ICC: How to deal with NHRI

Today was my last working day in Geneva. Tina Minkowitz, Hege Orefellen and I had an appointment with Katharina Rose of the ICC (International Coordinating Committee of National Institutions for the Promotion And Protection of Human Rights). I had been looking forward to this meeting, because I had had a very unpleasant meeting with the Dutch Human Rights Institution recently, where they didn’t want to take a stand against forced treatments, and in that way ignoring the recommendations of the Special Rapporteur on Torture (and the CRPD, but the Netherlands did not ratify the CRPD yet). I was hoping to learn more on how to deal with this at this meeting.

Katharina from the ICC gave an overview of the work of the ICC. The ICC is a global network for the National Human Rights Institutions (NHRIs) and its role is to help NHRIs on how to strengthen their work and effectiveness, their mandate and their accordance to the Paris Principles, meeting UN requirements and the CRPD. A good NHRI is effective, has no state involvement (only by budget), and has a good mandate oriented on human rights. About the NHRI identity: it’s not a state body, not a public mechanism, not an NGO nor a superNGO. It is a unique mechanism, complementary to Civil Society Organizations and the State, and is supportive to human rights. NHRIs have a special position: they can perform investigations next to police investigation, handling individual complaints, preparing reparations to victims, and they sometimes can have some “superpower”. She illustrated this by an example from Uganda, where there was a meeting of human rights defenders, and the police came in, but NHRI could prevent that actions were taken against these human rights defenders. It is the duty of the NHRI to help the state to fulfil the obligations on the human rights treaties.

After this introduction we talked about our concerns. We have found that some NHRIs are not really helpful, and some might even form an obstacle for the implementation of human rights. For example the Danish NHRI started a kind of campaign against the Draft General Comment on Article 12 of the CRPD, in which they were asking (and even called on more states) for a less radical interpretation of the CRPD, especially regarding forced treatments and substitute decision making (guardianship).
We explained that the Draft General Comment gives an explanation and interpretation of article 12 of the CRPD, which is about legal capacity for all persons with disabilities, which includes persons with psychosocial disabilities. This is a big change in the daily reality, a so-called paradigm shift is happening at the moment, and some move, and some obstruct. Some attitudes isolate and undermine the CRPD, and these attitudes can also exist amongst NHRIs. However, we, as users and survivors of psychiatry, need to be able to count on the NHRIs to promote changes and not go below or against the human rights standards. The NHRI should not uphold the legalized impunity of psychiatry.

The ICC Geneva Representative responded by telling us about the European Working Group of NHRI’s on the CRPD. It could maybe be possible for them to discuss the Danish response there. Thematic working groups, such as the European Working Group of NHRI’s on the CRPD, are feeding into process of effectiveness of NHRIs. In case of substantive complaints about the functioning of an NHRI, it may be necessary to consult with that particular NHRI and find out why they oppose. Because of the unusual role and position of NHRIs, ICC could engage with them directly, or it could possibly be done by the OHCHR focal point on disability (Facundo Penillas Chavez). In any way, for Civil Society Organizations it is always important to engage with the National Human Rights Institutions to raise awareness.

I then explained the situation in the Netherlands. I said that the representatives of the Dutch NHRI had explained to me that according to them the UN materials are not directly useful, and that the European Court defines the practices and circumstances which constitute human rights violations in practice (which is very disrespectful to the UN). The Dutch NHRI also claims that under the international law they don’t see a legal ground to be against forced treatments, and also the fact that I have gotten an Observation by the Special Rapporteur on Torture, still seems to make no difference to them.

Katharina Rose from ICC then replied that the Dutch NHRI is a very young NHRI institute, and gained their A-status last year. They still need to learn to work, and she mentioned that the response of the Dutch NHRI to the Draft General Comment had been good and supportive.
I then explained that the Dutch NHRI seems to have 2 faces, and that I think they want to be “liked” by the top, but they seem to have less interest in civil society organizations (CSOs). Katharina then said it was the role of CSOs to remind the NHRI of their role. She said that one of the limitations of the NHRI is that they have a very broad scope, and therefore they may lack specific knowledge. She really made us feel like we were “attacking” the NHRIs, and she was emphasizing that we should not be destructive but rather choose for constructive engagement.

