Mental Health as a Target: New Amnesty Report on South Sudan

It is trite to say that conflicts and health (care) are antithetical. In addition to the direct harm to health resulting from the violence, conflicts generally decrease the resources available for public health and often exacerbate discrimination in the enjoyment of the right to health. The relationships betwesudanen conflicts and mental health tend to be less visible than those related to physical health, but no less acute.

Earlier this month, Amnesty International published the report, Our hearts have gone dark’: The mental health impact of South Sudan’s conflict. In AI’s words, the report ‘documents the psychological impact of mass killings, rape, torture, abductions and even a case of forced cannibalism, on the survivors and witnesses of these crimes’. South Sudan is engaged in a non-international armed conflict between the South Sudan People’s Army under the control of the President and an armed opposition group. Based on interviews with 161 victims of and witnesses to human rights violations, as well as mental health professionals, government and UN officials, and representatives of non-governmental organizations, AI reveals a dire lack of mental health services across the country for people in need of support and care.

Despite the vast literature on the right to health in international human rights law (see, e.g. by  Katherine H. A. Footer and Leonard S. Rubenstein, by Amrei Müller or by Pierre Perrin), it is still rare that human rights organisations provide rights-based analyses on health in conflicts in general, and on mental health in particular. As far as Amnesty International is concerned, this is the organisation’s first report specifically addressing mental health. Hence, it is very encouraging that Amnesty International is focusing on these neglected aspects of the conflict in South Sudan.

In this post, I take the opportunity to review two conceptual aspects of the report that I find particularly interesting:

  1. Harm to mental health: more than a consequence of conflict

First, the title of the report suggests (at least at first sight) that harm to mental health is primarily an impact of the conflict but not a violation itself. Harm to mental health is undisputedly – and sadly – a far too widespread consequence of many abuses of the conflict. But in light of the qualitative research documented in the report, many instances of harm to mental health do not seem to constitute ‘just’ a consequence of the conflict, but the primary intention of perpetrators. The report, for instance, documents shocking cases of government soldiers allegedly forcing people to eat human flesh and to disembowel dead bodies in exchange for their life. In such horrific examples, the infliction of mental pain and suffering is the violation itself and not an impact of other abuses. Such abuses constitute international crimes in certain circumstances, such as war crimes, torture or crimes against humanity. In the text of the report itself, Amnesty International qualifies the commission and the failure to address these deliberate acts as a violation of the respect and protect the right of the South Sudanese population to the highest attainable standard of health (chapter 6, p. 49).

As discussed elsewhere in an article with Aoife Nolan, there is a tendency in the literature to analyse economic and social rights such as the right to health not as part and parcel of past violations but from the perspective of consequences of other abuses. In other words, when economic and social abuses are considered, they are sometimes not analysed on their own terms, but rather as a secondary consequence of civil and political rights violations. This underscores the tendency to view civil and political rights abuses as the forefront issues when discussing human rights and conflicts, with economic and social rights abuses constituting their context and consequences. Remnants of such an approach can still be found in Amnesty’s new report, e.g. where the NGO points out that

‘acts such as torture, sexual violence, and unlawful killing will often have a negative impact on the mental health of “victims” (…).  In addition to being serious violations of civil and political rights in and of themselves, such acts can, therefore, also constitute violations of the right to health.’ (Emphasis added).

While entirely correct, the section outlining the relationship between the violence and the right to mental health could have started much more strongly, e.g. by explaining how some of the documented acts deliberately target people’s mental well-being. Soldiers forcing someone to drink the blood of other victims trigger the State’s responsibility for a violation of the right to mental health independent of whether or not there are also violations of civil and political rights involved in such acts.

2. The right to mental health: not just a reparations issue

Second, and here I entirely agree with the legal framing, Amnesty does not exclusively frame the need to provide for mental health services from the angle of the right to reparations. While the link between mental health and reparations features prominently in the report (as this is often the case when economic or social rights are discussed in relation to violent conflicts), Amnesty International convincingly goes beyond this approach. The NGO appropriately frames the right to mental health care services as part of victims’ right to reparations as ‘an additional specific obligation’ – in addition to the primary obligation of refraining from and preventing acts that case psychological harm. This is important because an exclusive focus on mental health services as a form of reparations would seem legally unjustified given what I argued above.4623b1a7-76d3-4f79-9e7b-fc8f38ca7210

On a side note, Amnesty’s approach to emphasise that the state has a basic obligation to refrain from and prevent acts that harm mental health finds support in concluding observations of the UN Committee on Economic, Social and Cultural Rights. Although South Sudan is not (or not yet?) a state party to the UN Covenant on Economic, Social and Cultural Rights, it is interesting that mental health is one of the few substantive issues on which the Committee has made specific statements tailored to conflict situations (for other issues and more analysis, see my article in the Netherlands Quarterly of Human Rights). It did so for the first time in 1997 when examining the report from Iraq, urging the Iraqi authorities to submit ‘concrete and comprehensive information on measures taken or foreseen in order to address the psychological and emotional problems affecting children after years of armed conflict’. More recently, the Committee recommended to Nepal and Cambodia that a higher priority be accorded to mental health care in relation to persons affected by the conflict. In 2010, the Committee also recommended that Afghanistan, if necessary, seek international cooperation to address conflict-related traumatic disorders.

