NATIONAL PUBLIC HEARING ON RIGHT TO HEALTH CARE ORGANISED BY NHRC & JSA ON 16-17 DECEMBER 2004, NEW DELHI
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NATIONAL PUBLIC HEARING ON RIGHT TO HEALTH CARE
ORGANISED BY NHRC & JSA ON 16-17 DECEMBER 2004, NEW DELHI
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NATIONAL PUBLIC HEARING ON RIGHT TO HEALTH CARE
ORGANISED BY NHRC & JSA ON 16-17 DECEMBER 2004, NEW DELHI
NHRC Recommendations for a
National Action Plan to Operationalise the Right to Health Care
Within the broader framework of the Right to Health
Objectives of the National action plan
•
Explicit recognition of the Right to Health Care, to be enjoyed by all citizens of
India, by various concerned parties: Union and State Governments, NHRC, SHRCs
and civil society and other health sector civil society platforms.
•
Delineation of essential health services and supplies whose timely delivery would
be assured as a right at various levels of the Public Health System.
•
Delineation of citizen’s health rights related to the Private medical sector
including a Charter of Patients Rights.
•
Legal enshrinement of the Right to Health Care by enacting a Public health
services Act, Public health services Rules and a Clinical Establishment Regulation
Act to regulate the Private medical sector.
•
Operationalisation of the Right to Health Care by formulation of a broad timetable
of activities by Union and State Governments, consisting of the essential steps
required to ensure availability and accessibility of’appropriate* health services to all
citizens, which would be necessary to operationalise the Right to Health care. This
may include a basic set of Health Sector reform measures essential for universal and
equitable access to appropriate health care, and guidelines regarding the budgetary
provisions to be made available for effective operationalisation.
I
•
Initiation of mechanisms for joint monitoring at District, State and National levels
involving Health departments and civil society representatives, with specified
regularity of monitoring meetings and powers to monitoring committees. In parallel
with this, an institutionalised space needs to be created for regular civil society inputs
towards a more consultative planning process. These should be combined with
vigilance mechanisms to take prompt action regarding illegal charging of patients,
unauthorized private practice, corruption relating to drugs and supplies etc.
To
monitor unethical and illegal medical practices.
•
Functional redressal mechanisms to be put in place at District, State and National
levels to address all complaints of denial of health care.
1
i
Recommendations under the action plan
Recommendations to Government of India / Union Health Ministry
•
Enactment of a National Public Health Services Act, recognizing and
delineating the Health rights of citizens, duties of the Public health system,
public health obligations of private health care providers and specifying broad
legal and organisational mechanisms to operationalise these rights. This act would
make mandatory many of the recommendations laid down, and would make more
justiciable the denial of health care arising from systemic failures, as have been
witnessed during the recent public hearings.
This act would also include special sections to recognise and legally protect the
health rights of various sections of the population, which have special health
needs: Women, children, persons affected by HIV-AIDS, persons with mental
health problems, persons with disability, persons in conflict situations, persons
facing displacement, workers in various hazardous occupations including
unorganised and migrant workers etc.
•
Delineation of model lists of essential health services at various levels: village /
community, sub-centre, PHC, CHC, Sub-divisional and District hospital to be
made available as a right to all citizens.
•
Substantial increase in Central Budgetary provisions for Public health, to be
increased to 2-3% of the GDP by 2009 as per the Common Minimum Programme.
•
Convening one or more meetings of the Central Council on Health to evolve a
consensus among various state governments towards operationalising the Right to
Health Care across the country.
•
Enacting a National Clinical Establishments Regulation Act to ensure citizen’s
health rights concerning the Private medical sector including right to
emergency services, ensuring minimum standards, adherence to Standard
treatment protocols and ceilings on prices of essential health services. Issuing a
Health Services Price Control Order parallel to the Drug Price Control Order.
Formulation of a Charter of Patients Rights.
•
Setting up a Health Services Regulatory Authority - analogous to the Telecom
regulatory authority- which broadly defines and sanctions what constitutes
rational and ethical practice, and sets and monitors quality standards and prices of
services. This is distinct and superior compared to the Indian Medical Council in
that it is not representative of professional doctors alone - but includes
2
Elements of Advocacy
e Public campaigns on right to healthcare
• Raising the budget / allocations
• Dialogue with parliamentarians
f Dialogue with civil society groups
e Public Hearings
/•Policy briefs and info packs
• Media use
• Legislative/ Constitutional changes
• Public interest litigation_______
Examples of monitoring
and advocacy from India
© Budget monitoring and advocacy (CEHAT)
e Right to healthcare campaign (JSA)
e Research support for right to healthcare
(CEHAT)
• Public hearings on denial of healthcare and
violation of health rights (NHRC, JSA)
Monitoring sex selection and advocating for
changes in and implementation of PNDT Act
(CEHAT, MASUM...)
• Regulation of the medical profession (CEHAT)
ai>
a^°r^t
2
representatives of legal health care providers, public health expertise, legal
expertise, representatives of consumer, health and human rights groups and
elected public representatives. Also this could independently monitor and
intervene in an effective manner.
•
Issuing National Operational Guidelines on Essential Drugs specifying the
right of all citizens to be able to access good quality essential drugs at all levels in
the public health system; promotion of generic drugs in preference to brand
names; inclusion of all essential drugs under Drug Price Control Order;
elimination of irrational formulations and combinations. Government of India
should take steps to publish a National Drug Formulary based on the morbidity
pattern of the Indian people and also on the essential drug list.
•
Measures to integrate National health programmes with the Primary Health
Care system with decentralized planning, decision-making and implementation.
Focus to be shifted from bio-medical and individual based measures to social,
ecological and community based measures. Such measures would include
compulsory health impact assessment for all development projects; decentralized
and effective surveillance and compulsory notification of prevalent diseases by all
health care providers, including private practitioners.
•
Reversal of all coercive population control measures, that are violative of basic
human rights, have been shown to be less effective in stabilising population, and
draw away significant resources and energies of the health system from public
health priorities. In keeping with the spirit of the NPP 2000, steps need to be taken
to eliminate and prevent all forms of coercive population control measures and the
two-child norm, which targets the most vulnerable sections of society.
•
Active participation by Union Health Ministry in a National mechanism for health
services monitoring, consisting of a Central Health Services Monitoring and
Consultative Committee to periodically review the implementation of health
rights related to actions by the Union Government. This would also include
deliberations on the underlying structural and policy issues, responsible for health
rights violations. Half of the members of this Committee would be drawn from
National level health sector civil society platforms. NHRC would facilitate this
committee. Similarly, operationalising Sectoral Health Services Monitoring
Committees dealing with specific health rights issues (Women’s health,
3
Children’s health, Mental health, Right to essential drugs, Health rights related to
HIV-AIDS etc.)
•
The structure and functioning of the Medical Council of India should be
immediately reviewed to make its functioning more democratic and transparent.
Members from Civil Society Organisations concerned with health issues should
also be included in the Medical Council to conform medical education to serve
the needs of all citizens, especially the poor and disadvantaged.
•
People’s access to emergency medical care is an important facet of right to health.
Based on the Report of the Expert Group constituted by NHRC (Dr. P.K.Dave
Committee), short-term and long-term recommendations were sent to the Centre
and to all States in May 2004. In particular, the Commission recommended:
(i)
Enunciation of a National Accident Policy;
(ii)
Establishment of a central coordinating, facilitating, monitoring and
controlling committee for Emergency Medical Services (EMS) under
the aegis of Ministry of Health and Family Welfare as advocated in the
National Accident Policy.
(iii)
Establishment of Centralized Accident and Trauma Services in all
districts of all States and various Union Territories along with
strengthening infrastructure, pre-hospital care at all government and
private hospitals.
•
Spurious drugs and sub-standard medical devices have grave implications for the
enjoyment of human rights by the people. Keeping this in view all authorities are
urged to take concrete steps to eliminate them.
•
Access to Mental health care has emerged as a serious concern. The NHRC
reiterates its earlier recommendations based on a Study “Quality Assurance in
Mental Health” which were sent to concerned authorities in the Centre and in
States and underlines the need to take further action in this regard.
Recommendations to State Governments / State Health Ministries
•
Enactment of State Public Health Services Acts/Rules, detailing and operationalising
the National Public Health Services Act, recognizing and delineating the Health rights
4
of citizens, duties of the Public health system and private health care providers and
specifying broad legal and organisational mechanisms to operationalise these rights.
This would include delineation of lists of essential health services at all levels:
village / community, sub-centre, PHC, CHC, Sub-divisional and District hospital to be
made available as a right to all citizens. This would take as a base minimum the
National Lists of essential services mentioned above, but would be modified in keeping
with the specific health situation in each state.
These rules would also include special sections to recognise and protect the health
rights of various sections of the population, which have special health needs:
Women, children, persons affected by HIV-AIDS, persons with mental health
problems, persons in conflict situations, persons facing displacement, workers in
various hazardous occupations including unorganised and migrant workers etc.
•
Enacting State Clinical Establishments Rules regarding health rights concerning the
Private medical sector, detailing the provisions made in the National Act.
•
Enactment of State Public Health Protection Acts that define the norms for
nutritional security, drinking water quality, sanitary facilities and other key
determinants of health. Such acts would complement the existing acts regarding
environmental protection, working conditions etc. to ensure that citizens enjoy the full
range of conditions necessary for health, along with the right to accessible, good quality
health services.
•
Substantial increase in State budgetary provisions for Public health to parallel the
budgetary increase at Central level, this would entail at least doubling of state health
budgets in real terms by 2009.
•
Operationalising a State level health services monitoring mechanism, consisting of
a State Health Services Monitoring and Consultative Committee to periodically
review the implementation of health rights, and underlying policy and structural issues
in the State. Half of the members of this Committee would be drawn from State level
health sector civil society platforms. Corresponding Monitoring and Consultative
Committees with civil society involvement would be formed in all districts, and to
monitor urban health services in all Class A and Class B cities.
•
Instituting a Health Rights Redressal Mechanism at State and District levels, to
enquire and take action relating to all cases of denial of health care in a time bound
manner.
5
•
A set of public health sector reform measures to ensure health rights through
strengthening public health systems, and by making private care more accountable and
equitable. The minimum aspects of a health sector reform framework that would
strengthen public health systems must be laid down as an essential precondition to
securing health rights. An illustrative list of such measures is as follows:
1. State Governments should take steps to decentralize the health services by giving
control to the respective Panchayati Raj Institutions(PRIs) from the Gram Sabha
up to the district level in accordance with the XI Schedule of the 73rd and 74th
Constitutional Amendment of 1993. Enough funds from the plan and non plan
allocation should be devolved to the PRIs at various levels. The local bodies should
be given the responsibility to formulate and implement health projects as per the
local requirements within the local overall framework of the health policy of the
state. The elected representatives of the PRIs and the officers should be given
adequate training in local level health planning. Integration between the health
department and local bodies should be ensured in formulating and implementing the
health projects at local levels.
2. The adoption of a State essential drug policy that ensures full availability of
essential drugs in the public health system. This would be through adoption of a
graded essential drug list, transparent drug procurement and efficient drug
distribution mechanisms and adequate budgetary outlay. The drug policy should
also promote rational drug use in the private sector.
3. The health department should prepare a State Drug Formulary based on the health
status of the people of the state. The drug formulary should be supplied at free of
cost to all government hospitals and at subsidized rate to the private hospitals.
Regular updating of the formulary should be ensured. Treatment protocols for
common disease states should be prepared and made available to the members of
the medical profession.
4. The adoption of an integrated community health worker programme with adequate
provisioning and support, so as to reach out to the weakest rural and urban sections,
providing basic primary care and strengthening community level mechanisms for
preventive, promotive and curative care.
5. The adoption of a detailed plan with milestones, demonstrating how essential
secondary care services, including emergency care services, which constitute a basic
right but are not available today, would be made universally available.
6
6. The public notification of medically underserved areas combined with special
packages administered by the local elected bodies of PRI to close these gaps in a
time bound manner.
7. The adoption of an integrated human resource development plan to ensure adequate
availability of appropriate health humanpower at all levels.
8. The adoption of transparent non-discriminatory workforce management policies,
especially on transfers and postings, so that medical personnel are available for
working in rural areas and so that specialists are prioritised for serving in secondary
care facilities according to public interest.
9. The adoption of improved vigilance mechanisms to respond to and limit corruption,
negligence and different forms of harassment within both the public and private
health system.
10. All health personnel upto the district PRI level must be administratively and
financially accountable to the PRI at each level from the Gram Panchayat to the
District level. Adequate financial resources must be made available at each level to
ensure all basic requirements of health and medical care for all citizens.
•
Ensuring the implementation of the Supreme court order regarding food security,
universalising ICDS programmes and mid day school meal programmes, to address
food insecurity and malnutrition, which are a major cause of ill-health.
•
People’s access to emergency medical care is an important facet of right to health. Based
on the Report of the Expert Group constituted by NHRC (Dr. P.K.Dave Committee),
short-term and long-term recommendations were sent to the Centre and to all States in
May 2004. In particular, the Commission recommended:
(i)
(ii)
Enunciation of a National Accident Policy;
Establishment of a central coordinating, facilitating, monitoring and controlling
committee for Emergency Medical Services (EMS) under the aegis of Ministry of
Health and Family Welfare as advocated in the National Accident Policy.
(iii) Establishment of Centralized Accident and Trauma Services in all districts of all
States and various Union Territories along with strengthening infrastructure, pre
hospital care at all government and private hospitals.
7
Spurious drugs and sub-standard medical devices have grave implications for the
enjoyment of human rights by the people. Keeping this in view all authorities are urged
to take concrete steps to monitor and eliminate them.
Access to Mental health care has emerged as a serious concern. The NHRC
reiterates its earlier recommendations based on a Study “Quality Assurance in Mental
Health” which were sent to concerned authorities in the Centre and in States and
underlines the need to take further action in this regard.
Recommendations to NHRC
NHRC would oversee the monitoring of health rights at the National level by
initiating and facilitating the Central Health Services Monitoring Committee, and at
regional level by appointing Special Rapporteurs on Health Rights for all regions of
the country.
Review of all laws/statutes relating to public health from a human rights perspective
and to make appropriate recommendations to the Government for bringing out
suitable amendments.
Recommendations to SHRCs
SHRCs in each state would facilitate the State Health Rights Monitoring Committees
and oversee the functioning of the State level health rights redressal mechanisms.
Recommendations to Jan Swasthya Abhivan and civil society organisations
JSA and various other civil society organisations would work for the widest possible
raising of awareness on health rights - ‘Health Rights Literacy’ among all sections of
citizens of the country.
8
LAW AND ETHICS
THE LAW
• a set of rules which governs the way people
behave
• the law creates corresponding rights and
obligations
ETHICS
• moral principles which guide behaviour
(e.g.: ethical guidelines for professionals Hippocratic Oath)
SOURCES OF LA W
Constitutional Law
SOURCES OF LAW
Constitutional Law
Statutory Law
Common Law
Customary Law
Personal Law
SOURCES OF LAW
Common Law
^fundamental rights ofcitizens
‘arose from Englishjudge-made law
^imported into India by the British under the
doctrine ofequity, justice & good conscience
★supreme law
Customary Law
Statutory Law
^developedfrom the customs ofa community
*in existence from time immemorial
(> 30 years)
*how State is organised
★laws made by Parliament/Legislatures
SOURCES OF LAW
Personal Law
^applicable to a person on the basis oftheir
religion
★originally applicable in all spheres, contract,
criminal andfamily and succession
★now primarily family and succession law
SEPARA TAION OF POWERS
Judicial Review
Organs ofState:
• Legislature (Parliament)=makes law
• Executive (Government Police,
Bureaucracy)^ implements law
• Judiciary= Reviews what laws are
passed and actions of the executive
1
JUDICIAL REVIEW
• India has a Written Constitution
TYPES OF LAW
• Constitution is Supreme Law
Criminal Law
• All laws have to be within it and
subordinate to it (intra vires)
*how State expects you to behave in
society
• High Courts and Supreme Court
decide whether law is constitutional
Civil Law
• Even a constitutional amendment has
to be intra vires (doctrine of basic
features/structure)
THE LEGAL RESPONSE...
• the evolving pandemic of HIV/AIDS has
given rise to legal responses
• more developed in USA, Australia - where
the pandemic hitfirst
• in these countries a wide variety of legal
responses arose
• in most developing countries the legal
responses are notfully developed and are
very much in the early stages
THE LEGAL RESPONSE...
• prescriptive (prescribes behaviour)
• proscriptive (punishes behaviour)
• human rights (protective of individual
rights)
• instrumentalist (promote behaviour
change)
• pedagogic (educative)
*how one must behave in private
relationships
THE LEGAL RESPONSE
The law has various roles
★deterrent
★normative/pedagogic
The law is *premised on various doctrines
★natural law
★human rights
Today we live in an era of the positivist state
- a body ofpersons authorised to make
enforceable laws
THE LEGAL RESPONSE
• Generally there have been two types
of legal responses
• These responses are diametrically
opposed
• They can be termed as the isolationist
response and the integrationist
response
2
ISOLA TIONIST v. INTEGRA TIONIST
isolationist
• mandatory testing
• confidentiality
breached
• discrimination if
HIV-positive
• ...leading to
isolation of HIV
positive person...
integratioinst
•voluntary testing
•confidentiality
maintained
*no discrimination if
HIV-positive
•...leading to
integration of HIV
positive
person...
ISOLATIONIST RESPONSE.
IN PRA CTICE, THE ISOLA TIONIST
STRATEGY
• further targets already marginalised
populations like sex workers, drug
users and men who have sex with men
• is violative of fundamental rights
• results in driving the HIV epidemic
underground
THE ROLE OF THE LAW...
• Right to health is recognised as a
fundamental right under Article 21 of the
read with Article 47 of the Constitution
• State is required to reimburse expenses for
open heart surgery as per rules
• However budgetary constraints have to be
considered while framing rules
(Vincent Panikurlangara; Surjit Singh; Ram
Lubhaya; cases)
ISOLATIONIST RESPONSE
PROBLEMS...
1. REQUIRES COMPULSOR Y REPEA T
TESTING OF HIV-NEGA TIVE
PERSONS (every six months)
2. ECONOMICALLY NOT FEASIBLE
3. IMPOSSIBLE TO IMPLEMENT FOR
THE WHOLE OF THE POPULA TION
IN A COUNTR Y LIKE INDIA
THE ROLE OF THE LAW...
• it is clearly necessary to opt
for either the isolationist
response or the integrationist
response
THE ROLE OF THE LAW...
• The law, especially in the
social sphere, must base itself
on a rational and scientific
understanding of the issue at
hand and not on prejudice,
myth or political opinion
3
THE LEGAL RESPONSE...
• 1986: Goa Public Health (Amendment) Act
-- espouses isolation
• 1989: Lucy D 'Souza's case challenges the
Act -- rejected by Bombay High Court.
However, the Act is no longer implemented
• 1989: AIDS Prevention Bill, 1989 - not
passed by Parliament
• 1997: Draft National AIDS Prevention &
Control Policy — espouses a rights-based
approach (approved by Cabinet in 2002)
THE LEGAL RESPONSE
• 2001: India signatory to UN Declaration of
Commitment on HIV/AIDS
• 2001/2: NGOs intervening with MSM and
CSW are harassed, raided - workers jailed
• 2002: Calcutta HC awards damages of Rs.
22 lakhs -- negligence ion blood transfusion
2002: Andhra Pradesh & Goa governments
consider mandatory pre-marital testing
• 2002: MCI Regulations fail to reevaluate
medical practice
• 2005: TRIPS -- impact on drug prices?
THE LEGAL RESPONSE
• 1997: MX v ZY — Bombay HC upholds right
of PWA to employment
• 1998: Mr. X v Hospital Z — Supreme Court
suspends the right of PWA to marry
(reversed in December 2002)
• 1999: Maharashtra & Karnataka legislators
table isolationist HIV Bills
• 2000: NHRC recommends rights-based
legal measures
• 2000/1: Bombay & Kerala HC injunct false
advertising of ‘cures’
PUBLIC HEALTH
CLASSIC DEBATE
Rights of the individual v. Rights of the Community
Individuals Rights
v. Public Health Interest
• Also raised in the HIV/AIDS Pandemic
• False Debate (No dispute that Public Health,
that is .Stopping further Spread of HIV is key)
• Paradox in the HIV/AIDS scenario is that
public health can only be enhanced by
protecting the rights of individuals infected and
affected
PUBLIC HEALTH
There exists a dramatic gap
between the identification and
existence of human rights and
the respect and enforcement of
human rights...
Domestic law seeks to bridge
this gap and empowers the
individual to assert and
vindicate his/her rights.
4
THE ROLE OF THE LAW IN
HIV/AIDS
Domestic law should promote
effective policies that impede
HIV transmission while
assuring the dignity of each
individual living with
HIV/AIDS
5
SOURCES OF
INTERNATIONAL LAW (IL)
• Article 38, Statute of 1CJ
• Customary Law
• Treaties (interpretation by Vienna Convention)
• General principles of law
• Equity
• Judicial decisions
• The writings of publicists
• Ethical principles and considerations of humanity
• Soft law
Right to health under IL
• World Health Organization
• United Nations Charter
- Articles 55 and 56
• Universal Declaration of Human Rights, 1948
(General Assembly Resolution)
- Right to standard of living adequate for the health of
himself and his family, including . healthcare (Article
25(1))
- Right to share in scientific advancements and its benefits
(Article 27(1))
• International Covenant on Civil and Political Rights.
1966
- Right to life (Article 6)
Right to health under IL
• International Convention on Economic, Social and
Cultural Rights
- Right to highest attainable standard of health (Art. 12)
- General Comment No. 14, 2001:
• The obligations to respect, promote and fulfil
• Obligation to respect States to refrain from interfering with
enjoyment of right to health
• Obligation to protect States to make measures that prevent
third parties from interfering with the right to health, includes
duties of States to adopt legislation or take measures to ensure
equal access to health-care services provided by third parties
• Obligation to fulfil State to adopt measures towards full
realization of the right to health
Right to health under IL
• Other international instruments such as
CEDAW, CRC, Charter of Economic
Rights and Duties of States
• Regional instruments
• Therefore, right to health is a part of
Customary IL
■ Core obligations
1
Application of IL in national courts
IL in India
• International Customary Law
- Does not require to be domesticated
- Applied by national courts unless domestic law to the
contrary
• International Treaties
- Monism IL and municipal law part of the same system,
no need of legislation
- Dualism: IL and municipal law are two distinct legal
systems. IL can be enforced only when incorporated or
transformed into municipal law
- Treaty is law under domestic jurisdiction unless
there is contrary domestic statute
- Treaty can be used to interpret rights and
fundamental rights
• Article 51 (c), Constitution of India: The
State shall endeavour to foster respect for
international law and treaty obligations in
the dealings of organised people with one
another.
• Article 253, Constitution of India:
Parliament has power to make any law for
implementing any treaty, agreement or
convention with any other country, or
countries or any decision made at an
international conference, association or
other body.
IL in India
IL in India
• M. V. Elisabeth Harwan Investment &
Trading Pvt Ltd., Goa, AIR 1993 SC 1014:
Conventions to which India is not a party are the result of
unification and development of maritime laws of the
world, and can, therefore, be regarded as international
common law or transnational law rooted in and evolved
out of the general principles of national laws, which in the
absence of specific statutory provisions, can be adopted
and adapted by courts to supplement and complement
national statutes on the subject"
• Vishaka v. State of Rajasthan, (1997) 6
SCC 241:
The international conventions and nonns are to be
read into [the fundamental rights] in the absence of
enacted domestic law occupying the filed when
there is no inconsistency between them. It is now an
accepted rule of judicial construction that regard
must be had to international conventions and norms
for construing domestic law when there is no
inconsistency between them and there is a void in
the domestic law.
2
CONSENT
CONSENT
• Medical consent is part of common law
• Consent is free when it is not caused by
• Principles of consent in common law are
set out in detail in the law of contract and
are applicable to consent in the medical
field
• “Consent is taken when two or more
persons agree upon the same thing in the
same sense. ”
• Coercion
• Undue Influence
• Fraud
• Misrepresentation
• Mistake
• (Section 14 of the Indian Contract Act)
(Section 13 Indian Contract Act)
CONSENT
• EXCEPTIONS TO CONSENT
• unconscious patient brought to hospital
^doctrine of necessity will permit doctor to
interfere with bodily integrity
Necessity not convenience
• acting out of necessity legitimizes an
otherwise unlawful act
CONSENT
• DOCTOR - PA TIENT RELA TIONSHIP
• relationship between unequals :
Doctors have *better knowledge
★larger experience
• Therefore the duty of the physician :
★is to provide honest information
• BASIS OF THE DOCTRINE OF
INFROMED CONSENT
INFORMED CONSENT
INFORMED CONSENT
“patient must agree to the risk to which s/he
may be exposed"
VAR YING APPROACHES:
• Expert approach= Doctor's right= UK
What sort ofrisks are to be disclosed ?
• Patient approach^ Patient's right= USA
How much information does the patient
require to have?
• Middle approach= Mix of both= Canada
Who should decide ?
• India = No approach= Common law
Dependant on the predilection ofjudges
Varying approaches in the US, Canada and
England;
• Can we leave it judges or should we have
a statute?
1
INFORMED CONSENT
ENGLISH APPROACH: Current medical
Practice
The test of whether to inform of the risks
(part of the general duty of care) and what
to inform was to he determined by the
Bolam test= current medical practice
INFORMED CONSENT
US Approach=Prudent Patient test
• Doctor must disclose all material risks based
on the prudent patient
(A risk is material when a reasonable person
would attach significance to)
Current medical practice may he ignored if a
substantial risk was likely and the right to
information was so obvious
• A doctor however has the therapeutic
privilege to withhold information if the
disclosure would result in serious adverse
psychological consequences to the patient
(Sidaway v. Board of Governors, England)
(Canterbury v. Spence, US)
INFORMED CONSENT
CANADIAN Approach=lVIodified objective
test: Mixture of Objective and Subjective
• The patient has a right to know all material
risks inherent in the procedure or treatment.
• A risk is material if in the circumstances of a
case, a reasonable person would have
attached significance to it - objective factors
• Risks are also material which are particular
considerations affecting the particular
patient constitute the subjective factors
INFORMED CONSENT
INFORMED CONSENT
• Consent for Blood transfusion
• Patient has a right to control her own
body and reject specific treatment, even if
such a decision may entail a risk such as
death.
• Risks relating to transfusion should he
explained to the patient
• Possible consequences of refusal should be
brought out
• Specific Consent should he taken
INFORMED CONSENT
HIV SCENARIO:
Consent for an HIV is a diagnostic test
• HIV7infection is not curable
• other diagnostic tests do not have lifeth reaten ing implications
• HIV test has life threatening implications
• knowledge of HIV-positive status itself
may led a person to untold trauma like
taking one’s life
• HIV test cannot he treated as any other
diagnostic test
• consent to another diagnostic test cannot
he taken as implied consent to an HIV test
• Specific consent for an HIV test necessary
• An HIV test must be preceded by informed
consent
2
TESTING
TESTING
HIV SCENARIO
When to test for HIV?
• Indicative of treatment
• Preventive measures for Mother to Child
Transmission
• Significant risk ofexposure
What is Confidentiality ?
• Confidentiality arises when there is :
• a confidential relationship, the nature of
which may be dependent on factors of trust,
knowledge and skill
• confidential information
PRl VA CY-SECRECYCQNFIDENTIALITY
• confidentiality arises when information
which has the necessary quality of
confidence about it has been imparted in
circumstances importing an obligation of
confidence.
• the duty to maintain confidentiality
emerges from common law principles.
• informed consent in the context of
HIV/A1DS implies conducting pre and
post-test counselling
• failure to perforin pre and post-test
counselling implies no consent
PRI VA CY-SECRECYCONFIDENTIALITY
• Privacy
the right of a person vis-a-vis the world
at large
• Secrecy
the right of a person vis-a-vis the state
• Confidentiality
the right of a person vis-a-vis
another person/s
Ethics and Practices
Indian Code of Medical Ethics:
“ Confidences concerning individual or
domestic life entrusted by patients to a
physician and defects in the disposition or
character of patients observed during
medical attendance should never be
revealed unless their revelation is
required by the laws of the State.
3
CONFIDENTIALITY
Sometimes, however, a physician must
determine whether his duty to society
requires him to employ knowledge
obtained through confidence to his as a
physician, to protect a healthy person
against a communicable disease to which
he is about to be exposed. In such
instance the physician should act as he
would desire another to act toward one of
his own family in like circumstance.”
CONFIDENTIALITY
Courts have held disclosure not to be
permissible:
Held:
“ Victims ought not to be deterred by fear
of discovery from going for treatment
and free and informed public debate
about AIDS could take place without
disclosu re.”
CONFIDENTIALITY
IS DISCLOSURE PERMISSIBLE ?
Issue
Interest of the PLWHA to keep his HIV +
status confidential
v/s
Interest of the community, society, to have
knowledge of the the individual's HIV +
status
CONFIDENTIALITY
Courts have held disclosure not to be
permissible:
Held:
“ The persons receiving the confidential
information were not at risk of exposure
and therefore the disclosure was
unreasonable, unjustified and wrongful. ”
Jansen Van Vuuren
X v/s F; 11988| 2 All ER 414. QBD
Anr. v. Kruger
1993(4)SA 342
CONFIDENTIALITY
LARGER PUBLIC
INTEREST TO DISCLOSE
• In certain circumstances, disclosure
of information imparted in confidence
may be allowed ifpublic interest to
disclose outweighs public interest to
maintain confidentiality
Courts have held disclosure to be
permissible :
• Treatment/Interest of patient
Doctor to Doctor/ medical staff discussions
W v/s EdgeU & Ors,(\9M) 1 All ER 835 CA
• Statutory requirement/Notification
tauthorities
Hunter v/s Mann. (1974) 2 All ER 414 QBD
4
CONFIDENTIALITY
PRIVACY-SECRECYCONFIDENTIALITY
• Medical research approved by a
recognized ethical committee
• Partner Notification
• Public Safety/Administration of justice
Tarasoff v/s Regents of the University of
California, 17 Cal 3d 425
Held :
W v/s Edgell & Ors (1990) 1 All ER 835 CA
(i) At common law, the general rule is
that one person owes no duty to control
the conduct of another nor to warn those
endangered by such conduct;
PRIVACY-SECRECYCONFIDENTIALITY
PRIVACY-SECRECY
CONFIDENTIALITY
(ii) Exceptions arise where
(iii) Existence of a special relationship
between a doctor and a patient
(a) a special relationship exists between the
defendant and the injured part giving the
latter a right to protection, or
(iv) Duty to warn/protect the third party
(b) a special relationship exists between the
defendant and the active wrongdoer
imposing a duty on the defendant to
control the wrongdoer’s conduct
(vi) Duty to care to all persons who are
forseeably endangered
CONFIDENTIALITY
Mr. X v/s Hospital Z, (1998) 8 SCC 296
• Disclosure permissible to wife or
prospective wife as the fundamental right
of the right of the wife to lead a healthy
life outweighs the fundamental right of
the PLWHA’s right to confidentiality and
privacy
• the right which would advance the public
morality or public interest to be
advanced “AIDS is the product of
indiscipline sexual impulse ”
(v) Duty to warn patient’s family members
of a contagious disease
CONFIDENTIALITY
• Partner notification emerged as a public
health tool in the US in the 1930’s
• Rationale : allows identification,
treatment and education of individuals
who have been exposed to a
communicable disease
• Failure : Inspite of standard use of
partner notification for cases of syphilis
and gonorrhea and the existence of
effective treatment, the prevalence has
increased- CDC study
5
CONFIDENTIALITY
• Studies conducted in the US, reveal that
coercive HIV partner notification
programmes have failed.
• Recognition of the importance of public
health programs that encourage
voluntary partner notification
DISCRIMINATION
• Concept of discrimination is incorporated in
Articles 14, 15 and 16 of the Constitution.
These form part ofthe Fundamental Rights
Chapter (Part Hl) of the Constitution.
• Fundamental rights are available only
against the State (Article 12)
DISCRIMINATION
DISCRIMINATION
• Based on principles of natural
justice and equality
• Incorporates the American doctrine
of classification and the doctrine of
non-arhitrariness developed in
India
DISCRIMINATION
• a group can be divided into two classes ifthe
classification is based on an intelligible
differentia viz. an objective and rational
criteria
• the basis of the classification (the objective
criteria) itself must have a rational
relationship to the object of a statute
• The doctrine of classification is based on
the premise that equals should not be
treated unequally and unequals should not
he treated equally.
• Classification must satisfy the tests of:
(a) intelligible differentia - objective
criteria
(b) rational nexus - rational
relationship
DISCRIMINATION
• HIV status is certainly an intelligible
differentia to classify individuals into the
classifications of HIV-positive or HIV
negative
• whether or not classification on the basis
of HIV will satisfy the test of rational
nexus will depend on the facts of each
individual case
6
DISCRIMINATION
DISCRIMINATION
• MX v. ZYAIR 1997 Bom 406
• The doctrine of non-arbitrariness posits that the
statutes and state action must be fair, just and
reasonable (reasonableness doctrine)
• Reasonableness must be applicable to statute
(substantive reasonableness) and to state action
(procedural fairness)
• In India statute can be struck down as being
substantively and procedurally unreasonable
under Article 14 of the Constitution
DISCRIMINATION:
IN THE
HEALTHCARE SETTING
IS REMO VING AN HIV+
HEALTHCARE WORKER
FROM EMPL O YMENT
DISCRIMINA TION?
(employment scenario)
• The Bombay High Court held that actions must follow
the rigours ofArticles 14 & 21 of the Constitution and
followed the principles set down in School Board of
Nassau County, Florida et al. V. Arline, (1987) 480
U.S. 273
• In order for a person to be rendered incapable of
performing the job, s/he must be unable to perform the
job functions due to reported ailment, or pose a risk to
others at the time (“otherwise qualified” & “significant
risk”)
DATA ON TRANSMISSION FROM
HEALTHCARE WORKER TO
PATIENT
• CDC estimates risk of transmission from surgeon
to patient through stick or cut is between
I in 41, 667 and 1 in 416, 667
• CDC and AMA are currently reevaluating
policies in light of epidemiological evidence
showing that the risk to patients, even from
invasive procedures, is negligible
HIV-INFECTED HEALTH CARE
HIV-INFECTED HEALTH CARE
PROFESSIONALS
PROFESSIONALS
• For healthcare providers, risk is inherent in
every activity, including every medical procedure
Bradley v. University of Texas M.d. Anderson
Cancer Ctr.
• Significant risk must also be measured in the
context of the particular field of activity. The
acceptable risks in that field of activity would
establish risk threshold therefore comparative
risk must also be assessed
Bradley, a surgical tech, revealed that he was
HIVf. Soon after, the hospital reassigned Bradley
to another department. Bradley sued the hospital.
The Court held that Bradley posed a significant
risk to patients and that was sufficient reason for
him not to continue in that department.
7
HIV-INFECTED HEALTH CARE
PROFESSIONALS
• In India there have been no HIV/AIDSrelated decisions offering alternate
employment to healthcare workers but a
similar concept has been applied by the
Supreme Court
Anand Bihari v. Rajasthan S.R. T.C
Provision of Post Exposure
Prophylaxis (PEP) in Healthcare
Settings
DISCRIMINATION: EMPLOYMENT
• There is a common law duty for an
employer to provide a safe working
environment.
• There is a corresponding right of the
employee to a safe working environment
Recoxnmendations for Post Exposure
Prophylaxis (PEP) in Healthcare
Settings
-prompt management of exposure site
• In public healthcare institutions, PEP
should be made readily available for
healthcare workers
-evaluation of source & healthcare workerfor the need
for PEP
-baseline HIV test of exposed healthcare worker
-2 drug regimen - 2 NRTIs with possible use of Pl
• Healthcare workers should be trained
about allfacets of PEP
COMPENSATION FOR HIV CONTRACTED AT
THE WORKPLACE
• healthcare workers infected on the job couldfile suit
under common law for damages on the ground that the
employer had faded to provide a safe working
environment
■ hi India, healthcare workers are not covered by the
H 'orkinen 's Compensation Act
• Courts in other jurisdictions have considered such cases
for damages
» James r. Nolan
-initiated as soon as possiblefbefore 36 hours)
-4 week regimen to be completed
-follow-up with counselling, testing & medical
evaluation
Discrimination :
Healthcare Delivery
Setting
DOES REFUSAL TO PROVIDE
MEDICAL TREA TMENT TO A
PERSON LIVING WITH
HIV/AIDS AMOUNT TO
DISCRIMINA TION?
(healthcare delivery)
8
EXAMPLES OF HIV/AIDS-RELATED
DISCRIMINATION IN DELIVERY OF
HEALTHCARE SETTING
• refusal to treat
• inappropriate treatment
• physical isolation in wards
• early discharge
• delays in treatment
• conditional treatment
• prejudicial comments & behaviour
Duty to Treat
• Under Article 21 of the Constitution of India the
right to life and liberty includes the right to
health
• By law, State healthcare institutions/providers
are obliged to provide medical treatment to al!
persons in emergency and non-emergency
situations without discrimination
PUBLIC & PRIVATE HEALTHCARE
• According to National Sample Study, National
Councilfor Applied Economic Research 60 80% of healthcare is sought in the private sector
for which households contribute 4 - 6% of their
income
• Given the sheer numbers of HI V+ persons in
India, this will place an increasing burden on the
private healthcare system to provide treatment
for HIV+ persons
Duty to Treat
• There is a common law duty for doctors to
care where there exists a professional
relationship between the doctor & patient
according to the standard of care
• IVhere the person requiring medical
treatment is a stranger to the doctor and
there is no established professional
relationship, the doctor will not be liable
for refusing to treat the person
REFUSAL TO TREAT
• Private healthcare institutions/providers are not
obliged to treat persons except in an emergency
situations and until the patient can get other
medical help
(Parmanand Katara v. Union of India AIR 1989
SC 2039)
REFUSAL TO TREAT
• In the US, under the American Disabilities Act
(ADA), HIV is now recognized as a disability
• Disability under the ADA is defined as "an ...
impairment that substantially limits one or more
of fan individual's! major life activities”
• A person who is HIV+ is disabled and cannot be
denied medical treatment
(Bragdon v. Abbott)
9
MEDICAL TREATMENT
• In other jurisdictions where anti-discrimination
legislation exists it has been held that treatment may
be reasonably refused on several grounds:
- if a professional lacks the the skill appropriate to
render competent care, s/he may legally refuse to
treat the person and lawfully refer the patient
elsewhere
MEDICAL TREATMENT
Medical treatment is denied for the
following reasons:
»fear of occupational exposure
»lack of resources to provide adequate
treatment and protect oneself
significant risk posed to the healthcare provider
during the course oftreatment
OCCUPATIONAL EXPOSURE
Risk of acquiring HIV infection from patients is
a function ofseveralfactors:
nature of the exposure
likelihood that the person is infected,
if so then:
viral load, stage of HIV infection
efficiency of the virus infecting the exposed
person
OCCUPATIONAL EXPOSURE
• Latest CDC data on occupational exposure shows that
paramedical staff are actually more prone to
occupational exposure that physicians and surgeons
» out of 52 reported cases of occupational
exposure sero-converting to HIV: 19
laboratory workers, 21 nurses,6 physicians,
2 surgical technicians
» out of 52 cases: 45 percutaneous injuries
(puncture/cut) of which 41 involved hollow
bore needles
» out of 52 cases: 47 - HIV infected blood
OCCUPATIONAL EXPOSURE
• Epidemiological data suggests that the risk of
transmission through occupational exposure is
exceedingly low in low prevalence settings
• San Francisco General Hospital study of
surgical personnel showed cumulative risk of
0.125 per year (high prevalence setting - 10%)
(1 infection among staff every 8 years)
Prelimina.ry Recowniendations
• Development of anti-discrimination legislation
which covers the the private healthcare sector
• Development of welfare legislation which covers the
healthcare sector
• PEP be made readily available to all healthcare
workers at least those working in high prevalence
settings
10
An overview of
In health there is freedom.
Health is the first of all liberties.
Health and
Human Rights
Henri-Frederic Amiel, c.1850
Needs and Rights
Human Rights
Human rights are proposed entitlements that should
belong to every human being. Human rights are
ideally supposed to:
• Be mandated by international standards;
• Be legally protected;
• Focus on the dignity of the human being;
• Protect individuals and groups,
• Oblige states and state actors;
• Not be waived or taken away;
• Be interdependent and interrelated;
• Be universal.
In reality, rights are not always realised in this form!
i
Needs
Rights
& May or may not be met, not
obligatory
& Enforceable, once given
cannot be reduced
Identified by the provider
& The holder of rights has a role
in the negotiation
& Are fulfilled out of a sense of
benevolence of the provider
h Are fulfilled because the
holders have an entitlement
May be reduced according to
the dynamics of the situation
& Once given may not be
reduced, but are open to
expansion
Needs and Rights
Needs
& Lack of fulfilment becomes critical
only when a large section is
affected
& If the provider does not meet
needs, there are no direct
consequences
Needs do not directly confront the
system, may remain unmet if not
translated into rights
& Based on passive recipients, does
not lend itself to political
mobilisation
ffir1
Rights
& Violation of rights of even one
individual is a wrong
& There are consequences for duty
holders if rights are violated
& Confronts the status quo, once a
right is recognised, it is more likely to
be fulfilled
& For a right to be recognised requires
political mobilisation, hence rights
have the potential for political action
The Needs based approach and the Rights based approach ...
“When Ifed the poor, they called me a saint.
When / asked why they were poor, they called me
a communist. ”
- Archbishop Camara
1
Levels of obligations
Uaiied iMations
regarding Human rights
Three types or levels of obligations on States parties: the obligations
to respect, protect and fulfil.
The obligation to respect requires States to refrain from interfering
directly or indirectly with the enjoyment of the right to health.
