Earlier this year, the International Criminal Court’s Office of the Prosecutor (OTP) announced the development of a new Slavery Crimes Policy and invited public comments to ensure that the resulting process and policy are “survivor-centred, trauma-informed and gender-competent.”
Integrating the needs and perspectives of persons with disabilities is a critical step to fulfilling that mandate. Indeed, as a group of disability rights experts argued on Just Security, the Slavery Crimes Policy “should be coupled with specific recognition and protections for persons with disabilities, who face disproportionate risks of slavery crimes and other atrocities.”
The discussions on this subject, however, have almost exclusively focused on slavery crimes perpetrated against persons whose disabilities preceded their experience with slavery. A disability-competent slavery policy is certainly necessary because persons with disabilities, like other marginalized groups, disproportionately fall victim to slavery – but it is also necessary because slavery frequently produces the physiological, psychological, interpersonal, or environmental circumstances that result in the kind of debilitating injuries which may render a previously non-disabled person, disabled.
The long and shameful history of modern human slavery – from the Antebellum South to Eastern Europe under the Third Reich to the diamond mines that fueled Sierra Leone’s civil wars – makes clear that the creation of disability is not a rare and isolated byproduct of slavery; it is often an outcome of the philosophy of inhumanity on which this institution is built. It is critical that the International Criminal Court’s approach to slavery crimes be cognizant of and address this reality. Doing so is necessary to properly characterize the extent of these crimes and to fully appreciate the status of many victims as persons with disabilities.
Disability as an Outcome of Slavery
The authoritative definitions for slavery crimes are found in the 1926 Slavery Convention, which defines slavery itself as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”; the slave trade, by contrast, broadly “includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery.” It follows, then, that, in the words of the OTP’s Special Advisor on Slavery Crimes, Patricia Viseur Sellers, and law professor Jocelyn Getgen Kestenbaum, “a slave is enslaved irrespective of labour, work, or service extended from them, meaning that a person can be enslaved and not be required to perform any toil.”
With that said, historical and contemporary accounts consistently demonstrate that the practice of slavery frequently reduces the worth of the person who is subject to slavery to their ability to labor. Of course, this same critique can be leveled against all economic models. The widely-accepted United Nations Convention on the Rights of Persons with Disabilities (CRPD) applies a human rights-based approach, which recognizes that “disability” is not a personal shortcoming or a medical impairment alone, but a “socially created disadvantage” defined by socioeconomic forces and expectations. Under capitalism, disability is often dictated by the individual’s potential to enhance the profit-making ability of private corporations. Under communism, disability is defined by the individual’s perceived inability to engage in “socially useful activity” for the benefit of the collective. Under both economic systems, the dominant interest is the human being’s capacity to produce.
One of the unique moral evils of slavery, however, is that this practice treats human beings exclusively as means to a material end. Inherent dignity is irrelevant to the slaveowner or slave trader who seeks to use slave labor to earn a profit. And, because most slave labor does not require a specialized skillset, the individual slave can easily be replaced once their capacity as a source of such labor expires. Writing of the experience of ageing among slaves in the American South, for instance, historian Leslie J. Pollard has noted that “slave masters quite simply expected slaves to wear out, that is, to use every ounce of their physical energy in the furtherance of the masters’ economic well-being.” The infamous SS leader Heinrich Himmler, speaking of the Ostarbeiter slave labor program in his infamous October 1943 Posen speech, put this sentiment more bluntly: “Whether 10,000 Russian women collapse from exhaustion during the construction of a tank ditch or not, that interests me only insofar as the tank ditch for Germany is completed.”
Disability-Inducing Conditions in the Antebellum South and Nazi Germany
Eventually, all human bodies are unable to physically perform certain types of labor, as a result of age or acquired disability. For enslaved persons, however, this may happen at an expedited rate, because the conditions of slavery often create the circumstances for the development of debilitating injury which, as per the CRPD’s conception of disability, “may hinder [a person’s] full and effective participation in society on an equal basis with others.” Evidence of this can be found in the two historic examples of slavery which have played a significant role in imprinting the evils of this practice on our collective memory.
Consider, first, the experience of slavery in the United States. Despite the obvious economic incentive of keeping slaves strong, historian Jenifer L. Barclay has described how the “institution of slavery” – characterized by “overwork, abuse, punishment, insufficient material resources, dangerous working environments, and poor living spaces,” to say nothing of the psychological trauma of this subjugation – took “a profound toll on slaves’ bodies,” often to the point of creating disability. As Barclay details, slaves who had become disabled were often subject to punitive violence or given more menial tasks to perform, such as cleaning the slave quarters; there are some accounts of emancipation, although restrictive manumission laws sought to combat this on the basis that a freed disabled slave would be a burden on society. A Virginia law from 1782, for instance, required that emancipated slaves be “of sound mind and body” and “supported and maintained by the person so liberating them, or by his or her estate.”
In some cases, those who become disabled as a result of slave labor were simply killed outright, as was the experience in Nazi Germany and the Action 14f13 program to murder approximately 300,000 slave laborers who were no longer deemed fit for work. It is telling that the Nuremberg judgment mentions the Nazi euthanasia policy against persons with pre-existing disabilities only once, within its summary of the Ostarbeiter program, wherein millions of civilians from central and eastern Europe were forced into slavery for the benefit of the Third Reich. The relevant section reads as follows:
Reference should also be made to the policy which was in existence in Germany by the summer of 1940, under which all aged, insane, and incurable people, ‘useless eaters,’ were transferred to special institutions where they were killed, and their relatives informed that they had died from natural causes. The victims … included foreign labourers, who were no longer able to work, and were therefore useless to the German war machine.
