Conceptualising rehabilitation as reparation for torture survivors: a clinical perspective

ABSTRACT

The right to rehabilitation as a form of reparation is well-established in international law although with respect to torture survivors, it has been insufficiently scoped, conceptually unclear and what it means in practice, has remained partial and ambiguous. This article provides a clinical perspective on the conceptualisation of the right to rehabilitation as a form of reparation for survivors of torture. It explores the nature of rehabilitation and its components in practice, highlighting the theoretical and ideological influences which shape diverse approaches to rehabilitation in practice. Drawing on recent developments in international law, specifically, the conceptualisation of rehabilitation in General Comment 3 on Article 14 of the Convention Against Torture is discussed and an integrative, conceptual model of rehabilitation, drawing on legal and clinical perspectives, is proposed.

KEYWORDS:

• Rehabilitation
• reparation
• torture
• integrative
• human-rights-based-approach

Correction Statement

This article has been republished with minor changes. These changes do not impact the academic content of the article.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Nimisha Patel is a Professor of clinical psychology and a practising clinical psychologist, with extensive experience of interdisciplinary and multi-method research, rehabilitation service development and clinical practice with survivors of torture in State health service and non-governmental organisations.

Notes

1. Torture survivor formerly in psychological therapy with the author, as part of a rehabilitation programme. Both terms, victims and survivors, are used interchangeably in this paper. Although the term victim serves as a recognition of a violation, in the health fields, the term ‘victim’ is outdated and carries negative connotations, and the term ‘survivor’ is also criticised by some of those who use health services, in that it implies an end to their suffering and a denial of ongoing harm.

2. For example, Basic Principles and Guidelines on the Right to a Remedy and Reparations for victims of gross Violations of international human rights and humanitarian law. Adopted by General Assembly Resolution UN Doc. A/RES/60/147, 16 December 2005 (hereinafter: ‘Basic Principles’).

3. Mahmoud Cherif Bassiouni, ‘International Recognition of Victims’ Rights’, Human Rights Law Review 6, no. 2 (2006): 203–79, at p. 207. See also, UN Human Rights Council resolution on Torture and other cruel, inhuman or degrading treatment or punishment: rehabilitation of torture victims/survivors, A/HRC/22/L.11/Rev.1, 19 March 2013; UN Basic Principles and Guidelines on the Right to a Remedy and Reparation, above no. 2.

4. Ibid. The principle of the right to remedy and redress was central to the 1928 decision of the Permanent Court of International Justice, in the Chorzow Factory Case. While the case is not a human rights one, it is highly relevant in terms of the principles it establishes regarding the right to reparation. See: Factory at Chorzow (Germany v. Poland), 1928 P.C.I.J. (ser. A) No.17 (Sept. 13).

5. Theo van Boven, ‘The Need to Repair’, International Journal of Human Rights’ 16, no. 5 (2012): 694.

6. Ibid.

7. Ibid., 694–5.

8. See, Basic Principles (supra note 2); UN Human Rights Council resolution on Torture and other cruel, inhuman or degrading treatment or punishment: rehabilitation of torture victims, A/HRC/22/L.11/Rev.1, 19 March 2013; UN Office of the High Commissioner for Human Rights (OHCHR), Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘Istanbul Protocol’), HR/P/PT/8/Rev.1, 2004.

9. Basic Principles, supra note 2.

10. For a fuller discussion, see Clara Sandoval, Rehabilitation as a Form of Reparation under International Law (London: REDRESS, 2009).

11. United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) (herein the ‘UN Convention Against Torture’ or ‘UNCAT’), Article 14.

12. A full discussion of the jurisprudence is beyond the scope of this article, see REDRESS (supra note 10).

13. Supra note 11.

14. UN Committee Against Torture, General Comment no. 3, 2012: Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: implementation of Article 14 by States parties, 19 November 2012 (hereinafter: ‘General Comment’ or ‘GC’).

15. GC para.11. This definition is echoed elsewhere: UN Human Rights Council Resolution on Torture and other cruel, inhuman or degrading treatment or punishment: rehabilitation of torture victims, A/HRC/22/L.11/Rev.1, 19 March 2013; and the African Commission on Human and Peoples Rights, General Comment no. 4, 2017, on the: The Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (Article 5), 23 February to 4 March 2017.

16. As enshrined in the International Covenant on Economic, Social and Cultural Rights, Article 12, and the UN Convention on the Rights of Persons with Disabilities, Article 25.

