Justice Denied by Design

Abstract Globally, persons with disabilities face violence at disproportionately high rates. This risk is especially acute in contexts of institutionalization, which exposes persons with disabilities to unique and unacceptable vulnerabilities, including acts of violence that may amount to atrocity crimes under the Rome Statute of the International Criminal Court. To date, however, atrocities against persons with disabilities have been adjudicated just once in the history of international criminal justice: at the post-World War II tribunals in Europe. How these atrocities and their treatment at Nuremberg shaped the development of international criminal law has never been analysed. Drawing on an exhaustive review of the relevant statutes, travaux préparatoires, and drafting history, this article demonstrates that offences against institutionalized persons with disabilities during World War II had a negligible impact on the development of atrocity crimes under the Rome Statute. This is because a thorough reckoning with these offences and their structural determinants, particularly institutionalization, would have threatened the self-protective priorities of prosecutors, judges, and drafters, who sought to shield matters of ‘domestic policy’ from international scrutiny. The result is significant gaps in protection under the Rome Statute — relating, in particular, to the enumeration of protected groups under genocide and persecution, and the operation of ‘deprivation-style’ crimes — which continue to impact victims with and without disabilities today.