العربية
Analysis Main Publications News The Yemen Review Publications Index

Yemen’s obligations to respect, protect, and fulfil the right to mental health

اقرأ المحتوى باللغة العربية

Submission to the UN Universal Periodic Review for Yemen

Submitted by: Sana’a Center for Strategic Studies
 Columbia Law School Human Rights Clinic
 Brown School at Washington University in St. Louis

Third Cycle
32nd Session
Human Rights Council
January-February 2019

I. Summary

  1. The Sana’a Center for Strategic Studies (Sana’a Center), Columbia Law School Human Rights Clinic (the clinic), and the George Warren Brown School, Washington University, jointly submit this report to inform the examination of The Republic of Yemen (Yemen) during its 3rd Universal Periodic Review. This submission focuses on international human rights and humanitarian law concerns related to Yemen’s obligations to respect, protect, and fulfil the right to mental health.
  2. Yemeni civilians are frequently exposed to a wide range of stressors, including air strikes, arbitrary detention, injuries and deaths of friends and family, threats and harassment from non-state armed groups, a cholera epidemic, food insecurity and famine risk, inability to access health care, and the non-payment of salaries. There is a high risk of pervasive poor mental health in Yemen, including major depressive disorder, anxiety, and post-traumatic stress disorder. These mental health conditions can have far-reaching consequences, affecting family relationships, physical health, domestic violence, education, the ability to work, and willingness to support peaceful measures to end conflict. Yet health services are minimal, and little action is being taken to mitigate and respond to the clear risk
  3. International human rights law protects the right to health, including the right to mental health.[1] Yemen has ratified all the major human rights treaties, including the International Covenant on Economic, Social and Cultural Rights,[2] the Convention on Rights of the Child[3] and the Convention of the Rights of Persons with Disabilities.[4] International humanitarian law also protects against certain harms to mental health.[5]
  4. This submission presents concerns regarding two issues: (1) the impact of war on the mental health of civilians in Yemen, and (2) the lack of attention to, and services aimed at promoting, mental health and psychosocial wellbeing in Yemen.[6] The submission also sets out questions for Yemen and recommendations to promote compliance with human rights and humanitarian law obligations.

