Shouting Through the Walls: Discriminatory

You could hear it at night. You could hear the voices and just knew what was happening to them (…) They could complain but everyone was too scared to say anything. Shouting Through the Walls

To date, one of the most egregious human rights violations remains underexplored: DISCRIMINATORY TORTURE AND ILL-TREATMENT discriminatory torture and other ill-treatment. This report examines the phenomenon, recognising that discrimination is a key ingredient in the story of many acts of EQUAL RIGHTS TRUST brutality, abuse and humiliation. It argues that failing to identify discriminatory motives, whether on the grounds of race, sex, disability or otherwise, is a failure both to fully understand the nature of the treatment and to develop appropriate responses.

The report presents two case studies from Jordan which are considered through the lens of discriminatory torture and other ill-treatment: the “protective custody” of women and the treatment of persons with mental disabilities, particularly in institutions. By combining desk-based research and first-hand testimony from members

of these stigmatised and often unheard groups, the report offers new perspectives Shouting Through the Walls and concludes that both Jordan and the international community need to take action to recognise discriminatory torture and other ill-treatment and protect people from it on an equal basis.

The Equal Rights Trust is an independent international organisation whose purpose is to combat discrimination and promote equality as a fundamental human right and a basic principle of social justice.

Mizan for Law works to promote human rights and democracy in Jordan. It seeks to develop legislation and increase awareness on human rights to enhance protection for victims of human rights violations.

This report has been prepared with the financial assistance of the European Union. The contents of this report are the sole responsibility of the Equal Rights Trust and can in no way be taken to reflect the views of the European Union. CASE STUDIES FROM JORDAN

Equal Rights Trust www.equalrightstrust.org in partnership with Mizan for Law Shouting Through the Walls

DISCRIMINATORY TORTURE AND ILL-TREATMENT

London, March 2017 EQUAL RIGHTS TRUST in partnership with Mizan for Law

Shouting Through the Walls

DISCRIMINATORY TORTURE AND ILL-TREATMENT CASE STUDIES FROM JORDAN

London, March 2017 The Equal Rights Trust is an independent international organisation whose purpose is to combat discrimination and promote equality as a fundamental human right and a basic principle of social justice.

Design/Layout: Istvan Fenyvesi Illustration: Kate Evans Printed in the UK by Stroma Ltd

ISBN: 978-0-9956403-8-2

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The Equal Rights Trust is a company limited by guarantee incorporated in England, and a registered charity. Company number 5559173. Charity number 1113288.

The contents of this report are the sole responsibility of the Equal Rights Trust This report has been prepared with the financial assistance of the European Union.

and can in no way be taken to reflect the views of the European Union. Time flows through the room Narrow room Empty as a drum Four walls No threshold to help me run!

Silence speaks Screams its words out

An extract from “Blackout” by Jordanian poet, Nesma Alnsour.

Table of Contents

Acknowledgements Acronyms and Abbreviations Executive Summary

1. INTRODUCTION 1 1.1 Purpose and Structure of the Report 2

1.3 Research Methodology, Scope and Terminology 6 1.2 Unified Human Rights Framework on Equality 3

2. WHAT IS DISCRIMINATORY TORTURE AND ILL-TREATMENT? 9 2.1 Introducing the Concept 9 2.2 Discriminatory Torture 12 2.2.1 Severe Pain and Suffering 13 2.2.2 Intent 15 2.2.3 Purpose 16 2.2.4 Involvement of the State 18 2.2.5 Exclusions and Defences 20 2.3 Discriminatory Ill-Treatment 21 2.4 Obligations of the State to Prevent Torture and Other Ill-Treatment 25

3. DISCRIMINATORY TORTURE AND ILL-TREATMENT IN JORDAN 28 3.1 Political System 28

3.3 Legal Framework Relating to Equality and Torture 31 3.2 Human Rights in Jordan 29 3.3.1 Jordan’s International Obligations 31 3.3.2 National Legal Framework on Equality and Non-Discrimination 35 3.3.3 National Legal Framework on Liberty and Security of the Person and Torture 36

4. TREATMENT OF PERSONS WITH MENTAL DISABILITES IN JORDAN 38 4.1 State Obligations to Protect Persons with Mental Disabilities 39

4.1.2 Institutionalisation 43 4.1.1 Healthcare 40 4.1.3 Children 45 4.2 National Legal Framework Relating to Persons with Disabilities 47 4.3 Social and Political Context 52 4.3.1 Social Stigma, Misunderstandings and Denial of Services 52 4.3.2 Lack of Government Support 55 4.4 Torture and Other Ill-Treatment of Persons with Mental Disabilities in Jordan 58 4.4.1 Involuntary Detention 58 4.4.2 Physical and Sexual Abuse 61 4.4.3 Sedation 66 4.4.4 Denial of, or Lack of, Adequate Medical Care 67 4.4.5 Lack of Oversight of Medical Care 74 4.5 Conclusions and Recommendations 75 4.5.1 Recommendations to the Jordanian Government 76

4.5.3 Recommendations to Civil Society 78 4.5.2 Recommendations to International Human Rights Bodies 78

5. PROTECTIVE CUSTODY 79 5.1 Protective Custody in International Law 82 5.1.1 Freedom of Movement and Arbitrary Detention 83 5.1.2 Non-Discrimination 84 5.1.3 State Obligations to Prohibit Gender-Based Violence 85 5.1.4 Protective Custody and Discriminatory Torture 88 5.2 National Legal Framework Relating to Protective Custody and Gender-Based Violence 89 5.3 Protective Custody in Jordan 91 5.3.1 Reasons for Protective Custody 93 5.3.2 Treatment in Detention 101 5.3.3 Conditions of Detention 103 5.3.4 Impact of Protective Custody 111 5.3.5 Life After Protective Custody 114 5.4 Conclusions and Recommendations 115 5.4.1 Conclusions 115 5.4.2 Recommendations 117

6. CONCLUSIONS AND RECOMMENDATIONS 121 6.1 Conclusions 121 6.2 Recommendations 121 6.2.1 Recommendations to the Jordanian Government 122 6.2.2 Recommendations to the International Community and Civil Society 124

Bibliography 126 Acknowledgements

This report is published by the Equal Rights Trust and Mizan for Law. The report forms part of the Trust’s broader project in Jordan to tackle discriminatory torture and other ill-treatment. The project has been co-ordinated by Jade Glenis-

Joanna Whiteman and Jim Fitzgerald, Co-Directors at the Trust. ter, Legal and Programmes Officer at the Trust, with the managerial oversight of

The field research for this report was carried out by Basel Al-Hamad, Lubna Dawany, MENAFatima Region Alhalabiya, Legal Areej Research Mohammad Fellows Semreen,at the Trust, and and Rahaf analysed Safi. The with findings the oversight of the andfield guidance research ofwere Jade collated Glenister. by The Rahaf research Safi and and Fatima drafting Adhash of the and sections Catriona on national Harris, law and the international and regional legal frameworks was done by Jade Glenis- ter with notable assistance in the research and drafting of Part 5 from Sam Barnes. Two of the Trust’s interns, Rosie Monaghan and Stacy Stroud, provided valuable

Law provided editorial oversight of the analysis of Jordan’s political and legal system.research Joanna and Whiteman editorial support. provided Eva guidance Abu Halaweh, and substantive Executive editorial Director oversight at Mizan for the whole report.

The report was subject to a validation process, and thanks are due to the group of experts who provided valuable comments during this process. Particular thanks to Eric Rosenthal. The Trust also thanks Istvan Fenyvesi for the design and layout of this report, and Charlotte Broyd for helping to launch and dissem- inate the report.

Union. The contents of the report are the sole responsibility of the Equal Rights This report has been produced with the financial assistance of the European European Union. Trust and can in no circumstances be regarded as reflecting the position of the Finally, and most importantly, the Trust would like to thank everyone who had the courage to speak to us about their experiences. The report covers particu- - cant social stigma still attaches. Many people felt too fearful to speak about their experiences.larly egregious Accordingly, human rights our violationsgreatest thanks and discusses goes to the matters individuals to which who signifi spoke to us about their experience of torture and ill-treatment or their witnessing of ill-treatment in institutions in which they have or continue to work. This report is for you and for all the others who are suffering in silence.

A Preliminary Note

The Equal Rights Trust has put the allegations contained within this report to the relevant government ministries and heads of the relevant institutions and those responsible for monitoring those institutions. No response has yet been received. The Trust will publish any responses it receives to its request for responses in due course.

Acronyms and Abbreviations

Arab Charter CAT Convention against Torture and Other Cruel, Inhuman orArab Degrading Charter onTreatment Human Rightsor Punishment CEDAW Convention on the Elimination of All Forms of Discrimination against Women CEDAW Committee Committee on the Elimination of Discrimination against Women CESCR Committee on Economic, Social and Cultural Rights CPRD Convention on the Rights of Persons with Disabilities CRPD Committee Committee on the Rights of Persons with Disabilities CRC Convention on the Rights of the Child ECHR ECtHR ICCPR InternationalEuropean Convention Covenant on on Human Civil and Rights Political Rights ICERD InternationalEuropean Court Convention of Human on Rights the Elimination of Racial Discrimination ICESCR International Covenant on Economic, Social and Cultural Rights HRC NCHR NGO Non-GovernmentalHuman Rights Committee Organisation OHCHR National Centre for Human Rights Special Rapporteur Special Rapporteur on torture and other cruel, inhuman orOffice degrading of the High treatment Commissioner or punishment for Human Rights UN United Nations UNGA United Nations General Assembly