The obligation to protect requires States to take measures that
prevent third parties from interfering with article 12 guarantees.
Article 25.
(1) Everyone has the right to a standaril of living adequate for the
health and well-being of himself and of his family, including food, clothing,
housing and medical care and necessary social services, and the right to security
in the event of unemployment, sickness, disability, widowhood, old age or other
lack of livelihood in circumstances beyond his control.
Finally, the obligation to fulfil requires States to adopt appropriate
legislative, administrative, budgetary, judicial,promotional and
other measures towards the full realization of the right to health.
International Bill of Rights'
United Nations Declaration of
Human Rights
Covenant on Civil and
Political Rights
Covenant on Economic,
Social & Cultural Rights
The UN Declaration of Human Rights is supported by two binding
Covenants. These Covenants define the specific rights & responsibilities
of signatory Nations to uphold human rights.
Ml
(ESC rights were) “a response to the abuses and misuses of
capitalist development and its underlying, essentially uncritical,
conception of individual liberty that tolerated, even legitimated,
the exploitation of working classes and colonial peoples.
Historically, it is a counterpoint to the first generation of civil and
political rights, with human rights conceived more in positive
("rights to") than negative f’freedom from") terms, requiring
the intervention, not the abstention, of the state for the purpose
of assuring equitable participation in the production and
distribution of the values involved."
CP Rights and ESC Rights
Civil and political rights have been traditionally asserted
by the US and Western capitalist states ('First
generation rights')
Economic and Social rights were upheld to a much
greater degree by the erstwhile socialist states ('Second
generation rights’)
& These two types of rights need not be dichotomised, but
we should be aware that ESC rights are ‘Rights of the
poor and marginalised' and attack more directly at
exploitative structures
*You can kill a man by making him a
pavement dweller, just as surely as
you can kill him with a gun.”
2
,
strengths of the Rights approach
& A slogan like 'Right to Health Care' can be comprehended, at a
basic level, by anyone; the rights language has a strong
universal appeal
'if Empowers individuals, communities and organisations,
enabling them to demand particular health services
& Focuses on functional outcomes, and measures all policy
declarations in terms of what people actually receive
if Health services become understood as important public
goods, distinct from commercial services to be purchased in the
market
'Difficulties in taking a Rights
approach in the Health sector
No specific strong 'pressure group’ for Public health
& Consumer extremely vulnerable at the time of service delivery
Personalised nature of doctor-patient relationship
& Many quality related and technical issues involved
'it Health is a usually 'Off occassionally 'ON' priority
& A major group centrally involved - health care providers may
have strong sectional interests, resistance to change and attitude
of technical arrogance
How can we develop an understanding of
Human Rights in a “structural” context?
While ESC Rights are universal, their violation is very
much focussed on the poor and marginalised.
Addressing these rights would require an analysis of
structures - who is oppressing whom in the present
structure, and what kind of alternative social structure
are we demanding?
Strengths of the Rights approach
if Rights lend themselves to expansion and universalisation;
certain rights become a precedent for establishment of others
& The rights approach naturally strengthens the claims of the
most disadvantaged and vulnerable sections
if Rights once granted cannot be easily reversed though
policies and funding priorities may change
if The rights approach talks in terms of obligations and
violations, thus placing the responsibility to deliver on the
system.
Some limitations of the Rights approach
& May range people against the local providers like the ANM but may leave the
policy makers and global actors unscathed
Demand for rights may be partly met by introducing tokenistic reforms, an
attempt may be made to co-opt this demand as 'good governance’ without
making broader structural changes
& Rights are progressively realised; hence details of policies and implementation
need to be monitored and supported, which may require pro-people experts to
work with the system’. Danger of divide between the ‘experts' and the people
& Larger context of globalisation-liberalisation sets limits to public
expenditure and the possibilities of realising the right to health care
The movement for these rights has to he a collective activity
based on communit)’ and social mobilisation.
The Rights framework offers one way to anchor, broaden and
guide such mobilisation. But the Rights approach cannot
substitute for social mobilisation, nor can it avoid discussing the
real barriers to achieving rights in theform of existing social
and economic structures.
Struggles for social justice have been waged since times
immemorial. The Human rights framework is one more weapon
which can be used by the oppressed in their struggles for a new
society.
3
Exercise
Health is a reflection of a society's
commitment to equity and justice.
Health and human rights must prevail
over economic and political concerns.
& In your opinion, how does the striving for rights
by people throughout history relate with the
modern framework of human rights?
What is the relevance of this today?
- People’s Charter for Health
4
1
WHAT ARE ECONOMIC, SOCIAL AND CULTURAL RIGHTS
•
Fair, safe working conditions;
•
Right to seek and choose work;
•
Right to form, join and act in trade unions;
•
“Social Security”, including government assistance during old age and in times of unemployment, and money or other help
for people at other times when they need assistance in order to live their lives with dignity;
•
Assistance and protection for families;
•
Equal marriage rights for men and women;
•
Adequate standard of living for everyone, involving adequate clothing, housing and food;
•
High standard of health and health care for all;
•
Satisfactory primary education for all and increased opportunities for further education;
•
Right to participate in the cultural life of the community; and
•
Right to benefit from scientific progress;
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2
UN COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS
Mandate - Monitor the extent to which State Parties comply with the International Covenant on Economic, Social and
Cultural Rights; and
•
Formulate and provide general guidance to States on how to understand and comply with their obligations under the
Covenant;
•
Procedures - State Party must submit progress report to CESCR within two years of ratification of Covenant;
•
State Party must submit progress reports every five years;
•
CESCR assesses the performance of each State Party by examining the State Party reports as well as information from
NGOs and other UN agencies;
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3
HOW CAN NATIONAL IINSTITUTIONS (NI) PARTICIPATE IN THE WORK OF THE CESCR
In Their Own Country
•
Provide information and expert advice on economic and social conditions.
•
Provide information and advice to legislatures and legislators;
•
Prepare an alternative or “parallel” report to submit to the CESCR supplementary to the State Party report;
•
Annual report card on the performance of their country;
•
Urge to governments that annual budgetary planning respect the State’s obligations under the Covenant;
•
Lobby assistance from courts, tribunals and NGOs to prevent and remedy violations;
•
Develop friendly and cooperative relationships with members of public service;
•
Develop ties with the media to publicise and disseminate information and educate the public;
•
Develop communication networks with other National Institutions and NGOs to share knowledge and work on the same
problem from various directions;
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4
HOW CAN NATIONAL INSTITUTIONS PARTICIPATE IN THE WORK OF THE CESCR
Working in Conjunction with the CESCR
•
Provide information to formulate List of Issues identifying areas of concern with respect to a State’s fulfilment of its
Covenant obligations and serving to structure and guide the formal review session;
•
Provide information for the Country profile to help CESCR prepare for its review of Country record, in the form of
newspaper clippings, newsletters, or reports from the NGO or other National Institutions;
•
Participate in the Pre-Sessional Working Group (PSWG) by sending information about a State Party’s implementation of
the Covenant, submitting questions for the List of Issues, and making oral presentations at the PSWG meeting;
•
Shorter National Institutions/ NHRC briefs that do not amount to full reports provide valuable insight to the CESCR by
pointing to gaps or misleading data in a State’s periodic report;
•
National Institutions may submit a written statement, no more than 2,000 words, to the CESCR about its State’s periodic
report;
•
National Institutions may submit a detailed “alternative”, or “parallel” or “shadow”, report mirroring the State’s report;
•
National Institutions may make oral presentations during CESCR Sessions;
•
National Institutions may stay in the Conference room during CESCR review proceedings and advise the Committee on
follow-up questions during breaks;
•
National Institutions may publicise outcomes of the proceedings through the media;
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Engendering health
T.K. SUNDARI RAVINDRAN
THE term ‘gender’ is often used as synonymous with ‘sex’, male and female. Though the
two are indeed synonymous according to English language dictionaries, the term ‘gender’
has over the past three decades evolved into a concept different from ‘sex’. Ann Oakley
and others used the term gender in the 1970s to describe those characteristics of men and
women which are socially determined, as against ‘sex’ which describes biologically
determined characteristics. This distinction between sex and gender provides a useful
analytical tool for focusing attention on differences between women and men which are
socially constructed.
Many of the differences in men’s and women’s roles and responsibilities, norms and
values guiding appropriate behaviour and access to and control over resources, have less
to do with the fact that they were born male or female or that women alone can be
impregnated and bear children, and more with how society expects women and men to
behave. These in turn are derived from patriarchal ideology - a system of ideas based on
a belief in inherent male superiority. This ideology typically includes the belief that male
control over property is ‘the natural order of things’.
What do we mean by ‘engendering’ health or a gender perspective on health? The very
term suggests that it is not the same as focusing on women’s health, or even more
narrowly on health conditions exclusively experienced by women as a consequence of
their biology.
Traditional frameworks for analysing women’s health have often concentrated on the
childbearing years, and especially with health problems related to pregnancy and
childbearing. Besides their special health needs that are different from those of men due
to biological differences, women are also exposed to all the health problems that affect
men throughout their lifecycle. Thus malaria, tuberculosis, occupational and
environmental health hazards - all these impact women’s health needs too. In fact, since
infections such as malaria and hepatitis become life-threatening conditions for women
during pregnancy, they are issues of special concern.
A gendered perspective on health includes, besides examining differences in health
needs, looking at differences between women and men in risk factors and determinants,
severity and duration, differences in perceptions of illness, in access to and utilisation of
health services, and in health outcomes. ‘When considering the differences between
women and men (in health status), there is a tendency to emphasize biological or sex
differences as explanatory factors of well-being and illness. A gender approach in health,
while not excluding biological factors, considers the critical roles that social and cultural
factors and power relations between women and men play in promoting and protecting or
impeding health.’1
1
Why do we advocate engendering health? Few would disagree with the view that health
is a product of the physical and social environment in which we live and act, which is in
turn affected by the global and local environment: social, cultural, economic and
political. It is also widely acknowledged on the basis of studies conducted in diverse
settings that inequalities in health across population groups arise largely as a consequence
of differences in social and economic status and differential access to power and
resources. The heaviest burden of ill-health is borne by those who are most deprived, not
just economically, but also in terms of capability, such as literacy levels and access to
information.
Substantial evidence exists to indicate that in almost all societies women and men have
differing roles and responsibilities within the family and in society, experience different
social realities, and enjoy unequal access to and control over resources. It therefore
follows that gender is an important social determinant of health. Gender differences are
observed in every stratum of society, and within every social group, across different
castes, races, ethnic or religious groups.
Men and women perform different tasks and occupy different social, and often different
physical, spaces. The sexual division of labour within the household, and labour market
segregation by sex into predominantly male and female jobs, expose men and women to
varying health risks. For example, the responsibility for cooking exposes poor women
and girls to smoke from cooking fuels. Studies show that a pollutant released indoors is
1000 times more likely to reach people’s lungs since it is released at close proximity than
a pollutant released outdoors. Thus, the division of labour by sex, a social construct,
makes women more vulnerable to chronic respiratory disorders including chronic
obstructive pulmonary disease, with fatal consequences? Men would in turn be more
exposed to risks related to activities and tasks that are by convention male, such as
mining.
Differences in the way society values men and women, and accepted norms of male and
female behaviour influence risk of developing specific health problems as well as health
outcomes. Studies have indicated that preference for sons and the undervaluation of
daughters skew the investment in feeding and health care. This has potentially serious
negative health consequences for girls, including avoidable mortality. On the other hand,
social expectations about male behaviour may expose boys to a greater risk of accidents,
and to the adverse health consequences of smoking and alcohol use.
Patriarchal norms which deny women the right to make decisions regarding their
sexuality and reproduction expose them to avoidable risks of morbidity and mortality, be
it through sexually transmitted infection resulting from coercive sex, or death from septic
abortion because access to safe abortion has been denied by state legislation. The practice
of unsafe sex by large sections of men who are aware of the health risks cannot be
explained except in terms of gender norms of acceptable and/or desirable male sexual
behaviour.
2
Because men and women are conditioned to adhere to prevailing gender norms, their
perceptions and definitions of health and ill-health are likely to vary, as is their health
seeking behaviour. Women may not recognise the symptoms of a health problem, not
treat it as serious or warranting medical help, and more commonly, not perceive
themselves as entitled to invest in their well-being.
Finally, because women and men do not have equal access to and control over resources
such as money, transport and time, and because the decision-making power within the
family is unequal with men enjoying privileges that women are denied, women’s access
to health services is restricted. They may be allowed to decide on seeking medical care
for their children, but may need the permission of their husbands or significant elders
within the family to seek health care for themselves. Restrictions on women’s physical
mobility, common in many parts of India, often makes it imperative for women to be
accompanied to a health facility by a male family member.
In many instances, biologically determined differences between women and men interact
with socially constructed behaviour to the disadvantage of women. This is best illustrated
in the case of sexually transmitted infections. Women are biologically more susceptible
to contracting a sexually transmitted infection than men. This is because of the shape of
the vagina and a greater mucosal surface exposed to a greater quantity of pathogens
during sexual intercourse, since the quantity of seminal fluid is far greater than the
vaginal fluid involved. Further, women with a sexually transmitted infection are more
likely to be asymptomatic and therefore less likely to seek treatment. Untreated and
undiagnosed sexually transmitted infections are the cause of chronic infections and
numerous long term complications suffered by women, including infertility and cervical
cancer.
There are other factors which compound women’s vulnerability because of the way
society expects women and men to behave. For a majority of women, high risk activity
can simply mean being married. Social norms which accept extra-marital and pre-marital
sexual relationships in men as ‘normal’, and women’s inability to negotiate safe sex
practices with their partners, are factors that make it difficult for women to protect
themselves from sexually transmitted infections. A study of STD (sexually transmitted
diseases) clinic patients in India (1992) indicated that a third of the women, all in
monogamous married relationships, were infected by their husbands, while the majority
of the male patients were infected by commercial sex workers and casual sexual partners.
Not a single man was infected by his wife? Men’s unwillingness to use condoms further
accentuates women’s risk. For example, in a study of the prevalence of and risk factors
for HIV infection in Tamil Nadu, India (1994-1995) covering a population of about
97,000, less than 2% of married men were found to be condom users? The stigma
attached to visiting an STD clinic together with other barriers such as lack of time, money
and decision-making power discourages women from seeking treatment.
3
deconstruct and reconstruct the normative premises of science (which is cognitive,
experimental and rational) and the law (which is practical and rational).22
Thus, by applying these definitions feminists are not only intervening in the classical
political arenas of the state and the market, but also challenging the dominant normative
forces which have the power to determine the limits and possibilities of transforming
contemporary societies. With this understanding, the boundaries and goals of the feminist
project will be clarified, and the theoretical and methodological instruments which should
be applied in the domains of analysis and action can be made more precise. Gender and
sexuality: fusion vs distinction
"An important barrier in our efforts to understand gender relations is the
difficulty in comprehending the links between sex and gender."
i
Given the significance of Cairo and Beijing for the feminist women's health movement, it
is important to discern what the implications are for the future. An important part of this
process is to explore the conceptual and political challenges that emerge in the face of the
unwillingness to legitimise the concept of sexual rights.
Petchesky identifies a trend in international women's rights campaigns towards
emphasising horrors such as genital mutilation and trafficking in women and children,
which propagate an image of women as victims in the arena of sexuality. This discourse,
she says, is so powerful that it was not surprising in Beijing that: "the spectre of
sexualised bodies desiring pleasure remained lurking behind the debates".9 Although
Petchesky is right, the explanation for this silence should also be sought in feminist and
other theoretical analyses of gender and sexuality.23’25
The academic and political environment in which feminist definitions of sexual and
reproductive rights were elaborated has been strongly influenced by post-structuralist and
constructivist theories.25,27,28 The analytical arsenal of social construction (and
deconstruction) theories of language, of discourse and of difference have fertilised the
23 29 32
debates and research on gender and sexuality. ’
"...the totality of arrangements through which a society transforms
biological sexuality into a human activity, and in which human needs are
both satisfied and transformed. The power of gender operates more
forcefully during the childbearing years, when the means of controlling
sexuality, reproduction and access to work are most focused and function
in a clearer and sharper fashion" 27
Teresita de Barbieri enhances this definition as follows:
"...the social construction that defines and gives meaning to sexual and
human reproduction."33
Rubin, however, later retraced her own theoretical steps and re-conceptualised sexuality
as an autonomous sphere in which personal, social, cultural and political relationships are
6
built and transformed.
maintains that:
9S
Rather than linking sexuality and gender, her more recent work
"...gender and sexuality are the basis of two different arenas of social
practice."
This new approach implies that the construction of gender identities, gender norms, and
the asymmetry in the relations between men and women do not necessarily determine the
manifestation of sexual desire, erotic practices and the experience of sexual pleasure.
Along similar lines, through studies of male homosexuality in Brazilian culture, Richard
Parker has developed a theoretical triangle in which gender, sexuality and the erotic are
linked. In his analysis, "sexuality system" is partially defined by religious doctrine, the
biomedical perspective and other such mechanisms of control, while the "erotic" is
designated as the sphere of imaginative and passionate bodies at play, which we call
sexuality.23
Similarly, Carol Vance 16 suggests that distinguishing these systems is an important step,
to get beyond essentialist assumptions of gender, sexuality and reproduction. She reminds
us that biomedicine has converged with religious assumptions which defined
reproduction (heterosexual, penetrative) as sexuality, replacing:
older ideas of unnatural sexuality as sin, by newer ideas of unnatural sexuality as physical
aberrations or violations of a physically constituted law of naturei.
These hegemonic conceptions are strongly grounded in the notions that men are
"naturally men", women are "naturally women" and sexuality is definitely gender-bound.
Dowsett34 takes an even more radical position in this conceptual trend of distinguishing
gender and sexuality systems. As a result of his study of men who sometimes have sex
with other men, he elaborates a concept of "sexual construction of sociality", which turns
upside down the Foucaultian formulation that sexuality is socially constructed.35,36 In
addition, he suggests that, in the context of "bodyplay", gender difference as a means of
explaining passive and active roles may have little meaning. The implicit idea is that any
erotic encounter between two (or more) people will always contain the potential for each
of them to be active and creative agents in the search for pleasure/7
The ideas of Rubin, Vance, Parker and Dowsett help and inspire us, in the post-Beijing
era, to get some distance from the premise that conceptual approaches to sexuality are
necessarily derived from theories of gender.2^ This is no easy task because of how closely
gender and sexuality are connected with reproduction, work and power.
Costa made a brilliant contribution in 1996 in a paper that focused on the example of
western culture. It shows that prior to the Enlightenment, metaphysics did not emphasise
the sexual differences between men and women; this only came later.38 The paradigm of
the body up to that time was the male body. Woman's body was represented as an
inverted and imperfect male body, in which penis and testicles were turned inward. The
hegemonic 'two-sex model' of today resulted from an ideological need on the part of
Enlightenment liberalism to resolve the contradiction between equality (grounded in the
premise that all individuals are in possession of the same faculty of Reason) and
difference (between the male and female bodies in which Reason was lodged):
7
world. Dowsett, in turn, emphasises the positive dimensions of bodies at play in
sexuality, conceptualising sexual pleasure as a 'big bang'. He strongly suggests
that the power and extent of the means of controlling sexuality are not as
extensive as Foucault postulated. The two views should not be taken as opposing,
but as two different perceptions of the issues: North and South, male
homosexuality and feminism.
27. Rubin G, 1975. The Traffic in Women: Notes for a Political Economy of Sex,
Towards an Anthropology of Women. Columbia University Press, New York.
28. Scott J, 1993. O Genero como Categoria Util para a Analise Historica. SOS
Corpo-Genero-Cidadania, Recife.
29. Bourdieu P, 1996. Novas reflexoes sobre a domina^ao masculina. Genero e
Saude. Lopes J et al (ed). Artes Medicas, Porto Alegre.
30. Gagnon J, 1996. Virtuous actions in the absence of a compelling dogma:
reproductive health in a socially constructed world. Presented at Seminario
Internacional sobre Avances en Salud Reproductiva. Colegio de Mexico, Mexico
DF. 15-18 November.
31. Villela W, Barbosa RM, 1996. Repensando as relates entre sexualidade e
genero. Sexualidades Brasileiras. Barbosa RM, Parker R (eds). Relume Dumara,
Rio de Janeiro.
32. Weeks J, 1981. Sex, Politics and Society: The Regulation of Sexuality since 1800.
Longman, New York.
33. de Barbieri T, 1993. Gender and population policies: some reflections.
Reproductive Health Matters. l(May):85-92.
34. Dowsett G, 1996. Bodyplay: corporeality in a discursive silence. Paper presented
at Re-Conceiving Sexualities: International Seminar on Gender, Sexuality and
Sexual Health. Rio de Janeiro. April 13-18.
35. Foucault M, 1982. Historia da sexualidade. A Vontade de Saber. Graal, Rio de
Janeiro.
36. Foucault M, 1984. Historia da Sexualidade II: O Uso dos Prazeres. Graal, Rio de
Janeiro.
37. Dowsett's reflections are based on research with homosexual men, where gender
plays a distinct role and where there are other influences on sexual relations. It
will be necessary to rethink these perspectives in any analysis and research on
sexuality between men and women, and between women and women.
38. Costa JF, 1996. O referente da identidade homossexual. Sexualidades Brasileiras.
Barbosa RM, Parker R (eds). Relume Dumara, Rio de Janeiro.
39. The same perspective can be found in other authors, eg. Philippe Aries who
suggests that we should move towards a form of unisexuality (cited in History of
Private Life, Volume 5, 1996. Companhia das Letras, Sao Paulo).
40. Correa S, Petchesky R, 1994. Reproductive and sexual rights: a feminist
perspective. Population Policies Re-Considered: Health, Empowerment and
Rights. Sen G, Germaine A, Chen L (eds). Harvard School of Public Health,
Boston.
12
What is Gender?
GENDER,
REPRODUCTIVE AND
SEXUAL RIGHTS
Prof. Lakshmi Lingam,
Women’s Studies Unit,
TISS, Mumbai
Gender Relations
it Gender relations refer to relations of power
between men and women, and women.
Gender relations interact with other
structures of social hierarchy such as
class, caste and ethnicity.
B Gender relations are relations of
dominance and subordination with
elements of co-operation, force and
violence.
HUMAN RIGHTS TREATIES AND
CONVENTIONS -2
B The International Covenant on Economic,
Social and Cultural Rights, 1966 required
state parties to recognise right to health
and take steps to achieve the realisation of
the right.
W The Convention of Elimination of All Forms
of Discrimination Against Women
(CEDAW), 1979 addressed rights to health
and family planning.
The Convention on the Rights of the Child,
1989 reiterates the rights to maternal
health and identifies it as linked to health of
children.
B Existing differences between men and
women is biological and social in nature:
» 'Sex' refers to the biological differences
between men and women
s ‘Gender1 refers to the socially constructed roles
and relations between men and women in a
given culture or location.
These roles and relations are influenced by
several societal institutions, social factors and
processes.
& Gender attitudes and behaviours have wide
variations both between and within cultures.
HUMAN RIGHTS TREATIES AND
CONVENTIONS
1 Universal Declaration of Human
Rights, 1948 was the first to articulate
the right to health and family planning.
IS The International Covenant on Civil
and Political Rights, 1966 stated that
men and women of marriageable age
have the right to marry and to found a
family.
UN CONFERENCES AND
ACCORDS
The UN Conference on Environment and
Development, Rio de Janeiro, 1992.
® World Conference on Human Rights, Vienna,
1993.
S International Conference on Population and
Development, Cairo. 1994.
World Summit for Social Development,
Copenhagen, 1995.
B Fourth World Conference on Women, Beijing,
1995.
B Second Conference on Human Settlements.
Istanbul, 1996.
1
Rio Conference 1992
Vienna Conference, 1993
Rio Declaration stressed the centrality
of women to the twin issues of
environment and development.
*1 Called for women’s participation in
- environmental management
as Economic and political decision
making
Equality to women, in particular in
access to natural resources.
® The Conference Declaration endorsed
“Women’s Rights are Human Rights”
® Reaffirmed the universality of Women’s
Human Rights
B Arguments of Cultural Relativism and the
primacy of civil and political rights over
social, economic and cultural rights have
been quelled thru this declaration.
Cairo Conference, 1994
Beijing Conference
H Cairo PoA emphasised improving the
status of women, gender equity and
equality; education, especially for
girls; infant, child and maternal
mortality reduction; and universal
access to reproductive health
services.
F Women’s empowerment is
considered to be central to the
exercise of reproductive rights.
t Reaffirmed the Declarations made by
earlier Conferences.
Reproductive Rights are
Human Rights
B Reproductive Rights include:
s Right to health
Right to Family Planning
a Right to Reproductive Self-determination
t Principle of non-discrimination that
ensures that reproductive health care
services are provided to all women.
> Sexual Rights are more
contentious that reproductive rights
BThe Beijing Platform for Action stated
that governments irrespective of their
political, economic and cultural
systems are responsible for the
promotion and protection of women's
human rights.
Women’s Health and Rights
S- Right to Life
S Liberty and security of the person
Equality before the law
t; Safe conditions of work
fe Found a Family
B Highest attainable standard of physical and
mental health
B: Informed consent, choice and decision
making in health care
1 Reproductive and sexual health
B Benefits of scientific progress
2
Rights Violations
B Direct action on the part of States
Coercion in FWP
k Two-child Norm
^States Failure to Meet core
Obligations - reducing MMR
i Discrimination in terms of access to
services to specific groups
Ethical Context of
Reproductive and Sexual
Rights
RBodily Integrity
iBPersonhood
^Equality
^Diversity
Thank You
3
Sex Selection and Sex Determination-Abuse of Genetic Diagnostic Technology
Producing a child in an infertile mother’s womb; when to have a child and when not to
have a child; determining whether the child to be born is a boy or girl; determining the
position of the child in the mother’s womb; whether the child has any genetic disorders
or not; , are all made known to us by virtue of astounding progress in genetic diagnostic
technology and sex selection have been discovered in last three decades or so under
the phenomenal development of genetic diagnostic technology such as sex selection,
foetoscopy, ultrasonography, chorionic villus biopsy, foetal blood sampling, especially for
the prenatal detection of various disorders, combined with the revolution in new assisted
reproductive technologies such as artificial insemination, micro-manipulation, in-vitro
and in-utero fertilization, sperm and egg banks, surrogacy and so on..
Abortion was legalized in India in 1971 after a 1965 UN mission to India recommended
this step to strengthen the population policy, and the Shantilal Shah Committee Report
of 1966 also advocated it to reduce the numbers of illegal and unsafe abortions that
were prevalent. Although the stated reasons for passing the Medical Termination of
Pregnancy (M.T.P.) Act were humanitarian (to 'help' victims of sexual assault), healthrelated (to provide an alternative to those whose contraceptive measures failed) and
eugenic (to reduce the numbers of 'abnormal' children born), there was a strong
population control motivation underlying the passage of the Act.
In 1975, amniocentesis techniques for detecting foetal abnormalities began to be
developed in India, at the All India Institute of Medical Sciences, New Delhi. It was soon
known that these tests could detect the sex of the foetus also, and doctors at the
Institute noted that most of the 11,000 couples who volunteered for the test wanted to
know the sex of the child and were not interested in the possibility of genetic
abnormalities. Most women who already had two or more daughters and who learnt that
their expected child was female, went on to have an abortion
Unfortunately, even male geneticists seem to have no qualms about abetting sex
selection. Wertz and Fletcher ( 1995) surveyed the attitudes of 71 medical geneticists in
four developing countries ( Brazil, Greece, India and Turkey) and 611 geneticists in the
15 developed countries. They found that 52 % of the geneticists in India (the highest
percentage amongst the developing countries ) would perform pre natal diagnosis to
select a male foetus for a couple with four daughters and no sons. Though India was
not the only country with a strong preference for sons , it was the only country using pre
natal diagnosis for this purpose. The doctors who said they would perform pre natal
diagnosis for sex selection argues that by aborting female fetuses they would be
preventing the suffering and early deaths of unwanted girls.
The 2001 Census highlighted the drastic decline in child sex ratios in several states in
North and West India and continued declines in major Southern states. It was in the
North-Western and Western states that private fetal sex determination clinics were first
established and where the practice of selective abortion of female fetuses became
popular in the late 1970s and early 80s. The Southern states, e.g. Karnataka, Tamil
Nadu and Andhra pradesh, have shown declines in child sex ratio but these are less
than in the Northern states, as sex determination clinics emerged in the South only a
decade after they became popular in the North. The emergence and spread of prenatal
sex determination clinics are the early warning signals on the distortion of sex ratios at
birth in the coming decade following selective abortion of female fetuses. The recently
available urban-rural figures for 2001 on child sex ration provide further confirmation that
these declines are caused by the relative availability of sex determination facilities.
Medical professionals and sex determination clinics are mostly present in the urban
areas. The decline in urban areas is more than twice that seen in rural areas (935:903
and 948:934, respectively) over the inter-Censal period 1991-2001. In fact of all the 35
states and union territories of India, it is only in the small states of kerala and Manipur
that urban child sex ratios have not declines.
In 2003 the Pre Natal Diagnostic Act was amended to Pre- Conception and Pre Natal
Diagnostic Act- after a PIL filed by CEHAT, MASUM and Sabu Goerge for the
implementation of the PNDT Act. Now sex selection and sex determination is cirme
under the law and is punishable with three years of imprisonment and and a fine of rs
10,000, besides the fact that his/hers registration to practice as a doctor will also be
cancelled. Even the advertising about such methods amounts to a crime punishable
under the act.
What can be the long term implications if amniocentesis continues? Will it not aggravate
the already disturbed sex ratio? There should be 105 women for 100 men but there are
927 women for 1000 men now.
Sycophants of population control advocate this test because they think that the
government can achieve , Net Reproduction Rate ( NRR) of one, that is, replacement
of a mother by only one daughter, with the help of sex determination tests . According to
them, if they are less number of women , there will be less growth of runway population.
The government and private medical practitioners justify sex determination test as a
measure of population control. Women have always been at the receiving end of all
family planning policies. Harmful effects of pregnancy tests, contraceptive pills , anti
pregnancy injections and camps for mass sterlisation of women with ist unhygienic
atmosphere, are always overlooked by the enthusiasts of the family planning policy.
Advocates of the population control will continue encashing on the sociocultural values
that treat the birth of daughter as a great calamity to perpetuate modern methods of
massacre of female fetuses on a massive scale.
Another Economic theory is that if supply of women reduces, their demand as well as
status will be enhanced.the scarcity of women will only increase their value . According
to this logic. Women would not be easily replaceable commodities. But how the
economist forget the sociocultural milieu in which women have to live .The society that
treats women as mere sex objects will not treat women, in more humane way if they are
scare of supply.On the contrary there will eb increased incidences of rape , abduction
a nd forced polyandry. In certain communities in Madhya Pradesh, Haryana and Punjab
the sex ratio is extremely adverse for women., A set of brothers share wife and
sometimes even by patrilineal parallel cousins. To think it is better to kill a female foetus
than give birth to an unwanted female child is very fatalistic. By this logic it is better to kill
poor people or third world masses, rather than let them suffer poverty and deprivation.
Another argument is that in cases where women have one or more daughters, they
should be allowed to have amniocentesis done so that they can plan a balanced family
by having a son. The proponents of this argument asay that instead of going on
producing female children in the hope of getting a male child , it is better for the family’s
and country’s welfare if the female foetus( es) is aborted and achieve a small and
balanced family with daughters and sons. The concept of a balanced family also ahs a
sexist bias. Would couples with one or more sons undergo amniocentesis to get rid of a
male foetus and have a daughter for balancing their family? What is the cost of having a
balanced family? How many abortions can a woman bear without jeopardizing her
health?
A complicated sex pre-selection technique, PGD (also called Ericsson's technique)
involves the identification and discarding of the female embryo. The first step is "pick
up", which involves the collection of unfertilized eggs from the ovaries. They are fertilized
in a petri dish with active sperms. The embryos are then carefully nurtured in an
incubator.
After 72 hours, each eight-cell embryo is biopsied by a micromanipulator, which includes
glass pipettes and a powerful microscope. While one of the pipettes holds the embryo in
place, the second delicately extricates a single cell from the little clump. The extricated
cell is taken to a tiny FISH (fluorescent in situ hybridization) laboratory and transferred to
a slide under a stereo Zoom microscope, specially designed for single-cell analysis. The
genetic blueprint of the cell is studied in order to de termine the sex of the embryo.
Chemical stains are used to single out the X and Y chromosomes from the intricate
genetic master plan. It is then "bathed" to wash away unwanted cellular debris, which
could interfere with the analysis. The freshly scrubbed X chromosome (female) shows
up as a pink dot while the Y chromosome (male) appears as a bright green speck. The
male embryos are then implanted in the woman's uterus.
The popularity of sex selection can be more dangerous than that of sex determination
tests because the former does not involve ethical issues related to abortion. So, even
anti-abortionists can use this method. Dr Ronald Erikson who has a chain of clinics
conducting sex selection tests in 46 countries of Europe, America, Asia and Latin
America announced in his hand outs, almost a decade back that of the 263 couples who
approached him, 248 selected boys and 15 selected girls. This shows that male
preference is not limited to the third world country like India , but that it is a universal
phenomenon. Sex selection could lead to a violent social disaster, through the social
consequences of sex selection as well as sex determination tests, the reality shatters the
myth of neutrality in linking science and technology with socioeconomic and cultural
realities.
Class, race and sex Biases of the Ruling elites have crossed boundaries of human
dignity. After almost five decades of revolution and socialist reconstruction, sex
determination tests for female extermination have gained ground after government
adoption of the two child norms and now also one family policy. Chinese couples as well
as Indian, willy-nilly accept a system of the one child family today, but it would be matter
of great satisfaction if the child is male, thus showing the adaptive system fo patriarchy
and male supremacy. It can establish ban strengthen its roots in all kinds of social
structures- pre-capitalist, capitalist and even socialist- be making savage use of science.
This ethos of patriarchy has to be challenged consistently.
A nation cannot progress without the progress of science and technology. So
technological advancements should not be criticized ,as what matters most is its
manifestation and beneficial application. The most important stake holder here is the
medical professional conducting the test. They are the users and the abusers of the
technology if they stick to the medical ethics, there will be no problem If doctors stop sex
selection and sex determination, the dwindling sex ratio would be stabilized. Are the
doctors listening ????
Adv Kamayani Bali Mahabal
Senior Research Officer
CEHAT
ELSEVIER
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REPRODUCTIVE
HEALTH
matters
www.rhmjournal.org.uk
EDITORIAL
Sexuality, Rights and Social Justice
Marge Berer
Editor, Reproductive Health Matters, London, UK. E-mail: RHMjournal@compuserve.com
T"HE term “sexual rights” consists of the
I little discussed and poorly understood comI bination of the concepts of “sexuality” and
“rights”. Perhaps the unease about sexual rights
would be lessened if it were clear that the concept
does not mean “the right to have sex”, just as
“reproductive rights” is not about the right to
reproduce. What is it about then and why is this a
legitimate subject for an international journal on
reproductive and sexual health?
Based on a technical consultation on sexual
health at the World Health Organization in 2002
the following working definition of sexual
rights was devised:
“Sexual rights embrace human rights that are
already recognized in national laws, international
human rights documents and other consensus
documents. These include the right of all persons,
free of coercion, discrimination and violence, to:
• the highest attainable standard of health in
relation to sexuality, including access to sex
ual and reproductive health care services;
• seek, receive and impart information in rela
tion to sexuality;
• sexuality education;
• respect for bodily integrity;
• choice of partner;
• decide to be sexually active or not;
• consensual sexual relations;
• consensual marriage;
• decide whether or not, and when to have
children; and
• pursue a satisfying, safe and pleasurable
sexual life.
The responsible exercise of human rights requires
that all persons respect the rights of others.” 1
6
In 1995, and in a much simpler form, the
Platform for Action of the World Conference
on Women in Beijing included the following
statement in relation to women, which can be
taken as an internationally agreed (though not
enforceable) definition of sexual rights:
“The human rights of women include their right
to have control over and decide freely and
responsibly matters related to their sexuality.”
(Paragraph 96)
A small group of academics and human rights
advocates worldwide are deeply concerned with
what “sexuality” consists of. The papers in this
journal issue, however, are concerned more with
“matters related to sexuality” and their message
is loud and clear. Women are far, far from a
world in which such rights are near to being
attained, even predicated in as simple and
straightforward a fashion as in the Beijing state
ment. Indeed, many men are equally far from
having sexual rights, particularly men who are
not exclusively heterosexual in practice.
The concepts arising from the words “control”,
“freely” and “responsibly”, juxtaposed with
the threat to sexual rights posed by violence,
misogyny (including in reproductive health care)
and life-threatening sexually transmitted infec
tions, are the subject of this journal issue.
Matters related to sexuality
This journal issue offers a rich and varied
snapshot of matters related to sexuality, includ
ing problems with body image due to delayed
puberty in adolescents born with HIV infection;
the anti-sexuality content of so much sexuality
education material and of government policies
M Berer / Reproductive Health Matters 2004; 12(23):6—11
and statements by ultra-conservative secular
and religious leaders; the appalling extent of
sexual violence experienced by sex workers; and
the horror of sexual torture during armed con
flict and war.
Some of these papers make for deeply de
pressing reading. Yet they are also about the
multi-faceted fight for sexual rights in response
to anti-sexuality policies and stances and vio
lations of sexual autonomy. If there is any hope
of reducing the violence perpetrated by mem
bers of the human race on each other in general,
then there is hope also for attaining sexual rights.
What does it mean to support sexual rights
Human beings are sexual by nature. If nothing
else, one thing seems certain - people will never
stop having sex or wanting to have sex. At the
same time, government policy in every country
in the world legislates on and seeks to control sex
between its citizens in one form or another, as
does every religion. Whether their laws and
policies support sexual rights or restrict and
punish certain sexual practices and relation
ships is of crucial concern. This is where rights
and concepts of social justice come in.
It is without doubt easier to give examples of
anti-sexuality stances, because they proliferate
so widely, than to define a progressive stance on
sexuality which supports individual and public
health and the right of individuals, with special
care for children and young people, to respect
for their bodies and their feelings. Such a stance,
as I understand it, is one in which the sexual
nature of human beings is accepted. With this
acceptance comes a commitment by govern
ments to protect individuals from sexual harm
and to help them to protect themselves, and to
promote safe sexual relationships.
The devil, however, is in the details. Thanks to
well-organised international campaigns by
feminist activists, almost all governments have
laws and policies against various forms of rape
and sexual violence, including increasingly
against rape in marriage. Yet the extent and
type of implementation of these laws remains
seriously flawed and limited. Sexual torture of
both women and men in war and armed conflict
has been included in international law in recent
years, but goes virtually unpunished in spite of
its mass nature.
It is a well-known saying that prostitution is
the oldest profession, yet selling and buying
sex continues to be punished in criminal law in
most countries and socially frowned upon to
such an extent that life-threatening violence
against sex workers is endemic. Nor is sex
work itself widely understood to arise from
the social and economic marginalisation of
poor, unemployed, migrant, refugee and dis
placed women. Because sex work is criminal
ised, health services for those who engage in
selling and buying sex are of poor quality, few
and far between, and limited in scope and
outreach. The existence of HIV and AIDS have
made an important difference in this regard,
but the current abandonment by donors and
international agencies of support for HIV pre
vention strategies may mean that any such
progress is short-lived.
Moreover, the question of who is permitted to
be sexual with whom, and at what age, remains
deeply controversial. It is not accepted that
although a great many people practise lifelong
sexual fidelity to one person, this is not uni
versal behaviour; sexual infidelity characterises
many marriages as well as many non-marital
relationships. A few countries have decriminal
ised homosexuality and even fewer permit
same-sex marriages, and there are campaigns
for the acceptance of transgendered persons and
transsexuals in all world regions, though in
some countries more than others. The social
legitimisation of minority sexual identities and
of any sexual orientation that is not hetero
sexual, however, has a long way to go and a
steep and rocky road ahead.
Some forms of sexual behaviour exist at the
margins of society, such as consensual sado
masochism and bestiality, and are so stigma
tised that they can barely be mentioned aloud,
let alone studied. Even sex with oneself remains
a highly stigmatised behaviour, though it harms
absolutely no one and is the safest form of sex.
Finally, there is the question of sexuality
among adolescents and young people. Parents,
civil servants, teachers and those in charge of
education, most of whom seem to have total
amnesia about their own burning sexuality at a
young age, are only with great reluctance facing
up to the need for sexuality information and
education for youth that is not deeply prohibitive
and full of fear-mongering and dire warnings
7
M Berer / Reproductive Health Matters 2004; 12(23):6—11
of danger. Nor is the fact that most adults need
such information for themselves widely recog
nised or acted upon.
And as yet I have not even managed to
mention the subject of sexual pleasure nor the
controversy and passionate beliefs that are
aroused in discussions on who has a right to
sexual pleasure.
Social justice in relation to sexuality
and rights
Concepts of social justice in relation to sex
uality and sexual rights have barely begun to
t I
be developed or acted upon, let alone entered
into social consciousness. Ensuring social jus
tice on the part of governments in relation to
sexuality means ensuring that public and eco
nomic policies, and public services and educa
tion, prevent discrimination and abuse in
relation to sexuality, and promote sexual
health and rights. Social justice is denied in
forced and other non-consensual marriages, in
discrimination against homosexual men and
women because of their sexual orientation, in
the acceptance of so-called honour killings as
crimes of passion, and in arguments that
cruel and life-threatening punishments such
I
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Sex worker and her husband, a former client. Mexico City, 2000
8
M Berer / Reproductive Health Matters 2004;12(23):6-11
as stoning of women on grounds of adultery
are religiously-sanctioned. Issues of social jus
tice arise in discrimination against pregnant
adolescents, such as expelling them from
school, or denying single mothers social bene
fits for themselves and their children as a
judgement on them for having sexual relations.
