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Volume 15 No 3 Autumn 2004
  • 1. PHR-UK attends UN session in Geneva to discuss the UK and torture
    PHR-UK Committee member Dr. Helen Bygrave flies to Geneva this month to attend the UN Committee against Torture’s (CAT) meeting with a UK Government delegation to review the UK’s compliance with its obligations under the anti-torture treaty.

    Dr. Bygrave will also address a formal meeting of CAT on behalf of PHR-UK. The meeting is to enable NGOs to share their concerns with the Committee on the eve of the Committee’s meeting with a delegation of UK officials. The meeting with the UK was originally scheduled to take place in May 2005, but was advanced to this year following receipt of a fax from PHR-UK expressing its concerns.

    PHR-UK has raised a number of concerns in a written submission to CAT. These include:

    1. the lawfulness of detention within the UK;

    2. health provision in places of detention, including prisons;

    3. the use of evidence obtained from torture;

    4. the use of force with failed asylum claimants;

    5. the failure to protect detained citizens and residents from torture overseas;

    6. extradition to a State where there are substantial grounds for believing a person would be in danger of being tortured;

    7. the role of UK officials in interrogating detainees overseas;

    8. and the training of professionals who encounter detainees.

    Dr. Bygrave will focus on prison health, a topic that other NGOs are less likely to discuss. She previously attended the meeting of UK NGOs with the UN Committee on Economic, Social and Cultural Rights (CESCR) in May 2000, at the time it was adopting its General Comment on the Right to Health – a PHR-UK initiative. She has also assisted UN Special Rapporteur on the Right to Health, Professor Paul Hunt in his work on leprosy in India.

    PHR-UK’s AGM conference at the Middlesex Hospital on December 4 will discuss the UK’s compliance with the anti-torture convention, and CAT’s conclusions on this.

  • 2. Pinochet’s destiny with justice - still dependent upon doctors

    On September 30th, General Augusto Pinochet underwent his fourth mental capacity assessment in as many years. As a former head of state, Pinochet has enjoyed immunity from prosecution in Chile, but his impunity has recently been successfully challenged by prosecutors investigating a series of deaths and disappearances of political opponents of the former dictator in the mid-1970s. The latest mental tests were ordered by Judge Juan Guzman to help him decide whether he can try Pinochet for his role in "Operation Condor", a joint scheme by the secret services of the South American dictatorships of the 1970s to eliminate dissidents. According to court papers in this case, 25 Chileans were killed in the operation.

    It is estimated that more than 3,000 political opponents of the former dictator were killed under his rule, which lasted from 1973 to 1990. Human rights groups believe more than 100,000 people were tortured or detained while the military governed. The recent publication of a chilling official report containing 35,000 testimonials of political imprisonment or torture during the long right-wing dictatorship has jolted the country.

    In a surprise reversal of policy shortly before the report was published, the Chilean army, for the first time, assumed institutional responsibility for widespread human rights violations during that period. The military and its officers, including Pinochet, had until now, insisted that the abuses were the individual responsibility of officers acting beyond official institutional policies. A general amnesty decreed by Pinochet in 1978, protects the military and police officers suspected of involvement in murder or torture. Although a few military officers have been jailed for what the courts have labelled permanent kidnappings, which are not covered by the amnesty because they are considered ongoing crimes, an estimated 500 people could face prosecution if the appeal against the amnesty law is successful.

    3 years ago, after what was his third assessment, Pinochet was spared trial when doctors in Chile decided he had moderate dementia. It had been the first assessment, by a panel of three doctors in the UK, that first established the diagnosis of dementia. On the basis his dementia rendered him incompetent to face a trial, Jack Straw, the then UK Home Secretary, allowed Pinochet to return to Chile in early 2000. He had been in England for 503 days on a warrant issued by the Spanish judge Baltasar Garzon, who wanted Pinochet extradited him to Spain on torture charges regarding Spanish nationals in Chile.

    Judge Guzman appointed three doctors to carry out the latest mental examination. He allowed Pinochet's defence to pick one, and lawyers for the relatives of the victims to select another. The judge chose the third doctor. Most people had believed the general would live out his final days in peace but he made the mistake of giving a lengthy television interview to a woman Cuban-American journalist which was broadcast on an anti Castro TV station to mark the 30th anniversary of his coup against the democratically elected President Allende. Human rights lawyers argued that Pinochet seemed lucid enough during the prolonged interview in which he was able to reconstruct events of three decades ago, speak fluently, make jokes and strongly defend himself. In the event the 3 doctors failed to agree as to whether the former dictator's health allows him to stand trial. Two of the doctors considered him unfit to plead; the other concluded that he could stand trial.

