Although the prohibition of the slave trade is one of the oldest peremptory norms of international law, its absence from the Rome Statute – the treaty establishing the International Criminal Court (ICC) – created a gap in international law that has yet to be filled. While the ICC’s framework accounts for the crime of enslavement, it neglects the legally distinct, but related, crime of the slave trade (i.e., criminalizing the intent to initiate or maintain a person’s enslavement). Following advocacy from States, civil society, and legal commentators, the ICC’s Prosecutor 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.”
This much-needed update to the prosecution of slavery crimes should be coupled with specific recognition and protections for persons with disabilities, who face disproportionate risks of slavery crimes and other atrocities. Such measures are not only needed to protect the inalienable human rights of persons with disabilities, but are required to address the true extent of slavery crimes and their intersection with disability-based discrimination. Enumerating disability rights in this new Slavery Crimes Policy would mark a crucial first step towards remedying the ICC’s larger neglect of disability-informed justice – an issue that must ultimately be addressed by a standalone ICC Policy on Disability that reflects developments brought about by the nearly universally ratified Convention on the Rights of Persons with Disabilities (CRPD).
Enslavement and the Slave Trade are Distinct Crimes
Advocates pursuing a reappraisal of slavery crimes that is intersectional and survivor centered, point out the legal and practical distinctiveness of the crimes of enslavement and the slave trade. Enslavement, as defined in Article 7(2)(c) of the Rome Statute, prohibits the “exercise of … the right of ownership over a person.” This is legally distinct from the slave trade, which criminalizes the intent of initiating or maintaining a person’s enslavement. The element of intent is vital for the prosecution of slavery crimes where the right of ownership is not exercised: abductions, transfers, disposals, and other crimes committed in the prelude, process, and aftermath of enslavement (e.g., kidnapping with the intent to enslave or the transportation, imprisonment, and psychological coercion of enslaved persons). These fall under the umbrella of the slave trade, but do not constitute the “right[s] of ownership” prohibited by the Rome Statute, rather, they form the infrastructure of enslavement and must be treated accordingly.
International law has long recognized this distinction but the Rome Statute, adopted in 1998, omitted the slave trade as a distinct crime. As such, it fails to encompass the accessory crimes committed before, during, and after enslavement. Nor does it account for the intent of perpetrators who trade slaves without exercising the specific rights of ownership. The work of legal scholars Patricia Viseur Sellars and Jocelyn Kestenbaum establish (see here and here) that the 1926 Slavery Convention and the 1956 Supplementary Slavery Convention define the slave trade as the reduction of a person to slavery (i.e. abduction) or of the transporting, transferring, or giving (i.e. distribution) of an enslaved person into another situation of enslavement. Put simply, this means the slave trader need only intend to reduce a person into slavery or transfer an enslaved person from one situation of slavery to another. The distinction has broad implications for cases where individuals, including those with disabilities, are transported by a slave trader into a situation of enslavement but not enslaved by the slave trader/transporting individual. Any number of contemporary instances of slave trading would apply. Take for instance the “agents” who transported highly at-risk disabled persons from Seoul to farmers who enslaved them to toil in salt mines and fish and agricultural farms on a chain of rugged and remote islands off South Korea’s southwest coast.
Following on the Rome Statute’s omission of any mention of the slave trade, the International Law Commission’s Draft Articles on Prevention and Punishment of Crimes Against Humanity and also the Convention on the Rights of Persons with Disabilities, similarly neglect to reference the slave trade. As such, it is imperative to facilitate the prevention, investigation, prosecution, and reparation of slavery crimes by closing this accountability gap before it widens further.
Disability and Slavery Crimes: Recognizing Risk
The lack of recognition of, and specific protections for, persons with disabilities regarding the slave trade represents yet another gap in international criminal law that hinders the prevention and reparation of slavery-related crimes. Persons with disabilities face disproportionate risks of experiencing such crimes, with substantial evidence showing that many individuals are enslaved or slave traded specifically because of their disability status for sexual and/or economic exploitation. Identification of specific risks that enhance the likelihood of individuals with disabilities being slave traded or enslaved is central to any policy on such crimes.
