The global prevalence of crimes against women and girls with disabilities

Women and girls with disabilities are more likely to experience violenceFootnote ⁵ and increased rates of SGBV, due to a variety of factors such as early discrimination against girls with disabilities,Footnote ⁶ lack of reproductive health and sexual education, and dual disability- and gender-based discriminations.Footnote ⁷ During armed conflicts, these discriminatory attitudes and barriers can often be exacerbated within humanitarian responses, resulting in women and girls with disabilities experiencing heightened risks for victimization.Footnote ⁸ Armed conflicts can also result in the loss of community, familial support, education, and health-care services, which can contribute to increased risks for SGBV against women and girls with disabilities.Footnote ⁹ For example, due to the fast-moving nature of conflicts, many women may be forced to leave their wheelchairs, assistive aids, medications and/or prosthetics behind while fleeing from their homes.Footnote ¹⁰ As a result of loss of access to mobility tools and familial support, these individuals are “more vulnerable to physical, psychological, sexual or financial violence, neglect, entrapment, and coercion”.Footnote ¹¹ The loss of these accessibility tools can also increase mobility barriers for women and girls with disabilities, resulting in them having less access to reporting and justice mechanisms.Footnote ¹²

In addition to the complications brought about by armed conflicts, regional stigmas and discriminations can also place women and girls with disabilities at the centre of harmful folklore, thereby increasing their risk of SGBV. For example, one common folk myth alleges that if a person with HIV has sex with a virgin, their HIV will be cured.Footnote ¹³ Women and girls with disabilities are often seen by societies as asexual, and as this presumption assumes that they are sexually inactive and therefore virgins, it places them at higher risk of being targets for sexual violence under the HIV cure folklore.Footnote ¹⁴ Other forms of discrimination and stigma surrounding gender and disability can originate as early as birth, making young girls targets for gender-based violence.Footnote ¹⁵ For instance, the United Nations (UN) Economic and Social Commission for Asia and the Pacific has reported that it is not uncommon for children born with congenital disabilities to be killed or left to die after birth, and this practice is more common for girls with disabilities.Footnote ¹⁶

Laws can also formalize societal stigmas and discrimination against women and girls with disabilities, increasing their risk of experiencing legally permissible sexual violence.Footnote ¹⁷ For example, in several European countries such as Sweden, Norway, Denmark, Finland, Switzerland and Iceland, the crime of forced sterilization was still a legal practice used against women and girls with disabilities until the 1970s.Footnote ¹⁸ Under these programmes, forced sterilization was promoted under the false stereotype that women with disabilities could not be mothers; therefore, it was best for these women to be sterilized, considering their high rates of abuse and potential for future pregnancies as a result of that abuse.Footnote ¹⁹ While these programmes justified their operation under paternalistic concerns for women and girls with disabilities, in actuality, they punished women and girls with disabilities for being survivors of sexual assault, rather than focusing on holding perpetrators accountable and addressing why these women and girls were at a higher risk of experiencing this type of violence.Footnote ²⁰

Overall, across the globe women and girls with disabilities experience SGBV crimes from childhood through adulthood – thus, under international human rights law, a State is obligated to ensure access to justice and accountability for these crimes and rights violations. Moreover, as the perpetration of these crimes increases with armed conflicts, the responsibility of prosecuting these crimes can extend beyond the State and to international criminal courts under ICL.

Article 13: The right to access justice under the CRPD

In December 2006, the CRPD was adopted and codified as the first human rights treaty on the rights of persons with disabilities. The CRPD is historic as a human rights treaty for its recognition that persons with disabilities are individuals with rights who have autonomy in decision-making and as members of society. Notably, Article 13 of the CRPD recognizes the right to access justice. The inclusion of the right to access justice under the CRPD is important, as this right is a fundamental pillar of international law and is the means by which all other human rights can be protected and upheld.Footnote ²¹

As such, Article 13 requires State Parties to the CRPD to “ensure effective access to justice for persons with disabilities on an equal basis with others”. Under Article 13, to ensure access to justice, States must provide procedural and age-appropriate accommodations to ensure that persons with disabilities can act as participants in investigations and legal proceedings. This obligation also requires States to make procedural accommodations and ensure that staff in the justice system are effectively trained on ensuring access to justice for persons with disabilities. The UN Office of the High Commissioner for Human Rights (UN Human Rights) has elaborated that access to justice under Article 13 is broader than the notions of fair trial and requires States to ensure that persons with disabilities can participate at all stages of the legal system; this in turn requires States to actively remove legal and institutional barriers to justice.Footnote ²²

