OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS
EXPERT MEETING ON FREEDOM FROM
TORTURE, CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT AND PERSONS WITH DISABILITIES
Geneva, 11 December 2007
United Nations Office Geneva
GUIDE TO DISCUSSION FOR PARTICIPANTS
TABLE OF CONTENTS
1. MAIN FEATURES OF THE CRPD RELEVANT FOR THE PROHIBITION OF TORTURE IN CONNECTION WITH PERSONS WITH DISABILITIES…………...... 3
2. TORTURE AND CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT UNDER INTERNATIONAL LAW …………………………………....5
3. TORTURE AND CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT AND PERSONS WITH DISABILITIES. ………………………………9
4. FORCED MEDICAL TREATMENT & FORCED INSTITUTIONALIZATION AS A FORM OF TORTURE, CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT……………………………………………………………..……………11
5. THE PREVENTION OF TORTURE, CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT IN LIGHT OF CRPD ………………………….…13
6. MONITORING AND PROTECTING THE RIGHTS OF PERSONS WITH DISABILITIES TO BE FREE FROM TORTURE………………………...……………15
7. ANNEX 1: THE MI PRINCIPLES & FORCED INSTITUTIONALIZATION AND MEDICAL TREATMENT AND EXPERIMENTATION…………...………………… 17
8. ANNEX 2: FORMS OF ABUSE AFFECTING OR INFLICTED ON PERSONS WITH DISABILITIES, WHICH MAY AMOUNT TO TORTURE AND ILL TREATMENT...... 19
Objectives of the Seminar
In the context of the recent adoption of the Convention on the Rights of Persons with Disabilities, the Office of the High Commissioner for Human Rights is organizing this seminar with three principal aims:
- to facilitate an understanding of torture and other forms of ill treatment in light of the recently adopted Convention on the Rights of Persons with Disabilities.
- to identify the forms of torture and ill treatment mostly affecting persons with disabilities.
- to help mainstreaming the rights of persons with disabilities within the work of the Special Rapporteur on the question of torture and the UN Committee against torture.
This guiding note for discussion is intended to provide participants with relevant background information regarding the recently adopted Convention on the Rights of Persons with Disabilities in connection with the question torture. After providing an overview of torture under international law, the paper addresses specific issues corresponding to the themes subject to the specific sessions of the seminar.
What are the main features of the CRPD relevant for the prohibition of torture in connection with persons with disabilities?
The recently adopted Convention on the Rights of Persons with Disabilities (CRPD) is half way through to become a legally binding instrument. Up to date 11 States have ratified it, and 118 have signed it. It is expected that it will soon enter into force. Once in force, it will be a legally binding instrument for those States parties and Signatories will have the obligation to refrain from acts which would defeat the object and purpose of the Convention.
CRPD helps clarifying the prohibition of torture and ill treatment in connection with persons with disabilities. It does so by introducing a fundamental paradigm shift in the understanding of disability and by establishing a comprehensive legal framework of the rights and fundamental freedoms of persons with disabilities.
First the Convention recognizes that disability is the result of the interaction between an individual with impairment and the physical, attitudinal and other barriers in society. The medical and charity model is completely abandoned in favour of a human rights and social model. Persons with disabilities are neither regarded as passive recipients of charity, health and social care, nor as unhealthy persons with something to be fixed or from whom society needs to be protected from. On the contrary, they are recognized as subjects entitled to ALL human rights and fundamental freedoms on an equal basis with others with no exception on the basis of their disability. The Convention establishes no new rights but clarifies their meaning in the context of disability as well as the obligations of the States in ensuring their full enjoyment and active participation in society. In fact, all articles in the Convention are to be interpreted in accordance with the principle of respect for their dignity, individual autonomy including the freedom to make one’s own choices, and the independence of persons; the principle of equality and non discrimination (including equality between men and women and of the respect of the evolving capacities of children); the principle of full participation in society; and the principle of accessibility.
