Introduction

Chapter 6

The integrity of the person: the Convention against Torture

Torture is therefore a profound concern for the world community. People with disabilities – and especially those who live in institutionalized settings – are particularly vulnerable to torture or other forms of cruel, inhuman or degrading treatment. In such settings (places that are generally cut off from the world and in which the world takes little interest), there is often a massive imbalance of power.

Indeed, the inherent imbalance of power between an inmate and those in authority is magnified many times over in institutional settings for persons with disabilities.

Regulatory agencies and law enforcement personnel are often indifferent to the plight of such persons. Torture or other forms of cruel, inhuman or degrading treatment of such persons affect their physical and emotional well-being, are an affront to their dignity and severely restrict their autonomy. Legal protections against torture are therefore of profound importance in protecting people with disabilities and ensuring that they retain their physical and psychic integrity no matter where they reside.

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter the Convention) was adopted on 10 December 1984 by the United Nations General Assembly to enhance the general protection provided under the Universal Declaration and the ICCPR and to provide clearer standards for the effective prohibition of torture and inhuman or degrading treatment.³ The impetus for this move had come many years earlier when the General Assembly adopted a Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (resolution 3452 (XXX) of 9 December 1975).

The Convention entered into force on 27 June 1984 following the deposit of 20 instruments of ratification as required under article 27(1). As of 8 February 2002, 128 States had ratified the Convention. A Committee against Torture (CAT) was set up to oversee its implementation (article 17). One of the main obligations of States parties to the Convention is, according to article 2(1),

[to] take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

The categorical tone of the Universal Declaration is maintained in the Convention, article 2.(2) of which states:

No exceptional circumstance whatsoever, whether a state or war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

Importantly, article 2(3) of the Convention denies the existence of any defence of

“superior orders” – a defence invoked by former Nazi war criminals and now discredited under international law.

It is undeniable that torture, and the less severe but equally abominable phenomena of cruel, inhuman or degrading treatment or punishment, have lurked quietly behind the closed doors of mental and physical disability institutions – whether public or private.

Article 1 of the Convention defines torture broadly as follows:

3 The text of the Convention may be accessed at the following address on the OHCHR web site:

http://www.unhchr.ch/html/menu3/b/h_cat39.htm

For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

In other words, torture involves the deliberate infliction of pain or suffering for particular purposes and is carried out by public officials or by private persons acting on the authority or with the consent of public officials. The high threshold established by this definition may not be reached in many cases involving the abuse of persons with disabilities in institutions. It should also be noted that torture can often be the cause of severe physical or mental disability.

The fact that the Convention only covers torture committed by or on the authority of public officials may be thought to limit further its significance in the context of disability, especially with the growing privatization of many services for people with disabilities throughout the world. However, the occurrence of torture, cruel inhuman or degrading treatment within private institutions may still engage State responsibility under the Convention if the State fails to regulate such institutions or to enforce its own regulations.⁴

States parties are under an obligation to prevent torture (article 2). They also have a clear duty to prevent cruel, inhuman or degrading treatment or punishment (article 16). Unlike torture, however, these terms are not clearly defined under the

Convention.

A violation of the Convention may occur owing to the failure to initiate affirmative action such as the provision of medical treatment or services. For example, a high proportion of children in detention suffer from mental illness or intellectual disability.

Many end up in detention because of behavioural problems resulting directly from their mental illness. Some become mentally ill as a result of abusive conditions of incarceration. Indeed in many cases the condition is exacerbated by substance abuse or addiction. These children are particularly vulnerable and need the protection of the Convention to address their high-risk situation. Looked at more broadly, the absence of such treatment and of care and forethought may constitute cruel, inhuman or degrading treatment.

It is sometimes said that torture or cruel, inhuman or degrading treatment of the disabled is invisible. Yet this invisibility does not mean that no abuses occur.

Pioneering NGOs such as Mental Disability Rights International (MDRI) help to bring such abuses to light and ensure that they are seen for what they are: violations of international law.⁵

4 See the summary record of the 488^th meeting of CAT (fourth periodic report of Ukraine, CAT/C/SR.488), para 43; the summary record of the 494^th meeting (initial report of Zambia,

CAT/C/SR.494), para 43; and the Committee’s conclusions and recommendations on the initial report of Zambia (CAT/C/XXVII/Concl.4), para. 8(h), and on the fourth periodic report of Ukraine

(CAT/C/XXVII/Concl.2), para. 5(m).

5 www.mdri.org

Persons with disabilities who are institutionalized rarely have recourse to adequate means of protection or redress. They are unlikely to be confident enough to articulate allegations against offenders and they are often forced to direct their complaints to wardens or caretakers who may be the very individuals perpetrating the abuse. They may not be aware of their rights and even if they are, they may be less likely to have access to a lawyer or responsible third party who might be willing to make the matter public or refer it to the Committee against Torture.

Concrete action is therefore needed to prevent and halt violations of the Convention in the case of persons with disabilities. The advantage of a binding Convention is that international mechanisms exist to monitor violations by States parties.