Disability, Human Rights Violations, and Crimes Against Humanity
Published online by Cambridge University Press: 18 August 2021
Persons with disabilities have historically been subjected to egregious human rights violations. Yet despite well-documented and widespread harms, one billion persons with disabilities remain largely neglected by the international laws, legal processes, and institutions that seek to redress those violations, including crimes against humanity (CAH). This Article argues for the propriety of prosecuting egregious and systemic human rights violations against persons with disabilities as a CAH, and, in addition, asserts the necessity of ensuring the accessibility of international criminal processes to those individuals. The UN Security Council's recent acknowledgement of the enhanced risk that persons with disabilities experience during armed conflict, the growing evidence of widespread human rights violations against them, and an ongoing effort to forge a UN convention on the prevention and punishment of CAH make these arguments especially timely.
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- Copyright © The Author(s), 2021. Published by Cambridge University Press for The American Society of International Law
We thank Sean Murphy, Alex Whiting, and Naz Modirzadeh for comments on earlier versions of this Article.
1 See Fiala-Butora, Janos, Disabling Torture: The Obligation to Investigate Ill-treatment of Persons with Disabilities, 45 Colum. Hum. Rts. L. Rev. 214, 219–40 (2013)Google Scholar (cataloging historical and ongoing severe human rights violations against persons with disabilities); Lord, Janet E., Shared Understanding or Consensus-Masked Disagreement? The Anti-torture Framework in the Convention on the Rights of Persons with Disabilities, 33 Loy. L.A. Int'L & Comp. L. Rev. 27, 29–32 (2010)Google Scholar (same).
2 World Health Organization & The World Bank, World Report on Disability 11 (2011), available at http://www.who.int/disabilities/world_report/2011/report.pdf.
3 CAH are prohibited acts committed as a part of a widespread or systematic attack directed against a civilian population as part of a government or organizational policy. Rome Statute of International Criminal Court, Art. 7, 2187 UNTS 38544 (July 17, 1998) [hereinafter Rome Statute].
4 See, e.g., Rosalind Dixon, Rape as a Crime in International Humanitarian Law: Where to From Here?, 13 Eur. J. Int'l L. 697 (2002); Christine Chinkin, Rape and Sexual Abuse and Women in International Law, 5 Eur. J. Int'l L. 326 (1994); Matthew Happold, Child Soldiers in International Law (2005). The evolution of CAH, including in relation to identity-specific groups, is set forth in Part IV infra.
5 Convention on the Rights of Persons with Disabilities, UN Doc. A/RES/61/106 (Dec. 13, 2006) [hereinafter CRPD]. For a comprehensive exploration, see The UN Convention on the Rights of Persons with Disabilities: A Commentary (Ilias Bantekas, Michael Ashley Stein & Dimitris Anastasiou eds., 2018).
6 See Michael Ashley Stein, Disability Human Rights, 95 Cal. L. Rev. 75 (2007), reprinted in Nussbaum and Law 3 (Robin West ed., 2015), reprinted in Vulnerable and Marginalized Groups and Human Rights 665 (David Weissbrodt & Mary Rumsey eds., 2011) (foundational description of the CRPD and its implications).
7 See Gerard Quinn & Theresia Degener, Human Rights and Disability: The Current Use and Future Potential of United Nations Human Rights Instruments in the Context of Disability, UN Doc. HR/PUB/02/1 (2002), available at http://www.ohchr.org/Documents/Publications/HRDisabilityen.pdf (charting the pre-CRPD systemic neglect of disability issues by the UN human rights system).
8 See Janet E. Lord & Michael Ashley Stein, The Domestic Incorporation of Human Rights Law and the United Nations Convention on the Rights of Persons with Disabilities, 83 U. Wash. L. Rev. 449 (2008); Janet E. Lord & Michael Ashley Stein, Prospects and Practices for CRPD Implementation in Africa, 1 Afr. Y.B. Disability Rts. 97 (Charles Ngwena & Frans Viljoen eds., 2014); see also Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa, available at https://au.int/sites/default/files/treaties/36440-treaty-protocol_to_the_achpr_on_the_rights_of_persons_with_disabilities_in_africa_e.pdf; Council of Europe Committee of Ministers, Council of Europe Action Plan to Promote the Rights and Full Participation of Persons with Disabilities in Society: Improving the Quality of Life or People with Disabilities in Europe 2006–2015, Rec(2006)5, at https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=0900001680595206; United Nations Economic and Social Council, Economic and Social Commission for Asia and the Pacific, Biwako Millennium Framework for Action Towards an Inclusive, Barrier-Free and Rights-Based Society for Persons with Disabilities in Asia and the Pacific, UN Doc. E/ESCAP/APDDP/4/Rev. 1 (Jan. 24, 2003).
9 In September 2006, the UN System Chief Executives Board for Coordination established the Inter-Agency Support Group on the CRPD, charged with coordinating work across the UN system in promotion and implementation of the treaty. For its latest report, see Meeting Report, Annual Meeting of the Inter-Agency Support Group for the Convention on the Rights of Persons with Disabilities, UN-House, Beirut, Lebanon (May 7–8, 2015), available at http://www.un.org/disabilities/documents/iasg/iasg_report_may2015.pdf.
10 UN Disability Inclusion Strategy (2019), at https://www.un.org/en/content/disabilitystrategy; UN General Assembly, Outcome Document of the High-Level Meeting of the General Assembly on the Realization of the Millennium Development Goals and Other Internationally Agreed Development Goals for Persons with Disabilities: The Way Forward, a Disability-Inclusive Development Agenda Towards 2015 and Beyond, UN Doc. A/68/L.1 (Sept. 17, 2013) (underlining the importance of ensuring accessibility for and inclusion of persons with disabilities in all aspects of development, and in particular the emerging post-2015 United Nations development agenda), at https://www.un.org/en/ga/search/view_doc.asp?symbol=A/68/L.1 [hereinafter UN Disability Strategy].
11 IASC Guidelines, Inclusion of Persons with Disabilities in Humanitarian Action, 2019, at https://interagencystandingcommittee.org/iasc-task-team-inclusion-persons-disabilities-humanitarian-action/documents/iasc-guidelines. These follow on earlier guidelines specifically on mental health issues. See IASC Guidelines for Mental Health and Psychosocial Support in Emergency Settings, 2007, available at https://www.who.int/mental_health/emergencies/guidelines_iasc_mental_health_psychosocial_june_2007.pdf.
12 See Inter-Agency Working Group on Disarmament Demobilization Reintegration, Integrated Disarmament, Demobilization and Reintegration Standards (2006, revised beginning 2014), at https://www.unddr.org/the-iddrs/ (representing that a module on disability inclusive disarmament, demobilization and reintegration is being developed and will be released in 2021).
13 See Int'l Comm. of the Red Cross, The ICRC's Vision 2030 on Disability (Aug. 6, 2020), at https://www.icrc.org/en/publication/4494-icrcs-vision-2030-disability (stressing its principal purpose “to transform the way the ICRC addresses disability inclusion in operations”).
14 See, e.g., Special Rapporteur on Torture & Other Cruel, Inhuman or Degrading Treatment or Punishment, Interim Report, paras. 37–76, UN Doc. A/63/175 (July 28, 2008) (report by Manfred Nowak) [hereinafter Nowak Report]; Report of the Office of the High Commissioner for Human Rights, Expert Seminar on Freedom from Torture and Ill-Treatment and Persons with Disabilities (Dec. 11, 2007), at http://www2.ohchr.org/english/issues/disability/docs/torture/seminartorturereportfinal.doc.
15 See SC Res. 2475 (June 20, 2019), at https://undocs.org/s/res/2475(2019) [hereinafter Security Council Resolution 2475].
16 See generally UN Flagship Report on Disability and Development 2018, available at https://www.edu-links.org/sites/default/files/media/file/UN-Flagship-Report-Disability.pdf (enumerating the situation of persons with disabilities across multiple sectors and highlighting state practice in implementation across those areas).
17 Fact-finding bodies include those established to investigate past violations of international human rights or humanitarian law as well as their causes and consequences. See GA Res. 67/1, Declaration of the High-Level Meeting of the General Assembly on the Rule of Law at the National and International Levels (Sept. 24, 2012).
18 For an explanation of this absence, see text accompanying note 104 infra.
19 SC Res. 2475, supra note 15.
20 See Jae-Chun Won, Janet E. Lord, Michael Ashley Stein & Yosung Song, Disability, Repressive Regimes, and Health Disparity: Assessing Country Conditions in North Korea, Hague Y.B. Int'l L. 27 (2016) (documenting CAH-level human rights violations including involuntary experimentation, forced mass sterilization, and compelled segregation).