Widowed and divorced women often suffer from
the social stigma of having survived their hus
bands in some cultures, and may be condemned
and ostracised if they have sexual relations at all.
Social justice in the community would take
action against such discrimination.
Several articles in this journal issue make
recommendations on how to respond to sexual
discrimination and promote sexual rights. These
include calls for:
• sexual torture to be prosecuted by interna
tional tribunals on war crimes and the new
International Criminal Court;
• the decriminalisation of sex work and prose
cution of violence against sex workers or
coercion of anyone to provide sex against
their will;
• freedom of speech in academic research
on matters of sexuality, including on highly
stigmatised sexual practices;
• information, sexual health and contraceptive
and abortion services to be made available to
young people;
• greater attention to the adverse effects on
sexuality, not just health, of medical proce
dures such as unnecessary and poorly carried
out episiotomy; and
• recognition of the effects on mental health
of matters related to sexuality and the
sexual body.
Barely touched upon in this issue, however,
is public health law and policy in relation to
sexuality. An example of the complexity of
these issues is found in a recent review of
bioethics and public policy by Udo Schuklenk,
on how to address transmission of HIV infection
in sexual relations. Schuklenk discusses whether
infection acquired during voluntary, consensual
sexual intercourse should be classified as a case
of harm to others or harm to self. Two main
positions emerge. One is that it is entirely a
problem of individuals infecting themselves and
others. The other is that the issue cannot be
reduced to one of individuals, but should rather
be seen as a public health matter because
societal interests are at stake if individuals
cannot keep from infecting themselves and
others. Thus, he discusses the example of a law
proposal in South Africa to classify voluntary
sexual intercourse between two people as rape
when one of the two is HIV infected, knows
about it and does nothing to disclose this to his/
her sexual partner.2 At the heart of the problem,
he says, are the following questions:
“If you have voluntarily unsafe sex with a person
whose HIV status is unknown to you, and you
acquire an infection during your sexual relation
ship with that person, have you been harmed by
that person or have you harmed yourself? I have
for many years maintained that an infection
occurring as a consequence of sexual intercourse,
under the circumstances described, should be
interpreted as a form of harm to self. After all, you
could have inquired about your sex partner’s HIV
status or you could have played it safe and
insisted on safe sex regardless... This argument
could certainly be applied to many cases under
which infections occur, that is between sexual
partners who know very little or quite possibly
nothing about each other... [where] it can
reasonably be argued that if you volunteer to
have unsafe sex with such a person, it is your
responsibility to protect yourself. It is less clear,
however, that this argument could succeed when
applied to people in long-term relationships, be
they married or otherwise.’’ 2
On the basis of such different points of view,
however, decisions have been made in a number
of countries about whether the law should
criminalise those who infect others with HIV,
whether marriage to an HIV-positive person is
permitted, and whether the promotion of
condoms to those who are not married is a
legitimate form of public expenditure.
Social policy on matters related to sexuality,
as with information on sexuality for young
people, can be punitive or supportive from both
a social justice and public health point of view.
An article on current US government policy
on women listed (among many others) the
following restrictive and anti-sexuality policies.
The head of a right-wing women’s group actively
opposed to the Violence Against Women Act was
chosen to serve on the National Advisory Com
mittee on Violence against Women. Bush’s party
9
M Berer / Reproductive Health Matters 2004;!2(23):6—11
codes and personal status codes, as well as other
backed the Personal Responsibility, Work and
forms of discrimination and social injustice, all
Family Promotion Act of 2003, which provided
point towards a clear imperative for progressive
among other things US$200 million annually
legal and social reform. The devastating and
to promote marriage and US$50 million to pro
damaging effects of locking people “in the
mote abstinence. His administration decided
closet” are being acknowledged. Sex workers
to remove information about condoms and
teenage pregnancy prevention from the US
and sexual minorities are organising to demand
their rights, and a growing number of efforts to
Centers for Disease Control and Prevention’s
website. Bush appointed as assistant secretary
address many matters related to sexuality are
for family support in the US Health and Human
being reported around the world.
Services Department a man who said that lowincome children whose parents are not married I
Promoting sexual autonomy and
should be last in line for certain benefits.3 More
safe,
consensual sexual relationships
recently, the Bush administration has required
money for HIV prevention spent abroad to focus
Throughout the past decade, this journal has
at least as much on encouraging people not to
emphasised the importance of laws and policies
have sex-while restricting protection to only
and of public health education and services
some of those who do.
that promote safer sexual relationships and
Yet while abstaining from sex with another
prevent the harm that can arise from unpro
person and having only one lifetime partner are
tected and non-consensual sexual relations.
the surest ways to avoid getting an STI, it is
Indeed, in this issue we continue this process
when people have sex outside these parameters
through a number of papers that address
that they need protection, and that is where
contraceptive use in relation to STIs, fertility
public expenditure needs to be targeted - both
and education, contraception for unmarried
before people get an infection and when they
youth, and the problem of uterine prolapse
need treatment afterwards.
in young, married women.
In the past few years, in response to what
Promotion of safe, consensual sexual rela
is, in the eyes of some, a fin de siecle loosening
tionships on the part of governments, supported
of sexuality morality, the global atmosphere
by ministries of health and education and a wide
in relation to what constitutes legitimate vs.
range of NGOs providing both information and
illicit sexual relations has moved so far to the
services, is still in its infancy. Progressive efforts
right that the US, whose Constitution separates
in public health education to ensure that sexual
church and state, has adopted and is legislating
relations are safe deserves much greater priority
fundamentalist Christian policies. Senior figures
in a world where the HIV epidemic is now al
in the Catholic Church hierarchy have had the
most 25 years old. Such efforts will not be
temerity to claim that condoms do not protect
initiated, however, until more governments
against HIV infection, without apparent concern
and other leaders in the community are con
or responsibility for the consequences for those
vinced that bodily integrity and sexual autono
of their parishioners who are unknowledgeable
my are human rights and that support for safe,
enough about the facts to believe them. And
consensual sexual relations, inside as well as
several Islamist governments are re-instituting
outside marriage, are a legitimate subject of
or seeking to implement forms of punishment
public education and expenditure.
and the death penalty in relation to sex outside
Thinking on these matters has received a great
marriage that should have gone out with the
boost from international youth movements and
Dark Ages.
youth culture, which are breaking down barriers
On the other hand, a growing number of
(viz. the concept of “gender-blending”) faster
meetings are being held on sexual and bodily
than most adults are willing to admit. As Holz
rights as human rights, e.g. in the Middle East
ner and Oetomo report in this journal issue,
and North Africa, and South and Southeast
youth are “engaging in different forms of sexual
Asia, in which many aspects of public health
relationships and finding their own sources of
and social policy in those regions are being
information, independent of government, reli
challenged. The analysis of civil codes, penal
gion and international organisations.”
10
M Berer / Reproductive Health Matters 2004;12(23):6-ll
Nevertheless, the evidence on whether youth
and youth culture and behaviour are moving
closer to a sexual rights and social justice stance
than that of their elders is not yet in. The
globalisation of information through visual
and print media and via the internet has
connected young people and broken down
cultural differences among them as perhaps
never before. On the other hand, it seems that
young people in several developing countries
(based on anecdotal evidence from researchers
in both Africa and Asia) are easily obtaining
so-called “blue movies” and learning a lot of
what they know about sex from them. What
these movies actually contain has not yet been
investigated by researchers on sexuality educa
tion. The almost ubiquitous spread of (soft)
pornography in advertising and in coverage of
fashion in women’s and men’s clothing, film and
TV, music videos, youth magazines and other
forms of popular culture, particularly in the west,
is also going global. Many people believe it has
gone too far because it is sexualising almost
everything, often in grossly gender-stereotyped
ways. This represents an enormous challengenot least because of the reactionary backlash it
is causing.*
Perspectives on the future
for the 10th anniversary of ICPD
It is fitting that we carry an article in this
journal issue on “ICPD at 10” which is about
how far the world has come since it agreed
the Programme of Action in Cairo in 1994.
*For an analysis of these trends, see Sorensen.4
Looking back, there has been incredible move
ment and progress, more than anyone would
have dreamed possible at the time. Looking
forward to the second decade of implementing
the ICPD Programme of Action, RHM will
devote the next two issues of the journal to
the theme of “Power, money and autonomy in
national policies and programmes” for No
vember 2004 and “Implementing ICPD: what’s
happening in countries” for May 2005. In
both cases, we are looking for analysis of
influences on policy and programmes and
what they have achieved since 1994 and what
they aim to achieve by 2014.
Attention to sexuality and sexual rights was
perhaps the most controversial part of the
Programme of Action in 1994, yet ten years
down the line, these issues are coming firmly
onto the agenda. If by insisting on their
legitimacy in the coming decades, we are finally
able to confront the beliefs and behaviour
that allow epidemics of sexually transmitted
illness to flourish and sexual violence and tor
ture to happen, we will have come a very long
way indeed.
Acknowledgements
Particular thanks to Asha George for pointing
me in the direction of authors, papers and topics
which have been covered in this journal issue.
Thanks also to TK Sundari Ravindran and Jane
Cottingham for comments and suggestions on an
earlier draft of this editorial, and to Crea and
Tarshi for the opportunity to hear and read the
papers on gender, rights and sexuality in South
and Southeast Asia at their meeting in Bellagio,
Italy, September 2003, one of which appears in
this journal issue.
References
1. World Health Organization
draft working definition,
October 2002. At: <http://
www.who.int/reproductivehealth/gender/glossary.html>.
Accessed 24 February 2004.
2. Schuklenk U. AIDS: bioethics
and public policy. New
Review of Bioethics
2003;l(l):127-144.
3. Assaults on women. The Nation,
7 October 2003.
4. Sorensen AD. Pornography and
gender in mass culture. NIKK
(Nordic Institute for Women’s
Studies and Gender Research)
Magasin. 2003;3:34-36. At:
<http://www.nikk.uio.no/
publikasjoner/nikkmagasin/
magasin/mag20033.pdf>.
11
A Training Manual for Health Managers
World Health Organization
Transforming Health
Systems: Gender
and Rights in
©S
J.
J
f
r
i
li
I
"fl
In the coming years, . . . programmes should
expand and upgrade formal and informal training in
sexual and reproductive health care and family
planning.
ICPD programme of Action, 1994, paragraph 7.23d
Introduction
Women are
Subject to particular
I ealth risks due to
nadequate
esponsiveness and
ack of services to
It eet health needs
elated to sexuality
and reproduction,
rhese problems
hould be
addressed.
sijing Platform for Action, 1995, paragraph 97.
Gender Equality
Is the absence of discrimination
on the basis of a person's sex in
opportunities and the allocation
of resources or benefits or in
access to services.
Gender Analysis
Examines the differences in the
roles that women and men play
and the power balance in their
relations. It examines how these
differences determine differential
exposure to risk, access to the
benefits of technology,
information, resources and health
care, and the realisation of rights.
1
Human Rights
Refer to an internationally agreed
upon set of principles and norms
contained in treaties, declarations
and recommendations at the
international and regional level.
Governments have an obligation
to respect, protect and fulfil
human rights. In practical terms,
international human rights law is
about defining what governments
can do to us, cannot do to us and
should do for us.
The 1994 International Conference on Population ar
Development in Cairo and the 1995 Fourth World Confereni
on Women in Beijing declared that women s empowerment ar
reproductive rights arc essential for the realisation of sexu
and reproductive health. The curriculum Transfortning Heal
Systems, Gender and Rights in Reproductive Health was created
direct response to this call.
Reproductive health exemplifies the complex interactic
between biologic differences between the sexes, and gend
power differentials. Many of womens reproductive heal
problems are not simply the result of their having a womb <
bearing children. They are a consequence of discrimination ar
lack of power to decide about how and with whom they w
have sexual relations, and whether and when to bear childre
For women, sexual and reproductive health are not ju
dependent on their own behaviour but, more fundamental
they are dependent on the behaviour of their sexual partnei
other family members and service providers.
Therefore, in order to achieve improvements
reproductive health, programmes and policies must promo
gender equality and the reafisation of sexual and reproductr
rights for women.
This course focuses on improving participan
understanding of gender and rights so that they can plan mo
effective programmes and services. It offers both conceptu
and technical skills and tools for pactitioners to integrate tl
promotion of rights and gender equality into their policie
planning and programmes.
The most positive aspect of the whole
initiative process was being engaged in a
collaborative international effort to develop a
new course which has enormous potential to
bring about positive change.
Member of collaborating institution
The Beginnings
In April 1996 a group of women from different parts of
The Process
® includes a gender and human rights perspective
I consider the
course the best so far
out of all the courses I
have attended.
It really changes you
personally and
enhances your work.
® has a health systems orientation
South Africa
the world committed to women's rights and reproductive
and sexual health came together to review existing
training courses on reproductive health. They identified
the need for a course which
® is accessible to health mangers in developing and
developed countries.
The resulting training initiative in gender and
reproductive health is a collaborative project of the
Harvard School of Public Health's Francois Xavier
Bagnoud Center for Health and Human Rights, USA
Women's Health Project at the University of the
Witwatersrand, South Africa
® World Health Organization, Geneva, Switzerland.
The Initiative is run by a coordinating committee of
individuals from the three institutions and three
consultants who are experienced international trainers in
gender and reproductive health issues. The Initiative is
coordinated by the Department of Reproductive Health
and Research of the World Health Organization.
Transforming Health Systems: Gender and Rights in Reproducti
Health is a curriculum for health managers that is the rest
of a four year testing and adaptation process involvii
strong collaboration with institutions in different parts
the world.
® The draft core curriculum was pre-tested as a pilot
course in Johannesburg, South Africa in AugustSeptember 1997 for 32 progranune managers, policy
makers and trainers from southern Africa
Four training centres in Argentina, Australia, China and
Kenya were selected from among 30 applicants to test
the course.
® To ensure that the curriculum offered by each of the
selected centres was adapted appropriately a Regional
Adaptation Workshop was held in November 1998.
At this meeting representatives from the training centre;
and members of the coordinating committee discussed
and developed ways to integrate regional issues into the
core curriculum.
• During 1999, this course was offered by the four
collaborating institutions
e Centre for African Family Studies (CAPS), Nairobi,
Kenya;
Centre for the Study of State and Society (CEDES)
Buenos Aires, Argentina;
® Key Centre for Womens Health in Society,
University of Melbourne, Victoria, Australia;
® Yunnan Reproductive Health Research Association
(YRHRA), Kunming Medical College, Kunming,
China.
® Pooling their experience of running the course,
representatives &om the^diSefenf collaborating centres
and the coordinating committee evaluated the course in
early 2000. New materials developed by the regional
partners have been incorporated into the curriculum,
thereby increasing its usefulness to trainers in different
regions of the world.
This curriculum provides training to health manage
so they can
9 Use and generate information
• Advocate and put in place policies
o Design, implement and manage programmes
for reproductive health services which are both
gender sensitive and respectful of human rights
® The revised core curriculum was again tested in
South Africa in September 2000 after which the
curriculum was finalised.
The Curriculum
training methods used
• draw on participants' existing
knowledge
9 allow for participants to learn
from each other and for facilitators
to learn from participants
9 facilitate learning from experience
• through this process enhance
knowledge, skills and insights
9 The curriculum will be published in 2001.
Goals of this Initiative
To build institutional capacity in training
centres around the world so that they can
offer regionally-appropriate, high-quality
training in gender and reproductive health
covering aspects of research, service-delivery
and policy development
To increase the number of programme
manager, planners, policy-makers and
trainers with both a gender perspective on
reproductive health, and the technical
skills needed to contribute to increasing
access, quality and comprehensiveness of
gender-sensitive reproductive health
I
policies and programmes.
11
The curriculum consists of six modules:
• Gender
9 Determinants of health
• Reproductive rights
9 Evidence
® Policy
• Health Systems
The first three modules on gender, determinants of health ar
reproductive rights provide the conceptual foundation of tl
course. These modules demonstrate the interconnectedness <
gender, rights and reproductive health issues within tl
broader socio-economic and political context.
In the last three modules, gender equity and human righ
are applied to the collection, analysis and use of evidence, tl
formulation and promotion of policy, and the development <
well functioning health systems.
Reproductive health is the substantive focus of the cour:
and forms the basis of all the case material, examples, ar
exercises. Each module includes six or seven sessions some <
which can be used to introduce new technical developmen
or regional programmatic debates in reproductive health.
I was concerned before starting that it may not
have been appropriate because of the level of power
that I have and that I may not be able to influence
policies, but that soon disappeared! It was challengii
and it clarified and built on my knowledge base.
Australia
The Training Manual
4 The course clarified
ly thoughts and feelings
nd empowered me to
srbalise my feelings. I
m gender sensitive
ut not completely
'oman-focused. Both
?xes have different
eeds and whilst there
inequality, we must
aspect that both sexes
ave rights. 44
yuth Africa
Transforming Health Systems: Gender and Rights in Reproductive
Health, is divided into two main sections. The first section
contains a brief chapter on the people who the course is for,
what it consists of and how it is run. The second section
presents the teaching material for each of the six modules.
Each module includes:
The module brief, giving the objectives, rational, and
essential readings for the module, and a table outlining
the sessions contained in that module;
® Session guidelines for each of the sessions, explaining
the objectives, methodology and detailed guidelines on
running the session;
® Lecture notes and handouts for the various sessions
included in that module.
This section also contains a detailed description of the
opening session, and of the concluding session which is
structured so that participants are able to make linkages across
all the modules and consohdate what they have learnt during
the course.
Several annexes include additional material useful to
trainers and facilitators of the course.
• Information resources, and where to access the readings
mentioned in the modules
® Model timetable
® Assessment tools
• Resource list on participatory methods
@ A compilation of “ice-breakers” and “energiser” exercises
for groups.
The training manual is the outcome of a process of
sustained interaction between a number of actors in different
parts of the world. This has ensured that the content of this
manual has undergone several iterations, modifications and
refinements to produce an end product that offers a
comprehensive and innovative look at gender and rights in
reproductive health.
Course Structure
Gender
This module lays the basis for understanding how t
combination of biological differences and gender inequalit
has an impact on the health of women and men, on th
health seeking behaviour and their access to health services
On completion of this module participants will be able to
® understand how gender is constructed, maintained and
reinforced, and the difference between sex and gender;
® understand how norms and values about gender roles ai
related to gender based inequalities in workloads, in access
education, control over economic resources and power;
• have the skills to apply gender analysis to specific heal
conditions, to understand how gender impacts on
health status.
Determinants of health
This module examines the broad socio-political and econon
context within which health must be understood. It present
framework for analysing the social construction of health a
illness at household, community, national and international lev<
On completion of this module participants will be able to
® apply a social determinants framework to the analysis ol
health;
• identify the factors affecting women’ health as they relai
to their social and economic status and as they relate to me
® understand the various levels at which health determinai
operate, and how these levels interrelate;
® gain an insight into how such analysis can shape and
inform policies and interventions and to become aware
the structural factors underlying the impact or success c
pohcies and programmes.
eproductive Rights
his module aims to provide participants with the knowledge
>out basic concepts of rights; participants learn to appreciate
ays in which unequal gender power relations underlie the denial
f women’s reproductive and sexual rights in different settings.
t the end of the module, participants will be able to
state the basic concepts of rights, including reproductive
and sexual rights;
understand the ways in which rights are defined in
international human rights documents and how they are
used by various actors;
identify and describe the institutions which are
promoting, monitoring, implementing and enforcing
human rights norms relevant to reproductive health;
apply a reproductive and sexual rights approach to
research, interventions, service delivery and policy
development;
conceptualise and apply a reproductive rights model to
concrete examples
Policy
The new perspectives
and new methods learned
in the module on deter
minants of health can
greatly help the obtaining
of real and objective
research results.
This module equips participants with the tobisto understar
and monitor the policy environment within the larger sock
economic and political context. It also illustrates how gende
sensitive information is essential for rational policy develop
ment as well as service planning.
At the end of the module, participants will be able to
• conceptualise the policy-making process including the
range of factors which influence policy decisions and
policy implementation at various levels;
® identify the components of strategy design/planning foi
policy changes;
® identify and address gender inequality in policies and
programmes;
• use international agreements for motivating changes in
policy or implementation;
use specific tools to analyze policy making processes am
design intervention strategies to impact on current
policies or programmes;
China
Health Systems
This module demonstrates how the organization ar
functioning of health systems impact differently on wome
and men, often to the disadvantage of women, and how i
address this.
tridence
his module promotes the effective use of existing data and
f data monitoring systems to improve gender equity and
productive health policies and programmes.
t the end of the module, participants will have
an overview of different types of evidence useful to
health managers and policy makers;
the capacity to recognise the main forms of bias, particularly
gender bias in research design, implementation and analysis;
the ability to locate, analyse and use different types of
information to promote gender sensitive reproductive
health services;
the capacity to develop indicators for monitoring and
assessing gender equity in this area.
This course affirmed
my belief that gender
inequality exists, and
made me realise that
there is something that
we can do about it.
Australia
At the end of the module, participants will be able to
© understand the impact of the macroeconomic
environment and health financing on the organisation c
health care services;
© understand the interrelationship between the component
of a well-functioning health system;
• use methodologies for gender-sensitive planning and
managing health systems change;
• apply the tools learned throughout the course to a
health systems issue affecting reproductive health
Current debates in Reproductive health
In addition to the six module, the course schedule has rooi
for special sessions and guest lectures on current debates :
reproductive health of relevance to the country/region whe
the course is held.
6 The course gave a wide perspective
This course has empowered and
given me the practical advocacy skills to
try and change policies in the
Obstetrics and Gynaecology Department
of our Hospital.
Kenya
f gender through use of interesting
nd participatory methodology that
eld interest throughout the course.
ustralia
iegional Collaborating Institutions
entre for African Family Studies (CAFS), with
?adquarters in Nairobi (Kenya) and regional offices
Lome (Togo). Founded in 1975, CAFS is an African
gional institution dedicated to strengthening the
ipabilities of organizations working in sexual and
productive health throughout sub-Saharan Africa,
.‘rving both Anglophone and Francophone Africa,
<\FS provides management and technical training in
fxual and reproductive health throughout subiharan Africa, and has been an international leader
the translation of gender and reproductive rights
?rspectives into the realities of service delivery.
entre for the Study of State and Society
TDES), established in 1975 in Buenos Aires,
rgentina, is a leading social science research
•ntre dedicated to basic, and applied research,
jst-graduate training of social scientists, and
chnical assistance. In 1993, the Health, Economy
id Society Department initiated the Regional
ogram on Social Research, Training and Technical
ssistance on Reproductive Health and Sexuality for
rgentina, Chile, Peru, and Columbia. This Program
is since sponsored national and regional training
orkshops throughout Latin America, a Resident
jIIows Regional Program, and most recently, a
aster Program on Social Science and Health in
Elaboration with the Facultad Latino-americana de
encias Sociales (FLACSO-Argentina)
)
Key Centre for Women s Health in Society,
University of Melbourne, Victoria, Australia was estab
lished in 1988. It is a multi-disciplinary research and
teaching institution in the Faculty of Medicine,
Dentistry and Health Sciences, and was an
international forerunner in the development of post
graduate course in women's health. In 1993 the
Centre became a WHO Regional Collaborating Centre
for Women's Health. As part of their WHO mandate,
they initiated a regional Network in Women's Health,
expanding their training activities into Vietnam,
Pakistan, and Fiji, and establishing collaborative
research and institutional linkages with Indonesia, the
Philippines, Thailand, Vietnam, and the South Pacific.
Yunnan Reproductive Health Research Assoc
iation (YRHRA), Kunming, China, was founded in
1994. It was the first NGO established in China to
promote multi-disciplinary reproductive health
research and training, and to raise public awareness of
reproductive health based on a woman-centred and
community-based approach. YRHRA faculty represent
more than 30 institutions in China, and have a close
relationship with academic institutions and NGOs in
neighbouring countries such as Thailand. YRHRA
sponsors reproductive health courses and workshops
within China, with participants from neighbouring
Asian countries, for both NGOs and government family
planning and maternal and child health institutions.
The International Coordinating Committee
Jane Cottingham, BA, MSc, is Technical Officer for
Women's Perspectives and Gender Issues at the
Department of Reproductive Health and Research of the
World Health Organization in Geneva. She works with
women's health groups, policy-makers and scientists to
ensure that women's rights and gender perspectives are
integrated into the reproductive health research agenda.
In 1976 she co-founded ISIS Women's International
Information and Communication Service. During her 11
years as Director of ISIS, she helped to create an
international women's information network and co
authored and edited numerous publications on women's
issues. Ms Cottingham received a Masters in Population
Sciences from Harvard School of Public Health in 1991.
Sharon Fonn, MD, PhD, FFCH, is a medical doctor
with a PhD in community health focussing on
occupational epidemiology, and a public health
specialist. She is the Director of Research at the Womems
Health Project in Johannesberg and is an Associate
Professor in the School of Public Health at the University
of the Witwatersrand. Dr Fonn has worked extensively in
and with the public health care system in South Africa.
She has also initiated and been involved in research on
the functioning of health services and womems access to
health services and health related behaviour in Africa,
and has worked for many years on cervical cancer. Dr
Fonn has been involved with numerous international
agencies working on gender and health research, taking
account of gender relations in health policy and
programmes, and developing training materials and
running training courses on how to promote gender
equity in health programming and service delivery.
Claudia Garcia Moreno, MD, MCM. For tl
last 10 years Dr. Garcia Moreno's work has focust
on women's health, including reproductive healt
and on gender and health. She participated in tl
negotiations on reproductive health and rights
the International Conference on Population ar
Development in Cairo (1994), the Social Sumrr
(1995) and the Fourth World Conference c
Women in Beijing (1995). She was Chief
Women's Health in the World Health Organizatic
from 1994-1998 and now works in the Glob
Programme on Evidence for Health Policy whe
her primary responsibilities include mainstreamir
gender in WHO, and violence against women. SI
co-ordinates a Multi-country Study on Women
Health and Domestic Violence Against Womt
being conducted in 7 countries.
Sofia Gruskin, JD, MIA, is the Director of tl
International Health and Human Rights Program
the Frangois-Xavier Bagnoud Center for Health ar
Human Rights and Assistant Professor in Populatic
and International Health at the Harvard School
Public Health. The emphasis of her work is on tl
policy and practice implications of linking rights
health. Ms Gruskin currently serves as an advisor
both UNAIDS and WHO, is a Board Member
Amnesty International USA and a founding memb
of The Consortium for Health and Human Right
She is the Editor of the International Journal
Health and Human Rights, and has authore
numerous chapters and articles on issues relatir
to health and human rights.
arbara Klugman, MA, is Director of the Women's
2aIth Project in Johannesburg, South Africa. She
as chairperson of the core group appointed by the
inistry of Welfare in South Africa to develop a new
jpulation policy for the post-apartheid government,
id was responsible for the development of a Green
iper and a draft White paper on this topic. She was
the South African government delegations to Cairo
id Beijing, responsible for negotiations on health,
le has published widely on population policy, sexual
id reproductive and women's health, gender and
omen's rights. She is a member of the Editorial
dvisory Committee of Reproductive Health Matters
id the Essential National Health Committee of the
iuth African Department of Health. She is currently
orking on national and international policy and
aining initiatives to mainstream gender in health.
delina Ndeto Mwau, MA, is currently Executive
rector of the Women's Resource Centre (Kenya) as
ell as founder and steering committee member of
e Coalition on Violence Against Women (COVAW).
om 1994 to 1997 she was the East Africa
ogramme officer for Women in
Law and
avelopment in Africa (WiLDAF) where she worked
strengthen the capacity of women's rights NGOs
roughout Eastern Africa. Prior to that she had
orked for six years as gender programme officer for
xfam, Kenya. She is the co-author of the Oxfam
ender Training Manual. Ms Mwau is currently one
the 21 commissioners nominated by all religious
oups and civil society organisations to review the
institution of Kenya.
jndari Ravindran, PhD is an economist with
(tensive research experience in women's health and
ivelopment. She is currently Honorary Professor at
e Achutha Menon Centre for Health Science
udies, Kerala, India, and teaches courses on gender
sues in health and health and development as part
their MPH Programme. She is also Honorary
cecutive Director of the Rural Women's Social
fucation Centre, Tamil Nadu, India, a grassroots
omen's organisation. Formerly co-editor of Reprojctive Health Matters, Dr Ravindran has published
1
extensively on various aspects of women's social
development, and on the linkages between gender,
development and health.
Rachel Snow, ScD is Unit Head for Reproductive
Health at the Institute for Tropical Hygiene and Public
Health, University of Heidelberg Medical School,
Germany. She has been teaching international
reproductive health courses for over 10 years, at
Harvard, the University of Heidelberg, and
internationally. She co-teaches the advanced module in
Reproductive Health for Trop-Ed-Europe, a European
Masters Program in International Heath. Her research
focuses on improving measurement of the reproductive
health burden in poor countries, improving delivery of
appropriate contraceptive and diagnostic technologies,
and wider application of a gender analysis in health. She
is a founding editor of The African Journal of
Reproductive Health.
Makhosazana Xaba, RN, RM, B.Cur E et A, is
currently the Country Representative for Ipas-South
Africa based in Johannesburg. In 1991 she co
founded the Women's Health Project and worked
there for nine years. From 1996 to 2000 she was the
Director of Training and Capacity Building. She has
experience as a nurse and midwife, a health systems
researcher and a gender trainer, and has published
on women's health and quality of care. She is the cochair of the Gender Advisory Panel of the Department
of Reproductive Health and Research in WHO. Ms
Xaba was an anti-apartheid activist and, while in
exile, obtained a diploma in Journalism in Berlin,
Germany, and subsequently worked as a radio
journalist in Zambia.
4b I'm better able
to operationalise
the gender
approach to
reproductive health,
conduct better
policy analysis and
advocacy, and am
more confident in
addressing gender
disparities.M
Participant at the pilot course in South Africa, 1997
Department of Reproductive Health & Research
World Health Organization
20 avenue Appia
CH-1211 Geneva 27
Switzerland
Phone: +41-22-791-4213
Fax: +41-22-791-4171
E-mail: rhrpublications@who.int
Website: http://www.who.int/reproductive-health/
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Sex Workers and their right to health care
Women and girls in the commercial sex industry -- including millions who are
trafficked, forced or sold into the trade — are overwhelmingly at risk of contracting HIVAIDS. In Asia, an estimated 60 percent to 80 percent of those in the sex industry are
infected with HIV.
Women in sex work almost always are compelled into it by sexual violence, poverty and
discrimination. They often are debt-bonded to pimps and brothel owners, and they are
marginalized within society. They are vulnerable to violent abuse, including rape and
robbery, by local police. Many are young girls, who are much sought after. They often
are unable to speak the local language and incapable of negotiating safe sex -- much less
their freedom. Their situations are desperate and their lives short.
Almost all discussions of health and sex work focus on sexually transmitted diseases,
until recently almost exclusively in terms of the risk of sex workers infecting others. Only
in the last few years have discussants occasionally talked in terms of how to help sex
workers protect themselves from STDs. This change in view does not go far enough:
health care for sex workers should be more than concern for their reproductive system.
It is important to understand that health, per se, is not a major topic of discussion among
sex workers. Rather, it is the effect of the laws and policies that segregate them from the
rest of society and the need to change the legal and social context within which sex work
takes place. Nonetheless, it is possible to identify some health issues that do concern sex
workers.
Health issues
Perhaps the most important issue is violence and the threat of violence, which is
encouraged by the illegality of sex work in most countries and the resistance of law
enforcement agencies in all countries to take seriously sex workers’ reports of being
raped, or to seriously investigate murder when the victim is a sex worker. It is essential to
not underestimate the impact of police on sex workers’ lives. Even in countries where
prostitution, per se, is not illegal, prostitutes and other sex workers are often arrested
I
under laws dealing with vagrancy, loitering, public health, and public order, and no
matter where prostitutes work, they tell stories of police raids.
A second major issue is emotional stress and depression, associated with managing
stigma and living with the fear of violence and arrest, which in turn affect the use of
drugs and alcohol to manage stress. Both of those health hazards would be significantly
reduced by the decriminalisation of all aspects of sex work and the development of
occupational safety and health regulations governing the working conditions in managed
sex work (e.g., brothels, strip clubs, massage parlours, night-clubs, etc.) The enforcement
of laws against sexual assault, kidnapping, extortion, and similar offences, is necessary to
deal with cases of coercion and violence.
Other health hazards, such as repetitive stress injuries (e.g., to the wrist and shoulder
from hand stimulation of the clientjaw pain from performing fellatio), bladder and
kidney infections, and sexually transmitted diseases can be prevented with proper
training, and the use of barriers for wet sex (i.e., sex involving contact between mucous
membranes and bodily fluids). However, an almost invisible health hazard has to do with
the reluctance of sex workers to inform health care providers of their work, for fear of
being treated with contempt.
Sex workers’ health care
Health care for sex workers must consider the entire body, not simply the sexual and
reproductive systems. In addition, health care providers who work with sex workers must
accept them without moral judgments, must consider their sexual labour as work, not
pathology, and must recognise the importance of and the right to safe working conditions.
They must recognise the legitimacy of sex workers’ relationships, and not assume that
spouses and lovers are stereotypically violent 'pimps’ (anyone who receives an income
from sex workers is defined by law as a pimp).
It is essential to provide good health care and other services it is a mistake to think that
because there is not much money, it is better to focus on the health problem framed by
outsiders - sexually transmitted diseases - because it will only perpetuate the stigma and
shame that has caused such programmes to fail in the past. The emphasis must be on
primary care, nutrition, and physical safety, and only then on how to prevent STDs.
Sex worker’s ostracized status remains a fundamental challenge to improving their lot
and reducing the threat of AIDS. Being women in sex work puts them into a caste - a
class of their own. This caste-class occupies the lowest rung in the hierarchy and is
structured outside the hierarchy, as we know it.
The human rights approach to sex work, explains that some of the rights particularly at
stake for women in sex work are the right to be free from discrimination (Article 7); the
right to be free from torture and from degrading and cruel treatment or punishment
(Article 5); the right to equality before the law (Article 6); the right to freedom of
movement (Article 13); the right to association (Article 20); the right to freedom of
speech (Article 19); and the recognition of their families as legitimate units and sex
workers' entitlement to state benefits such as education and housing (Articles 25, 26 and
27).
When sex workers are treated as second-class citizens, and in extreme cases, as less than
human, then all women who dare to step out of their social constructs will be labelled as
whores and treated accordingly. For these reasons, the rights of all women are dependent
on the rights accorded to the most vulnerable women.
The only way to ensure that health care is provided in a way that is acceptable to sex
workers is to involve them in the design, implementation, and evaluation of the
programme. But not in a token manner. Form a managing board more than half of the
members of which are sex workers, whether they call themselves prostitutes, dealers,
working women, ladies of the evening, hustlers, drag queens, hospitality workers,
entertainers, dancers, strippers, or people who have fun with foreigners. Hire sex workers
on the same economic basis as other workers (i.e., not just for stipends or for the profits
realised from social marketing of condoms). Not only can they be trained as medical
assistants and counsellors; they often have managerial and organising skills that are
invaluable in any workplace.
Adv Kamayani Bali Mahabai
CEHAT
1 UJ
EDITORIAL
The theme of sex work and law enforcement was chosen at
meetings about trafficking and HIV, highlighting the discrepancy
between the agendas of sex workers and donors. Despite the
fact that most programmes touching on sex workers address
HIV/AIDS or, now, trafficking, most sex workers point to the
state as their greatest problem. Most locations have laws and/
or policies that adversely affect the lives of sex workers. Some
limit sex workers’ mobility. Even in places where sex work is
not against the law, sex workers have reported difficulties with
police. Sex workers around the world have been victims of
police violence. Adding insult to literal injury, in many places law
enforcement pays little attention to violence committed against
sex workers, with little recourse even in places that take pride
in the rule of law.
REAL-LIFE EXPERIENCES
Real-life experiences with law enforcement described in this
issue include violence, bylaws used prejudicially against sex
workers, abuse of power and migration issues.
A shocking 97% of sex workers in Phnom Penh reported
having been raped in the past year in Carol Jenkins’ article.
Violence also features in articles from all over the world, from
Africa to Asia, Australia, Europe and the Americas. The West
prides itself on the rule of law in its less violent environments.
However, this is not what sex workers described to researchers
in Rachel Wotton's Sydney, Teela Sanders’ Manchester and
Juhu Thukral and Alex Murphy’s New York.
Transgender sex workers suffer greater physical abuse than
other sex workers in some places. Nicole Fick offers an extreme
example of anti-transgender violence by police in her piece.
Another abuse of power described by Thukral and Murphy
involved sex workers being taken into police custody and in
some cases detained without legal reason. This is remarkably
similar to the reports received by Empower about sex workers
extra-legally detained by anti-trafficking non-governmental
organisations.
Sanders describes the use of Anti-Social Behaviour Orders
against sex workers, and how these are used to make sex work
more difficult. Consequences are serious: sex workers’ health
may be jeopardized because sex workers do not negotiate with
and check out their clients before getting into the clients’ cars.
This leaves sex workers more vulnerable to client violence and
to difficulties negotiating condom use.
Sex workers in Hong Kong suffer discrimination both on the
street and indoors. Police visit sex workers in their workplaces
and disrupt their business. Sex workers without legal residency
are easier targets and suffer more than others.
Queensland has both legal and illegal sex work. Sex workers in
the illegal sector reported far more harassment by police than
sex workers in legal sex work.
iat can be adapted
as.
Carol Jenkins
SEX WORKERS EXPERIENCES WITH THE
—
LOCAL LAW ENFORCEMENT IN SOUTH AFRICA
g with sex workers
Nicole Fick
in some cases to
:h Africa, Australia,
egal components,
of accompanying
itation in Australia,
a. These findings
ly useful effort for
s to be seen what
I in the extremely
irch participants in
programs in which
thereby are seen
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similarly humanise
heir report Behind
art of humanity and
o counter the high
ound the world.
research ethics, it
with sex workers
ia, Cambodia, and
e for sex workers'
an by sex workers
the research and
minent description
article, but this is
>ve research in this
is much as other
couraging to read
>n remains rare but
n has been forced
ched groups. One
After some of the
luding one trial in
<ers protested, the
HUMAN RIGHTS AND LEGAL SERVICES FOR
SEX WORKERS IN CENTRAL ASIAN REPUBLICS:
POINTS FOR CONSIDERATION
Yury Sarankov, Vera Dite, Adrian Webster,
Robin Montgomery
3
4
8
THE RELATIONSHIP BETWEEN STREET-BASED
SEX WORKERS AND THE POLICE IN THE
EFFECTIVENESS OF HIV PREVENTION STRATEGIES
11
Rachel Wotton
DECRIMINALISATION AS PARTNERSHIP:
AN OVERVIEW OF AUSTRALIA’S SEX INDUSTRY
LAW REFORM MODEL
Kate Demaere
14
REGULATING THE WORLD'S OLDEST PROFESSION:
QUEENSLAND’S EXPERIENCE WITH A REGULATED
SEX INDUSTRY
16
Charrlotte Woodward, Jane Fischer
LAW UNREASONABLY ENFORCED: EXPERIENCES
OF FEMALE SEX WORKERS IN HONG KONG
Kendy Yim
19
SEX WORKERS AND POLICE IN NEW YORK CITY
Juhu Thukral, Alexandra Murphy
21
THE IMPACT OF NEW UK LEGISLATION ON
STREET-BASED SEX WORKERS: ANTI SOCIAL
BEHAVIOUR ORDERS
Teela Sanders
23
US SPONSORED ENTRAPMENT
Empower Chiang Mai
25
RESCUE?
27
TENOFOVIR TRIAL AND ETHICS UPDATE
28
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CAMBODIAN SEX WORKE
THEIR OWN RESEARCH
■
Carol Jenkins,
In 2004, Cambodian sex workers had the opportunity to select
a topic and conduct research on it, in order to improve policy
that affects their lives and working conditions. As the Principal
Investigator, I never set the topic or methods in advance but first
discussed the possibilities with the two best organized groups
of sex workers in the country, Women’s Network for Unity
(WNU) and the Cambodian Prostitutes Union (CPU). In early
2004, we met in two separate groups and I presented them
with the opportunity by simply stating that there were funds
designated for research and advocacy among sex workers
and if they were interested, I could help them design a piece
of research, train them to do it and help them in disseminating
the results. Each group was quite enthusiastic and without
hesitation prioritized violence, including sexual violence, from
various types of men as the single greatest bane in their lives.
I remember saying to WNU folks, "You know, if we do a truly
representative sample and the frequency is not high, there will
be little to advocate with.” They all gave me a strong look,
and said essentially, don’t worry, the frequency is very, very
high. As a researcher, one is always concerned with ad hoc
frequency estimates made by individuals, because, after all,
any single person only has a narrow view of the whole social
scenario. How could he or she really know? So be it for my
own naivete.
results would be st
context in which tl
every Sth person v
about the violenc
translated and trai
methodology, the
a good idea to int
major perpetrators
possibility of findin
to understand the
who were recruitec
I decided we would try the relatively new method called
respondent-driven sampling (RDS), also sometimes known as
chain referral sampling. I had attended a workshop that did
some training on this method and had watched as a friend
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men said they had
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er interviewers and
by brothel owners,
L- I
THE LEGAL CONTEXT
Sex work is illegal in South Africa and the Sexual Offences
Act prohibits the selling of sex and all related activities at
present. However sex workers in South Africa are rarely
arrested under this Act. It is easier for the police to prosecute
sex workers for minor offences and to use local municipal
bylaws referring to loitering, littering or even obstructing
traffic in this regard.
Visions. Alternate
put together teams
nee in order to deal
and welfare issues
d beyond.
In addition SWEAT monitored arrests in four different areas
of Cape Town between February and July 2004. Sex
workers indicated that they had been arrested as often as
four or five times in a month. Some individuals said that they
had been arrested almost every day. When sex workers are
arrested they are usually held for 48 hours, fingerprinted
and released without appearing before a magistrate.