UN Human Rights has divided the right to access justice into three categories: (1) equality before the courts and the right to a fair trial; (2) the right to an effective remedy; and (3) participation in the administration of justice.Footnote ²³ Under the first category of equality before the courts and fair trial rights, States must ensure that proceedings are physically accessible; information is presented in a manner which allows persons with disabilities to understand and defend their rights; procedural and age-appropriate accommodations are provided; the right to decision-making and legal capacity are protected; the presumption of innocence is maintained; and legal aid is provided for those who are unable to afford counsel.Footnote ²⁴ Under the second category, the right to an effective remedy includes the duty to investigate and prosecute if sufficient evidence of a crime is found; the right to redress, reparations and remedies for human rights violations; and restoration of the individuals dignity.Footnote ²⁵ Lastly, the right to participate in the administration of justice includes the ability to participate as victim-survivors, defendants, witnesses, experts, jurors, judges and lawyers, as well as the obligation for States to actively train administration of justice officials on attitudes and institutional barriers that impair access to justice for persons with disabilities.Footnote ²⁶ The requirement to train individuals who help administer justice is critical to ensuring that once legal barriers have been removed by the State through the operation of law or procedural amendments, the individuals in the justice system applying the law do not create new barriers based on old discriminatory attitudes.Footnote ²⁷

While UN Human Rights’ guidance frames the right to access justice in terms of institutional reforms such as ensuring access to the courts, accommodations, and participation for persons with disabilities, application of this right must not omit the requirement that States demonstrate that they are ensuring individual criminal responsibility for crimes against persons with disabilities, and particularly women and girls with disabilities. Interpreting Article 13 to require individual accountability is consistent with the Committee on the Rights of Persons with Disabilities’ (the Committee) reporting on States’ compliance, UN Human Rights' illustrative list for ensuring access to justice, and the International Principles and Guidelines on Access to Justice for Persons with Disabilities (International Principles and Guidelines). For instance, in its review of Venezuela's compliance with Article 13, the Committee requested that Venezuela explain

This request demonstrates that in the Committee's considerations of access to justice, actual perpetrator accountability for victim-survivors with disabilities is within the mandate of Article 13.

This interpretation is also supported by UN Human Rights' illustrative list, which recognizes that ensuring access to justice requires States not only to reform justice systems but also to ensure that this reform creates improved prosecutorial outcomes.Footnote ²⁹ Specifically, under this list, when States are assessing their compliance with the access to justice requirement, they are urged to consider the “number of complaints submitted to the justice system by person with disabilities, that have been investigated and adjudicated; [and the] proportion of those found in favour of the complainant”.Footnote ³⁰ Again, this recognition identifies that States must ensure that persons with disabilities can feasibly submit complaints to the justice system (i.e., recognizing an outcome indicator for ensuring an accessible justice systems), and it recognizes that the State must consider how those claims are adjudicated in favour of or against the complainant (i.e., ensuring actual perpetrator accountability in a certain number of cases).

Lastly, Principle 8 of the International Principles and Guidelines states that persons with disabilities have the right to “have their complaints investigated and be afforded effective remedies”.Footnote ³¹ This principle specifically recognizes that in criminal cases, individuals who abuse or otherwise mistreat persons with disabilities should be prosecuted, convicted, and subject to appropriate punishments. This principle reaffirms that ensuring individual perpetrator accountability is part of the right to access justice under international law. Therefore, the right to access justice must be understood to require States to ensure that it is possible to file complaints with the justice system and that individual perpetrators can be held accountable for crimes committed against persons with disabilities, particularly women and girls with disabilities.