21 Draft Articles on Prevention and Punishment of Crimes Against Humanity, in Report of the International Law Commission on the Work of Its Seventy-First Session, UN GAOR, 74th Sess., Supp. No. 10, at 11−21, UN Doc. A/74/10 (Sept. 16, 2019) [hereinafter Draft CAH Articles].
22 Alice Priddy, Disability and Armed Conflict 12 (Academy Briefing No. 14, 2019), at https://www.geneva-academy.ch/research/publications/detail/472-disability-and-armed-conflict.
23 See, e.g., Michael Robertson, Astrid Ley & Edwina Light, The First into the Dark: Nazi Persecution of the Disabled (2019).
24 Janet E. Lord, Genocide, Crimes Against Humanity and Human Rights Abuses Against People with Disabilities, in Encyclopedia of Genocide and Crimes Against Humanity 253 (Dinah L. Shelton ed., 2004). Included were individuals with blindness, deafness, epilepsy, intellectual disabilities, autism, depression, bipolar disorder, mobility impairments, and congenital disabilities. Id.; see also Robert Proctor, Racial Hygiene: Medicine Under the Nazis (1988).
25 The total figure combines murders conducted under the T-4 program with separate initiatives, continued through the end of World War II, of targeting individuals with disabilities in institutions and concentration camps. See generally Nazi Persecution of the Disabled: Murder of the Unfit, at https://www.ushmm.org/information/exhibitions/online-exhibitions/special-focus/nazi-persecution-of-the-disabled. For the origins of the crimes of genocide and CAH, see Philippe Sands, East West Street: On the Origins of “Genocide” and “Crimes Against Humanity” (2016).
26 Deutsche Presse Agentur, U.N. Team Arrives in Cambodia to Investigate Khmer Rouge Genocide, LEXIS-NEXIS(r) Academic Universe (Nov. 14, 1998); see also Arthur Blaser, Always the First to Go?: People with Disabilities and Genocide, in Anatomy of Genocide: State-Sponsored Mass-Killings in the Twentieth Century 78 (Alexandre Kimenyi & Otis Scott eds., 2001).
27 See Art Blaser, From the Field–People with Disabilities and Genocide: The Case of Rwanda, 22 Disability Stud. Q. 53 (2002). According to Theodore Simburudali, a commissioner with the Rwanda National Commission on Human Rights, “Disabled people suffered intolerable horrors. They went through hell on earth. They are very few disabled who survived during the genocide.” P.W. Masakhwe, The Disabled and the Rwanda Genocide: The Untold Story, 23 Disability World (Apr.–May 2004), at https://studylib.net/doc/8449781/--disability-world.
28 See Janet E. Lord & Jae-Chun Won, Missed Opportunity? UN Report Describes Human Rights Abuses but Leaves Out the Status of the Disabled, Kor. Q. 13 (2014).
29 See H. Kang & P. Grangereau, This Is Paradise! My North Korean Childhood 21 (2007) (relating the perspective of a defector that for North Korea that persons with disabilities are “seen as sub-humans, useless to society”). See also generally B.R. Myers, The Cleanest Race: How North Koreans See Themselves and Why It Matters (2010) (asserting that the guiding ideology of the North Korean regime is a race-based nationalism linked in part to Japanese fascist ideology).
30 See Lord, supra note 24.
31 UN Commission of Inquiry on Human Rights in the DPRK, Report of the Detailed Findings of the Commission of Inquiry on Human Rights in the DPRK, paras. 321–29, UN Doc. A/HRC/25/CRP.1 (Feb. 7, 2014), at https://www.ohchr.org/EN/HRBodies/HRC/CoIDPRK/Pages/ReportoftheCommissionofInquiryDPRK.aspx [hereinafter UN Commission on DPRK].
32 Parenthetically, reports on the ongoing armed conflict in Syria shed light on grave violations of international law against persons with disabilities left behind as families were forced to flee, and also for individuals in institutional facilities. See Nisan Ahmado, Disabled Victims Are Syrian War's Most Vulnerable, Extremism Watch, VOA News (Mar. 15, 2019), at https://www.voanews.com/a/people-with-disabilities-are-most-vulnerable-as-syrian-conflict-enters-9th-year-/4833549.html; OHCHR, Persons with Disabilities “Forgotten Victims” of Syria's Conflict (Sept. 17, 2013), at https://newsarchive.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13736&LangID=E; OCHA Services, Hidden Victims of the Syrian Crisis: Disabled, Injured, and Older Refugees, ReliefWeb (Apr. 9, 2014), available at https://reliefweb.int/report/syrian-arab-republic/hidden-victims-syrian-crisis-disabled-injured-and-older-refugees (relying on information from HelpAge and Handicap International). Relatedly, Amnesty International documented the difficulties persons with disabilities faced fleeing violence and the challenges they faced in displacement camps, including significant barriers in accessing aid, health service and inadequate living conditions. See generally Amnesty International, Excluded: Living with Disabilities in Yemen's Armed Conflict (2019) at https://www.justice.gov/eoir/page/file/1227171/download (“Documenting experiences of those living in displacement as well as in the wider community, Amnesty International h[erein] examine[s] the impact of the conflict in Yemen on children, women and men with disabilities.”)
33 For example, a representative from the Office of the High Commissioner of Human Rights reported that ISIL fighters shot dead three women and three young girls, and wounded a further four children from a village south of Mosul: “The victims were allegedly shot because they were trailing some 100 meters behind a group of other people from the same village who were being forced by ISIL to relocate to another sub-district” and “[t]he victims were lagging behind because one of the children had a disability” and was among those shot and killed. Office of the High Commissioner on Human Rights Press Release, Press Briefing Note on Iraq and South Sudan (Oct. 25, 2016), at https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20753&LangID=E.
34 See, e.g., Czech Fire: Eight Killed at Disabled People's Home in Vejprty, BBC World News (Jan. 19, 2020), at https://www.bbc.com/news/world-europe-51166732 (reporting that lack of fire detectors and shortage of staff were at fault for deaths of persons with disabilities in this institution); Steve Gutterman, 37 Killed in Pre-dawn Fire at Russian Psychiatric Fire, Reuters (Sept. 13, 2013), at https://www.nbcnews.com/news/world/37-killed-pre-dawn-fire-russian-psychiatric-hospital-flna8C11142807 (reporting that dilapidation of psychiatric hospitals was resulting in a rise in death tolls, also that a third of such facilities had been declared unfit for use since 2000).
35 Concerns over this situation led directly to the drafting of a specific CRPD provision prohibiting withholding of food and fluids to persons with disabilities. See CRPD, supra note 5, Art. 25(1)(f) (providing, as part of the obligation on the right to the highest attainable standards of health, the prevention of the “discriminatory denial of health care or health services or food and fluids on the basis of disability”).
36 See Human Rights Council, Women and Children Impacted by Albinism, Report of the Independent Expert on the Enjoyment of Human Rights by Persons with Albinism, UN Doc. A/HRC/43/42 (Dec. 24, 2019) (noting widespread killings and abuses) [hereinafter HRC, Women and Children Impacted by Albinism]; Amnesty International, Malawi: Impunity Fuels Killings of People with Albinism for Their Body Parts (June 28, 2018), at https://www.amnesty.org/en/latest/news/2018/06/malawi-impunity-fuels-killings-of-people-with-albinism-for-their-body-parts.
37 The Human Rights Council appointed Ms. Ikponwosa Ero as the first Independent Expert on the enjoyment of human rights by persons with albinism in June 2015. For the webpage of the Independent Expert, see https://www.ohchr.org/en/issues/albinism/pages/iealbinism.aspx.
38 United Nations, Report of the Independent Expert on the Enjoyment of Human Rights by Persons with Albinism, para. 16, UN Doc. A/74/190 (July 18, 2019); see also HRC, Women and Children Impacted by Albinism, supra note 36.
39 See generally Robyn Michelle Powell & Michael Ashley Stein, Persons with Disabilities and Their Sexual, Reproductive, and Parenting Rights: An International and Comparative Analysis, 11 Frontiers L. China 53 (2016); David Pfeiffer, Eugenics and Disability Discrimination, 9 Disability & Soc'y 481 (1994).
40 Disability Rights Advocates, Forgotten Crimes: The Holocaust and People with Disabilities 27–29 (2001) (detailing the array of abuses against children and adults with disabilities in Nazi Germany).
41 See Adam Cohen, Imbeciles: The Supreme Court, American Eugenics and the Sterilization of Carrie Buck 3–5 (2016).
42 See Open Society Foundations, Against Her Will: Forced and Coerced Sterilization of Women Worldwide (Oct. 2011), at https://www.opensocietyfoundations.org/publications/against-her-will-forced-and-coerced-sterilization-women-worldwide.