Sex workers are also often fined for minor offences like
loitering, loitering with intent to solicit and littering. These
fines vary between ZAR50 to ZAR500 (US $5 - 50). Sex
workers have complained that they do not get receipts for
fines. Sex workers have also reported to us that their clients
have often been asked to pay a bribe to the police.
what happened in the flowing way:
ill have a problem now with the
police. We are looking for safety,
but they just spray gun us or they
beat us up.
project. '
behaviour
SWEAT,
interviewe
a number of reports of
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in a more extreme example of the abuse
of sex workers while in police custody Sex workers in police
another person described how the police, custody are often refused permission
had physically assaulted a transgender to make a telephone call to let their
sex worker. She toid of the police kicked families know where they are. We have
the person while she was lying on the had reports of people being refused
ground in the cell and that they damaged medical treatment for bum wounds and
her internal organs. While they were ' a dislocated shoulder while in police
kicking her, the police officers told the custody. One sex worker spoke of the
sex worker that they would make her bad conditions in which they are held
into a woman, implying that they would■ when they are arrested:
do this by kicking her genitals. They kept
her in the police cell for two days before “The police are also a problem, if
providing medical treatment. The doctor they arrest you on Friday they will
who examined her indicated that she had keep you in the cells until Monday
almost died from injuries to her stomach, and you will be arrested without
liver and spleen.
seeing the magistrate. We do not
get food in the cells. We only get
Transgender sex workers are particularly two slices of dry bread. You do not
vulnerable to police abuse. They are even get a chance to wash. “
not only vulnerable as a result of being
sex workers but also on the basis of Another sex worker related her experience
their gender identity. SWEAT has had of the police asking her for sexual favours
r
Friday
icipate in this
'e being asked
'/
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ENFORCEMENT IN SOUTH AFRICA
SOURCES OF INFORMATION
Seventeen sex workers talked about their experiences for
SWEAT'S recent study. Many of the participants spoke of
their difficulties with the police. Sex workers working on the
street are more vulnerable to violence and harassment at
the hands of the police because they are much more visible
than those who work indoors. The experiences discussed
here were mostly reported by street-based sex workers.
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Sex workers experience other serious difficulties with the
police and report that they have been harassed, insulted,
physically abused, arrested when they were not working,
or forced to have sex with members of the police.
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if she had to say she had been raped:
that could be better utilised elsewhere.
f7 don't think the police will believe
anything, if I have to go there and
tell them I’m raped now, I’m a sex
worker, they’re going to think that
you then, in the job, you’re then
doing these things for money, so
how can you say you have been
raped, that, things like that, that’s
why I’m very scared, that’s why I
avoid being raped and stuff like
that, but you can’t avoid, so if you
must get raped you rather, keep
quiet, because I know the police
are not going to believe. ”
It is crucial that sex workers are informed
of their rights and understand the legal
procedure surrounding arrests. It also
helps if sex workers are aware of some
of the actions they can take to avoid
arrest and protect themselves. To this
end SWEAT produces informational
pamphlets and engages in discussions
around safety with sex workers during
our outreach work.
SWEAT’S RESPONSE
SWEAT’S broad approach to dealing
■the
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SWEAT helps sex workers who want
to make a complaint about police
mistreatment by taking their legal
statements and going with them to
the police station when they make the
complaint. We explain the process
at n<
:o b ' " wee' ' a th<
Although SWEAT will assist any
individual sex worker, our main focus is
on engaging a number of sex workers
experiencing the same mistreatment.
This will enable us to take group litigation
forward that will have a greater impact
for sex workers overall. This litigation
is difficult to follow through because
ongoing information gathering and
contact with the affected individuals is
needed.
In the past law enforcement officers
have said that they arrest sex workers
largely when community members
complain about sex work, but recently
we have seen an increase in random
targeting of areas and increased arrests.
This has coincided with an inner city
urban renewal policy in Cape Town
that has adopted a “zero tolerance”
approach. A number of business and
civic interests have recently been
lobbying for the removal of “crime and
grime" from the streets of Cape Town.
A bylaw has been proposed for the
promotion of a safe and secure urban
environment. This proposal was punitive
ure <
argel
e h<
ss,
*
Don’t get into a cor w
client in if.
Don’t lean into the co
.v in a cbent - it he m<
hurt you.
« Check that the car de
arrest sex workers.
SWEAT has gathered statements about
police actions in specific areas during the
course of our outreach work in response
to an increasing number of individual
complaints. Once these statements were
taken, the trends were summarised and
we sent letters highlighting the kinds of
complaints reported most often in an
area to the specific police commissioners
responsible for overseeing these areas.
We had a promising response from one
of the police commissioners, indicating
that they take our complaints seriously
and that we should report specific
:—:denK
*hem
x ,ture. 'A/'' have
nnmmitton rn the nnnninn mnnirnrinn
m use, power and
jrvival in Hillbrow/
ocial Science and
*ER¥IC*S
SEX WORKERS IN
CENTRAL ASIAN
REPUBLICS:
POINTS FOR
CONSIDERATION
Yury Sarankov, Senior Programme Advisor on IDU and
Sex-Work Issues, AFEW, Kyiv, Ukraine
Vera Dite, Lead Trainer on HIV Prevention Among Sex
Workers, AFEW, Almaty, Kazakhstan
Adrian Webster, Head of Monitoring and Evaluation, AIDS
Foundation East-West (AFEW)
Robin Montgomery, Deputy Director of Programme
Development, Head of Senior Programme Advisors, AIDS
Foundation East-West (AFEW)
AIDS Foundation East-West (AFEW) is an international, non
governmental, humanitarian, public health organization working
in the field of HIV/AIDS prevention, treatment, care and support
in regions of Eastern Europe and Central Asia (EECA). AFEW
has been operating in Kazakhstan, Kyrgyzstan, Tajikistan and
Uzbekistan since 2002 in a range of fields, including HIV/AIDS
prevention, drug demand reduction and health promotion
among women in the commercial sex industry.
Commercial sex in the countries of Central Asia seems to be
a growing and widespread practice. AFEW has conducted
a variety of research projects in this region, including several
Rapid Situation Assessments and various qualitative studies,
and maintains regular contact with relevant target groups and
officials. In this context it has often been argued that the number
of (mainly female) sex workers has rapidly increased in Central
Asia during the last decade. The reasons given for this often
include instability and diminished quality of life surrounding
economic and political changes. In particular, following the
fall of the Soviet Union in 1991 and the resulting turmoil in the
region, many girls, women and their families have been trapped
in poverty and often view sex work as one of the few options
s-«'
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cultural condemnation makes the industry not only complex in
structure but somewhat hidden and difficult to penetrate from
a public health perspective.
Throughout the territory of the former Soviet Union, one of
the main problems noted by sex workers is the relationship
they have with law enforcement. Women involved in the sex
business frequently speak about police harassment, which
may include blackmail, violence, coercion and extortion.
As a result, human rights issues have recently become a
priority for sex work projects. They are frequently discussed at
various seminars and conferences. Currently, however, there
is no unified approach to the development of strategies for
collaboration among the law-enforcement agencies.
In 1 ajikistarr sex sewices are often provided
by women who identify themselves as
housewives and,gas a rule, have several
children. This is often understood as a direct
result of increasing labour migration out
of Tajikistan. This migration leaves families
with children unsupported financially by
both parents. In some areas the cost of sex
services is very low (less than USS 1) and
wobien frequently report providing services
fnr tin
1
-a single meal
- ’ or in
■ exchange
'
e fthan
for q smell amount of alcohol
—u‘-'> or
—drugs.
*-----
L
JFO .
From a legal persp
is not clearly defir
various republics h
is not perceived as
however, recruitm
brothels are.
For example, in K5
crime but the cour
N260 and N261).
by the application
blackmail, the dan
fine or imprisonmf
271).
In addition to this,
vulnerability to viol<
•
the absence <
•
high levels of
industry;
•
stigmatizatior
providers;
•
language bar
available serv
•
a lack of acct
•
lack of acces
•
high rates of
more vulneral
It is not uncomrr
demand free sexi
client. (This is term
Soviet times wher
state free of charg
for women workin'
sex industry such.
■
_________________________
To resolve these issues, much depends on the legislation
In some Tajik citie
Qurghon-Teppa),
services in closer
cases, they are le
less vulnerable to I
WHAT CAN BE [
Today, HIV/AIDS
workers in the re
I l\MI L.XJIL.^>
F l\L V l_ll I IWI1
L RESPONSE TO
riV/AIDS epidemic
le governments of
that the HIV/AIDS
stablished provide
ing difficulties and
g to the resolution
ral working groups
chstan represent a
3UILDING
lip between target
han that between
hus, strengthening
lered an important
workers. Activities
It is very likely that including the human rights aspect in these
activities would add significantly to their effectiveness.
The capacities of both governmental and non-governmental
organizations should be built up and an appropriate and
concerted effort on the behalf of both of these groups should
be encouraged and facilitated. Furthermore, programmes
are also required that focus specifically on key target groups,
including sex workers themselves, the staff of law enforcement
agencies, and client populations.
CONTACT DETAILS
AFEW
Chayanova St. 15/5
Moscow 125267 Russian Federation
OWERMENT OF
comm unity-based
cwly starting to be
t first step toward
urther steps might
workers as well as
s legal and social
d work with law
cially with those
workers such as
ENFORCEMENT
jrs
Phone: + 7 095 250 6377
Fax: + 7 095 250 6387
E-mail: yury_sarankov@afew.org;
robin_montgomery@afew.org;
Web: http://www.afew.org
Legal Aid-o Sex
: a me t project conducted
by the NGO ’Tais Plus’in Kyrgyzstan (Gulnara Kur
manova, 2004). Seventy-six male and female sex work
ers, those who direct the sex work themselves, and
those whose lives are affected by sex work appealed
to the project for aid over a period of one year.
This project had seveis c " 7or?en?s; (1, mmrymie
who requested legal aid received it free of charge, (2)
if needed, the legal rights of project beneficiaries were
defended before the state attorney’s office, (3) informa
tion c
wor
Tais
/as <
ited
■
■
ister is w
CONCLUSION
The development and introduction of effective legal services
for sex workers in Central Asia is currently falling behind the
need for these services. A more significant effort is required
to improve the degree to which the basic human rights of sex
workers are maintained in this region, particularly in regards to
their legal protection.
Through a well-coordinated effort targeting these areas it is
believed that the human rights situation of sex workers in
Central Asia can be dramatically improved.
at these issues;
e NGO mission;
cuss their
and
th and social
protect human
•olict
Rachel Wotton
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violence against sex work
Rachel Wotton is a permanent member of the Womens’ Metropolitan Outreach
(SWOP), the state-based sex worker outreach project in New South Wales, /
organisation since 1990. Predominantly peer based, SWOP provides Information
state via telephone, a drop-in centre and by regular outreach services.
. .
:
'
.
Fache! has been outreachlng the Canterbury road area for the last four years.
sharing personal and painful events and stories over the years,
.
.
.
Rachel is also the international Spokesperson for Scarlet Alliance, th top natto
Territory Sex Worker Organisations & Projects in Australia and the issues of Au
Ihrs atoctto has Peon adapted trom toe
presontatior. Rocl.d Wotton rM at '
Bangkok, Thailand in July 2004.
For more information on SWOP
or Scarlet Alliance, please see the following webs
....
www.swop.org.au
www.scarletalliance.org.au
•
•
+hroiinh q|1 their ^'^nging0
on idfked pan ui car lunuwed one or ihe worKers and her client back to a house
and sat outside with the lights flashing until the client left, and
telling two of the workers that they had 10 minutes to get off Canterbury Road
and then following the workers car for about 15 minutes.
The police predominantly arrested the women and not the clients. If clients were
arrested they were given on the spot fines or a summons to go to court while the
women were taken to the police station and kept there for up to four hours while their
charge was being processed. In addition, unreasonably restrictive bail conditions were
given, essentially banning the women from the area between the hours of 8pm and
6am. These restrictions would often be for either 7 days or until their court case.
THE EFFECTS OF OVER-POLICING ON THE STREET WORKERS
Sex workers reported that their fear of arrest, detention, harassment and intimidation
led them to engage in risky, unsafe behaviour that was not acceptable to them
before. Workers started carrying fewer condoms, hiding their safe sex and injecting
equipment in surrounding areas and jumping into cars straight away instead of talking
to the client first through the window. They weren’t able to rely on their gut instincts to
assess the client as fear of arrest was so great they reported jumping into any car to
get away from the police. In addition, workers were taking the clients away from the
usual industrial area and spreading out further into the local residential areas.
All of these actions are disturbing to note and the health and safety implications are
immense.
rasg
larly
lant
;oulc
cle<
der
ated
he c
was unjustified and the police were actively discriminating against the workers. Over
the next few months Jane and SWOP supported this worker to challenge this charge,
moving from the local court up to District Court. Just before the final court appearance
the Police withdrew the charge. Although this was a great success and no further
workers have been charged with this offence since this time, the worker had still lost
four days of her life in jail.
INITIATED CONTACT WITH THE POLICE
SWOP approached Bankstown Police to set up a meeting with both the Superintendent
and the Crime Commander. A range of issues were discussed, including:
•
the current attitudes and actions of their police officers towards the workers,
•
demystifying commonly held beliefs about both the workers and the clients,
•
reasons why there was a current dispersion of the women into the residential
areas,
•
•
POSITIVE OUTCOMES INCLUDED:
•
establishing agreement as to where the legal working area was, and
•
an acknowledgment from the police that the church was no longer in
operation,
•
•
If found breaching bail conditions, the workers were locked up straight away,
regardless of whether the original charge was warranted. As many of the women
lived in the area this was extremely problematic. One worker buying milk at the local
petrol station was threatened with breaching bail, even though the police knew where
she lived and could clearly see that she wasn’t working.
Those working after 8pm were even harder to outreach and give supplies to as they
were constantly on the move and couldn’t risk to be seen talking to us in that area.
While most knew their legal rights and understood that the charges weren’t justified,
most pleaded guilty just to get the conditions removed. This meant another fine,
(between A$250-500) and a larger criminal record that can be used to disadvantage
them in the future. Each new fine also meant longer working hours for the women,
with the threat of a warrant being issued for their arrest if they failed to pay on time.
WHAT SWOP DID AND THE OUTCOMES WE’VE ACHIEVED:
INTRODUCED THE WORKERS TO A PRO-BONO LAWYER
Jane Sanders is a solicitor for Shopfront Youth Legal Centre. Shopfront Youth Legal
Centre is a service provided by Freehills, in association with the Mission Australia’s
Sydney City Mission and the Salvation Army. Sanders has a thorough understanding
of the leoislation surroundina the sex industry. A referral card was handed out with
complaints the police had received from the public, and
options for legal working areas that have been successful in both NSW and
overseas.
•
police also committed themselves to directing their officers to take a more
objective approach to the policing of this area, and
to remain courteous and polite to the women just like they would with any
other citizen, and
discussion also took place around the idea of identifying specific locations in
this industrial area for the workers and their clients to park, in order to do
the jobs without causing any disturbances or offence for the surrounding
community.
SWOP PRESENTED TO THE BANKSTOWN COMMUNITY SAFETY
COMMITTEE MEETING.
The Police also invited SWOP to present at the Bankstown Community Safety
Committee, a meeting the Local Council co-ordinates. We discussed a range of
topics concerning the local sex industry and outlined actions that could be taken to
improve conditions for both the sex workers and the community in general. While it
took a few months, at end of February 2004 a permanent container for used needles
had been placed in the area, which was one of the suggestions for the area. Further
discussion has continued between SWOP and council to place rubbish bins in the
area and the council has continued to be supportive of SWOP initiatives.
RECOMMENDATIONS:
The role of police in regards to street-based sex workers cannot be understated.
While this has always been a very contentious issue, in order to maximise a good
working relationship between sex workers, service providers and the police, a number
ng the sex industry be removed and the industry be regulated through
That codes/laws’
les for Model Sex Industry Legislation'. Sydney: Scarlet Alliance and AFAO.
dor the Scarlet
j Association,
the State and
ejects, and the
itional Level.
xert of Scarlet
to thank those
ation.
eir support services
have a significant
rker communities.
is divided into 6
1 the sex industry.
in supporting the
Xustralian National
notion strategies,
al health strategies
communities. Sex
health strategies,
he sex industry on
e of HIV and STIs
ne of the lowest in
1 health promotion
2003).
i and the resulting
i sex workers has
oradic credit and
. Decriminalisation
irsity in laws, heavy
t decriminalisation
evel is damaging
< workers’ rights,
m inevitably begin
dnn? inter'^^+i^ns.
us hi id siiDDorrers
health services and other services. Where sex work activities
are criminalized, sex workers are exposed to harassment and
exploitation. Sex workers are less likely to report crimes and
their rights are often not recognised. Prohibition of sex work
means that police, legal and health services can discriminate
against sex workers, creating an environment where sex
workers are compromised by institutionalised prejudices.
Prohibition promotes negative stereotypes of sex workers and
stigma, which can severely affect the professional and personal
lives of sex workers.
CURRENT AUSTRALIAN SITUATION
New South Wales (NSW) is widely regarded as the most
collaborative and deregulated state of Australia with regard to
the sex industry. Other Australian states and territories fluctuate
between criminal and public health models. Decriminalisation
was originally introduced to reduce police corruption in NSW.
Decriminalisation has also removed significant barriers and has
enabled sex worker communities to mobilise.
Australia does not implement decriminalisation of the sex
industry on a national level. Each state and territory develops
its own legislation for the sex industry. States and territories
administer regulations and legalisations with police and local
councils. This lack of national cohesion has created a situation
in which brothel-based businesses, massage parlours, private
lA^rkers ^^nrt
ar-"4 ^^^et boo^H sex 'A/nrUors am
uuen dean with in verv uiffereni wavs in eacn state ui lerritorv.
councils have become staunch regulators of the sex industry.
Street-based sex work in NSW remains heavily regulated by
local councils. Sex worker organisations and projects receive
reports from sex workers that local councils have colluded with
police to gain entry to their workplaces and enforce specific
zoning regulations.
ENABLING SEX WORKER COMMUNITIES
The occurrence of HIV in Australia and internationally was a
crucial moment in how governments approached the politics
of health care. Community development is based on the
fundamental understanding that successful interventions
come from the knowledge and ideas inside the community
rather than from outside the community (Ife 1995). Where
Australia has followed this model, sex worker communities
have mobilised as community-based organisations (CBOs)
and work in partnership with the government to achieve public
health goals. (Fawkes 2004). Sex worker communities working
in partnership with the government are able to participate
and collaborate with governments to achieve public health
goals and have developed their own services and programs.
Decriminalisation, and the funding of community-based
responses including sex worker peer-based strategies, has
been a resounding success in Australian public health.
Sex worker communities in Australia have developed and
delivered diverse forms of services for their own members. Sex
worker projects employ past and present sex workers as ‘peer
educators’, who provide services, support and information to
those in the sex industry. Sex workers in Australia have great
knowledge about safe sex practices, and this knowledge can
in part be attributed to decriminalisation and community-based
i
ises
/. D(
lalis
)f th
indu
ave
CONCLUSION
Scarlet Alliance rec
of sex industry legi
health and safety,
workers. Evidence
‘wins’ with decrim
model, anti-sex wc
positive public he
counterproductive
sex workers in que
To learn more abo
Alliance website: h
modeLprinciplesO'
RESOURCES
Red, Erica & Saul
Better’. The faulty
South Wales, Aust
Ife, J. (1995) Comt
alternatives - visior
Australia: Longmai
Fawkes, J. (2004)
say?” http://www..
CONTACT DETA
K
“ ?ma
lueensiana University of Technology, Brisbane, Australia
ind Alcohol Research and Education Centre, University
'A
i®
I
4
■I
p|
□ssit
gal
ies <
ssoc
Polic
com
in the 1980’s concluded, “the law had reached too far into
prostitution and highlighted that, when areas related to morality
and human behaviour are over-regulated, corruption can find
an opening” (in Carver and Mottier, 1998:185). The ‘law’ in this
instance were the police themselves.
During the 1990s, legislation attempted to eradicate links
between organised crime, police corruption and sex work. The
Prostitution Amendment Act 1992 was enacted, allowing sex
workers to work alone from private premises. The Prostitution
Act 1999 saw the introduction of license boutique brothels
throughout Queensland. One interpretation of the prevalent
legislation is that it addresses community concerns about
the public visibility of prostitution rather than the occupational
health and safety of workers.
In 2002, our research was funded to inform a government
evaluation of prostitution laws to determine if they had
reduced illegal sex work, improved the health of sex workers
and were acceptable to the general community. We hoped
to systematically evaluate the extent to which the changes in
legislative structure had been effective in improving health and
well-being of sex workers, and to determine contemporary
occupational health and safety concerns of female sex
workers in Queensland. Community participation and support
was sought at all stages of the research process. Initial
development included extensive discussion with sex workers,
sex worker advocacy groups, government and non-government
organisations, brothel owners, and other key individuals about
questionnaire content and methods for distribution. The draft
questionnaire was developed, piloted and modified in response
to comments provided by sex workers.
1
---- ..... ..
of
tmei
workers from varic
workers, escorts, f
and illegal brothels
43 women worke
sex workers. 204
industry, approxim
WORKPLACE VI
Women working ir
much more likely t
21% of illegal sex
and 49% reporte
Unsurprisingly, alrr
feeling ‘not safe’
day.
POLICE HARASS
A significant propc
of unwanted polic
sex workers were
compared with 13
who had been har
common.
An African sex wor
with racial insults. •
arriving at one’s p
requests for sexua
legally reported h<
by a Queensland p
with 21% of thos<
workers reported I
officer compared v
Legal se
% (n)
Raped by a client ever
Bashed by a client ever
■
i
:
I
■
Feeling safe at work on the average day
Not at all or only a little
Hi
Quite or extremely safe
.......................................... ..............................................■.
■
■
................................................................................................................................................................................................................................................ ...............................................................................................
■
.
1111
7(15)
I ■■
11(22
)h ' L
:• . .
10(21
79(16(
. .. ......a
e much less likely
ssault or rape. Of
'eport harassment
any suggested the
ntinued corruption
issues confronting
t and violence from
illegally were more
client. Clearly this
5 that needs to be
of the legal status
to be legitimisation
ition. Making sex
om the belief that
on, a framework
\merica. However,
the ineffectiveness
ohibiting sex work
e structure of the
id in a clandestine
ork in Queensland
: sex industry and
his legislation may
rther isolates and
2>n may strengthen
ivity. Repeatedly
eliciting creates a
arily removes sex
encourages faster
increase the risk
ty precautions. It
ublic policy and is
< also create an
x workers. Despite
t they would report
owever, the reality
\A/nndWarH lonp?)
i iriu oeen sHxuallv
continued occupational health and safety concerns.
RESOURCES
CarverMottier, V. (eds) (1998). Politics ot sexuality:
identity, gender, citizenship. Routledge, London.
Fitzgerald, G. (1989). Report of a Commission Inquiry Pursuant
to Orders in Council - Inquiry into Possible Illegal Activities
and Associated Police Misconduct. Government Publisher,
Brisbane.
Milman, J. (1980). “New Rules For The Oldest Profession:
Should we change the laws?”. Harvard Women's Law Journal,
16: 1-35.
Woodward, C. (2002). Prevalence and correlates of sexual
assault among female sex workers. Unpublished Masters thesis,
School of Nursing, Queensland University of Technology.
CONTACT DETAILS
Charrlotte Woodward RN MN
School of Public Health
Faculty of Health,
Queensland University of Technology (OUT)
Victoria Park Road,
Kelvin Grove, Australia, 4059
E-mail: c.woodward@qut.edu.au
Jane Fischer BA MSPD
Queensland drug and alcohol research and
education centre (QADREC)
University of Queensland
Brisbane
Australia
E-mail: j.fischer@sph.uq.edu.au
Bl
J
PROBLEMS FACING SEX WORKERS
WORK RIGHTS EXPLOITED
According to Hong Kong Law, a resident being a sex worker
is not illegal, however, work rights of a sex worker are often
exploited. Sex workers are often discriminated against,
unreasonably arrested and mistreated by law enforcement
agents. For instance, streetwalkers get arrested when they are
simply walking on the street without any purpose of “soliciting”.
Police and courts often assume that streetwalkers must be
the ones who solicit. But in certain occasions, customers
are the ones to solicit. The spirit of “Soliciting for an immoral
I
se" i~ ~:“ply
ignc
Besi ’
nam
nen
MIGRANT SEXV
People who ente
charged for “Bra
engage in any for
workers from Mai
Hong Kong with
are further margir
workers are stopp
rooms they renter
are found without
they are immediat<
imnr
‘ urpc
XA/hinh io
tk-mon nnc-nc rnnrl.
XA/rsrlz inHarianHon+h/ in a “nnci_vA/nman Kr/n+hfi>l"
king ’ e ce“
>ing toilet facilities,
ot sign the charge
count of the police
ites on the charge
atements given by
> a judge even told
mply because she
heir entitled rights,
linate educational
outreach services
rs and workshops
we consider Legal
he Peer Education
and, effort is put to
y law enforcement
rtwork with police,
edia, etc. for wider
iducation Program
ncy. The program
to let them know
d the sex industry,
>eriences with law
ith a more opened
ncourage them to
^/discrimination on
ling the program.
. The introductory
ipants themselves
on their general
ustry, and also a
such impressions
followed between
veil as a series of
< workers.
that most of the
■ try their best to
d the complicated
id interaction with
----------------- • -‘-ers
' ng C
AFT*
provides direct services, including telephone help line
and outreach s&ivice on streets, in karaokes, hair
salons and nightclubs. The Drop-In Centre offers a
I
I
!
WNc rmvmn WWih srmmm counsrring a/m pcyxCm
employm&it. Through our contacts 'with women sex
mm U mhe cm mmrmmss.W rmw icym
'During the last year, the strategic direction of AFRO
has dearly been steering towards raising sex workers’
rights at a social level More emphasis has been placed
in advocacy, public education and at the'same time,
After the program, 10 out of the 20 young participants
determined to contribute, and by taking action to show their
concern to the sex workers’ community. They volunteered
themselves for a video production project for AFRO’s legal
rights education for sex workers. From collecting stories
and information, writing scripts, to acting and directing, the
youngsters worked in a team to visualize the scenes of right
abuse cases experienced by sex workers and present in the
video a could-be-different ending in case sex workers had
been able to safeguard their entitled rights. The final product
of the video now serves as a piece of in-house educational
material for AFRO.
We see the Life Education Program as a success, not only
as an education program for youth on building capacity in
critical thinking and sense of social justice, but also as an
empowerment and development process for sex workers’ self
expression and self-representation. Appreciation and gratitude
that the youngsters have shown to the sex workers undoubtedly
warmed their hearts, yet boosted their self-esteems and made
them feel more confident about their capacity in combating
people’s bias and prejudices against sex workers and the
industry.
CONTACT DETAILS
Kendy Yim
Action for Reach Out
The Sex Workers Project at the Urban Justice
Center, an NGO in New York City, interviewed
52 indoor female, transgender and male sex
workers and found that sex workers live with the
daily threat of arrest, deportation, and violence.
Indoor sex workers work in brothels, via websites
and newspaper ads, in private clubs, and through
escort agencies. Some indoor sex workers
interviewed also work on the street. The full
Created in December 2001, the Sex Workers
Project (SWP) is the first program in New York
City and in the country to focus on the provision
SWP protects the rights and safety of sex workers
who by choice, circumstance, or coercion remain
POLICE INTERACTIONS
We asked how often respondents had
“run-ins" with police, meaning that they
did not call the police, but that the police
came after them. Sixty-three percent
(32 of 51) of respondents reported
having experienced run-ins with police.
For those who did experience run-ins,
63% (20 of 32) reported that these
interactions were rare.
•
47% (24 of 51) of respondents had
been arrested in relation to sex work,
and 12% (6 of 51) said that they had
services that were remotely substantive.
This person was supposed to receive
job training—however, she found that
the program was not helpful at all.
•
Two women who had been
trafficked into prostitution received
services after having been arrested and
held in immigration detention. These
services were not offered through
criminal court as a result of an arrest,
but after the women were officially
designated as trafficked persons.
•
In addition to arrests, 29% (15 of
51) of sex workers interviewed stated
being forced to do something that the
respondent did not want to do; having
been threatened or beaten because the
respondent was a sex worker; and/or
having been robbed by a client:
Sara describes a client “who came in
and had a knife... I was cornered and I
was about to be attacked and raped... I
didn't go to the police because it would
be coming out about what I’ve been
doing.”
REPORTING VIOLENT INCIDENTS
TO THE POLICE
•
16% (8 of 51) of respondents
had gone to the police for help, as a
sex worker, and found the police to be
helpful.
•
43% percent (22 of 51) of
respondents stated that they were
open to the idea of asking police for
assistance. However, many of these
same people also worried about how
helpful police might be, and ultimately
thought of the police as unhelpful and
untrustworthy.
Despite their worries about the police, a
few participants had good experiences
with the police. These good experiences
can help police write guidelines for best
practices when assisting sex workers
who come to them for help. Police who
see sex workers as legitimate members
of society are more likely to be helpful
offer the same level of assistance that
they would offer another person. They
are also more likely to follow through on
the steps taken in response to violence
against sex workers. Unfortunately, this
understanding that a sex worker may be
a crime victim appears to be the result
of enlightenment or understanding on
the part of individual officers, and not
fho result '"‘f +mining
best ^«-a^+ices
i^ued bv trie oolice ueuartmern.
economic self-sufficiency and stability.
RECOMMENDATIONS FOR POLICE
INTERACTION WITH SEX
WORKERS
Policymakers should carefully consider
the extent to which they make
prostitution a criminal justice priority.
Sex workers often engage in prostitution
to earn money for themselves and
their families, and sex workers could
benefit from substantive services and
assistance rather than arrest.
Where a person has not committed a
crime, police should not bother them.
Local
police
and
government
agencies must keep arrest statistics
so policymakers and advocates can
examine criminal justice trends.
*AII names have been changed.
CONTACT DETAILS
Juhu Thukral
Director, Sex Workers Project
Urban Justice Center, Tenth floor
666 Broadway
New York, NY 10012
USA
Phone: +1 646 602 5690
Web:
http://www.sexworkersproject.org
Alexandra Murphy
Center for Urban Research
and Policy
Columbia University
420 West 118th St, Room 813
MC 3355
New York, NY 10027
E-mail: curp@columbia.edu
LLUDLHI IUH VIN
STREET-BASED SEX)
ANTI SOCIAL BEHAVI
ORDERS
Teela Sanders, University of Leeds, UK
THE INTRODUCTION OF ASBOS
In Britain, it is legal to engage in adult consensual commercial
sexual transactions but the relationships that surround the
interaction, such as advertising, negotiating, renting premises
and living off the earnings, are all illegal. The most recent
legal development for women involved in prostitution in the
UK, especially street workers, has been through the Crime
and Disorder Act, 1998. This Act introduced Anti Social
Behaviour Orders (ASBOs) to be used against those who
cause ‘alarm, distress and harassment’ to local communities.
These prohibition orders have been rationalised as tools for
both community safety and protection and the rehabilitation of
offenders. Although no figures are known, informal networks
suggest that hundreds of ASBOs have been served on street
sex workers in a disjointed and ad hoc fashion. Some police
forces apply ASBOs regularly as a strategy to reduce street
soliciting, while others prefer more tolerant approaches to
managing the street scene.
A breach of an Order can be punished by up to five years
imprisonment. Many sex workers have been given custodial
sentences for entering ‘no go areas' defined under the Order.
These Orders have never been evaluated. Legal experts
criticize the ABSOs because they are ‘not only ineffective but
also discriminatory in application to street sex workers' (Jones
and Sager 2001:873).
THE CONSEQUENCES: AN INCREASE IN RISK
ASBOs are not the only evidence of a return to the
criminalisation of vulnerable, excluded street sex workers.
Policing on the streets has become increasingly visible in some
towns and cities. This visible police presence has resulted in
<
iphic ' ‘ Diacs
‘cri
mfflir
)mer
ime
areas away from f
geographically disf
that are typically n
consequences of;
in some towns by
for the removal of s
tactics. These tact
of women and v
movements and ic
The injustice of the
the fact that men ir
into the sex trade,
with Orders. There
reduces street sol
are then replaced I
women who recer
when they are rel<
ASBO within a she
WHO SUPPORT!
The use of ASBO:
advocated by an
the Price: A Con:
the first review of
Wolfenden Report
using civil and c
communities from
(p.67). Rigorously
address behaviour
obvious return to
new discourse of
vern
igre<
supp*" '“encicI exceptional levels
anc1 ~ ’ isure ' ‘ olen!
dan<
> wo
cone
As the use of ASBOs increases and the strategies used to
police
prostitution are
inconsistent across police
force, the lack of coherent
policy and approach to the
management of prostitution
means that the rights of sex
workers are exposed to
violation. The inconsistency
of enforcing the law and
the use of police discretion
even within the same
locality means that women
do not know from one
day to the next whether
they can work free from
criminalisation or whether
the risks posed by policing
are inevitable.
ftN TO MAN
4
£
lioirhnu
IS WORK
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SERVICES
22 year old
Very good
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looking
Luxurious
Soho
RESOURCES
Home Office. (2004). Paying
the Price: A Consultation
Paper on
Prostitution.
London: HMSO.
Jones, H., & Sager, T.
(2001). “Crime and Disorder
Act 1998: Prostitution and
the Anti Social Behaviour
Order. Criminal Law Review
Nov, 873-885.
Kantola, J., & Squires,
J.
(2004). “Discourses
Surrounding
Prostitution
Policies in
the UK”.
European Journal of Women’s Studies, 11, 77-101.
Pitcher, J., & Aris, R. (2003). Women and Street Sex Work.
Issues arising from an evaluation of an arrest referral scheme.
London: Nacro.
Sanders, T. (2005). Sex Work. A Risky Business. Cullompton:
Wil Ian.
Apartment
♦Shower*
Total Satisfaction
?56 622 743
isance behaviour,
as an absence of
as an occupation,
ses in the UK to
any notion of sex
snts from religious
ascribe prostitution
i always coercive
ven to abolitionist
e policies that are
rcement aqencies.
CONTACT DETAILS
Dr. Teela Sanders,
Lecturer in Sociology of Crime & Deviance
School of Socioloqv & Social Policy
..
: ;
Wherever sex work remains a criminal offense, there is scope
for abuse by law enforcement. One of the most pernicious of
these is the police entrapment operation.
The Thai Prevention and Suppression of Prostitution Act 1996
which forbids the sale of sex is concerned with five main areas
of criminality.
The Act specifically prohibits and penalizes:
•
commercial sexual abuse of minors,
i.e. under 18 years old,
•
soliciting of clients,
•
advertising sexual services,
•
arranging for sex worker services for others and
•
recruitment of others for sex work.
There is a growing national recognition of the need to repeal
the latter four articles and decriminalize sex work in Thailand.
“The articles are exploitative, providing opportunities for police
to take advantage of the girls,” he said. “If we abolish those
articles, they can do their profession within the law ... and with
fewer opportunities for police and authorities to exploit them.”
- Professor Narong Phetprasert a consultant adviser for the
ruling Thai Rak Thai party of Thai Prime Minister Thaksin
Shinawatra
'Iwnimn
since July 2003, w
(US$290,000) in I
several years. He
with Rolex watchf
massage parlors.
So where does th
law enforcement I
functioning industr
“In the past police
used my sex servk
themselves and m
the sexual service
would not necess
operation or invesl
- One of the eighi
parlor Bangkok ov
So why would et
the police are so
industry?
Entrapment and ai
in Thailand, or indt
knowledge that th
nthor than nrimo
ustice Mission."
rch 2005, recipient
rd
ation and recipient
nti-trafficking work
applies to a variety
Police entrapment
to commit a crime
I force” in bringing
pment techniques
involving a willing
^eres with the right
jsion into daily life;
at best, unethical
linal justice system
>eople to do x.”
\ustralian National
s for International
nave no concerns
las volunteers who
nostly migrant sex
squests for young
nay be stimulating
children. In addition
:an encourage the
'or to ask for help,
mer “Can you help
:hey are not asking
on his organization
Is to override their
expressed disdain
orts UM produces
authorities.
“.... I know someone who knows your boss... and were just
going to rattle cages until you do your job... Start with a carrot.
You can be a real hero in this community just by rescuing those
girls. And if they will not go along, then you start rattling the
cages.
“You find somebody, you have to piece something together,
and then you hear, So-and-so is not going to go along. OK,
how can we get to him? Oh, I know some way we can get to
him. So-and-so will call him, and we’ll move ahead on this. We
are all experts ... at operating in Washington. And this work is
what you have to go do in a third world or developing world
context. People are the same everywhere and have somebody
they are beholden to, somebody they answer to, somebody
who can embarrass them, somebody who will not ever, ever,
ever, ever want to see a copy of a congressional letter coming
to an ambassador who hands it off to a person in Thailand who
then gives it to the chief of police... You try whatever it takes.”
This explanation of UM procedure is both revealing and
frightening. Clearly UM is confident in the total support of the
US government for their methodology and processes. They
are equally confident that the US government can and will
apply pressure on other governments if UM require it. Sex
workers should not be victims of exploitation or other human
rights abuses by employers, customers, local authorities or
anti-prostitution/anti-trafficking groups.
Quotes attributed to March Bell from the Protection Project
website [online May 28, 2005] http://www.protectionproject.
org/main2.htm. October 11,2000.
CONTACT DETAILS
Empower Foundation Chiang Mai
Email: empower@cm.ksc.co.th
Phone: +66 53 282504
1
| | • ’ ’* f
- *" S”
:
Empower is a sex workers organization in Thailand.
They have four drop-in centres that offer literacy,
computer training and non-formal education. Empower
also
coi
ig, I
info.
n ai
ier
Thailand. The
ill large majority of the group was women
from Burma, some of who had at some time been
“victims of trafficking” and all of who had at one stage
or other enlisted help to migrate for work in Thailand
They were unanimous in their recommendations that:
1.
No person should be trafficked, or forced to work
in work they have not chosen to do and that no child
under the age of 18 years should be abused sexually
either commercially or domestically.
2.
Methods to combat trafficking must be revised
and solutions found that do not violate the rights of
workers but support true victims of trafficking.
3.
The rights of adult trafficked victims as workers
must be acknowledged. We should receive recognition
of our work and compensation, so we are not financially
worse off after our ’‘rescue”.
4.
All women affected by trafficking or anti-trafficking
measures must receive adequate compensation and if
we are victims of trafficking we be given full support to
seek asylum and/or residency with the right to work
included.
5.
The primary goal of prosecuting traffickers must
be altered to a primary goal of assisting trafficked
women and children. We propose that if trafficked
women and children (whether trafficked or not) are
continually rescued and assisted, the use of trafficked
women and children will become unprofitable and
entertainment places will only wish to employ those
women who are over 18 years, informed and willing to
work.
6.
Understand that all women, who are unable to
access travel documents and need or wish to migrate,
must secure the assistance of an agent or broker. If
our situation as refugees from Burma is not recognized
we must secure work for the survival of our families
and ourselves. While we are willing to work our illegal
status leaves us with no recourse against exploitation
by agents or employers regardless of the work we do.
Anti-trafficking groups must work toward improving the
human rights situation in Burma, securing the ability for
women to travel independently, and fully supporting the
recognition of our refugee status.
7.
Currently women who work in entertainment
places have their own methods of assisting trafficked
women, those being forced to work, and those under
18 years. Anti-trafficking dialogue and groups have yet
com
is as
traff
wor
nd h
carefully consh
that they prots%
to assist.
RES(
The detention of i
violates the huma
and others affecte.
The United Nation:
Trafficking in Pers
recommends appi
US Trafficking Viet
legislation around
should “not be det
as crime victims”,
mean detention.
The Human Rights
Persons lists imp<
with trafficked pe
discrimination; sal
resident status; s
states. These right
by anti-trafficking
from the Human
^volain° thQce righ
---------------------------------- ---- --------------------------------------- ---------
’ t to
duri
legal actions and
ht to seek asylum
in any deportation
shall ensure that
j safely, if they so
.
--------------------- V.
.^
----------------------------------------------
- ------------------------------------ -----
- -------------------
.
a
in V
i, the
ial A
Age
raffle
Dme
the International Human Rights Law Group (now Global Rights).
The standards can be downloaded as a PDF from http://www.
globalrights.org/site/PageServer?pagename=wwdJndex_49.
Global Alliance Against Traffic in Women:
http://www.gaatw.org
Global Rights http://www.globalrights.org
MD ETHICS UPDATE
^7
A bolif— Abolitiz'r':''+3 sec1'
end----- *:tutio”
''ll for"'i ne term comes trom aboimonists opposing regulated legal
brothels in Victorian England.
Jisnt
Magistrate or jut
cases and sometir
Criminalization is the inclusion of prostitution or related
activities in the criminal legal code. This is different from the
inclusion of prostitution in business or other other regulatory or
civil legal codes.
Obstructing traff
against street-bas<
Decriminalization is the removal of prostitution and related
activities from the criminal legal code. This is the legal approach
to prostitution recommended by most sex worker organizations
and advocates of sex workers rights.
Occupational sa
conditions where $
are intended to en
work. Only New Z
for sex work.
Entrapment is the inducement by police or their agent to do
something that a person would not otherwise have done. This
is not usually a successful defence for sex workers who have
been arrested or known for prostitution.
Procurement is 1
also called pandei
refer to third partie
Prohibition of pre
and criminal act.
Intent to commit prostitution means that a person seeks
to engage in prostitution, as exhibited by some act. In other
words, it’s not a crime to have the intent to commit prostitution,
you have to do something to show the intent.
Prosecute is to b
the government bi
may involve a cour
Legalization is handled in different ways in different places.
