1. General Comment on the Right to Health published on July 4th 2000
This explication of Article 12 of the International Covenant on Economic, Social and Cultural Rights transforms a statement of principle and four general instructions on health preservation, as perceived early in the second half of the last century, into a 65 paragraph document that comprehensively defines and clarifies contemporary standards and expectations for states parties
The General Comment is both an historic and seminal document. It will have a direct impact on health worldwide by rendering Article 12 into a powerful instrument that the UN Committee on Economic, Social and Cultural Rights, none of whom are medical practitioners, can use to monitor the rights of the citizens of 139 countries to the enjoyment of the highest attainable standard of physical and mental health. But, importantly, it will have an even more pervasive effect on health worldwide in that it will inform the interpretation of all current, and the composition of future, health legislation – at national, regional and global levels.
Physicians for Human Rights-UK was influential at every stage of the General Comment’s development – at its inception, contributing as it to took shape, and in determining its final form
2. Putting the General Comment on the Right to Health into context
The foremost legal source for the international human right to health is Article 12 of the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR). The triad of the ICESCR, the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights comprise what is known as the the International Bill of Human Rights. Some view the International Bill of Human Rights as a veritable Magna Carta marking humankind’s arrival at a vitally important phase: the conscious acquisition of human dignity and worth.
The Right to Heath as recognised by the United Nations is founded upon international laws over which states have negotiated (sometimes described as horse-traded) for years. It is derived from written texts that have required consideration and interpretation. As with many other economic, social, and cultural rights, interpretations have differed considerably in defining the scope and content of the Right to Health – and the resulting concomitant states’ obligations. This lack of conceptual clarity which has hitherto complicated the implementation and monitoring of these rights, is due to a number of factors, including the relatively recent origin of social, economic, and cultural rights as compared with civil and political rights, and the tendency of both governments and human rights advocates to perceive civil and political rights as of greater importance.
All the 139 countries that have ratified the ICESCR have, thereby, voluntarily undertaken to observe the legal obligations protecting the rights contained within the Covenant, and their governments are required to report every five years to the UN Committee on Economic, Social and Cultural Rights (CESCR).This Committee is made up of 18 Independent Experts, who are elected by the member governments of the United Nations Economic and Social Council, but serve in their own capacity. The CESCR, at its twice yearly country reviews in Geneva, examines governments’ reports together with information furnished by NGOs and other sources, and then issues observations on each states’ implementation of the Covenant.
To promote better understanding of the Covenant, and therefore implementation by member states, the CESCR from time to time publishes amplifications of individual Articles – known as General Comments. These explications elaborate on the text of the treaty and serve to define the nature of individual rights and obligations under the Covenant. To date the CESCR has issued 13 General Comments, on for example the right to housing, the right to food, the right to education, but never on the right to health.
A glance at Article 12 (see below) shows that its regulations are neither comprehensive nor detailed enough to properly inform the protection of the health of entire nations. As long ago as 1993 the CESCR held a day of General Discussion on Article 12, but did not proceed to the publication of a General Comment. The continuing inadequacy of definition of the substance of Article 12 has resulted in the CESCR’s assessments of the Right to Health at each country’s quinquennial review tending to be brief and unsystematic.
In 1998 PHR-UK determined to encourage the CESCR to adopt a General Comment on the Right to Health. This entailed obtaining the agreement of the CESCR to devote a day to a General Discussion, and then persuading the members of the health and human rights communities to support this. PHR-UK, as the host of the 1999 International Federation of Health and Human Rights Organisation’s (IFHHRO) annual conference, was able to convene a one day colloquium at which leading experts from around the world could discuss the Right to Health with members of the CESCR in an informal setting. Through its leadership, PHR-UK was offered the opportunity to advise the Special Rapporteur during the drafting of the General Comment and was invited to participate in the Committee’s considerations in Geneva.
In December 1998 the CESCR considered PHR–UK’s “urging [that the CESCR] return to the question of theright to health. [...] as one possible topic for a day of discussion”. [ref: E/C.12/1998/SR.51/ Add.1]. The CESCR’s decision to go ahead was made in May 1999. The Special Rapporteur appointed to coordinate the programme spent a year consulting with a large number of NGOs and other institutions from around the world. At the CESCR’s open session on May 8th 2000, he publicly singled out the IFHHRO’s colloquium as being particularly helpful to him and his colleagues. The General Comment was approved at a closed session of the CESCR on May 11th 2000 and was published in unedited form on 4 July 2000.