43 See Susan Brady, John Briton & Sonia Grover, The Sterilisation of Girls and Young Women in Australia: Issues and Progress, Austl. Hum. Rts Comm. (2001), at https://humanrights.gov.au/our-work/disability-rights/projects/sterilisation-girls-and-young-women-australia-issues-and.
44 See, e.g., Jana Grekul, Arvey Krahn & Dave Odynak. Sterilizing the “Feeble-Minded”: Eugenics in Alberta, Canada, 1929–1972, 17 J. Hist. Soc. 358 (2004); Action Canada for Sexual Health and Rights, Forced Sterilization: Not a Thing of the Past, at https://www.actioncanadashr.org/news/2019-05-10-forced-sterilization-not-thing-past.
45 See Colombia Constitutional Court, Decision C-133/14 (2014) (Colom.) (upholding the constitutionality of the practice of surgical sterilization of minors with intellectual and psychosocial disabilities).
46 See, e.g., Immigration and Refugee Board of Canada, Hungary: Reports of the Forced Sterilization of Women (2000–2011), available at https://www.refworld.org/docid/4f9695202.html.
47 Avantika Bunga & Tia Matthew, Women with Disabilities and Forced Sterilization in India, Bastion (Mar. 12, 2020), at https://thebastion.co.in/ideas/of-stigma-and-sterilization-the-layered-stigmatization-of-women-with-disabilities-in-india (reporting that 93% of women and girls with disabilities in India are subjected to forcible hysterectomies).
48 See U.S. Department of State Japan Country Report on Human Rights Practices for 1998, at https://www.state.gov/reports/2018-country-reports-on-human-rights-practices/japan (reporting that Japan admitted to sterilizing 16,500 women with disabilities without their consent between 1949 and 1992).
49 Korean Institute for National Unification, White Paper on Human Rights in North Korea 482 (2012) [hereinafter KINU, White Paper] (noting that forced sterilization was often coupled with other abuses, thus in 2011, 80% of refugee respondents indicated that North Korea segregated and relocated little people, and 67% indicated that the state forced those individuals to undergo sterilization).
50 See, e.g., Sarah Ramsay, Enforced Sterilizations in Sweden Confirmed, 355 Lancet 1252 (2000) (substantiating Sweden's practice of forced sterilizations through the 1970s).
51 See Cohen, supra note 41; Gerald V. O'Brien, Framing the Moron: The Social Construction of Feeble-Mindedness in the American Eugenic Era (2013).
52 For extensive documentation, see Report on Violence Against Women with Disabilities to the General Assembly by Rashida Manjoo, Special Rapporteur on Prevention of Violence to Women, UN Doc. A/67/227 (Aug. 2012).
53 A 2014 UN interagency statement underscored ongoing human rights abuses in the form of forced sterilization, noting that the practice was visited upon particular groups, among them, persons with disabilities. See World Health Organization, Eliminating Forced, Coercive and Otherwise Involuntary Sterilization: An Interagency Statement, OHCHR, UN Women, UNAIDS, UNDP, UNFPA, UNICEF and WHO (2014), at https://apps.who.int/iris/handle/10665/112848.
54 Notably, Nuremberg prosecutors tried and obtained convictions for CAH in respect of several doctors who forcibly sterilized individuals as part of forced experimentation. See The Medical Case, I Trials of War Criminal Before the Nuremberg Military Tribunals 8, 13, 16 (1946–1949) (including forced sterilizations in indictments for crimes against humanity), available at http://www.loc.gov/rr/frd/Military_Law/pdf/NT_war-criminals_Vol-I.pdf; The Medical Case, II Trials of War Criminal Before the Nuremberg Military Tribunals 171, 223, 226, 228 (1946–1949) (judgment finding defendant Gebhardt guilty of crimes against humanity for his role in forced sterilizations), available at https://www.loc.gov/rr/frd/Military_Law/pdf/NT_war-criminals_Vol-II.pdf; id. at 235, 238, 241 (finding defendant Brandt guilty of crimes against humanity for his role in forced sterilizations); id. at 277–79, 281 (finding defendant Brack guilty of crimes against humanity for his role in forced sterilizations).
55 A more recent example involved the feeding of radioactive oatmeal to children enrolled in a “science club” at the Fernald State School. See Lorraine Boissoneault, A Spoonful of Sugar Helps the Radioactive Oatmeal Go Down, Smithsonian Mag. (Mar. 8, 2017), at https://www.smithsonianmag.com/history/spoonful-sugar-helps-radioactive-oatmeal-go-down-180962424.
56 See generally Vivien Spitz, Doctors from Hell: The Horrific Account of Nazi Experiments on Humans (2005); Hugh Gregory Gallagher, By Trust Betrayed: Patients, Physicians, and the License to Kill in the Third Reich (1995).
57 UN Special Rapporteur, Report of the Special Rapporteur on the Situation of Human Rights in the Democratic People's Republic of Korea, paras. 32–34, UN Doc. A/HRC/31/70 (Jan. 19, 2016). The alleged atrocities included using children with disabilities for dissection of body parts and for testing the effects of biological and chemical weapons on humans. Id. Although not verified, the UN Commission of Inquiry logged these allegations as subjects for further investigation. See UN Commission on DPRK, supra note 31, para. 328.
58 International Covenant on Civil and Political Rights, Dec. 16 1966, Art. 7, 999 UNTS 171. The UN Human Rights Committee in its General Comment on Article 7 specifies that special protection against such experiments is necessary in the case of persons not capable of giving valid consent, in particular those under any form of detention or imprisonment. HRC, CCPR General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment), para. 7 (Mar. 10, 1992), available at https://www.ohchr.org/EN/Issues/Education/Training/Compilation/Pages/a)GeneralCommentNo20Prohibitionoftortureorothercruel,inhumanordegradingtreatmentorpunishment(article7)(1992).aspx.
59 CRPD, supra note 5, Art. 15.
60 Under the Statute of the International Criminal Court, subjecting persons who are in the power of another party to the conflict to “medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death or seriously endanger the health of such person or persons” constitutes a war crime in both international and non-international armed conflicts. Rome Statute, supra note 3, Art. 8(2)(b)(x).
61 See generally Matthew Lippman, The Nazi Doctors Trial and the International Prohibition on Medical Involvement in Torture, 15 Loy. L.A. Int'l & Comp. L. Rev. 395 (1993).
62 Iraqi Observatory for Human Rights, ISIS Uses Children and People with Disabilities as Human Shields, ReliefWeb (Mar. 31, 2017), at https://reliefweb.int/report/iraq/isis-uses-children-and-people-disabilities-human-shields (documenting the detainment of dozens of families in Mosul by ISIS and their use by ISIS as human shields).
63 Id. (reporting that “10 children with disabilities were placed within areas close to the line of contact to be shot or most likely to be booby-trapped”).
64 See Geneva Convention Relative to the Treatment of Prisoners of War, Art. 23, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135 (Third Geneva Convention) (“No prisoner of war may at any time be sent to or detained in areas where he may be exposed to the fire of the combat zone, nor may his presence be used to render certain points or areas immune from military operations.”); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Art. 28, Aug. 12, 1949, 6 UST 3516, 75 UNTS 287 (Fourth Geneva Convention) (“The presence of a protected person may not be used to render certain points or areas immune from military operations.”); Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, July 27, 1929; Protocol Additional to the Geneva Conventions of Aug. 12 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) , Art. 51(7), June 8, 1977; Rome Statute, supra note 3, Art. 8(2)(b)(xxiii) (proscribing as a war crime “utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations”).
65 Iraqi Woman Recruited Army of Female Suicide Bombers by Having Them Raped… Then Told Them Martyrdom Was Only Way to Escape Shame, Daily Mail (Feb. 5, 2009), at https://www.dailymail.co.uk/news/article-1134976/Iraqi-woman-recruited-army-female-suicide-bombers-having-raped--told-martyrdom-way-escape-shame.html; John Sawick, Why Terrorists Use Female and Child Suicide Bombers, Health Progress (July–Aug. 2016), at https://www.chausa.org/docs/default-source/health-progress/why-terrorists-use-female-and-child-suicide-bombers.pdf?sfvrsn=2.
66 A senior Afghan physician medical examiner, for instance, estimated that upward of 80% of suicide bombers had a physical or mental disability and noted the linkage between stigmatization of disability in Afghan society and feelings of hopelessness and depression that make individuals with disabilities vulnerable to recruitment or coercion. See Soraya Sarhaddi Nelson, Disabled Often Carry Out Afghan Suicide Missions, NPR (Oct. 15, 2007), at https://www.npr.org/templates/story/story.php?storyId=15276485.