In some places, only some kinds of sex work are legal, while
others remain criminal activity. Sometimes, sex-work related
activity like advertising, or living off the earnings of a prostitute
remain illegal. Legalization is often accompanied by regulations
regarding who can be a sex worker, where sex work can be
done, and other restrictions.
Regulation of pro
sex work, usually r
Zero tolerance is
which small or nt
and aggressively <
rates of arrest.
Littering is leaving rubbish or other items in a public place.
le from Cambodia
being tested was
th other drugs for
cfovir was effective
wanted long-term
ive during the trial
jnofovir. Women’s
< workers group
nces and staged a
t AIDS Conference
st 2004. This was
srkers successfully
trial participants and their advocates were pleased that their
concerns were taken seriously at this meeting. Everyone
agreed that materials to prevent the spread of HIV should
be readily available and that treatment should be guaranteed
for trial participants who become HIV-positive during trials.
However, no agreement about how to guarantee treatment for
participants who become HIV-positive or who would pay for
treatment was drafted.
Genuine participation including input from proposed trial
participants at all stages was also discussed. This meeting was
the first step toward real inclusion for research participants
from marginal communities in the developing world in medical
trials. Everyone will benefit if this continues. Everyone will lose
Zoning regulation
of sex-related bus
near a church or s
Living off the earnings (of a prostitute) means being financially
supported by a sex worker. This is illegal in places that want to
1
UH
a
Tl
S’s
few ;
w*
®ut
*
irH
~ .....
AIDS
US£ CONDOMS
development.
Research for Sex Work was founded in 1998 by Ivan Wolffers
Centre in the
at the Vrije University Medical Centre in the Netherlands and
DS (GCWA) is a
Licia Brussa of TAMPER. Since then, there have been seven
3tworks of women
wonderful issues of Research fbFSeFWork. Members of the
lited Nations (UN)
International Network of Sex Work Projects have increasingly
)bal, regional and
contributed and collaborated on the production of Research for
)S on women and
Sex Work since it appeared. The International Network of Sex
protect themselves
Work Projects took over the production after No. 7 appeared in
'rt they need. The
2004. Founding editors Nel van Beelen and Ivan Wolffers have
)) is the European
assisted this transition. NSWP member organization Empower
pent organisation.
Chiang Mai did the graphic design for this issue of Research
5ning communities
for Sex Work.
selves. The GCWA
sell and trade sex
The NSWP was founded in 1991 as an informal alliance which
rammatic debates
participates in independently financed projects in partnership
uch as the limited
with member organizations and technical support agencies.
language barriers
al forums have not
>st HIV epidemics,
silitate a range of
ince.
DO
The NSWP is in the process of incorporating in Hong Kong.
ISi^ra
The Network promotes sex workers’ health and human rights
throughout the world with members on all continents.
DMH
This issue of Research for Sex Work is dedicated to the memory
of Paulo Henrique Longo, founding coordinator of the NSWP.
red a ‘convening’
Paulo Longo worked with Nel van Beelen and Ivan Wolffers
|
UN agencies and
to arrange for the handover of Research for Sex Work to the
is jointly convene
NSWP. He would have become the editor in chief, but he died
IIFil
ith the support of
in October 2004.
•/'■I
SsSj
ons include ICW,
SSi
gwa
eicides. The work
er seven thematic
ng HIV in young
«<
cess to treatment,
^js]
female controlled
;>c
ince promotes the
Os
II and trade sex will
^2
on HIV and AIDS:
■olves a range of
frica to help build
the epidemic, the
:amples of global
' and a meeting of
around the world,
ixperiences of HIV
s on human rights,
ad their imnact on
.
v^velop. I Id II of
MWlBiM
empQwer
a j i smTa m a wm ni j
;7;s'y7-7-7
aSiS
K®
l||8iM
i. vTS-’
1V w
I
■
• ■■' i'lll
I
Sillllf:
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I.
.
.
'
-"'T :
ASSESSING THE IMPACT OF
PARALLEL REPORTING ON
THE RIGHT OF EVERYONE TO THE
ENJOYMENT OF THE HIGHEST
ATTAINABLE STANDARD OF
PHYSICAL AND MENTAL HEALTH
Report by Desislava Stoitchkova
Commissioned by the International Federation of
Health and Human Rights Organisations
(IFHHRO)
2004
1
General Introduction
The purpose of this review study has been two-fold: to assess the impact of parallel
reporting - on health issues in particular - on national and international level, and to
suggest possible improvements to the health reporting process so as to optimise its
efficacy potential. The subsequent exposition focuses on four UN bodies, which deal
with the right to health and NGO reports related thereto: the Committee on the Rights
of the Child (CRC); the Committee on the Elimination of All Forms of Discrimination
against Women (CEDAW); the Committee on Economic, Social and Cultural Rights
(CESCR) and the Special Rapporteur on the Right to Health (SRRH). Although other
UN bodies may also deal with health issues, the aforementioned ones were selected for
their most extensive involvement in the monitoring of states’ compliance with treaty
obligations to ensure the realisation of the right to health.
The substantive analysis, on which the conclusions of this study are based, has been
accomplished through the compilation and review of a wide array of views and
documents. These include accounts of NGOs, involved in the parallel reporting process
in the past four years before the UN bodies mentioned above; interviews with
Committees’ members and with the staff of the Special Rapporteur on the Right to
Health; reviews of NGO parallel reports and Committees’ corresponding concluding
observations; and digests of Committees’ practice and NGOs’ work and experiences on
part of academics, various research institutes, think-tanks and staff members of the UN
system. The guiding inquest has been to determine whether any discrepancies exist
between the potential and actual benefits accruing through the reporting process on
health issues and if so, whether, and how, NGOs could lessen this disparity.
Overally, gathering the necessary and relevant information for the following exposition
has been a rather challenging task. This study summarises in a systematic manner the
views of NGOs from a wide geographical range and a variety of political and socio
economic contexts. A request to share their experiences and opinions regarding parallel
reporting on health issues was extended to more than 250 NGOs (and other
organisations) worldwide, which have participated in the reporting process in the past
four years. Less than half, however, expressed an interest in contributing to the present
study. Identifying those NGOs, which have submitted a parallel report to one or more
of the Committees that form the focus of this exposition, has been quite problematic in
itself. Except for the CRC, none of the other treaty-monitoring bodies (CEDAW and
CESCR) maintains an (electronic) easily accessible database recording the NGO
submissions made for each Committee session. Therefore, neither the parallel reports
nor the details of NGOs/NGO coalitions, which have submitted such reports for a
given session are readily available on-line in the case of CEDAW and CESCR. The
difficulty of locating such basic information and some Committees’ incapacity to
compile and maintain an updated list of NGO submissions that can be made easily
accessible (on-line) to health and human rights practitioners following or contributing
to the reporting process, call for greater pressure and/or initiative to have such
information made more readily available. Assuming that the Committees do not have
sufficient human or financial resources to effectuate this necessity, it might be a task
well suited to NGOs to carry out - for their own benefit and for the benefit of their
partners around the world. Without the availability and accessibility of such basic
information it would be immensely difficult to monitor consistently the reporting
2
process on the right to health and to identify health-oriented NGOs worldwide for the
purpose of pursuing working partnerships.
The Right to Health
The right to health is guaranteed in several international human rights instruments,
although the precise scope of its content and application has been a matter of notorious
ambiguousness. The Preamble to the Constitution of the World Health Organisation1
offers the most comprehensive definition of the right to health, which has served as the
basic point of departure for the formulation and interpretation of the provisions in most
of the remaining instruments. The preamble formulates '"the highest attainable
standard of health” as a universal fundamental right and conceptualises its content as a
“state of complete physical, mental and social well-being and not merely the absence
of disease or infirmity”. Along similar lines, most treaty provisions stipulating on the
right to health, including the instruments of particular interest for the purposes of the
present study, frame the right as “the highest attainable level ofphysical and mental
health”, although avoid equating it with complete human well-being. Thus, while
upholding the fundamental character of the right to health, existing, and justiciable,
international instruments, such as the CESCR, CEDAW and CRC, relate the realisation
of this right to matters of available resources, levels of development as well as other
state-to-state variations.
Generally, the right to health is considered to encompass both elements related to
health care and factors characterised as “underlying preconditions for health”. The first
category pertains to the availability, quality, accessibility and equality of both
restorative and preventive medical care, including issues of primary2 and child care3,
family planning services4, mental services5 as well as pre- and post-natal care6. The
latter cluster, on the other hand, addresses the various circumstances in the natural or
man-made surroundings, which do exert impact on human health. Among the
underlying preconditions for health are generally considered to be the availability and
adequacy of drinking water7, sanitation8, nutritious foods9, environmental10 and
occupational11 hygiene, and health-related information12, as well as the abolishment of
harmful traditional practices13.
The broad scope of the right to health as well as its general characterisation as a
“second-generation” right have resulted, as in the case of other economic, social and
1 Constitution of the World Health Organisation, 14 U.N.T.S. 186, 22 July 1946 (entered into force 7
April 1948)
2 Article 24(2)(b) CRC
3 Article 12(2)(a) CESCR; Article 24 CRC
4 Article 12 CEDAW; Article 24(2)(d) CRC
5 Article 12(1) CESCR
6 Article 12 CEDAW; Article 24(2)(d) CRC
7 Article 12(2)(b) CESCR; Article 24(2)(e) CRC
8 Article 12(2)(b) CESCR; Article 24(2)(e) CRC
0 Article 12(2) CEDAW; Article 24(2)c CRC
10 Article 12(2)(b) CESCR; Article 24(l)(c) CRC
11 Article 12(2)(b) CESCR
12 Article 24(2)(e) CRC
13 Article 24(3) CRC
3
cultural rights, in the formal permissibility of states phasing out its full realisation in
accordance with their available resources and other national circumstances. However,
despite the overall programmic duty for “progressive” fulfilment of state
responsibilities in the health domain, a core content of the right to health has been
delineated subjecting states to some immediate and unconditional obligations. ‘Core
content’ is generally understood to designate the minimum essential threshold of state
obligations to give effect of the particular right so that the right does not lose its
essence. On the basis of this definition, the core content of the right to health is
considered to encompass a number of basic health services, which states are under an
obligation to provide immediately and unconditionally, irrespective of their available
resources. These services encompass: maternal and child health care, immunisation
against major infectious diseases, appropriate treatment of common ailments and
injuries, essential drugs, and an adequate access to safe water and basic sanitation14.
State Obligations with Regard to the Right to Health
States are under a tripartite duty to respect, protect and fulfil the right to health as any
other human right. This duty gives rise to both positive and negative state obligations15
- to fully, albeit progressively, realise the right to health (with the exception of core
responsibilities, which are of immediate effect) and to refrain from health-harming
activities as well as the implementation of retrogressive policies. The fact that the right
to health imposes upon states both positive and negative obligations underlies its
interrelatedness and interdependence with ‘first-generation’ human rights and may
serve as a starting point for the effective development and implementation of the
concept of ‘justiciability’ on domestic levels16. However, until justiciability has
become firmly grounded in the national legal systems of state parties to the relevant
human rights instruments, supervisory mechanisms, domestic and international, aimed
at awareness-raising, advocacy and reputational loss for violating states remain the
only existing alternative. As such, what do these mechanisms precisely entail?
UN Mechanisms for Monitoring the Realisation of the
Right to Health
Committee on the Rights of the Child17
The Committee on the Rights of the Child, monitoring the implementation of the
Convention on the Rights of the Child by State Parties, is composed of 10 independent
14 B. Toebes, “Towards an Improved Understanding of the International Human Right to Health”, in:
Human Rights Quarterly, Vol. 21, 1999.
15 Toebes, supra, n. 14.
16 Toebes, supra, n. 14.
17 An extensive exposition of the reporting process before the Committee on the Rights of the Child is
contained in the ‘Guide for Non-Governmental Organisations Reporting to the Committee on the Rights
of the Child’ by the NGO Group for the Convention on the Rights of the Child (www.crin.org/docs/
resources/ publications/NGOCRC/NGOCRC-Guide-en.pdf).
4
experts, elected by State Parties to serve for terms of 4 years. The Committee meets
three times per year in Geneva and is serviced by the Office of the High Commissioner
for Human Rights.
Monitoring the fulfilment of obligations under the Convention consists of periodic
reviews of State Parties’ laws and policies related to children’s rights, based on
information provided by governments, NGOs, IGOs and other agencies. Each State
Party is required to submit an initial report of the actions taken with view to
implementing the Convention 2 years after ratification of the Convention. Thereafter,
reports are required every 5 years, with the Committee reserving itself the right to
request complementary reports or additional information at any time.
While initial reports should provide a comprehensive overview of the actions initiated
by State Parties to fulfil all their obligations under the Convention, subsequent periodic
reports are to be focused on those areas, identified as problematic by the Committee
during previous report examinations. In order to assist states in fulfilling their reporting
obligations under the Convention, the Committee has issued specific guidelines for
states to follow when preparing their reports18.
In general, the Committee attempts to examine state reports within a year of their
receipt but due to the increasing backlog of reports, this is becoming increasingly
impossible. Once the report has been assigned to a session, however, its examination
takes place in two stages - during a pre-session working group and subsequently, at a
public plenary session. NGOs may participate on both occasions.
Pending the examination of a state report, NGOs - international, national and local, are
invited to submit parallel reports. Such reports may be all-encompassing, dealing with
the totality of state obligations under the Convention, or issue-specific. The parallel
reports may be prepared and submitted either by individual NGOs or in coalition with
national and international partners. To assist NGOs in their endeavours to contribute to
the implementation of the Convention through the mechanism of state monitoring, the
Committee has issued guidelines regarding the form and content of both initial and
periodic NGO reports19.
The process of preparing, submitting and monitoring issue specific reports, e.g. on the
right to health, is essentially the same as for general NGO parallel reports, dealing with
the Convention in its entirety. The same guidelines apply to both types of reports and
the Committee makes no differentiation at the review stage as to whether it is a general
or an issue-specific report. Issue-specific parallel reports, therefore, such as reports
targeting specifically the right to health, do not trigger any different preparatory or
review procedures.
In order for parallel reports to be taken into account by the Committee’s pre-session
working group, they should be submitted within one year of the receipt of the
corresponding state report by the Office of the High Commissioner for Human Rights
18 CRC General Guidelines for States (http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/255fD4bfca51a
dba80256816005bc482?0pendocument); for extensive guidelines on the reporting process before all six
UN treaty-monitoring bodies, including CRC, CEDAW and CESCR, see UN Manual on Human Rights
Reporting (http://www.unhchr.ch/pdf7manual_hrr.pdf).
19 For CRC Guidelines for NGO Submissions and Participation, see http.77wwvv.unhchr.ch/html/
menu2/6/crc/ treaties/partners.htm.
5
in Geneva. The pre-session working group meets three times a year to identify in
advance the main issues to be discussed with State Parties appearing at the subsequent
public session. The working group’s meetings are confidential, thus closed to
governmental representatives. However, NGOs and relevant international organisations
(UNICEF, WHO, ILO, etc.) may be invited to attend. NGOs wishing to participate
must request to be admitted to a working group meeting when submitting their parallel
reports. However, only those NGOs, which are deemed to be able to provide the most
relevant and factual information pertinent to the examination of state reports, will
receive an invitation for participation. Upon receipt of such invitation, NGOs may
submit additional written statements to the Committee for consideration before the
working group meeting and give a 15-minute oral presentation at the meeting itself.
The working meetings result in the preparation of lists of issues, usually based on the
input of attending NGOs, which then the State Parties to participate in the next plenary
session are requested to respond to. The lists of issues are also made available to NGOs
with the possibility for NGOs to prepare their own written replies, if they so wish.
Since the year 2004, the CRC has also initiated, in co-operation with UNICEF, an
additional method of evaluating specific country situations20. Committee members are
being dispatched as rapporteurs on country missions, where they can collect first-hand
information from a variety of sources, including civil society. This innovative approach
has so far been well received and presents an excellent opportunity for NGOs, which
cannot be present in Geneva, to still engage in active dialogue with the Committee21.
The Committee plenary sessions are public. Although NGOs cannot intervene during
the sessions, they may participate as observers with the possibility to informally meet
with Committee members in order to present additional information, provide updates,
or suggest questions to governmental representatives.
Following discussions with State Parties during the plenary sessions and on basis of all
information made available and accordingly considered, through reports and working
group findings, the Committee adopts concluding observations specific to each State
Party. These concluding observations contain subjects of concern and
recommendations for future action and are made public through the United Nations
system.
Committee on the Elimination ofAll Forms ofDiscrimination against Women22
The enforcement mechanism of the Convention on the Elimination of All Forms of
Discrimination against Women is based also on a reporting system. State Parties are
required to submit an initial report on the implementation of the Convention within one
year of ratification. Thereafter they are required to submit periodic reports every four
years on the progress made since the prior report.
20 This recent development in CRC practice - greatly praised by Committee members as effective and
highly useful - is still not reflected in any guidelines for participation.
21 Views expressed by CRC Committee members during interviews conducted in connection to the
present study.
22 A detailed exposition of the working methods of CEDAW is available through the International
Women’s Rights Action Watch publication ‘Producing NGO Shadow Reports to CEDAW: a Procedural
Guide’ (iwraw,igc.org/shadow/CEDAWNGOguideJune20Q3.pdf.
6
The CEDAW Committee consists of 23 independent experts, elected by State Parties
with regard to equitable geographical distribution and representation of the different
legal systems in the world. The Committee holds two sessions each year (January and
June) in New York and is being serviced by the United Nations Department on the
Advancement of Women.
Although the CEDAW Convention does not explicitly require that the Committee
collaborate with NGOs, co-operation has de facto been established in practice by
means of formalised procedures. These procedures allow NGOs not only to submit
parallel reports but also to actively partake in the Committee’s pre-session working
groups23.
Parallel reports may be prepared by individual NGOs or by coalitions of partners and
are then to be sent directly to the CEDAW chairperson at least 6 weeks in advance of
the pre-session working group at which the relevant country will be discussed. Due to
increasing backlog, state reports are reviewed only 2 years after their submission to the
Committee, thus providing NGOs with the additional incidental opportunity to prepare
sound parallel written accounts. There are no differences in the preparation
requirements and review procedures of general and issue-specific NGO reports.
Existing guidelines on the content and structure of parallel reports stipulate that reports
should be organised according to articles of the CEDAW Convention rather than
thematic issues, in difference to the requirements of the CRC Committee. Reports
should also be supported by detailed and reliable disaggregated data and contain
specific recommendations for action. Periodic parallel reports, in specific, should focus
on the issues that have remained open to consideration from prior reviews of state
submissions, as detailed in the Committee’s country-specific concluding observations.
The pre-session working group meets behind closed doors at the end of a previous
plenary. It consists of four Committee members, each one of which is appointed a
rapporteur for a particular country, whose report is pending review during the
following plenary session. Country rapporteurs have the responsibility to examine all
background information provided by other than state sources, such as IGOs, NGOs and
various UN agencies, to present an analysis to the remaining Committee members and
eventually to draft the concluding observations on that country. Therefore, in order to
ensure maximum impact NGOs should provide their respective country rapporteur
with their parallel report well in advance of pre-session working groups.
During the pre-session working group, NGOs submitting parallel reports on periodic
state submissions may be invited to give a brief oral presentation. The information thus
obtained usually serves as a basis for the Committee drafting a list of questions for
state representatives to answer at the plenary session.
The CEDAW Committee plenary sessions are public, thus open to NGOs, but only in
their capacity as observers. However, Committee members are easily approachable
individually before and after country working sessions to talk informally about issues
of concern to NGOs.
23 M. Bustelo, ‘The Committee on the Elimination of Discrimination against Women at the Crossroads’,
in: P. Alston & J. Crawford (eds.), The Future of the UN Human Rights Treaty Monitoring, Cambridge
University Press, 2000.
7
At the end of each plenary session, the Committee issues publicly concluding
observations on the status of the Convention’s implementation in the countries
reviewed, which are then made available through the United Nations Division for the
Advancement of Women.
Committee on Economic, Social and Cultural Rights2*
In difference with the CEDAW and CRC Committees, the Committee on Economic,
Social and Cultural Rights was not established by its corresponding instrument but by
the UN Economic and Social Council (ECOSOC). It consists of 18 experts, serving in
their personal capacity, elected by State Parties on basis of equitable geographical
distribution, with due account given to the representation of the major legal systems in
the world. The committee convenes twice per year (May and November) in Geneva
and is being serviced by the United Nations Centre for Human Rights.
The Committee’s primary function is to monitor state implementation of and
compliance with the Covenant on Economic, Social and Cultural Rights. State Parties
to the Covenant are required to submit initial reports within two years of ratification,
and thereafter once every five years, outlining the measures taken to ensure the
enjoyment of the rights contained in the Covenant. To assist states in the reporting
process, the Committee has adopted a set of guidelines to be followed25.
In difference with CEDAW practice, reviews of state reports by the CESCR
Committee cannot be deferred and are being carried out even in the absence of State
Parties’ representatives. Similarly, in cases in which a state report is overdue and not
forthcoming, the Committee proceeds to considering the state concerned in light of
other available information, provided by NGOs, IGOs and other sources.
Consideration of state reports is, similarly to the procedures adopted by CEDAW and
CRC, a two-stage process. A five-person pre-session working group meets six months
prior to a report being considered by the full Committee. The working group appoints
country rapporteurs to examine in depth all available information and develops a list of
issues necessitating further clarification from State Parties. State Parties are then
required to reply in writing to the questions thus posed prior to their appearance before
the full Committee.
NGOs may partake in the work of the Committee in several ways. They may submit,
individually or in coalitions, parallel reports, give short oral presentations before pre
session working groups, thus drawing the experts’ attention to issues to be included in
the list of questions to State Parties, and attend the plenary session of the Committee to
24 For extensive information on the structure and procedures of CESCR, see COHRE Guide to Using the
UN System (http://www.cohre.org/unframe.htm); and K. Arambulo, Strengthening the Supervision of
the International Covenant on Economic, Social and Cultural Rights, Intersentia, 1999.
25 CESCR Revised General Guidelines Regarding the Form and Contents on Reports to be Submitted by
States Parties, E/C. 12/1991/1.
8
informally raise additional issues with Committee members. In order to facilitate NGO
participation, the Committee and various organisations26 have developed guidelines on
the form and content of reports as well as the practical involvement of NGOs during
pre-session and plenary meetings. The parallel reports may be general or issue-specific
and there are no differences as to the way in which they are reviewed by the
Committee.
Similarly to the CEDAW and CRC Committees, plenary sessions of the CESCR
Committee end with the adoption of country-specific concluding observations on the
progress being made by State Parties in the implementation of the Covenant. As the
CESCR is a body established by ECOSOC all concluding observations as well as
requests for state visits and suggestions for international technical or other assistance
are sent to ECOSOC for formal adoption. The process of formal adoption, however, is
only a procedural formality and bears no consequence in terms of added legal value.
ECOSOC has thus far neither refused to adopt a document of the aforementioned type,
presented by the CESCR, nor has it ever taken the initiative to pass a resolution
condemning a given state’s (or states’) insufficient efforts in the implementation of the
rights guaranteed by the Covenant. The latter is understandably unlikely considering
ECOSOC’s political nature.
Special Rapporteur on the Right to Health
In 2002, the UN Commission on Human Rights appointed a Special Rapporteur on the
enjoyment of everyone of the highest attainable standard of physical and mental
health27. With a mandate to investigate violations of the right to health worldwide, the
Special Rapporteur objective is three-fold: to promote awareness of the particular right;
to clarify its meaning; and to highlight instances of good practice.
In order to carry out its role, the SRRH may issue urgent appeals to states to refrain
from infringing on the right to health, submit annual reports through the UN
Commission on Human Rights to the General Assembly for consideration, and
undertake country missions to closely assess particular health situations.
For the purpose of fulfilling his mandate, the SRRH assembles and reacts to
information provided from a variety of sources: NGOs, academic institutions, IGOs,
health practitioners and other professionals. Following an assessment of the
communications thus received, the SRRH may issue urgent appeals or seek to
undertake country missions in order to carry out in-depth inquiries. Upon an invitation
of UN treaty-monitoring bodies, such as the CESCR, CRC or CEDAW, the Rapporteur
may also provide input on health references, contained in the Committees’ General
Comments, striving to elucidate the content and scope of application of different
aspects of the right to health.
26 E.g. COHRE Guide to Using the UN System, supra, n. 24; ‘NGO Shadow Reporting to CESCR: a
Procedural Guide’ by the International Women’s Rights Action Watch (http://iwraw.igc.org/shadow/
CESCRNGOguideJune2003.doc); in particular with regard to the participation of health activists in the
CESCR reporting process, see e.g. http://www.johannes-wier.nl/publicaties/ download/guidelines.pdf.
27 For further information relating to the mandate of the Special Rapporteur on the Right to Health, see
http://www.unhchr.ch/html/menu2/7/b/mhealth.htm.
9
Following the completion of a country mission, the SRRH produces a country report,
expounding on his findings. The report is then submitted to the UN Commission on
Human Rights for adoption. Country-specific investigations, encompassing a mission,
an urgent appeal or compilations of communications, are all included in an annual
report, which is then also conveyed to the Commission. If it so chooses, the
Commission may, in its turn, submit the Rapporteur’s reports to the UN General
Assembly for further consideration.
General Remarks on the Impact of Parallel Reporting
Formally enshrined in treaty-monitoring bodies’ constitutive instruments (CRC,
CESCR) or primarily developed outside the set treaty framework (CEDAW), parallel
reporting has evolved as a potentially effective ‘advocacy for change’ tool on both
international and national level.
The benefits accrued through parallel reporting to the work of treaty-monitoring bodies
are substantial28. NGO reports are particularly useful in providing the Committees with
a critical view of states’ efforts to implement the principles of the relevant
Conventions. As state reports tend to focus primarily on achievements, however
inadequate, NGO reports are highly instrumental in acutely pointing out the
insufficiency of state actions to fulfil treaty obligations, as well as any other
discrepancies and misrepresentations in governmental reports. Parallel reporting is also
greatly valuable in placing country-specific human rights circumstances in their
historical, political, socio-economic and cultural context. As Committees’ members
may or may not be sufficiently familiar with specific country situations, they benefit
from NGO reports establishing the particular consequences, which this context (or
changes thereof) bear on the enjoyment of human rights for all, or some segments, of
the population. Considerable is the value of parallel reporting also for supplementing
state reports, providing a deeper understanding of the human rights situation on
national levels and voicing the concerns of un- or under-represented societal groups
(minorities, refugees, detainees, etc.).
Given the process of parallel reporting is taken advantage of to the maximum of its
potential, it is an effective tool for mobilising grass-root support and for drawing
international attention to necessary changes in domestic policies and practices.
Whether domestic and international pressure would exert greater state compliance with
UN standards would ultimately greatly depend on states’ willingness to undertake
change, their priorities and availability of resources. Nonetheless, the potential of
parallel reporting for influencing, from both the grass-root and the international level,
national agendas remains significant. To exert maximum impact though, this potential
must be optimised on more consistently that it is being done at present.
28 A view generally shared by NGOs, academics. Committees’ members and representatives of different
international organisations, interviewed for the purpose of the present study.
10
Parallel Reporting on the Right to Health
Quantity and Quality ofParallel Reports Dealing until Health Issues
The right to health is among the most frequently addressed issues in both state and
parallel reports as well as Committees’ concluding observations. The attention given to
health issues apparently stems from the prominence of the right to health in the
relevant Conventions and the extensive interpretation of its content and recommended
methods of implementation in a number of General Comments . The
comprehensiveness and detail, in which health issues are addressed, however, vary
among countries depending on the magnitude of their respective health problems. Due
to financial and human resources constraints NGOs reportedly opt to concentrate on
occasions only on those human rights matters of immediate urgency or direct concern
to them30. Given there exist only minimal impediments to the enjoyment of the right to
health in a given country, it appears that Committees members’ attention is also likely
to focus on more pressing issues31 (discrimination, trafficking, etc.). Thus it seems that
both NGOs and the Committees, although in general dealing frequently and
extensively with the right to health, are prone every now and then to overlook its equal
status failing to recall that its realisation should not be approached from a comparative
perspective.
With regard to the quantity of parallel reports dealing with the right to health, it is
notable that nearly all reports invariably deal with health issues, some more extensively
than others, but there are hardly any instances of NGO reports exclusively focused on
the right to health. Similarly, as parallel reports attempt to cover broad areas, they
usually lack in regional and/or group-specific focus. Concerning the latter, however, it
must be recognised that as the Committees already struggle with a substantial backlog,
they lack the capacity to deal with a large number of ‘specific’ reports. To overcome
this drawback, nonetheless, it would be useful if NGOs were to put forward regional
and group-specific issues (i.e. health issues) in a joint parallel national report, prepared
in a coalition with partners. Such a report would reflect comprehensively, and in a
single document, country-wide but also group/region-focused human rights concerns
that NGOs wish to raise with the Committees, thus ensuring depth of the report while
alleviating the workload of the Committees.
As far as quality is concerned, parallel reports are generally instrumental in drawing
Committees’ attention to health care issues. However, the reports usually share some
common deficiencies.
29 E.g. CRC General Comment No. 3 on HIV/AIDS and the Rights of the Child (CRC/GC/2003/3); CRC
General Comment No. 4 on Adolescent Health and Development (CRC/GC/2003/4); CEDAW General
Comment 14 on Female Circumcision (A/45/38); CEDAW General Comment 24 on Health (A/54/38);
CESCR General Comment 14 on the Right to the Highest Attainable Standard of Health
(E/C. 12/2000/4).
30 A view shared by NGO representatives, interviewed for the present study.
31 An opinion expressed by a CRC member, interviewed during the research phase of this report.
11
First, similarly to state reports, NGO reports fall short of procuring adequately
disaggregated data32. While this deficiency on part of NGOs is understandable for lack
of sufficient human and financial resources, it does not facilitate the work of the
Committees, which often have to have recourse to various UN specialised agencies in
order to obtain more complete and correct data.
Second, as parallel reports generally tend to adopt an overly medical perspective when
dealing with health issues, they fail to adequately address these issues from a human
rights perspective33. There is insufficient recognition of the interrelation between
various national and international policies and their (potential) impact on health rights.
Moreover, NGO reports are deficient in that they reflect the wanting knowledge of
NGOs of the conundrum of all relevant to the right to health international instruments
and the difficulties NGOs encounter in the proper legal interpretation of these
instruments. Such difficulties translate into the ability of NGOs to apply the existing
legal framework, in which the treaty-monitoring bodies are situated, to particular
national circumstances so as to ensure comprehensive evaluation of the existing health
situation during parallel reporting and adequate follow-up to the Committees’
concluding observations. NGOs appear somewhat unaware of the legal value of healthrelated international instruments and their justiciability on both international and
national level (whether the instruments are indirectly incorporated in national
legislation or directly applicable, whether national courts have jurisdiction to
adjudicate on alleged violations of socio-economic rights, whether and to what extent
basic domestic constitutive and other documents enshrine the right to health, etc.).
NGO efforts towards the protection and promotion of the right to health also seem to
fall short of sufficiently exploiting the available national legislative frameworks,
relying exclusively on international monitoring processes instead of focusing on
existing national legislations (their relation to international standards) and the
possibilities (judicial and others) that they might offer.
Third, as a consequence of the aforementioned, NGO reports in general, and in
particularly when dealing with the right to health, tend to be predominantly
descriptive34. While the Committees invariably establish the linkages between health
problems, identified in parallel reports, and the broader human rights setting, they
relate to, it would be useful for NGOs to attempt a more analytical approach
themselves - establishing causality, cross-linking different issues of impact to health,
making specific recommendations for change. To this end, however, NGOs need to
acquaint themselves with (and increasingly adopt) a legal human rights perspective.
This is likely to facilitate the monitoring process and create a greater focus in
concluding observations and other international recommendations. It is only reasonable
to assume that NGOs are better placed than international bodies to correctly assess the
health situation in a given country and to make a proper judgement as to what changes
are necessary and viable in any particular political, socio-economic and cultural
circumstances.
32 One of the most pervasive shortcomings of parallel reporting identified by Committees’ members
interviewed for the purpose of the present study.
33 For a detailed analysis of this particular matter, see HeRWAl, Health Rights of Women Assessment
Instrument, developed by the Netherlands Humanist Committee on Human Rights (http://www.hom.nl).
34 A feature of parallel reports frequently acknowledged by Committee members.
12
Impact ofParallel Reporting on Health Issues on the CRQ CEDAW and CESCR
Despite some of the deficiencies of parallel reports, there is a general agreement
among academics, NGO and inter-governmental representatives as well as
Committees’ members that their impact on the work of the Committees is significant.
On the basis of information, provided by NGOs in their reports, particular
governmental practices and legislation come under detailed scrutiny (the better the
quantity and quality of alternative information brought to the Committees’ attention,
the more extensive the examination). Given health issues are among the more pressing
problems facing a specific country, NGO concerns, comments, and even suggestions,
usually find their way into the Committees’ concluding observations. While CEDAW
generally strives to avoid direct references to NGO ideas, it is not infrequent for the
CRC, alternatively, to literally transpose NGO wording into its concluding
observations. Openly or covertly represented in the end product of state evaluations,
parallel reports are invariably taken into consideration by all the Committees.
The only apparent, and rare, instances, according to Committees’ members, in which
NGO concerns would not be reflected into concluding observations, are those in which
the issues raised are of scientific uncertainty, which renders reliable supporting data
controversial (e.g. negative health consequences for children raised by gay couples).
Also, if data available from other sources - governments or UN specialised agencies does not support, or refutes, NGO information, concerns based on such unsubstantiated
data will naturally not find a place in the Committees’ concluding observations. Lastly,
NGO propositions, lacking in quality of exposition of argument and supporting
material, as well as in relevance, may not be taken into account by the Committees and
included in their observations.
Not infrequently, health problems are among the most pressing to both developed and
developing States Parties to the CRC, CEDAW and CESCR. While developing
countries face the challenge of dealing with a wide spectrum of problematic health
issues, developed countries struggle to bring their policies and practice in greater
conformity with their international obligations, guaranteeing the enjoyment of the right
to health to disadvantaged segments of the population. Given the prominence and
attention, which health issues are given by all the Committees, the majority of concerns
raised by NGOs in parallel reports usually find place in the Committees’ concluding
observations. Usually the more pressing and substantial the concerns are, the more
detailed coverage that is being accorded to them in Committees’ recommendations to
states. However, the lack and/or inadequacy of specific supporting information with
regard to health-related issues may preclude the Committees from rendering any
express recommendations.
Case study — Dominican Republic
In 2000 a coalition of Dominican NGOs submitted a parallel report on the observance
of children’s rights in the Dominican Republic to the CRC. Among the basic health and
welfare concerns raised by the coalition in its report were high average infant
mortality rates, unsafe water consumption being a major source of numerous
children’s diseases and the spread ofHIV/AIDS among children and adolescents.
13
In response, in 2001 the Committee adopted its concluding observations on the
Dominican Republic, which recommended in relation to health, that the State Party
“ undertake initiatives to reduce infant mortality” and “ continue taking measures for
the prevention of HIV/AIDS”. The Committee further concurred with NGOs in
concluding that the "persistence of health problems related to insufficient access to
safe water and sanitation are matters of concern
Case study - Germany
In their joint parallel report to CEDAW in 2003, German NGOs expressed only limited
concern about health-related issues affecting the well-being of women in the country.
Criticisms were centered primarily on the denial of access to medical sendees to
migrant women and girls with illegal or insecure residence status as well as to women
from the Roma and Sinti minorities.
In this regard, the concluding observations of CEDAW on Germany did include a
reference to the vulnerable situation of migrant and minority women and their
susceptibility to discrimination, trafficking and sexual exploitation. However, the
Committee refrainedfrom expressly dealing with the health situation of these segments
of society as according to the Committee’s members specific information was lacking
as regards the access of migrant/minority women to health care, the various forms of
violence committed against them and the rate offorced marriages.
Case study — Greece
In 2002 the Greek Helsinki Committee submitted a parallel report to the CESCR on
Greece’s compliance with its obligations under the Convention. The NGO report dealt
partially with the right to health noting, inter alia, the lack (or inadequacy) of health
care services in remote areas populated by Roma communities, the rising percentage
of excessive smokers and the dramatic divide between rich and poor segments of the
population, which significantly affected the Greek health system.
In its concluding observations on Greece, the CESCR expressed concern about the
high tobacco consumption rate in Greek society and recognised the poverty divide and
the inadequacy of health services in rural area populated by the Roma minority as
problematic matters. However, the Committee expressed regrets that it was not
provided with sufficient information (statistical and other) to allow it to assess the
State Party’s efforts in this regard.
Interestingly, NGO concerns pertaining to Greek legislation obliging medical
personnel to report non-nationals seeking health treatment to the authorities, rising
abortion rates, which are among the highest in the world, and pervading lack of
information about contraception among all societal groups, were not reflected in the
CESCR’s concluding observations.
In customarily including health-related recommendations in their concluding
observations, the Committees have also exhibited tendencies to examine or refer to
certain health issues somewhat more extensively and persistently than others. Thus for
instance the CRC recommendations related to adolescent healthcare and quality of
healthcare in general are most systematically included in the Committee’s concluding
observations35. CEDAW in its turn gives greatest emphasis to reproductive health (preand post-natal health care, issues pertaining to abortion, HIV/AIDs, family planning,
35 From an interview with a CRC Committee member, conducted in connection to the present study.
14
harmful traditional practices) and (sexual) violence against women36. Less elaborately
addressed by CEDAW are matters related to environmental health, adequate nutrition,
drug and alcohol abuse and mental health37. Only rarely discussed are issues related to
occupational health, safe drinking water and adequate sanitation38. The attitude of the
CESCR in dealing with health-related issues is, in comparison to CRC and CEDAW,
more difficult to trace, as the Committee appears to deal with the right to health in a
somewhat random manner39. In its concluding observations the CESCR does not
appear to stress some issues more than others, touching upon the various elements of
the right to health as far as they apply to each and every State Party.
Parallel Reports versus State Reports: Value and Impact
Generally, parallel reports are given as much time and consideration as state reports,
with the exception of the rare instances in which a particular country situation
engenders an overwhelming number of NGO responses (e.g. in 2002 Japanese NGOs
submitted parallel reports amounting to several thousand pages to CEDAW)40. In such
circumstances, although not all NGO concerns would find their place in final
concluding observations, the most pertinent ones would usually be reflected in a
recommendation, with considerations relating to the right to health frequently being
among those ones mentioned41.
NGO reports are particularly valuable in drawing the Committees’ attention to issues
overlooked in state reports and in critically assessing the actual progress made by states
in the implementation of their obligations on the basis of previous Committees’
concluding observations. Parallel reporting is also highly useful in its non-written form
- NGOs presenting their views at Committees’ pre-session working groups - in that
this type of‘supplementary’ reporting is critical for focusing the Committees’ attention
to particular areas of concern. Oral presentations by NGOs are, moreover, instrumental
in pushing forward for detailed public inquiries by the Committees into specific state
actions or inaction, having repercussions on the realisation of specific rights. The
stimulation of such extensive inquiries during public Committees’ sessions guarantees
that no issues of great significance to NGOs are overlooked while at the same time
potentially “shames” states, evoking reputational concerns and possibly subsequent
changes.
Inter-Committee Co-operation and Exchange ofInformation on Health Issues
There appears to be little, if any, formal co-operation among the Committees. They all
have recourse to the same independent health data compiled by UN specialised
agencies but do not have a system in place for the exchange of country-specific
information obtained through NGO sources.
36 B. C. A. Toebes, The Right to Health as a Human Right in International Law, Intersentia, 1999.
37 Toebes, supra, n. 36.
38 Toebes, supra, n. 36.
39 Toebes, supra, n. 36.
40 From interviews with members of the CRC and CEDAW Committees.
41 supra, n. 40.
15
Although the Committees refer to each other in General Comments on the scope and
interpretation of particular rights, no similar cross-references tend to appear in statefocused concluding observations. Nonetheless, Committee members usually strive to
acquaint themselves with other Committees’ concluding observations although it is
only the CRC that has more formally incorporated this process in its work. The CRC
has initiated a trend of including in its country files, to be examined in the course of
formal sessions, concluding observations of other Committees, such as CEDAW and
the CESCR.
Moreover, there is no database of good practices maintained to assist NGOs in the
reporting process and in the case of CEDAW and CESCR parallel reports are not even
easily (electronically) accessible to either health and human rights activists or the
public in general. It therefore seems imperative that if the reporting process on the right
to health, and state implementation actions, are to be monitored consistently by healthfocused NGOs, a comprehensive database of parallel reports be established. This
database should consistently document NGO reports to all Committees touching on the
right to health as well as to the Special Rapporteur on the Right to Health, providing
tools for easy access to, and comparison of, data. It should also at the same time seek
to provide a comprehensive compilation of relevant training resources for healthoriented NGOs - thus making essential for NGOs materials available in an easily
accessible and centralised manner. The existence of such a focal point of information is
likely to facilitate co-operation, national and international, with other NGOs, and also
with UN specialised agencies, working on common health issues. Increased co
operation, in its turn, would promote more sustained action campaigns as a follow-up
to Committees’ concluding observations.
Impact ofAlternative Reporting on National Levels
Potentialfor concluding observations to evoke change
Committees’ concluding observations, although of recommendatory nature, must be
positioned and evaluated in the broader legal context of the relevant Conventions. The
CRC, CEDAW and CESCR do impose a legally binding obligation on states to ensure
the realisation of the right to health. While this obligation for realisation is of a
predominantly progressive nature, there are certain core elements of the right to health,
which states are under an immediate and unconditional legal duty to guarantee,
irrespective of the availability of their resources. The lack of a stringent enforcement
mechanism for ensuring the proper fulfilment of states’ undertaken obligations does
not nullify the existence of the legal right to health per se. NGOs need to develop
greater awareness of the legal meaning of the right to health and also learn to position
it vis-a-vis a broader legal framework, national and international42. In this way, voicing
their health concerns translated through parallel reporting into concluding observations
could potentially assume greater ‘bargaining for change’ power on national level.
