The pursuit of justice within an international framework has historically aimed to address the atrocities committed during conflicts, genocide, and other serious crimes. The International Criminal Court (ICC), established by the Rome Statute in 2002, serves as a beacon of hope for victims seeking accountability in these areas. However, one notable aspect increasingly at the forefront of discussions around justice – disability, has received insufficient attention both by the ICC and in the context of international criminal law generally.
Disability on the international stage
Disability is a multifaceted concept, encompassing a variety of physical and mental conditions that can hinder an individual’s capacity to perform certain activities[1]. Approximately 15% of the global population lives with some form of disability, translating to over a billion people worldwide.[2] This demographic not only includes those who experience disabilities directly but also encompasses their families and communities, highlighting the extensive impacts on society.
The UN Convention on the Rights of Persons with Disabilities (CRPD), adopted in 2006, reinforces the fundamental rights and freedoms due to individuals with disabilities. Significantly, it emphasises the importance of their participation in societal processes, including justice. Article 13[3] of the CRPD mandates effective access to justice for persons with disabilities, which is an essential component of the ICC’s obligations to ensure fair trial rights and reparations for victims[4].
The ICC’s framework, policies and mechanisms
The ICC’s jurisdiction covers crimes of genocide, war crimes, and crimes against humanity, including various acts that may disproportionately affect individuals with disabilities. However, the Rome Statute lacks explicit provisions addressing the rights of disabled individuals in relation to these crimes, representing an immediate gap in legal frameworks. The ICC’s pre-trial and trial processes are often inadequately equipped to accommodate disabled individuals, reflecting a general systemic and procedural oversight rather than an intentional disregard.
Despite these shortfalls, the ICC has made strides toward enhancing inclusivity. The Office of the Public Counsel for Victims, which represents the interests of victims during proceedings, has begun addressing issues that affect individuals with disabilities. Initiatives include the appointment of specialised counsel with expertise in disability rights, albeit these measures remain limited in scope and outreach.
Building on existing foundations
It has become clear that the ICC’s practices reveal a stark contrast between its legislative intent and operational realities. One significant gap lies in the court’s outreach and communication strategies. Access to information regarding court proceedings is essential for fostering participation. However, the language barriers, as well as the physical formats of outreach materials, frequently limit the court’s engagement with individuals with disabilities[5].
Additionally, the underrepresentation of individuals with disabilities within ICC proceedings accentuates these shortcomings. While the Rome Statute purports to convene a diverse representation of victims and their stories, the systematic barriers faced by disabled people challenges this narrative. For instance, a 2017 study[6] noted that during a review of case filings before the ICC, accessibility features, including sign language interpretation and alternative formats for documents, were glaringly absent. The failure to provide such fundamental resources results in further marginalisation of an already vulnerable group. According to research published in Disability Studies Quarterly, only 6% of the victims represented in ICC cases have identified as having a disability, despite estimates indicating that this demographic represents a more significant percentage of those affected by violent conflict[7]. This discrepancy calls into question the ICC’s commitment to inclusivity and reflects a broader trend within international law that often prioritises the experiences of able-bodied individuals.
Towards a more inclusive approach
To foster a truly inclusive international justice system, the ICC must undertake specific actions that challenge existing barriers and notions of exclusion. Implementing comprehensive accessibility audits for court facilities, communication strategies, and procedural policies is paramount. This also including design principles, not only for building infrastructure but also for information distribution. The use of technology to provide remote access to court hearings or consultations could mitigate challenges related to mobility and physical attendance.
These shortcomings were faced by victims in the Democratic Republic of Congo, where disabled survivors found it difficult to engage with legal processes due to inaccessible court facilities and rigid procedure[8]. A case study conducted by the International Federation of Human Rights in 2019[9], highlighted the experiences of several women with disabilities who faced multiple levels of discrimination. One victim raised being unable to navigate the court premises independently, in turn missing crucial hearings related to her case of sexual violence. As a result, not only was her case dismissed, but she also experienced secondary victimisation from the community that viewed her disability as a source of shame. Further, findings from the Srebrenica massacre illustrate that inclusive representation can bridge the gaps between victims and the judicial system, enhancing participation[10][11]. These cases demonstrate how physical and social factors can contribute in a manner which restrict the agency of disabled survivors, denying them crucial avenues for justice.
The ICC’s self-audits or assessments should proactively identify and address the physical and procedural barriers that prevent participation from individuals with disabilities and encourage them to come forward. Ultimately, the procedural framework of the ICC should incorporate explicit provisions focusing on the rights of individuals with disabilities. Steps have already been taken by the ICC’s Office of the Prosecutor by establishing two main policies for particularly vulnerable groups; victims of gender-based crimes[12] and children[13].
As is the case with courts and tribunals at a domestic level, diversifying legal representation within the court and ensuring the appointment of staff with expertise in disability rights or lived experience of disability significantly influences the inclusivity of proceedings.
Similarly, when considering the issue of inclusion, seeking advice and recommendations from organisations representing that particular community is crucial. Partnerships with local disability organisations can enhance grassroots outreach efforts, ensuring that individuals with disabilities are informed about their rights and potential claims for justice.
Recognising rights
While the ICC has made tentative steps towards recognising the rights of individuals with disabilities, fundamental gaps remain that warrant immediate attention. By aligning the court’s operational mechanisms with the principles outlined in the CRPD and ensuring adequate representation and access, the ICC can enhance its legitimacy and uphold the diversity of victim experiences. Failure to address these disparities undermines the very foundation of the court’s existence – establishing justice for all individuals, regardless of their physical or mental capabilities. Expanding the ICC’s approach to disability not only symbolises a commitment to inclusivity but also strengthens the pursuit of universal justice.
Christina Warner, Barrister, 33 Bedford Row
[1] WHO, 2011
[2] World Report on Disability. WHO, World Bank, 2016
[3] “1. States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.”
[4] Vanfrees, A. Inaccessible justice: The violation of Article 13 of the CRPD and the ICC’s role in filling the accountability gap, International Review of the Red Cross (2023), 105 (922), 542–565
[5] Access to Justice for Persons with Disabilities. International Disability Alliance, 2019.
[6] Schabas, W. A. An Introduction to the International Criminal Court. Cambridge University Press. 2017
[7] Nind, M., & Vickerman, P. Disability and the International Criminal Court: An Analysis of the Victims’ Rights. Disability Studies Quarterly. 2016
[8] ICC/DRC: Reparations leave victims feeling sore (2/2), Justice.net, 9 September 2024
[9] Lifting the Barriers: Women with Disabilities in the DRC
[10] Ibrahim, F. Engaging Victims in Post-Conflict Justice Mechanisms: Lessons from Bosnia. Journal of Peace Studies, 42(1), 45-62. (2021)
[11] Roth, R. The Mothers of Srebrenica: A Case Study in Victims’ Rights and Advocacy. Journal of Human Rights Practice, 9(2), 233-250. (2017)
[12] https://www.icc-cpi.int/sites/default/files/2023-12/2023-policy-gender-en-web.pdf
[13] https://www.icc-cpi.int/sites/default/files/2023-12/2023-policy-children-en-web.pdf
