Upholding Human Rights Obligations for Individuals with Disabilities: An Underdiscussed and Persistent Failure

By Leah Bordlee

Many would argue that acts such as forced sterilization, persistent restrictions and solitary confinement and food deprivation are grave human rights violations. When such abuses are committed by or with the consent of state officials, it is often torture. However, these practices are often routine when it comes to treating people with disabilities.

Disability Rights International (DRI) has documented these abuses in private and government institutions in a number of countries including Serbia, Turkey, Mexico and even the United States. Manfred Nowak, UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, reiterated these results and referred to the serious abuse of people with disabilities as “invisible, unrecognized torture”. At least if this mistreatment does not constitute torture, it is still a clear violation of a number of human rights, including the right to health, the right to free movement, the right to freedom and the right to legal capacity in all areas of life, including whether medical treatment should be accepted.

What does torture mean?

There are four main elements leading to the recognition of an act as torture: intense pain, intent, purpose, and an act or omission by a government official. Prolonged use of restraint systems, as are common in the treatment of people with disabilities, can lead to muscle atrophy, life-threatening deformities, psychological damage or even organ failure and death. Unmodified electroconvulsive therapy (ECT) performed without anesthesia, muscle relaxant, or oxygen supply can cause more severe pain and serious medical consequences. Much of the other ill-treatment against people with disabilities has already been recognized as torture.

People with disabilities are the target of these serious abuses because of their disability. Whether the interventions are carried out with “good intentions” or under the guise of “medical necessity” is out of date, as less intrusive or painful treatment alternatives could often be used. In addition, there is a tendency for these acts to be performed without free and informed consent. Unmodified ECT and forced sterilization and abortions are examples of such acts. Eric Rosenthal, a DRI representative, states that any act committed on the basis of this discrimination fulfills the requirement of establishing torture.

Promote the concept of health refugees

Why do these grave abuses have to be recognized as torture? Reviving the ill-treatment of people with disabilities as torture can lead to better legal protection for people with disabilities and better access to legal remedies. In addition, a torture sentence can qualify the right to asylum on the basis of threats to life and liberty and other serious abuses if it is detained or treated by the state or state institutions. Refugee status is most commonly associated with those fleeing persecution of war, conflict, or government-sponsored genocide. It is a relatively new concept to look at refugee status outside of these common associations, but it is not unprecedented. There are increasing claims by LGBTI people to refugee status, which sets a precedent for the application of refugee status to people with disabilities.

In order to be recognized as a refugee, there must be “a well-founded fear of persecution on grounds of race, religion, nationality or membership of a particular social group or political opinion”. In the case of people with disabilities, they represent a social group that is often affected by social exclusion or stigmatization due to their disability. The abuses they suffer under state custody or in state institutions are the direct result of discrimination based on their disability, as they are carried out under the guise of treatment.

Claims to refugee status would protect these people from rejection or be sent back to their home country where they would face further abuse. Many refugees would have access to the same disability benefits as nationals so they could receive medical care and treatment that may not be available in their home country.

What about non-refugees elsewhere?

There is a serious lack of access to medical treatment for people with disabilities in many countries. Many people believe that disabilities are the result of sin, immoral behavior, or lack of faith. These factors cause many to seek treatment from traditional or religious healing centers, or are sometimes forced to turn to their families for care. In many countries, people with disabilities can face allegations of witchcraft. In one case in Liberia, six people, including three children, were chained to logs in a healing center over these types of allegations. At a religious institution in Kenya, a man with a psychosocial disability told Human Rights Watch: “I’ve been chained for five years. The chain is so heavy … I am not allowed to wear any clothes, only underwear. I have to go to the bathroom in a bucket. I eat porridge in the morning and if I’m lucky I can find bread at night, but not every night…. It’s not what a person is supposed to be. A person should be free. “People with disabilities who are mistreated by private actors do not have the opportunity to apply for refugee status. If individuals can only apply for asylum if they are persecuted by the state, what can be done to protect those who do not fall into this category?

The Convention on the Rights of Persons with Disabilities seeks to protect people with disabilities from serious abuse, but it seems clear that many states have disability policies that grossly violate basic human rights obligations. Organizations like Human Rights Watch and Disability International must continue to maintain international pressure on states. In addition, states must take positive action to address the issue of social stigma. There is an urgent need to devote more resources to mental health and disability services. Currently, countries spend an average of less than two percent of their health budgets on mental health services. Many of these abuses could be addressed by increasing the budget allocation to ensure proper monitoring and surveillance. Legislation related to people with disabilities who violate human rights obligations needs to be addressed and replaced. There is an urgent need to increase protection for people with disabilities and states must be held accountable for violations. Otherwise, severe abuse, torture, and even death will continue.

Leah Bordlee is a sophomore at the School of Diplomacy in New Orleans, Louisiana. She is a National Security Fellow, President of the International Law Society, and Senior Associate Editor in the Journal of Diplomacy. She is passionate about the constant pursuit of knowledge and strives to use that knowledge to make a positive global impact. Leah’s published work has focused on the importance of maintaining mental health and human rights obligations in international relations. You can find the pieces here: The Silent Pandemic: The Need to Prioritize Mental Health | Should human rights be a factor in a pandemic? | The Impact of President Trump’s Pardon on International Law