17. As enshrined in the UN Convention on the Rights of Persons with Disabilities, Article 26.

18. GC, para.12.

19. Einar Helander, ‘The Origins of Community-Based Rehabilitation’, Asia Pacific Disability Rehabilitation Journal 8, no. 2 (2007): 3–32.

20. Preamble to the Constitution of the World Health Organization as adopted by the International Health Conference, New York, 19–22 June 1946; signed on 22 July 1946 (Official Records of the World Health Organization, no. 2, p. 100) and entered into force on 7 April 1948.

21. See WHO Expert Committee on Medical Rehabilitation, Second Report, Technical Report Series 419 (Geneva, 1969); WHO Expert Committee on Disability Prevention and Rehabilitation, Technical Report on Disability Prevention and Rehabilitation, 668 (Geneva, 1981); WHO, Meeting Report, Rehabilitation 2030: A call for action (Geneva, 2017).

22. WHO 1981, ibid.

23. WHO Technical Reports Series, 668, WHO, Geneva (1981): 9.

24. See WHO (2013) Comprehensive mental health action plan 2013–2020. Sixty sixth world health assembly, doc. A66/10. Rev.1; WHO (2016) mhGAP intervention guide for mental, neurological and substance use disorders in non-specialised health settings. Geneva, 2016; WHO (2015) Mental Health 2014 Atlas, Geneva.

25. Douglas Bennett and Isobel Morris, ‘Support and Rehabilitation’, in Theory and Practice of Psychiatric Rehabilitation, ed. Fraser Watts and Douglas Bennett (London: John Wiley, 1983, 1991).

26. Ram Cnaan et al., ‘Psychosocial Rehabilitation: Toward a Definition’, Journal of Psychosocial Rehabilitation 11 (1988): 61–77.

27. Geoff Shepherd, ‘A Personal History of Rehabilitation (or Knowing Me, Knowing You – Aha?)’, Clinical Psychology Forum 82 (1995): 4–8.

28. Jed Boardman, ed., Social Inclusion and Mental Health (London: Royal College of Psychiatrists, 2010).

29. Medicalisation is ‘defining the problem in medical terms, using medical language to describe a problem, adopting a medical framework to understand a problem, or use a medical intervention to “treat it”’ (Peter Conrad, ‘Medicalization and Social Control’, Annual Review of Sociology 18, no. 1 (1992): 211).

30. For example, John Read and Jacqui Dillon, Models of Madness: Psychological, Social and Biological Approaches to Psychosis (London: Routledge, 2013); Jerry Tew, Social Approaches to Mental Distress (Basingstoke: Palgrave Macmillan, 2011); Mark Rapley, Joanna Moncrieff, and Jacqui Dillon, Demedicalising Misery: Psychiatry, Psychology and the Human Condition (Basingstoke: Palgrave Macmillan, 2011); Lucy Johnstone, Users and Abusers of Psychiatry: A Critical Look at Psychiatric Practice (London: Routledge, 2009); Suman Fernando, Cultural Diversity, Mental Health and Psychiatry (Hove: Brunner-Routledge, 2003); Mary Boyle, ‘The Problem with Diagnosis’, Psychologist 20, no. 5 (2003): 290–2.

31. For example, see Marius Romme et al., Living with Voices: Fifty Stories of Recovery (Ross-on-Wye: PCCS Books, 2009); Peter Campbell, ‘Surviving the System’, in Narratives of Mental Health Survivors, ed. Thurstine Bassett and Theo Stickey (Chichester: Wiley-Blackwell, 2010); Premila Trivedi, ‘Racism, Social Exclusion and Mental Health: A Black User's Perspective’, in Racism and Mental Health, Prejudice and Suffering, ed. Kam Bhui (London: Jessica Kingsley, 2002); Judy Turner-Crowson and Jan Wallcraft, ‘The Recovery Vision for Mental Health Services and Research: A British Perspective’, Psychiatric Rehabilitation Journal 25, no. 3 (2002): 245–54.

32. Helen Killapsy et al., ‘What Do Mental Health Services Do and What Are They For? A National Survey in England’, Journal of Mental Health 14 (2005): 157–65.

33. Frank Holloway, The Forgotten Need for Rehabilitation in Contemporary Mental Health Services: A Position Statement from the Faculty of Rehabilitation and Social Psychiatry (London: Royal College of Psychiatrists, 2005), 2.

34. For a detailed analysis of the recovery approach see David Pilgrim and Ann McCrainie, Recovery and Mental Health: A Critical Sociological Account (London: Palgrave Macmillan, 2013).