Executive Summary

Torture and other cruel, inhuman and degrading treatment (“other ill-treatment”) are among the most serious of all human rights violations. They often result in indescribable immediate effects and profound long-term physical and mental implications. Instances of torture and other ill-treatment are rightly a focus for human rights defenders and the subject of widespread condemnation. The relationship between discrimination and torture and other ill-treatment has been less explored. And yet discrimination is often central. Individuals are sometimes subject to torture and other ill-treatment as a result of discrimination; a person’s characteristics, such as their gender, disability or age, may impact on the way in which they experience a particular type of treatment; and addressing stigma may be key to eradicating certain instances of torture and

discriminatory torture andill-treatment. ill-treatment. This report therefore seeks to fill a significant gap in the literature, by looking more closely at the specific phenomenon of This report explores the phenomenon of discriminatory torture and other - dan). In particular, it focuses on the impact of torture and ill-treatment upon twoill-treatment marginalised through groups: case studieswomen from in “protective the Hashemite custody” Kingdom and ofpersons Jordan (Jorwith mental disabilities. While there has been some attention paid by civil society and the media to the discriminatory treatment of these groups in Jordan, there is a need for closer scrutiny of the treatment they face and the extent to which they are subject to discriminatory torture and other ill-treatment. The report aims to illustrate the lived experience of these individuals in Jordan and to highlight the extent to which discriminatory views are used to detain, mistreat and silence them. research for the two case studies (Parts 4 and 5) was carried out in partnership withThe deskMizan research for Law for from this late report 2015 was to late conducted 2016. The in 2015focus andon women 2016. Theand fieldper- sons with mental disabilities was determined following detailed consultation with key stakeholders in Jordanian civil society on identifying the major patterns of discriminatory torture and other ill-treatment in Jordan. The research sought to identify the treatment these groups face in the public and private spheres, with a particular focus on institutions. This report takes a holistic approach to exploring these issues and makes recommendations for Jordan on the basis of its findings. I II EQUAL RIGHTS TRUST discriminatory discriminatory The secondpartofthereport, inPart 2.1,introduces thereader to theconcept Part 2:WhatisDiscriminatory Torture and Ill-Treatment? ity andexploring thetreatment fully ifsuchdelineationwas adopted. the possibilityofovercoming the severedisabil of understandingmental lack with relevantsultation stakeholders in Jordanthe situationinJordan about and However,umbrella.broad con carefulthis after within groupsused is term the differentof situation practicethe best requiresof and delineation specific atic a psychosocialtual, or other cognitive disabilities. The use of this term is problem the termpersons intellecwith disabilities” includesall mental “persons with perceived threat of violence, the term is a misnomer. Part 1.3 also identifies that the practicewomen ofdetaining ostensibly to protect themfrom thethreator while “protective custody”is theterm mostcommonly usedinJordan to refer to tantly, Part 1.3 outlines theterminology used in thereport, acknowledging that and members of the medicalprofession workingwith thetarget groups. Impor with members of the affected groups, members of their family andcivil society research, speaking researchincluded field field The 2016. and 2015 and in undertakenwas which desk combines report The 1.3. Part in fully more detailed The research methodology andterminologywe that have usedinthereport is highly relevant. are context specific the and discrimination multiple appropriately: respond to insufficient to ensure appropriate identification of torture and ill-treatment and groups suchaswomen andpersons disabilities ashomogenous is with mental rienced by persons. Partexplains1.2 also how the framework notes seeing that turaldiscriminationmay the severityupon impact and suffering ofpain expe thisdemandsconsiderationother ill-treatment, of how experiences of struc are appropriate andresponsive to theissues at play. Inrespect of torture and to ensure therealisationenjoyment of thefull of human rights forpersons all abuses is fully understood and exposed in order to ensure that measures taken the extent to whichand discrimination inequality relate torights other human tionship betweenright the to rights,other human and equality requiring that and understood. Part 1.2setsouthow the ship between the right toother human rightsand all equality is fully explored Equality, rights framework onequality, asexpounded inthe structure of the report. Part 1.2 explains how the report uses the unified human tive custody”disabilities. Partmental persons with and elaborates1.1 also the faced by two vulnerableverybut different groups inJordan: women in“protec nomenon of discriminatory torture andill-treatmentby exposing thetreatment 1.1 explainsthe purposeof thatthereport is to consider the underexplored phe Part 1gives thereader a brief overview of thebackground to thisreport. Part Part 1:Introduction whichrelevantis a discrimination factor manifestation inthe tortureof or other as a conceptual framework;conceptual asa thisframeworkensures the relation that torture andill-treatment, which isusedto refer to circumstances in Declaration Declaration of Principles on Principles of Declaration emphasises the rela ------ill-treatment. It argues that discriminatory torture and ill-treatment is qualitatively the WallsShouting Through distinct from other forms of torture and ill-treatment in a way which demands distinct response which combats both discrimination and torture. specific acknowledgment and that this this qualitative difference necessitates a to the four key elements which must be demonstrated for the treatment to be recognisedIn Part 2.2, asthe torture definition in internationalof discriminatory law: torturesevere painis explored and suffering; with reference intent; purpose; and the involvement of the state (Parts 2.2.1 to 2.2.4). Throughout executive summary severethese sub-sections pain and suffering the report is subjective identifies and a number the particular of important characteristics ways in which of an individuala discrimination need to analysis be taken is into relevant. account In insummary, assessing the whether report thenotes threshold firstly that has been met. Secondly, the report explores the extent to which, where there is discrimination, it may be argued that intent has been made out. Thirdly, the report emphasises that treatment “for reasons of discrimination” is one of the key pur- underutilised. Finally, the report expounds the international legal position with respectposes identified to the state’s in the involvement Convention in Against the acts Torture of private but individualsthis has, to anddate, its been due diligence obligations. Part 2.2.5 details the treatment which is excluded from person has consented to treatment which intentionally causes severe pain and sufferingthe definition – something of torture, which noting states in particularoften seek thatto argue the statewhere cannot they are argue providing that a “medical treatment” to persons with mental disabilities.

Part 2.3 explores the concept of discriminatory ill-treatment and how it relates to the concept of discriminatory torture. There is no consensus on whether or how a distinction should be drawn between the torture and ill-treatment, and the approaches of different international authorities to this issue are examined threshold for torture are given to further demonstrate the complexity of classi- fyingin detail. torture Examples and other of treatment ill-treatment. which Part have 2.3 been reiterates classified that as thefalling threshold below thefor minimum level of pain and suffering for treatment to amount to that prohibited by international law on the freedom from cruel, inhuman and degrading treatment requires that the particular vulnerabilities of the individual be taken into account. The Part also emphasises that, when considering the question of humiliation of an individual, in relation to identifying whether treatment is degrading, discrimination will be relevant.

In Part 2.4, the report sets out the international human rights law which that states must have adequate systems of investigation and must punish perpetrators.obliges states It also to prohibitnotes that torture states and have ill-treatment a due diligence from requirement occurring. It to identifies prevent acts of torture and other ill-treatment. The report argues that this requires the state to have prevention measures which are suitably targeted and appropriate to deal with the treatment in question, especially where torture and

Measures taken should be appropriately targeted and, where necessary, extra III stepsill-treatment should beis particularlytaken. prevalent against an identifiable protected group. IV EQUAL RIGHTS TRUST Part 4.1explainshow international law places obligations on Jordan to protect persons withmentaldisabilities. of Persons Disabilities hascontributedwith to thetorture andill-treatmentof toits obligations implement inaccordancethe Convention with ontheRights persons disabilities is with mentalanongoing problemJordan’s andthat failure evidence presentedthis Part in indicates widespread that discrimination against However,abuse. discriminatory to the subject are disabilities mental with sons per which to extent specific the and Jordan in disabilities mental with persons Part 4beginsby acknowledgingof clarity inrespect thelack of the numberof Part 4:Treatment ofPersons withMentalDisabilities ill-treatment. frameworks inaddressing theproblemof discriminatory torture andother demeanour in theJordanian Penal Code demonstrate the inadequacyof these of race, andreligion language andthecharacterisation of torture asamere mis onlythe Constitution explicitly guarantees non-discrimination on thegrounds fallshort ofwhat is required underinternationallaw. particular,In the fact that person and torture (Part 3.3.3). The reportthese concludes that frameworks tion (Part legal 3.3.2) and thenational framework onlibertyandsecurity of the Part3 analyses legal thenational framework and non-discrimina on equality of internationaltation law in Jordan arediscussed. also Followingon from this, Women. The binding nature of customary international law andtheimplemen tion of the ConventionFormsof All ontheElimination of Discrimination against tional humanrights law, notingthatithas failed to progress in itsimplementa Partand other ill-treatment. 3.3.1 examines Jordan’s obligations underinterna The report thenturnsto thelegalframeworks relatingto and torture equality particular concern. ofchildrenthe abuse disabilities incare with homes are highlighted asissues of or workabsence ofeducation opportunities for personsdisabilities and with continue to perpetuate discrimination against women in Jordan. Inaddition, the traditions, suchaspolygamy, patriarchaland deep-rootedattitudes stereotypes, in Jordan andtheir respective impacts.The persistence of harmful practices and provides further insight into some of the mostprevalentforms of discrimination and impunityforalty perpetrators of torture The report andother ill-treatment. portionate limitsonfreedom ofexpression, the re-instigationof thedeathpen organisations,the widespread including useofadministrative detention, dispro wide arrayrights ofhuman violationshave beenreported by non-governmental and theresultantII weak separation of powers in thecountry.notes It a that cusses the extensive executive andlegislative powers vestedAbdullah inKing Jordan’ssystem political (Part 3.1) and humanrights record (Part 3.2). It dis The thirdof thereport part provides the readera contextual with overview of Part 3:Discriminatory Torture and Ill-Treatment in Jordan persons with mental disabilities frompersons with mental torturefocuses It andother ill-treatment. ------on the human rights framework of the Convention on the Rights of Persons with the WallsShouting Through Disabilities and the way in which it operates to prohibit discrimination which leads to the exploitation and abuse of persons with disabilities. In Part 4.1.1, the right to health (contained within the Convention on the Rights of Persons with Disabilities and the International Covenant on Economic, Social and Cultural Rights) is explored. It is noted that failure to ensure that the right to health is realised by providing adequate medical care and providing reasonable accommodation for persons with disabilities can amount to torture or other ill-treatment. The report gives examples of other violations of the right to health, such as forced psychiatric interventions and sterilisations and the denial of legal executive summary international human rights law, and Part 4.1.3 considers the human rights of childrencapacity. withPart disabilities,4.1.2 looks specifically who can face at intersectionalthe prohibition discrimination of institutionalisation because inof their particular needs.