    Doctor Sergio Ferrer, appointed by Pinochet's defence team, said in his report that the 88-year-old retired general's "mental-physical condition has worsened notoriously since the exams taken in 2001. The degree of dementia remains at a moderate level," Dr Ferrer added, calling the condition "irreversible". But Dr Martin Cordero, selected by lawyers for the victims, disagreed stating that Pinochet "is competent to understand, discriminate, decide, inform and defend himself from charges". On the other hand Jorge Tapia, the doctor picked by the judge, and whose report is considered as probably decisive, said that Pinochet indeed "suffers from dementia in a moderate degree". Judge Guzman plans to meet doctors and the lawyers for both sides before reaching a decision.

    Controversy has dogged Pinochet's previous assessments too. The conclusions of the third evaluation, that he did not have the capacity to face trial, was sharply criticised by appropriately qualified and informed Chilean doctors as being unreliable (1). Similarly, criticism was levelled by two London psychiatrists specializing in old age and by the senior clinical psychologist from the UK-based Medical Foundation for the Care of Victims of Torture, at the validity of the British findings of incompetence - a stance supported by the second assessment, which took place in Chile shortly after Pinochet returned, that found he was competent. (1,2). As PHR-UK commented at the time, public confidence in justice and in the skills and integrity of the medical profession, can only have been eroded by these conflicting determinations and the associated professional disquiet.

    During Pinochet’s sojourn under house arrest in England, PHR-UK had maintained an advisory correspondence with the British Government, starting immediately after Pinochet’s arrest in 1998. The first letter to Jack Straw, anticipating that a medical assessment might be pivotal by over a year, had emphasised the crucial importance that the independence of any medical assessment be beyond dispute.

    Immediately the British panel’s conclusions became public, PHR-UK faxed the Home Secretary to 'respectfully insist' he publish the details of the examination of the man against whom prima facie evidence of culpability of crimes against humanity existed. Jack Straw declined, claiming patient confidentiality as paramount. Yet, as PHR-UK argued, the right to confidentiality is relative rather than absolute, and can, indeed must, be waived if there are compelling reasons, particularly those involving the risk of death or serious harm (3). Further, much personal health information on Pinochet was already within the public domain, to the extent that little remained other than the criteria upon which the diagnosis of dementia was based - the existence of which was implicit in the published conclusions. The medical world is important, yet exists within a larger universe. Whilst ethical codes are road maps that guide medical practice they should be based upon, if not subordinate to, human rights, rather than vice versa (4,5).

    The British human rights group, REDRESS, holds that adequate reparation for human rights abuse includes the victim's active participation in the judicial process of prosecution; compensation for injuries, pain and suffering (including mental suffering) and loss of earnings for the victim and immediate family members; physical and psychological rehabilitation; restitution of rights such as employment, pensions, services, property, and reputation; and prevention of recurrence. An explanation justifying the finding of Pinochet's incompetence to stand trial would have been integral to this process, but was denied them.

    Pinochet's anticipated trial in Spain, following his expected extradition from Britain, was considered likely to set a precedent that would transform the milieu within which human rights activists and violators alike existed. It had been expected that the exercise of universal jurisdiction encountered by such a high profile former head of state would help deter torturers globally, and reduce humanity's burden of terror, ill health, and psychological harm resulting from torture, or fear of torture.

    PHR-UK’s position is that the rights of surviving victims, and of relatives of murdered victims of the Pinochet regime to fully comprehend the decision denying the alleged principal perpetrator's competence to stand trial, should have taken precedence over his right to confidentiality. Further, the global importance of the circumstances, allied to the principle that justice must not only be done but be seen to be done, both militated for full disclosure. To these arguments might now be added the need to safeguard the credibility of medical assessments to judge competence given the contradictory subsequent findings. As a contemporary Lancet editorial put it, "[w]ithout complete transparency, even independent-minded physicians who assist the judicial process of democratic nations can find their opinions manipulated for political purposes" (6)

    The immediate fate of General Pinochet still hangs in the balance, as the world closes in on him from other directions. His standing in Chile has been damaged by a US Senate committee’s disclosure earlier this year that he had $8m in secret offshore accounts. Also, Pinochet has been under investigation since the US Senate found that Riggs Bank, of Washington, funneled funds to Pinochet during his 503-day house arrest in London. The Riggs accounts held between four million and 15 million US dollars, but the former dictator's family has been unable to establish their provenance, leading to a corruption investigation.