35. Marianne Farkas, ‘The Vision of Recovery Today: What It Is and What It Means for Services’, World Psychiatry 6, no. 2 (2007): 68–74.

36. Royal College of Psychiatrists, ‘Rehabilitation and Recovery Now’, Council Report CR121 (London: Royal College of Psychiatrists, 2004), 5.

37. Paul Wolfson and Debbie Mountain, ‘What People Want from Rehabilitation Services’, Faculty of Rehabilitation and Social Psychiatry (London: Royal College of Psychiatrists, UK, 2008).

38. Suman Fernando, Mental Health Worldwide: Culture, Globalization and Development (Basingstoke: Palgrave Macmillan, 2014).

39. See Article 1 of the UN Convention against Torture: ‘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’.

40. For reviews, see: Roger Gurr and Jose Quiroga, ‘Approaches to Torture Rehabilitation’, Torture 11, no. 1 (2001): 1–35; Jose Quiroga and James Jaranson, ‘Politically-Motivated Torture and Its Survivors: A Desk Study Review of the Literature’, Torture 15, no. 2-3 (2005): 1–112.

41. Uwe Jacobs, ‘Psycho-political Challenges in the Forensic Documentation of Torture: The Role of Psychological Evidence’, Torture 10, no. 3 (2000): 68–71.

42. Michael Peel and Vincent Iacopino, eds., The Medical Documentation of Torture (Cambridge: Cambridge University Press, 2009); Duncan Forrest, ‘Examination for the Late Physical after Effects of Torture’, Journal of Clinical Forensic Medicine 6 (1999): 4–13.

43. See: The Istanbul Protocol, above note. 8; Nimisha Patel, ‘Psychological Assessment and Documentation of Torture in Detention’, in Monitoring and Documenting Conditions of Detention, Custody, Torture and Ill-Treatment: A Practical Guide, ed. Joe Beynon and Jason Payne-James (London: Taylor-Francis, 2017).

44. GC, para.13.

45. GC, para.15.

46. GC, para.15.

47. Angela Nickerson et al., ‘The Mechanisms of Psychosocial Injury Following Human Rights Violations, Mass Trauma, and Torture’, Clinical Psychology Science and Practice 21 (2014): 172–91.

48. Aida Alayarian, ‘Children, Torture and Psychological Consequences’, Torture 19, no. 2 (2009): 145–56.

49. Madeleine Abrams, ‘Intergenerational Transmission of Trauma: Recent Contributions from the Literature of Family Systems Approaches to Treatment’, American Journal of Psychotherapy 53, no. 2 (1999): 225.

50. Cindy Sousa, ‘Political Violence, Collective Functioning and Health: A Review of the Literature’, Medicine, Conflict and Survival 29, no. 3 (2013): 169–97.

51. Nimisha Patel, Amanda Williams, and Blerina Kellezi, ‘Reviewing Outcomes of Psychological Interventions with Torture Survivors: Conceptual, Methodological and Ethical Issues’, Torture 26, no. 1 (2016): 2–16.

52. GC, paras.11 and 13.

53. GC, para.13.

54. GC, para.13. Specialist services refers to the specialised awareness, knowledge, understanding and skills specifically related to assessing and addressing the torture survivor's needs.

55. GC, para.32.

56. GC, paras.33 and 39.

57. GC, para.32.

58. Supra note 51; Edith Montgomery and Nimisha Patel, ‘Torture Rehabilitation: Reflections on Treatment Outcome Studies’, Torture 21, no. 2 (2011): 141–5.

59. WHO, supra note 21.

60. David Pilgrim, ‘The Biopsychosocial Model in Health Research’, Journal of Critical Realism 14, no. 2 (2015): 164–80.

61. Douglas Perkins and Marc Zimmerman, ‘Empowerment Theory, Research, and Application’, American Journal of Community Psychology 23, no. 5 (1995): 569–79.

62. For further discussion, see: Nimisha Patel, ‘Justice and Reparation for Torture Survivors’, Journal of Critical Psychology, Counselling and Psychotherapy 11, no. 3 (2011): 135–47; Yael Danieli, ‘Massive Trauma and the Healing Role of Reparative Justice’, Journal of Traumatic Stress 22, no. 5 (2009): 351–7; Camelia Doru and Nimisha Patel, ‘Justice and Impunity: Implications for the Rehabilitation Process of Torture Survivors in Romania’ (paper presented to the IRCT X International Scientific Symposium: Delivering on the Promise of the Right to Rehabilitation, Mexico City, Mexico, 14–16 March 2016); Camelia Doru, ‘From Healing the Wounds to Correcting Injustice: The Road to National Reconciliation’ (paper presented to the International Seminar on National Reconciliation, 26 September 2008, Bucharest, Romania).