The national legal framework relating to persons with disabilities is examined in Part 4.2. Although Jordan has taken steps to combat discrimination by enacting a law to promote the rights of persons with disabilities, the law does not meet the standards required by international law. Examples of its shortcomings are given, including the law’s authorisation of segregated day centres, involuntary institutionalisation and substituted decision making. The social and political context for persons with mental disabilities in Jordan is explored in greater depth in Part 4.3; Part 4.3.1 uses the testimony of professionals working in the public health sector to illustrate the stigma faced by persons with mental disabilities and the barriers to services, including education and employment, that this can create. - medicalPart 4.3.2 resources. identifies the failings in the government’s approach to supporting per sons with disabilities, such as the insufficient provision of financial support and - ment of persons with mental disabilities. Using the testimony of 77 individuals,Part the 4.4 report sets out expounds the report allegations findings of relating a number to theof deeply torture concerning and other practices ill-treat which continue to take place in Jordan, including involuntary detention (Part 4.4.1); physical and sexual abuse (Part 4.4.2); and the arbitrary use of sedation (Part 4.4.3). Each of these may amount to torture or other ill-treatment, either suffering or because the state has failed to properly implement systems for mon- itoringbecause and there documenting has been a institutions. deliberate andIn some discriminatory of the documented infliction cases, of pain severe and

The Trust was told of one individual, a child with disabilities, who was sexually assaultedpain and sufferingand had his is inflictedarm broken upon whilst individuals being held in a in position an institution. of vulnerability. A parent who gave evidence to the Trust described discovering that their child with a mental disability had been beaten around the head in an institution, becoming permanently visually impaired as a result. Furthermore, the denial of, or lack of, adequate medical care (Part 4.4.4); and the lack of oversight of medical care (Part 4.4.5) are detailed in this report. A number of interviewees stated that their children had been refused medical care; that they had been unable to secure appointments with medical practitioners; and that doctors had failed to V inform them of their diagnosis or explain the effects of their treatment. VI EQUAL RIGHTS TRUST filling the element of pain and suffering, may amount to torture or inhuman and in detention andthetreatment of women detained while inprison, where ful and suffering caused is severe,amount to itwill torture. Inaddition, conditions suffering,and of pain toamount will it treatment inhuman whereand, thepain discriminatory,and provided reachesit that threshold theminimum ofseverity The report goes givenon to argue that, protective that custody is intentional dan’s failure to dosoby relying on protective custodyprotective asa mechanism. to exercise due diligenceto protectwomen fromJor gender-basedviolence,and tody may amountto torture or Itnotesother ill-treatment. the state’s obligation Part5.1.4 thenaddresses the ways inwhich detainingwomen inprotective cus be prevented, investigated, prosecuted andpunishedby thestate (Part 5.1.3.3). tion of women (Part 5.1.3.2); and violence against women by private actors must 5.1.3.1); states mustadoptappropriate practicalmeasures to ensure theprotec frameworktoin place be must prohibit andpunishgender-based violence (Part requires the state to do toviolence against combat women: an adequate legal obligations..PartIn report5.1.3, the what discusses detail in international law protectiveitself, of and in that custodyof Jordan’sviolation isa international and their right to befree from gender-based discrimination (Part 5.1.2) means to befree from to ill-treatment, libertyandfreedom of movement (Part 5.1.1) more,What’s therestrictive effectprotective that custody hasonwomen’s rights it fallsfar short ofitsinternationalhuman rights obligationsrespect. inthat use ofprotective custody asitskey response to violenceagainst women means rights obligation to combat violence against women and notes that Jordan’s gender-based violence in Jordan. Part 5.1 sets out Jordan’s international human This part begins by providing thereader with ageneralbackground to the issue of women by violatinganumberoftheirhumanrights. fails to achievefurther thispurpose, exacerbatesbut the harms experienced by from gender-based violence, thereportprotective submits that custody notonly womening inprotective custody. Although ostensibly usedto protectwomen Part 5ofthereport presents evidence in relationto Jordan’s practice of detain Part 5:Protective Custody achieving theserecommendations. are alsoasked to work together to monitor andpubliciseJordan’s progress in Internationaldisabilities. with persons rightshuman civiland bodies society Disabilities, andintroduces wider measures to ensure theequaltreatment of crimination inaccordance withtheConvention ontheRights ofPersons with and prosecutes actsofabuse,amendsitslegislationto prohibit allforms ofdis ends theinstitutionalisationofpersons withmentaldisabilities,investigates a makes series ofrecommendations to theJordanian government, and includingthatJordan findings report’s the from conclusions draws 4.5 Part failings. account andurges Jordan to take actionto investigate incidentsandremedy reportThe stresses thatthecumulative effectstakenbe must acts such of into degrading treatments. ------The national legal framework relating to protective custody and gender-based the WallsShouting Through violence is examined in Part 5.2. The report notes with concern that the legal pro- protective custody, Article 3 of the Crime Prevention Law of 1954, does not pro- videvision any most legal commonly basis for relieddoing so.upon In asaddition, justification the leniency for the detentionof the legislation of women crim in- inalising domestic violence and sexual assault falls far short of what is required by international human rights law.

Part 5.3 goes into further detail about the experience of women detained in

the Trust and Mizan for Law in relation to Jordanian women (Part 5.3.1.1) and executive summary foreignprotective women custody (Part in 5.3.1.2) Jordan. areThe outlined. findings Inof particular, the field research the reasons carried for women out by being detained are demonstrated by witness testimony from lawyers, non-governmental organisations and detainees in Juweida Women’s Correctional Facil- has profound impacts. In some cases women have been detained for as long as 10ity. yearsPart 5.3.1.3 and only identifies being releasedthat the misapplicationwith the support of theof a Crime male Preventionrelative or husLaw- band, a practice which is not only discriminatory but also can be fundamentally dangerous in the context of domestic violence cases. There have been cases of women being killed upon release by male relatives despite guarantees that they would not be harmed.

Part 5.3.2 focuses on allegations of abuse in detention by fellow inmates and overcrowding, poor hygiene, lack of access to health care, inadequate prenatal care,custodial problems officers. with The visitation conditions rights in detentionand few opportunities are discussed for in work Part 5.3.3,and recre with- ation being the primary problems.

The impact of protective custody on women is discussed with reference to witness testimony told to the Trust together with the results of research including that carried out by Penal Reform International. The report then explores what lies ahead for women who have been released from protective custody and iden- living independently. tifies the fact that there is inadequate support available to help them return to In Part 5.4.2, the report offers a series of recommendations for Jordan in respect of protective custody. It urges that Jordan discontinues and prohibits the practice of protective custody, takes a number of measures (both practical and legislative) to ensure compliance with its international obligations to protect women from gender-based violence and investigates the conditions of detention at women’s correctional facilities.

Part 6: Conclusions and Recommendations Part 6.1 concludes that there are serious allegations of treatment which amounts to discriminatory torture and other ill-treatment in relation to the two case studies in Jordan. To date, there has been no real exploration of the situations faced VII VIII EQUAL RIGHTS TRUST forms ofDiscriminationagainst Women. rights of Persons with DisabilitiesandtheConventionof all ontheElimination gations indiscrimination-related conventions including the Convention of the obli specific the of mindful is attention such that and issue the to dedicated be attention and resources specific urges It it. to respond and identify to how ing includ ill-treatment” and torture “discriminatory on guidance specific provide complaints mechanisms. Part 6.2 also callson the international communityto lawand practice be heldtocan ensuring it andalso byaccount full international ofrecommendationsnumber a to Jordan,improvingaimed at Jordan’s national which acknowledgeplay.discrimination at theparticular Partmakes 6.2also treatmentits formsin all and onensuringappropriately targeted responses tory torture and ill-treatment” and to focus specific attention on identifying such community. Aboveforit calls all, stakeholders to adopttheterm “discrimina Part 6.2 makes a series of recommendations to Jordan andto theinternational tect people,fulfiltheirrights andpunishperpetrators. pro to identified are responsesappropriate prevented and is ill-treatment and both by civil societyandby theJordanian authoritiesto ensure further torture While thisreportthis process, hasbegun much further attention is now required larly ininstitutions,through thelensofdiscriminatory torture ill-treatment. and by women in“protective custody” andpersons disabilities, particu with mental - - - - - 1. INTRODUCTION

Torture and other cruel, inhuman and degrading treatment are widely considered to be among the most serious of all human rights violations. In addition to having severe immediate effects, such treatment often results in profound long-term implications for an individual’s physical and mental health and effects every aspect of their life. It is, therefore, unsurprising that so much work has - ever, the extent to which addressing discrimination must be a central aspect of been done to draw attention to these injustices and seek their eradication. How torture and other ill-treatment as a result of discrimination; a person’s characteristics,the fight againstsuch as torturetheir gender, is less disabilityunderstood. or age,Individuals may impact are sometimes on the way subject in which to they experience a particular type of treatment; and addressing stigma may be key to eradicating certain instances of torture and ill-treatment. Accordingly, it discriminatory torture and ill-treatment. is necessary to look more closely at the specific phenomenon of

Kingdom of Jordan (Jordan). Discrimination against vulnerable persons in Jor- danWhile is thiswidespread phenomenon and rooted exists ineverywhere, long-held traditionalthis report viewsfocuses and on stereotypes.the Hashemite In the early stages of the Equal Rights Trust’s exploration of discriminatory torture disabilities face particularly egregious discrimination, resulting in violence and abuseand ill-treatment against them. in1 Jordan, These patterns we identified demanded that women further and exploration. persons Accordingly,with mental this report examines the treatment of both groups in Jordan, both to shed light on the treatment that they face and also as a means to explore the way in which the rights to equality and non-discrimination intersect with the prohibition of torture and other ill-treatment. While the relationship between these rights has been explored elsewhere, the extent of the discussion has been limited.2 This report aims to fill the gap in discussion. further detail and explain the conceptual framework, research methodology and terminologyThis first part used. of the report sets out the purpose and structure of the report in

