Reparations: It is Conceivable

Tina Minkowitz, Esq.
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Reparations for forced psychiatry is conceivable and is actually required under international law.  Recent developments at the UN make it easier to make this argument, as detailed below.

For the past decade, the United Nations has been developing its standards on the right to a remedy and reparation for violations of international law.  Many of us are accustomed to thinking of reparations as monetary compensation, but it is much more than that.

The UN’s Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Law and Serious Violations of International Humanitarian Law was adopted in 2005, and outlined the forms of reparation:  restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.

It is the collective measures, satisfaction and guarantees of non-repetition, that have always interested me.  Satisfaction includes, among other things, “effective measures aimed at the cessation of continuing violations” and “public apology, including acknowledgement of the facts and acceptance of responsibility”.

Those of us who have survived psychiatric incarceration and torture know that it is something we will live with our entire lives and many of us have dedicated our life’s work first and foremost to stopping the violations, not only so we ourselves will be secure but because we bear witness and want to remove this evil from humanity.  Reparation is the obligation of governments to do what we have already spent our lives working for.  It makes sense to call on governments and intergovernmental organizations to take responsibility for having allowed, legitimized and actively promoted and committed these human rights violations against countless numbers of individuals, also affecting their families and communities and permeating modern society.

Recently the Committee Against Torture adopted a General Comment that helps to clarify just which human rights violations qualify for reparation.  This may have been in question until now because the Basic Principles refer to reparation for “gross violations of international human rights law and serious violations of international humanitarian law.”  Which violations would be gross:  surely torture, but what about acts of inhuman and degrading treatment that haven’t been decisively recognized as torture per se?  Do we need to resolve that forced psychiatry amounts to torture, in order to qualify for reparations?

According to the Committee Against Torture, the answer is no.  Acts of inhuman and degrading treatment as well as torture are to be included in the obligation to provide redress to victims under Article 14 of the Convention Against Torture.  This follows on the Committee’s evolving jurisprudence that rejects unhelpful distinctions between the obligations pertaining to prevention of torture and those pertaining to prevention of ill-treatment.  (The Committee has been inconsistent in its approach to forced psychiatry but in at least one case urged a country, the Czech Republic, that psychiatric institutionalization and treatment should be based on free and informed consent, thus acknowledging that this falls under the scope of the CAT treaty and that violations amount to torture or ill-treatment.)

The Committee on the Elimination of Discrimination Against Women took a similar view in its General Recommendation No. 28 (see paragraph 32), saying that governments must provide reparation for any breaches of women’s rights under the CEDAW treaty, elaborating on the various forms of reparation named in the Basic Principles and Guidelines.

It is certainly justified to take a holistic view of the seriousness of obligations and the scope of reparations as the CEDAW and CAT Committees have done.  Discrimination against women can only be tackled comprehensively since it pervades all aspects of law and society in both public and private life.  Acts of torture cannot be distinguished from other ill-treatment without making decisions about the relative awfulness of harms in a realm that is horrific from beginning to end, which may be highly subjective depending on particular experiences, fears and imaginings of any individual.  (Recall in George Orwell’s novel “1984,” that the torture in “Room 101” was whatever the individual imagined as the worst thing in the world.)

Forced psychiatry in the broadest sense is a system of discrimination encompassing laws, policies, practices, services and customs, not only those establishing civil commitment with all its concomitant horrors of forced drugging, forced electroshock, psychosurgery, solitary confinement, physical and chemical restraints etc., but also discrimination in employment, housing, education and health care, and benefits systems that channel people into mental health ghettos rather than supporting individual self-determination in ordinary life.  Holistic and comprehensive measures need to be applied to not only take away the violent harms and cruel restriction of opportunities but also to re-set the baseline for people to create a different social practice, and if governments will not or cannot meet their obligations civil society has to step forward.  Actions of the Occupy/Decolonize movement such as Strike Debt and stopping foreclosure evictions are a good example, and our own Occupy Psychiatry (which my organization CHRUSP is a member of) is one place we can coalesce to work in this way.