Institutionalized persons have long been subjected to forced labor and sexual exploitation, both within segregated rehabilitation and medical facilities as well as “sheltered workshops” (locations that employ persons with disabilities, but often paying sub-minimum wages or no wages at all). Unpaid labor by patients was a cost-saving measure for large scale institutions. Walter Fernald, the world’s pre-eminent expert on intellectual disabilities in the early 20th century – and superintendent at the Massachusetts School for the Feebleminded (which was later renamed after him) – explained that the “daily routine work of a large institution” provided patients with “abundant opportunities for doing simple manual labor, which otherwise would have to be done by paid employees.” Some boys assisted in baking, carpentry, shoemaking, tailoring, and painting. Others would “drive teams, build roads, and dig ditches.” Adult females did laundry, made clothing and bedding, and “did a large share of all the other domestic work of these immense households” while also caring for child patients. In 1974, World Health Organization advisor and institutional superintendent Malcolm Farrell reflected that when he arrived at the Fernald School in the late 1930s, inmates “were treated like teams of oxen.” Subsequent attempts at reform, ranging from boarding inmates out into the community to constructing sheltered workshops, succeeded only in shifting the perception of forced labor, while leaving in place the underlying forms of abuse that bear striking resemblance to the fundamental attributes of enslavement. Such conditions were replicated across the United States in institutions.
In contemporary times, more sophisticated syndicates target persons with disabilities for economic exploitation, as in the case of Equal Employment Opportunity Commission v. Hill Country Farms, where a turkey processing plant in Iowa made arrangements with a state institution for people with intellectual disabilities in Texas to transfer several dozen intellectually disabled men to the plant. These individuals spent decades working long hours for meager pay (approximately $65 per month) while living in a dilapidated schoolhouse and enduring verbal and physical abuse at the hands of their supervisors.
Forced labor of persons with disabilities has been documented outside of segregated facilities as well. For people with disabilities, legal, voluntary employment can morph into forced labor – such was the case of Christopher Smith, a Black man with intellectual disabilities who experienced five years of modern slavery at the restaurant where he was “employed” through a combination of isolation, verbal and physical abuse, and threats by his manager. Also, in the United States, traffickers brought more than 50 Mexican nationals who were deaf or hard of hearing into the country to sell trinkets in the New York City subway system.
Emerging research documents how children with disabilities are often forced to engage in begging throughout the world – for instance, in the United States, Bulgaria, Burundi, Iraq, Egypt, Ethiopia, and Romania – sometimes by their own families. Such cases are made more likely when local educational systems and societies do not expect children with disabilities to attend school, and thus may be less likely to question why a disabled child is begging. Relatedly, young people with disabilities are regarded as undesirable and may even be subjected to trafficking by their own families. Children with less visible disabilities, such as cognitive or behavioral disabilities, are similarly at risk, as they also may be stigmatized by their families and communities and may not be in school due to bias or lack of understanding of how to provide inclusive education.
Persons with disabilities are sometimes imprisoned or enslaved in order to exploit government-provided financial benefits, including by caregivers or perpetrators posing as caregivers.
They also face enhanced risk of slavery crimes due to enduring stigma and deeply entrenched structural inequality. Discriminatory cultural and societal conceptions of disability frequently lead to the absence of social support networks, underemployment, limited education, and the inaccessibility of government services. These, in turn, increase the number of persons with disabilities in other marginalized groups (such as impoverished or institutionalized individuals and migrants). This risk is further heightened in times of crisis, where the deteriorating conditions increase human rights risks for already vulnerable groups.
