Back to: Daily
Ad Hoc Committee Main
Daily summary of discussions related to Article
FREEDOM FROM VIOLENCE AND ABUSE
UN Convention on the Rights of People with Disabilities
Fourth session of the Ad Hoc Committee - Daily Summary
A service made possible by Landmine Survivors Network *
Volume 5, #4
August 26, 2004
ARTICLE 12: FREEDOM FROM VIOLENCE AND ABUSE
New Zealand stated that there are no valid exceptions
to the right to be free from violence and abuse. These provisions should
be retained in a separate article, in order to prevent confusion with
the right to free and informed consent, where some States consider that
there may be some exceptions regarding involuntary treatment. If the
New Zealand proposal for Article 11 is accepted, 12(2) should be deleted
and a clause from 11 regarding torture and cruel, inhuman and degrading
treatment or punishment should be added. New Zealand reaffirmed its
proposals from AHC3, and also supported the EU in moving the first sentence
of 12(1) to the Preamble, and deleting 12(3) which is repetitive of
Palestine supported the Kenyan proposal on armed conflict,
but the first sentence should be amended to read “including foreign
occupation” after “armed conflict.” Foreign occupation is an outgrowth
of armed conflict and often includes the same elements of abuse, violence,
mistreatment and hardships, especially for PWD.
Chile supported the Korean addition of “abandonment”
in 12(1) as one of the gravest manifestations of violence and abuse.
It supports New Zealand in the addition of “economic abuse,” because
many PWD do not enjoy equal salaries as non-PWD. It also supports Kenya’s
proposal on armed conflict. The language in 12(3) should mirror that
used in the second part of 12(1), and begin “The States Parties shall
take all appropriate measures, legislative, administrative, social,
and educational and other kinds to protect them,” with the rest of 12(3)
unchanged. Chile supports New Zealand regarding the need for those working
with PWD to recognize and prevent cases of abuse or violence, as well
as the need for independent supervision. It supports the EU proposed
12(3)(bis), recognizing that forced interventions are unlawful, as well
as Mexico’s proposal for the end of the article.
The Netherlands (EU) reiterated its proposal to delete
the first sentence of 12(1), as it merely states a fact and not a rule.
The wording should be placed in the Preamble. It also provided a new
proposal for 12(2), to replace its proposal from AHC3. Four new paragraphs
would replace current 12(2) and are available at: http://www.un.org/esa/socdev/enable/rights/ahc4eu.htm
The current subsequent paragraphs 12(4), (5) and (6) would become 12(6)
(7) and (8). The EU proposes “abduction” and “harassment” be included
in the list of forbidden behaviors in 12(1) and (4) and (5). To better
account for the situations where prosecution is left to the discretion
of the prosecutor, 12(6) should read, “States Parties shall put in place
effective polices and legislation to ensure that instances of violence
and abuse against PWD are identified, investigated and, where appropriate,
prosecuted, and that protection services are available in such cases.”
South Africa supported the proposals of Sierra Leone
and the EU for 12(1). It opposed the proposals of China and Argentina
eliminating the terms “sexual exploitation” and “abuse,” as these are
daily forms of dehumanizing abuse for many PWD. It does not support
Jordan’s proposal to include “and their families,” as this would widen
the scope of coverage to other family members who may not have a disability.
It supports the Canadian proposal for 12(2), but not the EU proposal
which only addresses medical issues. The Kenyan proposal on armed conflict
is good but misplaced in 12.
South Africa supports the EU amendments to 12(3) to delete repetition
of 12(1). Regarding the EU’s 12(3) bis, it has the same substance as
Canada’s proposal for 12(2). It supported Uganda’s proposal for 12(4),
as well as New Zealand’s addressing independent monitoring of institutions.
PWD must be part of monitoring and the results of such monitoring made
public. South Africa supports the Philippines proposal in 12(5) introducing
the concept of rehabilitation, as well as New Zealand’s inclusion of
economic exploitation and abuse. India’s proposal to replace “ensure”
with “endeavour” in 12(6) weakens the text. A better proposal is Canada’s
“encourage,” as encouraging people to report instances of violence and
abuse is a more realistic State obligation.
Mexico supported moving the first sentence of 12(1)
to the Preamble. The Chile and New Zealand proposals including physical,
mental and economic abuse are important to reflect the wide variety
of abuses against PWD. Mexico supports Canada’s proposal in 12(2), but
it should be considered in light of more recent proposals. Kidnapping
should not be included in 12(2), as this is a crime committed by individuals.
Mexico supports the Kenyan proposal on armed conflict, but it should
be placed elsewhere. In 12(3) it is important to reference the role
of education and training. Mexico supports New Zealand’s proposal in
12(4) reflecting the need for supervision of institutions and programmes.
Measures to prevent psychological and physical abuse in 12(5) should
be retained. Mexico favors a paragraph in 12 dealing with “judiciary
Norway supported the EU proposals to move the first
part of 12(1) to the Preamble, and to include “harassment” and “abduction”
in the second half. The EU re-draft of 12(2) is good, but it is questionable
whether involuntary interventions and free and informed consent should
be dealt with here. The New Zealand proposal should be considered.
Venezuela supported Korea’s proposal to include “abandonment”
in 12(1), and Mexico’s proposal to include economic references. The
first part of 12(1) should be placed in the Preamble, and 12(3) should
become 12(1). Venezuela supports the New Zealand proposal, except that
reference to families should be retained and expanded to include those
associated with PWD. The first sentence of 12(3) should read, “The States
Parties shall also adopt all those measures relevant to preventing violence,
physical, mental or economic abuse, neglect, abandonment or negligent
treatment, maltreatment or sexual exploitation, lending support to persons
with disabilities, their families and their associates, including those
that provide information and education to them as to how to avoid, to
recognize and denounce such instances.” It supports India’s proposal
for 12(3), but “into society” should replace “into communities.” 12(4)
is important, but issues of monitoring should be addressed in Article
25. 12(5) should include economic abuse, and also insert “neglect” after
“abandonment.” Venezuela supports New Zealand’s proposal for 12(5).