1 See, below, Part 3.2. 2 Much of the discussion has focussed on state responsibility for the acts of private individuals, See, for example, Copelon, R., “Recognizing the Egregious in the Everyday: Domestic Violence as Torture”, Columbia Journal of Human Rights Law Review, Vol. 25, 1994; Cochrane Alexander, B., “Convention Against Torture: A Viable Alternative Legal Remedy for Domestic Violence Victims”, American University International Law 1 Review, Vol. 15, 2000. 2 EQUAL RIGHTS TRUST 5 4 3 hibition oftorture andotherill-treatment andto equality. provisionsconstitutional legal and thenational framework relevantto thepro overviewan rights ofthehuman explanationand an situation; of therelevant to the report in three parts: abrief discussion systemof the political in Jordan; internationalrightshuman law. prohibitionthe of discriminatory tortureother ill-treatment and topursuant explanationvides an of theterminology used. frameworkfor thereport, theresearchwas methodologythat followed, andpro fiveof parts. consists report The discriminatory torture andill-treatment. neither case hastheissue been thoroughly explored through theparadigm of few attempts to examine thetreatmentdisabilities. of persons mental with tive custodyof recentthe subject hasbeen study, afforded be topursuant internationalrightshuman law. must The treatment of women inprotec that standard the to research field through identified ment way inwhich both groups are treated, comparing the standard of care and treat and theresearchable intended to focus onthoseharms.Thereport looksthe at facedsetting inparticular, intheinstitutional were onthewhole indistinguish professionals.cal viewsthe addition, In ofthoseconsulted wereharms the that surroundingaffectedamong disability communitiesand,insomecases,medi misunderstanding of level the to due challenges significant cause would so do However,rately,toapproach. imperfectseeking an that advisedis stakeholders persons intellectual,with psychosocial andother cognitive disabilitiessepa disabilities asopposed with mental to more delineated research inrelationto in Jordan. The Trust acknowledges that research on thesituationfor persons preliminary focus group discussions among humanrightsexperts andequality tody”; two vulnerablevery but different groups inJordan: women in“protective cus of discriminatory torture andill-treatmentby exposing thetreatmentfaced by The purposeofthisreport isto examine theasyetunderexplored phenomenon 1.1 middle-east-18073144. dren’sCare Jordan”,In Homes PublicationsFiles/Files/Alternative%20Report2%20.pdf (in Arabic);Uncovers“BBC BBC, AbuseChil at Committee on Rights of the Child velopment, see National Council for Human Rights, byAbdullah King in responseII toBBC Arabic a investigation chairedand by theMinisterDe ofSocial from Jordan andTunisia practices human rights standards. national andinternational law, rather thanprovided withprotection from violenceinaccordance with tive custody isamisnomer, as itrefers to asituation inwhich women are detainedinviolationofboth and lawyers Jordanian by non-governmental organisationsworking(NGOs) noted to againstviolence combat women, the term protec been has However,as used. widely is it as custody protective term sometimes referred to as“preventative” or “precautionary” custody ordetention. Thisreport usesthe en ostensibly to protect themfrom thethreat orperceived threat ofviolence.Protective custody is An official Investigation Committee into the treatment of children with mental disabilities was ordered was disabilities mental with children of treatment the into Committee Investigation official An Baker,Søndergaard,J. and E., As isexplained intheterminology section,“protective custody” refers to thepractice ofdetainingwom 3 Purpose andStructure oftheReport andpersons disabilities. The groupswith mental were chosen following , DIGNITY, December 2015, PenalReform International, , 2014. Conditions for Women in Detention in Jordan: Needs, vulnerabilities and good BBC News, BBC , 2012–2013, availableat: http://www.nchr.org.jo/Arabic/ModulesFiles/ PartThree Part One 15 May 2012, availableat: http://www.bbc.co.uk/news/world- Annex IV and Annex VI to Shadow Report Submitted to of the report sets out theconceptual provides the contextualbackground PartTwo 4 Who are women prisoners? Survey results while there havevery been of thereport discusses 5 In ------Parts Four and Five of the report then turn to examining the treatment of per- the WallsShouting Through sons with mental disabilities and of women in protective custody. Each section begins by setting out an overview of the relevant obligations in international of the research. Each section concludes with a discussion of Jordan’s compliance withhuman international rights law andhuman the rightsJordanian law innational relation law, to thebefore treatment detailing of theeach findings group. Finally, Part Six of the report makes a series of recommendations to the Jorda-

Parts Four and Five. nian government and also the international community based on the findings in introduction 1.2 Unified Human Rights Framework on Equality - work on equality, which emphasises the integral role of equality in the enjoy- This report takes as its conceptual framework the unified human rights frame- tion of Principles on Equality.6 toment equality: of all human rights. The unified framework is expressed in the Declara Principle 1 of the Declaration defines the right The right to equality is the right of all human beings to be equal in dignity, to be treated with respect and consideration and to participate on an equal basis with others in any area of economic, social, political, cultural or civil life. All human beings are equal before the law and have the right to equal protection and benefit of the law. respect to civil and political rights and economic, social and cultural rights. It thereforeThe definition emphasises requires the equality relationship to be afforded between in the all areasright toof equalitylife, including and other with human rights, requiring that the extent to which inequality and discrimination relate to other human rights abuses is fully understood and exposed in order to ensure that measures taken to ensure the realisation of the full enjoyment of human rights for all persons are appropriate and responsive to the issues at play. For example, in the context of torture and other ill-treatment, the framework requires consideration of how experiences of structural discrimination may impact upon the severity of pain and suffering experienced by persons.

- lated in the Declaration is drawn from concepts and jurisprudence developed in international,The understanding regional of equalityand national expressed legal contexts. in the unified The same framework approach and is usedarticu in understanding of the content of other human rights, as this report seeks to do by exploringorder to elaborate discriminatory on specific torture discriminatory and ill-treatment. phenomenon and to develop a full

6 Equal Rights Trust, Declaration of Principles on Equality, London, 2008. In 2008, in a process facilitated by the Equal Rights Trust, 128 human rights and equality experts from 47 countries in different regions of the world consulted and agreed on a set of principles of equality: the Declaration of Principles on Equality. 3 “based on concepts and jurisprudence developed in international, regional and national contexts”. The Declaration promotes a unified approach to equality and non-discrimination and its principles are 4 EQUAL RIGHTS TRUST 9 8 7 Declaration provides that: of reasonableaccommodation constitutes discrimination. with international humanrights law, thereport takes the approach that adenial of discrimination found ininternationalhuman rights law.definition the on opinion expert current reflects concepts three these of Each crimination: The Declarationthree setsout typesofprohibited conductwhich constitute dis UN Doc.E/1995/22, 1995,Para 15. Article 2; with disabilities Persons with Disabilities (CRPD Committee), Economic,Culturaland Rights),Social Covenanton International the of Para2, 2, (art. rights cultural and social economic, in Non-discrimination See, for example,Committee onEconomic,and Cultural Social Rights (CESCR), See above, note 6, See, for example,Convention ontheRights ofPersons Disabilities (CRPD), with 2515 U.N.T.S3, 2006, favourably than another person or another group of persons is, has has is, persons of group another or person another than favourably or one to relatedmore prohibited grounds apersonorgroup ofpersonsistreated less reason a for when occurs discrimination Direct tions and adjustments, including anticipatory measures, to facili to measures, anticipatory including adjustments, and tions modifica appropriate and necessary the means Accommodation one ormore prohibited grounds. reasonable provide to related individuals to of capabilities different organisationsfor accommodation sector private and public To achieve full and effective it may equality be necessary to require tentionally. unin or intentionally committed be may discrimination of act An idating, hostile,degrading, humiliatingoroffensive environment. intim an creating of or person a of dignity the violating of effect or purpose the with place takes ground prohibited any to related conduct unwanted when discrimination constitutes Harassment of achieving that aimare appropriate andnecessary. means the and aim, legitimate a by justified or objectively is practice criterion provision, that unless persons, other with compared disadvantage particular a at groundsprohibited more or one with tice would put persons having a status or a characteristic associated prac or criterion provision, a when occurs discrimination Indirect strictly definedcriteria. against justified be can it when exceptionally, very only permitted be may discrimination Direct detriment. a to subjected is persons of group or person prohibiteda moregrounds or relatedreasonone to a for when or situation; comparable a in treated be would or been, ibid. CRPD Committee , UNDoc.CRPD/C/GC/3,2016,Para 17. Principle5. 7 , Para 15; and UNDoc. E/C.12/GC/20, 2009, Para 10; Committee ontheRights of General comment No. 3 (2016) – Article 6: Womengirls 6: Articleand – (2016) 3 No. comment General CESCR, General Comment No. 5: Persons with Disabilities with Persons 5: No. Comment General 9 8 Principle 13ofthe Inaddition,inline General Comment No. 20: No. Comment General ------,

tate the ability of every individual to participate in any area of eco- the WallsShouting Through nomic, social, political, cultural or civil life on an equal basis with others. It should not be an obligation to accommodate difference where this would impose a disproportionate or undue burden on the provider.

All four forms of prohibited discrimination are relevant to the determination of whether an act may amount to discriminatory torture and other ill-treatment, and this is discussed in further detail in Part 2 of the Report.

