1. PHR-UK members get the gov't legislation on the ICC
Members responding to a suggestion in our last newsletter that they write to their MPs and ask them to urge the Government to ensure that the necessary implementing language to enable Britain to ratify the Statute of the International Criminal Court was included in the Queen’s Speech of last November were rewarded when they heard the Queen announce that draft legislation would be introduced.
We should pause to congratulate ourselves for this good work. We don't often ask members to write their MPs, but we should all be glad we did, because early ratification of the ICC is very important in the struggle against those who commit genocide, crimes against humanity and war crimes.
2. United Nations Attends PHR’s Tenth Birthday Party
Awarded the singular of honour of hosting the International Federation of Health and Human Rights Organisation’s [IFHHRO] annual meeting, PHR-UK decided to do things in style, organising a two campus conference at BMA House in Tavistock Square, in conjunction with the BMA, who have observer status at IFHHRO, and at All Saints Conference Centre in St. Albans. Because the conference was held within days of PHR-UK’s tenth anniversary, a second version of the birthday cake familiar to members who attended our October AGM appeared and was shared by 45 confreres, amidst the flash of innumerable cameras.
As the organisers of the conference, PHR-UK got to have a say in the conference programme, and opted to devote Saturday 20th November to a consideration of the Right to Health. As members know, a year earlier, PHR-UK had urged the UN Committee on Economic Social and Cultural Rights to organise a discussion day on the right to health, with a view to adopting a General Comment on it. The Right to Health is the subject of the International Covenant on Economic, Social and Cultural Rights [International Covanent of Economic Social and Cultural Rights], the twin treaty to the International Covenant on Civil and Political Rights. These two covenants codify the rights set out in the Universal Declaration of Human Rights and are binding on States which ratify them. At present, 142 States have ratified International Covanent of Economic Social and Cultural Rights. They elect a Committee of 18 individual experts to monitor the implementation of the covenant. The Committee regularly meets with State delegations in Geneva to review their progress, and makes recommendations to them. In November 1998, the Committee made recommendations to Israel which reflected PHR-UK’s findings during its 1997 investigative visit. The Committee also publishes General Comments, which indicate to States how they should approach the implementation of particular Articles in the Covenant. Past General Comments have included the right to housing and the use of economic sanctions.
Having successfully suggested that the Committee seek to adopt a General Comment on the Right to Health, PHR-UK believed that it could assist the Committee if it invited the Committee members currently responsible for drafting a general comment on the right to health and the right to education to take advantage of the presence of IFHHRO experts from all over the world in London and share their concerns with them.
The Committee members willingly accepted PHR-UK’s invitation to spend a weekend out of Geneva in the Hertfordshire countryside. In addition, Washington based Dr. Audrey Chapman, of the American Association for the Advancement of Science, generously agreed to chair the day long session. Dr. Chapman is a widely published expert on the right to health, who is closely familiar with the Committee’s work. Dr. Chapman circulated a discussion paper on the minimum core content of the right to health. Dr. Brigit Toebes and Dr. Maria Green, of the New York based International Anti- Poverty Law Center, circulated a preliminary draft proposal on the General Comment, with annotations. Also, a number of staff from the World Health Organisation braved Geneva’s snow bound airport to attend. These included Fillipa Bergin, from the Department of Reproductive Health, and Steven Oleijas, who is responsible for liaison with the human rights treaty monitoring committees.
Committee on Economic, Social and Cultural Rights member Dr. Paul Hunt, a lawyer from New Zealand, commenced by giving an outline of the Committee’s approach to State obligations under the treaty. He said that the treaty language must be interpreted within the current context because human rights documents are traditionally seen as living documents. He explained that the Committee held that the non-variable dimension, which applied to all States, such as the principle of non-discrimination or the core content, as well as a variable dimension, which varied between States and within States over time, and was guided by benchmarks and indicators
The Committee member and Special Rapporteur Dr. Eibe Riedel - who although not medically trained has been appointed by the Committee on Economic, Social and Cultural Rights to coordinate the programme - said that the meeting would help him plan his approach. He pointed out that human rights were traditionally approached by States at three levels. Respect implied not preventing the enjoyment of a right. Protect implied ensuring that nobody else prevented the enjoyment of a right. Fulfil implied assisting in obtaining the enjoyment of a right. He explained that the Committee was concerned about availability, affordability, accessibility and quality of the right to health. Were there perhaps twenty key drugs that should be available to all ? What constituted reasonable access for vulnerable people, such as children or disabled persons ? Dr. Riedel suggested that the Committee should try to establish a set of Right to Health indicators for each State. These could be in such areas immunology or percentage of gross national product spent on health. The Committee would then try to identify, through dialogue with each State, the particular benchmark to be achieved by the State over the following five years.