    Concurrently, Chile's State Defence Council has opened its own investigation to discover whether the General defrauded the government of the funds and the country's tax service has also opened an investigation against General Pinochet for filing "intentionally incomplete" declarations of income. Lastly, Riggs Bank has disclosed that a Spanish judge, none other than the Baltasar Garzon, is seeking damages from the Riggs executives and directors for allegedly concealing Pinochet's assets.

    1. Arie, S. Doctors concerned over Pinochet verdict. BMJ 2001;323:130 ( 21 July )
    2. Critique of Pinochet's UK psychological assessment filed in court 3/7/2000. Medical Foundation for the care of Victims of Torture
    3. Dyer, C. Pinochet's opponents call for medical evidence to be made public BMJ 2000;320:204
    4, Leaning, J Human rights and medical education. BMJ 1997;315:1390-1391
    5. Leaning, J Health and human rights BMJ 2001;322:1435-1436
    6. Anonymous. When doctors become agents of the state. Lancet 355, 9200: 245

  • 3. NEWS FROM NEW YORK

    The UN Secretary General

    The United Nations General Assembly is in full swing in New York, and there is evidence of a growing resistance to any attack on the rule of law as part of the ‘war on terrorism’. Secretary General Kofi Annan opened the proceedings by reminding members of the importance of adhering to international law in Iraq, and said that Iraqi prisoners in Abu Ghraib had been disgracefully abused. Mr. Annan has taken a consistent line on the invasion of Iraq since its beginning, when stories began to circulate of the bugging of his office and a US request to the UK to heighten its eavesdropping so that Security Council members’ positions might be ascertained before the debate on military intervention. Mr. Annan views the military intervention on Iraq without Security Council authorization as unlawful, and in his address to the 2003 Commission on Human Rights, cautioned coalition members to observe international human rights and humanitarian standards. At that time, the US Ambassador objected to the Secretary General’s remarks, but it now appears that the Secretary General had taken soundings from the Red Cross, Amnesty International and other well-placed monitors.

    The UN Special Rapporteur on Torture

    The UN Special Rapporteur on Torture has also been highly critical of activities within and beyond Iraq. In a report scheduled to go before the UN General Assembly in December, Theo van Boven is reported to have said he has received information ''on certain methods that have been condoned and used to secure information from suspected terrorists.'' These involve such methods as, ''holding detainees in painful and-or stressful positions, depriving them of sleep and light for prolonged periods, exposing them to extremes of heat, cold, noise and light, hooding, depriving them of clothing, stripping detainees naked and threatening them with dogs.'' The UN Special Rapporteur notes that, ''(t)he jurisprudence of both international and regional human rights mechanisms is unanimous in stating that such methods violate the prohibition of torture and ill-treatment.'' Professor van Boven makes it clear that the ‘war on terrorism’ provides no justification for such violations

    The UN Secretary General’s Special Adviser on Genocide Prevention

    Although appointed to the new post only recently, Special Adviser Juan Mendez has already produced notes to the Secretary General on the situations in Cote d’Ivoire and on Dafur. Early in November Mr. Mendez cautioned against the government of Cote d’Ivoire’s takeover of radio and TV outlets and the xenophobic messages that have subsequently issued from those stations, including urging people to take to the streets. The Special Adviser has urged firmer action by the government and the judiciary, and reminded the Secretary General that the situation might be referred to the Office of the Prosecutor of the International Criminal Court should national courts fail to act. He has also suggested a readiness to expand UN and regional troops in the field.

    Regarding Dafur, the Special Rapporteur produced an eight-page report containing 21 recommendations following the visit there by himself and UN High Commissioner for Human Rights Louise Arbour in September. These recommendations to either the Sudan government or the international community covered: addressing differences in perception, ending impunity, promoting safe and voluntary returns, ensuring the provision of systematic information, enhancing the international presence, securing a comprehensive peace agreement and a coordinated international commitment.

    In November, Special Adviser Juan Mendez produced a further note on Dafur. Concerned that the situation was worsening, and that any evacuation of relief workers would heighten the chances of hostage taking, murder or the rape and sexual assault of women and girls, he called for an enhanced presence of military observers. Mr. Mendez also recommended that the international community should send a consistent message to all involved in Sudan on the importance of adhering to international humanitarian law. In addition, he advised that UN members who were able to provide materiel, financial or technical support to the African Union’s efforts to respond to the situation should do so urgently.