It also supports Uganda’s proposal, although it should be placed in
the Preamble. References to sterilization or forced abortions of PWD
should not appear in 12(5). It is important for PWD to be able to make
choices about their bodies and States should be vigilant about this,
but this issue should be addressed in 25.
Syria supported Kenya’s proposal on armed conflict,
as well as Palestine’s amendment to refer to foreign occupation. Syria
is flexible as to placement of the proposal.
Lebanon stated that although the first part of 12(1)
is preambular in nature, the text is strengthened by retention of this
language. In 12(3), “including economic, sexual exploitation and abuse”
should be inserted after “maltreatment or exploitation.” Economic exploitation
such as forced labor must be recognized in the convention.
Kenya supported Uganda’s proposal on forced sterilization
and abortion in 12(5). Uganda’s proposal should be amended to “shall
ensure” rather than “reaffirm.”
Canada welcomed suggestions to streamline 12 and remove
repetition. Canada supports proposals to delete the first sentence of
12(1) or move it to the Preamble. The EU’s revised proposal for 12(2)
is something Canada could support at this stage. Suggestions to reference
and provide support to family members, e.g. in 12(3) are of concern,
as they detract from the proper focus of the convention which is PWD
themselves. Canada supports South Africa’s proposal that a reference
to armed conflict be placed elsewhere, perhaps in the Preamble. Canada
reiterates its proposal that “ensure” in 12(6) be replaced with “encourage,”
for reasons provided by South Africa.
China noted that Article 12 needs to be streamlined.
The first sentence of 12(1) should be deleted as it repeats 12(3). Regarding
12(6), the Working Group text is a good basis. China does not support
the two paragraphs proposed to follow 12(6), as they are not helpful
in strengthening the focus of the article and could lead to controversies.
Republic of Korea noted that PWD and their representative
organizations must be utilized in effectively preventing, identifying
and combating violence and abuse. For this reason, “education of persons
with disabilities and support to persons with disabilities and their
representative organizations to effectively monitor and combat violence
and abuse” should be added at the end of 12(3).
Japan supported the removal of 12(1) to the Preamble.
Caution should be taken in drafting to not stereotype PWD as vulnerable
and necessarily targets of abuse. The monitoring provisions in 12(4)
are of particular importance, because institutions should be “safe havens”
for PWD. Japan will study the EU proposal carefully.
Serbia & Montenegro welcomed proposals from the
EU and New Zealand, which hopefully can be merged, as well as the Canadian
proposal. It supports the removal of the first sentence of 12(1) to
the Preamble, and in the second sentence addition of “abandonment” by
Korea, “mental and physical abuse” by Mexico, and “economic exploitation”
by New Zealand. The Kenyan proposal on armed conflict is welcome, but
should be placed elsewhere. Coverage of armed conflict should not unnecessarily
duplicate the Geneva Conventions or other humanitarian law.
Costa Rica supported removal of 12(1) to the Preamble.
It supports the proposals made by New Zealand, especially for 12(4).
It must be studied further, but in principal Costa Rica supports the
EU proposal from AHC3. Both armed conflict and natural disasters should
be addressed, and it supports the proposals of Kenya and Palestine,
though has concerns regarding placement. Article 8 (right to life) is
not the place for that provision, and ideally armed conflict should
appear in a separate article or be retained in 12. It supports the Ugandan
proposal for 12(6).
Bahrain supported the deletion of 12(1), and its removal
to Article 4 on general obligations. Paragraphs 12(2), (3) and (4) should
be moved to Article 11, and the title amended to read, “The right not
to be subjected to torture, cruel, inhuman or degrading punishment.”
United States opposed inclusion of a sentence on armed
conflict, which already appears in Preamble (p).
Israel stressed PWD are very vulnerable to violence.
Inaccessible investigative and legal processes deny PWD the opportunity
to be heard and to provide full statements and evidence. Offenders anticipate
they will not be successfully prosecuted, leading to more abuse of PWD.
Article 12 should include provisions making investigative and judicial
procedures accessible to PWD, and States should ensure the accessibility
of legal proceedings. Israel’s proposal for 12(6) to address these concerns
is available at: http://www.un.org/esa/socdev/enable/rights/ahc4da12.htm
Sierra Leone noted it is important to distinguish between
those disabled as a result of armed conflict, and PWD who find themselves
in need of assistance during situations of armed conflict and natural
disasters. The treaty should address how to help this second group and
not just in the Preamble.
Jordan supported the position of Sierra Leone that
reference to armed conflict be included in the Preamble as well as elsewhere
in the convention.
The Chair opened the floor for NGOs.
The Disability Caucus expressed concern that discussions
of Articles 11 and 12 included proposals permitting institutionalization
and forced interventions for PWD. The treaty should protect, promote
and ensure the rights of PWD and not legitimize violations of rights.
The Caucus introduced a revised proposal for 12, available at: http://www.un.org/esa/socdev/enable/rights/ahc4idupdate.doc
Disabled Peoples’ International supported proposals
on training and information to prevent incidences of violence and abuse.
It supports New Zealand’s proposal for 12(5), as “it is of paramount
importance that any support offered in this context promotes and respects
the inherent dignity and autonomy of the person.”