There followed a lengthy discussion, as IFHHRO members sought to test the Committee’s approach to particular problems with which they were familiar from South Africa, Peru, India, Israel and elsewhere. The major problem of obtaining reliable data from certain States was raised. WHO staff provided a number of valuable insights. Members then turned their attention to what might constitute a core content of the right to health that all States would be obliged to ensure. This resulted in a draft text. The Committee members pronounced themselves very satisfied with the day’s work, and offered to make a draft General Comment available to members in February for further observations. Readers unfamiliar with international relations might be surprised to learn of human rights committee members and WHO staff taking off from Geneva to meet with health and human rights experts from around the globe assembled in London. In fact, such informal meetings away from the traditional settings are a regular feature of diplomatic work, and often bring about breakthroughs of one sort or another. Not all of them have birthday cake as well though.
Suggested reading on the Right to Health:
Brigit Toebes, Towards an Improved Understanding of the International Human Right to Health, Human Rights Quarterly Vol. 21 No. 3 August 1999: 661 ˆ 679.
Aart Hendricks, The Right to Health in National and International
Jurisprudence, European Journal of Health Law 5 1998: 389 ˆ 408.
Virginia Leary, The Right to Health in International Human Rights Law,
Health and Human Rights Vol. 1 No. 1 Fall 1994: 24 ˆ 57.
3. News of Members
In November 1999, Harold Hillman (Hon Sec of PHR-UK) attended a meeting, hosted by Oury Clark Solicitors, with staff of the BMA, Amnesty International - Medical Section and others to discuss ways of supporting legal activities on behalf of prisoners facing the death penalty .
In November 1999, Christina Pourgourides (PHR-UK Exec Cte member) delivered a paper at the London International Conference at BMA House on research she carried out into the mental health implications of detention of asylum seekers in the UK. She also visited Romania, where she spoke about PHR-UK's Special Study Module on Medicine and Human Rights.
In November 1999, Sheila Cassidy (PHR-UK member) addressed the London International Conference at BMA House on Doctors as witnesses: a personal perspective, in which she described her experience of torture in Chile
In December 1999, Derrick Pounder (former Chair of PHR-UK) had his workshop contribution Understanding and Documenting External Signs of Trauma on the Body, published in Amnesty International's report Forensic Medicine and Ethics: A workshop on the application of forensic skills to the detection and documentation of human rights violations, Durban, South Africa 3 - 5 July 1998 [AI Index: ACT 75/12/99].
In January 2000 Peter Hall (current Chair of PHR-UK) participated in a BBC World Service radio debate about Senator Pinochet’s state of health and the Home Secretary’s expressed intention to end extradition proceedings against him.
He also gave a presentation on PHR-UK to the Royal Colleges International Forum on January 19th.
4. AGM resolution to change the objects of PHR-UK
The Charity Commission, having considered PHR-UK’s submission for charitable status, recommended altering the objects of the organisation to the following
1. To assist people who are in need or sick, who are or have been the victims of torture or other contraventions of their human rights and the families of such people, and to assist them in gaining redress for their suffering.
2. To advance education by raising awareness of human rights including the provisions of the Universal Declaration of Human Rights (UDHR).
3. To assist people who are in need who are or have been the victims of torture or other contraventions of their human rights and the families of such people in obtaining financial and legal assistance.
4. To procure the abolition of torture and other contraventions of human rights of people by all lawful means including without limitation providing information and other assistance to States or governments prosecuting torturers and those who conspire with them. The expression "human rights" shall mean rights, which A) member States are called upon to promote and secure under the Universal Declaration of Human Rights; or B) contracting States are bound to secure under the European Convention on Human Rights.
The motion that PHR-UK adopt the revised objects as shown above was formerly proposed to the members present at the 1999 AGM and passed unanimously. In December PHR-UK became a charity in accordance with the wishes of the 1998 AGM, in order to be able to obtain the tax breaks, to be able to provide better value to members who made donations to PHR-UK and to attract donations from outside.
5. The Right to Health - Article 12 of the International Covenant on Economic, Social and Cultural Rights
The address "A right to health" was originally to have been presented at the international conference Setting the Millennium Agenda for Medical Groups at BMA House on 19th November 1999, by Dr Brigit Toebes – a specialist in international law from the Netherlands. Unhappily, an expertise on the Right to Health (as is true of the Right itself) does not guarantee immunity from illness. Peter Hall spoke the words on behalf of Dr. Maria Green who had became indisposed, she having agreed to stand in for her colleague, Dr. Toebes, when she had also become indisposed.