Based on international criminal law’s own record, it is clear that the institution of slavery, through its disregard for human dignity and its hallmark traits of harsh working conditions and brutal coercion, very often creates the circumstances giving rise to disability.
Creation of Disability in Sierra Leone’s Slavery-Fueled Diamond Mines
How, then, might a disability-competent policy on slavery, which recognizes slavery’s inherent capacity to createdisability, impact the prosecution and adjudication of these crimes before the International Criminal Court and other tribunals? The prosecution of Charles Taylor before the Special Court for Sierra Leone (SCSL) is illustrative.
Charles Taylor, the former president of Liberia, was indicted by the SCSL in 2003. The prosecution alleged that, during war in Sierra Leone, forces “under the direction and/or control of, and/or subordinate to the Accused, engaged in widespread and largescale abductions of civilians and use of civilians as forced labour” (para. 23). Often, these civilians would be transported to diamond mines in the Kono and Kenema Districts in eastern Sierra Leone, where they were forced to work in abysmal conditions and under constant threat of violence. One witness, himself a diamond miner, stated that soldiers under Taylor’s “influence” who had been stationed at at “Cyborg Pit” – a large diamond production site in Tongo Field, Kenema – forced up to 2,000 civilians to mine in “very rough conditions” and without pay (trial judgment, para. 1642). These miners were fed just two cups of garri (ground cassava) a day and were given one day of rest after a three-day work cycle, during which time the civilians remained “under the command” of their overseers (trial judgment, paras. 1642 and 1654)
Taylor was found guilty of aiding and abetting “enslavement” as a crime against humanity, including within the mines in Kenema (trial judgment, para. 1659). While the sentencing judgment did pay some lip service to victims with disabilities, specifically within the context of amputations (sentencing judgment, para. 71), the disabilities which were surely incurred by many persons enslaved to work at mines like Cyborg Pit were not discussed by the court and had apparently not been investigated by the prosecution.
Yet artisanal mining (that is, small-scale mining often done with basic tools like picks, shovels, buckets, and gold pans) carries significant and well-documented risks, especially when this labor is compelled under threat of force and carried out without safeguards. As one study notes, chemical exposures to heavy metals like lead and mercury may cause neurological damage and genitourinary problems; dust inhalation from tunneling and crushing ore may induce silicosis and respiratory disease; and heavy-lifting and lugging may lead to joint and bone deformities, muscle injuries, and musculoskeletal disorders. Particularly within the diamond mining industry in Sierra Leone, the nonprofit organization Verité has found that workers are exposed to “heavy minerals and chemicals; mudslides and floods; and collapsing pit walls,” which “commonly leads to injuries such as hernias, as well as general exhaustion.” These findings were echoed by the former United Nations Special Rapporteur on contemporary forms of slavery, Gulnara Shahinian, in her 2011 reporton child labor in the artisanal mining and quarrying sector, which concluded that “the combined elements of coercion, fear, restriction on freedom of movement, and complete dependence on the employer” in this field amounts to modern-day slavery.
The SCSL’s failure to appreciate the injury-inducing nature of the institution of slavery that had been established at mines like Cyborg Pit meant that victims who developed a disability through this work were neglected in both the evidence and the judgment. A strong prosecutorial and judicial focus on disability could have highlighted the particular plight of previously-abled, but now disabled, victims of slavery crimes, which may have put much-needed pressure on Sierra Leonean authorities to develop a more comprehensive and coherent reparations program that may have included, for instance, access to rehabilitation services and occupational therapy.
It also could have, through the expressive power of law, contributed to the development of a culture of disability rights within Sierra Leone, in much the same way as the prosecutorial focus on and subsequent adjudication of sexual and gender-based violence did. The OTP’s Special Advisor on Crimes Against Humanity, Valerie Oosterveld, has written of the powerful effects the SCSL’s jurisprudence has had on the status of women in Sierra Leone:
By labeling the gender-based violence suffered by women and girls as forced marriage/conjugal slavery and sexual slavery, and by naming the rape that was carried out against women, girls, men, and boys as criminal, these violations were publicly and internationally acknowledged as wrongs.
As I have discussed elsewhere, this trend towards greater respect for human rights has never extended to persons with disabilities. The reality is that Sierra Leoneans with disabilities – including Taylor’s victims, who may have become disabled through their horrific experience of enslavement – continue to face profound obstacles in realising basic rights, in large part because of systemic stigmatization and discrimination.
Conclusion
Slavery disproportionately impacts many vulnerable sectors of society, including, as noted in the August 2024 Just Security article, persons born with disabilities. A comprehensive prosecutorial policy on disability, however, must additionally recognize that slavery inevitably causes disability.
It is trite to say that the horrors of slavery do not end once an individual has been “freed.” This devastating practice often bears lifelong trauma on the minds and bodies of its victims. A lack of recognition of the enormity of these ongoing effects runs a serious risk of failing to deliver lasting justice to many of slavery’s victims, who have become persons with disabilities within the meaning of international human rights law.