The ICC Must End the Impunity Gap for Crimes Against Persons with Disabilities

[Ashira Vantrees is currently a practicing attorney in the United States and holds a JD from Florida International University College of Law.]

Since the International Criminal Court’s (“ICC”) inception in 2002, it has been forced to continually evolve to address the complex nature of armed conflicts. This evolution has forced the Court to address how it includes crimes against and involving children; sexual and gender-based violence crimes; and the use of “the interests of justice” in complex post-conflict settings. 

As the Court continues to evolve under Prosecutor Karim’s leadership, it must become a Court that values intersectionality and critically reviews how intersectional considerations increase vulnerability during armed conflicts. For example, many scholars have called on the Court to include crimes against LGBTQI+ persons based on their sexual orientation and gender identity, who can be particularly targeted and persecuted during armed conflicts. Similarly, other scholars have also called on the ICC to produce a paper on the prosecution of crimes against persons with disabilities. In response to these calls for inclusion, the ICC Prosecutor released a new Policy Paper on Gender Persecution, which includes recognition of the heightened vulnerability of LGBTQI+ persons. 

As the Court continues to expand its intersectionality lens, it must also ensure its expansion of intersectionality includes disabilities, and specifically crimes against persons with disabilities. States and civil society must reiterate this importance to the ICC Prosecutor, whose responsibility includes, improving the Court’s ability to engage with victims, ensure justice, and end impunity – which includes impunity for perpetrators of crimes against persons with disabilities. 

Persons with Disabilities Experience Greater Risks of Violence During Armed Conflicts

Article 1 of the Convention on the Rights of Persons with Disabilities (“CRPD”) established that “disability” includes all persons with “long-term physical, mental, intellectual or sensory impairments which in interaction with various barrier may hinder their full and effective participation in society on an equal basis with others.” 

Persons with disabilities experience higher rates of violence during both armed conflict and peace times. For instance, one report found that during peacetime children and adolescents with disabilities were twice as likely to experience violence compared to their non-disabled peers. Similarly, during armed conflicts persons with disabilities experience an increased risk of violence due to a variety of factors such as loss of assistive devices, an inability to flee, lack of accessible crisis information, and inaccessible evacuation routes. Moreover, even if able to leave conflict zones, humanitarian responses can often fail to be accessible, resulting in persons with disabilities being forced to rely on others to meet their basic needs, thereby increasing their risk of exploitation (See World Bank 2019).  For women and girls with disabilities, the lack of accessible spaces and dual discrimination based on gender and disability can also increase their risk of sexual and gender-based violence during armed conflicts.

However, despite these increased rates of violence, both domestic and international courts fail to prosecute crimes against persons with disabilities. At the domestic level, courts and legal systems often internalize disability-based discrimination, have justice buildings that are physically inaccessible or fail to investigate and prosecute reported crimes against persons with disabilities. Individually this results in victims and survivors with disabilities not receiving redress or accountability for their injuries. More broadly within society, this rate of impunity for these crimes devalues disabled lives by demonstrating that the State does not place a priority on protecting disabled persons or vindicating their rights. 

Likewise, at the international level, international courts have also failed to fully include persons with disabilities from the Nuremberg Tribunals to the more recent International Criminal Tribunal for Rwanda (“ICTR”) and the International Criminal Tribunal for the Former Yugoslavia (“ICTY”). For instance, during the conflict within the former Yugoslavia, nine individuals with physical and mental disabilities were evacuated to a school and then later executed by combatants. In this case, no perpetrators were brought to justice for these murders. Similarly, during the Rwandan armed conflict, there were mass killings of civilians at an orthopedic and rehabilitation services clinic for children with disabilities, and at a psychiatric hospital.

More recently in 2014, the ICC did report that in the situation in Colombia there was “a close link between disability and vulnerability to sexual violence, in particular in the context of forced displacement.” However, despite this one recognition, the ICC did not follow up on this “close-link” in any of its subsequent reporting on the situation in Colombia.. 

The ICC Prosecutor Must Appoint a Special Advisor on Disability 

As of March 2023, the ICC Prosecutor has appointed over seventeen Special Advisors to the Court. These Special Advisors address a variety of topics from crimes against and affecting children, to investigations. However, while the ICC Prosecutor has appointed experts on gender-persecution and sexual violence, he has not appointed a Special Advisor on Disability. Appointing a Special Advisor on Disability is a necessary and crucial step for the Court. Without this appointment, the Court will continue to evolve in a manner that excludes victims and survivors with disabilities, both intentionally and unintentionally. 

For instance, one manner in which the Court may be unintentionally denying participation for persons with disabilities is within Rule 89 of the Rules of Procedure and Evidence. Currently, Rule 89 requires victims to apply to the Court to participate as victims in the ICC’s proceedings. Under this rule, a person may make an application on behalf of a victim when the victim is a child or disabled. This rule has also been interpreted by the Court to require some type of relationship between the individual submitting the application and the victim. For persons with disabilities this language is potentially problematic as it contributes to a stereotype that persons with disabilities lack capacity, when in fact, only select disabilities may actually render an individual to lack capacity. However, there is a lack of research on how the Court’s Rules of Procedure and Evidence could be impairing participation by victims and survivors with disabilities. Thus, a Special Advisor on Disability could provide this type of assessment and identify how the Court’s internal procedures have unintentionally internalized discriminatory stereotypes and ableist views against persons with disabilities. (A similar task of reviewing the rules of evidence and procedure is being conducted relating to the Court’s work on gender persecution). 

Appointing a Special Advisor on Disability could not only help with the participation of victims and survivors with disabilities before the Court, but it could also help the Court develop a stronger understanding of how to protect the rights of defendants with disabilities. For instance, in the case of Dominic Ongwen, his defense argued that he was entitled to certain accommodations due to his mental disability. A Special Advisor on Disability could assist the Court in understanding how in the future it could provide accommodations, while simultaneously protecting the prosecutorial process and the defendant’s right to a fair and speedy trial. 

Conclusion 

With the ICC’s recent issuance of an arrest warrant for Russian President Vladmir Putin, and Russian Commissioner for Children’s Rights Alekseyevna Lvova-Belova, for the unlawful transfer and deportation of Ukrainian children, there is an urgent need for the Court to improve its disability-inclusion. The potential prosecution of this crime provides an opportunity for the ICC to investigate how children, and particularly children with disabilities were treated post-deportation. One report from the Associated Press has even stated Russian adoptee-parents receive additional funds if they adopt a child with a disability – which may increase the concerns that these children are place in inappropriate homes solely due to an additional financial incentive. Elsewhere, the UN CRPD Committee has reported that “[p]eople with disabilities trapped in the Russian control zones in Ukraine are reportedly being used as “human shields” by the Russian Federation – a potential violation of Protocol I of the Geneva Convention and/or a crime against humanity under Article 7(k). Ultimately, the ICC must act immediately and appoint a Special Advisor on Disability to ensure the Court adopts a disability-inclusive assessment in the continuing Ukrainian conflict, as well as, in all other investigations, situations, and cases.