Sex, disability and health status are all clearly prohibited grounds of discrimina- introduction tion.10 Discrimination is also prohibited:

[W]hen it is on the ground of the association of a person with other persons to whom a prohibited ground applies or the perception, whether accurate or otherwise, of a person as having a characteristic associated with a prohibited ground.11

It is also important to recognise, as Principle 12 of the Declaration does, that a person may experience multiple discrimination, that is discrimination on more than one ground. As the Committee on the Rights of Persons with Disabilities has noted, recognition means:

[A]cknowledging the lived realities and experiences of heightened disadvantage of individuals caused by multiple and intersect- ing forms of discrimination, which requires targeted measures with respect to disaggregated data collection, consultation, pol- icymaking, enforceability of non-discrimination and provision of effective remedies.12

For the purpose of this report, it is particularly notable, for example, that women and girls with mental disabilities may be at particular risk of torture or other ill-treatment.13 To consider women and persons with mental disabilities as problems present. homogenous groups would fall short of identifying and addressing the specific

10 See above, note 6, Principle 5. The full list includes: “race, colour, ethnicity, descent, sex, pregnancy, mater- nity, civil, family or carer status, language, religion or belief, political or other opinion, birth, national or social origin, nationality, economic status, association with a national minority, sexual orientation, gender identity, age, disability, health status, genetic or other predisposition toward illness”. 11 Ibid., Principle 5. 12 See also CRPD Committee above, note 8 Para 16. 13 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment CRPD Committee 5 above,Human note Rights 8, Para Council, 10. , UN Doc. A/HRC/31/57, 5 January 2016, Para 9; see also 6 EQUAL RIGHTS TRUST mental disabilitiesto speakabouttheirexperiences due to thesocialstigma As noted inPart 4.3,there was ageneral reluctance onthepartofpersonswith themselves beendetainedinprotective custody, andfor their family members. uses pseudonyms for personswithmentaldisabilitiesor thosewho have through speakingto organisations who worked withthesegroups. Thereport for Law andtheresearchers themselves through visitsto prisons,clinicsand Mizanby wereidentified persons These group.focus a in part took or viewed persons who work withwomen detainedinprotective custody were inter or who have been detained inprotective custody were interviewed, and23 family memberwho hadbeeninstitutionalised.Twenty-one women who are a about spoke five additional an and institutionalised been had five persons, mental disabilitieswere interviewed ortook partinfocus groups. Ofthose40 viewed, and36persons who worked to care oradvocate for personswith Forty personswithmentaldisabilitiesortheirfamily members were inter A total of120personswere eitherinterviewed ortook partinfocus groups. the interview remains onfilewiththeEqual Rights Trust. of notes the permitted, not was recording When Trust. Rights Equal the by file interviews andfocus groups were recorded. These recordings are retained on permitted by theperson being interviewed andbyof detention, theplace the Wherever research. of stage first the of completion the following revised ther of questionsdeveloped prior toof theresearch,beginning the which were fur questions asked during interviews andfocus groups followed a suggested list disabilities andwomenmental sons with inprotective custody inJordan. The the research aimed to develop acomprehensive picture of the treatment of per from civil society were interviewed or took partinfocus groups. Inthisway, In addition, arange of stakeholders, such as doctors, nurses, teachers and those disabilities andwomenmental in protective custody andtheir family members. Safi and Fatima Alhalabiya. The research aimed to speak directly to persons with in November 2016, and was carried out by Areej MohammadSemreen, Rahaf FatimaAlhalabiya. The second stagebegan inOctober 2016 and was completed Dawany2015 Lubna Al-Hamad, Februarybyand Basel wasout and carried and 2016 November between out carried was stage first The stages. two in taken reported in other studies, where The research such studies exist. was under findings to addition in Trust Rights Equal the by commissioned research field drawnarereportfrom the of 5.3 and 4.3 Partof each presentedin findings The law provided commentsontheaccuracy andcompleteness ofeachpart. tion process, during which a numberof experts ininternational humanrights legalnational frameworks (Part2, 4.1and5.1)were to subject online valida an the sameway.framework The conceptual of the report (Part 1.2) and theinter frameworks discussed in Part 4.1 and 5.1 of the report were alsodeveloped in desk research of existing published resources. The andinternationalnational and legal research field of combination a research. Part 1,2and3ofthereport were developed through desk-based on based are findings report The 1.3 associated withmentaldisability inJordan. Research Methodology, andTerminology Scope ------Shouting Through the WallsShouting Through to an online validation process, which sought comments from experts on the sit- uationThe research facing womenfindings in and protective conclusions custody and andrecommendations persons with mental were also disabilities subject in Jordan.

It is important to note a number of matters which were outside the scope of the research. Inspection of the places in which persons were detained was not within the scope of the research. Nor was an exploration of the circumstances of women who were administratively detained for reasons other than protective custody. introduction The following terms are used in the report:

Administrative detainee refers to a person who is detained in prison but who has not been detained through the criminal justice process. This includes women who are held in “protective custody”.

Other ill-treatment refers to cruel, inhuman or degrading treatment or punishment as these terms are understood as a matter of international law and best practice.

Persons with disabilities refers to “those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”14

This report uses the term persons with mental disabilities to include all persons with intellectual, psychosocial or other cognitive disabilities.15 As outlined in Part 1.1 above, the Trust acknowledges that the use of - eation of the situation of different groups within this broad umbrella. this term is problematic and that best practice requires a specific delin- dan, the approach was taken to explore the treatment of persons with mentalHowever, disabilities after careful more consultation generally. with relevant stakeholders in Jor

Protective Custody refers to the practice of detaining women ostensibly to protect them from the threat or perceived threat of violence. Pro- tective custody is sometimes referred to as “preventative” or “precautionary” custody or detention.16 This report uses the term protective

14 CRPD, Article 1. The CRPD recognises that “disability is an evolving concept and (...) results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others”, see Preamble at (e). 15 See CRPD Committee above, note 8, Para 42; World Network of Users and Survivors of Psychiatry, Manual on Implementation of the Convention on the Rights of Persons with Disabilities, 2009, p. 9, available at: http://www.chrusp.org/home/resources. 7 16 See Baker, J. and Søndergaard, E. above, note 4, p. 27. 8 EQUAL RIGHTS TRUST 17 violates national andinternational law. dan, 1November 2016. Seebelow, Part 4fordiscussion a of theway inwhich theuseofprotective custody tion from violenceinaccordance withhumanrights standards. both nationalandinternationallaw, ratherprovidedthan protec with as itrefersto asituationinwhich women arein violationofdetained bat violenceagainst women, theterm protective custody isamisnomer, lawyers andnon-governmental organisations (NGOs)working to com Jordanian by noted been However,has used. widelyas is it as custody Comments made to theEqualRights Trust roundtablediscussing violence against women, Jor Amman, 17 - - - 2. WHAT IS DISCRIMINATORY TORTURE AND ILL-TREATMENT?

The relationship between discrimination and torture and other ill-treatment is one that has not been fully explored. Although recent years have seen increased discussion of whether the acts of private individuals may amount to torture, largely in the context of violence against women,1 there has been no detailed consideration of the way in which discrimination relates to each element of the whatdefinition constitutes of torture “discriminatory and the assessment torture ofor whetherother ill-treatment” there is other and, ill-treatment. in so doing, elucidatesThis Part of the the importance report seeks of toconsidering fill this gap inequality in the present and discrimination discourse, exploring when assessing whether an act constitutes torture or other ill-treatment.

The report uses the term “discriminatory torture and other ill-treatment” to refer to the circumstances in which discrimination is a relevant factor in the manifestation of torture or other ill-treatment. In this context, discrimination encompasses four types of conduct as outlined in Part 1.2: direct discrimination, indirect discrimination, harassment and a failure to provide reasonable accommodation. It is also important to note from the outset that discrimination may occur intentionally or unintentionally and requires no malicious motive.2

- This part will first briefly introduce discriminatory torture and ill-treatment. It- gationswill then on consider the state in to more prohibit detail both the torture relevance and ofother discrimination ill-treatment. in the defini tion of torture and then, other ill-treatment. It will finish by setting out the obli

2.1 Introducing the Concept

The Equal Rights Trust uses the term discriminatory torture and ill-treatment - because of the significance of the relationship between discrimination and tor 1 See, for example, Copelon, R., “Recognizing the Egregious in the Everyday: Domestic Violence as Torture”, Columbia Journal of Human Rights Law Review, Vol. 25, 1994; and Cochrane Alexander, B., “Convention Against Torture: A Viable Alternative Legal Remedy for Domestic Violence Victims”, American University International Law Review, Vol. 15, 2000. 2 Equal Rights Trust, Declaration of Principles on Equality - tions of discrimination contained in International Convention on the Elimination of All Forms of Racial Discrimination (CERD), 660 U.N.T.S. 195, 1965, Article 1(1);, London, Article 2008, 1 of Principlethe Convention 5. See onalso the the Elimina definition of All Forms of Discrimination against Women (CEDAW), 1249 U.N.T.S. 13,, 1979, Article 1; and Con- vention on the Rights of Persons with Disabilities (CRPD), 2515 U.N.T.S 3, 2006, Article 2, which all allow 9

for a finding of discrimination on the basis of the “effect or purpose” of a difference in treatment. 10 EQUAL RIGHTS TRUST 7 6 5 4 3 inmanyclear that, contexts, steps taken to prevent torture andother ill-treat ognising discrimination asacauseof torture andother ill-treatmentmakes it other forms of torture andill-treatmentalso necessitate auniqueresponse. Rec The distinctions between discriminatory torture andother ill-treatmentand particular characteristics. right to befree from suchtreatmentis beingenjoyed byregardless all of their Among other things itleadstoof understandingtheextent alack to which the failure to accurately tellthe story rights ofthehuman place. violationstaking to explicitly acknowledge therelevance ofdiscrimination to thetreatmentis a ill-treatmentof that impact may severe be enough toto amount torture. Afailure ical ill-treatment inadifferent way to others, and inaway which means thatthe ities. those with specific vulnerabilities – such as certain persons with mental disabil including those who have faced historical disadvantage –such as women – and ill-treatment impactsdisproportionately anddifferently upon certaingroups disabilities facepersons wider discriminationwith that society. in degrading treatmentcan resultthat from thisfailure is a manifestation of the the specific needs of persons with disabilities in detention and the inhuman and such acts. toacts amounting torture orother ill-treatmentor is particularly vulnerableto such aswomen or persons disabilities, is singledwith mental outfor particular ment ofprotected groups. key ways. Firstly, discrimination isoften acauseoftorture andother ill-treat Discriminatory torture andother ill-treatmentis qualitatively distinctintwo will beexamined inturn. response which combats bothdiscrimination and torture. Eachof these points acknowledge specific demands which way ment and,secondly, a becausethisqualitative difference necessitates adistinct in treatment ill and torture of torturetreatment andother ill is qualitatively distinct from other instances discriminatory Firstly,because reasons. two for significant is relationship The ture andother ill-treatmentand thefact it iscurrentlythat underrecognised. Finland cial Needs tion No. 27229/95, 3 April 2001, Para 111; UN Office of Drugs and Crime, Ibid Ibid., Committee, Para 53; Commissioner for HumanRights High Nations Unitedthe Office theReportof of disability: and girls and violencewomenagainst of issue the disabilities with girls of Persons with Disabilities(CRPD Committee), Ibid and other cruel, inhumanordegrading treatment orpunishment 20–24; and United Nations GeneralAssembly (UNGA), parties States by 2 article of Implementation 2: No. Comment General punishment or treatment grading See Human Rights Council above, note 3, Para 20; Para 3, note above, Council Rights Human See Council, Rights Human See 7