The drafting of the 65-paragraph General Comment has been a considerable feat in such a short time and the Special Rapporteur and his collaborating CESCR colleagues are to be congratulated. The development and formulation of the General Comment benefited from the CESCR’s invaluable experience in the developing previous General Comments, such as that on Article 13 - the Right to Education.
Three PHR-UK representatives took part in the CESCR meetings in Geneva immediately leading up to the adoption of the General Comment. On 29 April the Chair, Peter Hall, participated in a specially invited informal working group chaired by the Special Rapporteur, involving interested CESCR members and representatives of WHO and other NGOs. His influence can be seen in a number of passages in the General Comment – most conspicuously a description of the distinguishing features of primary, secondary and tertiary healthcare.
Bernie Hamilton, PHR-UK’s convenor, and PHR–UK member Helen Bygrave took part in the public CESCR meeting of 8th May. The official minutes record as follows:
HAMILTON (Physicians for Human Rights UK) expressed satisfaction that the CESCR was giving so much consideration to article 12 at the current session. His organisation was concerned about the concept of health care as outlined in paragraph 3. In his opinion it would be useful to think of "health care" as a single concept, so as to distinguish the right to health from the right to health care. Physicians for Human Rights UK had also drawn the attention of the CESCR to the concept of essential prerequisites, which had been introduced into paragraph 9 of the draft as "underlying determinants" [...]. The references in paragraphs 48 to 50 to the role of the international financial institutions were especially welcome, as poverty correlated very highly with infant mortality rates and other health indicators. The CESCR should give some thought to the question of the training of health professionals. If they were to contribute fully to the realisation of the right to health, they had to be allowed the freedom to work properly and ethically. [...] Human rights should be part of their training, ...
Dr Helen Bygrave is responsible for the inclusion of the General Comment’s single reference to palliative care
The Human Development Report 2000, released by the United Nations Development Programme (UNDP) on June 29, emphasises that human rights must include economic, social, and cultural rights, not just political and civil rights. The International Covenant on Political and Civil Rights (eg Article 7 “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”) has always attracted much more attention than the ICESCR. The UNDP report comments "The torture of a single individual rightly raises public outrage. Yet the deaths of more than 30 000 children every day from mainly preventable causes go unnoticed.”
The more widespread recognition that the Right to Health is of no less importance as an international law than the right to not be tortured, has been a major objective of PHR-UK for some time. It is a campaign to which, as the only health and human rights organisation in the country, PHR-UK is uniquely well suited. The development of the General Comment on the Right to Health, in which PHR-UK played a significant part throughout, is an essential first step in a global process that may ultimately prevent more deaths and misery than any other part of UN law.
This work by PHR-UK could not take place without the wholehearted commitment and financial support of our members as we start a new century. We should all feel satisfied that we have made a huge contribution to an often neglected area of human rights on a truly global scale.
Article 12 of the International Covenant on Economic, Social and Cultural Rights
1. The States Parties to the present Covenant recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full realisation of this right shall include those necessary for:
(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;
(b) The improvement of all aspects of environmental and industrial hygiene;
(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness
Defining the Right to Health in the General Comment.
8. The right to health is not to be understood as a right to be healthy. The right to health contains both freedoms and entitlements. Freedoms include the right to control one's health and body, including sexual and reproductive freedom, and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation. By contrast, the entitlements include the right to a system of health protection, which provides equality of opportunity for people to enjoy the highest attainable level of health.
11. The Committee interprets the right to health, as defined in article 12 (1), as an inclusive right extending not only to timely and appropriate health care but also to the underlying determinants of health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions, and access to health-related education and information, including on sexual and reproductive health. A further important aspect is the participation of the population in all health related decision-making at the community, national and international levels
3. International Criminal Court
As we go to press, 14 states have ratified the 1998 Statute of the International Criminal Court and 97 have signed to indicate their intention to ratify. States met at the UN in New York in June for three weeks to discuss the Court's Rules of Procedure and Evidence as well as the Elements of Crimes. PHR-UK wrote to Secretary of State for Foreign and Commonwealth Affairs Robin Cook about two proposals that appeared to weaken the Court's effectiveness in suppressing international crimes. The first concerned crimes against humanity. The proposed rule had the effect of forcing the prosecution to produce evidence of the active promotion or encouragement of an attack against a civilian population. PHR-UK sought a broader rule that allowed for evidence of acquiescence or inaction.The language adopted by the states was not of the UK government's choosing; but a footnote was included to the effect that a policy could"in exceptional circumstances be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack". This gives the Court some scope to bring in a finding of a crime against humanity without proof of active promotion or encouragement. PHR-UK's second concern was the proposal that the Court could not ask a State to surrender a suspect to the Court if that might violate an agreement the sending state had made. This could have the effect of enabling powerful states to force lesser states into agreements that they would not extradite suspects, such as troops acting for NATO or the UN, to the Court. The UK government took the view that the language, adopted by consensus, in no way impaired the effectiveness of the Court. There remains some uncertainty about this, and the actions of the powerful states in the months before the next meeting on the Court, in November, will indicate how satisfactory a compromise this has been.