How the right to access justice for women and girls with disabilities is violated

In its Communication No. 12/2013, the Committee on the Rights of Persons with Disabilities recognized that for there to be a violation of a protected right under the CRPD, there must be an omission by the State Party concerning the individual's enjoyment of that right.Footnote ³² Thus, under Article 13 of the CRPD, all signatory States must ensure that victim-survivors with disabilities of all crimes, including SGBV crimes, have access to courts and accountability for the crimes committed against them, and therefore, when a State fails to actively remove barriers that limit access to courts and fails to hold individual perpetrators accountable, the State violates the individual's right to access justice.Footnote ³³ For women and girls with disabilities, States consistently violate their right to access justice through institutional legal barriers which formalize and perpetuate disability and gender discrimination against persons with disabilities, and through physical and procedural access barriers; these combined barriers result in courts failing to ensure that individual perpetrators of SGBV crimes against women and girls with disabilities are held accountable.Footnote ³⁴

Legal systems that perpetuate inappropriate stigmas and discriminatory attitudes about women and girls with disabilities create institutional barriers that deny them access to justice. For example, stereotypes that infantilize women with disabilities often perpetuate SGBV because laws can improperly permit the deprivation of the rights of women with disabilities, such as the right to bodily autonomy.Footnote ³⁵ By permitting violations of the rights of women with disabilities to occur under a State's law, States are essentially removing the ability of these individuals to receive any justice for these violations, as any actor will have the complete defence that their conduct was legal. Moreover, as the Council of Europe reported in 2018, the deprivation of legal capacity of persons with disabilities is also a substantial barrier to justice, as without equality before the law, persons with disabilities are essentially barred from having their rights recognized, upheld and protected.Footnote ³⁶

Even when a State's laws prohibit the conduct that violates women's rights, legal systems may operate with formalized stigmas that make it difficult or impossible for women with disabilities to access justice through a criminal justice system. For instance, in cases of sexual and domestic violence, a prosecution's case often relies on the witness testimony of the victim-survivor.Footnote ³⁷ In sexual and domestic violence cases involving women with disabilities, this can be made difficult as women with disabilities can often be deemed to lack legal capacity or be considered unreliable solely due to their disability.Footnote ³⁸ Furthermore, laws that are intended to protect women against sexual and other forms of violence can also often fail to address the unique forms of violence experienced by women with disabilities, and can even provide excuses for such crimes. For example, in the United Kingdom, the law prohibits domestic violence that is controlling or coercive, but creates an exception to the crime under the “caregiver defence”.Footnote ³⁹ Under this defence, a person is not considered to be acting coercively or in a controlling manner if they are acting in the best interest of a person with a disability.Footnote ⁴⁰ For women and girls with disabilities who may rely on a partner for caregiving support, this exception creates an additional hurdle for them as they must affirmatively demonstrate that they have autonomy over themselves.Footnote ⁴¹

In addition to laws that interfere with women with disabilities being able to access justice, some women may also lack awareness of their legal rights and how to engage with justice systems.Footnote ⁴² For example, a 2014 study by Leeds University found that many deaf women surveyed were unfamiliar with their formal rights under criminal law.Footnote ⁴³ Even when women with disabilities are aware of their rights and are able to advocate for accountability, reporting mechanisms and court systems may not be adequately prepared to meet their needs.Footnote ⁴⁴ In particular, women with disabilities may experience physical accessibility barriers such as inaccessible courtrooms or lack of transportation from rural communities to courthouses.Footnote ⁴⁵

These compounding layers of obstruction result in women and girls with disabilities receiving limited justice for the crimes committed against them, with one study in the United States finding that broadly, only 22% of perpetrators of crimes against persons with disabilities were charged, and only 9% of perpetrators were convicted.Footnote ⁴⁶ Ultimately, this results in women and girls with disabilities experiencing multilayered institutional barriers based on societal stigmas and discrimination that impair their ability to report crimes, participate in proceedings and ultimately have their perpetrators held accountable under their national criminal justice systems.Footnote ⁴⁷

The existence of these systematic and institutional barriers fails to meet the requirements of Article 13, according to which CRPD States Parties are obligated to ensure access to justice by actively removing barriers that impair access justice. As such, the failure by States to remove and revise such institutional and legal barriers for women and girls with disabilities is a violation of Article 13 of the CRPD.