67 To be clear, if persons with disabilities can choose to deploy themselves as bombers or take on active combat roles, they should be subjected to the same prosecution in the commission of war crimes and CAH as non-disabled persons. See, e.g., Hugo Kamaan, The Disabled Suicide Bombers of the Islamic State (Nov. 25, 2019), at https://hugokaaman.com/2019/11/25/the-disabled-suicide-bombers-of-the-islamic-state (documenting numerous instances of combatants with disabilities taking on active fighting roles, including, but not limited to, persons with physical disabilities such as wheelchair users operating specifically modified suicide vehicle-borne improvised explosive devices); Abdi Sheikh, Somalia Says Blind Female Suicide Bomber Killed Mogadishu Mayor, Reuters (Aug. 19, 2019), at https://www.reuters.com/article/us-somalia-security-bomber-idUSKCN1UZ1D0.
68 See, e.g., ICRC, Customary International Humanitarian Law Database, Rules 134 (Children), 145 (Women), at https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul.
69 See generally The Council of Europe Commissioner for Human Rights, The Rights of Persons with Disabilities to Live Independently and Be Included in the Community (June 2012), at https://wcd.coe.int/ViewDoc.jsp?id=1917847 (describing Council of Europe Human Rights Commissioner Thomas Hammarberg's work related to contemporary abuses of individuals with intellectual disabilities by member states).
70 See Section II.A supra.
71 For extensive documentation, see Lord, supra note 1; Fiala-Butora, supra note 1.
72 Physical and mental abuses and gross neglect endangering the lives of people with disabilities living in institutions is widespread. For reports by Disability Rights International on such abuses, see http://www.driadvocacy.org/media-gallery/our-reports-publications. For reports by Validity on Ill-Treatment of Persons with Disabilities in Institutions, see https://validity.ngo. For reports by Human Rights Watch, see https://www.hrw.org/topic/disability-rights.
73 See Mental Disability Rights International (now Disability Rights International), Not on the Agenda: Human Rights of People with Mental Disabilities in Kosovo (2002), available at https://www.driadvocacy.org/wp-content/uploads/KosovoReport.pdf.
74 Disability Rights International & Colectivo Vida Independiente de Guatemala, Still in Harm's Way: International Voluntourism, Segregation and Abuse of Children in Guatemala (July 16, 2018), available at https://www.driadvocacy.org/wp-content/uploads/Still-in-Harms-Way-2018.pdf.
75 Disability Rights International & Kenyan Association for the Intellectually Handicapped, Infanticide and Abuse: Killing and Confinement of Children with Disabilities in Kenya (Sept. 27, 2018), at https://www.ecoi.net/en/document/1451424.html.
76 UN Flagship Report on Disability and Development 2018, at 290, available at https://www.edu-links.org/sites/default/files/media/file/UN-Flagship-Report-Disability.pdf.
77 Disability Rights International and Kenyan Association for the Intellectually Handicapped, supra note 75.
78 See Georgette Mulheir, Deinstitutionalizing and Transforming Children's Services: A Guide for Good Practice (2012), available at https://resourcecentre.savethechildren.net/document/de-institutionalising-and-transforming-childrens-services-guide-good-practice.
79 See, e.g., Eudias Kigai, Kenya-Tanzania: Trafficking Handicapped Children and the Economy of Misery, Afr. Rep. (July 29, 2013), at https://www.theafricareport.com/5476/kenya-tanzania-trafficking-handicapped-children-and-the-economy-of-misery; Children Forced into Beggary and Coerced to Produce Earnings, Glob. March (Apr. 9, 2012), at https://globalmarch.org/children-forced-into-beggary-and-coerced-to-produce-earnings/; Susanna Korkeakivi, Forced Begging, Human Trafficking Search (Aug. 8, 2017), at https://humantraffickingsearch.org/201788forced-begging.
80 See, e.g., Eric Mathews, Eric Rosenthal, Laurie Ahern & Halyna Kurylo, No Way Home: The Exploitation and Abuse of Children in Ukraine's Orphanages (Disability Rts. Int'l, 2015), available at http://www.driadvocacy.org/wp-content/uploads/No-Way-Home-final2.pdf; U.S. State Department, 2014 Trafficking in Persons Report 2014 (June 2014), at http://www.state.gov/j/tip/rls/tiprpt/2014 (noting that “children in orphanages and crisis centers continue to be particularly vulnerable to trafficking within Ukraine”).
81 See Eric Rosenthal, The Right of All Children to Grow Up with a Family Under International Law: Implications for Placement in Orphanages, Residential Care, and Group Homes, 25 Buf. Hum. Rts. L. Rev. 65, 72–76 (2019) (chastising the Committee on the Rights of the Child for condoning the institutionalization of children with disabilities); Paul Harpur & Michael Ashley Stein, The UN Convention on the Rights of Persons with Disabilities and the Global South, 47 Yale J. Int'l L. __ (forthcoming 2021) (criticizing the CRPD Committee for not using its power of inquiry to highlight systemic abuses). For an empirical and qualitative analysis of UN treaty bodies and their recognition/non-recognition of disability over the decade following the CRPD's adoption, see Kjersti Skarstad & Michael Ashley Stein, Mainstreaming Disability in the United Nations Treaty Bodies, 17 J. Hum. Rts. 1 (2018).
82 KINU, White Paper, supra note 49, at 482–83; Won, Lord, Stein & Song, supra note 20, at 30–32.
83 Articles 8(2)(b)(ix) and 8(2)(e)(iv) of the Rome Statute proscribe as war crimes, in international and non-international armed conflicts, “[i]ntentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives.” Rome Statute, supra note 3. Indeed, the ICC Policy on children explicitly references the disproportionate impact that such attacks may have on children. See International Criminal Court Office of the Prosecutor, Policy Paper on Children, para. 2 (2016) [hereinafter ICC Child Policy Paper].
84 See generally Priddy, supra note 22. For examples of how congregate living arrangements pose serious dangers to persons with disabilities, especially in armed conflict, see International Committee of the Red Cross, Urban Services During Protracted Armed Conflict: A Call for a Better Approach to Assisting Affected People (2015); UN High Commissioner for Human Rights Press Release, Press Briefing Notes on Yemen, Serbia, Honduras and Albinism Website Launch, para. 1 (May 5, 2015), at https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15924; Handicap International, Hidden Victims of the Syrian Crisis: Disabled, Injured and Older Refugees (2014), available at https://www.driadvocacy.org/wp-content/uploads/romania-May-9-final_with-photos.pdf; see also Mental Disability Rights Int'l, Hidden Suffering: Romania's Segregation and Abuse of Infants and Children with Disabilities (2006), available at http://www.mdri.org/PDFs/reports/romania-May%209%20final_with%20photos.pdf; Mental Disability Rights Int'l, Behind Closed Doors: Human Rights Abuses in the Psychiatric Facilities, Orphanages and Rehabilitation Centers of Turkey (2005), available at https://www.driadvocacy.org/wp-content/uploads/turkey-final-9-26-05.pdf.
85 IHL protection is accorded under both age and in relation to disability. See ICRC, Customary International Humanitarian Law Database, Rule 135, Children, at https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule135; Rule 138, The Elderly, Disabled and Infirm, at https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule138.
86 See Ambassador Don McKay, Convention on the Rights of Persons with Disabilities: A Benchmark for Action, 56 Rehab. Int'l Rev. 2, 2–4 (Dec. 2007) (explaining the need to create a disability-specific treaty for the purpose of clarifying how the existing human rights framework applied to persons with disabilities), available at http://www.unicef.org/RI_Review_2007_Dec_web.pdf.
87 CRPD, supra note 5, Art. 11.
88 This, of course, strikes at the heart of the debate surrounding the interrelationship between international human rights law and international humanitarian law. For a discussion, see Ziv Bohrer, J. Dill & Helen Duffy, Trials and Tribulations: Co-applicability of IHL and Human Rights in an Age of Adjudication, in Law Applicable to Armed Conflict 15–105 (Max Planck Trialogues, p. I) (2020), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3528156.
89 See Thomas Marguerite, International Criminal Law and Human Rights, in Routledge Handbook of International Criminal Law 435, 436 (William Schabas & Nadia Bernaz eds., 2013).
90 This is precisely the position taken by the ICC in its articulation of its child policy. See ICC Child Policy, supra note 83. The touchstone for the application of the principle of adverse distinction under IHL to the attribute of disability is the non-discrimination provision of CRPD Article 5 in combination with protection mandated in Article 11. See CRPD, supra note 5, Arts. 5, 11.