63. Social rehabilitation, a term used in international law but no longer common in healthcare, refers to interventions aimed at facilitating social functioning, interpersonal relationships and social reintegration following illness, injury or disability.

64. Refers to interventions aimed at supporting survivors to commence or resume education, work, livelihood-building initiatives etc. See Basic Principles (supra note 2); and WHO definitions of rehabilitation (supra note 21).

65. Nimisha Patel, ‘The Psychologisation of Torture’, in De-Medicalising Misery: Psychiatry, psychology and the human condition, ed. Mark Rapley, Joanna Moncrieff, and Jacqui Dillon (London: Palgrave Macmillan, 2011).

66. Ibid. Main criticisms of such approaches are that they neglect the wide-ranging effects of torture, beyond individual trauma reactions which are often characterised as having psychiatric disease or disorder status (e.g. as ‘post-traumatic stress disorder’) of universal applicability, whilst de-politicising the context of torture, pathologising and psychologising torture. For critiques see Derek Summerfield, ‘Addressing Human Response to War and Atrocity: Major Challenges in Research and Practices and the Limitations of Western Psychiatric Models’, in Beyond Trauma: Cultural and Societal Dynamics, ed. Rolf Kleber, Charles Figley, and Berthold Gersons (New York: Plenum, 1995); Patel, 2011 (supra note. 65).

67. Ibid.; Nimisha Patel, ‘The Prevention of Torture: Role of Clinical Psychology’, International Journal of Critical Psychology, Counselling and Psychotherapy 7, no. 4 (2007): 229–46; Richard Blackwell, Counselling and Psychotherapy with Refugees (London: Jessica Kingsley, 2005).

68. Supra note 14.

69. GC, para.11.

70. Ibid.

71. GC, para.3.

72. GC, paras.11 and 13.

73. GC, para.6 and 11.

74. GC, para.15.

75. Ibid.

76. GC, para.11.

77. Ibid.

78. Dinah Shelton, Remedies in International Human Rights Law (Oxford: Oxford University Press, 2005), 275.

79. Nigel Rodley, The Treatment of Prisoners under International Law (Oxford: Oxford University Press, 1999), 97–8.

80. Principle 18, Principles on Reparation. The Joinet Principles on victims’ rights with regards to combating impunity are relevant to understanding what ‘full’ and ‘effective’ may mean. The right to reparation, contained in several principles, includes reparation procedures (principle 34) specifying that ‘victims shall have access to a readily available, prompt and effective remedy’ and ‘be afforded protection against intimidation and reprisals’ (Joinet, L., ‘Question of the Impunity of Perpetrators of Human Rights Violations (Civil and Political)’, Revised Final report, UN Doc. E/CN.4/Sub.2/1997/20/Rev.1).

81. Convention on the Rights of the Child 1989 is the only instrument which explicitly refers to the importance of the environment, stating that psychological and physical recovery and social integration ‘shall take place in an environment which fosters the health, self-respect and dignity of the child’ (Article 39).

82. The importance of security and safety are acknowledged several times in the Principles on Reparation (Principles 10, 12, 22).

83. Jocelyn Avigad and Zohreh Rahimi, ‘Impact of Rape on the Family’, in Rape as a Method of Torture, ed. M. Peel (London: Medical Foundation, 2004).

84. Libby Tata Arcel, ‘Torture, Cruel, Inhuman, and Degrading Treatment of Women: Psychological Consequences’, Psyke & Logos 22 (2001): 322–51; Nimisha Patel and Aruna Mahtani, ‘Psychological Approaches to Working with Rape’, in Rape as a Method of Torture, ed. M. Peel (London: Medical Foundation, 2004).

85. Heidi Rombouts, Pietro Sardaro, and Stef Vandeginste, ‘The Right to Reparation for Victims of Gross and Systematic Violations of Human Rights’, in Out of the Ashes: Reparation for Victims of Gross and Systematic Human Rights Violations, ed. K. de Feyter et al. (Intersentia: Antwerpen-Oxford, 2005), para.146.

86. Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Boston, MA: Beacon Press, 1998), 63.