The Nuremberg Tribunals

The post-Second World War International Military Tribunal (Nuremberg Tribunal) prosecutions are praised for establishing the first international court to recognize international norms during armed conflict and the violations of such norms through crimes against peace, war crimes and crimes against humanity.Footnote ⁴⁸ While the Nuremberg Tribunal was intended to ensure individual accountability for the most egregious actors, it was also intended to educate the German people on the full extent of the Nazi atrocities.Footnote ⁴⁹ For persons with disabilities who were victims of the Nazis’ crimes, the Tribunal failed to provide both justice and acknowledgment of the crimes committed against them. For instance, during the war, the Nazis forcibly sterilized persons with disabilities and implemented a programme known as T4. The T4 programme authorized “mercy death” killings for persons with disabilities, resulting in the murder of nearly 70,000 Austrian and German persons with disabilities by poisonous gas, as well as killing thousands of children with disabilities through morphine injections.Footnote ⁵⁰ This programme also broadly mandated physicians to kill anyone who had a “life unworthy of living”, which resulted in the murder of an estimated 275,000 persons with disabilities.Footnote ⁵¹

During the Nuremberg Tribunal, the doctors who perpetrated the killings of adults and children with disabilities were prosecuted in the case of United States v. Karl Brandt et al. Footnote ⁵² A total of twelve doctors were charged with crimes against humanity and war crimes for their conduct during the Second World War.Footnote ⁵³ Notably, the third charge, which was classified as a crime against humanity, related to the doctors’ participation in the “euthanasia” programme, though it did not specifically recognize that this programme was used to target children and adults with disabilities.Footnote ⁵⁴ This case resulted in both death sentences and decades-long imprisonments for the doctors involved.Footnote ⁵⁵ While there were many more doctors and nurses who perpetrated crimes against humanity and war crimes against persons with disabilities, these actors were not prosecuted at the Tribunal or by domestic courts.Footnote ⁵⁶ The fact that a very small number of doctors were prosecuted for the intentional killing of hundreds of thousands of persons with disabilities is both a reflection of the historical discrimination faced by persons with disabilities and an example of the early experiences of persons with disabilities being denied recognition for the crimes committed against them under both international and national criminal law.

In addition to limited accountability for perpetrators of the T4 programme, many Second World War survivors of forced sterilization did not have a remedy post-Nuremberg.Footnote ⁵⁷ While the Allies in the Nuremberg Tribunal recognized forced sterilization as a crime, in post-Nuremberg Germany forced sterilization was not found to be a crime as it was held to have followed appropriate procedures.Footnote ⁵⁸ Moreover, because the forced sterilization law was implemented before the Nazi era, it was not recognized as a “Nazi-era law”Footnote ⁵⁹ – therefore, survivors of forced sterilization were not entitled to restitution from the German government and were not recognized as a part of subsequent legal proceedings such as the Holocaust Victim Assets Litigation.Footnote ⁶⁰

Ultimately, the historical context provided by the Nuremberg Tribunal is important as it sets the stage for how ICL developed as a body of law that did not fully recognize persons with disabilities as victim-survivors in ICL prosecutions.Footnote ⁶¹

The prosecution of SGBV crimes under ICL

The next evolution of ICL did not occur until the early 1990s, in response to the internal armed conflicts in the former Yugoslavia and the Republic of Rwanda.Footnote ⁶² The temporal proximity of these two conflicts and the creation of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) resulted in ICL developing two substantial bodies of jurisprudence for international crimes, and specifically for SGBV crimes.Footnote ⁶³ Both the ICTR and the ICTY produced notable decisions on accountability for SGBV crimes through the Akayesu,Footnote ⁶⁴ Celibici Footnote ⁶⁵ and Kunarac et al. Footnote ⁶⁶ cases. However, these courts only recognized the vulnerability of certain groups, such as women, and did not include broader intersectional concerns such as disability.Footnote ⁶⁷

It wasn't until the Special Court for Sierra Leone (SCSL) prosecuted members of the Revolutionary United Front (RUF) for sexual violence crimes that an international court considered the impact a disability could have during an armed conflict.Footnote ⁶⁸ In the prosecution of the RUF, the SCSL recognized that in the context of rape, the very nature of war was “universally coercive”, thereby creating an environment in which consent is virtually non-existent.Footnote ⁶⁹ Further, in discussing the issue of consent, the SCSL recognized that there can be circumstances in which consent is impossible based on “age, disability, or being under the influence of some substance”.Footnote ⁷⁰ This recognition of how a disability may play a role in providing consent was important, as it was an early attempt by an international court to consider multi-sectional aspects of victim-survivors during armed conflicts.Footnote ⁷¹