91 OHCHR, The Core International Human Rights Instruments and their Monitoring Bodies, at https://www.ohchr.org/en/professionalinterest/pages/coreinstruments.aspx.
92 See id. Art. 12 (recognizing that persons with disabilities enjoy equal recognition before the law and mandating that states establish supported decision-making frameworks to facilitate the exercise of legal capacity).
93 See Janet E. Lord & Michael Ashley Stein, Contingent Participation and Coercive Care: Feminist and Communitarian Theories Consider Disability and Legal Capacity, in Coercive Care: Rights, Law and Policy 31 (Bernadette McSherry & Ian Freckelton eds., 2013) (discussing the scope of Article 12 and its reconceptualization of legal rights).
94 CRPD, supra note 5, Art. 1.
95 Id. Art. 11.
96 See Rosemary Kayess & Phillip French, Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities 8 Hum. Rts. L. Rev. 1, 3–5 (2008) (describing how disability and human variation is addressed in the CRPD); Frédéric Mégret, The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?, 30 Hum. Rts. Q. 494, 496–98 (2008) (interrogating the balance between formal equality and equality of outcomes as expressed in the CRPD).
97 CRPD, supra note 5, Art. 3. For a discussion of models of disability see Stein, supra note 8, at 82–90; Michael Ashley Stein & Penelope J.S. Stein, Beyond Disability Civil Rights, 58 Hastings L.J. 1203 (2007).
98 It is important to note here that the terminology used in the CRPD to describe vulnerability and the need for protection is carefully crafted to avoid the paternalism so apparent in prior disability instruments. Article 11 speaks in terms of “situations of risk” and calls for “protection,” not “special” treatment. This was intentional empowerment on the part of the drafters. See Stephanie Motz, Article 11: Situations of Risk and Humanitarian Emergencies, in The UN Convention on the Rights of Persons with Disabilities: A Commentary 314 (Ilias Bantekas, Michael Ashley Stein & Dimitris Anastasiou eds., 2018).
99 CRPD, supra note 5. The impact of accessibility is delineated by Committee on the Rights of Person with Disabilities, General Comment No. 2 (Article 9: Accessibility), UN Doc. CRPD/C/GC/2 (May 22, 2014) [hereinafter General Comment No. 2].
100 A transversal read of CRPD provisions clarifies this point. See CRPD, supra note 5, Arts. 5, 9, 11.
101 See International Committee of the Red Cross, How Law Protects Persons with Disabilities in Armed Conflict (Dec. 13, 2017), at https://www.icrc.org/en/document/how-law-protects-persons-disabilities-armed-conflict.
102 Rome Statute, supra note 3, Art. 54(1)(b).
103 Id. Art. 68(1).
104 See Nowak Report, supra note 14.
105 For the current status on ratifications, see United Nations Department of Economic and Social Affairs, Convention on the Rights of Persons with Disabilities (CRPD), at https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html.
106 For more on activism, see Janet E. Lord, Disability Rights and the Human Rights Mainstream: Reluctant Gate-Crashers?, in The International Struggle for New Human Rights 83 (Clifford Bob ed., 2010).
107 See Janet E. Lord & Michael Ashley Stein, Participation in International Agreements as Transformative Social Change: The UN Convention on the Rights of Persons with Disabilities, in Making Rights Real: Taking Effective Action to Overcome Global Challenges 27, 31-34 (Jody Heymann & Adèle Cassola eds., 2012) (asserting that DPOs can best set their priorities).
108 CRPD, supra note 5, Art. 3.
109 Id. Art. 9. Of note is that Article 9, to be transversally applied across the CRPD, makes explicit reference to the identification and elimination of barriers to accessibility in a wide range of contexts, many of which have direct application to criminal law, process and its operation. Id. Art. 9(1)–(2). See also General Comment No. 2, supra note 99 (interpreting state accessibility obligations).
110 See, e.g., CRPD Committee, Concluding Observations, UN Doc. CRPD/C/KEN/CO/1, para. 26(b); UN Doc. CRPD/C/ECU/CO/1, para. 27(c) (requiring Kenya to “[d]efine explicitly in legal instruments the duty of the judiciary to provide procedural accommodations”); UN Doc. CRPD/C/CHN/CO/1, para. 24 (chiding China to “reviews its procedural civil and criminal laws in order to make mandatory the necessity to establish procedural accommodation for those persons with disabilities who intervene in the judicial system can do it as subject of rights and not as objects of protection”). See generally UN Global Initiative for Inclusive ICTs, Inclusive Courts Checklist (June 2014), at https://g3ict.org/publication/inclusive-courts-checklist; Stephanie Ortoleva, Inaccessible Justice: Human Rights, Persons with Disabilities and the Legal System, 17 ILSA J. Int'l & Comp. L. 281 (2011).
111 The Constitutional Court of Colombia and the Supreme Court of Mexico have each called for the translation of judgments concerning the rights of persons with disabilities into easy read formats for the benefit of the petitioners and other persons with intellectual disabilities. See Decision T-573/2016; Resolución Judicial de la Primera Sala de la Suprema Corte de la Nación en el Amparo en Revisión 159/2013. The national police in Finland have designed their website to provide a range of accessible formats, such as plain language, content and videos in sign language (some captioned), and a complaint form in large print. Azerbaijan amended its Code of Civil Procedure to permit witnesses with disabilities to testify at their place of residence, when appropriate. Argentina has adopted a Protocol for Accessing Justice by Persons with Disabilities. In Australia, a Disability Access Bench Book was developed to provide recommendations and guidance on how to provide procedural accommodations to individuals with disabilities, including in criminal law process. See OHCHR, Right to Access to Justice Under Article 13 of the Convention on the Rights of Persons with Disabilities, Report of the Office of the United Nations High Commissioner for Human Rights, paras. 22, 30, UN Doc. A/HRC/37/25 (Dec. 27, 2017).
113 Penny Cooper & Michelle Mattison, Intermediaries, Vulnerable People and the Quality of Evidence: An International Comparison of Three Versions of the English Intermediary Model, 21 Int'l J. Evidence & Proof 351–370 (2017).
114 CRPD, supra note 5, Art. 4(2).
115 Id. Art. 12.
116 Id. Art. 13.
117 See Committee on the Rights of Persons with Disabilities, General Comment 1 (Article 12: Equal Recognition Before the Law), UN Doc. CRPD/C/GC/1 (2014).
118 CRPD, supra note 5, Art. 4(3).
119 See Dixon, supra note 4.
120 A Zambian case concerning a Deaf boy wrongly accused of murdering his mother spent months in prison without access to a sign language interpreter and thus no access to effective legal counsel until a disability organization intervened. Janet E. Lord & Michael Ashley Stein, Deaf Identity and Rights in Africa: Advancing Equality Through the Convention on the Rights of Persons with Disabilities, in Citizenship, Politics, Difference: Perspectives from Sub-Saharan Signed Language Communities 200 (Audrey C. Cooper & Khadijat K. Rashid, eds., 2015). The Constitutional Court of Benin found that the denial of an accessible version of the examination to become a judge to a blind applicant was wrongful and discriminatory, but the legal system offered no remedy for that violation. Décision DCC 12-106 du 3 Mai 2012, La Cour constitutionnelle du Bénin. For discussion of this case, see Faraaz Mohamed, Janet E. Lord & Michael Ashley Stein, Transposing the Convention on the Rights of Persons with Disabilities in Africa: The Role of Disabled Peoples’ Organisations, 27 Afr. J. Int'l & Comp. L. 335 (2019).
121 ICC Child Policy, supra note 99, reflects principles of the CRC, for instance, in recognizing that children are capable of giving evidence, that child-sensitive approaches must be taken in criminal justice contexts, and that CRC principles must be harnessed in all the activities of the Office of the Prosecutor.
122 CRPD, supra note 5, Art. 13(1).
124 Id. Art. 13(1).
125 Id. Art. 13(2).
126 CRPD Committee Report to the UN General Assembly, Supp. No. 55, UN Doc. A/72/55) (in rendering justice processes more accessible, the Committee called for “including the provision of sign language interpretation and other accessible formats and modes of communication” and noted the “the lack of accessibility of the judicial system; the lack of legal assistance; the restrictions on the validity of evidence of persons with disabilities; and the lack of protection of persons with disabilities, particularly women with disabilities who are victims of violence”). Id., para. 35.
127 Id. Art. 5(3).
128 Reasonable accommodation features as a core element of the UN Disability Strategy as Indicator 7, wherein entities are required to develop a specific reasonable accommodation policies. See UN Disability Strategy, supra note 10, at 15.
