Progress on a Draft Convention on Crimes against Humanity is finally underway — but whether it will deliver justice for persons with disabilities remains deeply uncertain.
In April 2023, the Sixth (Legal) Committee of the United Nations (U.N.) General Assembly adopted a resolution to begin drafting an international convention on crimes against humanity, opening a two-year process of debate and discussion on draft articles that had been prepared by the International Law Commission (ILC), the U.N. body charged with the development of international law.
Based on that debate and discussion, State comments in response to the draft articles have now been released, and they are not encouraging. Of the 64 submissions proposing amendments, just two — from Poland and Uruguay — recommend revising the crime of persecution in the ILC draft articles to enumerate disability as a protected category. Sustained advocacy from persons with disabilities, related organizations, broader civil society, and academics, such as those of us working on disability rights in international criminal law, has aimed to generate wider support for recognizing disability-based persecution. Failure to do so would cast a shadow over the 20th anniversary later this year of the U.N. General Assembly’s adoption of the Convention on the Rights of Persons with Disabilities (CRPD), which was drafted with the intent to close gaps in international legal protections for persons with disabilities. Dialogue between now and December with States and civil society alike can build on discussions that occurred at the 19th Conference of States Parties convened in early June at the U.N. in New York, where the issue was a focus of an important side event on the topic.
Measured against the benchmarks set by Security Council Resolution 2475 in 2019 on the protection of persons with disabilities in armed conflict, as well as the U.N. Disability Inclusion Strategy for 2026 to 2030, and the nearly universally ratified CRPD, early state responsiveness to disability inclusion in the Convention on Crimes against Humanity has been poor. The window for course correction, however, remains open. It must be used.
A History of Omission
To understand what is at stake, it helps to understand what has already been lost. The post-World War II Nuremberg trials, which established the field of international criminal law as we know it today, did not adjudicate the mass murder of persons with disabilities under the Nazi Aktion T4 program, despite the killing of an estimated 250,000 disabled people in that program alone. That earlier failure was not a principled legal conclusion. It was, instead, an implicit judgment that the mistreatment and murder of persons with disabilities was less legible as atrocity and less worthy of accountability.
In fact, while prosecutors repeatedly presented evidence of specific atrocities against institutionalized persons with disabilities in occupied territories during World War II (e.g., the execution of 748 “lunatics” from asylums in Lithuania), these were cited as evidence of Germany’s war of aggression. Importantly, these attacks on “the wounded and sick” were not prosecuted as violations of the laws or customs of war, as they might have been, given that this was a mainstay of international humanitarian law since the first Geneva Convention of 1864. But more than that, these incidents were not prosecuted as extermination under the new crimes against humanity framework in Article 6(c) of the London Charter.
The Rome Statute that established the International Criminal Court, adopted in 1998, failed to address the neglect at Nuremberg, despite a legal and social landscape that was increasingly attuned to disability rights — as evidenced by, among others, the Declaration on the Rights of Disabled Persons in 1975, the International Year of Disabled Persons in 1981, the development of the World Programme of Action Concerning Disabled Persons in 1982, the Decade of Disabled Persons from 1983 to 1992, and the development of the Standard Rules on Equalization of Opportunities for Persons with Disabilities in 1994. Instead — and apparently as a result of a drafting oversight — disability was omitted as an explicit ground of persecution as a crime against humanity in the Rome Statute’s Article 7(1)(h) (see Schabas at p. 194).
The crimes against humanity treaty process now before the Sixth Committee is the third opportunity in less than a century to bring persons with disabilities within the framework of international criminal law. It must be seized.
The Need for a Disability-Inclusive Convention on Crimes against Humanity
The core aim of the current process is to draft a treaty requiring States Parties to undertake specific obligations to prevent and punish crimes against humanity, which is a duty that is imposed inconsistently across existing legal regimes. This includes incorporating a unified definition of crimes against humanity into domestic law and prosecuting such crimes in national courts. The crimes in question encompass murder, rape, torture, apartheid, deportations, persecution, and other offenses committed as part of a widespread or systematic attack against a civilian population. Importantly, crimes against humanity may occur at any time both during armed internal and international conflict, and during peacetime.
Compelling evidence has surfaced in varying contexts that persons with disabilities face unique and acute risk of experiencing acts of violence that may amount to crimes against humanity. Instances have been documented in post-war North Korea, the former Yugoslavia, Rwanda, Sierra Leone, Liberia, Ukraine, Darfur, Myanmar, and Palestine — among many others. Across all of these contexts, disability-based atrocities have never been prosecuted as atrocity crimes.
A dedicated Convention on Crimes against Humanity would serve several purposes in respect of a range of issues, including those based on disability: it would harmonize inconsistent national laws; clarify and expand definitions from the Rome Statute; establish an explicit prevention obligation; and formalize a duty to prosecute or extradite. But its most consequential contribution may be stimulating accountability and reparations at both international and domestic levels, where persons with disabilities deserve and urgently require recognition as victims of such violations.
What the Draft Gets Wrong: Replicating Historic Silence
The ILC draft articles before the Sixth Committee failed to break with a long history of omission that silence persons with disabilities (and other groups) and their persecution in international criminal law. The ILC draft articles reproduce verbatim the language of Article 7 of the Rome Statute, and in particular criminalize 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.” Disability does not appear specifically as a basis for persecution, nor does it appear anywhere else in the substantive draft law.