II. Cause for Concern: Mental Health Risks in Yemen

  1. The average 25-year-old in Yemen has lived through 15 armed conflicts. The armed conflict in Yemen has directly and indirectly affected over 80 percent of the population.[7] Persons living in Yemen have faced widespread and frequent exposure to harm, violence and conflict, which, compounded by a context of neglect from the government, widespread insecurity, increased poverty, fractured social ties and a lack of basic social services, creates a serious risk of significant adverse mental health among the population.
  2. Yemeni mental health experts report a 40 percent increase in the suicide rate in Sana’a between 2014 and 2015, and an increase in psychiatric patients.[8] One of the few scientific studies on mental health found that 79 percent of children reported post-traumatic stress disorder symptoms, 70 percent had trouble sleeping and 63 percent had doubtful views of the future.[9]
  3. Even before the civil unrest that started in 2011, the population of Yemen experienced poor mental health conditions. There was a lack of appropriate and sufficient health structures, services and policies, and widespread stigma around mental health.[10] This was exacerbated by the ongoing civil war which began on September 21, 2014 with the Houthi take-over of Sana’a, and was compounded by the intervention, at the invitation of the Yemeni government, of the Saudi-led military coalition on March 26, 2015.
  4. As of late December 2017, there have been 9,245 conflict-related deaths and over 52,807 injuries reported. All sides to the conflict have carried out human rights violations in Yemen, including illegal detentions, airstrikes[11] and torture in prisons. These actions are particularly harmful to the health of survivors and their families and friends.
  5. In 2017, the UN declared Yemen to be the world’s largest humanitarian crisis.[12] As of January 2018, the UN estimates that there are 22.2 million people in need of humanitarian assistance or protection, an estimated 17.8 million are food insecure, 16 million lack access to safe water and sanitation and 16.4 million lack access to adequate healthcare.[13]
  6. According to the World Health Organization (WHO), in armed conflict generally, an estimated 17 percent and 15 percent of the population will suffer from depression and post-traumatic stress disorder (PTSD) respectively.[14] Research from other countries suggests that, without significant efforts to improve well-being, Yemen is at risk of seeing poor mental health continue for many years into the future,[15] with adverse effects on physical health, family cohesion, education, and participation in the workforce. Peace and reconciliation efforts are also at risk of being undermined, as research from other contexts has found that PTSD correlates to support for further violence.[16]
  7. In addition to war-related violence, various government measures, outlined below, have had a negative impact on mental health by affecting the “underlying determinants of mental health”:[17]
    1. Relocation of Central Bank and famine risk: The contraction of the economy is a contributing factor to hunger and the consequent negative psychological impact on individuals and families. The economy, already ravaged by the conflict, worsened in September 2016 when the Yemeni government relocated the Central Bank of Yemen from Sana’a in the north to Aden.[18] The relocated headquarters in Aden lacked professional staffing, institutional memory, networks and cash liquidity. This exacerbated the risk of famine by impairing commercial and governmental structures facilitating the trade of basic commodities.
    2. Public sector salaries: From September 2016, salaries for 1.2 million public sector employees were stopped, and were generally resumed in early 2017 in only government-controlled areas, with two to five months of delays.[19] An estimated 60 percent of public sector employees (720,000 people) remain without their salaries; with an average family size of seven to eight people, this means that an estimated over 5 million Yemenis have lost their main breadwinner. Retired public sector staff in all areas of Yemen have not received pensions since the relocation of the Central Bank. The lack of salaries and pensions has a significant effect on well-being and affects the abilities of millions of families to purchase basic necessities.
    3. Aerial, sea, and land blockade: Allies of the Yemen government, led by Saudi Arabia, have enforced air, land and seaports restrictions and obstacles to the entry of humanitarian and commercial imports to Yemen. Saudi Arabia has enforced restrictions on the movement of humanitarian aid and commercial imports and exports. Yemen relies heavily on imports for basic provisions such as food, medicine and fuel.[20] This has also led to a severe scarcity of medicines, and driven up the price of medicines that are available, compounding the tragedy and threatening the health conditions of civilians.
    4. Sana’a airport closure: Saudi Arabia closed the Sana’a International Airport on August 9, 2016; no reasonable justification was given for this move by either the Saudi-led coalition or the government of Yemen. This has affected the free movement of civilians and particularly impacted persons in need of medical treatment that is only available outside Yemen. These restrictions have led to an estimated 10,000 preventable deaths.[21]

III. Mental Health Services in Yemen

  1. The Ministry of Health and Population adopted a National Mental Health Strategy for 2011-2015, which included steps to promote mental health, improve treatment of disorders and address stigma and discrimination through community mobilization.[22] However, economic conditions and the disruption of public services following the 2011 uprising, the subsequent political crisis and the onset of full-scale war in 2015 led to the strategy being discontinued.[23] The Yemeni government has not made efforts to integrate policies or programs on mental health, and has viewed mental health as a non-priority.[24]
  2. The WHO’s Health Resources Availability Mapping System (HeRAMS) surveyed 3,507 health facilities in 16 of 22 governorates in Yemen and found that only 1,579 (45 percent) were fully functional and accessible, 1,343 (38 percent) were partially functional and 504 (17 percent) were non-functional.[25] The survey also found that 274 facilities had been damaged because of the conflict, including 69 facilities that were totally destroyed and 205 facilities partially damaged.
  3. To date, there has not been a detailed breakdown of the conflict’s impact specifically on mental health care facilities and access to services. The WHO HeRAMS survey found that among 3,507 health facilities, “services for non-communicable diseases and mental health conditions are only fully available in 21 percent of health facilities.”[26]
  4. There has also been a shortage of psychiatric specialists in Yemen since the start of the conflict. In January 2016, the WHO estimated that there were 40 psychiatric specialists in Yemen, most of whom were based in Sana’a. In December 2016, the director of the mental health program at the Ministry of Health suggested there were just 36.[27] There are 0.17 psychologists per 100,000 Yemenis.[28]
  5. In addition to limited health facilities and a lack of trained mental health professionals, the quality of available mental healthcare in Yemen has been a concern:
    1. There is a lack of specialized care for specific groups such as women, children, teenagers and the elderly, as well as addiction and chronic cases;[29]
    2. Mental health is not integrated into the primary healthcare system. Many Yemenis are unable to access treatment when they first make contact with the healthcare system;[30]
    3. There is no official protocol or standardized guidance for mental health diagnosis or assessments which are relevant to a Yemeni social and cultural context;[31] and
    4. The cost of medication is prohibitive for many Yemenis and the use of electroconvulsive therapy remains widespread.[32]