Understanding the interrelation among various existing instruments relating to the right
to health (treaties, general comments, concluding observations, domestic legislation,
etc.) and shaping advocacy strategies to take account of the overall legal context would
42
supra, n. 33.
16
give increased impact to NGOs, in the national and international domains. Parallel
reporting would thus become a part of an ongoing and integrated process advocating
fuller realisation of the right to health, rather than an ad hoc and isolated periodic
exercise, unable to procure sufficient follow-up.
Effective follow-up to Committees’ concluding observations, however, would not only
depend on NGOs’ familiarity with the overall legal context, in which the right to health
is positioned, but also on the maintenance of NGO coalitions, sharing common
objectives and complementing expertise.
Generally, states tend to perceive the reporting process as a one-off activity, likely to
produce only negligible repercussions on both national and international level.
Excluding states in which NGOs are pressured into playing little, if no role at all, such
complacency is somewhat fuelled by NGOs’ failure to ensure sustained follow-up
action and monitoring, once their complementary views have found reflection in
Committees' concluding observations. Without ongoing efforts on part of NGOs to
advocate for change in health rights, in a broad legal context, concluding observations
in themselves can do little to bring about tangible results. They may be instrumental in
helping NGOs and states identify priority actions to be taken and areas, for which
technical assistance is to be sought. However, the sustained advocacy of NGOs for
ongoing change is crucial43.
To this end, rather trivial at first sight actions might in fact bear significant impact.
Widely disseminating, both at the grass-root level and among governmental officials,
state and parallel reports, as well as the Committees’ concluding observations, is of
critical importance.
Case study - India44
In India, NGOs have reported that state officials and other civil servants, involved in
the formulation ofIndia’s policies but not having participated in the periodic reporting
process before CEDA JF in 2000, were unaware of either the concluding observations
adopted or of India being a State Party to CEDAW and the state's corresponding
obligations. Having been familiarised by NGOs with the relevant documents through a
sustained educational campaign, it is recounted that high ranking officials in some of
India’s provinces have stimulated the formulation of ‘Plans for Action ’ taking greater
regard of women’s rights (including the right to health).
The wide dissemination of both reports and concluding observations on the grass-root
level, however, is not without its challenges, as NGOs in India, promoting the
implementation of CEDAW, have experienced. Apart from the impossibility, due to
insufficiency of human and financial resources, to translate the relevant documents
into more than 100 regional languages, additional difficulties were encountered in
light of the high levels of illiteracy and the general complexity of the CEDAW-related
documents concerned. To overcome these impediments, some regional NGOs have
opted for the dissemination of self-explanatory posters, to which the general
population can easily relate (e.g. depicting the difference between the availability of
healthcare during childbirth and the lack of such healthcare as the difference between
life and death). Posters have been accompanied by the circulation of brochures
43 A widely-shared perception among NGO representatives, interviewed for the purpose of the present
study.
44 Information on the case study kindly provided by the KRITI Resource Centre, India.
17
summarising the facts relating to the status of women’s health in India and in
juxtaposition, India’s obligations under CEDAW. The campaign has been considered a
success and it is being modelled after in other regions ofIndia.
The maintenance and expansion of NGO coalitions for the purpose of ensuring
sustained follow-up actions to Committees’ concluding observations pertaining to the
realisation of the right to health is also of critical importance. Partnerships of medical
and human rights experts are particularly useful so as to ensure a range of knowledge
and experience from the two sectors, whose co-operation is essential for the
optimisation of the reporting process and its follow-up. Coalition arrangements also
enhance visibility, boost bargaining power and occasionally serve as protection
umbrellas, decreasing vulnerability to intimidation and prosecution by the authorities45.
Potentialfor the parallel reporting process to evoke change
The benefits of parallel reporting in general, as well as with regard to health issues in
particular, depend primarily on the commitment and co-operation of governments,
NGOs and relevant international agencies. The impact that the reporting process can
exert depends ultimately on the ability and willingness of the various actors concerned
to channel their joint efforts towards the identification of common goals and priorities,
and the sustained pursuit of follow-up actions. Engagement in joint efforts would be
affected by the type of political system, in which NGOs function, the availability of
national resources, the openness of the relationship between NGOs and states, as well
as the capacity and commitment of NGOs to undertake effective monitoring and
follow-up46. Some of these factors may be so rigid in given states that they yield
themselves to only slow and incremental change, impeding the work of civil society.
Whenever possible, however, in order to extract the maximum benefit from the parallel
reporting process, in specific with a focus on health issues, the potential tools for
ensuring greater impact must be internalised and more extensively employed by
NGOs.
Ownership of the reporting process by national NGOs is critical. Nonetheless,
coalition-building should be optimised on, engaging the expertise and experience
of partners from both the health and human rights sectors. Coalitions are also
instrumental in ensuring protection and greater impact on international as well as
national level. Partnership arrangements for the purpose of engaging in the parallel
reporting process also contribute, through the affirmation of commitment to shared
objectives, to wider and more sustained follow-up actions47.
The parallel reporting process should engage grass-root society in order not only to
provide a more complete picture of the state of health of different segments of the
population but also to familiarise and empower them with their entitlement to
healthcare. NGO parallel reports should thus be a part of an ongoing process rather
45 "A Toolfor Change? Reporting to the UN Committee on the Rights of the ChilcT, a publication by
Save the Children UK, 2003 (http://www.savethechildren.org.uk/scuk/isp/resources/details.isp?id=1826
&group=resources§ion=policy&subsection=details&pagelang=en).
46 supra, n. 45.
47 supra, n. 45.
18
than an isolated occurrence. They should also be action-oriented, identifying goals
and tangible benchmarks and specific actions for their achievement48.
Maintenance of continuous dialogue between civil society and government in
preparation of the reporting process as well as subsequently to the publication of
the Committees’ concluding observations is crucial. Wide familiarisation of
governmental officials with both the reporting process and its outcome as well as
identification of the particular departments bearing the responsibility for the
implementation of the concluding observations pertaining to health issues is
imperative49.
In circumstances in which NGOs are impeded by a general lack of comprehensive
data and mechanisms for collecting it or by impossibility to partake in the reporting
process due to lack of resources or political repression, co-operation with
international specialised agencies (UNICEF, WHO, etc.) is useful50. Not only do
these agencies dispose of specialised and regularly updated health information but
some of them may also contribute to the reporting process - directly or through
technical assistance. As international NGO reports, however, are not generally
perceived as sufficiently representative of and empowering for civil society at
national level (where existent and adequately organised), it is preferable that
international NGOs focus mostly on capacity building51 - an activity in which they
are regarded by national NGOs as much useful.
Careful planning is a key52. As the programming cycles of NGOs, governments and
the UN treaty-monitoring bodies do not coincide, but rather differ in years, close
monitoring of governmental policies and updating of health data is necessary so as
to ensure both factual correctness and relevance of parallel reports when examined
by the Committees. As NGO participation in pre-session working groups has
significant potential to exert impact on the Committees but is rather limited in time,
careful preparation and clear definition of top priority issues is essential. The
formulation of common sets of priorities among NGO coalition partners and
specialised agencies, capable of providing technical assistance, and hammering
these priorities into concluding observations, further facilitates more focused and
manageable follow-up actions.
Lastly, widely publicising the parallel reporting process, its outcome and planned
follow-up - both nationally and internationally - is of critical importance for
attracting technical assistance, possibly donors, inflicting reputational loss on
governments and raising awareness of the content of the right to health and the
legal entitlements it gives rise to.
48 supra, n. 45.
49 Opinions of NGOs interviewed in connection to the present study.
50 Views expressed by interviewed Committees’ members in the process of preparing this report.
51 Views expressed consistently by national NGOs, interviewed for the present study.
52 supra, n. 45.
19
Recent Instances of Impact of Parallel Reporting on
National Levels
NGOs surveyed for the present study all reported that despite their general satisfaction
with Committees’ handling of their parallel reports and the adequate reflection of their
health concerns in concluding observations, change at national levels has been
predominantly slow and incremental. As obstacles to the timely and effective
implementation of the Committees’ recommendations pertaining to the right to health,
NGOs frequently name: lack of political will, financial constraints and lack of skilled
manpower to devise and implement better health policies, bureaucratic dominance
stifling innovative legislative initiatives, prioritisation of other areas (i.e. civil and
political issues), and economic liberalisation, impelling the state to withdraw from its
role of a welfare provider, shifting responsibility to the private sector.
Despite the general slowness of change and the numerous hurdles in its way, the
reporting process (including Committees’ concluding observations) is credited for
frequently triggering at least some responses on national levels. The adequacy and
tangible usefulness of these responses, however, ultimately depend on the sustained
joint effort of NGOs to educate and advocate for change. National developments to
guarantee and more fully realise the right to health have included the following:
Subsequent to the CRC adopting its concluding observations on the United
Kingdom53 in 2002, which made some specific references to the health situation in
Northern Ireland, the Northern Ireland Department with responsibility for human
rights initiated a process of developing a ten-year overarching Children’s Strategy
for Northern Ireland. The Northern Ireland Department of Health, Social Services
and Public Safety (DHSSPS) has become closely involved in the development of
the overall Strategy. Although the Children’s Strategy is scheduled to become
finalised in 2005, good NGO representation in the task forces, delegated the
drafting of the text, has resulted in substantial efforts to give tangible effect to the
CRC concluding observations. A drawback identified by participating NGOs at this
point of the drafting process, however, is the predominantly general nature of
formulated health strategies, targeting entire communities rather than children’s
needs in specific. Also DHSSPS appears to be favouring a retrospective approach
to the Committees’ concluding observations, collating policies and initiatives
already fitting the recommendations, rather than developing a novel approach to
problematic areas.
Following CRC’s 30th session in 2002 Belgium54 adopted a law concerning the
“rights of patients”. The law entitles minors to a certain level of participation in
their medical treatment, defining rights, such as right to informed consent, right to
a free choice of health carers, right to privacy, right to complain, etc. A
recommendation to this end was made by the CRC in its concluding observations
on Belgium on the basis of NGO advice to this end. The law has been criticised for
some minor shortcomings (e.g. no harmonisation of the minimum legal age for the
exercise of patient’s rights by minors) and has not yet been fully implemented but
53 Information on the case study kindly provided by Save the Children UK and the UK Children’s Law
Centre.
54 Information on the case study kindly provided by UNICEF, Belgium.
20
it is a tangible reflection of the impact, which Belgian NGOs have produced by
means of the reporting process.
In 2000 a coalition of Indian NGOs submitted an exhaustive parallel report on
women’s rights, including impediments to the enjoyment of the right to health, in
India55 to CEDAW. On the basis of alternative information thus provided, the
Indian government came under considerable pressure when CEDAW presented its
delegation with a list of over 100 questions to be clarified, touching upon numerous
health issues. Following the adoption of the Committee’s concluding observations,
the Indian government held several follow-up meetings with NGOs, having
participated in the reporting process, and undertook steps to gradually realise a
number of health initiatives in response to the Committee’s recommendations.
Initiatives included: expansion of the existing health infrastructure, programme to
holistically address women’s health throughout the life cycle, National Nutrition
Mission and National AIDS Control Programme.
Taking into consideration Ukrainian NGO parallel reports, in 2002 CEDAW
adopted its concluding observations on Ukraine56, paying considerable attention to
health issues. The Committee expressed concern about the state of reproductive
health of Ukrainian women, noting the high number of abortions and maternal and
child mortality rates. Anxiety was further expressed about the wide spread of
alcohol and tobacco addictions as well as the severe insufficiency of family
planning and sexual education programmes. As a consequence of CEDAW’s
concluding observations on this and previous occasions, the President of Ukraine
adopted a National Programme on Reproductive Health 2001 - 2005, detailing a
plan for action to improve reproductive health through increased awareness of
issues pertaining to sexual health and contraception and the need for responsible
parenthood. The Ukrainian government further initiated drafting a ‘Nation’s
Health’ programme for 2002 - 2011, addressing issues of women’s health
throughout the life-cycle and striving to ensure concurrence with established
European policies.
NGOs and the Special Rapporteur on the Right to Healths?
Given the rather recent mandate of the Special Rapporteur, the role of NGOs thus far
has neither been extensive nor clearly defined. This situation, however, is the outcome
of the novelty of the appointment rather than an attempt to prevent civil society from
active involvement. As a matter of fact, the role that NGOs can play in the SRRH
procedure is critical.
The organised and timely input of civil society is crucial for the issuance of urgent
appeals to states to cease violations of the right to health occurring generally or in
specific situations. As the Rapporteur’s funding is quite limited, therefore restricting
the number of country missions that can be undertaken, NGOs’ communications are
furthermore essential for helping the SRRH determine the severity of health problems
55
Information on the case study kindly provided by NAWO, India.
Information on the case study kindly provided by K.CWS, Ukraine.
57
From an interview with staff of the Special Rapporteur on the Right to Health.
56
21
and thus the immediacy with which a given country mission is required. The role of
NGOs, however, is not exhausted with alerting the Rapporteur about right to health
violations. Once a country mission has been undertaken, NGOs can be highly
instrumental in providing organised assistance as well as further information to the
Rapporteur ‘on the field'. Communications supplied during country-based missions as
well as to the Office of the Special Rapporteur in Geneva usually find their way, when
substantiated, into both country-specific and annual reports, submitted to the UN
Commission on Human Rights. On the basis of these reports, states will be required to
elucidate on their polices and practice before both the SRRH and the Commission.
The SRRH procedure can also be very useful in furthering the work of NGOs involved
in other branches of the UN reporting process. The Rapporteur on the Right to Health
may be employed as a follow-up means to not only his own country and annual
reports, but also to the concluding observations of treaty-monitoring bodies and the
health-related work of other thematic or country rapporteurs. Thus the momentum of
the reporting process will be maximised, allowing for sustained long-term follow-up
on both national and international level.
Naturally, the very same considerations, raised earlier, with regard to the necessary
optimisation of NGOs’ involvement in the UN treaty-monitoring processes, hold true
for the SRRH procedure as well. This optimisation is even more critical given that the
mandate of the Special Rapporteur on the Right to Health offers somewhat greater
opportunities for informal involvement of NGOs in comparison to the UN treaty
monitoring bodies. The accruing benefits of consistent follow-up to the health-related
work of other UN bodies as well as states’ compliance also appear to be substantial.
Limitations, in terms of financial and human resources, facing the Special Rapporteur,
admittedly curtail the potential, which the mandate itself offers. Nonetheless, civil
society should strive to maximally exploit the rather open, informal and broad
opportunities for participation, which the SRRH procedure offers. Such participation
needs to be more proactive than it has been so far and possibly more organised so as to
enhance value and impact respectively on the international and national levels.
Conclusions and Suggestions
To briefly recapitulate the findings of this study, NGO reporting on health issues
would need to be optimised so as to have the potential that the available UN processes
offer more fully realised. Opportunities for improvement are present at all levels from the stage of preparation of NGO reports through the exchange with treaty
monitoring or thematic bodies to the securing of sustained long-term follow-up to
international recommendations.
In this regard, some practical suggestions for the enhancement of the capacity and
impact of NGOs and parallel reporting on the right to health include but are not
exhaustively limited to:
more systematised monitoring of relevant concluding observations and states’
actions taken in implementation thereof;
22
the creation of a central electronic database recording Committees’ and Special
Rapporteur’s conclusions, state and NGO reports, and other pertinent to the
right to health information (e.g. guidelines for parallel reporting, assessment
tools for monitoring health-related developments on the national level, manuals
on the interpretation of the scope and content of the right to health, etc.);
greater NGO co-operation on the national
comprehensiveness and depth of parallel reports;
level so as to ensure
increased awareness of the overall legal context (national and international), in
which the monitoring and realisation of the right to health take place;
consistent and extensive substantiation of parallel reports with supporting data,
examples and suggested solutions to identified problems;
better understanding of the reporting process and the opportunities it offers for
NGO participation as well as the maximisation of these opportunities through
careful planning, optimised quality of reporting and consistent follow-up;
greater co-operation with relevant international agencies in the areas of data
collection and capacity building;
dissemination of information related to states’ obligations with respect to the
right to health not only on the grass-root level, but also among governmental
institutions and officials;
maximised use of the open, informal and broad possibilities for participation
that the office of the Special Rapporteur on the Right to Health offers.
Education and advocacy campaigns need to disperse the prevailing notion that the
responsibility of states to ensure the full enjoyment of the right to health is not a legal
duty. Awareness should be installed of the interconnectedness of health issues with the
fulfilment of a wide array of other human rights and also of the need for the adoption
of a more holistic human rights approach to campaigning for the realisation of the right
to health.
NGOs need learn to better exploit the opportunities, however limited, that reporting as
a whole offers. The process need not necessarily be viewed solely as an occasion to
criticise state policies and practice. Rather, reporting can be used as a means for
engaging in constructive dialogue, strengthening coalition networks and educating for
a change at all levels so as to ensure ongoing efforts to bring about tangible, albeit
slow, changes in the implementation of the right to health on national levels. ♦
♦ IFHHRO is a federation of independent human rights organisations committed to the
protection and promotion of health-related human rights through advocacy, education,
research and publications. It strives to bridge the medical - human rights divide by serving as
a focal point of information, capacity building and technical support for NGOs willing to
partake in the reporting processes that the UN offers.
23
HUMAN j
RIGHTS
WATCH
. W
■
THE INTERNATIONAL CRIMINAL COURT:
How Nongovernmental Organizations Can Contribute To
the Prosecution of War Criminals
September 2004
INTRODUCTION
i
THE MANDATE OF THE INTERNATIONAL CRIMINAL COURT
2
The Jurisdiction of the Court.......................................................................
Complementarity............................................................................................
Structure and Organization of the Court....................................................
Rights of the Accused and Punishment......................................................
The Start of an Investigation........................................................................
..2
..8
..9
12
13
HOW NATIONAL NONGOVERNMENTAL ORGANIZATIONS CAN
WORK WITH THE COURT...............................................................................
14
The Interaction between NGOs and the Court...............................................
NGO Assistance to Victims and Witnesses.....................................................
14
18
ACKNOWLEDGEMENTS
24
INTRODUCTION
In many conflicts around the world, armies or rebel groups attack ordinary people and
commit terrible human rights abuses against them. Often, these crimes are not punished
by the national courts. But since July 2002, we have an international court for such
crimes. The International Criminal Court (ICC) is a permanent international tribunal
created for the prosecution of crimes against humanity, genocide, and war crimes. The
International Criminal Court is currently in the process of preparing its first cases and is
based in The Hague.
The Democratic Republic of the Congo (DRC) will become the first place where grave
crimes are prosecuted by the International Criminal Court.
On June 23, 2004, the Court’s Prosecutor, Louis Moreno Ocampo, announced that he
was opening his first investigations in the DRC, for crimes committed since July 2002.
This announcement was an answer to a formal referral of the situation in the country to
the ICC by the DRC government in March 2004. The Office of the Prosecutor had
been conducting a “preliminary analysis” of the situation in DRC, initially focusing on
the situation in Ituri, Oriental Province, as “the most urgent situation to be followed.”
In Uganda, the government has referred the situation regarding the rebel Lord’s
Resistance Army (LRA) to the International Criminal Court. In a press conference, the
Prosecutor of the Court has explained that the LRA has indeed committed grave crimes
against civilians and that the Court will take this matter seriously.
Congolese and Ugandan nongovernmental organizations (NGOs) can play a vital role by
cooperating with the International Criminal Court. This guide answers some of the
frequently asked questions about the Court. In particular it explains how NGOs can
contribute to the Court’s work of prosecuting war crimes, crimes against humanity, and
genocide at the international level. It does so by answering frequently asked questions
about the International Criminal Court and the way NGOs can contribute to its efforts.
However this guide does not provide a legal commentary or detailed explanation of the
ICC crimes, nor does it tell the history of the International Criminal Court.
1
THE MANDATE OF THE INTERNATIONAL CRIMINAL COURT
How was the Court created?
The Statute for the creation of the Court was adopted at an international conference in
Rome on July 17, 1998. After intense negotiations, 120 countries voted to adopt the
treaty. One hundred thirty-nine states have signed the treaty as of mid-2004. Sixty-six
countries — six more than the threshold needed to establish the court - ratified the treaty
on April 11, 2002. This meant that the ICC's temporal jurisdiction commenced on July
1, 2002. In February 2003, the Court's Assembly of States Parties - the ICC's governing
body - elected the Court's first eighteen judges. The resulting high quality and diverse
judicial bench (the judges include 7 women and represent all the regions of the world)
were sworn into office on March 11, 2003, in The Hague, the seat of the court. On April
21, 2003, the Assembly of States Parties elected the chief prosecutor, Luis Moreno
Ocampo. As of July 8, 2004, ninety-four countries have ratified the ICC treaty.
Each state party has to adopt laws that set out how the state is going to implement its
obligations under the Rome Statute. Such laws cover, for example, the technicalities of
the cooperation between the state and the Court, and define the crimes covered by the
Rome Statute. Such laws are often called “implementing legislation.”
The Jurisdiction of the Court
Which crimes will the Court prosecute?
The Court will prosecute the most serious crimes that are of concern to the international
community. These are crimes of genocide, crimes against humanity, and war crimes. It
has been proposed that the Court should prosecute the crime of aggression but the state
parties have yet to agree on a definition. Below are brief definitions of the crimes as
agreed to in the Rome Statute.
What is genocide?
Genocide occurs when acts are “committed with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group.” Such acts of genocide can be carried out by:
•
killing members of the targeted group;
•
causing serious bodily or mental harm to members of the group;
•
deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
2
imposing measures intended to prevent births within the group;
or forcibly transferring children of the group to another group.
This definition of genocide is based on the definition found in the 1948 U.N.
Convention on the Prevention and Punishment of the Crime of Genocide, which
confirmed genocide as a crime under international law in the aftermath of the Holocaust.
What are crimes against humanity?
Crimes against humanity are crimes that are “committed as part of a widespread or
systematic attack directed against any civilian population.” They can include acts such as:
murder
extermination
enslavement
deportation
forcible transfer of population
imprisonment
torture
rape
sexual slavery
enforced prostitution
forced pregnancy
enforced sterilization
other forms of sexual violence
persecution against any identifiable group or collectivity
enforced disappearance of persons
the crime of apartheid
other inhumane acts of a similar character intentionally causing great suffering,
or serious injury to body or to mental or physical health.
What are war crimes?
War crimes are grave breaches of the Geneva Conventions of 12 August 1949 and other
serious violations of the laws and customs applicable in armed conflicts. The Geneva
Conventions are international agreements defining the rules of war. They set
international standards for the protection of the civilian population and the treatment of
combatants in international and internal armed conflicts.
3
War crimes are committed in the context of armed conflict. Some war crimes are
specifically linked to internal armed conflict - such as civil war - and others are linked to
international armed conflict. But most war crimes can occur in both situations.
Given that foreign troops have fought on Congolese soil, the DRC conflict has both an
international and an internal dimension.
In northern Uganda, foreign troops have not been involved directly, and hence the war
there is understood to be an internal armed conflict.
War crimes in international armed conflicts consist of acts such as:
•
willful killing
•
torture or inhuman treatment including biological experiments
•
willfully causing great suffering or serious injury to body or health
•
extensive destruction and appropriation of property, not justified by military
necessity and carried out unlawfully and wantonly
•
compelling a prisoner of war or other protected person to serve in the forces of
a hostile power
•
willfully depriving a prisoner of war or other protected person of the rights of
fair and regular trial
•
unlawful deportation or transfer or unlawful confinement
•
taking of hostages.
War crimes in internal armed conflicts include acts such as
•
violence to life and person, in particular murder of all kinds
•
mutilation, cruel treatment and torture;
•
outrages upon personal dignity, in particular humiliating and degrading
treatment
•
taking of hostages
•
conscripting and enlisting children under the age of fifteen years
In addition to the Geneva Conventions, other violations of the laws and customs of war
can also be war crimes. The Rome Statute lists a wide range of such acts. Examples
include:
•
intentionally directing attacks against the civilian population;
4
intentionally directing attacks against civilian objects;
intentionally directing attacks against personnel, installations, material, units or
vehicles involved in a humanitarian assistance or peacekeeping mission;
killing or wounding a combatant who, having laid down his arms or having no
further means of defence, has surrendered..
Under international law, such acts can be war crimes even if they are not committed as
part of a systematic or widespread attack on civilians, but if they are only rare or
sporadic. However, the authority of the International Criminal Court is more limited.
According to the Rome Statute, « the Court shall have jurisdiction in respect of war
crimes in particular when committed as part of a plan or policy or as part of a large-scale
commission of such crimes ».
Can the Court prosecute crimes of aggression?
No. When the statute of the International Criminal Court was prepared, countries could
not agree on a definition of aggression as individual crime. Seven years after the entry
into force of the Rome Statute (in 2009), the issue of aggression will be reviewed. If a
sufficient number of states agree on a definition, it will be included in the Rome Statute,
and only then could the Court prosecute crimes of aggression.
The question of aggression is of great importance to the DRC because troops from
Rwanda and Uganda attacked and occupied part of the DRC for several years. The
Security Council stated that “Uganda and Rwanda... have violated the sovereignty and
territorial integrity of the Democratic Republic of the Congo...” (Resolution 1304 on 16
June 2000), and many others have adopted a similar viewpoint.
Can the Court prosecute acts of sexual violence?
Yes. The jurisdiction of the Court explicidy names a number of sexual and gender-based
crimes: rape; sexual slavery; enforced prostitution; forced pregnancy; enforced
sterilization; and other forms of sexual violence, gender-based persecution and
enslavement, including trafficking in women and girls. These crimes constitute crimes
against humanity if they are carried out as part of a systematic or widespread attack on
the civilian population. Acts of sexual violence can also be prosecuted as a war crime if
they were committed in the context of, and associated with, an international or internal
armed conflict.
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Can the Court prosecute the recruitment and use of child soldiers?
Yes. The Rome Statute says that “conscripting and enlisting children under the age of
fifteen years into armed forces or using them to participate actively in hostilities” is a war
crime. This is the case in internal as well as international conflicts.
The Rome Statute does not deal with the recruitment of children between fifteen and
eighteen years. Nonetheless, states may be prohibited from recruiting children between
fifteen and eighteen years.
For example, the Congolese government has signed and ratified the Optional Protocol
to the Convention of the Rights of the Child on the Involvement of Children in Armed
Conflict, which prohibits recruitment of children under the age of eighteen. The
Ugandan government has also acceded to the Optional Protocol, raising the legal age for
recruitment to the age of eighteen. In addition it has made a binding declaration
affirming eighteen as its minimum age for voluntary recruitment.
Can the Court prosecute child soldiers who have committed crimes?
No. The Rome Statute excludes prosecution of a person who was under the age of
eighteen at the time of the alleged commission of a crime.
Can the Court prosecute acts of economic exploitation or pillage?
Economic exploitation as such is not part the Court’s jurisdiction. However, it can be a
war crime to pillage, starve civilians, or destroy or seize enemy property. A leader or
member of an army or armed group involved in such crimes can be prosecuted.
Individuals can become criminally responsible by facilitating a crime. For example if an
individual involved in economic exploitation activities facilitates a war crime, he or she
can be prosecuted. Corporations cannot be prosecuted.
Can the Court prosecute crimes from the past?
The Court has jurisdiction over crimes committed after July 1, 2002, i.e. the date when
the Rome Statute entered into force. Crimes committed before that date cannot be
prosecuted by the Court. For those crimes, other solutions need to be found, such as
prosecution in the national justice system, in an ad hoc international tribunal such as the
International Tribunal for Rwanda, or any other special tribunal such as the Special
Court for Sierra Leone or before the courts of a third country where individuals could be
prosecuted under universal jurisdiction. If a country ratifies the Rome Statute later than
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July 2002, the Court will only be able to prosecute crimes committed after the date of
ratification
In which countries can the Court prosecute crimes?
The Court can prosecute crimes committed in states that are party to the Rome Statute.
The DRC signed the Rome Statute on September 8, 2000, and ratified it on April 11,
2002. Uganda signed the Rome Statute on March 17, 1999, and ratified it on June 14,
2002. Therefore crimes that have been committed after July 1, 2002 on the territory of
the DRC and Uganda can be prosecuted by the Court.
Can the Court prosecute crimes committed by foreigners, i.e. individuals
who do not have the nationality of the country where the crimes occurred?
Yes, in two cases. The Court can prosecute crimes committed on the territory of a
country that has ratified the Rome Statute whether the accused are citizens of that
country or another. (There is an exception with regards to members of peacekeeping
forces though; see below). And, the Court can prosecute crimes committed by citizens
of a country that is party to the Rome Statute, whether the crimes are committed on the
territory of their home country or of another country. Since the DRC and Uganda are
party to the Rome Statute, their citizens can be prosecuted for crimes they commit in
any country.
Can the Court prosecute crimes committed by U.N. peacekeeping forces?
This depends on the nationality of the peacekeepers. If the peacekeepers are from a
country that has ratified the Rome Statute, they can be prosecuted. But peacekeepers
from states that have not ratified the treaty are currendy exempt from the Court’s
jurisdiction. This was decided by the U.N. Security Council in July 2002, and the rule was
renewed for another year in June 2003. As a result, crimes committed by peacekeepers
between July 14, 2002 and June 12, 2004 are exempt from the Court’s jurisdiction (if the
peacekeepers come from a country that has not signed or ratified the Rome Statute).
This exception, however, has not been renewed after June 2004.
When is a person criminally responsible for genocide, crimes against
humanity, or war crimes?
Crimes of such a magnitude are almost always committed by more than one person. The
Court has jurisdiction over those who physically committed such crimes, as well as over
persons who intentionally ordered the crimes, incited others to commit them, and
assisted others in carrying out the crimes. The Court also has jurisdiction over military
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commanders or persons effectively acting as military commanders who failed to exercise
control over their forces when they committed such crimes.
Can a Head of State or Government, a member of a government or
parliament be prosecuted?
Yes. The Rome Statute applies equally to all persons, regardless of their status.
Government officials are not granted immunity.
Can the Court prosecute individuals who are not members of any
government or armed group?
Yes. The Court can prosecute persons who facilitate a crime. For example, if a person
knows about plans to commit a crime and gives the perpetrator funds or arms to
commit the crime, he or she might be prosecuted for having given this help. In the
language of the Rome Statute such as person “aids, abets or otherwise assists” the
commission of the crime.
Can the Court prosecute governments or armed groups?
No. The Court is based on the principle of individual criminal responsibility. It will not
try governments and armed groups, but rather individual members of governments or
armed groups, analyzing how each one in the hierarchy committed, ordered, assisted, or
tolerated the crime.
How many accused will the Court be able to try?
We do not know how many accused the Court will prosecute in each situation, but it will
be a very small number. The Court will concentrate on those who bear the greatest
responsibility for the most serious crimes. Each case demands large amounts of
resources and time, and the Court will most certainly not be able to deliver justice on all
such crimes committed in any particular situation. As a result the Court by itself will not
be able to bring justice throughout a country such as the DRC, where more than 3
million people have died as a direct or indirect result of the war.
Complementarity
How will national courts and the International Criminal Court work
together?
The International Criminal Court was created to complement national courts. The Court
will not begin investigating a crime if the state concerned is already investigating or
8
prosecuting it, or even if the state has investigated it and then decided not to prosecute
the persons concerned. However, under the Rome Statute, the Court has the power to
prosecute cases if the national state is “unwilling or unable” to carry out a genuine
investigation or prosecution. This part of the Statute is meant to make it less likely for
perpetrators to escape punishment for crimes because their own state is not willing to
investigate and prosecute them.
In order to determine if a state is “unwilling” to genuinely investigate and
prosecute a case, the Court considers whether it has taken measures to shield the
suspect from criminal responsibility, whether it has unduly delayed the
proceedings and whether it conducted proceedings in an independent and
impartial way.
In order to determine if a state is “unable” to genuinely investigate and
prosecute a case, the Court considers whether it is unable to arrest the accused,
to obtain the necessary evidence, and to otherwise carry out judicial proceedings.
This could be the case if the national justice system has collapsed, totally or
substantially.
Structure and Organization of the Court
Where is the Court based?
The Court is based in The Hague. Its address is:
International Criminal Court
174 Maanweg
2516 AB The Hague
The Netherlands
Website: www.icc-cpi.int
The Court can open field offices for investigations in other countries. It can also decide
to hold hearings in a place that is closer to the site of the crime than The Hague. For
example, if the Court does prosecute crimes committed in the DRC, it is possible that it
would open an office in the DRC.
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How is the Court organized?
The Court has three organs: the Office of the Prosecutor, the Chambers, and the Office
of the Registrar. NGOs will most often be in contact with the Office of the Prosecutor,
but there are also opportunities for contact with the Registrar.
Who is the Prosecutor and what does he do?
The Prosecutor and his Office gather information about crimes and present evidence
against an accused before the Court. The Prosecutor’s Office acts independendy as a
separate organ from the Court.
The Prosecutor of the International Criminal Court is Luis Moreno Ocampo. Previously
an Argentinean state prosecutor, Mr. Moreno Ocampo played a key role in prosecuting
members of the military junta following Argentina’s “dirty war.” As Assistant Prosecutor
he was involved in the prosecution of nine military commanders for their role in crimes
against humanity committed during the military government of 1976-1983. In 1985, five
of these commanders were sentenced to prison terms. Since 1992, he has been in private
practice as a lawyer. During that time he pushed for the prosecution of organized crime
and corruption in business and has advised governments and international bodies on
controlling corruption in Argentina and elsewhere.
What are the chambers?
The judicial functions of the Court are carried out by chambers. The chambers are each
composed of several judges. The Court has three chambers, the Pre-Trial Chamber (with
seven judges), the Trial Chamber (with six judges) and the Appeals Chamber (with five
judges).The Pre-Trial Chamber decides whether the Prosecutor is allowed to start a
formal investigation into a case. The Trial Chamber decides whether the accused person
is guilty as charged and if they find him or her guilty, will assign the punishment for the
crime and any damages to be paid to the victims. It also must ensure that a trial is fair
and expeditious, and is conducted with full respect for the rights of the accused with
regard for the protection of victims and witnesses. When the Prosecutor or the
convicted person appeals against the decision of the Pre-trial or Trial Chambers, the case
comes to the Appeals Chamber. The Appeals Chamber may decide to reverse or amend
a decision, judgment, or sentence. It can also order a new trial before a different Trial
Chamber.
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What are the functions of the Registrar and the Registry?
The Registrar has the task of running the administration of the Court and keeping
records. The Registry locates witnesses and victims and provides for their protection in
participation during investigations and trials.
How are the Prosecutor and judges elected?
The Prosecutor as well as the judges are elected by the Assembly of State Parties, i.e. all
countries that have ratified the Rome Statute. In February 2003, the first eighteen judges
were elected, and in April 2003, the Prosecutor was elected.
Who are the judges?
The eighteen judges are:Rene Blattman from Bolivia
Maureen Harding Clark from Ireland
Fatoumata Dembele Diarra from Mali
Adrian Fulford from the United Kingdom
Karl T. Hudson-Phillips from Trinidad and Tobago
Claude Jorda from France
Hans-Peter Kaul from Germany
Philippe Kirsch from Canada (President)
Erkki Kourula from Finland
Akua Kuenyehia from Ghana (First Vice-President)
Elizabeth Odio Benito from Costa Rica (Second Vice- President)
Gheorghios M. Pikis from Cyprus
Navanethem Pillay from South Africa
Mauro Politi from Italy
Tuiloma Neroni Slade from Samoa
Sang-hyun Song from the Republic of Korea
Sylvia H. de Figueiredo Steiner from Brazil
Anita Usacka from Latvia
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Rights of the Accused and Punishment
What are the rights of those accused of a crime by the Court?
Under the Rome Statute, any accused person is guaranteed the highest standards of fair
trial. Hence, no person can be tried for a crime for which he or she has already been
convicted. The accused has a right to be presumed innocent until proven guilty.
The accused also has a right to choose his or her own counsel, or if the person does not
have legal assistance, to have legal assistance assigned to him or her. The accused does
not have to pay the legal counsel if he or she does not have the means to pay.
Furthermore, the accused has the right to get a competent interpreter if necessary. The
accused has a right to be questioned only in the presence of counsel, to present
evidence, to remain silent, and to have charges proved beyond reasonable doubt. The
Rome Statute also makes explicitly clear that the accused shall not be subjected to any
form of coercion, duress or threat, torture or cruel, inhuman and degrading treatment.
Under which circumstances can someone be excluded from criminal
responsibility?
The Court can exclude someone from criminal responsibility when that person has lost
the intellectual capacity to understand that he or she is committing a crime. This can be
the case when a person suffers from a mental disease, was in a state of unwanted
intoxication at the time of the crime, or acted to defend him or herself.
Persons can also be excluded from criminal responsibility when they did not know that
they were committing a crime or committed a crime under a legal obligation to obey
orders of the government or a superior.
What is the maximum sentence of the Court?
The maximum sentence is life imprisonment. The Court plans to have pre-trial detention
facilities in The Hague. A sentence of imprisonment will be served in a state that has
indicated its willingness to incarcerate a convicted person. The enforcement of a
sentence of imprisonment in the host State is subject to the supervision of the Court and
must be consistent with international standards governing treatment of prisoners,
including the right of prisoners to be free of any torture or cruel, inhumane, or
degrading punishment.
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The Start of an Investigation
How is the Court’s authority triggered?
There are three ways in which the Court can initiate investigations.
First, a state that is party to the Rome Statute can refer a case to the Prosecutor of the
Court. This is what the Ugandan government did in January 2004, about the situation in
northern Uganda. In March 2004, the government of DRC referred crimes in the DRC
to the Court.
Second, the U.N. Security Council can refer a case to the Prosecutor.
Third, the Prosecutor can initiate investigations into a case on his own initiative, based
on credible information that he has received. This information can come from states,
NGOs, victims, or any other source.
How will the Court decide whom to prosecute?
The Court is likely to consider the gravity of the crime and the degree of individual
responsibility for it. It will probably give priority to prosecuting persons accused of
committing the most serious crimes and those who are suspected of being direcdy
responsible for those crimes.
What does the Prosecutor do to start an investigation?
In those situations where the Prosecutor decides to take action by himself — without a
state referral - he first carries out a preliminary examination and then submits a request
for authorization of a formal investigation to the Pre-Trial Chamber of the Court.
In those situations where the Prosecutor receives a referral from a State Party, he must
check whether the referral is admissible under the requirements of the Rome Statute and
whether crimes under ICC jurisdiction appear to have been committed. If those criteria
are satisfied, the prosecutor must launch an investigation to determine the persons
bearing responsibility for the crimes committed.
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HOW NATIONAL NONGOVERNMENTAL ORGANIZATIONS CAN
WORK WITH THE COURT
The Interaction between NGOs and the Court
What role can NGOs play vis-a-vis the Court?
NGOs can play a central role before, during, and even after an investigation. Their
contributions fall into three main categories:
Telling others about the Court
NGOs can play an important role in informing the media and the general public about
the Court. They can do this through radio, leaflets, posters, conferences and information
sessions. They may want to use materials produced by the Court itself or this guide.
Providing information to the Court
NGOs can inform the Office of the Prosecutor about crimes committed, a specific case,
the historical and political context of human rights abuses, or the capacity or will of a
state to investigate or prosecute crimes. This information could help the Prosecutor
decide whether or not to open an investigation.
Serving as a link between the Court and victims and witnesses
NGOs are often close to the victims and witnesses. They can play an important role by
accompanying victims and witnesses throughout the process of providing evidence to
the Office of the Prosecutor. They can inform victims and witnesses about procedures
at the Court and prepare their work with the Court for example by informing them
about security risks, helping them to take action collectively, and putting their
information into a form most easily used by the Office of the Prosecutor.
How can NGOs submit information to the Court?
Ordinarily persons from outside the Court will be in touch with the Office of the
Prosecutor rather than other branches of the Court. They can send information on a
number of issues, illustrated below. Sometimes NGOs send information directly to
other branches of the Court. In particular, they can send submissions to the any of the
Chambers in a legal document called an Amicus Curiae. NGOs may also directly address
the Court in order to represent victims. Moreover, NGOs can also apply to participate
to the proceedings when they have suffered a crime themselves. In addition, NGOs can
14
represent victims who want to submit information regarding the Prosecutor’s decision
not to investigate a case.
NGOs can also send case information to a government that is party to the Rome treaty,
or even to the U.N. Security Council, and ask them to refer a case to the Court.
Can NGOs help in launching proceedings before the Court?
Yes. NGOs regularly publish reports on human rights crimes that may fall under the
jurisdiction of the International Criminal Court. If NGOs believe that the abuses they
have documented are serious enough to merit investigation by the Court, they should
send the most solid reports on the most serious crimes to the Prosecutor. NGO reports
have already played a role in spurring the investigation in DRC. The Prosecutor received
six communications regarding the situation in Ituri, among them “two detailed reports
from nongovernmental organizations.” Evidently, the reports from the NGOs
prompted the Prosecutor to identify the situation in Ituri as “the most urgent situatlion
to be followed.” However NGOs should refrain from sending the Office of the
Prosecutor every piece of information they have, in order to avoid the Prosecutor
getting swamped and paying less attention to reports he receives.
What information should NGOs send to the Office of the Prosecutor?
NGOs can send information on crimes regarding individual cases or patterns, providing
as much detail as possible. In addition, NGO reports could explain the historical and
political context of the crimes investigated, in order to provide the Prosecutor with a
better understanding of the situation. By reporting on the capacity or will of a state to
investigate or prosecute crimes, NGOs can also help the Prosecutor determine whether
a case falls under the jurisdiction of the Court or should be left to the national courts.
NGOs could also inform the Prosecutor about the practical feasibility of investigations.
