* Essential readings
Note: the recorded lectures (links at bottom of page) supplement the readings for this segment and relate to each of the topic areas.
International law resources on torture relevant to us as survivors:
CRPD Article 15; see also 14, 16 and 17*
Protocol to the African Charter on Human and People’s Rights on the Rights of Persons with Disabilities Article 10; see also 11*
International Covenant on Civil and Political Rights, Art. 7 and Human Rights Committee (ICCPR monitoring body) General Comment No. 20*
Convention against Torture, see especially Art. 1 definition, and Art. 16*
Inter-American Convention to Prevent and Punish Torture, see especially Art. 2 definition*
Optional Protocol to the Convention against Torture (OPCAT) addresses the prevention of torture through visits to places of detention
Torture can also constitute a war crime or a crime against humanity under the Elements of Crimes of the Rome Statute of the International Criminal Court
- Questions to consider:
What is torture? How does it differ from other kinds of cruel, inhuman or degrading treatment or punishment?
What is the relationship between freedom from torture and other ill-treatment; prevention of all exploitation, violence and abuse; the right to security of the person; and respect for a person’s physical and mental integrity?
What is its relationship to humane treatment in detention settings?
What kinds of torture take place outside detention settings?
How do you think the freedom from torture and other ill-treatment applies to psychiatric incarceration and violence?
Can psychiatric incarceration and violence amount to a crime against humanity?
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Survivors on forced psychiatry as torture:
Alice Halmi, Coercive Psychiatry a Torture System
Minkowitz, Advocacy paper on forced interventions as torture (2 pg, following definition in CAT article 1)
Minkowitz, Forced interventions and forced institutionalization as torture/CIDT (cruel, inhuman and degrading treatment) from perspective of PWD (slides presented to OHCHR expert meeting, combining multiple arguments)
Minkowitz, UN CRPD and the Right to Be Free from Nonconsensual Psychiatric Interventions (article, CRPD standard and more detailed argument based on CAT article 1 definition)
WNUSP submission on forced psychiatry as a harmful cultural practice
Leah Ashe, Where is the Camp? Psychiatry and the State of Exception
Stephanie Franklin, African-American Girls in Foster Care and Psychotropic Medication
Laura Prescott, Shattering the Silence
Writings on Absolute Prohibition site by survivors and by relatives of those who died from psychiatric violence and detention
Victims of Psychiatrists website and report to CRPD Committee
CHRUSP et al report to Human Rights Committee 2013 – CHRUSPUSICCPRshadowreportFINAL
See also historical materials on the General Materials page and Segment 1, and materials related to torture and prohibition of forced psychiatry on the CHRUSP website.
- Questions to consider:
How is the definition of torture in CAT Article 1 mobilized in some of these arguments? What are the advantages and disadvantages of this approach?
How is the framework of disability non-discrimination mobilized in some of these arguments? What are the advantages and disadvantages of this approach?
How is the alternative prong of the Inter-American Convention, prohibiting methods that diminish physical or mental capacities or annihilate the personality, or reasoning that views psychiatric methods as a unique and inherently harmful assault on the personality, mobilized? What are the advantages and disadvantages of this approach?
What are the practices of psychiatric violence and detention that survivors view as torture and/or other ill-treatment?
How are victims harmed by psychiatric violence and detention? What might survivors need in order to heal, obtain justice, go on with life? How can we memorialize those who die in the psychiatric system?
What is the relationship between torture in the psychiatric context, and free and informed consent in health care, supposing that full legal capacity is recognized and respected so that the right to refuse unwanted interventions is guaranteed?
What is the relationship between torture and ill-treatment in the psychiatric context, and other forms of violence directed at people because of madness or psychosocial disability? Do those other forms of violence also warrant characterization as torture and other ill-treatment?
What is the state’s responsibility for the violent acts of individuals and private institutions? Does it matter whether the state’s legal framework authorizes the private violence, whether the state tolerates it through inaction, or whether the state has simply failed to effectively prevent it from happening?
What are states obligated to do in order to effectively prevent psychiatric violence and detention and similar discriminatory violence and confinement in other settings? How does this obligation relate to law reform?