IV. Legal Frameworks and Issues

  1. International human rights and humanitarian law create protections for mental health.
  2. The Government of Yemen has acceded to all the major international conventions relating to human rights.[33] The Government of Yemen has also ratified the main Geneva Conventions.[34]
  3. Under international human rights law, everyone has the right to the enjoyment of the highest attainable standard of physical and mental health.”[35] States have a duty to respect, protect and fulfil the right to mental health.[36] This includes refraining from interfering with anyone’s right to access mental health care, preventing and redressing interferences with the right by third parties (including hospitals and psychiatric institutions), and taking positive measures to provide mental health care facilities, goods and services.[37]
  4. The UN Committee on Economic, Social and Cultural Rights’ General Comment 14 explains that the right to mental health requires that mental health care goods, facilities and services be available, accessible, acceptable, of good quality and non-discriminatory.[38] The right also requires that everyone has information about, and the ability to participate in, decisions about their mental health and well-being.[39]
  5. Mental health ‘goods’ include essential medicines for the treatment of psychosocial disorders.[40] Mental health ‘facilities’ include primary, secondary and specialized care clinics providing mental health ‘services’, including diagnoses, treatment, rehabilitation and recovery related to mental illnesses and psychosocial difficulties.[41] Facilities also include the institutions and support required to educate and train qualified health professionals, psychologists, psychiatrists, psychiatric nurses, community health and social workers and guidance counsellors.[42]
  6. In addition, states must address basic living conditions which are prerequisites to good health.[43] These conditions, known as “underlying determinants”, may be physical (such as safe drinking water)[44] or social (such as promoting non-violent and respectful relationships).[45]
  7. The right to mental health is also interdependent with other human rights.[46] For example, violations of the rights to be free from torture or arbitrary detention, or of the rights to work or food,[47] risk undermining mental health and well-being.[48],[49] Similarly, violations of the right to mental health may undermine the ability of persons to fully exercise their civil and political rights.[50] Additionally, individuals suffering from serious mental illnesses or disabilities can be extremely vulnerable to violations of their rights, particularly in institutional care, where they may face humiliating and degrading treatment, coercion or sexual abuse.[51]
  8. States also have non-negotiable minimum core obligations to:
  • Provide non-discriminatory access to mental health goods and services,[52] with a special emphasis on the rights of groups who may experience marginalization or vulnerability, such as women, children, older persons, persons with disabilities and refugees and internally displaced populations.[53]
  • Ensure access to the underlying determinants of mental health,[54] including minimum essential food, basic shelter, housing, sanitation and an adequate supply of safe and potable water;[55]
  • Adopt and implement a national mental health strategy;[56]
  • Allow meaningful participation of affected persons and stakeholders in designing and/or deciding on public policy on mental health;[57]
  • Conduct periodic review and monitoring of the right to mental health;[58]
  • Provide education and access to information on mental health, including on methods of prevention.[59]
  1. Under international humanitarian law, which applies to all parties to the conflict in Yemen, medical personnel, units[60] and transport may not be the subject of attack or harm,[61] and should be allowed to carry out their exclusively humanitarian work without undue interference. Parties to the conflict have both affirmative and negative duties to protect medical units, including refraining from attacking them, and placing such units out of harm’s way.[62]
  2. International humanitarian law also provides for protections for the wounded and the sick, which includes military and civilian persons in need of medical assistance because of “trauma, disease, or other physical or mental disorder or disability.”[63]
  3. Persons whose rights have been violated have the right to a remedy, and are entitled to access to “effective judicial or other remedies.”[64] Remedies can include: adopting adequate legislation;[65] investigating violations;[66] providing access to justice;[67] compensation for damage, including mental harm resulting from gross violations of human rights law and serious violations of humanitarian law;[68] rehabilitation, which includes the provision of “medical and psychological care and legal and social services”;[69] and guarantees of non-repetition of violations, which include protecting people in the medical professions.[70]

