The Just Security Podcast

Persons with Disabilities, the Slave Trade, and International Law

• Just Security • Episode 87

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For five years, Christopher Smith, a man with intellectual disabilities, was forced to work 100 hours per week at a South Carolina restaurant without pay. Smith faced verbal and physical abuse at the hands of his employer. Around the world, persons with disabilities like Smith face many modern forms of enslavement, from forced labor and begging to sexual exploitation and imprisonment by caregivers. 

While some of these crimes are prosecuted through national court systems, international criminal law can also play an important role in promoting accountability for grave crimes, including the crime of the slave trade. The Prosecutor of the International Criminal Court is formulating a new Slave Crimes Policy, which he hopes will be “survivor-centred, trauma-informed and gender-competent.”

How can international law, and the new policy, best account for the unique needs and challenges persons with disabilities face regarding slavery crimes? 

Joining the show to unpack how slavery crimes impact persons with disabilities and what the international community can do in response are Janet Lord and Michael Ashley Stein. 

Janet is the Executive Director of the University of Baltimore School of Law’s Center for International and Comparative Law and a senior research fellow at the Harvard Law School Project on Disability. Michael is the co-founder and Executive Director of the Harvard Law School Project on Disability, and a Visiting Professor at Harvard Law School. 

Show Notes:  

Paras Shah: For five years, Christopher Smith, a man with intellectual disabilities, was forced to work 100 hours per week at a South Carolina restaurant without pay. Smith faced verbal and physical abuse at the hands of his employer. Around the world, people with disabilities like Smith face many modern forms of enslavement, from forced labor and begging to sexual exploitation and imprisonment by caregivers.

While some of these crimes are prosecuted through national court systems, international criminal law can also play an important role in promoting accountability for grave crimes, including the crime of enslavement. The Prosecutor of the International Criminal Court is formulating a new Slave Crimes Policy, which he hopes will be “survivor-centred, trauma-informed and gender-competent.”

How can international law, and the new policy, best account for the unique needs and challenges that people with disabilities face regarding slavery crimes? 

This is the Just Security Podcast. I’m your host, Paras Shah. Joining the show to unpack how slavery crimes impact people with disabilities and what the international community can do in response are Janet Lord and Michael Stein. Janet is the Executive Director of the University of Baltimore School of Law’s Center for International and Comparative Law and a senior research fellow at the Harvard Law School Project on Disability. Michael is the co-founder and Executive Director of the Harvard Law School Project on Disability, and a Visiting Professor at Harvard Law School. 

Janet, welcome to the show. Michael, welcome back to the show. I wanted to start by zooming out. As you describe in your Just Security piece, there are many ways in which persons with disabilities can become enslaved. Can you start with an overview of some of the forms of slavery that persons with disabilities encounter? 

Janet Lord: Sure. Thank you, Paras, absolutely. What we do know is that persons with disabilities are subjected to enslavement, even though there's been very little documentation of that, particularly in the sort of mainstream human rights documentation. And they can experience unique forms of these crimes, so, that can range from caregiver abuse for economic exploitation of disability benefits, destruction or withholding of assisted devices required for independence to enhance control by an enslaver, and the outright denial of care. We also know that institutionalization and the isolation it brings can expose people with disabilities to long term sexual exploitation amounting to sexual slavery or forced labor, and we have, increasingly, lots of examples from different parts of the world about what that looks like, and we're hoping, in our work, to shed light on that circumstance. 

Michael Stein: To give a couple of concrete examples. Just here, about 20 minutes from where I am at my Harvard law office, is the Fernald School, which closed just a few years ago, ad originally created by Walter Fernald as the Massachusetts School for the Feeble-Minded. It was his idea that simple manual labor, which would have been done by paid employees, would be of great benefit to some of the boys, and then later on, girls, who would live there.  

In the 1930s a visitor to Fernald noted that inmates were treated like teams of oxen. And that continued into the modern day. We work with a self-advocate named Reggie who grew up in Fernald, and he tells stories about having to wake up at six and to strip down and make 30 people's beds and to set out the breakfast tables. But it's not simply institutions. The largest verdict ever brought in an Equal Employment Opportunity Commission case was brought when my classmate, David Lopez, was general counsel, and it was against a farm in Iowa that had individuals with intellectual disabilities working around the clock for about $65 a month, living in barracks together without adequate food, sanitation, and so on. 