The International Criminal Court will have jurisdiction over Crimes against Humanity, Genocide and War Crimes. It will be based in the Hague and come into existence when sixty states have ratified its Statute. The EU is strongly committed to the Court and the UK is expected to introduce draft legislation that will enable it to ratify this August. PHR-UK has been monitoring efforts to establish the Court since 1998, when it organised a briefing for health professionals.
4. Upcoming events at the UN
The UN is hosting two exceptional events in the coming year, and PHR-UK plans to involve itself in both of them. There is to be a Millennium Summit in New York, where most of the world's leaders will address the problem of how the UN should develop. At the end of next summer there is to be a UN Conference against Racism in South Africa.
PHR-UK wants to see the UN take steps to strengthen its mechanisms to prevent genocide. We wish to see a small UN office dedicated to early warning, which would analyse the data already available to the UN and alert the Secretary General and Security Council to the likelihood of genocide. We also want to see a UN rapid deployment force established, so that precious time is not wasted trying to recruit and train soldiers to work together should an emergency occur.
A recent research project conducted in the USA confirmed General Dalliere's claim that a small force of troops could have significantly reduced the casualties of the Rwanda genocide.
In December 1999, the UN produced a report into its response to the 1994 genocide in Rwanda. This July, the Organisation for African Unity published its 296 page report. Both reports stress the preventability of genocide. PHR-UK, as one of only two human rights organisations in Rwanda at the time of the genocide, knows better than most the importance of these preventive measures. We shall be using our influence in the build up to both these UN events to press for real change in the way the UN addresses the threat of genocide.
5. Human rights group succeeds in outlawing torture
A rapt audience heard Israeli human rights advocate Yuval Ginbar explain how a few dedicated human rights workers had brought about a change in the interrogation of terrorist suspects. Since the 1980s, Government interrogators had followed secret rules which permitted physical pressure on the grounds that this was necessary to reveal the presence of a ticking bomb.
The human rights workers decided to bring complaints to Israel's Supreme Court. They calculated that the judges, who frequently lectured in London, Oxford and elsewhere, would not sustain their support for the defense of necessity when faced with the evidence. The interrogation records showed physical methods to be routine, bureaucratic and indiscriminate. Far from being used in an emergency in order to save lives, as the Government claimed, the physical methods stopped at the weekends, when staff were at home, and resumed on weekdays.
Yuval's NGO B'tselem also lobbied United Nations treaty monitoring committees. They attended hearings of the Committee against Torture and the Human Rights Committee, meeting members and suggesting questions to address to the Israeli delegation. They succeeded in obtaining significant media coverage. Both the UN Special Rapporteur on Torture and the UN Committee against Torture found that the interrogation methods amounted to torture.
The UN finding of torture was used by lawyers in their petitions to the Supreme Court. Affidavits from Lord Mayhew, concerning the interrogation of IRA suspects and from the USA, concerning the search for an accomplice to the Oklahoma bombing, were produced. In September 1999,the Court went through Israel's physical methods of interrogation one by one, and dismissed them. Within a few days, interrogation methods changed at every place of detention. There have only been ten complaints since that time.
Questions were raised about the involvement of the medical profession. Each prisoner underwent a medical examination to assess his or her fitness for interrogation. Doctors did not enter the interrogation wing itself, and the Government said the doctors did not know what went on in the wing. Thus the doctors were either approving for unknown or for known conditions. Either way amounted to an ethical violation. In the event, prisoners were found fit for their health to be deliberately harmed without their consent.
It is thought that doctors were involved in advising on shackling prisoners, on reviving them after they had fainted and in making observations on how to shake prisoners without bringing about their death. Yuval concluded that if doctors had withheld their consent, they could have stopped torture. PHR-UK has held discussions with the Israeli Medical Association about this, but without much success. Doctors who worked at detention centres were often portrayed as new immigrants from Eastern Europe.
As reported in our last Newsletter, PHR-UK has participated in a number of activities to combat official torture in Israel. We were delighted that Yuval Ginbar could provide us with a full account of an NGO success on the UN's international day of support for the victims of torture. The meeting was held at the London School of Hygiene and Tropical Medicine on June 26.
