Developments in the right to the highest attainable standard of health
PHR-UK hosted a closed meeting of international experts at the BMA in February, in conjunction with the International Federation of Health and Human Rights Organisations. The purpose of the session was to follow up on a meeting to which the World Health Organisation (WHO) in Geneva invited PHR-UK on Human Rights Day.
The WHO was the first inter-governmental organisation to recognise the Right to Health. It is referred to as a fundamental right in the Preamble to the WHO Constitution of 1946. Currently, there is a Health and Human Rights Focal Point at the WHO, headed by Helena Nygren-Krug. Helena chaired the February session, which was also addressed by Paul Hunt, UN Special Rapporteur on the Right to Health.
In his talk, Professor Hunt indicated that he envisaged using his three-year appointment to focus on the impact of both discrimination and poverty on the enjoyment of the right to health. He also hoped to examine a number of specific areas, including poverty reduction strategies, mental health, neglected diseases, impact assessments, health professionals and the World Trade Organisation. The Special Rapporteur is mandated to promote the right to health, clarify its contours and content and identify good practices for the operationalisation of the right to health. His preliminary report [E/CN.4/2003/58 05] is available from www.un.org .
The meeting discussed how it could further advance the right to health, and concluded that increased co-operation between NGOs, the WHO, the Special Rapporteur and the Committee on Economic, Social and Cultural Rights (CESCR), which developed the General Comment on the Right to Health, were essential. It is hoped that this could be facilitated by a Right to Health listserve and that increased dialogue between the major actors at meetings of the World Health Assembly, UN Commission on Human Rights or CESCR will also be possible.
PHR-UK is determined to follow up on its 2002 report to CESCR on the UK’s implementation of Article 12 (the Right to Health). It may submit a report directly to the Committee in Geneva, and also ask to address the Committee about the report at its NGO session. The British Parliament’s Joint Committee on Human Rights has also expressed an interest in the UK government’s response to CESCR’s concluding observations following its consideration of the UK periodic report last year, and PHR-UK may offer evidence to that Committee.
PHR-UK will also be monitoring the UK’s report to the UN Committee on the Elimination of Discrimination against Women (CEDAW), in light of our own observations on women’s health rights and discrimination, and CEDAW’s General Recommendation 24 on Women and Health (1999). Other NGOs are monitoring other aspects of the treaty, such as education or employment.
Earlier this year, CEDAW considered the possibility of producing a joint General Comment on Equality with CESCR. This is unlikely to be easy because of the differing scope of work of the two committees. NGOs are particularly anxious that any UN General Comment on Equality that is adopted, recognises the legitimacy of positive measures, albeit of a temporary nature, to ensure a level playing field for victims of earlier discriminations.
PHR-UK’s Annual Meeting to be held on Saturday 29 November is scheduled to cover a Right to Health issue. Experts are generally agreed that this is a propitious time for advancing the right to health. PHR-UK is keen to build on its earlier work and help to shape the institutions it has helped to create in this area. We cannot do this without your help, and we ask you to send whatever you can afford to
c/o Dr. Peter Hall, 91 Harlech Road, Abbots Langley, Herts. WD5 0BE
PHR-UK challenges the United States government over torture allegations
On 16 November 2001, PHR-UK, together with a select group of London-based human rights groups with whom we work closely on torture, wrote to the US Embassy. We requested a meeting with Ambassador William S. Farish to discuss our concerns about the reported justifications of the use of torture by U.S. security forces, which followed the destruction of the World Trade Centre in New York on September 11, 2001. We sought assurances that no agency of the United States Government would sanction the use of torture or other forms of ill-treatment to interrogate terrorist suspects. We received a swift reply, assuring us that the US Government and citizens understood the importance of maintaining human rights and civil liberties while ensuring that they used appropriate and legal means to respond to the threat of terrorism.
On December 26, 2002, a substantial item in the Washington Post alleged that the United States Central Intelligence Agency was using “stress and duress tactics” to interrogate al-Qaeda and Taliban prisoners at Bagram air base in Afghanistan, at the U.S. base on the island of Diego Garcia (a British Indian Ocean Territory), and in other secret detention centres in unidentified countries. The Washington Post further alleged that U.S. intelligence forces were co-operating with various foreign intelligence services known to torture detainees, by “rendering” terrorist suspects into their hands for interrogation. The piece was said to be based on interviews with U.S. security officers with first hand experience of the interrogations, extraditions and “renderings” of prisoners.