This was not for want of notice. The Fourth Report of ILC Special Rapporteur Sean Murphy in 2019 acknowledged this concern. The draft articles opted for a more conservative approach that simply replicates the Rome Statute’s definition of persecution in article 3(1), subparagraph (h) of the draft articles. That said, Murphy left open the possibility of adjusting the commentary of the ILC to the draft articles to elaborate on the reference to “other groups” subject to persecution. Moreover, he took note of the inputs by a group of U.N. special rapporteurs and independent experts who urged that “persecution” be defined to include grounds of “language, social origin, age, disability, health, sexual orientation, gender identity, sex characteristics and indigenous, refugee, statelessness or migration status.” It should be added, going forward, during the forthcoming negotiations for a Convention on Crimes against Humanity.
The U.S. International Council on Disabilities (USICD), is currently leading a campaign, which includes several among our group, either directly or serving in legal advisory roles. USICD is calling on states to explicitly enumerate disability as a ground of persecution in Article 2 of the draft. That campaign deserves broad support — and, more importantly, it deserves a substantive response from the states that have ratified the CRPD and have already undertaken binding obligations to protect persons with disabilities from the very harms that this treaty is designed to address on a broader level.
International Protection Mandates
Simply replicating the text of Article 7 of the Rome Statute into the new Convention on Crimes against Humanity would essentially freeze international criminal law at 1998, ignoring a quarter-century of development in disability rights law, U.N. protection mechanisms, and the lived experience of survivors.
The most significant development since 1998 is the U.N. Convention on the Rights of Persons with Disabilities. Now ratified by 192 states and the European Union, the CRPD has firmly established a comprehensive framework for the rights of persons with disabilities grounded in what is known as the social model of disability: the understanding that disability is not a personal deficiency to be treated or pitied, but the product of environments and institutions that fail to accommodate human diversity. Article 11, in particular, addresses protection of persons with disabilities in situations of risk — including armed conflict and humanitarian emergencies — drawing together international humanitarian law, human rights law, refugee law, and other relevant mechanisms into a single protective mandate.
It follows that a treaty drafted today that ignores this instrument would be in tension with binding obligations that the vast majority of prospective States Parties have already accepted. It creates unnecessary fragmentation of international law, something the International Law Commission advises States to specifically avoid. And it ignores what the CRPD set into motion: first, applying a socio-contextual understanding of disability that allows for the identification of barriers that inhibit human rights enjoyment in the first place; second, with this reorientation in place, it then allows for an expansive articulation of human rights in the context of disability beyond biomedical paradigms focused on “fixing” and “cure.”
Developments within the U.N. Security Council reinforce the point. Security Council Resolution 1325 (2000) on women, peace and security, Security Council Resolution 1612 (2005) on children and armed conflict, and Security Council Resolution 2475 (2019) on the protection of persons with disabilities in armed conflict represented a deliberate effort to move beyond vague references to “vulnerable groups” toward direct protection grounded in the specific experiences of identifiable populations.
Taken together, these resolutions marked a significant shift away from the charity and medical approaches of disability, which treated persons with disabilities as objects of pity rather than as rights-bearing subjects with distinct identities, needs, and claims to justice. A convention that fails to reflect this shift actively contradicts the direction the international community has already committed to pursue.
Adopting a Progressive Disability Rights View in the Prospective Treaty
The documented record of atrocities committed against persons with disabilities encompasses mass murder and targeted killing; forced sterilization; involuntary medical and scientific experimentation; use as human shields and suicide bombers; institutionalization; sexual violence; human trafficking; forced disappearance; and attacks on critical civilian infrastructure dedicated to education, water and sanitation, healthcare, and rehabilitation.
The systemic failure to address such issues in international criminal law is itself a form of disability discrimination. It is the same pattern of omission that allowed Nuremberg to pass over Aktion T4, that allowed the Rome Statute to reproduce that silence, and that now risks being inscribed into a third foundational instrument of international criminal law.
Disability merits direct reference in Article 2(h) on persecution. Experience has shown that broad residual language does not protect those who are most marginalized: even mainstream human rights organizations like Amnesty International had a long history of highlighting abuses against political prisoners in the former Soviet Unition who languished in inhumane psychiatric institutions while persons who were ostensibly “properly” designated as diseased — persons with mental disabilities — bore no mention in such reporting. Following the adoption of the CRPD, both Human Rights Watch and Amnesty International have, at last, turned their attention to human rights abuses against persons with disabilities. Visibility in the text of a treaty is a precondition for accountability: States negotiated the CRPD due to the recognition that invisibility in international human rights texts meant inaction and rampant human rights abuses worldwide.
The legal basis for inclusion is clear. The historical and contemporary record of harm is clear. The obligations that most prospective States Parties have already accepted under the CRPD, Security Council Resolution 2475, and the U.N. Disability Inclusion Strategy make the path forward clear as well. Three reports by former U.N. Special Rapporteur on the Rights of Persons with Disabilities Gerard Quinn in 2021, 2022, and 2023 underscore the legal architecture for accountability.
Next in the process for the proposed Convention on Crimes against Humanity is the holding of Preparatory Committee (PrepCom) meetings to share views and formally propose amendments to the ILC’s draft articles. Thereafter, the U.N. will hold a formal Conference of Plenipotentiaries to conduct the final treaty negotiations, aiming for adoption in 2029.
States that wish to be on the right side of history know what they must do. Lawyers, academics, advocates, and civil society organizations can help keep the discussion going by engaging national delegations, amplifying campaigns, and making plain that the choice before the Sixth Committee is not a matter of technical drafting, but a question about whether international criminal law will finally, after nearly a century, see persons with disabilities as full and worthy bearers of its protections.
(Authors’ note: All authors are writing in their personal capacity and the views set out herein do not necessarily reflect the views of the organizations with whom they are affiliated; affiliations are noted for identification purposes.)
