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Daily summary of discussions related to Article 12

FREEDOM FROM VIOLENCE AND ABUSE

UN Convention on the Rights of People with Disabilities
Fourth session of the Ad Hoc Committee - Daily Summary
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Volume 5, #4
August 26, 2004

AFTERNOON SESSION

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 12(1).

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 resources.”

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.”