For example,a person disability may with amental experience psycholog ., Human Rights Council, Para 9; European Court of Human Rights, Para6; Council, Rights Human ., HumanRights Council,Para 16;seealsoHumanRights Councilabove, note 3,Para 9. , Communication No. 265/1987,UNDoc.A/44/40,1989, Para 9.2. 5 It may It alsooccurlessovertly, for example,a failure to accommodate , Criminal Justice Handbook Series, 2009, pp. 44–46; and Human Rights Committee, , UN Doc.CRPD/C/GC/3,, 2016, Para53; ibid, Human Rights Council,Paras 14-16;seealsoUNGA above, Report of the Special Rapporteur on torture and other cruel, inhuman or de or inhuman cruel, other and torture on Rapporteur Special the of Report 4 , UNDoc.A/HRC/20/5, 30March 2012,Paras 14–16. This maygroup, occur in thesenseaparticular that , UN Doc. A/HRC/31/57, 5 January 2016; Committee Against Torture,Against Committee 2016; January 5 A/HRC/31/57, Doc. UN , ibid., Committee Against Torture, Para 21; General comment No. 3 (2016) – Article 6: Women and Women 6: Article – (2016) 3 No. comment General ibid. Interim report of the Special Rapporteur on torture Committee AgainstTorture, Para21; Human Rights Council, Rights Human , UNDoc.A/63/175,28July 2008. , UN Doc., CAT/C/GC/2, 2008, Paras Keenan v United Kingdom Handbook on Prisoners with Spe Committee on theRights note 3 Thematic study on study Thematic 6 , Para 39. Secondly, Vuolanne v ibid. , Applica CRPD ------3 - - - ment will be ineffective unless steps are also taken to combat the discrimination the WallsShouting Through which leads to such acts. This has been recognised by Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (Spe- cial Rapporteur):

Full integration of a gender perspective into any analysis of torture and ill- treatment is critical to ensuring that violations rooted in discriminatory social norms around gender and sexuality are fully recognized, addressed and remedied.8

Discrimination and stereotypes may mean that the torture or other ill-treat- and ill-treatment?what torture is discriminatory ment of persons with vulnerabilities is accepted by the wider community, and the marginalised status of victims may mean that they are less able or willing to seek assistance, which fosters a climate of impunity.9 Tackling discrimination is therefore an essential part of preventing impunity for torture and other ill-treatment. For example, measures taken to prevent future inhuman treatment are unlikely to be fully effective unless they seek to tackle underlying societal stigma and prejudice against people with disabilities.

In addition, considering acts through the lens of discrimination allows for acts that have previously not been considered to be torture or other ill-treatment to be correctly recognised as such. For example, taking a gender sensitive approach of domestic violence and other forms of violence against women as torture or otherto the ill-treatment. definition of 10torture This includes and other taking ill-treatment into account has the lead ways to thein which recognition different groups experience treatment in order to determine if acts amount to torture and other ill-treatment. As the Special Rapporteur has noted:

Gender stereotypes play a role in downplaying the pain and suffering that certain practices inflict on women, girls, and lesbian, gay, bisexual and transgender persons.11

Taking into account particular vulnerabilities therefore guards against a ten- dency to minimise acts.12 because it allows for additional avenues of legal redress that are invoked by the The recognition of acts as torture and other ill-treatment is also significant of recognising “practices for what they are, i.e. torture and ill-treatment”13 has beenprohibition noted by of the torture Special and Rapporteur: other ill-treatment to be utilised. The significance

89 See CRPDHuman Committee Rights Council above, above, note 4,note Para 3, 53;Para see 6. 10 Ibid Human Rights Council above, note 3, Para 9. 11 Ibid.,., ParaHuman 9. Rights Council, Para 55. 12 Ibid., Para 8. 11 13 See UNGA above, note 3, Para 70. 12 EQUAL RIGHTS TRUST 22 21 20 19 18 17 16 15 14 to beauthoritative: Rights. or Degrading Treatment or Punishment (CAT) of theChild(CRC), on theRights ofPersons Disabilities (CRPD), with International Covenant onCivil andPoliticalRights (ICCPR), uphold The prohibition of torture is an absolute right whichstates all are required to 2.2 to combatbothdiscriminationandtorture andotherill-treatment. combatted by recognising it assuch,andby states fullymeasures implementing forcing. Discriminatory torture andotherill-treatmentonlywill besuccessfully totorture combat andotherill-treatmentshould beconsidered mutually rein is thereforeIt the obligations clearthat ofthestate todiscrimination and combat work oftheright to healthalone. due toacts of resources,lack a may asit are doiftheacts viewed intheframe other ill-treatment prevents the state from justifyingitsfailure to prevent such the contextIn the recognitionsettings, ofabusesinhealth as torture ofacts and

p. a Pragmatic Perspective on Coercive Interrogation”, Eyes oftheBeholder: ThePsychological DifficultyofDefiningTorture inLaw andPolicy”, School ofLaw, 2005,pp.5–6;Morris McDonnell,M.,Nordgren, L.F. andLoewenstein, G.,“Torture inthe of Transnational Law Transnational of G.H., Miller, 1465 U.N.T.S. 85,1984,Article1. CRPD, 2515U.N.T.S 3,2006, Article15. Case No.IT-95-17/1-T, Trial Chamber, 10December1998,Para 154. Lawmanitarian Committed intheTerritory oftheFormer Yugoslavia since1991, Hu International of Violations Serious forResponsible Persons of Prosecution the Tribunalfor national Rights, Human of Court Senegal) Ibid Ibid League ofArab States, Convention against Torture andOther Cruel, Inhuman or Degrading Treatment or Punishment (CAT), Convention ontheRights oftheChild (CRC), 1577U.N.T.S. 3,1989,Article37. International Covenant onCivil andPolitical Rights (ICCPR), 999U.N.T.S. 171,1966,Article7. International Court of Justice, Rodley,Tortureof Law”,Definition(s) International “The N.,in 334. The CAT has 159 state parties and 10 signatories. Office of the High Commissioner for Human Rights, Discriminatory Torture ., Para 83. ., 21 human rights. of violations for redress and protection legal stronger afforded be advocatescan and victims punishment, or treatment degrading or perpetrated abuse and against persons with violencedisabilities as torture or other cruel, inhuman reframing and recognizing By Paras 45,70and83. 16 Article 1 of the CAT provides a definition of torture that is considered is that torture of definition a CATprovides the of 1 Article andis contained innumerous human rights treaties, including the , 20July 2012, Para 99; see Committee Against Torture, above, note 3,Para 1;Inter-American eiig Torture Defining 19 Vol. 44,2011,fn.2;Lasson,K.,“Torture, Truth Serum, andTicking Bombs:Toward 22 Arab Charter onHumanRights theConvention againstTorture andOtherCruel,Inhuman

14 Goiburú and Others v Paraguay v Others and Goiburú , Floersheimer Center for Constitutional Democracy, Benjamin N. Cardozo Questions Relating to the Obligation to Prosecute or Extradite (Belgium v (Belgium Extradite or Prosecute to Obligation the to Relating Questions 15

Loyola University Chicago Law Journal Law Chicago University Loyola , 15September 1994,Article8. , 22 September, 2006, ParaInter128. Seealso, 20 and the Arab Charter on Human Current Legal Problems LegalCurrent 18 theConvention ontheRights 17 Prosecutor v Furundzija theConvention , Vol. 55,2002,p. 476; Vanderbilt Journal , Vol. 39,2008, - - - - ,

[A]ny act by which severe pain or suffering, whether physical or men- the WallsShouting Through tal, 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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. what is discriminatory torture and ill-treatment?what torture is discriminatory that treatment amounts to torture: severe pain and suffering; intentionally According to this definition, four elements must be present in order to conclude 23 Each of these elements will be considered in turn. inflicted; for a purpose; and by or with the consent or acquiescence of a public 2.2.1official. Severe Pain and Suffering

For any act to be considered torture it must cause severe pain and suffering. It is clear that this includes mental pain and suffering (whether alone or in combination with physical pain and suffering).24 Examples of acts that have been considered to cause severe pain and suffering include rape, falanga (beating on the soles of the feet) and threats of execution.25 In extreme cases, the sense of hopelessness arising from prolonged arbitrary detention in and of itself may lead to severe pain and suffering.26

The determination of whether a person is experiencing pain and suffering and the severity of that pain and suffering involves a subjective element, which may

- “Status of Ratification Interactive Dashboard”, available at: http://indicators.ohchr.org. Some consider that Territorythe definition of the itself Former is now Yugoslavia part of customary above, note international 16, Paras 159–161. law, see International Tribunal for the Prosecu tion of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the 23 See Copelon above, note 1, p. 308. 24 General comment No. 20: Article 7 (Prohi- bition of torture, or other cruel, inhuman or degrading treatment or punishment), RightsCAT, Article Committee 1. See also,above, for note example, 7, Para Human 9.2. A Rights discussion Committee, of jurisprudence in this regard can be found in Rodley, N. with Pollard, M., The Treatment of Prisoners Under International Law, 1992,Oxford Para University 5; see Human Press, 3rd edition, 2009, pp. 97–98. 25 Ibid. 26 Rapporteur on torture at the Expert Meeting on the situation of detainees held at the U.S. Naval Base at GuantanamoOffice of the HighBay”, CommissionerOHCHR, 3 October for Human2013, available Rights (OCHCR), at, http://www.ohchr.org/en/NewsEvents/Pages/ “Statement of the United Nations Special