Second, the Convention provides as well a comprehensive legal framework to protect persons with disabilities from torture and ill treatment. It includes an absolute prohibition of torture and ill treatment and establishes the obligation of States Parties to prevent persons with disabilities from torture and ill treatment on an equal basis with others. (Art. 15 CRPD). In addition the Convention recognizes:
- “the right of every person with disabilities to respect for his or her physical and mental integrity on an equal basis with others” (Art.17 CRPD).
- their right to liberty and security, prohibiting deprivation of liberty on the basis of disability with no exceptions (Art.. 14 CRPD).
- the right to be recognized as persons before the law, and their right to legal capacity on an equal basis with others with no exception. The obligation of State to provide support where needed in their exercise of legal capacity is as well acknowledged (Art. 12 CRPD).
- the principle of respect of the individual autonomy and freedom to make one’s own choices of persons with disabilities (Art.. 3)
- the right of persons with disabilities to the highest attainable standard of health, which includes the obligation of the State to provide persons with disabilities with the same range, quality and standard of free or affordable health care, to be provided as close as possible to the community (Art. 25 CRPD). Importantly, States have the responsibility to ensure that health professionals provide care of the same quality to persons with disability, including on the basis of free and informed consent.
- their right to live in the community is proclaimed. (Art. 19 CRPD)
- the obligation of the State parties to eliminate discrimination against persons with disabilities in all matters related to marriage, family and relationships, including their right to decide freely and responsible on the number and spacing of their children, and to retain their fertility on an equal basis with others. (Art. 23 CRPD)
- the obligation of the States Parties to adopt all appropriate measures to protect persons with disabilities, both within and outside the home from all forms of exploitation, violence and abuse, including their gender based aspects. (Art. 16)
Against this background, participants will have the opportunity to explore the definitions of torture and ill treatment in international law in connection with persons with disabilities throughout the seminar. Possible constraints in the definitions or in their interpretation may be found as well as ways of overcoming them. In this regard, one may draw analogies to previous discussions on the scope of torture to situations not initially held to fall squarely within its purview. Thirty years ago, torture and ill treatment in relation to women, was widely neglected and seemed not to fit international definitions. To date, gender specific forms of torture are acknowledged, such as custodial rape, forced abortion or sterilization, female genital mutilation and domestic violence.
What constitutes torture, cruel, inhuman or degrading treatment or punishment under international law?
Torture, cruel, inhuman or degrading treatment is prohibited under a wide range of international[1] and regional[2] instruments. The prohibition of torture is absolute and can not be derogated nor its practice be justified under any circumstances.[3] It is recognized as customary international law and as a norm of ius cogens. Torture committed under situations of armed conflict may as well constitute war crimes and if part of a systemic or widespread practice either in times of peace or conflict, amounts to crimes against humanity.[4]
However, while the prohibition of torture is absolute and well-established in international law, there is no one, standard definition of torture and other ill-treatment that applies in every context. “What “torture” means for the work of one body will depend on the text, purpose and history of its enabling instrument, as well as on its own practice and the relevant practice of States”.[5] The following international and regional instruments as well as their accompanying “case law” are of interest:
The UN Convention Against Torture is the only UN legally binding instrument concerned exclusively with the eradication of torture. Under CAT, an act constitutes torture where the following elements are present: 1) Act (or intentional omission), 2) Severe pain or suffering (including physical or mental), 3) Intentionally inflicted (intent), 4) for a particular Purpose such as: discrimination of any kind, coercion, punishment, obtaining information or a confession; 5) with State Involvement, (person acting in an official capacity, at least by acquiesce). The definition does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. In the context of the recent adoption of CRPD it is particularly noteworthy that Article 1, para. 2 provide that “this article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application”.