6. QUIS CUSTODIET CUSTODIENS?
Human rights defenders now have their own defender, following the appointment of Hina Jilani of Pakistan as Special Representative on Human Rights Defenders. The appointment was made by the UN Secretary General on August 18, following a request by the Commission on Human Rights in April. The appointment is for three years. Ms Jilani, who is a practising lawyer in Lahore, Pakistan, specializing in human rights issues, will report on the situation of Human Rights Defenders in all parts of the world and on possible means to enhance their protection in full compliance with the "Declaration on Human Rights Defenders".
Ms Jilani established the first women's law firm in Pakistan and is Secretary General of the Human Rights Commission there. She has defended people in some of the most difficult cases. She pioneered the creation of human rights groups in Pakistan, demonstrating how it was possible to be non-partisan and non-political in defence of human rights principles. Ms Jilani serves on the Carter Centre's International Human Rights Council and has been a special advisor to the Centre for Women's Global Leadership at Rutgers. She is seen as a leader world-wide in the women's NGO movement, where her particular focus is the human rights of women.
It is a sad epilogue to the Twentieth Century that those who are the voice of the victims should themselves be in need of special protection by the United Nations. Unfortunately, there are countries where those who speak out for freedom risk being victimised themselves and where human rights groups are treated as criminal or terrorist organisations. The Declaration is to enhance the recognition, promotion and protection of the work of Human Rights Defenders. The Commission for Human Rights started working on the Declaration of Human Rights Defenders in 1984. The text went through many changes before its adoption by the General Assembly in December 1998, the Fiftieth Anniversary of the Universal Declaration of Human Rights. As the Secretary General's special representative, Ms Jilani will be able to receive complaints of violations against human rights defenders, investigate them and advise the Secretary General. She will publish a report which will be debated by the UN Commission on Human Rights each year.
PHR-UK Chair Peter Hall welcomed the appointment. Speaking in August, he said, "Ms Jilani is no stranger to the ways of the UN. She has served as an expert to the United Nations Commissioner for Refugees (UNHCR), the United Nations Development Fund for Women (UNIFEM) and the United Nations Children's Fund (UNICEF). But she is also an activist involved in the recognition, promotion and protection of human rights. She is the ideal person for the job of monitoring the situation of human rights defenders, and her appointment by Secretary General Kofi Annan will be widely welcomed."
7. OAU - The preventable genocideThe OAU report - Rwanda: The Preventable Genocide
In November 1997 the Central Organ of the Organisation of African Unity (OAU) Mechanism for Conflict Prevention, Management and Resolution requested the OAU Secretary General to hold an inquiry into the 1994 Rwandan genocide “with the view to preventing similar occurrences”. In May 2000 the chairman of the eminent persons who carried out the inquiry, submitted the report, entitled Rwanda: The Preventable Genocide. In the opinion of PHR-UK this report is the most comprehensive official inquiry report published – one that does full justice to its subject and one in which no punches are pulled for reasons of self interest or diplomacy. Its publication is a major event in the history of Africa.
Many of the report’s conclusions are in accord with those of PHR-UK. Indeed excerpts from Peter Hall’s presentation '12 lessons from the Rwandan genocide' (given at the Tenth UN Congress on the Prevention of Crime and the Treatment of Offenders ancillary meeting on Genocide, in April 2000) bear a close resemblance to some of the most salient sections of the Executive Summary of Rwanda: The Preventable Genocide. Here is an example:
Rwanda: The Preventable Genocide
E.S.17. [T]he Belgians ... were guilty of ... the institutionalization of rigid ethnic identities for political purposes. [...]
E.S.18. At the same time, Habyarimana called on his foreign friends for military help. ... [France’s] forces prevented a swift RPF victory over the inept Rwandan army, and French soldiers and advisers remained in the country counselling Habyarimana’s people politically and militarily on keeping these “anglo-saxon” interlopers from English-speaking Uganda at bay. The Habyarimana government learned it could always count on the unconditional public and private support of the French President and government.
‘12 lessons from the Rwandan genocide’
The eighth lesson is that the West is partially responsible for what happened - from the Belgium's deliberate amplification of the ethnic differences within the Rwandan people for their own ends in the first half of the century, through Belgium's tacit support of the massacres of Tutsis in the 1950's and '60's, to the French moral and military support of the clique that ultimately led the genocide [...]