V. Recommendations

  • Immediately, the Government of Yemen should make all efforts to reduce the burden of the conflict on Yemenis by:
    • Calling on the Saudi-led coalition to lift restrictions and reduce delays on inspections of imports and exports and humanitarian access to Yemen.
    • Calling on the Saudi-led coalition to reopen Sana’a International Airport for commercial and civilian movement into and out of Yemen, and particularly to allow the travel of civilians seeking medical treatment outside Yemen.
    • Paying public sector salaries without interruptions to all areas of Yemen.
  • The Government should work toward creating a participatory process for a new national health strategy which includes a significant focus on mental health.
  • With support from United Nations agencies, donor governments and nongovernmental organizations, the Government of Yemen should promote access to appropriate psychosocial support for persons living in Yemen.
  • The Government should ensure people with mental illnesses have access to safe and appropriate services and support.
  • The Government should include issues of mental health and support for those affected by the conflict in the peace talk processes.
  • The Government should remedy the lack of research into mental health by facilitating independent research in Yemen, and ensuring that its coalition allies facilitate the free movement of researchers into and out of Yemen.
  • The Government should ensure that its mental health-related policies, planning, programs and research meet the needs of groups which may experience vulnerability or marginalization, including women, children, older persons and ethnic minorities.
  • The Government should work toward integrating mental health into primary health care, by ensuring the integration of psychological and specialized assistance in all health care services to meet the needs of affected people at all levels of villages, districts, cities and governorates.
  • The Government should ensure that mental health is an important factor in all its national planning, and is considered in medical and health interventions conducted in collaboration with regional and international agencies.
  • The Government should take steps to support more training for counsellors, psychologists, teachers and community leaders.
  • The Government should conduct awareness-raising and de-stigmatization programs among the Yemeni population.

VI. Questions

  • What steps is the Government currently taking to ensure citizens suffering from poor mental health have access to medical care and psychosocial support?
  • How does the Government plan to address the mental health needs of its citizens, and the lack of existing services?
  • What plans does the Government have for immediate, mid-term and long-term programs, initiatives and services to address the effects of the war on the mental health and well-being of Yemenis?
  • What plans does the Government have to create a new national health strategy, including provisions for mental health?
  • What data does the Government have about mental health conditions and services in Yemen? What number, location, and types of doctors and other practitioners are performing mental health-related work? What programs, initiatives and services exist for psycho-social support across the country? What studies has the government conducted to assess the well-being and mental health needs of the population?
  • What steps is the Government taking to ensure that its own security forces, and its partners and partners’ proxy forces in Yemen are respecting the mental health and well-being of Yemenis? What steps are being taken to stop abuses—such as illegal detention, torture in prisons, and illegal airstrikes—which seriously harm well-being?

Notes:

[1] ‘Mental health’, as recognized by the World Health Organization (WHO), is a broad concept which goes beyond meaning the absence of mental illness. The WHO recognizes a state of ‘mental health’ as encompassing the “subjective well-being, perceived self-efficacy, autonomy, competence, intergenerational dependence and recognition of the ability to realize one’s intellectual and emotional potential”. It has also been defined as a “state of well-being which allows individuals to recognize their abilities, cope with the normal stresses of life, work productively and fruitfully, and make a contribution to their communities.” See World Health Organization, Investing in Mental Health 7 (2003), http://www.who.int/mental_health/media/investing_mnh.pdf.

[2] International Covenant on Economic, Social and Cultural Rights, Dec. 6, 1966, S. Treaty Doc. No. 95-19, I.L.M. 360 (1967), 993 U.N.T.S 3 (Accession date Feb. 09, 1987) [hereinafter ICESCR].

[3] Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3 (Accession date May 01, 1991.

[4] Convention on the Rights of Persons with Disabilities, Dec. 13, 2006, 2515 U.N.T.S. 3 (Accession date Mar. 26, 2009) [hereinafter CRPD].

