Menu

Medical Whistleblower Advocacy Network

Human Rights Defenders

“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”

 Universal Declaration of Human Rights

Article 1

Visitors

774458

“Victims should be treated with compassion and respect for their dignity. 

They are entitled to access to the mechanisms of justice and to prompt redress,

as provided for by national legislation for the harm they have suffered.”

U.N. Victims Declaration, 1985, paragraph four

 

Who is a Victim?

Article 1 UN Victim’s Declaration 1985 defines a victim under International Law as:

“Victim of crime is any person, or group of persons, that individually or collectively,

has suffered harm, including physical or mental injury, emotional suffering,

economic loss or substantial impairment of fundamental rights, through acts or omissions

that are in violation of criminal laws operative within Member States,

including those laws proscribing criminal abuse of power.”

 

What about indirect victims?  UN Basic Principles and Guidelines (2005)

“Persons who individually or collectively suffered harm,

including physical or mental injury, emotional suffering, economic loss or

substantial impairment of their fundamental rights, through acts or omissions

that constitute gross violations of international human rights law,

or serious violations of international humanitarian law. 

Where appropriate, and in accordance with domestic law, the term ‘victim’ also

includes the immediate family or dependants of the direct victim and persons

who have suffered harm in intervening to assist victims in distress or to prevent victimization.”

In other words, witnesses, dependents of a direct victim, friends and other relatives, non-governmental organizations (juristic persons)

 

“In honouring the victim’s right to benefit from remedies and reparation,

the international community keeps faith and human solidarity with victims,

survivors and future human generations, and reaffirms the international

legal principles of accountability, justice and the rule of law.” 

Preamble, E/CN.4/2000/62

Victim's Rights

 

 

Victim’s Rights and Needs: Requirements for a Victim’s Rights System

 

 

 

 

  • Compensation
  • Redress
  • Testimony
  • Truth
  • Acknowledgment
  • Memory
  • Reparation
  • Justice
  • Prevention (Never Again!)

 

JUSTICE

 

 

 

“As I've gotten older, I've had more of a tendency to look for people who live by kindness, tolerance, compassion, a gentler way of looking at things.“

~ Martin Scorsese

 

 

Victims of Torture, Cruel and Degrading Treatment

The United States of America signed the UN Convention Against Torture (CAT) and, therefore, has an obligation to investigate, prosecute and punish those who commit torture.  We believe in our systems as effective tools.  

However, in reality, our society suffers deep-seated prejudice toward the weak or powerless; there is a special stigma against persons who claim psychological injury and who need to seek compensation or support.  

Governments reflect the pervasive reactions to the horror of torture: denial, indifference, avoidance and repression are common.

Impunity of the perpetrators may prolong or, in some cases, may deepen the mental scars borne by the victim or by members of their families, as denial of the wrong makes psychological healing difficult.  To obtain justice through the legal system, the torture victim is expected to testify about the violation suffered in order to create a public record of the event.  While this truthful telling may have a reparative value for many victims, it may also be deeply traumatic, triggering emotional wounds.  In addition, those who suffer from the mental anguish of torture do not necessarily show physical evidence of it.  Thus, perpetrators seeking to evade accountability try to deny the extent of their victims’ trauma and suffering.  To start the healing process, it is necessary to acknowledge the pain and the wrongs suffered, and to put in place proper protocols to stop the abuse from recurrence.

Often a liberal antidote of experience supplies a sovereign cure for a paralyzing abstraction built upon a theory.

Benjamin Nathan Cardozo

Source: Paradoxes Of Legal

Emotional victim impact statements during the sentencing of Lee Vert Brown in Judge James Burge's court.

"All major religious traditions carry basically the same message, that is love, compassion and forgiveness the important thing is they should be part of our daily lives."