It is not possible to give a precise list of all the kinds of information that NGO reports
might include, but when an NGO sends information about human rights crimes, it
should include the following:
Location (in DRC: province, territoire, collectivite, groupement; in Uganda:
district, county, sub-county),
Time, date, and duration of the incident
Chronology of the incident
Nature of crime (i.e. torture, rape, killings), and methods used
Possible reasons for the incident
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Identity of alleged perpetrators (the army, armed group, or individuals involved)
The identity of the victim (name, age, gender, occupation, address, relevant
information about ethnicity, religion, or other affiliation)
A list of evidence available such as photos, written records. However do not
send the evidence itself unless requested by the Prosecutor.
When sending information to the Court, the NGO should always ensure that they have
one copy of their communication in their own files.
What should NGOs do with other evidence they might have, such as
photos, video films, documents, medical certificates, or even objects?
They should provide the Office of the Prosecutor with a list of all such evidence in their
possession and keep it safe until they hear from his office. They should not send the
evidence itself unless requested by the Prosecutor, as it could otherwise get lost,
damaged, or be overlooked.
Should NGOs work like criminal investigators?
No. NGOs can provide information on crimes which they gather in the course of their
normal work. They are not expected to be “mini-prosecutors.” In fact it is the role of the
Office of the Prosecutor alone to develop solid evidence that can be used in Court.
Do NGOs have to follow a specific format when sending information to the
Office of the Prosecutor?
No. NGOs can submit their own reports to the Prosecutor and do not need to fill in
forms or fulfill other formalities. However, as noted above, those reports should include
specific information.
Will NGOs get a reply from the Prosecutor’s Office when they send
information?
In principle the Office of the Prosecutor must send a reply to all communications
received, if only to acknowledge receipt. However, in practice, they might not always
have the capacity to do so. The Office of the Prosecutor will probably just receive the
information and use it as wishes, unless it has a specific question for the NGO. In that
case, the Prosecutor’s Office will contact the NGO. NGOs submitting information to
the Prosecutor should avoid raising expectations among the victims and other possible
witnesses, as they cannot know what the response of the Prosecutor will be. The
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Prosecutor may well decide not to proceed farther with the information, taking into
account a variety of factors.
How can NGOs submit information in an Amicus Curiae?
In addition to factual information NGOs can provide to the Court, they can also submit
legal analysis or policy arguments in an Amicus Curiae, a legal document accepted by
one of the Court chambers (it means “Friend of the Court”). A Court Chamber can
invite a state, organization, or individual to submit a written statement on a specific
topic, a so-called Amicus Curiae brief. The Amicus Curiae is prepared by an organization
that has a professional interest in the topic. It presents the issue at stake in a concise
manner and makes suggestions to the Court how to settle the matter. The Amicus
Curiae gives NGOs the opportunity to be heard on a number of legal and practical
issues, for example, the competence of national courts to prosecute a case. NGOs can
also contact a Chamber and propose to submit an Amicus Curiae.
Can representatives or members of NGOs be called to testify?
Yes. The Prosecutor or the defence lawyers can call anyone to testify in Court. NGOs
might have to answer questions about the information gathered on crimes or about the
circumstances of their research. Such testimony might include elements of information
collected by researchers that were not previously made public — and NGOs could
potentially be forced to disclose information that they intended to keep confidential.
The Court will only be able to prosecute a few cases - what does that
mean for NG Os?
Because the Court will prosecute only a small number of cases, NGOs should think
strategically about which are the most important cases to submit, and not expect that
“their” case will necessarily be prosecuted. Where possible, NGOs should coordinate
among themselves and decide to push joindy for a particular case or situation to be
investigated.
Should NGOs send only material on the geographic areas in which the
Prosecutor has expressed a special interest - Ituri in DRC and northern
Uganda?
In the DRC, the Court is likely to concentrate on Ituri for a while. But that does not
mean that NGOs should limit their submissions to Ituri. When the Prosecutor
announced the launch of the investigation in DRC in June 2004, he made clear that the
scope of the investigation would cover the whole territory of the DRC. If NGOs have
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relevant information about crimes committed in other parts of DRC, they should send
this to the Office of the Prosecutor.
In Uganda, the Prosecutor will concentrate on the north as requested by the Ugandan
government. Hence NGOs should concentrate on sending information on the crimes
committed by all sides in relation with the conflict in northern Uganda.
Will the Court intervene on behalf of human rights defenders who are
threatened, arrested, or face danger because of their submission of
information to the Court?
NGOs should not expect to be protected by the Court. The Court will take all possible
measures to ensure the safety of those assisting it, but it will not be able to protect
everyone who brings it information. Human rights defenders should therefore develop
their own strategies for protection and not wait for the Court’s help. Nevertheless it
would be important to inform the Court of any attacks on human rights defenders
resulting from their contribution of information to the Court.
NGO Assistance to Victims and Witnesses
What can NGOs do to assist victims and witnesses in contacting the
Court?
NGOs can become a bridge between victims and wimesses and the Court:
•
They can send information gathered from victims and witnesses to the Court
•
They can inform victims and witnesses about different possibilities of
participation in the Court proceedings, and assist them in this participation
•
They can help victims and witnesses get legal representation
•
They can represent victims at any stage of the trial
•
They can help victims and witnesses organize themselves in groups
•
They can help victims apply for reparations
•
They can inform victims and witnesses about the security risks involved and
help them take measures for their protection
Who are victims and witnesses under the Court rules?
The Court rules define victims as “persons who have suffered harm as a result of the
commission of any crime within the jurisdiction of the Court” Organizations such as
NGOs that have “suffered direct harm” can also be victims. Wimesses are persons
18
called by the Prosecution or the Defence to give testimony to the Court, including
victims, persons who saw a crime committed, experts, or relatives of a suspect.
What is the difference between participating in Court proceedings as
victim and as witness?
Victims can ask the Court to allow them to express their views and concerns in the
proceedings. This is quite an unusual and innovative element for an international court.
It means that there is a real opportunity to bring the viewpoint of the victims to the
Court. Victims who participate will probably have legal representation. They will not be
asked to tell their story in Court; rather, their legal representatives will have to answer
specific questions. The role of victims in the ICC is somewhat similar to the role of the
partie civile in the civil law system which is in place in the DRC. When victims come to
participate in this way, they have to pay their own expenses. The Court might not cover
the costs for the legal representation either.
The Prosecutor or the Defence might call some victims as witnesses to testify in Court.
When that happens, they must answer questions from the Prosecution, the Defence, and
the legal representatives of the other victims. If victims are invited as witnesses, the
Court covers their costs and organizes their stay for them. Victims cannot apply to
become witnesses. The Prosecution or the Defence decides whom to call as witnesses.
How should NGOs present their relationship with the Court to victims and
witnesses?
When talking to victims and possible wimesses, NGOs need to make clear that they are
not working as agents of the Court. They collect their information independendy, as part
of their own work, although they might later submit some or all of this information to
the Court.
Should NGOs send statements from victims and witnesses to the Court?
No. When speaking to victims and witnesses about alleged crimes, NGOs should avoid
taking statements that contains word by word what the victims and witnesses are saying
(these are called verbatim statements). They should record a summary of the
information provided by the victim or witness. Only the Prosecutor’s Office should
decide what questions to ask victims and witnesses and in what form to take down their
answers. Since NGOs are not part of the Prosecutor’s office, they might make mistakes
in interviewing witnesses that would complicate the work of the Prosecutor. This is why
they should just take a summary of the information and provide it to the Prosecutor’s
office, along with information about how the victim or witness can be contacted in the
19
future. Of course the NGO must seek the agreement of the victims and witnesses when
doing so.
But if victims or witnesses insist on making formal, verbatim statements or if the NGOs
have already collected such statements in the past, NGOs can send the statements to the
Prosecutor. When doing so, NGOs must make sure not to comment on, alter, or edit
any statements made by victims and witnesses or any documents that they want to
submit to the Prosecutor’s Office.
How can NGOs help victims to decide if they want to apply to participate in
a case?
First of all, NGOs can help victims assess the security risks that might arise for the
victim from participation in a case. They can also take protection measures on the local
level.
Secondly, the NGOs should explain to victims the different stages of examination and
formal investigation. NGOs should encourage those victims to apply whose cases are
connected with the situation under investigation; and they should discourage others
from making contact with the Court.
Finally NGOs can assist victims in filling in the forms needed to apply for participation
in a case. The forms are not yet available but should become available during 2004 on
the Court’s website, at www.icc-cpi.int. Victims can apply for participation when a
formal investigation has been launched or even before that if the Prosecutor has
launched an investigation on his own initiative.
Victims will apply to the Registrar of the Court who will pass the form onto the relevant
Chamber. The Chamber will decide whether and how victims can participate. It can
reject the application if (i) it considers that the applicant is not a victim, if (ii) the victim
has no personal interest in the proceedings or if (iii) it determines that the participation
of the victim would be contrary to the rights of the Defence and the requirements of a
fair and impartial trial. A victim whose application has been rejected by the Chamber
may file a new application later in the proceedings.
How can NGOs help victims participate before an investigation is formally
launched?
NGOs can assist victims in providing evidence to the Office of the Prosecutor (see
above). In addition, NGOs can also help victims in applying to the Pre-Trial Chamber to
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be heard when the Prosecutor has decided that it is in the interest of justice not to
prosecute a case. They can also assist the victims in presenting their views.
How can victims participate in the trial itself?
Once the trial has started, victims can ask to be heard and express their views through
their legal representatives.
Victims might also be invited to give their view in Court on a number of issues. For
example, victims might be invited to express a view when Court decides whether to
judge a group of accused together or separately.
The Registrar should notify the victims regularly of developments and decisions by the
Court. Particularly important steps are:
•
The decision of the Prosecutor not to initiate an investigation or not to
prosecute
•
The Pre-Trial Chamber’s decision to hold a hearing to confirm charges against
the accused
•
The progress of the proceedings, in particular the date of hearings and any
postponements, and the date of the judgment
•
Requests, submissions, and motions that are important for the case.
How can NGOs assist victims with legal representation?
NGOs can assist victims in identifying qualified, trusted lawyers who can represent them
at the Court. They can also propose lawyers to the Court itself, which can choose legal
representatives for the victims in some situations. There will be an office of Public
Counsel within the Registry of the ICC. The office will provide support and assistance to
the legal representatives of victims or victims, including legal research and advice or
appearing in Court.
Furthermore, NGOs can help victims organize themselves in groups and seek common
legal representation. This will be important to ensure effectiveness in situations when
there are many victims. The Court itself can decide to group victims and designate a
common legal representative.
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Does the Court keep the information provided by victims and witnesses
confidential?
The Court rules require the Prosecutor to protect the confidentiality of the information
he has received and collected. This means he cannot release the names of his sources
publicly. However under due process rules, the Prosecutor must provide the Defence
with the names of witnesses he intends to call. The accused has a right to know who is
testifying against him or her.
If there are security concerns, a Court Chamber may decide to prohibit the public
disclosure of the name or location of a victim or witness, or even of another person who
is neither victim nor witness. In certain cases victims and witnesses can be heard in
closed sessions (in camera), or they can be given pseudonyms. Sometimes their
testimonies might be presented with technologies that alter their voice or image in order
to keep their identity confidential. But there is no guarantee that this will happen in all
cases where victims might wish for it to happen.
Under certain circumstances the Court has to respect the confidentiality of information,
and cannot force disclosure of the information as evidence. This is the case with
information that was given by representatives of the International Committee of the Red
Cross (ICRC), to the legal representative of an accused person, medical doctors, or
others in professional confidential relationships. Other information is not protected and
might hence be used — and disclosed — in Court.
Protective measures can also be requested by the Prosecutor, the defense or victims and
witnesses themselves. The Victims and Witnesses Unit can make recommendations in
this sense to the Chambers.
What other measures are available to protect victims and witnesses?
The Victim and Witnesses Unit within the Registry of the International Criminal Court is
in charge of the security and well-being of the victims and witnesses. The Court’s rules
define this role in general terms such as planning for their protection, providing them
with medical and psychological assistance, and ensuring that victims of gender-based
violence receive necessary help
However in practice, it is likely that there will be a number of problems and the Victim
and Witness Unit might not be able to protect all victims and witnesses. Each case will
probably involve a high number of victims and witnesses; but the funds allocated to
victim’s and witness protection are very limited.
22
How can NGOs ensure the safety and confidentiality of victims and
witnesses?
NGOs can closely observe the progress of the trial to ensure that the Court respects its
own rules. They should help the victims understand the limitations of the Court in
protecting them, while also pushing for better protection measures where possible.
Victims and witnesses who want to testify or otherwise participate need to be told about
risks to their security, as well as the protection measures that are available.
NGOs themselves should take precautionary measures to ensure that a victim’s or
witness’ identity is protected. If an NGO wishes to send information from victims or
witnesses to the Court, it must inform those persons about the Court’s proceedings and
about the possible security implications. Only after doing that should the NGO seek the
agreement of the victim or witness for sending on information to the Prosecutor’s
Office. They should only transmit documents from victims and witnesses to the
Prosecutor’s Office if the victims and witnesses expressly agree to this being done.
When planning to contribute information to the Court, NGOs should carry out a
security assessment and decide on a strategy for protecting their own staff and others in
contact with them. In some cases, discretion is the best strategy; in others, openness may
work better (though that does not mean divulging the identity of victims and witnesses).
There is a range of measures NGOs can take to protect the confidentiality of
information:
regularly carry out risk assessments
join national and international human rights networks
build channels with security officers
ensure security of the office premises and control the flow of visitors
recruit people you can trust
be discreet about your interactions with the International Criminal Court
always be careful about what you say on the phone, in emails, faxes, and letters;
possibly using code words for sensitive information or using encryption.
use the addresses of other trusted organizations for sending and receiving mail
interview victims and witnesses without other persons present
interview victims and witnesses in a location and in circumstances that do not
arouse the interest of outsiders
23
I
ask a local contact to interview the victim or ask the victim to come to you, in
order to avoid raising suspicion through your visit
change plans where necessary, for example if you realize you are being followed
store the information about the interview safely, i.e. use passwords and
encryption
keep notebooks in safe locations
delete the name of the source of information from your notes
avoid using information that could easily betray the identity of the informant
(some of the suggestions are taken from Amnesty International/ CODESRIA: “Ukweli,
Monitoring and Documenting Human Rights Violations in Africa, A Handbook,”
Amsterdam/ Dakar 2000).
Can victims obtain reparation from the Court?
Yes. Victims or their close relatives can obtain reparation, including restitution of
property and compensation for losses. The compensation granted to the victim can
come from the funds of an accused. The states that founded the Court also created a
trust fund to give reparations to victims and the Court may decide to give victims money
from this fund. The judges of the Court determine the amount of compensation. The
Court can determine the amount of compensation without a specific request from the
victim when it finds that the victim is unable to claim reparation. In order to allow the
greatest number of victims to obtain reparation, the Court rules require the Registrar to
give adequate publicity of the reparation proceedings before the Court. The Court can
also allow collective reparation that is, reparation to a whole group of victims - if the
number of victims is too high for individual reparation or if the provision of individual
reparation is too difficult.
ACKNOWLEDGEMENTS
This guide was written by Juliane Kippenberg, NGO Liaison in the Africa Division of
Human Rights Watch, and Pascal Kambale, Counsel in the International Justice
Program.
It was edited by Alison Des Forges, Senior Advisor in the Africa Division, and Richard
Dicker, Director of the International Justice Program. Geraldine Mattioli, Advocate in
the International Justice Program, and Karen Stauss, Researcher on the Democratic
Republic of Congo, provided additional input. The report was reviewed by Wilder
24
Tayler, Legal and Policy Director, and Widney Brown, Deputy Program Director. Lizzie
Parsons, Yolanda Revilla and Andrea Holley provided coordination and production
assistance.
We wish to thank Gabriela Gonzales Rivas of the International Criminal Court and Paul
Simo of Global Rights for their comments on the draft.
We also would like to thank nongovernmental organizations in the Democratic Republic
of Congo and Uganda for providing input and comments.
25
Last updated: 30 August 2004
QUESTIONS AND ANSWERS
on the International Criminal Court
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“The International Criminal Court promises, at last, to supply what has for so
long been the missing link in the international legal system: a permanent
court to judge the crimes ofgravest concern to the international community as
a whole — genocide, crimes against humanity and war crimes. ”
- Kofi Annan, United Nations Secretary-General
1. What is the International Criminal Court?
The International Criminal Court (ICC) is the first permanent, independent
court capable of investigating and bringing to justice individuals who commit
the most serious violations of international humanitarian law, namely war
crimes, crimes against humanity, genocide and, once defined, aggression. The
Court is seated in The Hague, The Netherlands and was established in
accordance with the Rome Statute, the ICC’s founding treaty, on 1 July 2002.
To date, the ICC treaty has been ratified by nearly 100 States, with
representation from every region of the world.
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The legal framework of the Court was established at a United Nationssponsored conference in Rome involving representatives of 160 countries.
Following five weeks of the intense deliberations, the Rome Statute of the
International Criminal Court was adopted by an overwhelming majority on 17
July 1998. By the established deadline of 31 December 2000, 139 countries
had signed the Rome Statute. In a record four years, the ICC treaty was
ratified by the required 60 States on 11 April 2002, and the treaty entered into
force and became law on 1 July 2002.
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708 Third Avenue
24th Floor
New York, NY 10017
P. (212) 687-2176
F. (212) S99-1332
Anna Paulownastraat 103
The Hague, The Netherlands
P. 31-70-363-4484
F. 31-70-364-0259
2. Why is the International Criminal Court needed?
Over the past century, we have witnessed the worst violence in the history of
humankind. In the past 50 years alone, more than 250 conflicts have erupted
around the world; more than 86 million civilians, mostly women and children,
died in these conflicts; and over 170 million people were stripped of their
rights, property and dignity. Most of these victims have been simply forgotten
and few perpetrators have been brought to justice.
The United Nations General Assembly first recognized the need for a
permanent mechanism to prosecute mass murderers and war criminals in
1948, following the Nuremberg and Tokyo trials after World War II. Since
that time, numerous laws, treaties, conventions and protocols have defined
and forbidden everything from war crimes to poison gas and chemical
weapons, yet no system was proposed to enforce these norms by holding
www.iccnow.org
About the NGO Coalition for the International Criminal Court (CICC)
The CICC is a global network of over 2,000 civil society organizations supporting a fair, effective and independent
International Criminal Court. For more information, visit us online at: www.iccnow.org
individuals criminally responsible for the most serious violations of international law
until the adoption of the Rome Statute of the International Criminal Court in 1998. In
addition to bringing justice to victims of such atrocities, the ICC hopes to serve as a
deterrent to the future Hitlers, Milosevics and Pol Pots, bringing an end to the culture of
impunity.
3. What has the ICC achieved to date?
Since the establishment of the Court in July 2002, the ICC has set up its offices in The
Hague and has grown from a three-person staff to more than 250 personnel working in
the Court’s four principal organs: Office of the Prosecutor, Presidency Judges and
Registry.
All senior officials of the Court - the Prosecutor, Judges and Registrar - have been
elected or appointed. As of August 2004, the Office of the Prosecutor, headed by chief
Prosecutor Luis Moreno Ocampo, has begun investigations in the Democratic Republic
of Congo and Uganda, at the request of those States. The 18 Judges of the ICC, under the
Presidency of Judge Philippe Kirsch, have adopted the Regulations of the Court; and the
Registry, or administrative arm of the Court, headed by Bruno Cathala, has been involved
in the many practical and policy decisions involved in setting up a new international
judicial institution.
4. How does the ICC differ from the International Court of Justice and the ad hoc
tribunals for former Yugoslavia and Rwanda?
The International Court of Justice (ICJ), the principal judicial organ of the United Nations,
was designed to deal primarily with disputes between States. It has no jurisdiction over
matters involving individual criminal responsibility.
The two ad hoc tribunals for the former Yugoslavia and Rwanda differ from the
International Criminal Court in geographic jurisdiction and temporal scope. Created by
the UN Security Council, the ad hoc tribunals are mandated to deal only with crimes
committed in those regions during specific periods of time.
In contrast, the International Criminal Court is a permanent and independent institution
capable of addressing the crimes identified in the Rome Statute which have been
committed by individuals since 1 July 2002.
5. What crimes does the ICC address?
The Court has jurisdiction over the most serious crimes committed by individuals: genocide,
crimes against humanity, war crimes and once defined, aggression. The first three crimes are
carefully defined in the Statute to avoid ambiguity or vagueness. The crime of aggression
will be dealt with by the Court when the Assembly of States Parties has agreed on the
definition, elements and conditions under which the Court will exercise jurisdiction; this
cannot happen until the Review Conference which will be held in 2009, seven years after
entry into force of the Rome Statute. It is important to note that the Rome Statute does not
identify any new categories of crimes, but rather reflects existing conventional and
customary international law.
Genocide covers those specifically listed prohibited acts (e.g. killing, causing serious harm)
committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious
group.
Crimes against humanity cover those specifically listed prohibited acts when committed as
part of a widespread or systematic attack directed against any civilian population. Such acts
include murder, extermination, rape, sexual slavery, the enforced disappearance of persons
and the crime of apartheid, among others.
Genocide and crimes against humanity are punishable irrespective of whether they are
committed in time of “peace” or of war.
War crimes cover grave breaches of the Geneva Conventions of 1949 and other serious
violations of the laws of war, committed on a large scale in international as well as internal
armed conflicts. The inclusion of internal conflicts is consistent with customary international
law and reflects the reality that in the past 50 years, the most serious violations of human
rights have occurred not in international conflicts but within States.
The definitions of the crimes in the Statute are the product of years of hard work involving
many delegations and their experts. The judges of the Court are required to strictly construe
the definitions and are not to extend them by analogy. The aim is to establish objective
international standards, leaving no room for arbitrary decisions. In cases of ambiguity, the
definitions are to be interpreted in favor of the suspect or accused.
6. When does the ICC have jurisdiction over crimes?
Since the entry into force of the Rome Statute on 1 July 2002, the ICC has jurisdiction over
crimes committed by nationals of States that have ratified the ICC statute, as well as over
crimes committed on the territory of States that have ratified the treaty. The ICC is designed
to complement existing national judicial systems, however, the Court can exercise its
jurisdiction if national courts are unwilling or unable to investigate or prosecute such crimes.
Therefore, the Court also serves as a catalyst to States’ investigating and prosecuting such
crimes committed either within their territories or by their nationals. The ICC’s jurisdiction is
not retroactive, but its very existence serves as a deterrent to future architects of genocide,
war crimes and crimes against humanity by sending a strong signal that never again will such
acts be met with impunity.
Matters can be referred to the Court by a State Party to the Rome Statute, by the Prosecutor,
and by the UN Security Council. The Court may then exercise its jurisdiction over the matter
if either the State in whose territory the crime was committed, or the State of the nationality
of the accused, is a party to the Statute. Non-States Parties may accept the Court's jurisdiction
on an ad hoc basis. When a matter is referred by the Security Council, the Court will have
jurisdiction regardless of whether the State concerned is a party to the ICC treaty.
7. Can a citizen from a country that is not party to the Rome Statute be prosecuted?
Yes, citizens of any country fall within the jurisdiction of the Court under one of the
following conditions: 1) the country where the alleged crimes occurred is a State Party to the
ICC treaty;
2) that country accepted the ICC's jurisdiction on an ad hoc basis; or 3) the UN Security
Council referred the situation to the Court. However, under the principle of complementarity,
the Court will act only if the national court of the accused does not initiate investigations and
prosecution, if appropriate.
8. Can high-level government officials or military commanders be prosecuted by the
ICC?
Yes. Criminal responsibility will be applied equally to all persons without distinction as to
whether he or she is a Head of State or government, a member of a government or
parliament, an elected representative or a government official. It will also not be possible for
such official capacity to constitute a ground for reduction of sentence.
The fact that a crime has been committed by a person on the orders of a superior will not
normally relieve that person of criminal responsibility. A military commander may be held
criminally responsible for crimes committed by forces under his/her command and control.
Criminal responsibility may also arise when a military commander knew or should have
known that the forces were committing or were about to commit such crimes, but
nevertheless failed to prevent or repress their commission.
In addition, civilians effectively acting as military commanders may be held criminally
responsible when they knew of or consciously disregarded information clearly indicating that
crimes were being or were about to be committed.
9. Does the ICC violate international law by having jurisdiction over members of
national forces or of peacekeeping missions?
Under existing international law, the State in whose territory genocide, war crimes or crimes
against humanity have allegedly been committed, or whose nationals are victims of such
crimes, has the right to and is often legally obligated to investigate and prosecute persons
accused of committing such crimes. The ICC Statute does not violate any principle of treaty
law and has not created any entitlements or legal obligations not already existing under
international law. The cooperation of a non-State Party is purely voluntary and no legal
obligation is imposed on a non-State Party.
The ICC Statute provides for special protection of peacekeepers by including among its
punishable crimes intentional attacks against personnel, installations, material units or
vehicles involved in humanitarian assistance or peacekeeping missions. Such violations
constitute war crimes or crimes against humanity under certain circumstances. The Statute
does not otherwise affect existing arrangements with respect to UN peacekeeping missions
since troop-contributing countries retain criminal jurisdiction over their members of such
missions.
10. Does the International Criminal Court infringe on the jurisdiction of national
courts?
No. The International Criminal Court will complement, not supercede, the jurisdiction of
national courts. National courts will continue to have priority in investigating and
prosecuting crimes within their jurisdiction. Under the principle of complementarity, the ICC
will act only when national courts are unable or unwilling to exercise jurisdiction. If a
national court is willing and able to exercise its jurisdiction, the ICC cannot intervene and no
nationals of that State can be brought before it. The grounds for admitting a case to the Court
are specified in the Statute and the circumstances that govern inability and unwillingness are
carefully defined so as to avoid arbitrary decisions. In addition, the accused and interested
States, whether they are parties to the Statute or not, may challenge the jurisdiction of the
Court or admissibility of the case. They also have a right to appeal any related decision.
11. What role does the UN Security Council have in the Court’s work?
The work of the Security Council and the International Criminal Court will continue to
complement each other. The Rome Statute recognizes the role of the Security Council in the
maintenance of international peace and security. Specifically, the treaty notes that under
Chapter VII of the UN Charter, the Security Council may refer a "situation" to the Court
when one or more of the crimes covered by the Statute appear to have been committed. This
would provide a basis for the Prosecutor to initiate an investigation.
Since the referral of a situation by the Security Council is based on its competence under
Chapter VII, which is binding and legally enforceable in all States, the exercise of the ICC's
jurisdiction becomes part of the Council’s enforcement measures. Its jurisdiction becomes
binding even when neither the State in whose territory crimes have been committed nor the
State of nationality of the accused is a party to the Statute. In those instances, the
International Criminal Court, through investigation and prosecution, helps the Security
Council in maintaining peace and security. This jurisdiction, resulting from a Security
Council referral, enhances the role of the ICC in enforcing international criminal law. At the
same time, the Court's jurisdiction is expanded to cover even non-States Parties, in these
instances.
Furthermore, the Security Council, by adoption of a resolution under Chapter VII of the UN
Charter, may request that the ICC defer an investigation or prosecution for a renewable
period of 12 months. This deferral is to ensure that the Security Council's peace-making
efforts will not be hindered by the Court's investigations or prosecutions.
In order to ensure the independence of the Court, a Security Council referral is only one of
three ways the ICC can obtain jurisdiction: a matter can also be initiated by a State Party to
the treaty or by an independent Prosecutor.
12. How does the Rome Statute ensure the independence of the Prosecutor?
While the Prosecutor may initiate investigations when sufficient evidence points to serious
violations, detailed provisions are included in the Rome Statute to ensure proper checks and
balances with respect to this power. In the first place, the Prosecutor must defer to States
willing and able to pursue their own investigations. Before initiating an investigation, the
Prosecutor is required to submit all supporting materials collected and to obtain permission to
proceed from the Pre-Trial Chamber, composed of three judges. The suspect and the States
concerned also have the right to challenge the ICC’s jurisdiction or the admissibility of the
case either prior to or at the commencement of the trial. These measures provide ample
opportunity to ensure that the case is substantial and deserves investigation and prosecution
by the Court.
Luis Moreno Ocampo of Argentina was elected as the first Prosecutor of the ICC on 21 April
2003 by secret ballot by the Assembly of States Parties - the Court’s oversight body made up
of all States that have ratified the Rome Statute. He was sworn into office on 16 June 2003
and immediately began his work. The Rome Statute requires that the Prosecutor possess the
highest moral character, competence and experience in the prosecution or trial of criminal
cases. The Prosecutor will not be allowed to participate in any case in which his or her
impartiality may be in doubt. Any question concerning disqualification will be decided by the
Court’s Appeals Chamber. The Assembly of States Parties has the power to remove the
Prosecutor if he or she is found to have committed serious misconduct or a serious breach of
duties.
13. What guarantee is there that suspects will receive due process and a fair trial?
The Rome Statute of the ICC created a truly international criminal justice system as it
reflects input from all major legal systems and traditions. The Statute recognizes a full range
of rights of the accused, and even extends the standards embodied in major international
human rights instruments. It will provide impartial and qualified judges, due process and fair
trials to individuals accused of crimes falling within the jurisdiction of the Court.
Additional protections of the rights of the accused include the screening mechanisms by the
investigative and prosecutorial organ and the judicial organ of the Court, which are designed
to protect innocent individuals from frivolous, vexatious or politically motivated criminal
investigations or prosecutions. In addition, the persons who are entrusted with making
decisions relating to the initiation of a criminal investigation or trial must possess the highest
qualifications of competence, independence and impartiality.
Furthermore, the ICC Statute also contains elaborate provisions (over 60 articles) on criminal
law principles, investigation, prosecution, trial, cooperation and judicial assistance and
enforcement. These provisions required the harmonization of divergent and sometimes
diametrically opposed national criminal laws and procedures. That agreement was reached on
these highly technical matters represents a major achievement in international law.
14. What guarantee is there that judges will be qualified and impartial? What
safeguards are included to prevent outside political influence on the Court?
The Rome Statute requires that ICC judges possess the highest professional competence,
must be persons of high moral character, impartiality and integrity and must possess the
qualifications required in their respective States for appointment to the highest judicial
offices or to the ICJ. They must also be independent in the performance of their functions,
and cannot engage in any activity that is likely to interfere with their judicial functions or to
affect confidence in their independence.
Each judge must have competence in criminal law and procedure, and the necessary relevant
experience in criminal proceedings, or competence in relevant areas of international law such
as international humanitarian law and human rights law. To ensure that the composition of
the bench would be truly balanced and international, the election of judges took into account
the need to represent the principal legal systems of the world and ensured the inclusion of
judges with equitable geographical representation, a fair representation of female and male
judges, and the inclusion of judges with expertise on violence against women or children. No
two judges are nationals of the same State and judges are elected for three-, six-, or nine-year
terms.
A judge may be removed from office if he or she is found to have committed serious
misconduct or a serious breach of his or her duties. All these safeguards are intended to
ensure independence, integrity and competence and to prevent outside political influence.
The ICC is comprised of 18 judges, who were sworn in on 11 March 2003. Of these, seven
judges are women, a statistic which represents the highest number of women at any
international judicial institution.
15. To whom is the ICC accountable? And how will this affect its independence?
The Assembly of States Parties (ASP) - comprised of all States that have ratified the treaty as
full participants and those States that have signed the treaty as observers - oversees the work
of the Court; provides management oversight regarding the administration of the Court for
the President, the Prosecutor and the Registrar; decides on the budget for the Court; decides
whether to alter the number of judges; and considers any questions relating to non
cooperation of States with the Court. The ASP cannot interfere with the judicial functions of
the Court. Any disputes concerning the Court's judicial functions are to be settled by a
decision of the Court itself.
To date, 94 States are members of the Assembly of States Parties, representing many of the
world’s democracies and all regions of the world.
16. How strong has the support been for the creation of the International Criminal
Court?
One hundred and sixty States participated in the United Nations Diplomatic Conference (held
in Rome from 15 June to 17 July 1998), which led to the adoption of the Rome Statute of the
International Criminal Court. The draft text submitted to the Diplomatic Conference was
fraught with competing options, with over 1,400 brackets indicating disagreement on the
text. Through working groups, informal negotiations and open debates, a delicately balanced
text emerged and a generally agreed solution was found for the many politically sensitive and
legally complex issues.
The Statute and the Final Act were put forward as a complete "package" for adoption. This
package was the product of intense negotiations and judicious compromises designed to
reach widespread agreement. The most dissidence came from India and the United States,
which both tried to amend the final package. In each case, a "no-action motion" — a
procedural device for not considering these amendments — was adopted by an
overwhelming majority. The package was thus maintained and then agreed on in its entirety
by those delegations in attendance on the final day, by a vote of 120 in favor and 7 against,
with 21 abstentions.
Article 125 of the Rome Statute called for the Statute to remain open for signature at the
United Nations headquarters until 31 December 2000. On 31 December 2000, the United
States, Iran and Israel were the last to sign the Rome Statute, bringing the total number of
signatures to 1391. Although many predicted that it would take decades to obtain the 60
ratifications needed for the Statute to enter into force and the Court to be created, this
landmark was reached on 11 April 2002, within four years of the adoption of the treaty.
Currently, nearly 100 democracies from every region of the world have ratified the Rome
Statute.
17. Why did some States vote against the Statute?
Seven States voted against the Statute in an unrecorded vote. Three States - China, USA and
Israel - stated their reasons for voting against the treaty. China indicated its view that the
power given to the Pre-Trial Chamber to check the Prosecutor’s initiative was not sufficient
and that the adoption of the Statute should have been by consensus, not by a vote. The
principal objection of the United States was over the application of the Court's jurisdiction to
non-States Parties. The US also stated that the Statute must recognize the role of the Security
Council in determining an act of aggression. Israel stated that it failed to comprehend why
the act of transferring populations into an occupied territory was included in the list of war
crimes.
18. Will the ICC prosecute crimes of aggression, terrorism and drug trafficking?
Support was widespread from both States and the NGO community at the Rome Conference
for the inclusion of aggression as a crime under the ICC's jurisdiction. However, there was
not time to reach a definition of aggression that was acceptable to all. As a result, the Statute
includes this crime but provides that the Court may not exercise jurisdiction over the crime of
aggression until agreement is reached by States Parties at the Review Conference on the
definition, elements, and conditions under which the Court may exercise jurisdiction with
respect to this crime.
Under the United Nations Charter, the Security Council has competence to determine
whether an act of aggression has been committed. It is provided in the Statute that the final
text on the crime of aggression must be consistent with the relevant provisions of the UN
Charter.
1 On 6 May 2002, the Bush administration announced in a foreign policy address and letter to UN SecretaryGeneral Kofi Annan that it did not recognize the United States’ signature of the Rome Statute, (which occurred
during the Clinton presidency) and had no intention to become party to the Statute. The signature of the United
States now appears in UN records marked with an asterisk to this effect.
Although there was also considerable interest in including terrorism and drug crimes in the
ICC's mandate, countries could not agree in Rome on a definition of terrorism, and some
countries felt investigation of drug offences would be beyond the Court’s resources. A
consensus resolution was passed recommending that States Parties consider inclusion of
such crimes at a future review conference.
19. Will the ICC prosecute sexual crimes? How will the ICC address the needs of
victims and witnesses?
Yes. The Statute includes crimes of sexual violence such as rape, sexual slavery, enforced
prostitution and forced pregnancy as crimes against humanity when they are committed as
part of a widespread or systematic attack directed against a civilian population. They are also
considered war crimes when committed in either international or internal armed conflict.
In Rwanda and the former Yugoslavia, rape and gender-based violence were widely used as
weapons to inflict terror and to humiliate and degrade the women of a particular ethnic group
as well as the entire community to which they belonged. In prosecuting cases of rape and
other gender-based violations, the ad hoc tribunals found that victims were often afraid to
come forward with their stories and even feared being victimized by the process.
To help victims and witnesses face the judicial process, the International Criminal Court has
created a Victims and Witnesses Unit within the Registry, to provide protective measures and
security arrangements, counseling and other assistance for witnesses and victims, while fully
respecting the rights of the accused. The Court must also take appropriate measures to protect
the privacy, the dignity, the physical and psychological well-being and the security of victims
and witnesses, especially when the crimes involve sexual or gender violence.
20. Will victims be entitled to compensation?
The ICC has established a Victims Trust Fund to provide reparations to victims and their
families, including restitution, compensation and rehabilitation. The Court is empowered to
determine the scope and extent of any damage, loss and injury to victims, and to order a
convicted person to make specific reparation. Sources for the Fund may include money and
other property collected through fines and forfeiture imposed by the Court. States and
individuals are encouraged to contribute to the Victims Trust Fund, the first ever reparations
mechanism set up by an international tribunal.
21. How will persons indicted be brought before the ICC?
All States Parties to the Statute have to commit themselves to comply with ICC orders and
requests. A failure to fulfill such a solemn commitment will be a violation of international
law, subjecting that State to immense pressure to comply. For more than a century, States
have complied with almost every judgment issued by international courts established by
treaty - such as the International Court of Justice and the European Court of Human Rights and the political cost of refusing to cooperate is usually too high to permit defiance forever.
The handful of cases where states fail to comply is front page news.
Some countries are prevented by their laws from extraditing an accused war criminal to
another country for prosecution. However, during the ICC negotiations, many countries
stated that their laws would not prevent them from delivering a suspect to an international
court as it would be considered a surrender rather than an extradition. Other countries
indicated they would change their laws.
22. What sentence can the ICC impose? Can the ICC impose the death penalty?
Consistent with international human rights standards, the International Criminal Court has no
competence to impose a death penalty. The Court can impose lengthy terms of imprisonment
of up to 30 years or life imprisonment when so justified by the gravity of the case. The Court
may, in addition, order a fine, forfeiture of proceeds, property or assets derived from the
committed crime.
23. What obligations will States that do not ratify the treaty have towards the Court?
While there is no expressed general obligation in the Rome Statute requiring non-States
Parties to cooperate, all States - whether parties to the ICC treaty or not - are obliged under
existing international law to bring to justice those responsible for genocide, crimes against
humanity and war crimes. If States are incapable of this, they are expected to extradite
suspected individuals to a state willing and able to conduct a fair trial. Moreover, in
December 1973, the UN General Assembly adopted the Principles of international co
operation in the detection, arrest, extradition and punishment ofpersons guilty of war crimes
and crimes against humanity in Resolution 3074, which declares that all States are to
cooperate with each other on a bilateral or multilateral basis to bring to justice persons
responsible for these crimes.
The ICC complements existing national judicial systems and while it will step in only if
national courts are unwilling or unable to investigate or prosecute such crimes, the Court may
invite national courts to cooperate under an ad hoc agreement. If a State chooses to conclude
such an agreement, it would be bound to comply with requests for assistance. Additionally, if
the Security Council refers a situation to the ICC that threatens international peace and
security, it can use the powers under Chapter VII of the UN Charter to compel non-States
Parties to cooperate with the ICC’s requests for assistance.
***************************************************************************
The information contained in this document is derived from papers by the United Nations
Department of Public Information, Amnesty International and the Lawyers Committee for
Human Rights (now Human Rights First). It is the product of the CICC Secretariat and does
not necessarily represent the views of these organizations.
THE PROTECTION OF HUMAN RIGHTS ACT, 1 993
(No 10 of 1994)
An Act to provide for the constitution of a National Human Rights Commission. State Human
Rights Commission in States and Human Rights Courts for better protection of Human
Rights and for matters connected therewith or incidental thereto.
Be it enacted by the parliament in the forty-fourth year of the Republic of India as follows—
Chapter I
Preliminary
Chapter II
The National Human Rights Commission
Chapter III
Functions and Powers of the Commission
Chapter IV
Procedure
Chapter V
State Human Rights Commissions
Chapter VI
Human Rights Courts
Chapter VII
Finance, Accounts and Audit
Chapter VIII
Miscellaneous
Chapter I
PRELIMINARY
1. Short title, extent and commencement
(1) This Act may be called the Protection of Human Rights Act, 1 993.
(2) It extends to the whole of India.
Provided that it shall apply to the State of Jammu and Kashmir only in so far as it pertains to
the matters relatable to any of the entries enumerated in List I or List III in the Seventh
Schedule to the Constitution as applicable to that State.
(3) It shall be deemed to have come into force on the 28th day of September, 1 993.
2. Definitions
(1) In this Act, unless the context otherwise requires—
(a) "armed forces" means the naval, military and air forces and includes any other armed
forces of the Union;
(b) "Chairperson" means the Chairperson of the Commission or of the State Commission, as
the case may be;
(c) "Commission" means the National Human Rights Commission under section 3;
(d) "human rights" means the rights relating to life, liberty, equality and dignity of the
individual guaranteed by the Constitution or embodied in the International Covenants and
enforceable by courts in India.
(e) "Human Rights Court" means the Human Rights Court specified under section 30;
(f) "International Covenants" means the International Covenant on Civil and Political Rights
and the International Covenant on Economic, Social and Cultural Rights adopted by the
General Assembly of the United Nations on the 1 6th December, 1 966;
(g) "Member" means a Member of the Commission or of the State Commission, as the case
may be, and includes the Chairperson;
(h) "National Commission for Minorities" means the National Commission for Minorities
constituted under section 3 of the National Commission for Minorities Act, 1 992;
(i) "National Commission for the Scheduled Castes and Scheduled Tribes" means the
National Commission for the Scheduled Castes and Scheduled Tribes referred to in article
338 of the Constitution;
(j) "National Commission for Women" means the National Commission for Women
constituted under section 3 of the National Commission for Women Act, 1990;
(k) "Notification" means a notification published in the official Gazette;
(l) "Prescribed" means prescribed by rules made under this Act;
(m) "Public servant" shall have the meaning assigned to it in section 21 of the Indian Penal
Code;
(n) "State Commission" means a State Human Rights Commission constituted under section
21.
(2) Any reference in this Act to a law, which is not in force in the State of Jammu and
Kashmir, shall, in relation to that State, be construed as a reference to a corresponding law,
if any, in force in that State.
