07 July 2012

ICC and Down Syndrome

New Zealand advocacy group Saving Downs is reported to have persuaded the International Criminal Court (ICC) to conduct a preliminary examination in response to the group's claim that the New Zealand government’s prenatal screening programs (which include identification of Down Syndrome) amounts to genocide. The group is associated with Right To Life NZ.

It is important to read the group's promotional material critically, as there is no indication that the ICC has endorsed the group's claims regarding 'genocide', 'ethnic cleaning', 'social engineering' and 'selective breeding'. A preliminary investigation simply means that someone in the ICC prosecutor's office has received the group's paperwork and is looking at it prior to deciding whether the basis of the complaint against the NZ government is reasonable in relation to the ICC's charter.

The group has previously been unsuccessful in action within New Zealand, having argued that the availability of screening violates Article 2 of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide because it imposes measures intended to prevent births within a 'specific human group'. Saving Downs characterises people with Down syndrome as both an ethnic group and a racial group on the basis that they are a stable and permanent group of people, linked genetically through having a third 21st chromosome, and share the same physical characteristics. From its perspective screening discriminates against people with Down syndrome and likewise supposedly violates the Crimes Act 1961 (NZ).

Article 2 of the Convention defines genocide as any act committed with intent to destroy - in whole or in part - a national, ethnic, racial or religious group. That act might include the imposition of measures intended to prevent births within the group. Article 6 of the Rome Statute of the International Criminal Court refers to “imposing measures intended to prevent births within the group'. The Statute - discussed in Building the International Criminal Court (Cambridge: Cambridge University Press 2008) by Benjamin Schiff, The Emerging Practice of the International Criminal Court (Leiden: Martinus Nijhoff 2009) by Carsten Stahn and An Introduction to the International Criminal Court (Cambridge: Cambridge University Press 2004) by William Schabas - gives the ICC the power to investigate and prosecute international crimes of genocide, crimes against humanity, war crimes, and crimes of aggression. Importantly the Statute refers only to groups of religious, ethnic, racial, and national classification.

It is unlikely that the ICC will conceptualise people with Down Syndrome as representing a group under the Statute. That means it will not go on to address the New Zealand screening program as genocide. The NZ Government has in the past argued that it is not mandating abortion on the basis of prenatal screening or euthanasia of minors. It has also recurrently indicated that screening is not compulsory and has been available in some form in New Zealand since 1968.

The New Zealand Human Rights Commission (HRC) reportedly determined that people with Down syndrome are not protected under Article 6 of the Statute and that screening as such is not in breach of the Human Rights Act 1993 (NZ). In subsequent consideration by the New Zealand Director of Human Rights Proceedings it was also reportedly determined that people with Down syndrome are not a discrete group protected under Article 6. The Director was approached by Right to Life NZ for representation in group proceedings before the NZ Human Rights Review Tribunal under s 80(4) of the Human Rights Act 1993 (NZ) on the grounds that the screening programme violated the Convention and the 1961 Crimes Act.

His determination was apparently provided in confidence to those who had sought his support and there is no clear information on the HRC/Director's site.

Claims that deaf people represent a discrete 'ethnicity' have similarly not gained traction in international law. Given its charter the ICC has not aspired to address all human rights abuses (and does not have the authority or resources to do so). It has not for example investigated offences against women and ethno-religious minorities in Saudi Arabia or China.

Given the attention received by claims of genocide it is perhaps unsurprising that advocates have used that characterisation in complaints to the Court. One example is the bizarre complaint that Zachie Achmat and Treatment Action Campaign (TAC) was guilty of genocide in South Africa for promoting cheap access to AZT and other anti-retrovirals, a matter discussed in works such as Jonathan Wolff's The Human Right To Health (New York: Norton 2012) and Ben Goldacre's Bad Science (noted here).