The Dalai Lama

Long term effects on survivors/victims of abuse

Torture is the calculated physical and psychological assault on the individual, a practice used to instill fear, punish or degrade, to dehumanize, or to obliterate the self. It is often said that anyone who has been tortured remains tortured, long after the physical wounds have healed. Torture is the deliberate infliction of severe pain by one human being against another.  It leaves particular kinds of mental and psychological scars. This trauma is different from other traumas because torture is a violation committed in secret and in spite of official denial.

 

Many believe that torture only occurs in the most repressive regimes.

In reality, torture is widespread in all parts of the world. Although it is often perpetrated by police or security forces, it can also be carried out by armed forces, detention authorities such as immigration officials, hospital staff, or prison wardens. Torture can be physical or psychological.  New methods of torture are, unfortunately, invented every year.  Many are most familiar with physical torture such severe beatings, extraction of nails or teeth, burns, electric shocks, suspension, suffocation, excessive light, heat, cold or noise, sexual aggression (rape and other sexual violence), forced nudity, isolation and sensory deprivation, mock executions or simulated drowning.  

 

However, psychological torture can be as traumatic and inflicts egregious harm.  The psychological wounds of both physical and psychological torture last a lifetime. The coercive methods of Straight Inc. and other abusive residential treatment centers were designed to obliterate the sense of self so as to instill fear and force obedience to authority in young teens.

 

Abusive methods of Straight Inc. included sleep deprivation, beatings, sexual humiliation, sexual assault, prolonged sitting or standing in forced positions, isolation and detention for prolonged and indefinite periods of time, forcing one teen to abuse another, and prolonged denial of rest, sleep, food, water, adequate hygiene.  These same forms of abuse are utilized in many other residential treatment centers.

Many victims continue to suffer in silence.   Torture victims commonly report feelings of fear, guilt, shame, anger, disillusionment, insecurity and humiliation. For victims of torture, finding the courage to come forward and speak about what happened to them is very difficult. This is true for the many thousands of US children who were physically and psychologically abused and sometimes sexually abused in the program called Straight Inc. What happened behind the closed doors of Straight Inc., Roloff Homes, WWASPS, Teen Challenge and other programs is deeply personal and highly traumatizing.  Speaking about it can evoke for survivors a range of emotions because the memories are triggers for retraumatization.  Survivors are reluctant to speak publicly and may not have fully revealed their experiences to families and/or friends.  In some instances, they may not have come to terms with it themselves.

Survivors of torture find it very challenging to heal and try to move forward with their lives. Many victims from Straight Inc. and other abusive teen centers express frustration that, despite the fact that their torture occurred and was verified, it has not been publicly acknowledged. Survivors come away with different expectations of what constitutes justice. Some speak of the importance of criminal prosecutions, while others speak about civil compensation, rehabilitation or prevention of recurrence.  All of them realize that there is a need to restore the sense of dignity and control that was taken from them when they were tortured.

 

Remembering Wrongs

The U.S.A. or any nation cannot indicate to potential perpetrators of human rights violations that, over time, their actions will be forgotten.  The U.S.A. should not deny to victims and their families the comfort of knowing that their suffering is recognized.  Facilitators of past injustice, who protect perpetrators as if they are entitled to immunity, seem intent to deny the past and its implications.  They seek to place blinders on our government leaders about the resultant future.  This “blindness” is not a pathway to national security that can ensure the safety and protection of America’s citizens.  To follow existing patterns into greater disaster means we do not learn from our mistakes and make the necessary changes to prevent similar problems in the future.

The survivors/victims of treatment program abuse that enjoyed tolerance under official governance have suffered retaliation for exposure of the inconvenient truth.  Advocates for silent victims know that, while dwelling on past injustice cannot complete healing, the acknowledgement of what happened is necessary for redress.  Human rights defenders tell the truth, despite risks to their personal situations. Their efforts ensure the right of the public to be informed and for leaders to govern through informed decisions. 

Without access to protections of due process, those who expose human rights abuse are punished for the exercise of civil and political rights. Our U.S. judicial system, having become too often a venue that denies individuals the expected standards of justice, can be used by those in power as an instrument of repression to silence dissent. We desperately need the Rule of Law, but the legal system has been and can be manipulated to use against the people.