[5] International humanitarian law protects certain categories of persons during armed conflict. See Geneva Convention Relative to the Protection of Civilian Persons In Times of War, Aug. 12, 1949, 75 U.N.T.S. 287, art. 33 [hereinafter Geneva Convention IV]; Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the protection of victims of international armed conflict (Protocol I), Aug. 6, 1977, 1124 U.N.T.S. 3, art 51(2), art. 11 [hereinafter Addl. Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the protection of victims of non-international armed conflicts, (Protocol II) Aug. 06, 1978, 1125 U.N.T.S. 609, art. 5(2) [hereinafter Addl. Protocol II]. It has also been proposed that incidental mental harm can be protected under international humanitarian law. See Steve Wilkinson, Incidental yet Monumental: Incorporating Mental Health Impacts into IHL Proportionality Assessments, Harvard Humanitarian Initiative, (Apr. 7, 2017), https://reliefweb.int/report/world/incidental-yet-monumental-incorporating-mental-health-impacts-ihl-proportionality. Finally, medical personnel, units and transport are also protected, see Geneva Convention for the amelioration of the condition of the wounded and sick in armed forces in the field, Dec. 08, 1949, 75 U.N.T.S. 31, arts. 19(1), 24-26 [hereinafter Geneva Convention I]; Geneva Convention for the amelioration of the condition of the wounded, sick and shipwrecked members of the armed forces at sea, Dec., 08, 1949, 75 U.N.T.S. 85, arts. 23, 36 [hereinafter Geneva Convention II]; Geneva Convention IV arts. 18, 20, 21; Addl. Protocol I, arts. 12(1), 15, 21; Addl. Protocol II, arts. 9, 11(1).

[6] This submission draws on a briefing paper published by the submission co-authors: Sana’a Center for Strategic Studies, Columbia Law School Human Rights Clinic & Mailman School of Public Health, The Impact of War on Mental Health in Yemen: A Neglected Crisis (2017), https://sanaacenter.org/files/THE_IMPACT_OF_WAR_ON_MENTAL_HEALTH_IN_YEMEN.pdf. The briefing paper was based on an extensive literature review, and interviews with health professionals, psychological and social experts, and UN and Yemen government officials [hereinafter Briefing Paper].

[7] The United Nations Office for Coordination of Humanitarian Affairs [UN OCHA], Humanitarian Response Plan: 2018, (Jan. 2018), https://reliefweb.int/sites/reliefweb.int/files/resources/20180120_HRP_YEMEN_Final.pdf.

[8] See Briefing Paper, supra note 6.

[9] Fawziah al Ammar, Post-Traumatic Stress Disorder among Yemeni Children as a Consequence of the Ongoing War, Center for Applied Research in Partnership with the Orient (Mar. 20, 2018), https://carpo-bonn.org/wp-content/uploads/2018/03/10_carpo_brief_final_printerfriendly.pdf.

[10] See generally, Briefing Paper, supra note 6.

[11] Mwatana Organization for Human Rights, Blind Air Strikes: Civilian Victims of Saudi-led coalition’ air strikes in Yemen, (Dec. 15, 2015), http://mwatana.org/en/blind_air_strikes/.

[12] See Joint Statement from Agency Heads: WHO Director General Dr. Tedros Adhanom, UNICEF Executive Director Anthony Lake and WFP Executive Director David Beasley, UN Leaders Appeal for Immediate Lifting of Humanitarian Blockade in Yemen – Millions of Lives at Imminent Risk (Nov. 16, 2017), https://www.unicef.org/media/media_101496.html.

[13] The United Nations Office for Coordination of Humanitarian Affairs [OCHA], Yemen: 2018 Humanitarian Needs, (Dec. 04, 2017), https://reliefweb.int/report/yemen/yemen-2018-humanitarian-needs-overview-enar.

[14] World Health Organization Executive Board Secretariat, Global Burden of Mental Disorders and the Need for a Comprehensive, Coordinated Response from Health and Social Sectors at a Country Level: Report by the Secretariat, ¶ 3, E.B. 130/9 (Dec. 1, 2011), http://apps.who.int/gb/ebwha/pdf_files/EB130/B130_9-en.pdf.

[15] Indeed, a 2010 study covering a region of Liberia revealed that some 45% of the population exhibited symptoms of PTSD nearly 20 years after the end of the conflict. Sandro Galea et al., Persistent Psychopathology in the Wake of Civil War: Long-Term Posttraumatic Stress Disorder in Nimba County, Liberia, 100 Am. J. Pub. Health 1745 (2010).

[16] Theresa S. Betancourt et al., Psychosocial Problems of War-Affected Youth in Northern Uganda: A Qualitative Study, 46 Transcultural Psychiatry 238 (2009).