The allegations in the Washington Post article are extremely serious. There is an absolute prohibition of torture in international law, in peace and in war. The absolute prohibition against extradition or expulsion to torture is also a matter of settled international law. Successive United States administrations, both Republican and Democratic, have supported international treaties against torture and ill-treatment. The United States is a party to the UN Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, and consequently has an obligation to prevent and punish torture at home and abroad. In domestic legislation, the USA has shown positive concern about torture, torturers and torture survivors by passing, for example, the Torture Victim Protection Act.
PHR-UK discussed this with our sister NGOs, and on January 6, 2003, we sent a joint letter to the US Embassy expressing our concerns and requesting a meeting. On January 15, we received a printed postcard saying that the volume of mail received by the Embassy made an individual reply impossible. We replied immediately, again expressing our concerns and requesting a meeting; and received an e-mail on January 21 saying that an individual response would be provided. On January 29, the Embassy Press Attaché replied:
“Thank you for your letter of January 6th. I do appreciate your concerns and have shared them with the appropriate offices in Washington.
I can assure you that the United States is fully respectful of the human rights of enemy combatants in U.S. custody and treats these individuals humanely and consistent with the principles of the Third Geneva Convention of 1949.”
PHR-UK is extremely concerned at this response from the US Embassy for a number of reasons.
i) There is no agreement to our request for a meeting with the Ambassador or other senior embassy official nor is any justification for not doing so provided;
ii)) There is no assurance that the US Government has agreed to undertake an internal inquiry into the allegations, nor invited an independent third party to do so;
iii) There is no assurance that the US Government has agreed to publish the results of any such inquiry;
iv) There is no assurance that the US Government has spoken to condemn the torture and ill-treatment of detainees, which would act as a high-level, preventative message from the top to all US security personnel;
v) There is no response to our request to make a statement that CIA agents are not ill-treating detainees or "rendering" them to other security forces for interrogation. The Embassy’s reply refers to “enemy combatants”.
In January 2002, US Secretary of Defense Donald Rumsfeld said that the Guantanamo Bay detainees would be treated as “unlawful combatants”, a term used by the US Supreme Court, in ex parte Quirin (1942), in upholding the use of military commissions by the US to try and execute Nazi saboteurs. In doing so, the US Government appears to be making a distinction between what it regards as enemy combatants and those detained in Guantanamo Bay and presumably elsewhere.
The Geneva Conventions, to which the US is a party, distinguishes between prisoners of war and other detained combatants. Prisoners of war have certain privileges commensurate with their military status. They must be accommodated in quarters of a general standard comparable to those of their captors’ forces and must be subject to the same judicial procedures if prosecuted for war crimes. A captured fighter who is not a prisoner of war, must be treated humanely. This entails the provision of at least basic shelter, clothing, food and medical treatment, due process and, if they are prosecuted, basic fair trial guarantees. Under no circumstances may they be subjected to torture, corporal punishment or humiliating or degrading treatment.
The UN Convention against Torture of 1984 (CAT), to which the US is a party, says that “No exceptional circumstances whatsoever…may be invoked as a justification of torture” (Article 2.2). Article 3 prohibits the extradition of “a person to a State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Article 15 prohibits the use of any statement “made as a result of torture” from being used as evidence in any proceedings. Article 16 prohibits the use of “other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture”. The UN Committee against Torture, which is the formal guardian of CAT, reminded all States Parties of these obligations in its Statement of November 22, 2001 (CAT/CAT/XXV11/Mis.7). This was prompted, in part, by the same media reports that gave rise to our letter to Ambassador Farish of November 16, 2001.
Stress and duress techniques almost certainly amount to torture. As regular readers will know, the Committee against Torture has found that both “moderate physical pressure” and sensory deprivation constitute torture. Clearly, both the “rendering” of detainees and their subjection to “stress and duress techniques” violate human rights obligations.
In February, PHR-UK raised this matter with the International Federation of Health and Human Rights Organisations. On February 15, a letter was sent from the Federation to President George W. Bush, which concluded,
“The IFHHRO respectfully insists that the US Government either deny the allegations or institute immediate investigations so as to fulfil its obligation as party to the Convention against Torture to prevent and punish torture at home and abroad.”