Like the early ad hoc tribunals, the ICC has also struggled to include disability considerations in its prosecutions, and its jurisprudence on SGBV crimes poses unique challenges for accountability for women and girls with disabilities. In 2016, Jean-Pierre Bemba Gombo (known as Bemba) was the first defendant to be convicted under the command responsibility doctrine for rape as both a crime against humanity and a war crime.Footnote ⁷² However, the Court's victory was short-lived as the decision was overturned by the Appeals Chamber in 2018.Footnote ⁷³ In reversing the Trial Chamber, the Appeal Chamber's judgment reasoned that the Pre-Trial Chamber was required to demonstrate in the indictment that there were “substantial grounds to believe” the crimes alleged were committed, and to establish each underlying act.Footnote ⁷⁴ This can be difficult for SGBV crimes (particularly those perpetrated in the chaos of war), as they may not be discoverable at the beginning of an investigation due to cultural and societal stigmas surrounding SGBV crimes and reporting.Footnote ⁷⁵ Imposing strict timelines for reporting SGBV crimes is not only inconsistent with how ICL has previously prosecuted these crimesFootnote ⁷⁶ but also creates unique challenges to reporting for women and girls with disabilities, who face additional stigmatization due to their disability and may be experiencing post-conflict accessibility barriers due to loss of assistive devices and lack of disability-inclusive humanitarian responses. This perspective is also consistent with the ICC Prosecutor's Policy Paper on Sexual and Gender-Based Crimes.Footnote ⁷⁷ In her policy paper, the then Prosecutor recognized how power relationships and dynamics can shape gender roles in a given context, and how stigma and societal, cultural and religious factors can all play a role in the reporting and prosecuting of SGBV crimes.Footnote ⁷⁸ The former Prosecutor's paper also recognizes that specific gender roles, societal standards, behaviours and activities assigned to men and women can impact the reporting of these crimes.Footnote ⁷⁹ The recognition of gender roles and societal expectation is important for accountability for crimes against women and girls with disabilities, who can experience discrimination and stereotypes at the intersection of gender and disability, such as being seen as asexual or less valued by society.Footnote ⁸⁰ As a result of such discriminations, women and girls with disabilities who are survivors of SGBV can be unable to report crimes due to a lack of community support and access to courts.Footnote ⁸¹ Thus, the time-based requirement will likely make it more difficult to identify and prosecute SGBV crimes against women and girls with disabilities, who have longer delays in reporting due to the aforementioned accessibility barriers.Footnote ⁸²

Like the history of the Nuremberg Tribunal prosecutions of the T4 cases, the jurisprudence of SGBV crimes is important if we are to properly understand the lack of global accountability for these crimes. While the above-mentioned prosecutions are notable for the development of accountability for SGBV generally, this body of law does not recognize the impact on women and girls with disabilities other than in a one-off reference.Footnote ⁸³ Thus, because the foundation of ICL has not properly included the needs of, and accountability for crimes against, persons with disabilities, and particularly women and girls with disabilities, these crimes continue to be perpetuated with impunity, even at the ICC.

The inclusion of women and girls with disabilities in States under ICC investigations

Currently, the ICC has thirteen active investigations and fifteen preliminary examinations in States across South America, Africa, Asia and Europe.Footnote ⁸⁷ Across these twenty-eight States, the ICC has produced numerous reports on the type of crimes committed, the types of victim-survivors, and whether a State is pursuing prosecutions for these cases. In addition, the Court has produced over 300 decisions on applications by victim-survivors to participate in the proceedings.Footnote ⁸⁸ However, these reports and decisions contain limited references to how persons with disabilities, and specifically women and girls with disabilities, are targeted and victimized during armed conflicts. For instance, in reviewing the ICC Prosecutor's Report on the Activities Performed during the First Three Years, there is no mention of crimes perpetrated against women and girls with disabilities or, more broadly, persons with disabilities.Footnote ⁸⁹ Similarly, in the ICC's Prosecutorial Strategy 2009–2012, while there was a recognition for the need for subject matter experts in intersectional areas such as gender, there was no recognition as to how disability should be an intersectional consideration.Footnote ⁹⁰