[17] Several underlying determinants of health are self-standing human rights, including the rights to food, water, sanitation, and adequate housing. States are obligated to concurrently secure these rights, as enumerated in the ICESCR and interpreted by the CESCR’s General Comments. See generally http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=9&DocTypeID=11 (last visited Jul. 11, 2018).

[18] Mansour Rageh, Amal Nasser & Farea Al-Muslimi, Yemen Without a Functioning Central Bank: The Loss of Basic Economic Stabilization and Accelerating Famine, Sana’a Center for Strategic Studies, (Nov. 2, 2016) https://sanaacenter.org/publications/main-publications/55.

[19] “There are many devils” – A conversation with Governor of Taiz Ali al-Mamari, Sana’a Center for Strategic Studies (Nov. 12, 2017), https://sanaacenter.org/publications/analysis/5046.

[20] Office for the Coordination of Humanitarian Relief [OCHA], Ensuring Yemen’s lifeline: the criticality of all Yemeni ports (as of 13 Nov 2017) (Nov. 13, 2017), https://reliefweb.int/map/yemen/ensuring-yemen-s-lifeline-criticality-all-yemeni-ports-13-nov-2017-enar.

[21] Norwegian Refugee Council, “Yemen airport closure killed more people than airstrikes,” (Aug. 09, 2017) https://www.nrc.no/news/2017/august/yemen-airport-closure-killed-more-people-than-airstrikes/.

[22] Yemen National Mental Health Strategy, supra note 17, at 5.

[23] Briefing Paper, supra note 6.

[24] Briefing Paper, supra note 6, at 9.

[25] World Health Organisation, Survey Reveals Extent of Damage to Yemen’s Health System, (Nov. 6, 2016), WHO EMRO, http://www.emro.who.int/pdf/media/news/survey-reveals-extent-of-damage-to-yemens-health-system.pdf.

[26] World Health Organisation, Survey Reveals Extent of Damage to Yemen’s Health System, (Nov. 6, 2016), WHO EMRO, http://www.emro.who.int/pdf/media/news/survey-reveals-extent-of-damage-to-yemens-health-system.pdf.

[27] Briefing Paper, supra note 6.

[28] Briefing Paper, supra note 6, at 8.

[29] Yemen Ministry of Health and Population, National Mental Health Strategy: 2011-2015 (Mar. 2010) at 58, http://sfd.sfd-yemen.org/uploads/issues/health%20english-20121015-132757.pdf [hereinafter Yemen National Mental Health Strategy].

[30] Yemen National Mental Health Strategy, supra note 17, at 5.

[31] Maan A.Bari Qasem Saleh, Mental Health in Yemen Obstacles & Challenges, 14 (2013), (slideshow presentation), http://slideplayer.com/slide/679600.

[32] Maan A.Bari Qasem Saleh & Ahmed Mohamed Makki, Mental Health in Yemen: Obstacles & Challenges 5 Int’l Psychiatry 90, 91 (2008).

[33] The Government of Yemen has ratified the CRPD, supra note 4, and acceded to all the other human rights conventions, except the Optional Protocol to the Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 18, 2002, 2375 U.N.T.S. 237; the International Convention for the Protection of All Persons from Enforced Disappearance, Dec. 20, 2006, 2716 U.N.T.S. 3; the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty, Dec. 15, 1998, 1642 U.N.T.S. 414; and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Jul. 1, 2003, 2220 U.N.T.S. 3.

[34] The Government of Yemen has either ratified or acceded to all the major Geneva Conventions, with the exception of the Protocol Addl. to the Geneva Conventions of Aug. 12 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III), Dec. 8, 2005, 2404 U.N.T.S. 261.