    The Special Rapporteur on the right of everyone to the highest attainable standard of physical and mental health

    The Special Rapporteur, who has undertaken country visits to Peru and Romania this year, again reported to the General Assembly this Autumn. He discussed the prominence of health issues within the Millennium Development Goals as well as the way in which health disparities affect indigenous peoples in many States. A substantial part of his report was devoted to a discussion of right to health indicators as applied to child survival. Professor Paul Hunt, indicated that a right to health approach to indicators would include such elements as being disaggregated, addressing a national strategy and action plan, participation, monitoring and accountability and international assistance and cooperation. The Special Rapporteur stressed that he was still developing ideas on indicators. When addressing PHR-UK’s Right to Health conference two years ago, Professor Hunt expressed an interest in the health professions. PHR-UK has a firm commitment to strengthening the bonds between the medical and the human rights communities, and is interested to seeing how Paul Hunt’s ideas on this develop during his tenure.

  • HUMAN RIGHTS AND LEPROSY
    Workshop on empowerment of women affected by leprosy:
    Chennai, India September 22-24th 2003

    Introduction

    Leprosy is one of the oldest diseases known to man. Before the introduction of an effective cure, people infected with leprosy developed physical deformities of the face, hands and feet. The outward disfigurement of sufferers led to a great deal of fear about the disease and many unscientific beliefs about its cause. Some believed it was a religious punishment for a sin committed or was due to venereal disease. Within the Hindu society it would also lead to a downgrading of caste. These beliefs laid the foundation for much of the stigma and discrimination that persists today.

    Due to their disfigurement and fear of the disease, leprosy sufferers are often abandoned by their families and community. For those who completely loose their place in society, begging becomes the only option to survive. Leprosy sufferers finding themselves in this situation would group together forming leprosy colonies or villages where these people lived together, away from the community.

    Since the introduction of Multi Drug Therapy (M.D.T.), which is a cure for leprosy, the number of cases worldwide has dropped dramatically. In 2002 620,672 new cases were reported worldwide. Although not eliminated (1/10,000 cases) in India, prevalence rates have reduced dramatically from 2.92 million cases in 1985 to 473,658 cases in 2002. By treating early with M.D.T. to prevent disabilities, and by combining a rehabilitative approach along with medical treatment, it is now hoped that the formation of colonies and ghettos can be prevented. However, despite awareness campaigns and sustained efforts by Governments and NGOs, an unwarranted amount of stigma still persists. Cured leprosy sufferers are still often abandoned by their families and are socially and economically excluded.

    The International Association for Integration, Dignity and Economic Advancement (IDEA) is a non- profit organisation based in twelve countries including India, Brazil and Japan and with members in thirty more countries. IDEA is the first organisation whose leaders are largely made up of people who have been affected by Leprosy. As an international support network IDEA works to end social isolation and social injustice, while promoting full and equal participation in society for people affected by leprosy and for anyone who has been marginalized from society by appearing to be different in any way.

    On 22-24th September 2003, IDEA India hosted a three day workshop on “Empowerment of Women Affected by Leprosy ”, sponsored by the Sasakawa Memorial Health Foundation. The aim of the workshop was to provide a forum for women to come together and share their experiences as leprosy sufferers. It was also an opportunity to hear how others had overcome their difficulties and to find out what support organisations such as IDEA could offer them. For many, this workshop was the first time they had considered human rights and how human rights might be used to help improve their situation.

    The meeting was attended by thirty five women from throughout India whose lives had been affected by leprosy. Many were well educated but lived in fear of revealing their diagnosis to their family or in their workplace due to stigma. Others had never left their leprosy colony, other than to go and beg in the nearby city. Among the participants, twenty had a physical deformity. Many had no physical deformity “except I am a leprosy patient”. One by one they told their stories revealing a host of human rights issues.

    Across all the areas discussed below discrimination and stigma are pervading themes and addressing these underlying beliefs is fundamental to a human rights approach to leprosy.

    The Right to the Highest Attainable Standard of Health

    With the introduction of M.D.T. and a cure for leprosy there has been a move in most parts of India to integrate treatment into the general health services. The World Health Organization elimination campaign has enabled M.D.T. to be available free of charge in the primary health care centres and patients can be treated as near to home as possible. Significant steps have been made in most states to achieve this but there are still some reports of leprosy sufferers being ill-treated and segregated in general hospitals. This also raises issues of confidentiality and privacy. Sufferers should have the right to reveal their diagnosis only to those that they choose.

