July 26 marks the thirty-third anniversary of the Americans with Disabilities Act. The ADA not only continues to have a significant impact domestically across the United States, but also globally in the advancement of equality and non-discrimination for persons with disabilities. July 26, however, also marks the anniversary of the mass killing of 19 persons with disabilities and injury of 26 others in 2016 in Sagamihara City, Kanagawa Prefecture in Japan by an individual who believed that persons with disabilities were better off dead. That event has been described as one of the worst crimes committed in Japan.
The Sagamihara stabbing incident made global headlines, yet this was no isolated instance of disability animus. There is a long and lurid history of crimes targeting persons with disabilities, and none more well known then the mass killing of persons with disabilities under the notorious T-4 program in Nazi Germany and associated policies, which led to the killing of some 200,000 men, women, and children with diverse disabilities. Although some of those involved in the Nazi program of extermination of persons with disabilities were brought to account for their crimes in the Nazi Doctors Trial at Nuremberg, many of those involved in other euthanasia programs by the Nazi regime were not.
The largely neglected history of violence and atrocity crimes against persons with disabilities and its contemporary manifestations are now being aired. Art Blaser’s work has elevated the issue of genocide and other atrocity crimes against persons with disabilities in Rwanda and Cambodia. Organizations such as Human Rights Watch, Amnesty International, and Humanity & Inclusion are beginning to track serious international human rights and international humanitarian law violations against persons with disabilities during crises and conflicts that serve to amplify pre-existing inequalities. Such violations include mass murder, and targeted killing; forced sterilization; involuntary medical and scientific experimentation; use of persons with disabilities as human shields and suicide bombers; institutionalization, sexual violence, human trafficking, and forced disappearance.
Domestic fact-finding and inquiries in several countries are beginning to draw attention to—and build the evidence base about—ongoing violence, abuse, neglect, and exploitation of people with disabilities. Disability hate crimes have been tracked by the Scottish government which has worked with organizations of persons with disabilities and Police Scotland to raise awareness of hate crime and encourage greater reporting of disability hate crimes. The Australian Disability Royal Commission has undertaken an investigation into violence, abuse, neglect, and exploitation of people with disability. The UK Equality and Human Rights Commission undertook fact-finding into disability-related harassment, describing in detail 10 particularly egregious cases of violent crimes against persons with disabilities. The U.S. Department of Justice, which is tracking disability-based hate crimes, reports that the rate of violent victimization against persons with disabilities (46.2 per 1,000 age 12 or older) was almost four times the rate for persons without disabilities (12.3 per 1,000). In the State of Maryland, advocates have thus far unsuccessfully been calling for accountability and memorialization for victims of the tellingly named Crownsville Hospital for the Negro Insane, where racialized and ableist treatment worked horrors on persons with disabilities.
Efforts are underway to better account for atrocities perpetrated against persons with disabilities through international law and process. The UN Convention on the Rights of Persons with Disabilities (CRPD), ratified by nearly all UN Member States (the United States excepted), calls attention to the need to protect persons with disabilities from violence and abuse and other situations of risk through Article 11. Building on that innovative provision, in 2019, the UN Security Council unanimously adopted resolution 2475 on the protection of persons with disabilities in situations of armed conflict and post-conflict. That resolution underscores the need for states to “end impunity for criminal acts against civilians, including those with disabilities, and to ensure that such persons have access to justice and effective remedies and, as appropriate, reparation.” However, researchers have shown that while crimes targeting persons with disabilities can and do rise to the level of crimes against humanity and war crimes, they remain unaddressed and overlooked by the international criminal law framework.
Some progress, nonetheless, is being made across the UN system to adopt intersectional approaches to atrocity crime prevention and to move away from non-specific and quite empty calls to protect those deemed “vulnerable” to serious violations of international human rights and humanitarian law. The UN Office of Genocide Prevention is turning its attention to disability. The UN High Commissioner for Refugees is at long last contemplating adopting guidance on what constitutes persecution of persons with disabilities. The UN Special Rapporteur on the Rights of Persons with Disabilities, in two of his recent reports to the UN General Assembly in 2021 and 2022, has recommended that action be taken to account for crimes and atrocities against persons with disabilities. Organizations of persons with disabilities are working to better account for possible war crimes committed against persons with disabilities in the current conflict in Ukraine.
One process just getting underway is a potentially important development—the work of the UN Sixth Committee to move forward with a process to draft a legally binding treaty specifically addressing crimes against humanity, building on the International Law Commission’s draft articles for such a convention. July 26 serves as a salient reminder to States participating in that negotiation to come to the table fully cognizant of the import of their work. The process must, in its articulation of what constitutes a crime against humanity, make explicit mention of persons with disabilities and indeed other groups recognized as specifically protected under international law and UN Security Council resolutions. To do otherwise risks overlooking the history of abuse that persons with disabilities have experienced, the existence of the CRPD, and most importantly the ADA. The move to specify and make visible gender-based crimes and crimes against children in recent years—and actions by international criminal tribunals to account for these crimes—demonstrate the salience of specificity.
The celebration of the Americans with Disabilities Act ought to be married with action to ensure that disability hate crimes are amply documented and perpetrators brought to account, be it in American courts or international tribunals.
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