While there is no universal convention dealing with the rights of victims of conventional crimes, in 1985 the United Nations General Assembly adopted the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.  The text had been approved through consensus by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders. To promote implementation, a Guide for Practitioners Regarding the Implementation of the Declaration was prepared.  The United Nations Economic and Social Council, by resolution 1990/22 of 24 May 1990, invited the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders to widely distribute the Guide.

It is useful to review the Committee of Ministers Recommendation No. R (85) 11, issued to Member States of the Council of Europe on the Position of the Victim in the Framework of Criminal Law and Procedure, 1985. 

We cannot afford to endorse political compromises that give rise to de jure or de facto amnesty for perpetrators of torture when the right to reparation for victims of wrongful action is a well-established principle of international law.   (Review “The right of torture survivors to reparations as a matter of international law.” Chorzow Factory Case (Germany v Poland), 1928, PCIJ, ser. A, no. 17, p. 47.)

Under UN guidelines, every nation State must ensure that its legal system provides prompt and effective legal procedures for reparation to victims of human rights abuse.  

Applicants for reparation may include individual victims or a group of victims, the immediate family or the dependents of victims, or even “persons having a special relationship to the direct victims.”  The measure of reparation should be expeditious and fully effective.

Such reparation should remove or redress the consequences of violations, and may serve the purpose of prevention. Reparation shall be in proportion to the violation.  No statute of limitation should apply for human rights violations as long as an effective remedy is not available.  The possibility and procedure of reparation should be widely publicized, and the applications for reparation should be diligently dealt with within an appropriate time period. Reparation should include restitution, defined as the re-establishment of the situation that existed before the violation; compensation, defined as redress for economically assessable damage; rehabilitation, inclusive of medical, psychological, legal and social services; restored sense of satisfaction and guarantee of non-repetition.

U.S.A. class-action lawsuits have already changed the world of reparations under international law by making it possible for victims to win sizeable awards and the recovery of long forgotten assets.  While it is notoriously difficult to measure non-pecuniary losses such as pain, suffering and emotional distress, the issue of property restitution could produce equally numerous challenges.  Ideally, the reparation should be sufficient to allow the victim to be compensated and feel rehabilitated.




Reference 

 

Guide for practitioners regarding the implementation of the declaration of basic principles of justice for victims of crime and abuse of power, report: item 7 of the provisional agenda for the eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990 written by Joanna Shapland, Published 1990 by United Nations in [New York]. OHCHR.org, www.ohchr.org/Documents/Publications/training9chapter15en.pdf.

International and human rights infrastructure

 

Universal Declaration of Human Rights, Article 5 states, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

In 2006, CAT recommended that the U.S.A. ensure that the Convention applies at all times, whether in peace, war or armed conflict, and that the provisions of the Convention expressed are applicable to "territory under the State party's jurisdiction," which applies to all persons under the effective control of its authorities. 

The Committee against Torture (CAT) invited the U.S.A. to reconsider its intention not to become a party to the Rome Statute of the International Criminal Court.  CRC made a similar recommendation. 

As of May 30, 2011 the United States does not have a national human rights institution accredited by the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights.  CERD recommended that the U.S.A. consider the establishment of a national human rights institution in accordance with the Paris Principles.  CRC and the Working Group of experts on people of African Descent made similar recommendations. 

CERD recommended that the State ensure a coordinated approach toward the implementation of the Convention at the federal, state and local levels. The United Nations (CAT) noted that the U.S.A. had a federal structure and had an obligation to implement the Convention against Torture in full at the domestic level.  Likewise, CRC recommended strengthening coordination in the areas covered by OP-CRC-SC, both at the federal and state levels.  