Unique Harms that Warrant Further Attention and Analysis
Beyond an outsized risk of victimization, persons with disabilities also suffer unique harms from slavery crimes. Enslavement and slave trading can aggravate pre-existing disabilities, incur secondary disabilities, or contribute to new impairments altogether. Factors including age, gender, communication barriers, socioeconomic status, social isolation, and the type or availability of support place certain groups at increased risk even among other persons with disabilities and, in turn, lead to specific kinds of harms. Thus, exploring and understanding both differential risk and the impact of harms may help to reduce risk.
Persons with disabilities subjected to enslavement may also experience unique forms of these crimes, for instance, caregiver abuse for economic exploitation of disability benefits, destruction or withholding of assistive devices required for independence to enhance control by the enslaver, and the outright denial of care. Institutionalization and the isolation it brings may expose persons with disabilities to long-term sexual exploitation amounting to sexual slavery or forced labor. For instance, a young woman with intellectual disabilities was kept in a shed and repeatedly sold by her captors for sex. Further, persons with disabilities may also be subjected to longer term abuse as a result of heighted barriers they experience in accessing justice relative to other victims.
Central to ensuring disability inclusion in fact-finding is the avoidance of “aggregate” categories attempting to capture and account for all “vulnerable groups” in a passing nod to especially at-risk persons. Generic approaches purporting to address the needs of all marginalized groups are particularly insensitive to the diverse needs and accommodations of the disability community.
Any approach to disability inclusion must ensure that specific substantive human rights guarantees and protections are applied in the analysis to persons with disabilities. Moreover, it is important to avoid any approach that serves to reinforce the historical tendency to make concern for disability rights derivative of passive and paternalistic roles (e.g., representations of passive victimhood and “helplessness” in reporting on persons with disabilities), rather than recognizing their status as independent rights holders and agents of change. Notably, the unique and specific experiences of harms must be explained by fact-finders – but this requires that they are seen and understood in the first instance. The practice of consulting with persons with disabilities and their representative organizations is thus central to thorough and meaningful analysis of international crimes and to understanding slavery crimes and their particular manifestation in relation to disabled persons.
Disability in International Criminal Law
Protecting persons with disabilities requires a legal framework that is specifically tailored to their experience of risk, enables their participation in prosecutions or reparations, and encourages the further development of intersectional and disability-inclusive justice.
International criminal law initially recognized the disproportionate risk faced by persons with disabilities in Case No. 1 of the 1946 Nuremberg trials, with Nazi leaders convicted of crimes against humanity for their “systematic and secret execution of the aged, insane, incurably ill, of deformed children, and other persons.” Unfortunately, most subsequent developments in international criminal law have neglected this legacy, requiring the 2006 CRPD to reaffirm their rights through international human rights law instead.
Article 11 of the CRPD stipulates that its specific protections apply to existing bodies of international humanitarian, criminal, labor, refugee, and human rights law (among others) and that States Parties should interpret and construct future legislation with disability rights in mind, particularly in situations of risk, including armed conflicts, humanitarian emergencies, and natural disasters. Other provisions on work and employment (Article 27), freedom from violence, exploitation, and abuse (Article 16), and personal integrity (Article 17) all demand that the outsized risk of slavery crimes faced by persons with disabilities must be addressed in the progressive development of international law. Even though a few of the ICC’s members are not party to the CRPD, the majority have a legal responsibility given the CRPD’s near universal ratification to enshrine disability rights within international legal frameworks, including those addressing criminal proceedings.
Beyond the responsibilities conveyed by the CRPD, disability rights must be a part of the ICC’s Policy on Slavery if it is to meet its stated goal of a “survivor-centered, trauma-informed and gender-competent approach to slavery crimes.” Achieving this objective requires a holistic understanding of the multiple intersecting forms of discrimination inherent in these types of crimes. For example, the continued enslavement of many Black Americans well into the 20th century was facilitated in part by their confinement in segregated psychiatric hospitals, where they were subjected to forced labor, medical experimentation, and inhuman and degrading treatment. Further, because of the linkage between slavery crimes and aggravated, secondary, or new impairments, proper reparation for such crimes can only be accomplished with a thoughtful understanding of disability rights.