8. Success for PHR-UK as government bans use of strip cells for to suicide prevention
Philip Knight got into trouble stealing from a young age, so he ran away. He was put into care, stole a handbag and was put into a semisecure home run by the local authority, which has since been closed because of bad practice and abuse of the children. When he attempted suicide Philip was put into Swansea prison. When he attempted suicide in the prison, he was put into a strip cell on the hospital wing by the medical staff. Philip was 15 years old. Such treatment would not have been legal in local authority care or if administered by his parents. He was found guilty when he went to Court the next morning, and by the evening he was dead. He had hanged himself in the hospital wing. The last thing a child of 15 needed was solitary confinement and sensory deprivation.
A strip room has been described as a cell of bare stark stone, often without decoration, with little or no natural light and containing only a mattress, a terylene blanket and perhaps a cardboard chair. The occupant must don terylene clothing, is allowed no possessions and is deprived of intellectual and social stimulation except for periodic observation by a prison officer. Soliday demonstrated that 67% of secluded patients saw such confinement as a punishment and 51% found it humiliating (1).
Last year there were 91 self-inflicted cell deaths in the UK, the highest number ever recorded. The current suicide rate in prison has more than doubled from the figures for 1991 and 1992 of 42 and 41 respectively. One third kill themselves awaiting trial. Most are under 30 years of age - this latest total includes two 17 year olds. In contrast to people who commit suicide in the community, where up to 90% may have a history of psychiatric illness, only 30% of prison suicide cases have a psychiatric history - dropping to 13% in the under 21 age group (2).
The Chief Inspector of Prisons concludes that overcrowding and ineffective management are the cause of prison suicides to reach record levels. He was recently quoted in The Daily Telegraph (29 August 2000) as saying that the Prison Service had "very good" policies on preventing suicide, but they were not implemented and staff were not disciplined for failing to follow procedures. His comments echo those of other commentators down the years.
Clare Bosley's suicide took place within minutes of her arrival at Holloway prison – as a result of a failure to implement suicide prevention guidelines. While Clare had been held in police custody she made repeated attempts to take her own life. Police care had been exemplary and they sent ample warning to the prison authorities. On her arrival at Holloway she should have been identified as a high suicide risk not only as a result of these warnings but also by virtue of her offence of domestic murder, because she was in prison for the first time and because she was extremely disturbed. On entering the prison Clare was placed alone in a pre-search holding room. No one saw Clare Bosley alive again. A window into the room was fitted with a two way mirror, unfortunately facing the wrong way for staff to observe prisoners. No one was watching the close circuit TV that was covering that area. Clare remained unnoticed for an hour and a half, until her body was found on the floor of the toilet in the holding room. She had choked herself to death by swallowing toilet tissues down her throat in an exact repeat of her earlier attempt on her life when she was in police custody, as had been written in detail on the 'exceptional risk' form.
PHR-UK has long campaigned against the use of strip cells for people at risk of suicide. This is an area where the unique expertise of health professionals can assist decision-makers in determining the human rights aspects of the treatment of detainees. Because human rights laws are viewed as living instruments, their standards constantly evolve in the light of developing knowledge. The Council of Europe's Committee for the Prevention of Torture and Inhuman or Degrading Treatment (CPT), for example, is generally viewed as holding a more enlightened view of detention conditions than does its Court of Human Rights. Both the CPT and the UN Human Rights Committee have adopted General Comments which caution that solitary confinement may amount to inhuman or degrading treatment.
PHR-UK has held three meetings on prison medicine, and suicide was a major issue in each. The two cases described above were analysed at these conferences. In her presentation at the 1993 PHR-UK conference, Frances Crook of the Howard League for Penal Reform, angrily related how Philip was allowed to commit suicide in Swansea Prison. Deborah Coles, a co-director of INQUEST, described Clare Bosley's death in Holloway, to our 1996 conference. PHR-UK has taken the view that solitary confinement should only be used in very exceptional circumstances and where it is subject to medical supervision. In a BMJ editorial PHR-UK condemned the use of strip cells for potentially suicidal prisoners as possibly damaging and certainly inhumane and counter-productive (3).
On 30 March 2000 the prison service issued instruction 27/2000, which announced the immediate elimination of the use of strip cells in the management of prisoners identified as being at risk of suicide or self injury. PHR-UK welcomes this as a positive step in respecting the human rights of prisoners.
1. Soliday SM. A comparison between patient and staff attitudes toward seclusion 1985 J Nerv Ment Dis. Vol 173 (5) 282-286
2. Liebling A. Suicides in prison. 1992 London Routledge
3. Hall P. Seclusion in prison cells. BMJ 1993; 307 : 399-400
Nigel S. Rodley, The Treatment of Prisoners Under International Law 2nd edition 1999 Oxford; Clarendon Press.
Andy Golding, Interview with Modechai Vannunu, Sunday Times, April 19, 1998.