DisplayNews.aspx?NewsID=13859&#sthash.fpmPLPXh.K0ZlNBd3.dpuf. See also OHCHR, “IACHR, UN ofWorking individuals Group at on Guantanamo Arbitrary Detention, Naval Base UN in Rapporteurlight of current on Torture,human rightsUN Rapporteur crisis”, OHCHR on Human, 1 May Rights 2013, availableand Counter-Terrorism, at: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13278&Lan and UN Rapporteur on Health reiterate need to end the indefinite detention- gID=E#sthash.RL8zOgfs.dpuf. In some cases of prolonged detention it is not clear if the detention was considered to amount to torture or to other ill-treatment, see, F.K.A.G. et al v Australia, Communication No. 2094/2011, UN Doc CCPR/C/108/D/2094/2011, 20 August 2013, Para Vinter and Others v theHuman United Rights Kingdom Committee,, App. Nos. 66069/09, 13 130/10 and 3896/10, 9 July 2013, Para 78. 9.8; European Court of Human Rights, 14 EQUAL RIGHTS TRUST 32 31 30 29 28 27 any discriminatory motive orstatements inthecarryingoutofanact, In additionto consideringaperson’s particularvulnerabilities, theimpactof applicable to adetermination ofpainandsuffering for thepurposesoftorture. degrading treatment rather thantorture, theprinciplesarticulated are equally todegradingand inhuman treatment. be to able to understandhissituationandovercome him hisfeelings ofisolationamounted to accommodation reasonable sufficient providing without impaired detaining amanwithanintellectual disabilitywho was alsohearingandspeech the caseof person. a on suffering and severepain inflict to or suffering and ure to provide reasonable accommodationmay beconsidered to exacerbate pain need to considertheparticularvulnerabilities ofaperson,itisalsoclearthat fail not reachingthe threshold severityof to toamount torturefor Givenothers. the characteristic,particular womenas such while mental disability a with persons or todone groupa maypeople of tolead severe sufferingand pain for a with those assessing theseverity ofpainandsuffering they have experienced –thesameact clear thataperson’s particularvulnerabilities mustbetaken into accountwhen resultexperiencingin torture ill-treatmentand ways”.distinct in More recently, theSpecial Rapporteur noted that“[i]ntersectional identitiescan tions alsoincludeconsideration ofwhether apersonhasdisability: by thecurrentpreviousand Rapporteurs, Special thesesubjective considera include factors such as theage,sex andhealthof the victim. 33

C/29/D/161/2000, 21November 2002, Para 9.2. sion ofcaselaw onthispointinLawson, A.above, note 30,pp.852–854. must have resultedto inasituationamounting inhumananddegrading treatment”. Seealsothediscus at Paraincarceration 33 “theapplicant’s that stating the requisite without measures taken within areasonableinstead time findings its in accommodation” “reasonable words the use not did Court The 28–33. Human Rights of detention: therole of supranationalmonitoring and inspectionbodies”, cases, thesex, ageandstate ofhealththevictim”. cumstances ofthecase,suchasduration itsphysicalof thetreatment, effects andmental and,insome levelminimum a attain of severity. is relative;The assessmentofthisminimum cir the depends on all it August2006, Para 86where theCourtnoted fall “[t]o within thescope of Article 3,ill-treatment must Rights, Human of Court European the by taken also See, Human Rights Committee, The distinctionbetween torture andotherill-treatment isdiscussedbelow in Rights, Human of Court European Lawson,equality,“Disability A., reasonable the avoidanceaccommodation and ofill-treatmentin places See HumanRights Councilabove, note 3,Para 9. See UNGA above See UNGA above, note 3 considering the circumstances of the case, including the existence of Assessing the level of suffering or pain, relative in its nature, requires in the victim. detention of conditions or treatment the of result a as impairment a disability, as well as looking at the acquisition or deterioration of Z.H. v Hungary , Vol. 16(6),2012,pp.851–852. , note 3, 28 ,

Para 47. Para 47; see Human Rights Committee above, note 7, Para 9.2. This approach is approachPara This above,7, Committee9.2. note Rights Human Parasee 47; , the European Court of Human Rights (ECtHR) found that Dzemajl et al. v Yugoslavia Z.H. v Hungary v Z.H. 31 Although referscase this to and inhuman , Application No. 28973/11, 8November, Application 2012, Paras Yordanov v Bulgaria Yordanovv , Communication No.161/2000, , U.N.Doc. CAT/ , Application No. 56856/00, , Application 10 The International Journal of Journal International The 27 Part 2.3. Ashasbeennoted 30 29 For example, in It is thereforeis It 33 or of 32 - - - - imbalances in power between the victim and the perpetrator due to system- the WallsShouting Through atic and structural discrimination, should be taken into account. For example, physical violence combined with discriminatory statements directed towards a person may have a more severe effect than physical abuse alone, and it is clear that human rights law allows for the cumulative effect of these acts to be considered together when determining whether the threshold for severe pain and suffering is met.34 In relation to systematic and structural discrimination, the Special Rapporteur recently noted that an assessment of pain and suffering must include consideration of “normative and institutional frameworks that reinforce gender stereotypes and exacerbate harm”.35 It is clear that dis-

crimination may in some circumstances be a determining factor in assessing and ill-treatment?what torture is discriminatory whether a victim has suffered pain and suffering severe enough to fall within the ambit of torture.

2.2.2 Intent

intentionally The definition of torture requires that the severe pain and suffering be (and was inflicted not, for on example, a person. the The result requirement of accident of or intent disease). is one It of is general not necessary intent, torather show than that specificthe perpetrator intent, requiringintended to only cause that pain the and act suffering was done through deliberately their actions.36 torture but may be considered to be another form of ill-treatment.37 Purely negligent acts, on the other hand, fall outside of the definition of it includes intentional omissions, such as denying a person food, because exclud- It is largely accepted that although the definition of torture refers only to “acts”,- trary to the purpose of the prohibition on torture.38 While it has not previously beening such explored, intentional properly omissions understood, from the in scopemany ofcircumstances the definition a wouldstate failure run con to make a reasonable accommodation where it has an obligation to do so will fall within this scope. The question becomes whether such failures can ever be con-

1.2, a failure to make a reasonable accommodation involves failing to make a necessarysidered unintentional adjustment tofor allow the purpose a person of to the enjoy definition. their human As noted rights above on an in equal Part basis with others i.e. an omission. It is arguable that such failures should not be

34 Khalilov v Tajikistan, Communication No. 973/2001, UN Doc. CCPR/C/83/D/973/2001, 30 March 2005, Para 7.2. See, for example, Human Rights Committee, 35 Para 68.

36 SeeRodley, Human N. and Rights Pollard, Council M., “Criminalisation above, note 3, of torture: state obligations under the United Nations Conven- tion Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment”, European Human Rights Law Review Spiegel, J., “Tortured Reasoning: The Intent to Torture Under International and Domestic Law” Virginia Journal of International, 2006, Law pp., Vol.124–125. 52, 2012, For pp.a discussion 792–794; ofand this Glenister, debate seeJ., Good Hathaway, Intentions: O., Nowlan, Can the A. “Pro and- tective Custody” of Women Amount to Torture?” Equal Rights Review, Vol. 16, 2016, pp. 31–33. 37 See UNGA above, note 3 The United Nations Convention Against Torture: A Handbook on the Convention Against Torture and Other Cruel, Inhuman, Or Degrading Treatment Or Punishment, Martinus, NijhoffPara 49; Publishers, Burgers, J. 1988, H. and p. Danelius,118. H., 38 15 above, note 22, pp. 6–8. See Rodley, N. and Pollard, M. above, note 36, p. 120 and the sources cited therein; see also Miller, G.H. 16 EQUAL RIGHTS TRUST 41 40 39 notingthat: ill-treatment, case inallowingdefencemedical necessity as a toof tortureclaim a andother The Special Rapporteur has also questioned the approach of the ECtHR in a 1992 healthcare settings,theSpecialRapporteur stated that: person’sis ina bestinterests.reporta In ontorture andotherill-treatmentin interests”actuallybut of thepatient based ondiscriminatory be notionsofwhat Forpresent. example,treatmentmedical may considered be toin the“best be of these purposes, “for any reason basedondiscrimination of any kind”, may be a person. intimidating at aimed be may language discriminatory of use the example, For fulfilled. be In many cases involving discriminatory torture, anumberof these purposes may a forpurpose suchas: inflicted is suffering and pain the that requires torture of definition The 2.2.3 However, thismatter hasnotpreviously beendetermined. seen asmerely negligence, giventhey that are positiverights human obligations. 42

Detention Centres 1 February 2013, Mendez E. Juan punishment, or treatment degrading or inhuman cruel, other and This listisgenerally considered to benon-exhaustive, see, See above, note 39,Para 32. CAT, Article1. Stop TortureStop Care, Health in Purpose tnig lis f go itnin” y eia professionals. medical (references omitted) by intentions” “good notwith of Torture, claims against Conventionstanding the of 1 article the under psychosocial disabilities, satisfies both intent and purpose required with persons against committed when interventions, psychiatric forced of character discriminatory the that held example, has mandate For the necessity. medical or intentions good of claims ing notwithstand disabilities, with persons as such groups, ginalized mar from patients on performed are treatments consensual non- cerned. This is conparticularly the case person when intrusive the and irreversible, of consent informed and free the without istered admin or enforced when ill-treatment or torture constitute may purpose, therapeutic a lacking when nature, irreversible and sive intru an of treatments medical that recognized has mandate The third person, or for any reason based on discrimination of any kind. is or coercinga or committed,or intimidating having him or suspectedof committed has person third a or he act an for him punishing confession, a or information person third a or him from [O]btaining , June2011,p.12. Para 21. 39 41 Treatment or Torture? Applying International Human Rights Standards to Drug Drug Torture?TreatmentStandardsto Rightsor Human International Applying However, there are some cases in which only the last the only which in cases some are However,there UNGA, Report of the Special Rapporteur on torture , UN Doc. A/HRC/22/53, Doc. UN , 42 40 ------

[T]reatment provided in violation of the terms of the Convention on the WallsShouting Through the Rights of Persons with Disabilities – either through coercion or discrimination – cannot be legitimate or justified under the medical necessity doctrine.43

Similarly, acts which amount to discrimination on the basis of sex have also been recognised by the Special Rapporteur as meeting the “purpose” require-

Nowak, stated that: ment under the definition of torture. In 2008, then Special Rapporteur, Manfred

In regard to violence against women, the purpose element is always and ill-treatment?what torture is discriminatory fulfilled, if the acts can be shown to be gender-specific, since discrimination is one of the elements mentioned in the CAT definition.44 (reference omitted)

When discussing the discriminatory purpose in Article 1 of the CAT in the con- of discrimination in Article 2 of the CRPD, which is expansive and includes all formstext of ofpersons discrimination. with disabilities,45 Article the 2 states Special that Rapporteur discrimination “recalled” on the the basis definition of disability means:

[A]ny distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation. discrimination contained in the CRPD and in other international human rights treatiesPursuant must to the be Viennataken into Convention account onwhen the interpreting Law of Treaties, the CAT. the46 definition The Vienna of Convention requires that “[a]ny relevant rules of international law applicable in the relations between the parties”, 47 be taken into account when interpreting a treaty, which includes international human rights treaties.48

43 Ibid., Herczegfalvy v Austria, Application No. 10533/83, 24 September 1992, Paras 81–83. Paras 34–35. The decision of the European Court of Human Rights that is referred to is European Court of Human Rights, 44 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, Para 30. Human Rights Council, 45 See UNGA above, note 3, Para 48. UN Doc. A/HRC/7/3, 15 January 2008, 46 note 3, Para 9.