[35] The right to mental health is recognized in human rights treaties, including the ICESCR, supra note 2, and the CRPD, supra note 4; several UN General Assembly and Human Rights Council resolutions, see G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948), G.A. Res. 58/173, The right of everyone to the highest attainable standard of physical and mental health (Dec. 22, 2003), G.A. Res. 46/118, The protection of persons with mental illness and the improvement of mental health care (Dec. 17, 1991); Regional human rights treaties, see African Charter on Human and Peoples’ Rights, Jun. 27, 1981, 1520 U.N.T.S. 217, art. 16 and African Charter on the Rights and Welfare of the Child, Jul. 11, 1990, CAB/LEG/24.9/49 (1990), art. 14; decisions of regional human rights courts, see e.g., European Court of Human Rights [Lazariu v. Romania (2015); Association for the Defence of Human Rights in Romania-Helsinki Committee on Behalf of Ionel Garcea v. Romania (2015); M.H. v. United Kingdom (2014)]; Inter-Am. Commission of Human Rights [Ximenes-Lopes v. Brazil, Report No. 38/02, Petition 12/237, October 9, 2002; Victor Rosario Congo v. Ecuador, Report 63/99, Case No. 11.427; OEA/Ser.L/V/11.106 Doc 6. Rev., April 13, 1993]; Inter-American Court of Human Rights [Ituango Massacres v. Colombia, Inter-Am. C.H.R., (ser. C) No. 148 (Jul. 1, 2006); Moiwana Community v. Suriname, Inter-Am. Ct. H.R. (ser. C) No. 124 (June 15, 2005)]; African Commission on Human and People’s Rights [Sudan Human Rights Organization, et al. v. Sudan, Comm. No. 279/03-296/05 (2009)]; decisions of the UN human rights treaty bodies, see e.g., UN Human Rights Committee [Williams v. Jamaica, Communication No 609/1995, U.N. Doc. CCPR/C/61/D/609/1995 (4 November 1997); Francis v. Jamaica, Communication No 606/1994]; Committee on the Elimination of Discrimination Against Women [L.C. v. Peru, CEDAW, U.N. Doc. CEDAW/C/50/D/22/2009 (2011)]; reports by the UN High Commissioner for Human Rights and UN Special Rapporteurs (discussed in notes 40, 45, below); decisions of national courts; and academic articles, see e.g. Lawrence O. Gostin & Lance Gable, The Human Rights of Persons with Mental Disabilities: A Global Perspective on the Application of Human Rights Principles to Mental Health, 20 Maryland L.R. 63 (2004); Jonathan M. Mann et al., Health and Human Rights, 1 (1) Health & Human Rights 7, at p.7 (1999); Carla A.A. Ventura, International Law, Mental Health and Human Rights, The Center for Civil & Human Rights, (Jun. 2014).

[36] UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant), U.N. Doc. E/C.12/2000/4 (Aug. 11, 2000), ¶ 33 [hereinafter General Comment No. 14].

[37] General Comment No. 14 supra note 37, ¶ 33.

[38] See generally General Comment No. 14, supra note 33.

[39] General Comment No. 14, supra note 37, ¶12.

[40] Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, E/CN.4/2005/51(Feb. 11, 2005), ¶ 46; Report of the Special Rapporteur on the right of everyone to the highest attainable standard of physical and mental health, U.N. Doc. A/HRC/35/21 (Mar. 28, 2017) ¶ 55, [hereinafter UNSR Mental Health Report].

[41] UNSR Mental Health Report, supra note 41, ¶ 55.

[42] UNSR Mental Health Report, supra note 41, ¶ 55, 56.

[43] This affirmation to address the underlying determinants of mental health was adopted by the UN Human Rights Council in 2017. See, United Nations General Assembly, Resolution adopted by the Human Rights Council on 28 September 2017, UN Doc. A/HRC/RES/36/13 (Oct. 9, 2017).

[44] Access to safe and potable water and adequate sanitation; an adequate supply of safe food, nutrition, and housing; healthy occupational and environmental conditions; and access to health-related education and information. See General Comment No.14, supra note 37 ¶11.

[45] The ‘social’ determinants include living in a safe environment free of direct violence, the threat of violence, and armed conflict; and the promotion of supportive relationships. For more, see UNSR Mental Health Report, supra note 41, ¶ 67. See also Report of the Special Rapporteur on the right of everyone to the highest attainable standard of physical and mental health, U.N Doc. A/HRC/68/297 (Aug. 9, 2013) at ¶ 8 [hereinafter UNSR Health in Conflict Report]; General Comment No.14 supra note 37, ¶ 10, citing “Common Article 3”, common to all four Geneva Conventions. See Geneva Convention I, supra note 5, art. 3; Geneva Convention II supra note 5, art. 3; Geneva Convention III supra note 5, art. 3; and Geneva Convention Relative to the Treatment of Prisoners of War art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135, art. 3 [hereinafter Geneva Convention IV]. It also cites Addl. Protocol I, supra note 5, art.75 (2) (a); Addl. Protocol II, supra note 5, art. 4 (a).

