been more of a promotional vehicle for states, INGOs, and civil society to spotlight treaty-related activities and less the kind of generative body that supports the development of the treaty.Footnote ²¹⁷

The CRPD Committee can and should play an important role in amplifying the implications of the CRPD for international criminal law and process, especially at the ICC. For example, the Committee's concluding observations and recommendations to states parties represents an opportunity to shed light on a disability-inclusive approach to international crimes such as CAH, to understand how the CRPD's standards apply to the lived experiences of persons with disabilities, and to promote accessibility and inclusivity in international criminal proceedings.Footnote ²¹⁸ In addition, the Committee's general comments regarding the interpretation and implementation of the CRPD could, in the future, be used to highlight the interrelationship between the treaty and international criminal law and process.Footnote ²¹⁹

Similarly, the UN special rapporteur on the rights of persons with disabilities holds a broad mandate for investigating disability-related human rights abuses and can investigate, report, and make recommendations relating to CAH and/or international criminal law and process more generally.Footnote ²²⁰ The current mandate holder has made the protection of persons with disabilities in armed conflict a particular focus, inclusive of ensuring that war crimes and crimes against humanity perpetrated against persons with disabilities are addressed.Footnote ²²¹ The practice of issuing joint letters among mandate holders calling for an end to human rights violations or for reparations has been taken up by the special rapporteur on the rights of persons with disabilities, including support for a statement in relation to the call for reparations for sexual abuse by the Catholic Church.Footnote ²²² The role of the special rapporteur could likewise be harnessed to help shape international investigative mandates in ways that could better ensure appropriate coverage of disability-based persecution and crimes. A joint report, not currently standard practice among mandate holders, could help analyze strategies for advancing a disability inclusive approach to international criminal law, and follows naturally on the special rapporteur's recent report analyzing the adoption of a gender perspective in transitional justice.Footnote ²²³