Beginning in 2011, the ICC's preliminary investigation reports began to specifically include reports of SGBV crimes. Throughout the last decade, these reports have identified multiple incidents of SGBV crimes, such as in Guinea, where over 100 women and girls reported being raped or subject to sexual violence mutilations;Footnote ⁹¹ gender-based violence in Afghanistan, where girls’ schools were subjected to persistent attacks by arson, armed attacks, bombings, and the poisonings of female students and teachers;Footnote ⁹² Boko Haram's kidnapping of 200 girls from a primary school and subjecting them to forced marriage, rape and other forms of sexual violence;Footnote ⁹³ and in Burundi, where women associated with men who opposed the president's re-election were subject to sexual violence by security forces.Footnote ⁹⁴ In 2016, the ICC even explicitly recognized that SGBV crimes in Afghanistan were having a severe impact on the lives of women and girls, but it did not discuss how marginalized women, such as women and girls with disabilities, could specifically be impacted by this increased violence.Footnote ⁹⁵

The above examples demonstrate how SGBV crimes are of importance to the ICC, yet this concern rarely extends to investigating SGBV crimes against women and girls with disabilities in States where the Court is conducting investigations or preliminary examinations. The only reference to women and girls with disabilities being impacted during armed conflict is in the 2014 Report on Preliminary Examination Activities’ section on Colombia. Here, the ICC recalled that there was a “close link between existing disability and vulnerability to sexual violence, in particular in the context of forced displacement”.Footnote ⁹⁶ However, while future reports would address crimes of sexual slavery and forced abortions, the 2014 report was the only one that included women and girls with disabilities in relation to SGBV crimes.Footnote ⁹⁷

Ultimately, in the ICC's decade-long reporting of SGBV in preliminary examinations, women and girls with disabilities and their increased vulnerability to SGBV in armed conflicts are included only once.Footnote ⁹⁸ It is important to recognize that this lack of inclusion of crimes against women and girls with disabilities is a result not of a scarcity of these crimes being perpetrated, but rather of a lack of ICC investigations inquiring into these types of crimes against this group of victim-survivors. For example, the United Nations Population Fund (UNFPA) has reported that girls with intellectual and mental disabilities report increased experiences of sexual violence, with one UN Women report finding that women and girls with disabilities in Afghanistan are ten times more likely to experience sexual violence than their non-disabled peers.Footnote ⁹⁹ Similarly, in Nigeria, a 2013 study found that girls with intellectual disabilities reported higher rates of sexual violence because perpetrators intentionally targeted these girls due to their difficulty in recognizing offenders later on.Footnote ¹⁰⁰ Most recently, the UN Human Rights Council's reporting on the situation in Ukraine expressed concern for the “impact of the conflict on women, children and persons in vulnerable situations, including persons with disabilities and older persons, who are at risk also of SGBV”.Footnote ¹⁰¹

In essence, SGBV crimes against women and girls with disabilities are occurring in the places where the ICC is conducting investigations, and if anything, these crimes are likely occurring at higher rates where the ICC is investigating, due to the loss of governmental stability. Yet, the ICC has not included these victim-survivors in its investigations or prosecutions, resulting in a lack of accountability for perpetrators and continuations of legal systems that deny justice to women and girls with disabilities.

The ICC's jurisdiction over SGBV crimes against women and girls with disabilities

While the ICC seeks to ensure accountability for global criminal acts, its scope of authority is limited to both who it can prosecute and under what circumstances it may prosecute.Footnote ¹⁰² Specifically, under the Rome Statute, the ICC's jurisdiction is limited to crimes of sufficient gravityFootnote ¹⁰³ and its prosecutions must be complementary to national criminal prosecutions.Footnote ¹⁰⁴ The complementarity principle is at the core of the ICC, as it is intended to be a court of last resort and may therefore only prosecute a case when there is a lack of genuine national prosecutions.Footnote ¹⁰⁵

In ensuring accountability for crimes against women and girls with disabilities, the ICC could have a basis to exercise jurisdiction over these crimes because (1) there is subject matter jurisdiction over the crimes, and (2) the complementarity principle could likely be satisfied. First, as explained above, SGBV crimes against women and girls with disabilities occur at disproportionate rates even outside of armed conflicts, and they only increase during times of armed conflict – thus, the widespread nature of these crimes should satisfy the ICC's gravity requirement.Footnote ¹⁰⁶ SGBV crimes also fall within the ICC's subject matter jurisdiction because they constitute crimes against humanity under Article 7(g) of the Rome Statute.Footnote ¹⁰⁷ Second, while the complementarity assessment is conducted on a case-by-case basis in each situation, the complementarity principle could likely be satisfied in many of these cases. Considering that State courts often fail to actively remove barriers that limit access to justice, in violation of Article 13 of the CRPD, the ICC would likely be able to establish that because of the existence of these institutional barriers, there is sufficient evidence to believe that there are no genuine State prosecutions which would prohibit the ICC from exercising jurisdiction over these cases.Footnote ¹⁰⁸