We are currently awaiting a response from the White House. It is very important that physicians who are concerned about human rights speak out against torture. We could do so much more with greater resources, and for this we need your help. We ask you to send whatever you can afford to “PHR-UK” c/o Dr. Peter Hall, 91 Harlech Road, Abbots Langley, Herts. WD5 0BE.
News of committee members
i) Helen Bygrave is helping to produce distance learning modules on HIV/AIDS in connection with the hospice work she did in Uganda recently. She continues her work as a GP, and in breast oncology at Mount Vernon Hospital, where is also involved in a research project.
ii) Peter Hall will travel to the University of Ireland in June to speak at a conference of the International Association of Genocide Scholars. He will present his paper Who reaps the harvest - a case study in international collusion with genocide. This will draw in part on his visit to Rwanda as Head of the PHR-UK delegation, during the 1994 genocide.
This will be Dr. Hall’s second visit to Galway. He attended an international conference on the death penalty, organised by the University’s Human Rights Centre there, in 2001.
iii) Gill Hinshelwood is to visit Geneva in May at the invitation of the International Committee of the Red Cross. She will be advising them on aspects of violence against women.
iv) Harold Hillman published a review article on the physiology of sudden violent death in Resuscitation 56 (2002) 129-133, in which he concludes that a new era of resuscitation would be opened if the biochemical mechanisms that trigger the process of dying could be elucidated. He examines a number of causes of death, and also discusses the death penalty. He points out that, with both hanging and the use of the electric chair, the important signs of distress cannot be seen, and that many of them are masked by the paralysis of the subject. It is this that has led to the widespread but mistaken belief that the subject becomes unconscious and feels no pain as soon as the hung person falls or the electric current is turned on.
Geneva study trips enter their seventh year
This year sees the seventh year of study trips to observe the UN’s human rights mechanisms at work in Geneva. Normally, these take in the Committee against Torture (CAT) and the Committee on Economic, Social and Cultural Rights (CESCR). Sometimes, they take in other bodies, such as the International Law Commission or the World Health Organisation. Students get to meet committee members, staff and NGOs during the trip, as well as observe the committees.
The treaty monitoring committees are very different. One – CAT is small in size and narrow in scope. It concerns itself with conditions of detention, whether or not refugees at risk are being deported to places where they might be in danger and whether torturers are prosecuted or extradited. The other one – CESCR is huge in scope, dealing with such areas as education, housing, health, nutrition, social security and whether rich States are fulfilling their obligations to developing countries.
During the week’s study trip this May, CESCR will consider Iceland, which is widely viewed as a model state, New Zealand, where the Committee is expected to ask about the situation of the Maori people, and Israel, where the Occupied Territories are certain to figure in the deliberations.
The Committee against Torture will not be considering country reports during the students’ visit, but be holding a meeting for all the State parties to the treaty, and also a meeting with the Special Rapporteur on Torture and the Voluntary Fund for Victims of Torture. “These meetings will provide students with a real insight into the current concerns of the UN experts”, said course leader Bernie Hamilton.
A new element has been introduced into the trip this May. Arrangements have been made for students to observe the UN Working Group on Minorities. This mechanism was established to promote the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. It is attended by a large number of academics, NGOs and minority groups from all over the world, and is chaired by the distinguished expert Asbjorn Eide.
Asked about the highlights of his Study Trips, Bernie said there had been many. “Obviously, seeing the Committees respond to input from PHR-UK on such issues as torture, access to the right to health and on the need for a General Comment on the Right to Health, has been a source of enormous pride,” said Bernie. “I think that our first trip, when we met with Yuval Ginbar, from Israel was one of the most exciting. We met by the lake on a hot lunchtime, and Yuval demonstrated various methods of interrogation being used against terrorist suspects. It must have surprised the locals.”
Bernie also recalls the Committee against Torture’s session of November 1998, when the Chair asked the UK delegation about Senator Pinochet who was then in custody as a result of a request from Spain. “The delegation’s head seemed completely shocked that this was being raised,” said Bernie, “and there was a tense moment as the Chair, a Canadian Law Professor, explained the Committee’s interest. You can never tell what is going to happen, and learning the nuances of the diplomatic dialogue can be quite fascinating. That’s why we’re so very lucky to have meetings with staff, committee members and NGOs to help us understand what is going on.”
Bernie’s next Study Trip, to which members are warmly invited, is from Sunday 11 May to Friday 16 May. Further information is available from Bernie Hamilton whose co-ordinates are below.