At the prompting of PHR-UK the UN Committee on Economic, Social and Cultural Rights recently chose to proceed with a General Discussion on Article 12 of the International Covenant of Economic Social and Cultural Rights. Various bodies, including the International Anti poverty Law Centre, will be preparing papers to submit the the Special Rapporteur appointed to coordinate the development of the General Comment on behalf of the Committee. Here Dr. Maria Green outlines the elements the International Anti poverty Law Centre sees as important in the General Comment
The Right to Heath, as used in the context of the United Nations, is derived from law. It is based on an international law which the states of the United Nations formulated themselves, after years of negotiating, some might say horse-trading, over alternative phrases and concepts, and finally ratified. The Right to Heath is not a notional, or moral right. It comes from written text and as such it needs to be thought about and interpreted. Thus, the Right to Health is what the law says it is, not what anyone might feel it should be - such as a right to live to be 130.
Article 12 of the International Covenant on Economic, Social and Cultural Rights, which has been ratified by 142 countries, entered into force nearly a quarter of a century ago. In that time it has never been the subject of a General Comment by the UN Economic, Social and Cultural Right committee, that would have the effect of promoting better understanding and hence better implementation by all state parties.
The proposed General Comment on Article 12 will be the most authoritative interpretation of what Article 12 means, because the Committee on Economic Social and Cultural Rights is the most authoritative body that can rule on what it means.
The view of Brigit Toebes and Maria Green of the International Anti poverty Law Centre is that the General Comment should incorporates the following principles:
1. The Right to Health incorporates two essential components
i). Health care
ii). preconditions for health such as adequate safe water and sanitation, health codes and inspections, healthy environment, health related information
2. All aspects of the right to health including healthcare and underlying precondition can be understood as possessing 3 essential features
i) Availability includes adequate amounts of facilities goods services eg hospitals, trained medical, personnel, medicine, sanitation plants etc
ii) Accessibility has three overlapping dimensions
physical accessibility - facilities within reach, eg clean water within reach economic accessibility - affordability of services eg health and water non-discrimination - service available to everyone
iii) Quality - competence and functioning of goods services and facilities
3. The right to health imposes obligations on state parties. These obligations come in three levels or types
i) The obligations to respect a negative measure to avoid measures which hinder the enjoyment of the right to health eg blocking access to hospitals and treatment
ii) The obligations to protect eg to prevent
others hindering the enjoyment of the right to health such as firms polluting water
iii) The obligations to fulfil (facilitate) means to provide where individuals themselves cannot.
Thus, to sum up, the state must respect, protect and fulfil the three aspects of the right to health - namely availability, accessibility and quality of healthcare, and the underlying preconditions for health. These are broad principles - the interpretation of exactly what these mean in practice depends upon experts such as doctors to define.
6. PHR-UK Human Rights Course at Summer School
PHR-UK's Bernie Hamilton, who lectured on the courses at St. George's Hospital Medical School and the London School of Hygiene and Tropical Medicine, reviewed in our Newsletter of Summer 1999, is to direct Birkbeck College's first ever human rights summer school this July. He will use some of the material from PHR-UK's Special Study Module (SSM) on Medicine and Human Rights developed and taught by Derrick Pounder and Rachel Maxwell at Dundee University.
As soon as Bernie joined PHR-UK, Rachel Maxwell contacted him about the possibility of updating the SSM, which was devised in 1996. There are a few changes to be made, for example the Conference on Security and Cooperation in Europe has changed its name to Organisation on Security and Cooperation in Europe, and Bernie would like to see the recent progress in the right to health reflected in the course.
Essentially though, the SSM has the basic material to provide a good grounding in health and human rights. It contains material on the nature and development of human rights, redress mechanisms, torture and death in custody, doctors and torture, the death penalty, public health control and HIV/AIDS protection, rape as part of an attack against civilians, and on asylum seekers.
Bernie plans to use some of this material in the new Birkbeck course Human Rights for the Twenty-first Century, which will cover developments in criminalising human rights violations, opposing torture, the growing voice of civil society and increased interventions by the United Nations.
The advantage of the material is that it contains basic instruments and cases, it is carefully edited to highlight differences and similarities, it is tried and tested and it costs the students absolutely nothing. Bernie taught a similar course for the Soros Foundation in Ukraine in 1996, and wishes he had had the material then. He is sure it will be widely appreciated by the students and lead to many more hits on the PHR-UK Website.
