Four years after the International Law Commission – the United Nations body charged with progressively developing international law – first submitted draft articles on a crimes against humanity treaty progress is finally underway. Last November, the U.N.’s legal arm, the Sixth Committee, adopted a resolution that has kickstarted a historic effort to draft an international treaty on crimes against humanity. April 2023 marked the start of a two-year process of debate and discussion on the draft articles within the Sixth Committee. For all its potential, the Sixth Committee’s review process is a critical opportunity for States to ensure that at-risk groups – including persons with disabilities – are not left behind.
The Need for a New Crimes Against Humanity Treaty
The core aim of this process is to draft a treaty that could require States Parties to take on specific obligations to prevent and punish crimes against humanity, duties which are not imposed by existing legal regimes. This includes incorporating a unified definition of crimes against humanity in domestic law and taking steps to prosecute them in national courts. Such crimes include acts of murder, rape, torture, apartheid, deportations, persecution, and other offenses committed as part of a widespread or systematic attack against a civilian population based on a government or organizational policy. Notably, crimes against humanity may be committed at any time, not only in situations of internal or international armed conflict.
While the Rome Statute of the International Criminal Court (ICC) has made great headway in helping to define crimes against humanity, there is a strong rationale for advancing a specific treaty on crimes against humanity: a treaty will help to harmonize existing but inconsistent national laws; fix shortcomings of the Rome Statute by expanding the definitions of existing crimes and adding new ones; enlarge the grounds of persecution; include an obligation of prevention; and strengthen the legal regimes addressing these egregious crimes by establishing an obligation to prosecute or extradite when the alleged offender is present on a State’s territory. It can also stimulate trials at the domestic level.
The Sixth Committee’s Process Should Embrace Efforts to Make At-Risk Groups Visible
The draft treaty raises several concerns. Rather than incorporating existing treaty language wholesale, States should seize the opportunity to create a more progressive legal instrument that reflects developments in both international human rights law and dynamics at the U.N. Security Council. Doing so will build a stronger treaty that embraces the realities and experiences of at-risk groups when atrocities occur.
The Definition of Crimes Against Humanity
Let’s start with the text itself. The ILC draft articles adopt verbatim the language of Article 7 of the Rome Statute into Article 2 of the ILC draft articles, which defines “crimes against humanity.” Article 2 accordingly references, within that definition, “persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, or other grounds that are universally recognized as impermissible under international law.” While the catch-all phrase “or other grounds” is included, it nonetheless permits non-enumerated groups for whom international law, and its protection remit, has developed since 1998 to remain anonymously lumped together. Without the disaggregation, which is essential to amplify and elevate protection needs of highly at-risk groups, many persons remain invisible. This is particularly true for groups that receive specific protection under international law due to enhanced risk such as women, children, and persons with disabilities.
Much work has been done to amplify and render more visible the victims of serious violations of international humanitarian law and international human rights law in the years since the Rome Statute was adopted. Advancements such as the development of policy papers by the Office of the Prosecutor for the ICC on the topics of Gender Persecution, Children, and Sexual and Gender-Based Crimes demonstrate that international criminal law is not static nor siloed, but instead a responsive and evolving framework that must actively seek to include those groups who are often forgotten. These progressive developments are relevant for the upcoming treaty process and should be borne in mind by the States debating and discussing the provisions of the draft articles.
Since the adoption of the Rome Statute, the U.N. Convention on the Rights of Persons with Disabilities (CRPD) – a core human rights convention approaching universal ratification – was adopted. Of note, it contains an innovative provision (Article 11), which addresses accounting for the protection needs of persons with disabilities in situations of risk, including armed conflicts, humanitarian emergencies, and natural disasters, and incorporates international humanitarian law, international human rights law, and other international legal domains (including international criminal law, international refugee law, and international environmental law) with relevance for protection.