This approach would also be consistent with the ICC Prosecutor's Policy Paper on Sexual and Gender-Based Crimes, in which the then Prosecutor recognized that she does not have the authority to prosecute crimes when such crimes are being prosecuted by genuine and relevant national proceedings; however, she recalled that discriminatory attitudes, gender stereotypes in substantive law, and limited access to justice may all create a basis for the Office of the Prosecutor to find that there are no relevant national proceedings occurring.Footnote ¹⁰⁹ This acknowledgement supports the ICC's ability to exercise jurisdiction over crimes against women and girls with disabilities when State courts fail to remove physical and societal barriers to justice, such as discriminations in witness credibility, failure to provide accommodations, and permissive laws that legalize international crimes like forced sterilization.Footnote ¹¹⁰ Thus, under these circumstances the ICC could recognize that because of these institutional barriers the State is unable to facilitate genuine and relevant national proceedings, and therefore, the Court could exercise its jurisdiction.

The ICC's prosecution of these crimes would not only hold those most responsible accountable, but would also help pressure State institutions to strengthen their criminal justice systems in order to remove these cases from the ICC's jurisdiction. For example, during the ICC's investigation into the situation in Colombia, the Prosecutor's 2017 report recognized that the Colombian government was failing to prosecute State actors who had executed civilians and reported the deaths as guerrillas killed in combat to boost the State success rate in the internal armed conflict.Footnote ¹¹¹ These were known as false-positive cases.Footnote ¹¹² The 2017 report clearly stated that its investigations had identified twenty-nine commanders who were potentially responsible for false-positive killings, yet the Colombian government was only prosecuting seventeen of these individuals.Footnote ¹¹³ Therefore, the report recognized that if the Colombian courts did not prosecute the remaining individuals, the ICC could potentially have jurisdiction over those cases.Footnote ¹¹⁴ Subsequently, in the ICC's 2018 report, the Court recognized that there was improved accountability and prosecution in Colombia for these false-positive crimes.Footnote ¹¹⁵ Thus, the pressure placed by the ICC on these cases in the 2017 report helped facilitate, or rather motivate, accountability for these crimes. With similar pressure from the ICC for accountability for SGBV crimes against women and girls with disabilities, the Court could help develop justice at the State level and ensure prosecution at the international level if the pressure failed to encourage State accountability.Footnote ¹¹⁶ Lastly, even if the ICC only included the impact of SGBV crimes on women and girls with disabilities in its investigation report, this could nonetheless be beneficial in raising awareness as to the prevalence of these crimes during armed conflicts. Addressing the needs of diverse intersectional victim-survivors could also help bolster the Court's credibility by demonstrating a new inclusive perspective.Footnote ¹¹⁷

The ICC Prosecutor should appoint a Special Adviser on disability

In 2021, the ICC Prosecutor appointed seventeen new Special Advisers, with fourteen acting as Special Advisers on specific portfolios, such as gender persecution and crimes against and affecting children.Footnote ¹¹⁸ Special Advisers are appointed with specific mandates based on their specialty and may support the Prosecutor's training initiatives for the Office of the Prosecutor (OTP).Footnote ¹¹⁹ As of August 2022, the Prosecutor has not appointed a Special Adviser on disability. Thus, to improve the Court's perspective, accessibility, and inclusion of disability, the Prosecutor should appoint a Special Adviser on disability.

Appointing a Special Adviser on disability could provide subject matter expertise on international crimes against persons with disabilities, and educate the Court on the historical exclusion of persons with disabilities in ICL.Footnote ¹²⁰ The scope of the mandate for the Special Adviser on disability could include working with currently appointed Special Advisers to ensure that the ICC's work is inclusive of a disability perspective within intersectional fields such as gender crimes, crimes against children, and ICL more broadly. A Special Adviser on disability could also provide guidance to ICC investigations on engaging local, regional and national organizations of persons with disabilities, which could help the Court to identify crimes committed against persons, and specifically women and girls with disabilities, during armed conflicts.Footnote ¹²¹ Using a Special Adviser on disability to more actively engage national organizations and coalitions led by persons with disabilities would also further the aims put forward in the Prosecutor's policy paper on ensuring accountability for SGBV crimes, which stated that the OTP would work with local stakeholders to “stop, prevent, and punish sexual and gender-based crimes”.Footnote ¹²²