[46] International Covenant on Civil and Political Rights, Dec. 16, 1966, 99 U.N.T.S. 991 [hereinafter “ICCPR”].

[47] Similarly, the right to mental health is dependent and related to the realization of other rights including the rights to food, housing, education, life, non-discrimination, and equality. See, General Comment No.14, supra note 37, ¶ 3. For instance, having an inadequate supply of safe food and nutrition, such as in times of famine, can cause poor mental health. See, T.S. Sathyanarayana, M.R. Asha, B.N. Ramesh, and K.S. Jagannatha Rao, Understanding nutrition, depression and mental illness, 50(2) Indian J Psychiatry 77 (2008).

[48] This includes their rights to life, dignity, and self-determination. See UNSR Mental Health Report, supra note 41, ¶ 31; General Comment No.14, supra note 37, ¶ 8.

[49] This includes their rights to life, dignity, and self-determination. See UNSR Mental Health Report, supra note 41, ¶ 31; General Comment No.14, supra note 37, ¶ 8.

[50] Id.

[51] See Economic and Social Council Res. 2000/10 (Jul. 2, 7, 2001); Leandro Despouy (Special Rapporteur on disabled persons and human rights), Human rights and Disability, U.N. Doc. E/CN.4/Sub.2/1991/31 (1991); Erica-Irene Daes (Special rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities), Principles, guidelines, and guarantees for the protection of persons detained of grounds of mental ill health or suffering from mental disorder, U.N. Doc. E/CN.4/Sub.2/1983/17 (1983).

[52] Id., ¶ 43.

[53] UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 3: The Nature of State Parties’ Obligations (Art. 2, Para. 1 of the Covenant), U.N. Doc. E/1991/23 (Dec. 14, 1990) [hereinafter General Comment No.3]] ¶ 12, General Comment No. 14, supra note 37 ¶ 18-27.

[54] Several underlying determinants of health are self-standing human rights, including the rights to food, water, sanitation, and adequate housing. States are obligated to concurrently secure these rights, as enumerated in the ICESCR, supra note 2, and interpreted by the CESCR’s General Comments. See generally http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=9&DocTypeID=11 [last accessed Jul. 11, 2018].

[55] General Comment No. 14, supra note 37, and General Comment No. 3, supra note 54.

[56] General Comment No. 14, supra note 37.

[57] General Comment No. 14, supra note 37.

[58] General Comment No. 14, supra note 37.

[59] General Comment No. 14, supra note 37, ¶ 44.

[60] Under Addl. Protocol I, supra note 5, art. 8(e), “medical units” include establishments and other units, fixed or mobile, permanent or temporary, organized for medical purposes.

[61] See Geneva Convention I, supra note 5, arts. 19(1), 24-26; Geneva Convention II, supra note 5, arts. 23, 36; Geneva Convention IV, supra note 46, arts 18, 20, 21; Addl. Protocol I, supra note 5, arts. 12 (1), 15, 21; Addl. Protocol II, supra note 5, arts. 9 11(1).

[62] See Geneva Convention I, supra note 5, art. 19(2); Geneva Convention IV, supra note 46, art. 18(5); Addl. Protocol I, supra note 5, art. 12(4).

[63] Addl. Protocol I, supra note 5, art. 8(a).

[64] G.A. Res. 60/147, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (Mar. 21, 2006), art.3 [hereinafter Basic Principles on the Right to Remedy].

[65] Basic Principles on the Right to Remedy, supra note 65, art. 17.

[66] Basic Principles on the Right to Remedy, supra note 65, arts. 3(b), 4.

[67] Basic Principles on the Right to Remedy, supra note 65, arts. 3(c), 11(a), 12, 13.

[68] Basic Principles on the Right to Remedy, supra note 65, art. 20.

[69] Basic Principles on the Right to Remedy, supra note 65, art. 21.

[70] Basic Principles on the Right to Remedy, supra note 65, art. 23.

SHARE