Specific Protection Mandates Adopted by the U.N. Security Council
Other developments within the U.N. system regarding protection are important to note. Action by the U.N. Security Council has substantially elevated specific protection mandates through the adoption of Security Council Resolution 1325 (2000) on women, peace and security, Security Council Resolution 1612 (2005) on children and armed conflict and, more recently, Security Council Resolution 2475 (2019) on the protection of persons with disabilities. Efforts are being made across the U.N. system to adopt intersectional approaches and to move away from superficial and primarily symbolic references to protecting an undefined and generalized “vulnerable” groups to a more direct and meaningful inclusion of persons with disabilities in all aspects of U.N. operations.
This marks a significant shift away from the previous charity and medical approaches to disability, which all but render persons with disabilities invisible. Those models viewed persons with disabilities as objects who deserve pity or consider disability as something to be “cured,” rather than simply part of a person’s identity. Research released just prior to the CRPD’s drafting demonstrates how those approaches were, and in some ways still remain, prevalent within the U.N. human rights system. By contrast, the CRPD’s approach to disability – the social model – focuses on how an individual interacts with an environment that fails to accommodate them. Using the social model, it is a lack of ramps or large print books, not a person’s mobility impairment or low vision, that are disabling. This movement towards fuller recognition of the rights of persons with disabilities necessarily extends to the right to seek justice for violations of their rights, a right that is frequently denied.
Put simply, cutting and pasting Article 7 of the Rome Statue into a new treaty on crimes against humanity does not provide for the full incorporation of international human rights norms that have developed after the Rome Statute’s adoption, including those reflected in the CRPD such as the social model of disability, into the definition of crimes against humanity. To this end, the 4th Report of Professor Sean Murphy, the ILC Special Rapporteur for the ILC drafting process,noted that a group of U.N. special rapporteurs and independent experts urged during the ILC drafting process that persecution should be broadly delineated to include “persecution on grounds of language, social origin, age, disability, health sexual orientation, gender identity, sex characteristics and indigenous, refugee, statelessness or migration status.”
It is imperative that this more inclusive definition be reflected in the text of a treaty on crimes against humanity. And this is particularly important for persons with disabilities given the CRPD’s protection obligations on State Parties. Further,efforts to make visible gender-based crimes and crimes against children, which correspond to actions to account for these crimes by international criminal tribunals, demonstrate that it is possible to account for persons with disabilities in a similar manner.
Adopting a Progressive Human Rights Framework in the Crimes Against Humanity Treaty
The omission of an explicit mention of persons with disabilities and indeed other groups recognized as specifically protected under international law and under U.N. Security Council resolutions overlooks the history of abuse they have faced. For individuals with disabilities this lurid history, includes mass murder, and targeted killing; forced sterilization; involuntary medical and scientific experimentation; use of persons with disabilities as human shields, suicide bombers and booby-traps; institutionalization, sexual violence, human trafficking and forced disappearance; and attacks against buildings dedicated to the education, health care and rehabilitation of persons with disabilities.
In the light of this, disability merits direct reference as part of Article 2(h) regarding persecution, thereby acknowledging that persons with disabilities and atrocities committed against them must be accounted for by the international criminal law framework. The inclusion of provisions specifically protecting other at-risk groups, whether children or women who fall under specific protection mandates, also must be acknowledged.
We know from prior experience that assuming intersectional interpretations, of norms designed to accord protection to the most at-risk populations, is simply not enough. This is especially true when those underlying marginalized populations are further marginalized by being designated within an “other” category. There is ample room to acknowledge hard-won advances in international law since the adoption of the Rome Statute and to maintain visibility of groups that have, if only relatively recently, been accorded specific protection based on specific and differentiated needs.
Any move that does not advance an inclusive understanding of crimes against humanity – in an attempt to avoid conflict with the Rome Statute and existing international criminal law – will be a disservice to survivors and a major step backwards in the Sixth Committee’s current efforts to ensure more inclusive justice.