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UN documents on forced psychiatry as torture/ill-treatment:
CRPD General Comment No. 1 (2014), para. 42*
CRPD Guidelines on Article 14 as Annex to Biannual Report (2015), para 12*
CESCR General Comment No. 14 on right to health (2000); see especially paras. 8, 18, 26, 28-29, 34 (contrary to CRPD in part), 50, 59
1986 Report by Special Rapporteur on Torture P. Kooijmans (paragraph 119) (not readable to screen reader but relevant text provided in lecture ppt)*
2008 Report by Special Rapporteur on Torture Manfred Nowak on torture and persons with disabilities (section III)*
2013 Report by Special Rapporteur on Torture Juan E. Méndez on torture in healthcare settings (sections III, IV A, D and E, and V)
(Exchange between World Psychiatric Association and Méndez, outside UN but relevant to rapporteur’s view of 2013 report; see also Minkowitz commentary on the report in this compilation )
2020 Report by Special Rapporteur on Torture Nils Melzer on psychological torture (advanced unedited version), see especially paras. 31-33, 35-37, 39-42, and Minkowitz commentary on Mad in America
Subcommittee on Prevention of Torture (UN expert body overseeing the Optional Protocol to the Convention Against Torture), Approach regarding treatment without free and informed consent (contrary to CRPD)*
(Note also the ongoing struggle in the Council of Europe over the draft Protocol to the Oviedo Convention on Bioethics of the Council of Europe, which would establish guidelines for coercion in mental health settings. The Protocol is strenuously opposed by human rights defenders including ENUSP and the CRPD Committee, and the Council of Europe’s Parliamentary Assembly has recommended instead to draft guidelines for ending coercion in mental health. For highly disturbing reading from another Council of Europe mechanism, see the European Court of Human Rights case Herczegfalvy v. Austria (1998); more recent cases have moved closer to CRPD standard but not reached it.)
(Commentary) Minkowitz, Is the CRPD prohibition of forced treatment absolute?
- Questions to consider:
How have UN mechanisms responded to survivor advocacy for the characterization and prohibition of forced psychiatric interventions as torture?
Do these materials accurately reflect and account for all the dimensions of victimization?
Do they indicate clearly what actions states need to take in order to end and effectively prevent psychiatric violence and detention?
What can we learn from the debates and sharp conflicts among UN mechanisms about the abolition vs preservation of forced psychiatric interventions?
What role does the medicalization of forced psychiatric interventions play in the different positions adopted by UN mechanisms?
Does it matter for our advocacy if we frame forced psychiatric interventions as an instance of nonconsensual medical treatment, or as an act of coercive control that happens to utilize medical technology?
Has survivor advocacy using the torture framework advanced our work for abolition?
Has it improved the understanding of human rights mechanisms and defenders of our lived experience of psychiatric violence and detention?
What remains uncertain, incomplete, yet to be achieved?
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Reparation and enforcement
Important: See also new materials under Deinstitutionalization – Reparative Justice Approach
UN Basic Principles and Guidelines on Remedy and Reparation*
Committee Against Torture, General Comment No. 3 on redress and reparation
Hege Orefellen: Urgent need for effective remedies, redress, and guarantees of non-repetition – Side_event_CRPD_Art15_March2015_Hege*
Minkowitz, Forced psychiatric interventions: right to remedy and reparation
See also Minkowitz, Reparations for Psychiatric Violence: A Call to Justice *
Communication to Norway from the Working Group on Arbitrary Detention; the Special Rapporteur on the rights of persons with disabilities and the Special Rapporteur on health* (or search here for communications related to ‘arbitrary detention’ and Norway), and Norway’s reply*
Minkowitz brief in third party intervention under CRPD Optional Protocol (will be revisited in Segments 6-7)
Recommendations by CHRUSP and others for OPCAT monitoring of psychiatric institutions applying CRPD standards* (will be revisited in segments 6-7)
- Questions to consider:
How do we measure success, or at least progress, in enforcement of the right to be free from psychiatric violence and detention?
Can UN mechanisms meaningfully affect the behavior of states, over the long-term if not the short term?
How can national torture prevention mechanisms, established under the OPCAT to visit places of detention, defend adherence to the CRPD and not the contrary standard of their international monitoring body, the SPT?
What obstacles do we face in asserting a demand for reparations? What arguments and strategies can we use to counter them?
How can reparations help to move us forward, beyond the violations and toward the needed social and political transformations?
What is the relationship between individual and collective forms of reparation?
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Archived materials:
Fall 2017: Lecture video recording and slides segment 2 final
Spring 2017: Lecture #2 (playback, prefers Chrome and Firefox) and slides segment 2 (pdf version segment 2)
Writing:
Write your responses to the questions under each topic.
As we continue to work on revisions to this website, we hope to provide webforms and also forums for you to record your reflections and share them.
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(c) Tina Minkowitz 2020-2022