It is generally understood that when one or various elements of the definition of torture are missing, these acts may constitute “cruel, inhuman or degrading treatment or punishment.” (Art. 16 CAT). It is important to note that classifying an act as torture, or as “cruel, inhuman or degrading treatment or punishment” implies a higher or lower level of protection.[6] Under CAT States have the obligation to criminalize acts of torture, prosecute perpetrators and provide reparation to victims, as well as the obligation not to return a person to a State where he or she is likely to be tortured (principle of non-refoulment).[7] Universal criminal jurisdiction is recognized over the offence of torture under the principle of aut dedere aut punier.[8]
To date, no individual complaint dealing with disability has passed the nitial test of admissibility.[9] In November 2007 the Committee adopted few concluding observations regarding conditions on psychiatric hospitals and institutions. [10] The Committee expressed concern about conditions of detention including the use of restraints or isolation; insufficient oversight and monitoring as well as inadequate complaint mechanisms. It recommended the improvement of the living conditions; the elaboration of guidelines on use of restraints, limiting the use of solitary confinement as a measure of last resort, under strict supervision and with a possibility of judicial review; and judicial control over detention procedures in public and private mental health institutions. It recommended as well visits of independent monitoring bodies to psychiatric hospitals and alternative forms of community based treatment. The Committee had in the past concluded that uninformed and involuntary sterilization of Roma women might be as severe as to contravene Art. 1 of CAT. It has condemned as well “the prevalence of violence against women and girls, including domestic violence.” [11] These two areas are particularly relevant for women and girls with disabilities. The committee has recognized as cruel, inhuman or degrading treatment the detention in a cell for 22 hours a day without meaningful activities to occupy the prisoner’s time.[12]
In 1985, the Inter-American Convention on Torture defined torture in its article 2 more broadly than the CAT Convention. Like in CAT, an act constitutes torture, if the elements of intent, physical or mental pain or suffering, and purpose are present. There is no reference to the intensity of the suffering (no mention to “severe”), though the Court in its practice has introduced the severity of the pain or suffering as an element of torture.[13] Notably the definition recognizes that in some instances torture is committed without causing “physical pain or mental suffering.”[14] Unlike in CAT, the list of purposes is non exhaustive, including “any other purpose” and there is no mention to the “public official” or “public capacity” status of the perpetrator or instigator of the act. The Inter-American Commission has systematically stated that rape constitutes torture.[15]
The Rome Statute establishing an International Criminal Court has slightly extended the definition in the UN Convention against Torture, in that it does not explicitly require the consent or acquiescence of a public official or any other person acting in an official capacity. It defines torture as: "the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions."[16]
Article 7 of the International Covenant on Civil and Political Rights (ICCPR) prohibits torture, cruel, inhuman or degrading treatment or punishment, without defining these terms. In its General Comment nº 20 on this article, the Human Rights Committee has stated that “it does not …consider necessary to draw up a list of prohibited acts or to establish sharp distinction between the different kinds of punishment or treatment.These distinctions depend on the kind, purpose and severity of the particular treatment.” [17] When processing individual communications, the Committee has usually avoided qualifying the different actions in detail to determine whether Art. 7 had or not been violated. However, in the recent years, the Committee has tended towards delineating between them.[18]
Article 7, (like Art. 15 CRPD) prohibits medical or scientific experimentation without the free consent of the person concerned. The Human Rights Committee observed “that special protection in regard to such experiments is necessary in the case of persons not capable of giving valid consent, and in particular those under any form of detention or imprisonment. Such persons should not be subjected to any medical or scientific experimentation that may be detrimental to their health”.[19] The Committee has as well established that Article 7 clearly protects not only persons arrested or imprisoned, but also … patients in educational and medical institutions.[20] Most importantly, the Committee has acknowledged that torture, cruel, inhuman or degrading treatment or punishment may be “inflicted by people acting in their official capacity, outside their official capacity or in a private capacity”.[21] In addition, it is the understanding of the Committee that article 7 is complemented by article 10, para 1, of ICCPR, which stipulates that "All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person".[22] In the view of the Committee, the prohibition of torture extends to physical and mental suffering and corporal punishment. Solitary confinement may amount to acts prohibited under article 7. [23]