There are numerous incidents of Mexicans and other nationals who are trafficked into the United States because they are deaf or hard of hearing or have other kinds of disabilities and put to work selling trinkets, either in the New York City subway system or elsewhere. So, it's actually quite an ongoing problem, and I do recall, for example, visiting a psychiatric institution in Da Nang province in Vietnam, where the superintendents “loaned out” the inmates to local farmers on the notion that it would be good for their physical health and mental well-being to work long hours in the sun for free. 

Paras: Yeah, your piece really does do a great job of walking through the many really profoundly disturbing and shocking examples of how these modern forms of slavery persist. And as you've mentioned, at times, a person's disability can itself be a factor that makes them vulnerable to enslavement. And I wanted to unpack that. What are some of the unique risks that persons with disabilities face because of their disability? 

Janet: Yes, absolutely. The evidence does show that persons with disabilities can be at elevated risk in relation to slavery crimes. So, for example, when individuals with disabilities are isolated in an institutional setting, shut out for their community, or when they're isolated in their own home communities, in their own home, they are much more vulnerable to being exploited, right, because they are shut away potentially and not out and about in the community, and so traffickers may find them easy prey in that regard.

Michael: Some of the threats used to patrol their behavior include verbal and physical abuse, denial or withholding of assistive devices. Imagine if you have mobility impairment and your wheelchair or your walker is taken away from you, denial of care or access to medical care, as well as institutionalization. And there's a well-documented case of an African American man with intellectual disabilities named Christopher Smith who experienced five years of modern slavery at a restaurant where he was “employed.” He went there as a volunteer employment experience, and through the combination of being isolated, verbally and physically abused and threatened by his manager, he was exploited for over five years.  

Janet: Another example that that we've seen come to light as a result of advocacy before the Inter-American Human Rights System was the case in Guatemala, where women who were in psychiatric hospitals were trafficked across the street to the male prison and sexually abused. To take some other examples, in the United States, where we had a long history of institutionalization, in my own home state of Maryland, we had the very tellingly named Crownsville Hospital for the Negro Insane. And in that instance, African Americans with disabilities were held in this psychiatric hospital. They were forced to engage in unpaid labor, and they were exploited in other ways, including medical experimentation. And then many of them died and were buried in unmarked graves.

Michael: And of course, globally, children, especially those with visibly discernible disabilities, are trafficked and often forced to engage in begging throughout and that's throughout the world — the United States, Bulgaria, Burundi, Iraq, Egypt, Ethiopia, Romania, China. They're often put on display and encouraged to act out, to look miserable, to be pathetic in that sense of the word, in order to induce sympathy and greater contributions to the people who are controlling.

Paras: And I think one common thread that appears through a lot of these examples is the role of stigma and the assumptions that people make about people with disabilities. So, what role does stigma play in all of this, and in some of the attitudes and assumptions that people hold about what people with disabilities are able to accomplish?

Michael: There can often be the trope that, because it is thought, wrongly, that people with disabilities, including children with disabilities, lack capability, that the work that they're performing is actually a generous act, in a paternalistic sense, in the positive sense. So, being in a sheltered workshop and earning 16 cents an hour is often spun as an opportunity for people with disabilities to leave their house and to be among people, “like themselves”, and to engage in some kind of productive activity, rather than accurately view that as exploitation. 

Paras: Thanks for that overview. It's really helpful. And turning to some of the legal issues. So, the Rome Statute of the International Criminal Court does criminalize the crime of enslavement, but not the separate crime of the slave trade. How are the two legally distinct, and why is it important to also criminalize the slave trade itself?  

Janet: You know, there are a number of advocates who are trying to press for a reappraisal of slavery crimes in that context, and in fact, the International Criminal Court prosecutor is looking at adopting a policy on slavery crimes. So, we know that under the Rome Statute, enslavement prohibits the exercise of the right of ownership over a person, but that's legally distinct from the slave trade, which criminalizes the intent of initiating or maintaining a person's enslavement. So, that element of intent is very important for the prosecution of slavery crimes where the right of ownership is not actually exercised. So, think about abductions, transfers and other crimes that may be committed in the prelude or in the process and the aftermath of enslavement. And so, those fall under the umbrella of the slave trade, but they don't actually constitute rights of ownership prohibited by the Rome Statute. So, they form part of the infrastructure of enslavement, and they really ought to be treated accordingly.