Bernie runs a number of courses for Birkbeck College. A ten week course on International Responses to Genocide starts at the LSE on Tuesday 18 January. A one day course on torture prevention will be held at Russell Square on Saturday March 25, with speakers from the Medical Foundation, Redress, the European Committee for the Prevention of Torture and the UN Commission on Human Rights. A two term course on International Human Rights commences every October. PHR-UK members are frequent and enthusiastic participants. Details of the courses and booking can be had from Carol Watts, at Birkbeck College, on 0171-631-6652.
PHR-UK's Medicine and Human Rights Special Study Module, is available free at http://www.dundee.ac.uk/med&humanrights/SSM/welcome.html
7. Human rights into the 21st century
There is much for human rights supporters to feel good about, as we enter the 21st Century. The new International Criminal Court (ICC) is coming into existence. In Rome on July 17, 1998, 120 nations voted to create a permanent ICC to try war crimes, crimes against humanity and genocide. Only seven nations opposed the measure, including Iraq, China, Israel and the United States. The ICC will be created when 60 nations ratify the Rome Statute, which is expected to occur by 2002. It will be headquartered in The Hague, with 18 judges and its chief and deputy prosecutors elected by a majority of nations that have ratified the statute. Only nations that have signed and ratified may contribute judges and prosecutors. Over 90 nations have now signed the Rome Statute, including all NATO allies except for the US. Five have ratified.
Dr Jenny Tonge MP, who spoke at PHR-UK's 1998 AGM and last year hosted PHR-UK's launch of the Palestine report at the Houses of Parliament, sponsored an early day motion in December 1999 urging the UK government to ratify the treaty as soon as possible.
The landmark decision that the extradition of General Augusto Pinochet to Spain was legal has transformed the context within which human rights activists and perpetrators alike exist. For the first time the prospect of life long impunity can no longer encourage ruthless leaders and demoralise survivors and those who resist tyranny. From now on, no person, from head of state down to least significant accomplice, is protected from the international laws that any country they visit has ratified. PHR-UK is very proud of the part is has played in the Pinochet case, having written to the Home Secretary on 4 occasions and called a meeting attended by Amnesty International, the Medical Foundation for the Care of Victims of Torture, Redress, United Nations Association and the Federation of International League of Human Rights.
Meanwhile there had been important developments in international justice elsewhere. In September 1998, in the first ever judgment on the crime of genocide by an international court, the International Criminal Tribunal in Rwanda, convicted a former Rwandan mayor for his role in the 1994 Rwandan genocide. African Rights, the human rights organisation with which PHR-UK cooperated over documenting the Rwandan genocide, wrote of the mayor "During the hundred days genocide of the Tutsi in Rwanda, Akayesu distinguished himself by the frenzy with which he sought his prey".
Among the historic aspects of the decision was the the fact that Akayesu was found guilty on one count of genocide because he encouraged acts of rape and sexual violence against Tutsi women. The Tribunal judgment determined that rape and sexual violence ''constitute genocide in the same way as any other act as long as they were committed with the specific intent to destroy, in whole or in part, a particular group, targeted as such''. That decision is also a remarkable precedent, particularly since only months previously, delegates attending the Rome conference to set up the ICC heatedly debated whether to include a broad range of acts of gender-based violence among crimes against humanity. (Most such acts, including rape, were eventually placed within the Court's jurisdiction.) According to a United Nations statement the judgment and the first ever sentence on genocide ''will bring to practical life the lofty ideals of the Genocide Convention. Through the Tribunal, the Convention has been lifted from the statute books to become, 50 years after its adoption in the wake of the Holocaust, a testament to the world's renewed determination to collectively tackle genocide in a manner it never has before.”
The idealism that followed the First World War created the League of Nations whose moral authority was intended to override the power of single nations, but it failed. Similarly, after the Second World War the United Nations was founded in another paroxysm of idealism, but its effectiveness depended upon voluntary agreements and sets no external constraints. Now, at the beginning of the 21st century, globalisation and international co-operation are changing our perceptions of state sovereignty. The interventions in Kosovo by NATO and in East Timor by the UN are proof that the international community will not always look the other way when gross violations of human rights are taking place. From Sierra Leone to Sudan to Angola to Cambodia and to Afghanistan, there are a great number of peoples who need a real and sustained commitment to help end their cycles of violence, and launch them on a safe passage to prosperity. There are hopeful signs at the beginning of this new century that the international community will assume a greater responsibility for ending the terrible crimes that take place hidden behind hitherto inviolate borders.
We, as members of PHR-UK, can be proud of our contribution to this progress over the past ten years and look forward to the next century with hope and confidence.