129 Report of the Special Rapporteur on Violence Against Women, Mission to Sierra Leone, paras. 76, 127, UN Doc. E/CN.4/2002/83/Add.2 (2002) (supporting the establishment by courts of victim and witness units with expertise in trauma related to sexual violence); Report of the High Commissioner for Human Rights, Pursuant to Human Rights Council Resolution 9/11, paras. 60–61, UN Doc. A/HRC/12/19 (Aug. 21, 2009) (supporting protocols to avoid retraumatization). See also ESCOR, Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime, paras. 10–19, 29–34, 38–46, Res. No. 2005/20 (July 22, 2005) (promoting the rights of children victims and witnesses to be treated with dignity and compassion, to be protected from discrimination, to be informed, to be heard and to express views and concerns, to affective assistance, to privacy, to protection from hardship during the justice process, to safety, to reparation, and to special preventative measures; as well as the corresponding need to make training, education, and information available to professionals who work with such children).
130 Rules of Procedure and Evidence, reproduced from Office Records of the Assembly of States Parties to the Rome Statue of the International Criminal Court, Rule 86, ICC-ASP/1/3 and Corr.1 part II.A, First Session, New York (Sept. 3–10, 2002), available at https://www.icc-cpi.int/iccdocs/pids/legal-texts/rulesprocedureevidenceeng.pdf [hereinafter ICC Rules of Procedure and Evidence].
131 See CRPD, supra note 5, Art. 13(2). The two tribunals are discussed in Section III.B infra.
132 Strikingly, successive instruments have rendered contingent the right to informed consent, either in the context of medical research and experimentation or in the context of medical treatment, for persons with disabilities. Compare The Protection of Persons with Mental Illness and the Improvement of Mental Health Care, GA Res. 46/119, prin. 1.2 (Dec. 17, 1991), with Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine (Oviedo Convention) , Art. 17, Council of Europe Treaty Series No. 164, entered into force Dec. 1, 1999, and the Additional Protocol to the Convention on Human Rights and Biomedicine, Concerning Biomedical Research, Council of Europe Treaty Series No. 195, Art. 19, entered into force Sept. 1, 2007. Concerns continue, as evidenced by the opposition of the CRPD Committee to the proposed draft Protocol, to the Oviedo Convention. See CRPD Committee, Statement by the Committee on the Right of Persons with Disabilities Calling State Parties to Oppose the Draft Additional Protocol to the Oviedo Convention Additional Protocol to the Oviedo Convention, CRPD Committee, adopted during the Committee's 20th session, Aug. 27–Sept. 21, 2018, Geneva.
133 CRPD, supra note 5, pmbl. (u).
134 Int'l L. Comm'n, Report of on the Work of the Seventy-First Session, ch. IV, para. 42, UN Doc. A/74/10 (2019).
135 Although not what is being suggested by the authors in the Article, some have argued that international criminal law should be expanded to include “banal” violence, similar to that suffered by asylum seekers in Greece. See Ioannis Kalpouzos & Itamar Mann, Banal Crimes Against Humanity: The Case of Asylum Seekers in Greece, 16 Melb. J. Int'l. L. 1 (May 5, 2015), available at https://ssrn.com/abstract=2601844 (The authors suggest that the widespread and inhuman and degrading treatment of asylum seekers within Greek detention centers and their knowing exposure to such conditions by the European Union agency Frontex should be considered a CAH, but that is unlikely to happen because that treatment is not considered a radically evil act.).
136 See Charter of the International Military Tribunal, Art. 6(c), Nuremberg Trial Proceedings Vol. 1, available at https://avalon.law.yale.edu/imt/imtconst.asp (noting that, although CAH emerged from World War II, it encompassed not only acts committed against any civilian population during the war but also those committed before the war as well). See also William A. Schabas, Genocide in International Law 119 (2d. ed. 2009) (asseverating that the codification of CAH responded to a lacuna left by the Genocide Convention). See generally Sands, supra note 25.
137 See Leila Nadya Sadat, Crimes Against Humanity in the Modern Age, 107 AJIL 334, 342–43 (2013).
138 “For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international laws; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violation of comparable gravity; (h) persecution against any identifiable group or collectively on political, racial, national, ethnic, cultural, religious, gender. . . (i) Enforced disappearance of persons; (j)The crime of apartheid; (k) Other inhuman acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.” Rome Statute, supra note 3, Art. 7.
139 See generally Guénaël Mettraux, 2 International Crimes: Law and Practice: Crimes Against Humanity (2020); Benjamin Ricci, Crimes Against Humanity: A Historical Perspective (2004).
140 Statute of the International Criminal Tribunal for the Former Yugoslavia, Art. 5 (May 25, 1993) (although more limited in applicability, CAH was nonetheless widely used by the ICTY prosecutors with 670 individuals being charged with CAH, comprising some 40% of all indicted offenses and likewise of all convictions. See Sadat, supra note 137, at 342–43.
141 Statute of the International Criminal Tribunal for Rwanda, Art. 3, SC Res. 955, Arts. 2–4, annex (Nov. 8, 1994). This removal and replacement of the armed conflict nexus with a requirement that the act be widespread or a systematic attack led to 282 individuals being charged with CAH before the ICTR, of whom about 43% were convicted. By comparison, 254 individuals were charged with genocide, of whom some 37% were convicted; and 99 individuals were charged with war crimes, of whom some 16% were convicted. See Sadat, supra note 137, at 347 (Table 2).
142 Statute of the Special Court for Sierra Leone, Art. 2(g) (Jan. 16, 2002).
143 Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution Under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, Art. 9, June 6, 2003, 2329 UNTS 117. Although not as prolific, the ECCC to date has convicted three individuals each for CAH among other crimes and has no acquittals. See ECCC, Case Load, Extraordinary Chambers Cts. Cambodia, at https://www.eccc.gov.kh/en/case-load Cf. Open Society Justice Initiative, Performance and Perception: The Impact of the Extraordinary Chambers in the Courts of Cambodia (2016), at https://www.justiceinitiative.org/publications/performance-and-perception-impact-extraordinary-chambers-court-cambodia (praising the prosecution of the top Khmer Rouge leaders while also criticizing the impact on lesser known figures and the pervasive air of corruption).
144 See Sadat, supra note 137.
145 For an overview of the doctrinal development of the Rome Statute and its applications, see Christine Byron, War Crimes and Crimes Against Humanity in the Rome Statute of the International Criminal Court (2009).
146 See UN Div. for Advancement of Women, Dep't of Econ. & Soc. Affs., Sexual Violence and Armed Conflict: United Nations Response (Apr. 1998), at http://www.un.org/womenwatch/daw/public/cover.htm. See generally Richard J. Goldstone, Prosecuting Rape as a War Crime, 34 Case W. Res. J. Int'l L. 277 (2002); Dara Kay Cohen, Rape During Civil War (2016).
147 Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Chamber I, Judgment, 24, 181 (Sept. 2, 1998).
148 See James R. McHenry III, The Prosecution of Rape Under International Law: Justice that Is Long Overdue, 35 Vand. J. Transnat'l L. 1269, 1272 (2002) (recognizing Akayesu as precedent).
149 See Rome Statute, supra note 3, Art. 7(1)(g).
150 See ICC Child Policy Paper, supra note 83, at 10–11.
151 The Statute of the ICC expressly lists numerous sexual and gender-based crimes such as rape, sexual slavery, enforced prostitution, forced pregnancy, and enforced sterilization. Additionally, it provides that those sexual and gender-based crimes can fall under the Court's jurisdiction if the acts rise to the level of genocide or CAH. ICC Off. of the Prosecutor, Policy Paper on Sexual and Gender-Based Crimes 26, para. 1 (June 2014) [hereinafter ICC Sexual and Gender-Based Crimes]. See Valerie Oosterveld, Gender-Based Crimes Against Humanity, in Forging a Convention for Crimes Against Humanity 78 (Leila Nadya Sadat ed., 2011).
152 See generally Happold, supra note 4.
153 Christine Bakker, Prosecuting International Crimes Against Children: The Legal Framework, IWP 2010-13, UNICEF Innocenti Research Centre 16 (2010). The 1990 African Charter on the Rights and Welfare of the Child, which prohibited the recruitment or direct participation in hostilities or internal strife of anyone under the age of eighteen, was also significant as a regional instrument. See African Charter on the Rights and Welfare of the Child, July 1, 1990, at https://au.int/en/treaties/african-charter-rights-and-welfare-child.