And that's coming at a very important work that's been done by Patricia Sellers and Jocelyn Kestenbaum, pointing out that that omission, that was an inadvertent admission in the Rome Statute, but one that's really important because it does not encompass the accessory crimes committed before, during and after enslavement.

Michael: In other words, we're hoping that this legal fiction, this gap, gets closed. So, to take a real, live example, the agents who transported highly at risk disabled persons from Seoul to farmers who enslaved them to work in salt mines and to fish and to work in agricultural farms in remote islands off of South Korea's southwest coast would not, under the existing regime, be liable to these very same crimes that they are actually creating because they do not own the individuals. 

Paras: That is quite a noticeable gap in the Rome Statute’s framework. And how can international law develop a legal framework that furthers the intersectionality and, you know, a more holistic approach to justice that is disability-inclusive? What are the steps that can be done? How can these legal regimes better respond to the needs of persons with disabilities? 

Janet: Well, so, the Convention on the Rights of Persons with Disabilities, that is now nearly universally adopted around the world, gives us the framework that I think can help us look at, think about, and press forward a more progressive development under international law, and one that accords protections to persons with disabilities across all of the different regimes of protection that are encompassed within international law. 

And it does so in a really interesting way. Article 11 of the Convention on the Rights of Persons with Disabilities is the provision in the treaty that talks about the protection of persons with disabilities in situations of risk, and it draws together and seeks to integrate the protections that are accorded to people with disabilities, not only in human rights law and the CRPD, but also across other regimes like international criminal law, international humanitarian law and other regimes. So, that provides a really important hook, together with other developments in international law, that have pointed out the absence of addressing protection of persons with disabilities, specifically in these different regimes. 

So, we know that the Rome Statute of the International Criminal Court left out of its definition of persecution, disability. So, disability does not appear in the Rome Statute as a specifically prohibited ground of persecution. And that's an important absence notwithstanding the very clear jurisprudential legacy of Nuremberg, which clearly held and found that persons with disabilities who were persecuted during the Holocaust by doctors, by the Nazi regime, that that did constitute crimes against humanity. So, somehow that was lost. It was forgotten by the time the Rome Statute was drafted, and that exposes a serious gap. And neither is there a disability policy, currently, for the International Criminal Court, unlike the policy on children or the policy on sexual and gender-based violence, for example. 

So I think now what we're hoping for, as a consequence of the CRPD being adopted and greater documentation of crimes perpetrated against persons with disabilities coming to light, is that we can fill that gap in void in the international criminal law framework, and explicitly acknowledge in the definitions, in the procedures of the International Criminal Court that persons with disabilities are subject to crimes, and they should have access to justice alongside other groups at risk.  

Michael: Agreeing with everything that Janet said, i's also worthwhile just stepping back for a moment and looking at the larger picture, which is, beginning with participating in the CRPD negotiations — where Janet and I collaborated and met some 20 something years ago — through the current day, our agenda has always been to include disability across all aspects of international law and programming where it seemed obvious to us that disability was relevant, but it wasn't included. The disability treaty itself is the primary example of that. But we can also look at exclusion totally from the Millennium Development Goals, and now inclusion in the Sustainable Development Goals. Janet mentioned the movement to try to get disability included in the crimes against humanity treaty, and now the international office of the prosecutor’s position statement.  

But we can also look at other areas, such as the total exclusion of disability from the business and human rights treaty, the new inclusion of disability at the United Nations through the disability inclusion strategy, the very progressive and newly enacted World Bank's disability, inclusion and accountability framework, the Security Council's Resolution 2475 for relating to people with disabilities and situations of armed conflict, and hopefully, soon on the horizon, climate justice and disability. So, this effort, on behalf of Janet, myself and colleagues, reflects a movement to include disability across various aspects of international law, international humanitarian efforts, where disability was previously excluded.

Paras: Yeah, thanks for that. And as you mentioned, there are so many different areas where disability continues to be mainstreamed in these existing gaps. And a big part of this is also the need for further scholarship and to understand where there are gaps in our knowledge. Where do those exist? Where do we need additional study or further research to understand some of the problems and solutions that may arise as people with disabilities continue to advocate for their rights. 