8. Healing Wounded People
The following is excerpted from a lecture South African Justice Richard J. Goldstone delivered at the U.S. Holocaust Memorial Museum on Jan. 27 1997. Goldstone was Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda. He now sits on South Africa's Constitutional Court.
Judge Goldstone entitled his lecture "Healing Wounded People," noting that "too infrequently is justice looked at as a form of therapy for victims who cannot really begin their healing process until there has been some public acknowledgment of what has befallen them."
Judge Goldstone has given his express permission to reproduce this article here.
The one thing I have learned in my travels to the former Yugoslavia and in Rwanda and in my own country is that where there have been egregious human rights violations that have been unaccounted for, where there has been no justice, where the victims have not received any acknowledgment, where they have been forgotten, where there's been a national amnesia, the effect is a cancer in the society. It's the reason that explains, in my respectful opinion, spirals of violence that the world has seen in the former Yugoslavia for centuries and in Rwanda for decades, to use the two obvious examples.
When I go to Belgrade and Zagreb and Sarajevo, but particularly to Belgrade, I'm treated to history lessons. I'm told about the terrible things that the others did to Serbs through the ages. The history lessons often begin with what happened to the Serbs in the Second World War at the hands of the Ustashe, the Croatian groups tha aided and abetted and made common with the Nazi leaders. No justice was brought in any real way to Serbs at that time, or at other times, to Croats, or at other times to Muslims in Bosnia and Herzegovina. So justice can make a contribution to bringing an enduring peace, and to allowing reconciliation to take place when a people have gone through that sort of history, particularly recent histories of serious violations.
I would suggest there are several important contributions that justice can make in that situation. The first is the exposure of truth and the avoidance of collective guilt. The problem in the areas I have been talking about is that individuals are not blamed for the terrible things that have happened. Individuals are not blamed for what befell the Serb people in the Second World War. Individuals are not blamed for what happened when Hutus went at Tutsis and Tutsis went at Hutus. People are blamed. A people, an ethnic group, a religious group is blamed, and not individuals.One of the important benefits of Nuremberg is that when one sees the photographs of the Nazi criminals in the docket at Nuremberg, one doesn't see representatives of all the German people; one sees Nazi criminals, because that's what they were .
It's important, too, because not only is there the question of individualising guilt, but what goes with it is the recording of the truth, the recording of the history. And that's the second benefit. Because the Nuremberg trials made it -- I would have liked to have thought impossible but that's unfortunately not so -- extremely difficult for Holocaust deniers because the evidence had been collected in a formal way; it had been carefully sifted by prosecutors, carefully weighed by judges, and the record is there for anybody who can read to learn from it. It doesn't take hours after human rights violations for the denials to begin, for the fabricators to begin their dirty work of covering up what happened. Justice plays a vital role in stopping that fabrication, in stopping that cover-up, which is inevitable. (Healing wounded people - c’ted
The third advantage that justice can bring is the acknowledgment of victims. In most criminal cases in a country, certainly in a great number of criminal cases, the victims know what happened to them. And in most cases they know who the perpetrators were, so they don't need justice to tell them what happened.
But they still want justice. They still go and make a complaint and they still want the perpetrator brought to court, not only because they want retribution, but because they want a public acknowledgment, an official acknowledgment of what happened to them. It's part of the healing process.
That's been our experience in the Hague [the site of the International Criminal Tribunal for the former Yugoslavia]. Witnesses have come from small villages, terrified; they have never travelled before and they find themselves in an alien country. They don't speak Dutch. They're not used to being under witness protection in a comfortable hotel room. The food isn't what they're used to.
They come terrified, broken people. With few exceptions, they all choose to give evidence in public. They're given the option of doing it with their identity concealed. They don't want that. They've told us they want their voices to be heard. They want their faces to be seen because they're speaking not only for themselves but for other victims in the areas, in the country from which they come.
And when they leave the Hague, they are different people. Their healing process is able to begin because they feel they were able to play some role in restoring the pride, the wholeness of not only themselves, but of other people who went through what they did. . . .
And [finally], the deterrent. Criminal justice is an important deterrent.. What deters would-be criminals is the fear of getting caught and punished not the law, not death sentences, not life imprisonment.. I'm not suggesting that the severity of punishment is irrelevant. But the most relevant and most important [thing] is the fear of apprehension.
It's no different in the international community, with war crimes. If political and military leaders in any country think there is a likelihood that the international community is not going to stand by and allow them to commit war crimes with impunity, if they really believe that there is a prospect of coming before an international court, they are going to think twice about it. It's not going to stop it forever any more than the best police force in the world is going to wipe out all crime. It curbs; it puts an important break on that sort of criminal conduct.