Chapter II
THE NATIONAL HUMAN RIGHTS COMMISSION
3. Constitution of a National Human Rights Commission
(1) The Central Government shall constitute a body to be known as the National Human
Rights Commission to exercise the powers conferred upon, and to perform the functions
assigned to it, under this Act.
(2) The Commission shall consist of:
(a) a Chairperson who has been a Chief Justice of the Supreme Court;
(b) one Member who is or has been, a Judge of the Supreme Court;
(c) one Member who is, or has been, the Chief Justice of a High Court;
(d) two Members to be appointed from amongst persons having knowledge of, or practical
experience in, matters relating to human rights.
(3) The Chairpersons of the National Commission for Minorities, the National Commission
for the Scheduled Castes and Scheduled Tribes and the National Commission for Women
shall be deemed to be Members of the Commission for the discharge of functions specified
in clauses (b) to (j) of section 1 2.
(4) There shall be a Secretary-General who shall be the Chief Executive Officer of the
Commission and shall exercise such powers and discharge such functions of the
Commission as it may delegate to him.
(5) The headquarters of the Commission shall be at Delhi and the Commission may, with the
previous approval of the Central Government, establish offices at other places in India.
4. Appointment of Chairperson and other Members
(1) The Chairperson and other Members shall be appointed by the President by warrant
under his hand and seal.
Provided that every appointment under this sub-section shall be made after obtaining the
recommendations of a Committee consisting of
(a) The Prime Minister-Chairperson
(b) Speaker of the House of the People-Member
(c) Minister in-charge of the Ministry of Home Affairs in the Government of India- Member
(d) Leader of the Opposition in the House of the People-Member
(e) Leader of the Opposition in the Council of States-Member
(f) Deputy Chairman of the Council of States-Member
Provided further that no sitting Judge of the Supreme Court or sitting Chief Justice of a High
Court shall be appointed except after consultation with the Chief Justice of India.
(2) No appointment of a Chairperson or a Member shall be invalid merely by reason of any
vacancy in the Committee.
5. Removal of a Member of the Commission
(1) Subject to the provisions of sub-section (2), the Chairperson or any other Member of the
Commission shall only be removed from his office by order of the President on the ground
of proved misbehaviour or incapacity after the Supreme Court, on reference being made to it
by the President, has, on inquiry held in accordance with the procedure prescribed in that
behalf by the Supreme Court, reported that the Chairperson or such other Member, as the
case may be, ought on any such ground to be removed.
(2) Notwithstanding anything in sub-section (1), the President may by order remove from
office the Chairperson or any other Member if the Chairperson or such other Member, as the
case may be
(a) is adjudged an insolvent; or
(b) engages during his term of office in any paid employment out side the duties of his
office: or
(c) is unfit to continue in office by reason of infirmity of mind or body; or
(d) is of unsound mind and stands so declared by a competent court; or
(e) is convicted and sentenced to imprisonment for an offence which in the opinion of the
President involves moral turpitude.
6. Term of office of Members
(1) A person appointed as Chairperson shall hold office for a term of five years from the
date on which he enters upon his office or until he attains the age of seventy years,
whichever is earlier.
(2) A person appointed as a Member shall hold office for a term of five years from the date
on which he enters upon his office and shall be eligible for re—appointment for another
term of five years. Provided that no Member shall hold office after he has attained the age of
seventy years.
(3) On ceasing to hold office, a Chairperson or a Member shall be ineligible for further
employment under the Government of India or under the Government of any State.
7. Member to act as Chairperson or to discharge his functions in certain circumstances
(1) In the event of the occurrence of any vacancy in the office of the Chairperson by reason
of his death, resignation or otherwise, the President may, by notification, authorise one of
the Members to act as the Chairperson until the appointment of a new Chairperson to fill
such vacancy.
(2) When the Chairperson is unable to discharge his functions owing to absence on leave or
otherwise, such one of the Members as the President may, by notification, authorise in this
behalf, shall discharge the functions of the Chairperson until the date on which the
Chairperson resumes his duties.
8. Terms and conditions of service of Members
The salaries and allowances payable to, and other terms and conditions of service of, the
Members shall be such as may be prescribed. Provided that neither the salary and
allowances nor the other terms and conditions of service of a Member shall be varied to his
disadvantage after his appointment.
9. Vacancies, etc., not to invalidate the proceedings of the Commission.
No act or proceedings of the Commission shall be questioned or shall be invalidated merely
on the ground of existence of any vacancy or defect in the constitution of the Commission.
10. Procedure to be regulated by the Commission
(1) The Commission shall meet at such time and place as the Chairperson may think fit.
(2) The Commission shall regulate its own procedure.
(3) All orders and decisions of the Commission shall be audited by the Secretary-General or
any other officer of the Commission duly authorised by the Chairperson in this behalf.
11. Officers and other staff of the Commission
(1) The Central Government shall make available to the Commission:
(a) an officer of the rank of the Secretary to the Government of India who shall be the
Secretary-General of the Commission; and
(b) such police and investigative staff under an officer not below the rank of a Director
General of Police and such other officers and staff as may be necessary for the efficient
performance of the functions of the Commission.
(2) Subject to such rules as may be made by the Central Government in this behalf, the
Commission may appoint such other administrative, technical and scientific staff as it may
consider necessary.
(3) The salaries, allowances and conditions of service of the officers and other staff
appointed under sub-section (2) shall be such as may be prescribed.
Chapter III
FUNCTIONS AND POWERS OF THE COMMISSION
12. Functions of the Commission
The Commission shall perform all or any of the following functions, namely:
(a) inquire, suo motu or on a petition presented to it by a victim or any person on his behalf,
into complaint of
(i) violation of human rights or abetment thereof or
(ii) negligence in the prevention of such violation,
by a public servant;
(b) intervene in any proceeding involving any allegation of violation of human rights pending
before a court with the approval of such court;
(c) visit, under intimation to the State Government, any jail or any other institution under the
control of the State Government, where persons are detained or lodged for purposes of
treatment, reformation or protection to study the living conditions of the inmates and make
recommendations thereon;
(d) review the safeguards provided by or under the Constitution or any law for the time
being in force for the protection of human rights and recommend measures for their
effective implementation;
(e) review the factors, including acts of terrorism that inhibit the enjoyment of human rights
and recommend appropriate remedial measures;
(f) study treaties and other international instruments on
recommendations for their effective implementation;
human
rights and
make
(g) undertake and promote research in the field of human rights;
(h) spread human rights literacy among various sections of society and promote awareness
of the safeguards available for the protection of these rights through publications, the
media, seminars and other available means;
(i) encourage the efforts of non-governmental organisations and institutions working in the
field of human rights;
(j) such other functions as it may consider necessary for the protection of human rights.
13. Powers relating to inquiries
(1) The Commission shall, while inquiring into complaints under this Act, have all the
powers of a civil court trying a suit under the Code of Civil Procedure, 1908, and in
particular in respect of the following matters, namely:
(a) summoning and enforcing the attendance of witnesses and examine them on oath;
(b) discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court or office;
(e) issuing commissions for the examination of witnesses or documents;
(f) any other matter which may be prescribed.
(2) The Commission shall have power to require any person, subject to any privilege which
may be claimed by that person under any law for the time being in force, to furnish
information on such points or matters as, in the opinion of the Commission, may be useful
for, or relevant to, the subject matter of the inquiry and any person so required shall be
deemed to be legally bound to furnish such information within the meaning of section 176
and section 1 77 of the Indian Penal Code.
(3) The Commission or any other officer, not below the rank of a Gazetted Officer, specially
authorised in this behalf by the Commission may enter any building or place where the
Commission has reason to believe that any document relating to the subject matter of the
inquiry may be found, and may seize any such document or take extracts or copies
therefrom subject to the provisions of section 100 of the Code of Criminal Procedure, 1 973,
in so far as it may be applicable.
(4) The Commission shall be deemed to be a civil court and when any offence as is
described in section 1 75, section 1 78, section 1 79, section 1 80 or section 228 of the Indian
Penal Code is committed in the view or presence of the Commission, the Commission may,
after recording the facts constituting the offence and the statement of the accused as
provided for in the Code of Criminal Procedure, 1973, forward the case to a Magistrate
having jurisdiction to try the same and the Magistrate to whom any such case is forwarded
shall proceed to hear the complaint against the accused as if the case has been forwarded to
him under section 346 of the Code of Criminal Procedure, 1 973.
(5) Every proceeding before the Commission shall be deemed to be a judicial proceeding
within the meaning of sections 193 and 228, and for the purposes of section 196, of the
Indian Penal Code, and the Commission shall be deemed to be a civil court for all the
purposes of section 1 95 and Chapter XXVI of the Code of Criminal Procedure, 1 973.
14. Investigation
(1) The Commission may, for the purpose of conducting any investigation pertaining to the
inquiry, utilise the services of any officer or investigation agency of the Central Government
or any State Government with the concurrence of the Central Government or the State
Government, as the case may be.
(2) For the purpose of investigating into any matter pertaining to the inquiry, any officer or
agency whose services are utilised under sub-section (1) may, subject to the direction and
control of the Commission.
(a) summon and enforce the attendance of any person and examine him;
(b) require the discovery and production of any document; and
(c) requisition any public record or copy thereof from any office.
(3) The provisions of section 1 5 shall apply in relation to any statement made by a person
before any officer or agency whose services are utilised under sub-section (1) as they apply
in relation to any statement made by a person in the course of giving evidence before the
Commission.
(4) The officer or agency whose services are utilised under sub-section (1) shall investigate
into any matter pertaining to the inquiry and submit a report thereon to the Commission
within such period as may be specified by the Commission in this behalf.
(5) The Commission shall satisfy itself about the correctness of the facts stated and the
conclusion, if any, arrived at in the report subbed to it under sub-section (4) and for this
purpose the Commission may make such inquiry (including the examination of the person
or persons who conducted or assisted in the investigation) as it thinks fit.
1 5. Statement made by persons to the Commission
No statement made by a person in the course of giving evidence before the Commission
shall subject him to, or be used against him in, any civil or criminal proceeding except a
prosecution for giving false evidence by such statement:
Provided that the statement —
(a) is made in reply to the question which he is required by the Commission to answer; or
(b) is relevant to the subject matter of the inquiry.
16. Persons likely to be prejudicially affected to be heard
If, at any stage of the inquiry, the Commission—
(a) considers it necessary to inquire into the conduct of any person; or
(b) is of the opinion that the reputation of any person is likely to be prejudicially affected by
the inquiry;
it shall give to that person a reasonable opportunity of being heard in the inquiry and to
produce evidence in his defence:
Provided that nothing in this section shall apply where the credit of a witness is being
impeached.
Chapter IV
PROCEDURE
1 7. Inquiry into complaints
The Commission while inquiring into the complaints of violations of human rights may—
(i) call for information or report from the Central Government or any State Government or
any other authority or organisation subordinate thereto within such time as may be specified
by it;
Provided that—
(a) if the information or report is not received within the time stipulated by the Commission,
it may proceed to inquire into the complaint on its own;
(b) if, on receipt of information or report, the Commission is satisfied either that no further
inquiry is required or that the required action has been initiated or taken by the concerned
Government or authority, it may not proceed with the complaint and inform the complainant
accordingly;
(ii) without prejudice to anything contained in clause (i), if it considers necessary, having
regard to the nature of the complaint, initiate an inquiry.
18. Steps after inquiry
The Commission may take any of the following steps upon the completion of an inquiry held
under this Act namely:
(1) where the inquiry discloses, the commission of violation of human rights or negligence
in the prevention of violation of human rights by a public servant, it may recommend to the
concerned Government or authority the initiation of proceedings for prosecution or such
other action as the Commission may deem fit against the concerned person or persons;
(2) approach the Supreme Court or the High Court concerned for such directions, orders or
writs as that Court may deem necessary;
(3) recommend to the concerned Government or authority for the grant of such immediate
interim relief to the victim or the members of his family as the Commission may consider
necessary;
(4) subject to the provisions of clause (5), provide a copy of the inquiry report to the
petitioner or his representative;
(5) the Commission shall send a copy of its inquiry report together with its
recommendations to the concerned Government or authority and the concerned Government
or authority shall, within a period of one month, or such further time as the Commission
may allow, forward its comments on the report, including the action taken or proposed to
be taken thereon, to the Commission;
(6) the Commission shall publish its inquiry report together with the comments of the
concerned Government or authority, if any, and the action taken or proposed to be taken by
the concerned Government or authority on the recommendations of the Commission.
19. Procedure with respect to armed forces
(1) Notwithstanding anything contained in this Act, while dealing with complaints of
violation of human rights by members of the armed forces, the Commission shall adopt the
following procedure, namely:
(a) it may, either on its own motion or on receipt of a petition, seek a report from the
Central Government;
(b) after the receipt of the report, it may, either not proceed with the complaint or, as the
case may be, make its recommendations to that Government.
(2) The Central Government shall inform the Commission of the action taken on the
recommendations within three months or such further time as the Commission may allow.
(3) The Commission shall publish its report together with its recommendations made to the
Central Government and the action taken by that Government on such recommendations.
(4) The Commission shall provide a copy of the report published under sub-section (3) to the
petitioner or his representative.
20. Annual and special reports of the Commission
(1) The Commission shall submit an annual report to the Central Government and to the
State Government concerned and may at any time submit special reports on any matter
which, in its opinion, is of such urgency or importance that it should not be deferred till
submission of the annual report.
(2) The Central Government and the State Government, as the case may be, shall cause the
annual and special reports of the Commission to be laid before each House of Parliament or
the State Legislature respectively, as the case may be, along with a memorandum of action
taken or proposed to be taken on the recommendations of the Commission and the reasons
for non-acceptance of the recommendations, if any.
Chapter V
STATE HUMAN RIGHTS COMMISSIONS
21. Constitution of State Human Rights Commissions
(1) A State Government may constitute a body to be known as the
(name of
the State) Human Rights Commission to exercise the powers conferred upon, and to perform
the functions assigned to, a State Commission under this chapter.
(2) The State Commission shall consist of
(a) a Chairperson who has been a Chief Justice of a High Court;
(b) one Member who is, or has been, a Judge of a High Court;
(c) one Member who is, or has been, a district judge in that State;
(d) two Members to be appointed from amongst persons having knowledge of, or practical
experience in, matters relating to human rights.
(3) There shall be a Secretary who shall be the Chief Executive Officer of the State
Commission and shall exercise such powers and discharge such functions of the State
Commission as it may delegate to him.
(4) The headquarters of the State Commission shall be at such place as the State
Government may, by notification, specify.
(5) A State Commission may inquire into violation of human rights only in respect of matters
relatable to any of the entries enumerated in List II and List III in the Seventh Schedule to the
Constitution:
Provided that if any such matter is already being inquired into by the Commission or any
other Commission duly constituted under any law for the time being in force, the State
Commission shall not inquire into the said matter:
Provided further that in relation to the Jammu and Kashmir Human Rights Commission, this
sub-section shall have effect as if for the words and figures "List II and List III in the Seventh
Schedule to the Constitution", the words and figures "List III in the Seventh Schedule to the
Constitution as applicable to the State of Jammu and Kashmir and in respect of matters in
relation to which the Legislature of that State has power to make laws" had been
substituted.
22. Appointment of Chairperson and other Members of State Commission
(1) The Chairperson and other Members shall be appointed by the Governor by warrant
under his hand and seal:
Provided that every appointment under this sub-section shall be made after obtaining the
recommendation of a Committee consisting of
(a) the Chief Minister — Chairperson
(b) Speaker of the Legislative Assembly — Member
(c) Minister in—charge of the Department of Home, in that State — Member
(d) Leader of the Opposition in the Legislative Assembly — Member
Provided further that where there is a Legislative Council in a State, the Chairman of that
Council and the Leader of the Opposition in that Council shall also be members of the
Committee.
Provided also that no sitting Judge of a High Court or a sitting District Judge shall be
appointed except after consultation with the Chief Justice of the High Court of the
concerned State.
(2) No appointment of a Chairperson or a Member of the State Commission shall be invalid
merely by reason of any vacancy in the Committee.
23. Removal of a Member of the State Commission
(1) Subject to the provisions of sub-section (2), the Chairperson or any other member of the
State Commission shall only be removed from his office by order of the President on the
ground of proved misbehaviour or incapacity after the Supreme Court, on a reference being
made to it by the President, has, on inquiry held in accordance with the procedure
prescribed in that behalf by the Supreme Court, reported that the Chairperson or such other
Member, as the case may be, ought on any such ground to be removed.
(2) Notwithstanding anything in sub-section (1), the President may by order remove from
office the Chairperson or any other Member if the Chairperson or such other Member, as the
case may be (a) is adjudged an insolvent; OR
(b) engages during his term of office in any paid employment outside the duties of his
office; OR
(c) is unfit to continue in office by reason of infirmity of mind or body; OR
(d) is of unsound mind and stands so declared by a competent court; OR
(e) is convicted and sentenced to imprisonment for an offence which in the opinion of the
President involves moral turpitude.
24. Term of office of Members of the State Commission
(1) A person appointed as Chairperson shall hold office for a term of five years from the
date on which he enters upon his office or until he attains the age of seventy years,
whichever is earlier;
(2) A person appointed as a Member shall hold office for a term of five years from the date
on which he enters upon his office and shall be eligible for re—appointment for another
term of five years;
Provided that no Member shall hold office after he has attained the age of seventy years.
(3) On ceasing to hold office, a Chairperson or a Member shall be ineligible for further
employment under the Government of a State or under the Government of India.
25. Member to act as Chairperson or to discharge his func tions in certain
circumstances
(1) In the event of the occurrence of any vacancy in the office of the Chairperson by reason
of his death, resignation or otherwise, the Governor may, by notification, authorise one of
the Members to act as the Chairperson until the appointment of a new Chairperson to fill
such vacancy.
(2) When the Chairperson is unable to discharge his functions owing to absence on leave or
otherwise, such one of the Members as the Governor may, by notification, authorise in this
behalf, shall discharge the functions of the Chairperson until the date on which the
Chairperson resumes his duties.
26. Terms and conditions of service of Members of the State Commission
The salaries and allowances payable to, and other terms and conditions of service of, the
Members shall be such as may be prescribed by the State Government.
Provided that neither the salary and allowances nor the other terms and conditions of
service of a Member shall be varied to his disadvantage after his appointment.
27. Officers and other staff of the State Commission
(1) The State Government shall make available to the Commission
(a) an officer not below the rank of a Secretary to the State Government who shall be the
Secretary of the State Commission; and
(b) such police and investigative staff under an officer not below the rank of an Inspector
General of Police and such other officers and staff as may be necessary for the efficient
performance of the functions of the State Commission.
(2) subject to such rules as may be made by the State Government in this behalf, the State
Commission may appoint such other addministrative, technical and scientific staff as it may
consider necessary.
(3) The salaries, allowances and conditions of service of the officers and other staff
appointed under sub-section (2) shall be such as may be prescribed by the State
Government.
28. Annual and special reports of State Commission
(1) The State Commission shall submit an annual report to the State Government and may at
any time submit special reports on any matter which, in its opinion, is of such urgency or
importance that it should not be deferred till submission of the annual report.
(2) The State Government shall cause the annual and special reports of the State
Commission to be laid before each House of State Legislature where it consists of two
Houses, or where such Legislature consists of one House, before that House along with a
memorandum of action taken or proposed to be taken on the recommendations of the State
Commission and the reasons for non-acceptance of the recommendations, if any.
29. Application of certain provisions relating to National Human Rights Commission to
State Commissions
The provisions of sections 9, 10, 12, 13, 14, 15, 16, 17 and 18 shall apply to a State
Commission and shall have effect, subject to the following modifications, namely:—
(a) references to "Commission" shall be construed as references to "State Commission";
(b) in section 10, in sub-section (3), for the word "Secretary General", the word "Secretary"
shall be substituted;
(c) in section 1 2, clause (f) shall be omitted;
(d) in section 1 7, in clause (i), the words "Central Government or any" shall be omitted;
Chapter VI
HUMAN RIGHTS COURTS
30. For the purpose of providing speedy trial of offences arising out of violation of
human rights, the State
Government may, with the concurrence of the Chief Justice of the High Court, by
notification, specify for each district a Court of Session to be a Human Rights Court to try
the said offences.
Provided that nothing in this section shall apply if
(a) a Court of Session is already specified as a special court; or
(b) a special court is already constituted, for such offences under any other law for the time
being in force.
31. Special Public Prosecutor
For every Human Rights Court, the State Government shall, by notification, specify a Public
Prosecutor or appoint an advocate who has been in practice as an advocate for not less than
seven years, as a Special Public Prosecutor for the purpose of conducting cases in that
Court.
Chapter VII
FINANCE, ACCOUNTS AND AUDIT
32. Grants by the Central Government
(1) The Central Government shall after due appropriation made by Parliament by law in this
behalf, pay to the Commission by way of grants such sums of money as the Central
Government may think fit for being utilised for the purposes of this Act.
(2) The Commission may spend such sums as it thinks fit for performing the functions
under this Act, and such sums shall be treated as expenditure payable out of the grants
referred to in sub-section (1).
33. Grants by the State Government
(1) The State Government shall, after due appropriation made by Legislature by law in this
behalf, pay to the State Commission by way of grants such sums of money as the State
Government may think fit for being utilised for the purposes of this Act.
(2) The State Commission may spend such sums as it thinks fit for performing the functions
under Chapter V, and such sums shall be treated as expenditure payable out of the grants
referred to in sub-section (1).
34. Accounts and Audit
(1) The Commission shall maintain proper accounts and other relevant records and prepare
an annual statement of accounts in such form as may be prescribed by the Central
Government in consultation with the Comptroller and Auditor-General of India.
(2) The Accounts of the Commission shall be audited by the Comptroller and AuditorGeneral at such intervals as may be specified by him and any expenditure incurred in
connection with such audit shall be payable by the Commission to the Comptroller and
Auditor—General.
(3) The Comptroller and Auditor-General or any person appointed by him in connection with
the audit of the accounts of the Commission under this Act shall have the same rights and
privileges and the authority in connection with such audit as the Comptroller and AuditorGeneral generally has in connection with the audit of Government ac counts and, in
particular, shall have the right to demand the production of books, accounts, connected
vouchers and other documents and papers and to inspect any of the offices of the
Commission.
(4) The accounts of the Commission as certified by the Comptroller and Auditor-General or
any other person appointed by him in this behalf, together with the audit report thereon
shall be forwarded only to the Central Government by the Commission and the Central
Government shall cause the audit report to be laid as soon as may be after it is received
before each House of Parliament.
35. Accounts and Audit of State Commission
(1) The State Commission shall maintain proper accounts and other relevant records and
prepare an annual statement of accounts in such form as may be prescribed by the State
Government in consultation with the Comptroller and Auditor-General of India.
(2) The accounts of the State Commission shall be audited by the Comptroller and AuditorGeneral at such intervals as may be specified by him and any expenditure incurred in
connection with such audit shall be payable by the State Commission to the Comptroller and
Auditor-General.
(3) The Comptroller and Auditor-General or any person appointed by him in connection with
the audit of the accounts of the State Commission under this Act shall have the same rights
and privileges and the authority in connection with such audit as the Comptroller and
Auditor-General generally has in connection with the audit of Government accounts and, in
particular, shall have the right to demand the production of books, accounts, connected
vouchers and other documents and papers and to inspect any of the offices of the State
Commission.
(4) The accounts of the State Commission, as certified by the Comptroller and AuditorGeneral or any other person appointed by him in this behalf, together with the audit report
thereon, shall be forwarded annually to the State Government by the State Commission and
the State Government shall cause the audit report to be laid, as soon as may be after it is
received, before the State Legislature.
Chapter VIII
MISCELLANEOUS
36. Matters not subject to jurisdiction of the Commission
(1) The Commission shall not inquire into any matter which is pending before a State
Commission or any other Commission duly constituted under any law for the time being in
force.
(2) The Commission or the State Commission shall not inquire into any matter after the
expiry of one year from the date on which the act constituting violation of human rights is
alleged to have been committed.
37. Constitution of special investigation teams
Notwithstanding anything contained in any other law for the time being in force, where the
Government considers it necessary so to do, it may constitute one or more special
investigation teams, consisting of such police officers as it thinks necessary for purposes of
investigation and prosecution of offences arising out of violations of human rights.
38. Protection of action taken in good faith
No suit or other legal proceeding shall lie against the Central Government, State
Government, Commission, the State Commission or any Member thereof or any person
acting under the direction either of the Central Government, State Government, Commission
or the State Commission in respect of anything which is in good faith done or intended to be
done in pursuance of this Act or of any rules or any order made thereunder or in respect of
the publication by or under the authority of the Central Government, State Government,
Commission or the State Commission of any report paper or proceedings.
39. Members and officers to be public servants
Every Member of the Commission, State Commission and every officer appointed or
authorised by the Commission or the State Commission to exercise functions under this Act
shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal
Code.
40. Power of Central Government to make rules
(1) The Central Government may, by notification, make rules to carry out the provisions of
this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such rules
may provide for all or any of the following matters namely:
(a) the salaries and allowances and other terms and conditions of service of the Members
under section 8;
(b) the conditions subject to which other administrative, technical and scientific staff may be
appointed by the Commission and the salaries and allowances of officers and other staff
under sub-section (3) of section 11;
(c) any other power of a civil court required to be prescribed under clause (f) of sub-section
(1) of section 1 3;
(d) the form in which the annual statement of accounts is to be pre pared by the
Commission under sub-section (1) of section 34; and
(e) any other matter which has to be, or may be, prescribed.
(3) Every rule made under this Act shall be laid, as soon as may be after it is made, before
each House of Parliament, while it is in session, for a total period of thirty days which may
be comprised in one session or in two or more successive sessions, and if, before the expiry
of the session immediately following the session or the successive sessions aforesaid, both
Houses agree in making any modification in the rule or both Houses agree that the rule
should not be made, the rule shall thereafter have effect only in such modified form or be of
no effect, as the case may be; so however, that any such modification or annulment shall be
without prejudice to the validity of anything previously done under that rule.
41. Power of State Government to make rules
(1) The State Government may, by notification, make rules to carry out the provisions of this
Act.
(2) In particular and without prejudice to the generality of the foregoing power, such rules
may provide for all or any of the following matters, namely:
(a) the salaries and allowances and other terms and conditions of service of the members
under section 26;
(b) the conditions subject to which other administrative, technical and scientific staff may be
appointed by the State Commission and the salaries and allowances of officers and other
staff under sub-section (3) of section 27;
(c) the form in which the annual statement of accounts is to be prepared under sub-section
(1) of section 35.
(3) Every rule made by the State Government under this section shall be laid, as soon as may
be after it is made, before each House of the State Legislature where it consists of two
Houses, or where such Legislature consists of one House, before that House.
42. Power to remove difficulties
(1) If any difficulty arises in giving effect to the provisions of this Act, the Central
Government, may by order published in the Official Gazette, make such provisions, not
inconsistent with the provisions of this Act as appear to it to be necessary or expedient for
removing the difficulty.
Provided that no such order shall be made after the expiry of the period of two years from
the date of commencement of this Act.
(2) Every order made under this section shall, as soon as may be after it is made, be laid
before each house of Parliament.
43. Repeal and Savings
(1) The Protection of Human Rights Ordinance, 1 993 is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken under the said
Ordinance, shall be deemed to have been done or taken under the corresponding provisions
of this Act.
Public interest Litigation
"Public interest Litigation", in simple words, means, litigation filed in a court of
law, for the protection of "Public Interest", such as pollution, Terrorism, Road
safety, constructional hazards etc.
PUBLIC INTEREST LITIGATION is not defined in any statute or in any act. It has
been interpreted by judges to consider the intent of public at large. Although, the
main and only focus of such litigation is only "Public Interest" there are various
areas where a PUBLIC INTEREST LITIGATION can be filed. For e.g.
- Violation of basic human rights of the poor
- Content or conduct of government policy
- Compel municipal authorities to perform a public duty.
- Violation of religious rights or other basic fundamental rights.
WHEN CAN A PUBLIC INTEREST LITIGATION BE FILED?
A PUBLIC INTEREST LITIGATION can be filed only in a case where "Public
Interest" at large is effected. Merely because, only one person is effected by
state inaction is not a ground for PUBLIC INTEREST LITIGATION
These are some of the possible areas where a PUBLIC INTEREST LITIGATION
can be filed.
.
Where a factory / industrial unit is causing air pollution, and people nearly
are getting effected.
•
Where, in an area / street there are no street lights, causing
inconvenience to commuters
•
Where some "Banquet Hall" plays a loud music, in night causing noise
pollution.
•
Where some construction company is cutting down trees, causing
environmental pollution.
•
Where poor people, are affected, because of state government's arbitrary
decision to impose heavy "tax".
•
For directing the police / Jail authorities to take appropriate decisions in
regards to jail reforms, such as segregation of convicts, delay in trial,
production of under trial before the court on remand dates.
•
For abolishing child labour, and bonded labour.
•
Where rights of working women are affected by sexual harassment.
•
For keeping a check on corruption and crime involving holders of high
political officer.
•
For maintaining Roads, Sewer etc in good conditions.
i
.
For removal of Big Hoarding and signboard from the busy road to avoid
traffic problem.
.
Recently a PUBLIC INTEREST LITIGATION has been filed, for directing
the "Delhi Traffic Police" to stop the method of sending challans to
address by post, as it is being misused
WHO CAN FILE A PUBLIC INTEREST LITIGATION?
•
Earlier it was only a person whose interest was directly affected along with
others, whereby his fundamental right is affected who used to file such
litigation.
•
Now, the trend has changed, and, any Public-spirited person can file a
case (PUBLIC INTEREST LITIGATION) on behalf of a group of person,
whose rights are effected.
•
It is not necessary, that person filing a case should have a direct interest
in this PUBLIC INTEREST LITIGATION
For e.g. a person in Bombay, can file a PUBLIC INTEREST LITIGATION for,
some labour workers being exploited in Madhya Pradesh or as someone filed a
PUBLIC INTEREST LITIGATION in supreme court for taking action against
Cracker factory in Sivakasi Tamilnadu, for employing child labour or the case
where a standing practicing lawyer filed a PUBLIC INTEREST LITIGATION
challenged a government policy to transfer High Court judges and similarly a
lawyer filed a PUBLIC INTEREST LITIGATION for release of 80 under trials in a
jail, who had spent more number of years in jail, than the period prescribed as
punishment for offence, for which they were tried.
It is clear that, any person, can file a PUBLIC INTEREST LITIGATION on behalf
of group of affected people. However it will depend on every facts of case,
whether it should be allowed or not.
AGAINST WHOM A PUBLIC INTEREST LITIGATION CAN BE
FILED?
.
A PUBLIC INTEREST LITIGATION can be filed only against a State /
Central Govt., Municipal Authorities, and not any private party.
•
However "Private party" can be included in the PUBLIC INTEREST
LITIGATION as "Respondent", after making concerned state authority, a
party.
For example - If there is a Private factory in Delhi, which is causing
pollution, then people living nearly, or any other person can file a PUBLIC
INTEREST LITIGATION against:
■ Government of Delhi
■ State Pollution Control Board, and
■ Also against the private factory
1
•
However, a PUBLIC INTEREST LITIGATION can not be filed against the
Private party alone concerned state Govt. /, and state authority has to be
made a party.
PROCEDURE TO FILE A PUBLIC INTEREST LITIGATION
A "Public Interest Litigation", is filed in the same manner, as a writ petition is filed.
IN HIGH COURT
If a PUBLIC INTEREST LITIGATION is filed in a High court, then two (2) copies
of the petition have to be filed. Also, an advance copy of the petition has to be
served on the each respondent, i.e. opposite party, and this proof of service has
to be affixed on the petition.
IN SUPREME COURT
If a PUBLIC INTEREST LITIGATION is filed in the Supreme court, then (4)+(1)
(i.e. 5) sets of petition has to be filed opposite party is served, the copy only
when notice is issued.
COURT FEES
A Court fee of RS. 50, per respondent (i.e. for each number of opposite party,
court fees of RS. 50) has to be affixed on the petition.
PROCEDURE
•
Proceedings, in the PUBLIC INTEREST LITIGATION commence and
carry on in the same manner, as other cases.
•
However, in between the proceedings if the judge feels he may appoint a
commissioner, to inspect allegations like pollution being caused, trees
being cut, sewer problems, etc.
•
After filing of replies, by opposite party, and rejoinder by the petitioner,
final hearing takes place, and the judge gives his final decision.
CAN A LETTER EXPLAINING CERTAIN FACTS TO CHIEF JUSTICE
BE TREATED AS A PUBLIC INTEREST LITIGATION
•
In early 90's there have been instances, where judges have treated a post
card containing facts, as a PUBLIC INTEREST LITIGATION some of them
are :
•
Letter alleging the illegal limestone quarrying which devastated the fragile
environment in the Himalayan foothills around Mussoorie, was treated as
a PUBLIC INTEREST LITIGATION
•
A journalist complained to the Supreme Court in a letter, that the national
coastline was being sullied by unplanned development which violated the
3
central government directive was treated as a PUBLIC INTEREST
LITIGATION
THE PRESENT SCENARIO:
In the past, many people have tried to misuse the privilege of PUBLIC
INTEREST LITIGATION and thus now the court generally require a detailed
narration of facts and complaint, & then decide whether to issue notice and call
the opposite party.
•
However as there is no statute laying down rules and regulations for a
PUBLIC INTEREST LITIGATION Still the court can treat a letter as a
PUBLIC INTEREST LITIGATION
o
However the letter should bring the true & clear facts, and if the
matter is really an urgent one, the court can treat it is a PUBLIC
INTEREST LITIGATION
o
But still it depends upon facts and circumstances, and court has the
entire discretion.
RELIEFS AVAILABLE BY PUBLIC INTEREST LITIGATION
There are many kinds of remedies, which can be given in a PUBLIC INTEREST
LITIGATION, to secure the public interest, at large. They are:
INTERIM MEASURES
The court can afford an early interim measure to protect the public interest till the
final order for example:
•
Release of under trial on personal bonds ordering release of all under trial
who have been imprisoned for longer time, than the punishment period,
free legal aid to the prisoners, imposing an affirmative duty on magistrates
to inform under trial prisoners of their right to bail and legal aid. Or
.
Closure of Industrial plant emitting poisonous gas, setting up victim
compensation scheme, ordering the plaint reopening subject to extensive
directions etc. Or
.
Prohibiting cutting of trees or making provisions for discharge of sewage,
till the disposal of final petition.
Relief in most of the PUBLIC INTEREST LITIGATION cases in the Supreme
Court is obtained through interim orders.
APPOINTING A COMMITTEE
•
The court may appoint a committee, or commissioner to look into the
matter, and submit its report.
4
•
Such committee or commissioner may also be given power to take
cognizance of grievances and settle it right in the public intent.
FINAL ORDERS
The court may also give final orders by way of direction to comply within a
stipulated time.
PUBLIC INTEREST LITIGATION IN HIGH COURT OR SUPREME
COURT
•
Both the High court and supreme court have the power to entertain a
PUBLIC INTEREST LITIGATION
•
Since there are no statutes or rules, there cannot be a specific difference,
as to which court will have jurisdiction on the PUBLIC INTEREST
LITIGATION
•
It will purely and solely depend on the "Nature of the case", if the question
involves only a small group of people being effected by action of State
authority, the PUBLIC INTEREST LITIGATION can be filed in high court.
For e.g. if there is a sewage problem in a locality effecting 50 families, the
PUBLIC INTEREST LITIGATION can be filed in High court.
•
If a large section of people is effected whether by State Government or
Central Government, PUBLIC INTEREST LITIGATION can be filed in
Supreme Court For e.g. placing a ban on adult movies, prohibition
industrial unit from causing pollution etc
5
PUBLIC INTEREST LITIGATION
By: Jasveen Kaur
Public Interest Litigation— It's meaning
DICTIONARY
IN BLACK'S LAW
"Public Interest Litigation means a legal action
initiated in a court of law for the enforcement ofpublic interest or
genera! interest in which the public or class of the community have
pecuniary interest or some interest by which their legal rights or
liabilities are affected."
Public Interest Litigation's explicit purpose is to alienate the
suffering off all those who have borne the burnt of insentitive
treatment at the hands of fellow human being. Transparency in
public life & fair judicial action are the right answer to check
increasing menace of violation of legal rights. Traditional rule was
that the right to move the Supreme Court is only available to those
whose fundamental rights are infrigned.
But this traditional rule was considerably relaxed by the Supreme
Court in its recent rulings: Peoples Union for Demcratic Rights v.
Union of India (A.I.R.. 1982, S C 1473). The court now permits
Public Interest Litigation or Social Interest Litigation at the instance
of" Public spirited citizens" for the enforcement of constitutional &
legal rights of any person or group of persons who beacause of
their socially or economically disadvantaged position are unable to
approach court for relief. Public interest litigation is a part of the
process of participate justice and standing in civil litigation of that
pattern must have liberal reception at the judicial door steps.
In the Judges Transfer Case - AIR 1982, SC 149 '. Court held
Public Interest Litigation can be filed by any member of public
1
having sufficient interest for public injury arising from violation of
legal rights so as to get judicial redress. This is absolutly necessary
for maintaining Rule of law and accelerating the balance between
law and justice.
It is a settled law that when a person approaches the court of equity
in exercise of extraordinary jurisdiction, he should approach the
court not only with clean hands but with clean mind, heart and with
clean objectives.
Shiram Food & Fertilizer case AIR (1986) 2 SCC 176 SC through
Public Interest Litigation directed the Co. Manufacturing hazardous
& lethal chemical and gases posing danger to life and health of
workmen & to take all neccessary safety measures before re
opening the plant.
In the case of M.C Mehta V. Union of India (1988) 1 SCC 471In
a Public Interest Litigation brought against Ganga water pollution so
as to prevent any further pollution of Ganga water. Supreme court
held that petitioner although not a riparian owner is entitled to move
the court for the enforcement of statutory provisions , as he is the
person interested in protecting the lives of the people who make
use of Ganga water.
Parmanand Katara V. Union of India - AIR 1989, SC 2039 >
Supreme Court held in the Public Interest Litigation filed by a
human right activist fighting for general public interest that it is a
paramount obligation of every member of medical profession to
give medical aid to every injured citizen as soon as possible without
waiting for any procedural formalities.
2
Council For Environment Legal Action I/. Union Of India - (1996)5
SCC281: Public Interest Litigation filed by registered voluntary
organisation regarding economic degradation in coastal area.
Supreme Court issued appropriate orders and directions for
enforcing the laws to protect ecology.
A report entitled "Treat Prisoners Equally A/C"published in THE
TRIBUNE , Aug 23 Punjab & Haryana High Court quashed the
provisions of jail manual dividing prisoners into A , B & C classes
after holding that there cannot be any classification of convicts on
the basis of their social status, education or habit of living .This is a
remarkable ruling given by High Court by declaring 576-A
paragraph of the manual to be " Unconstitutional".
State V. Union Of India -A/R 1996 Cat 181 at 218 - Public Interest
Litigation is a strategic arm of the legal aid movement which
intended to bring justice. Rule Of Law does not mean that the
Protection of the law must be available only to a fortunate few or
that the law should be allowed to be abused and misused by the
vested interest. In a recent ruling of Supreme Court on " GROWTH
OF SLUMS" in Delhi through Public Interest Litigation initiated by
lawyers Mr. B.L. Wadhera & Mr. Almitra Patel Court held that large
area of public land is covered by the people living in slum area .
Departments despite being giving a dig on the slum clearance , it
has been found that more and more slums are coming into
existence. Instead of "Slum Clearance", there is "Slum Creation" in
Delhi. As slums tended to increase ; the Court directed the
departments to take appropriate action to check the growth of
slums and to create an environment worth for living.
3
During the last few years, Judicial Activism has opened up a new
dimension for the Judicial process and has given a new hope to the
millions who starve for their livelihood. There is no reason why the
Court should not adopt activist approach similar to Court in America
, so as to provide remedial amplitude to the citizens of India.
Supreme Court has now realised its proper role in welfare state and
it is using its new strategy for the development of a whole new
corpus of law for effective and purposeful implementation of Public
Interest Litigation. One can simply approach to the Court for the
enforcement of fundamental rights by writing a letter or post card to
any Judge. That particular letters based on true facts and concept
will be converted to writ petition. When Court welcome Public
Interest Litigation , its attempt is to endure observance of social and
economic programmes frame for the benefits of havenot's and the
handicapped. Public Interest Litigation has proved a boon for the
common men. Public Interest Litigation has set right a number of
wrongs committed by an individual or by socitey. By relaxing the
scope of Public Interest Litigation, Court has brought legal aid at
the doorsteps of the teeming millions of Indian ; which the executive
has not been able to do despite a lot of money is being spent on
new legal aid schemes operating at the central and state level.
Supreme Court's pivotal role in expanding the scope of Public
Interest Litigation as a counter balance to the lethargy and
inefficiency of the executive is commendable.^
4
Monitoring and
/
Advocacy for Health and
Human Rights
Ravi Duggal
Centre for Enquiry into Health and
Allied Themes (CEHAT)
www.cehat.org
Health and Human
Rights Framework
& Health as a human right
• ICESCR and other related covenants
• Respect, protect and fulfill (provide)
A Right to healthcare
• Availability, accessibility (non
discrimination, physical, economic and
information), acceptability and quality
(A3Q)
• Universality and equity
■
Basis for Monitoring and
Advocacy for H&HR
Country’s constitutional and legal
position and policy framework
a Present healthcare system
• Structure, provisions, financing and
regulation
• Access, inequities and ethics
Social and political environment to steer
change and accountability
_________________ ___
...
■"
/
\
■................-
/
/
Elements of Monitoring
^Access to information on provision and
outcomes - A3Q
y Local level participatory accountability
mechanisms
^Social audit
a Budget and policy analysis
• Public pressure and demands
1
- Media
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