I then got a bit more emotional and explained that for about 20 years I am trying to access justice with my personal case, but it seems impossible, and even the Dutch NHRI refused to take on my complaints of long term solitary confinement and other human rights violations. I have sent them the report on Torture in Health Care Settings by the Special Rapporteur on Torture in 2013, I have pushed for recommendations by the CAT-Committee, and I even got an Observation on my personal case by the Special Rapporteur on Torture and the Special Rapporteur on the Right to Health. And still the Dutch NHRI isn’t embracing the human rights standards against forced treatments. What should I do then? I need their support, but I am alone. I have mobilized many mechanisms and sent all types of information. In my opinion I am reaching a critical point regarding the NHRI in the Netherlands. NHRIs need to comply to the Un standards, but the Dutch NHRI simply says in response to the abolition of forced treatments “we don’t read the UN texts that way”, and they turn it into a kind of word-game or point at Strasbourg. I have tried already so many things to raise awareness. If even the Special Rapporteur’s Observation is disregarded, then what? What am I supposed to do? I DID try to engage with them, but what if they don’t want to listen? I was again crying when I said this. The powerlessness and despair on this issue is really big for me.

Katharina then echoed the fact that a mandate with a broad scope has its limitations,
which may mean that on some issues there is no specific knowledge on a national level. The question is: how to make them consider these issues? Regular consultation and thematic working groups could be useful to raise awareness. And of course Civil Society wants the NHRI to speak out, but sometimes NHRIs have a different role.

Katharina explained that the annual meeting of NHRIs had just taken place in March, which had also included a side-meeting on the CRPD, organized by Austria, Australia and Northern Ireland. Disability is an issue that ICC wants to put forward, especially regarding procedures and monitoring (CRPD art 33).

If there are any concerns on compliance of an NHRI, then this should be demonstrated by using the Paris Principles. The Subcommittee for Accreditation of NHRI’s, which reviews the process and rules of procedure, does consider submissions from CSO. So we are welcome to send in our concerns if needed. The CSO submissions should not be about personal issues but be based on the Paris Principles, such as representivity of the issues, cooperation with CSO and cooperation with international mechanisms, such as for example the Special Rapporteur on Torture. The ICC NHRI network has a website with more information: www.nhri.ohchr.org

So to conclude: CSO can write a “review report” on NHRIs adherence to the Paris Principles. It could also be considered to start a dialogue with the NHRI regarding the responses on the Draft General Comment, which could be bilateral by ICC or a focal point or a more global discussion in the European Working Group on the CRPD, and another option could be to include the CRPD secretariat to deal with these issues constructively. This was useful information to me. Now I feel no longer powerless when it comes to dealing with national Human Rights Institutions. That is great.

After this meeting I went to Palais Wilson again, to see if there would be anybody who would like to talk about the rights of persons with psychosocial disabilities. It was lunchtime, and Tina and Hege had other plans, so I went alone. I sat outside and then Theresia Degener, CRPD Committee member joined me, and we had a nice chat. I couldn’t join the CRPD sessions, because these were private today. I then was joined by Birgit van Hout, an OHCHR staff member. She was Belgian, so we spoke Dutch/Flemish, and I told her about the shocking horrible violent death/murder of Jonathan Jacob, a person with psychosocial disabilities in Belgium. http://www.canvas.be/programmas/panorama/server1-4f4f0310%3A13bae8811da%3A-3cfb
I told her about my long personal struggle, and again I became emotional when I spoke about the recognition users/survivors get at the UN, and how much the report of the Special Rapporteur on Torture Mendez (2013), my Observation, and the Draft General Comment on Article 12 of the CRPD meant to me. How much it is needed that something changes.
She then said that she really appreciated my view, and said it could maybe be useful to use my voice in the communication of the UN. She said: The UN is sometimes criticized that they are standing so far away from the people, but your story proves otherwise. I agreed on that, and she gave me her card. I think it would be great to use this opportunity, this could really be a win-win situation. Again I got this great feeling again.

The UN makes me so happy. The national context can be so depressing. I remember that I was really upset and angry before I came to Geneva, because the government of the Netherlands denied my complaints and the letter of the UN Special Rapporteur so bluntly. And then also the NHRI was not supportive. I was so desperate and I felt lost, as if my last resort had also failed. So I was very happy to go to Geneva, because here I think and talk at another level, and I needed that, to sort out the many impulses I got lately. And it worked. I feel much better. Not upset, but happy. And very tired too. It is deep in the night. My last night in Geneva…which used to be “the city of snobs” for me, but something has changed. I start to feel at home here.
It has been a really great week with the CRPD Committee and my lovely international friends/colleagues of the World Network of Users and Survivors of Psychiatry (www.wnusp.net). I really hope that the Draft General Comment on article 12 will be adapted. I will follow that online. It is a pity that I have to go away from here tomorrow, but I need to go to a meeting with the Dutch NHRI and a national conference, so I can’t stay. I wish the CRPD Committee good luck this week. I’m going home tomorrow.