The International Covenant on Civil and Political Rights, including the right to life and freedom of association and expression, should be protected from violations not only by State agents, but also private persons or entities.  (Human Rights Committee, general comment No. 31 on article 2 of the Covenant on the nature of the general legal obligation imposed on States parties to the Covenant, 26 May 2004.)

A/RES/58/178 of 22 December 2003 The United Nations Charter and The Universal Declaration of Human Rights, and the General Assembly resolution 53/144 of 8 March 1999, adopted the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, known as the Declaration on Human Rights Defenders and subsequent resolutions.

The United States has a responsibility in relation to actions and omissions of non-State actors.  Article 12, paragraph 3, of the Declaration, was also reiterated by numerous human rights bodies, the Human Rights Committee and the Inter-American Commission on Human Rights.

UN CAT, Article 1. 1 “For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.  It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

The Statute of Rome

Under the Rome Statute (International Law) "Enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.”

The Statute of Rome had included rape in its definition of crimes against humanity, but the Foca rape case made that language a reality.  After the court's decision in the Foca case, one commenter noted that, "Now we say rape is a crime, a crime against humanity, or a war crime or a constituent part of genocide."  The ICC Statute is important because it expands the coverage of crimes against women to more than just rape.  The ICC statute also makes clear that such crimes as sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and sexual violence are all punishable under international law.

It is pertinent to review “The right of torture survivors to reparations as a matter of international law.” Chorzow Factory Case (Germany v Poland), 1928, PCIJ, ser. A, no. 17, p. 47.

"… where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused."

(Selmouni v France, para. 87)

Stop Retaliation Against Human Rights Defenders

 

United Nations Declaration & International Law Related to Defenders of Human Rights: Articles 1, 5, 6, 7, 8, 9, 11, 12 and 13 of the United Nations Declaration provide specific protections for human rights defenders, including the following rights:

❖ To seek the protection and realization of human rights at the national and international levels;

❖ To conduct human rights work individually and in association with others;

❖ To form associations and non-governmental organizations;

❖ To meet or assemble peacefully;

❖ To seek, obtain, receive and hold information relating to human rights;

❖ To develop and discuss new human rights ideas and principles and to advocate their acceptance;

❖ To submit criticism to governmental bodies, agencies and organizations concerned with public affairs; also, proposals for improvement of their functions, and information that draws attention to any aspect of their work that may impede the realization of human rights;

❖ To make complaints about official policies and acts related to human rights and to have such complaints reviewed;

❖ To offer and provide professionally qualified legal assistance or other advice and assistance in defense of human rights;

❖ To attend public hearings, proceedings and trials in order to assess their compliance with national law and international human rights obligations;

❖ To unhindered access to and communication with non-governmental and intergovernmental organizations;

❖ To benefit from an effective remedy;

❖ To the lawful exercise of the occupation or profession of the human rights defender;

❖ To effective protection under national law when necessary to react against or oppose, through peaceful means, acts or omissions attributable to the State that result in violations of human rights;

❖ To solicit, receive and utilize resources for the purpose of protecting human rights (including the receipt of funds from abroad).

US Federal Witness/Victim Assistance

Federal victims’ services and rights laws are the foundation for the AG Guidelines. The core statutes are the Victims’ Rights and Restitution Act (VRRA), 42 U.S.C. § 10607 (2006) (containing mandatory services), and the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771 (2006 & Supp. III 2009) (containing court enforceable rights), but additional rights and requirements exist in other statutes and rules of criminal procedure.

http://www.justice.gov/olp/pdf/ag_guidelines2011.pdf

http://www.justice.gov/usao/eousa/foia_reading_room/usam/title3/7musa.htm

United States Law

The United States Constitution and state Constitutions

The Bill of Rights – also State Bills of Rights

The United States also has Federal Statutes in regards to torture, cruel and degrading treatment.  Title 18 Chapter 113 C Torture

42 U.S.C. ' 13031[i]  [ii] All Federal law enforcement personnel have obligations under State and Federal law to report suspected child abuse.  