154 Prosecutor v. Kunarac et al., Case No. IT-96-23T and IT-96-23/1-T, Trial Judgment, para. 874 (Feb. 22, 2001); The ICTY Appeals chamber upheld that finding by the Trial Chamber that certain factors as to the victim's personal identity make a crime worst allowing for harsher sentencing. Prosecutor v. Kunarac et al., Case No. IT-96-23 and IT-96-23/1-A, Appeals Judgment, para. 355 (June 12, 2002) (sustaining “an inherent discretion of the Trial Chamber to consider the victim's age of 19 years as an aggravating factor”).
155 Bakker, supra note 153, at 6.
156 ICC Rules of Procedure and Evidence, supra note 130, Rule 145.
157 Rome Statute, supra note 3, Arts. 8(2)(b)(xxvi), 8(2)2(e)(vii).
158 See Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-2901 (July 10, 2012) (charging and convicting a military commander of the war crimes of enlisting and conscripting children under the age of fifteen and using them to actively participate in hostilities); Prosecutor v. Germain Katanga, ICC-01/04-01/07-717 (Oct. 14, 2008) (charging, for the first time by the ICC, a military commander with the crimes of rape and sexual slavery as crimes against humanity) [hereinafter Prosecutor v. Katanga]; Prosecutor v. Mathieu Ngudjolo Chui, ICC-01/04-02/12, (Dec. 18, 2012) (charging a military commander with a number of war crimes including the use of children under fifteen to actively participate in hostilities).
159 See ICC Child Policy Paper, supra note 83, at 37–52.
160 Report of the International Law Commission, Chapter XIV, Sect. A.1, UN Doc. A/69/10 (May 5–June 6, July 7–Aug. 8, 2014).
161 Sean D. Murphy, First Report of the Special Rapporteur on Crimes Against Humanity, International Law Commission, para. 12, UN Doc. A/CN.4/680 (Feb. 17, 2015). See also M. Cherif Bassioui, Crimes Against Humanity: The Case for a Specialized Convention, 9 Wash. U. Glob. Stud. L. Rev. 575 (2010).
162 Murphy, supra note 161, para. 15.
163 Forging a Convention for Crimes Against Humanity, supra note 151. For updates, see Crimes Against Humanity Initiative, Wash. U. St. Louis, at https://sites.wustl.edu/crimesagainsthumanity.
164 Report of the International Law Commission on the Work of Its Seventy-First Session, UN GAOR, 74th Sess., Supp. No. 10, at 10, para. 42, UN Doc. A/74/10 (Sept. 16, 2019); see also Draft CAH Articles, supra note 21.
165 Comprehensive accounts of what motivated aspects of the CAH Convention are contained in Special Issue: Laying the Foundations for a Convention on Crimes Against Humanity,16 J. Int'l Crim. Just. 679, 679–957 (2018).
166 Draft CAH Articles, supra note 21, Art. 2(h).
167 Sean D. Murphy, Fourth Report of the Special Rapporteur on Crimes Against Humanity, International Law Commission, ch. 1, E(1), paras. 60–61, UN Doc. A/CN.4/725 (Feb. 18, 2019) (The experts and UN special rapporteurs recommended expanding and updating the explicit list of acts considered persecution to include “persecution on grounds of language, social origin, age, disability, health, sexual orientation, gender identity, sex characteristics and indigenous, refugee, statelessness or migratory status.” In response, the ILC special rapporteur noted that the catch-all phrase used “embraces other and evolving grounds on which persecution may be found” and did not consider it necessary to include additional explicit mention of disability and other individual identities. Nonetheless, the ILC special rapporteur did recommend that the ILC “may wish to consider adjusting the commentary so as to provide a fuller account of what is meant by ‘other grounds that are universally recognized as impermissible under international law.’”).
168 See Sections IV.B–C supra.
169 See Sections III.A–C supra.
170 While not addressed in the text, ad hoc tribunals were considered but ultimately not included due primarily to the lack of international support or interest as demonstrated inability to established ad hoc tribunals for the situations in Syria and Myanmar. See Julian Borger, Call for Special Tribunal to Investigate War Crimes and Mass Atrocities in Syria, Guardian (Mar. 17, 2015), at https://www.theguardian.com/world/2015/mar/17/call-for-special-tribunal-to-investigate-war-crimes-and-mass-atrocities-in-syria; Syria Investigator del Ponte Signs Off with a Sting, Reuters (Sept. 18, 2017), at https://www.reuters.com/article/us-mideast-crisis-syria-investigator-idUSKCN1BT29Q; David Brunnstrom, Human Rights Law Group Calls for Tribunal on Crimes Against Rohingya, Reuters (Dec. 3, 2018), at https://www.reuters.com/article/us-usa-myanmar-rohingya-idUSKBN1O21K8; Scott Neuman, UN Official: Evidence Myanmar Using Live Ammunition Against Protestors, NPR (Feb. 12, 2021), at https://www.npr.org/2021/02/12/967291621/u-n-official-evidence-myanmar-using-live-ammunition-against-protesters.
171 The identification of the ICC as the seemingly most effective judicial forum within which to prosecute disability-based crimes as CAH is not meant to suggest that if prosecution of crimes against persons with disabilities were to take place in domestic, regional, or hybrid courts that such developments would be unwelcome. To the contrary, any movement toward recognizing, investigating, and prosecuting crimes against persons with disabilities, as well as increasing access to justice mechanisms particularly in post-conflict situations, would be seen as a significant advancement and not opposed by the authors as long as it is done in the manner considered by the CRPD. The ICC was chosen based primarily on its codification of the CAH framework established by the above-mentioned ad hoc tribunals, understanding the resource and judicial limitations facing the court. See Dr. Ewelina U. Ochab, As The International Criminal Courts Faces More Challenges, We Need It More Than Ever, Forbes (Sept. 13, 2020), at https://www.forbes.com/sites/ewelinaochab/2020/09/13/as-the-international-criminal-court-faces-more-challengs-we-need-it-more-than-ever.
172 Pavel Caban, Gaps in the Legal Regime of Interstate Cooperation in Prosecuting Crimes Under International Law, 6 Czech Y. B. Pub. & Priv. Int'l L. 289, 290 (2015).
173 The European Union has a statute relating to crimes against humanity. By the nature of the Treaty of Rome, all nations that have joined the EU zone are legally bound and therefore indirectly maintain statutes on crimes against humanity. See Council Framework Decision 2008/913/JHA of Nov. 28, 2008 on Combating Certain Forms and Expressions of Racism and Xenophobia by Means of Criminal Law, 2008 OJ (L 328) 55; Council Decision 2003/335/JHA of May 8, 2003 on the Investigation and Prosecution of Crimes of Genocide, Crimes Against Humanity and War Crimes, 2003 OJ (L 118) 12; Council Decision 2002/494/JHA of June 13, 2002 (December 16, 2008), Setting Up a European Network of Contact Points in Respect of Persons Responsible for Genocide, Crimes Against Humanity and War Crimes, 2002 OJ (L 167) 1; see also Crimes Against Humanity Statutes and Criminal Code Provisions in Selected Countries, Library of Congress (Law), at https://www.loc.gov/item/2018298838/.
174 A member of the German SS force known as the Butcher of Lyons. Wolfgang Saxon, Klaus Barbie, 77, Lyons Gestapo Chief, N.Y. Times (Sept. 26, 1991), at www.nytimes.com/1991/09/26/world/klaus-barbie-77-lyons-gestapo-chief.html.
175 Cass. Crim., Jan. 26, 1984, JCP 1984 II 20,197 (submission of French Advocate Dontenwille), translated in 78 ILR 125–48, 147, reprinted in International Criminal Law: Cases & Materials 762 (Jordan J. Paust, et al., 4th ed. 2013). The French law that included the charge of crimes against humanity was incorporated into the county's legal code through the law of December 26, 1964 by reference to the Nuremberg principles. See, e.g., Public Prosecutor v. Barbie, Trial Judgment (Cour d'assises [assize court] du Rhône July 4, 1987) (Fr.) [hereinafter Public Prosecutor v. Barbie]; Leila Nadya Sadat, The Nuremberg Paradox, 58 Am. J. Comp. L. 151 (2010). However, since then, France has amended the legislation to better comply with that of the ICC after the ratification of the Rome Statute. See Book II Felonies and Misdemeanors Against Persons, Title I Crimes Against Humanity and Against Persons, Subtitle I Crimes Against Humanity, Chapter II Other Crimes Against Humanity, Art. 212-1.
176 See Jo-Marie Burt, Guilty as Charged: The Trial of Former Peruvian President Alberto Fujimori for Human Rights Violations, 3 Int'l J. Transitional Just. 384, 384 (2009); Naomi Roht-Arriaza, The Pinochet Precedent and Universal Jurisdiction, 35 New Eng. L. Rev. 311, 311 (2001).