 

Photo credit: Amnesty International, Justin Lynch/AFP/Getty Images

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Read On! Taking Economic, Social and Cultural Rights Seriously in International Criminal Law

Evelyne Schmid, Taking Economic, Social and Cultural Rights Seriously in International Criminal Law, Cambridge Studies in International and Comparative Law, 2015.

At least sincoverpictce Amartya Sen’s economic research, it is well-known that many of ‘those who fall victim to adverse human agency are not injured by proximate violence but as a result of being compelled to live in subhuman conditions’. To address this fact, scholars and practitioners have been debating whether the mechanisms commonly used to address legacies of widespread abuse could engage with economic, social and cultural abuses. Should they be encouraged to do so? And can international law(yers) be of any help in this regard? Continue reading

Call for Papers: International Law and Domestic Law-Making Processes

Call for Papers: International Law and Domestic Law-Making Processes
University of Basel, Law Faculty, 4 September 2015

An upcoming even800px-Unibas_JF-frontsidet of the Working Group of Young Scholars in Public International Law (Arbeitskreis junger Völkerrechtswissenschaftler*innen, AjV) wants to shed light on selected problems connected with the interaction of domestic law-making and international law.

Please find the full CfP here or on the Voelkerrechtsblog.com. The deadline for abstracts is the 27th March 2015.

This event of the Working Group of Young Scholars in Public International Law    (AjV) is supported by the Swiss National Science Foundation (SNF) and the “Ressort Nachwuchsförderung” of the University of Basel and is directed mostly (but not exclusively) at postdoctoral researchers and PhD students.

Travel expenses will be covered to at least a certain extent and child care will be available. The event is organised by Evelyne Schmid and Tilmann Altwicker (both University of Basel).

 

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Pillage, the Katanga judgment, gravity and the value of ‘ordinary’ household items

I came across a notable and positive development in the Katanga judgment  while I was updating my bookGermainKatanga manuscript on international crimes and violations of economic, social and cultural rights. Much has been written in the blogosphere about problematic issues of the judgment against Germain Katanga (such as the recharacterisation of charges and the interpretation of the policy requirement for crimes against humanity). See e.g. here  and here with an interesting response here. I want to focus on another particular aspect of the judgment. It concerns the actus reus of pillage as a war crime.

Gravity and the value of everyday items

Trial Chamber II emphatically pointed out that kitchen items, furniture, food, iron sheets, cattle and other goods can be essential for the daily life of survivors and are thus of great value in the specific context of the case (para. 953).

Why is this important? Pillage is one of the oldest prohibitions criminalised as a war crime. Despite the available criminal provisions, pillage continues to be a frequent occurrence in armed conflicts and is often committed with impunity. The crime has attracted renewed attention in recent years and there are ongoing initiatives to prosecute (corporate) plunder during war (e.g. see here  and here  for a case currently pending in Switzerland).

Pillage sometimes tends to be relegated to the background, considered merely to give context to other war crimes. If, for instance, a victim of rape also complains that perpetrators stole her household goods, the conventional reaction is usually to classify the victim as a victim of sexual violence ‘only’. As I argue in my forthcoming book, past approaches have tended to conceptualise abuses primarily affecting survivors’ socioeconomic well-being merely as the landscape against which abuses of civil and political rights are committed.

Yet, why not examine if the victim should be considered a victim of rape as well as of pillage, and hence, as a victim of a war crime which can overlap with violations of economic and social rights? The problem is that the pillaged property in many armed conflicts mpotsay at first sight seems of marginal value to the lawyers involved in determining what abuses deserve what kind of attention. At a closer look, ‘ordinary’ household items or a chicken can be of important practical value. Victims might desperately need their household utensils to carry drinking water from the well or the theft of livestock may have deprived victims of their only sources of protein.

Yet, some have argued that only the theft of items of a certain value are subject to ICC jurisdiction because war crimes are crimes of concern to the international community as a whole and pillaging items of ‘marginal value’ would not be covered. The added value of the clarification by Trial Chamber II in Katanga is the recognition that care must be taken to assess the practical value of property for victims. This is particularly important when the property played an important role in victims’ enjoyment of rights such as the right to food, water or shelter, including as the underlying determinants of health. The finding by the ICC Trial Chamber is a continuation of statements made by the same Trial Chamber in Bemba (Decision on the Charges, 15 June 2009, para. 317) after the ICTY in Gotovina stressed that ‘a case-by-case assessment is necessary’ (Trial Judgment, 15 April 2011, para. 1672). This evolution of the case-law on pillage demonstrates that judges  recognise the gravity of the theft of livestock and ‘ordinary’ household items.

The ICC will have further opportunities to address allegations of pillage in the case against Congolese rebel leader Ntaganda as well as in the situation of Mali, where the Prosecutor currently investigates the looting of food reserves, shops and hospital equipment.