Also, forced psychiatry in the way it happens cannot always be broken down into discrete violations.  Every person’s story partakes of some familiar elements, but in different combinations.  For me the horror of knowing I was going to be forced to take a neuroleptic and then having it happen was the fulcrum of the violation as a whole.  Maybe for someone else it is being placed in five point restraints, or being handcuffed and taken away in a police car in front of neighbors.  It is easy for me to analyze forced drugging with a neuroleptic as torture, and I have done so on numerous occasions in materials collected on the CHRUSP website (look at the videos on home page, and also in Resources and More Resources pages under Torture).  I have also analyzed some of the types of harm that flow from forced psychiatry, both in the short- and long-term, and other factors such as the nature of the intervention as altering mind and behavior, as factors to weigh in consideration of forced psychiatry as torture and ill-treatment, which support a conclusion that the complex harm of forced psychiatry as a whole amounts to torture (see Annex III to report of expert meeting on torture and persons with disabilities, on UN website).  Decisive recognition by UN experts and jurists that forced psychiatry is an act of torture is not necessary to invoke the right to reparation, but it would be a step towards reparation by treating us as credible witnesses, valuing our lives and well-being as equal in worth to other people, and sharing fully in our struggle for abolition.

In addition to being a form of torture, forced psychiatry violates other provisions of the Convention on the Rights of Persons with Disabilities, and the Committee on the Rights of Persons with Disabilities could address the right to reparation under that treaty as well.  The CRPD obligates governments “to adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention” (Article 4) and to “ensure effective access to justice for persons with disabilities on an equal basis with others” (Article 13).  These provisions can support the existence of the right to a remedy for violations of the CRPD that would include both individual and collective forms of reparation.  The Committee has already taken a holistic view of the measures needed to abolish forced psychiatry, including both repeal of commitment laws and creation of alternative supports to meet people’s expressed needs.  Reparation would have the added value of calling on governments to make a decisive commitment to change policy by acknowledging and taking responsibility for past wrongdoing.

The Special Rapporteur on Torture could also promote the right to a remedy and reparation for survivors of forced psychiatry.  During his term as Rapporteur, Manfred Nowak took the significant step of acknowledging that forced psychiatry is a form of torture and ill-treatment, and in particular that electroshock and mind-altering drugs such as neuroleptics are “intrusive and irreversible treatments aimed at correcting or alleviating a disability” that may constitute torture or ill-treatment when enforced or administered without the free and informed consent of the person concerned. (2008 report A/63/175.)  Special Rapporteur on Torture Juan Mendez is preparing a report on the subject of torture in healthcare settings, which will be an opportunity to add to the work of his predecessor and to take account of development in standards by the Committee on the Rights of Persons with Disabilities and by the Committee Against Torture since the 2008 report.  Invoking the framework of remedy and reparation could help to promote urgent action to abolish forced psychiatry as a widespread and systematic discriminatory practice of violations existing throughout the world.

Psychiatric survivors and allies can inform themselves about the right to a remedy and reparation and start making the arguments in advocacy.  Since the concept in international law is broader than the general public may be aware of, we need to find the right words that will appeal to a sense of justice and community-building.  In the United States we should also be mindful of other human rights struggles where reparation is warranted, such as reparations for slavery and reparations for genocidal policy and practices toward indigenous peoples, and respect their advocacy which predates our own and is part of the common struggle against injustice and oppression to which we all belong.

3 COMMENTS

  1. The long-term use of neuroleptics is described as “torture” by many people. And “compliance” reduces life expectancy by 25 years – a third of the average lifespan.

    If we multiply the *millions* of people who have been forced to take the drugs by 25 years, we are looking at “treatment”-related death that would make Hitler and Stalin proud.

    Is it time for reparations?
    Absolutely!

    And, “No. I’m not a scientologist.”

    Duane