177 See, e.g., Public Prosecutor v. Barbie, supra note 175; David Sugarman, The Arrest of Augusto Pinochet: Ten Years On, Open Democracy (Oct. 29, 2008), at https://www.researchgate.net/publication/327369337_The_Arrest_of_Augusto_Pinochet_Ten_Years_On_In_Open_Democracy_wwwopendemocracynetarticlethe-arrest-of-augusto-pinochet-ten-years-on; Burt, supra note 176, at 384; Efrain Rios Montt & Mauricio Rodriguez Sanchez Before the National Courts of Guatemala: Background, Int'l Just. Monitor, at www.ijmonitor.org/efrain-rios-montt-and-mauricio-rodriguez-sanchez-background; Sophie Beaudoin, Will Former President Perez Monlina Face Investigation for Wartime Atrocities?, Int'l Just. Monitor (Sept. 8, 2015), at www.ijmonitor.org/2015/09/will-former-president-perez-molina-face-investigation-for-wartime-atrocities.
178 See Sadat, supra note 137, at 354 n. 146; Murphy, supra note 161, para. 56.
179 See Murphy, supra note 161, paras. 52–63. See generally Elies van Sliedregt, Criminalization of Crimes Against Humanity Under National Law, 16 J. Int'l Crim. Just. 729 (2018).
180 Murphy, supra note 161, para. 58 (emphasis added).
181 Id., para. 59. See also Caban, supra note 172, at 191–92.
182 Murphy, supra note 161, paras. 5–55.
183 Id., para. 58 (emphasis added).
184 Caban, supra note 172, at 290. Aut dedere aut judicare, or extradite and prosecute, is a provision found in numerous international treaties that seeks to secure “international cooperation in the suppression of certain kinds of criminal conduct.” M. Cherif Bassiouni & Edward M. Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law 3 (1995).
185 See generally Committee on the Rights of Persons with Disabilities Concluding Observations, at https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=4&DocTypeID=5.
186 Sarah M.H. Nouwen, “Hybrid Courts”: The Hybrid Category of a New Type of International Crimes Court, 2 Utrecht L. Rev. 190, 190–91 (2006).
187 Id. at 191.
188 Laura A. Dickinson, The Promise of Hybrid Courts, 97 AJIL 295, 305 (2003).
189 Nouwen, supra note 186, at 193. See also generally Office of the United Nations High Commissioner for Human Rights, Rule of Law Tools for Post Conflict States: Maximizing the Legacy of Hybrid Courts (2008).
190 See Nouwen, supra note 186, at 194–99.
191 See id. at 200–02; Dickinson, supra note 240, at 307.
192 “In Bosnia and Herzegovina, legislation has been amended to include international crimes. In Kosovo the panels’ jurisdiction theoretically extends from annulling contracts to prosecuting genocide, but the FRY Criminal Code, which is applicable to crimes committed during the armed conflict, does not include [CAH] or the international law important concept of command responsibility.” Nouwen, supra note 186, at 207.
193 See Michael E. Hartmann, Special Report: International Judges and Prosecutors in Kosovo (U.S. Institute of Peace, Oct. 13, 2003). See generally Hansjörg Strohmeyer, Collapse and Reconstruction of A Judicial System: The United Nations Mission in Kosovo and East Timor, 95 AJIL 46 (2001); Roger F.M. Lorenz, The Rule of Law in Kosovo: Problems and Prospective, 11 Crim. L. F. 127 (2000).
194 See Jason Burke & Amantha Perera, UN Calls for Sri Lanka War Crimes Court to Investigate Atrocities, Guardian (Sept. 16, 2015), at www.theguardian.com/world/2015/sep/16/un-seeks-special-court-to-investigate-sri-lanka-war-atrocities.
195 See ICC, Situations Under Investigation, at https://www.icc-cpi.int/pages/situation.aspx (The only situation not involving CAH is the Situation in the Republic of Mali (ICC-01/12), which is investigating alleged war crimes committed in Mali since January 2012.).
197 Sadat, supra note 137.
198 Kai Ambos, Crimes Against Humanity and the International Criminal Court, in Forging a Convention for Crimes Against Humanity, supra note 151, at 279.
199 Rome Statute, supra note 3, Art. 7(1).
200 Id. Art. 7(2)(a).
201 Prosecutor v. Katanga, supra note 158, para. 396.
205 See Guénaël Mettraux, The Definition of Crimes Against Humanity and the Question of a “Policy” Element, in Forging a Convention for Crimes Against Humanity, supra note 151, at 142.
206 By maintaining the requirement of a nexus between government action and the crime, Article 7 seemingly prevents the charging of non-state actors and private individuals with CAH. See Machteld Boot, Rodney Dixon & Christopher K. Hall, Article 7: Crimes Against Humanity, in Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article 117, 123 (Otto Triffterer ed., 1999). Additionally, there is disagreement over whether, for a crime to be considered a CAH, the crime's motive must be related to an attribute of the victim, like their religion, political affiliation, race, or other social or cultural attribute. See Murphy, John E., Civil Liability for the Commission of International Crimes as an Alternative to Criminal Prosecution, 12 Harv. Hum. Rts. J. 1, 19–20 (1999)Google Scholar. Currently, the ICC has not accepted the assertions that a broader interpretation regarding legal limits of what acts constitute CAH should prevail.
207 The authors note there exist a limited range of instances involving the involuntary confinement or treatment of persons with disabilities not amounting to CAH. For a variety of views on the human rights implications of such matters, see Mental Health, Legal Capacity, and Human Rights (Michael Ashley Stein, Faraaz Mahomed, Vikram Patel & Charlene Sunkel eds., 2021).
208 The authors note that in the context of an armed conflict the acts listed in the second and third situations may in all likelihood also be war crimes. We further note that IHL does not make the categorization of an act as mutually exclusive (i.e., a war crime may and can also be a CAH, even if a CAH may not also be a war crime and vice versa due to the nexus requirement to an armed conflict for war crimes). See, e.g., ICRC, Customary International Humanitarian Law Database, Rule 156, Definition of War Crimes, at https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule156.
209 See ICC Off. of the Prosecutor, Strategic Plan 2019–2021 (July 17, 2019), available at https://www.icc-cpi.int/itemsDocuments/20190726-strategic-plan-eng.pdf.
210 See ICC Child Policy Paper, supra note 83, at 5.
211 “3. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.” Rome Statute, supra note 3, Art. 21.
212 See ICC Child Policy Paper, supra note 83, at 51; ICC Sexual and Gender-Based Crimes, supra note 151, at 26.
213 ICC Sexual and Gender-Based Crimes, supra note 151, at 26; see also ICC Child Policy Paper, supra note 83, at 37.
214 See ICC Rules of Procedure and Evidence, supra note 130, Arts. 17(3), 19, 86, 112(4)
215 UN Disability Strategy, supra note 10.
216 CRPD, supra note 5, Art. 40.
217 Stein, Michael Ashley & Lord, Janet E., Monitoring the Convention on the Rights of Persons with Disabilities: Innovations, Lost Opportunities, and Future Potential, 32 Hum. Rts. Q. 691 (2010)CrossRefGoogle Scholar (arguing for the Conference of States Parties to take on an active role in the development of the treaty, parallel to Conferences of States Parties in the international environmental law domain).
218 For more on the potential of the CRPD monitoring system to foment implementation of disability human rights, see Ashley Stein & Lord, supra note 217; Stein, Michael Ashley & Lord, Janet E., The Committee on the Rights of Persons with Disabilities, in The United Nations and Human Rights: A Critical Appraisal 547 (Philip Alston & Frédéric Mégret eds., 2020)Google Scholar.
219 CRPD, supra note 5, Art. 39 (providing authority for the CRPD Committee to issue recommendations as part of its reporting obligation to the UN General Assembly).
220 The scope and purpose of the mandate is explicated on the OHCHR's website. See Special Rapporteur on the Rights of Persons with Disabilities, at https://www.ohchr.org/en/issues/disability/srdisabilities/pages/srdisabilitiesindex.aspx.
221 Special Rapporteur on the Rights of Persons with Disabilities, Gerard Quinn, UN Doc. A/HRC/46/27 (Jan. 19, 2021).
222 Joint Letter of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-recurrence, Special Rapporteur on the Sale and Sexual Exploitation of Children, Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and Special Rapporteur on the Rights of Persons with Disabilities to the Holy See (Apr. 7, 2021), at https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=26316.
223 Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-recurrence, Fabián Salvioli, The Gender Perspective in Transitional Justice Processes, UN Doc. A/75/174 (July 17, 2020), at https://undocs.org/A/75/174.
224 SC Res. 2475, supra note 15.