A Special Adviser on disability could also review how the ICC's mechanisms are currently impairing access for victim-survivors with disabilities. For example, under the Court's Rules of Procedure and Evidence, when a victim-survivor is applying to be recognized as a victim before the Court, Rule 89 provides:

The inclusion of disability within this rule perpetuates a generalization that persons with disabilities lack the capacity to advocate for themselves because they are disabled, essentially conflating lack of legal capacity with disability more broadly. This rule has also been interpreted by the Court to require applicants to establish a relationship between the victim-survivor and the individual completing the application on behalf of the applicant with a disability.Footnote ¹²³ This requirement by the Court largely focuses on the role of legal guardianship for individuals who lack capacity, but as stated above, not all persons with disabilities will need legal guardianship, and some may be able to participate independently. Thus, a Special Adviser on disability would be well poised to review whether and how this rule has limited individuals with disabilities from participating in the Court's proceedings. Furthermore, a Special Adviser on disability could also advise the Court on the type of relationship requirement, if any, that should be established between a victim-survivor with a disability and the individual completing the application. Ultimately, ensuring that the Court's rules do not impair victim-survivors with disabilities from participating on an equal basis with others would also be consistent with Principles 1 and 5 of the International Principles and Guidelines.Footnote ¹²⁴

Lastly, a Special Adviser could also review how the ICC internally views disability within its jurisprudence.Footnote ¹²⁵ While the Court has discussed disability in terms of victim-survivor applications for participation, it often views disability as a consequence of armed conflicts rather than a co-occurring condition of armed conflicts. Therefore, it would be important for a Special Adviser to address how the Court should internally understand disability, in order to ensure that it does not apply a narrow view of disability. This education could be conducted in support of the OTP's staff training, a responsibility already within the Special Advisers’ mandate. Providing this type of training would also be consistent with Principle 10 of the International Principles and Guidelines, which recommends awareness-raising and training within justice systems.

Ultimately, appointing a Special Adviser on disability would build upon the work that the Prosecutor has started by recognizing the need for subject matter experts at the ICC, and it would ensure that the Court continues to develop with an inclusive disability lens that provides accountability for persons with disabilities, and particularly women and girls with disabilities.

The ICC Prosecutor should issue a policy paper on crimes against persons with disabilities

Since the ICC's creation, the OTP has produced three policy papers on its position in relation to the interests of justice,Footnote ¹²⁶ SGBV crimesFootnote ¹²⁷ and children.Footnote ¹²⁸ These policy papers play an important role in ensuring that the international community is aware of the Prosecutor's position on these thematic issues. A policy paper on crimes against persons with disabilities would be a substantial contribution from the OTP in recognizing the frequency of crimes against persons with disabilities, and establishing clear policies and procedures for engaging these communities during preliminary examinations, investigations, and prosecutions.Footnote ¹²⁹

An OTP policy paper must recognize (1) the historical exclusion, and if any, inclusion,Footnote ¹³⁰ of crimes against persons with disabilities under ICL; and (2) the intersectionality of persons with disabilities such as gender, sexual orientation, race and ethnicity. First, any policy paper must recognize the historical shortcomings of ICL for persons with disabilities,Footnote ¹³¹ in order to ensure that as the ICC becomes more inclusive, it does not perpetuate the same barriers experienced by persons with disabilities in the decades prior.Footnote ¹³² It would also be critical for the Prosecutor to address how the Court would handle cases in which crimes against humanity, such as the crime of forced sterilization,Footnote ¹³³ are considered legal under a State's domestic laws while nonetheless still violating ICL.

Second, a policy paper must also address the national and international access to justice barriers faced by persons with disabilities, and women and girls with disabilities. With that in mind, a policy paper must address how the Prosecutor will review whether genuine domestic prosecutions are occurring, what weight it would give to human rights bodies’ finding that a State is denying individuals with disabilities the right to access justice, and how the violation of the right to access justice could create grounds for the ICC's jurisdiction. Lastly, a policy paper should explain how the OTP will include a disability lens throughout its work, including how disability intersects with other factors such as gender, sexual orientation, race and ethnicity.