    For women accessing treatment is often more difficult. Their needs are often seen as a second priority within the family. They may also require a male escort to attend a health care centre again raising issues of confidentiality.

    For those already diagnosed and living in a colony, basic medical care is often too far away and too costly to access. One participant from Ranchi described how she would have to travel 40km to reach the nearest state health care facility. The cost of travel and treatment will often exclude this community from basic health care due to poverty.

    Right to Freedom of Movement

    When diagnosed many leprosy sufferers are abandoned by their families, partners and communities. Social isolation leads to formation of leprosy colonies and in India two hundred still exist today. Stigma and exclusion also extend to families and children of leprosy sufferers. In the Balaramapuram colony in Madras of the three hundred and fifty population approximately only one hundred had been diagnosed with leprosy. In Tamil Nadu State social rehabilitation has been promoted but the degree to which people are able to mix, work and live with the rest of their society varies from area to area. In the past there have also been laws restricting movement. One example is the Maharashtra State Road Transport Act which reserves the right to refuse a leprosy affected person, with evidence of the disease, on public transport.

    The Right to Work

    Due to segregation and stigma, many leprosy suffers are forced to leave their jobs leading to economic instability for themselves and their families. For many the only alternative to support their families is to beg. One woman, although without any outward physical disability, lived in fear of dismissal if her employer found out her diagnosis. For those with disabilities such as the loss of sensation in the hands the type of work they are able to do may be restricted or special adaptations and precautions may be necessary.

    In the villages visited in Tamil Nadu sufferers had been given a Micro-Finance loan enabling then to develop a skill that made them financially independent and returned a sense of dignity and self worth.

    The Right to Education

    Not only are leprosy sufferers excluded from ongoing education but their children are also excluded, denying them the opportunity to be educated amongst their peers. Finding a school that will accept them often means travelling long distances and may mean children are separated from their parents. The additional costs may well mean that education is beyond the means of leprosy suffers. In many colonies NGOs have set up schools within the colony but this continues the perception for the need for segregation.

    The Right to Marry and Found a Family

    Within most cultures this is a fundamental part of life’s progression. For many of the women attending the conference, finding a partner who was willing to marry someone who had suffered from leprosy was very difficult. Of those already married, many had been physically or verbally abused and thrown out of their homes. Women with leprosy are also often denied the right to have children. If they do, families often separate the child from the mother at birth and even breast feeding is denied.

    Within the Hindu Marriage Act 1954 and 1955,The Muslim Marriage Act 1939 and the Indian Christian Marriage Act 1872 divorce can be granted on the grounds of one partner having leprosy. Having such legislation continues to engender the stigma attached to the diagnosis.

    Women and Leprosy

    The impact of discrimination and stigma for women affected by leprosy is more severe for a number of reasons. Women are usually financially dependant on male members of society. In India 80% of women, regardless of economic status and education, are engaged in household work and are expected to put their family first. As previously mentioned, women often require a male escort to attend a health care centre. Levels of education for women are generally lower and if abandoned many will be forced to beg. A study by Matthew et al compared the restrictions imposed on everyday activities for male and female leprosy patients (1). These included touching others, being able to eat with others, sleeping with their partners, sexual relations and attending family festivals. For all the categories women were far more likely to be restricted.

    Conclusion

    Meeting the women in Chennai allowed me to hear first hand how many aspects of their lives had been affected by their diagnosis of leprosy. The supportive environment of the workshop allowed many women to express their problems to others for the first time. It was also an excellent opportunity for the women to discuss how human rights could be relevant to them as individuals. Many were unaware of the international human rights mechanisms but were able to see how they, as individuals, had rights that should be protected.

    Listening to the stories of the women and visiting the colonies illustrated the far reaching effects of leprosy on sufferers and their families. Within India itself there appeared to be huge variations in the degree of stigma and services available to leprosy sufferers. Worldwide, there will be similar human rights issues raised but also beliefs and ideas specific to the individual country and culture.

    The experience of HIV/AIDS has shown that developing a Human Rights strategy to a disease, where discrimination and stigma is evident can have a hugely positive impact on the quality of life of individuals affected. In particular raising awareness of governments to these issues may bring about amendments in the law which would advance equality for sufferers.

    Developing a Human Rights strategy for leprosy should convey similar benefits and would serve as a powerful tool for those sufferers who continue to fight against the discrimination caused by their disease.

    Reference

    Matthew et al. Women with Leprosy are in Double Jeopardy. Leprosy Review 2000;71: 5-17



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