Janet: Well, you're absolutely right that there is still an ongoing need for research to drive this important agenda. At the Harvard Law School Project on Disability, we are doing our best to try to start filling that gap. One of the projects that we have been working on in the past six months is a project that looks very specifically at UN-mandated commissions of inquiry and other fact finding bodies and the extent to which they are addressing, or otherwise, persons with disabilities in the context of documenting serious violations of human rights law and serious violations of international humanitarian law. 

And our preliminary findings suggest that they're not doing much at all, but where we do see evidence of attention to the circumstances of persons with disabilities in these kinds of fact finding investigations, lo and behold, it's where the fact finders have actually interviewed persons with disabilities and their representative organizations, and thus those fact finding bodies have actually produced documentation of violations committed against persons with disabilities. So, actually talking to disability rights advocates and talking to organizations of persons with disabilities is something that's very, very, very important, and something that we're trying to work on.

Michael: And two small points that to Janet's very accurate response, and that is, there are various areas, and I'll give you just one example, where not speaking to the stakeholders, the people with disabilities, means we have absolutely no idea of what the situation is on the ground. So, a very clear example of that is the area of loss and damage as it relates to climate change. We have efforts being done on loss and damage for non-disabled populations and communities. We have seen almost nothing relating to what their experiences are like and what we can learn from it.  

The same is true within climate on adaptation strategies, and for that reason, we've encouraged and worked with the Zero Project to have best practices be one of their elicited strategies and policy investigations for their upcoming conferences. The other is, is that researchers, as Janet point out, infrequently talk to disability communities. That's true within climate, that's true within bioethics, that's true within any number of fields where disability is relevant. It is a significant population — at least 15% of the globe's population, maybe more, now that we live in a long COVID, PTSD, mental health challenge era, and yet, we're not engaging as medical professionals, as lawyers, and as others with this population.

Paras: Right, that's such a good point. People with disabilities are the world's largest minority, and it's so true that often, if you're not at the table, if you're not included as part of the conversation, you often don't count, and it's difficult to raise awareness. So, efforts like the ones that you're pursuing really are so important.  

And in that vein, Karim Khan, the ICC Prosecutor, is seeking to create this slavery crimes policy that is survivor-centered, trauma-informed, and gender-competent. In concrete terms, how can the policy best incorporate the needs and perspectives of persons with disabilities? What are the practical steps that the policy could take?

Janet: I think first and foremost, any policy on slavery crimes issued by the Office of the Prosecutor has got to recognize very explicitly that disability persecution may target individuals with disabilities on account of their disability, and that acts of disability persecution can be committed against children and adults with disabilities, and can include things like forced marriage, sexual enslavement, domestic servitude, involuntary captivity for financial exploitation, forced labor, forced begging, among others. So, that really explicit acknowledgement is something that we believe is incredibly important.

Paras: This has been such a rich discussion. Is there anything else we haven't touched on that you'd like to add? 

Janet: I think, by way of summary, I just want to underscore that it's really important for us to have clarification that disability-based persecution can target people with disabilities specifically on account of their impairment, and that acts of disability persecution committed against people with disabilities can include a wide variety of types of persecution. So, we also think that the policy ought to — a policy adopted by the International Criminal Court —  also should call attention to the fact that people can with disabilities can be targeted for enslavement, or they can be subject to the crime of slave trading. And so, you know, in sum, taking a more disability informed approach might highlight how disability-based discrimination puts people with disabilities at risk for all these various forms of slavery crimes. So, for example, the segregation in an orphanage or a psychiatric hospital or a social care home, or isolation in the community or unlicensed housing, barriers to employment — all of these things put individuals with disabilities at risk for experiencing these crimes. 

Michael: And another point to add to Janet's critique is we also have to consider access to justice and equal standing before the law for people with disabilities, which, in many countries, is not the case, and even when it's formally the case, there are instances of intimidation, of power structures, and of people with disabilities not being able to or feeling comfortable with prosecuting or raising instances of slave trade or other areas of abuse.

Paras: Yeah, so many important trends and issues to continue to watch, and we'll be tracking this at Just Security. Thank you again to both of you for joining the show.

Janet: Thank you, Paras,

Michael: Thank you for having us. 

Paras: This episode was hosted and produced by me, Paras Shah, with help from Clara Apt. 

Special thanks to Janet Lord and Michael Stein. 

You can read all of Just Security’s coverage of disability rights and International Criminal Court, including Janet and Michael’s analysis, on our website. If you enjoyed this episode, please give us a five-star rating on Apple Podcasts or wherever you listen.

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