Towards a Disability-Informed ICC
As shown by the progressive development under international law of the rights of women, children, racial minorities, refugees, victims of torture, and other at-risk populations, it is not adequate to simply assume an encompassing and intersectional reading of international criminal law, even when it seems clear to do so. Specific human rights protections for diverse at-risk groups have spurred domestic law and policy reforms and prompted much needed attention on regional and international agendas. The adoption of the CRPD has led to significant changes both through both domestic reforms and through reforms within international institutions, including through the United Nation’s Disability Inclusion Strategy and the World Bank’s Disability Inclusion and Accountability Framework. These policies explicitly address the need to ensure that internal procedures and all programming must reach persons with disabilities as beneficiaries and participants in the work of the institutions. Thus, specific recognition of, and protections for, persons with disabilities are necessary to mitigate their disproportionate risk of facing slavery and other atrocities.
As such, the ICC’s understanding, prosecution, and reparation of slavery crimes will be incomplete without a specific acknowledgement of these risks, a proactive strategy to mitigate them, and mechanisms enabling persons with disabilities to fully engage in justice processes and contribute to the development of these legal frameworks. The jurisprudential legacy of Nuremberg, the CRPD, and substantial academic testimony all create a robust framework for the explicit inclusion of disability rights in the ICC’s forthcoming Policy on Slavery. Yet, they expose the broader gap in the ICC policy framework, one that can and should be filled with a standalone ICC Policy on Disability. Indeed, the ICC Policy on Children is recognized for advancing the ICC’s treatment of children’s experiences in practice, beyond the limited issue of their recruitment or use in armed groups. Likewise, the ICC Office of the Prosecutor’s Policy Paper on Sexual and Gender-Based Violence is prompting a more complex and complete approach to sexual and gender-based crimes, including by clarifying how the term “gender” should be understand and applied under the Rome Statute.
In addition to better accounting for persons with disabilities in the context of a new policy on slavery crimes, a standalone ICC Policy on Disability could aid the investigation, charging, and prosecution of international crimes perpetrated against persons with disabilities. These policy instruments can, in turn, assist States to align their domestic legislation with disability-informed approaches to international crimes. As two of us have argued (see here and here), the advancement of any policy by the ICC Prosecutor addressing persons with disabilities would need to be closely informed by the obligations and general principles set out in the CRPD. The overarching goal would be to promote respect for the rights of persons with disabilities and strengthen accountability for, and the prevention of, crimes against or affecting persons with disabilities.
In operational terms, an ICC Policy on Disability should address barriers to disability awareness along the various activities the ICC undertakes, among them preliminary examinations, investigations, charging and prosecutions, cooperation and external relations, institutional development and, finally, effective implementation of the policy. Substantively, it could likewise bring greater recognition to the ways in which all crimes under the Rome Statute affect persons with disabilities, including how persons with disabilities or particular sub-groups of disabled people can be specifically targeted. The impact on persons with disabilities of crimes is not uniform and may differ based not only on disability but on other statuses or identities, including sex, gender, and age, and these nuances, among others, merit specific attention.
Finally, an ICC Policy on Disability can: (1) clarify the commitment of the Office of the Prosecutor to pay particular attention to crimes against or affecting persons with disabilities; (2) give direction to staff in the interpretation and application of the Rome Statute and the ICC Rules of Procedure and Evidence, at all stages of the Office’s work, to address crimes against or affecting persons with disabilities; and (3) ensure that core disability rights principles, including reasonable accommodation and accessibility, form part of all staff interactions with persons with disabilities who may require accommodations and do so with due respect for their dignity and rights under international law and consistent with best practices for accessing justice. All of these ideas are illustrative only: they would need to be developed consistent with the CRPD’s core participatory principle requiring meaningful consultation with a diversity of individuals with disabilities in the formulation of a standalone disability policy.