A crime victim may also file an administrative complaint if Department employees fail to respect the victim’s rights.  The Attorney General must take and “investigate complaints relating to the provision or violation of the rights of a crime victim” and provide for disciplinary sanctions for Department employees who “willfully or wantonly fail” to protect those rights. (18 U.S.C. ' 3771(f)(2)) [iii]

 

United States of America obligations under International Law

United Nations Declaration on Human Rights Defenders [iv]A/RES/58/178 of 22 December 2003 The United Nations Charter and The Universal Declaration of Human Rights, and the General Assembly resolution 53/144 of 8 March 1999  CAT - ratified Oct. 21, 1994,  

The UN Convention against Torture[v], 

ICERD - ratified Oct. 21, 1994, The International Convention on the Elimination of All Forms of Racial Discrimination  [vi]

ICCPR - ratified June 8, 1992, The International Covenant on Civil and Political Rights [vii] 

The Palermo Protocol[viii] - ratified   

 The Geneva Conventions[ix] or Aug. 12, 1949 and additional protocols I and II - all ratified  

OP-CRC-SC[x] - ratified Dec. 23, 2002 (art. 3 para 1 and 4 para 1)

 OP-CRC-AC[xi] ratified Dec. 23, 2002

 

Universal instruments

International Covenant on Civil and Political Rights, 1966

International Covenant on Economic, Social and Cultural Rights, 1966

International Convention on the Elimination of All Forms of Racial Discrimination, 1965

Convention on the Elimination of All Forms of Discrimination against Women, 1979

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984

Convention on the Rights of the Child, 1989

United Nations Convention against Transnational Organized Crime, 2000, and Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the Convention

Universal Declaration of Human Rights, 1948

Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985

Vienna Declaration and Programme of Action, 1993 

 

Regional instruments

African Charter on Human and Peoples’ Rights, 1981

American Convention on Human Rights, 1969

Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women, 1994

European Convention on Human Rights, 1950

European Convention on the Compensation of Victims of Violent Crimes, 1983

 

International standards

Convention on the Rights of the Child

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)

Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OP-CAT)

International Covenant on Civil and Political Rights

Standard Minimum Rules for the Treatment of Prisoners

Basic Principles for the Treatment of Prisoners

Declaration on the Elimination of Violence against Women

Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment

Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Code of Conduct for Law Enforcement Officials

Basic Principles on the Use of Force and Firearms by Law Enforcement Officials

United Nations Rules for the Protection of Juveniles Deprived of the Liberty

United Nations Standard Minimum Rules for the Administration of Juvenile Justice

Principles relating to the status of national institutions (The Paris Principles)

 

 

[ii]   Codes.lp.findlaw.com/uscode/42 http://codes.lp.findlaw.com/uscode/42/132/IV/13031.

[iii]  18 U.S.C. ' 3771(f)(2), Codes.lp.findlaw.com/USCode/18,     http://codes.lp.findlaw.com/uscode/18/II/237/3771.

[iv] United Nations Declaration on Human Rights Defenders OHCHR.org, http://www2.ohchr.org/english/issues/defenders/declaration.htm.

[v]  UN Convention Against Torture, OHCHR.org, http://www2.ohchr.org/english/bodies/cat/. 

[vi] OHCHR,  CERD,  OHCHR.org, http://www2.ohchr.org/english/law/pdf/cerd.pdf.

 

[viii]  United Nations Treaties,  CTOC, UNODC.org,  http://www.unodc.org/unodc/en/treaties/CTOC/index.html.

“Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around.”
 
― Leo Buscaglia

Medical Whistleblower Advocacy Network

MEDICAL WHISTLEBLOWER ADVOCACY NETWORK

P.O. 42700 

Washington, DC 20015

MedicalWhistleblowers (at) gmail.com

CONTACT

"Never impose on others what you would not choose for yourself."  Confucius

"It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat."

Theodore Roosevelt- Excerpt from the speech "Citizenship In A Republic", delivered at the Sorbonne, in Paris, France on 23 April, 1910