47 ViennaSee Glenister, Convention J. above, on notethe Law 36, ofpp. Treaties, 34–36; see1155 also U.N.T.S. Human 331, Rights 1969, Council Article above, 31(3)(c). 48 The Oxford Handbook of International Human Rights Law, Oxford University Press, 2013, pp. 749–750; and International Court ofFitzmaurice, Justice, Legal M., Consequences“Interpretation for of States Human of the Rights continued Treaties” Presence in Shelton, of South D. Africa(ed), in Namibia (South-West 17 Africa) Notwithstanding Security Council Resolution 276, 21 June 1971, Para 53. 18 EQUAL RIGHTS TRUST 52 51 50 49 exercise duediligenceamountsto acquiescenceorconsentto actsoftorture: The Committee againstTorture (CAT) hasexplainedstate’sthe that failure to has failed to exercise duediligence. state the where situations to also and implicitly,or explicitly whether official, tion oftorture.which This includes acts are ordered or encouraged bystate a defini the of scope the within fall individualsprivate by out carried are which capacity.” official an in acting person other or official public a of acquiescence or consent For an act to be torture, it must be “inflicted by or at the instigation of or with the 2.2.4 bility to bemothersorwhat isintheirbestinterests. underlying (andoften unrecognised) discriminatorytheir suita attitudes about often considered to beinthebestinterests of the women,is in fact but basedon crimination. which in acts are carried out with“goodintentions” which are basedonunknowingdis situations torture of definition the within includes view this Taking ingly or intentionally discriminated againstthe act. thevictimincarryingout above inPart 2.2.2), there is no need to demonstratethe perpetrator that know sion) itself mustbeintentional(in thesenseasdiscussed it is not accidental that omis (or act the while that, torture.means of This definition the of aspect pose prohibited forms ofdiscrimination the scopeof thediscriminatorywithin pur of discrimination containedinother human rights treaties incorporatesfour all Interpreting the reference to discrimination in the CAT in line with the definition 53

above, note 24 abilities inAustralia Human Rights Quarterly plying the Definition of Torture to the Acts of Non-State Actors: The Case of Trafficking in Human Beings”, It should be noted that this aspect of the definition may be contentious, see for example, See Committee Against Torture above, note 3 CAT, Article 1. The same requirement may not be present under the ICCPR, see Human Rights Committee WomenDisabilities Australia, With See Glenister, J.above, note 36,p.30. Involvement oftheState sanction and provide remedies to victims of torture facilitates and facilitatestorture of victims to remedies provide and sanction the failure of the State to exercise due diligence to intervene to stop, Since acts. impermissible such in acquiescing or to consenting for Convention the under responsible otherwise or complicit authors, as the considered be should Convention, officials its and the responsibility bears State with consistently actors private or officials non-Statesuch punish investigate,dili and prosecute prevent, togence due exercise to fail they and actors private or officials State non- by committed being are ill-treatment or torture of acts that believe to grounds reasonable have or know law, of colour or under capacity official in acting others or authorities State [W]here 52 The inclusion of “consent or acquiescence”makes Theinclusionof “consent acts that clear it 50 For example,the sterilisation of womendisabilities is with mental , Para 2;seeabove, note 41,p.12. , March 2013,Paras 71–74,93–96. , Vol. 36, 2014, Dehumanised: The Forced Sterilisation of Women and Girls With Dis With Girls and Women of Sterilisation Forced The Dehumanised: p. 219; and thediscussion in 53 , Paras 17–19. Glenister, J. above, note 36, pp. 25–36. 51 McGregor, L.,“Ap - 49 ------

enables non-State actors to commit acts impermissible under the the WallsShouting Through Convention with impunity, the State’s indifference or inaction provides a form of encouragement and/or de facto permission.54

The principle of due diligence expressed in this way is often used to hold states responsible for violations of the prohibition of torture in individual cases when the state fails to take measures to protect a particular person or persons from the acts of a private individual. State failures to protect women from gender-based short of this due diligence requirement.55 It is clear that acts carried out in pri-

vateviolence, institutions such as domesticmay therefore violence be consideredand trafficking to havehave theoften requisite been found degree to fall of and ill-treatment?what torture is discriminatory state involvement. The Committee Against Torture has stated in this regard that:

[E]ach State party should prohibit, prevent and redress torture and ill-treatment in all contexts of custody or control, for example, in prisons, hospitals, schools, institutions that engage in the care of children, the aged, the mentally ill or disabled, in military service, and other institutions as well as contexts where the failure of the State to intervene encourages and enhances the danger of privately inflicted harm.56

In addition to applying in circumstances where there is a known risk of harm to particular person (or a risk that ought to be known), the principle of due diligence may apply at a systematic level, making states responsible for the acts of a private individual when the state has failed generally to meet its obligations to prevent torture.57 In these circumstances the state is responsible not because it knew of a particular risk to any one person, but because it had failed in its obligations to such an extent that there was a risk to all persons in a group. In the case of Maria Da Penha v Brazil Rights stated that: , the Inter-American Commission on Human The condoning of this situation by the entire system only serves to perpetuate the psychological, social, and historical roots and factors that sustain and encourage violence against women. Given the fact that the violence suffered by Maria da Penha is part of a general pattern of negligence and lack of effective action by the State in prosecuting and convicting aggressors, it is the view of the Commission that this case

54 Ibid., Para 18. 55 Ibid., Opuz v Turkey, Application No. 33401/02, 9 June 2009 in the context of the right to life. Para 18. See, for example, European Court of Human Rights, 56 See Committee Against Torture above, note 3, Para 17. See also above, note 39 Para 24. As the Special Rapporteur notes, the CEDAW Committee has stated that “the State is directly responsible for the action of private institutions when it outsources its medical services and that, furthermore, the State always maintains the duty to regulate and monitor private health-care institutions”, in CEDAW Committee, da Silva Pimentel v Brazil, Communication No. 17/2008, UN Doc. CEDAW/C/49/D/17/2008, 27 September 2011, Para 7.5. 57 Redress, Using international jurisprudence on rape as a form of torture or other ill-treatment, October 19 2013, pp. 70–74. 20 EQUAL RIGHTS TRUST 61 60 59 58 definition the of torture, from itisconsidered by somethatundertheCAT “states canallow for sanctions a lawful of exclusion express the to addition In This approach isnow widely accepted. both). NigelRodley, when SpecialRapporteur, noted thatlawful sanctions: these sanctionsmustbelawful according to nationalorinternational law (or whether definition the of wording the from clear not is However,it (sanctions). tions”. is “painorsuffering arisingonly from, inherent inorincidentalto lawful sanc The definition of torture contains only one explicit exception from its scope, which 2.2.5 ther detailinPart 2.3below. prohibition of torture inindividualcases. These obligations are explored infur somecircumstancesin to lead state the held responsible being forthe violating ing by failing to take specific measures to prevent discriminatory treatment, may Thus a state’s failure to meet itsobligations to prevent torture generally, includ

Treatment orPunishment, Mendez, J., punishment or ment sion onHumanRights resolution 1995/37B Rapporteur,Special theCommis toRodley,of Mr. Reportpursuant S. Punishment: Nigelsubmitted or ment TreatDegrading or Inhuman Cruel, Other TortureParticular:and in Imprisonment, or Detention of Form United Nations Economic and SocialCouncil, CAT, Article1. 2001, Report No.54/01, 2001,Paras 55–56. UNGA Inter-American Commission on Human Rights, 59 Exclusions andDefences tive ofthe society, to take effective actionto sanctionsuch acts. since sees society no evidence of violence,willingness by the State, as the representa domestic to conducive is that climate a creates ineffectiveness also judicial discriminatory and general That practices. degrading theseprevent to obligation the also but convict, and ecute pros to respect with obligation the fulfill to failure only not involves sanction oflegislation,administrative rules orjudicialorder. been authorized in a procedurally legitimate manner, i.e. has through punishment the the because simply interro lawful deemed custodial be can – of gation context the say, in, unlawful unquestionably be would which acts - amputation and flogging death, to stoning as cannot accept the notion that the administration of such punishments Rapporteur Special the contrast, By (…) systems. penal all almost to common is which imprisonment, through liberty of deprivation as such community, international the by legitimate as accepted widely practices constitute that sanctions those to refer necessarily [M]ust Itisclearfrom itswording thatthisexclusion appliesto punishments , Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treat degrading or inhuman cruel, other and torture on Rapporteur Special the of report Interim , The Death Penalty and the Absolute Prohibition of Torture and Cruel, Inhuman, and Degrading and Torture Inhuman, Cruel,of Prohibitionand Absolute the and Penalty Death The , UN Doc.A/67/279,9August, 2012, Para 28. 2012,p.3. , UNDoc,E/CN.4/1997/7, 10 January1997,Para 8. QuestiontheRightsPersonsof all Human of Subjected to any Maria Da Penha v Brazil 61

It remainsIt disputed by some states, , Case 12.051, Decision of 16 April 60 58

------the WallsShouting Through fering.”62 This is widely disputed.63 In the event that consent was permitted as adefence defence, of itconsent must be to fullytreatment informed involving and voluntarily intentional given. infliction64 The of requirement pain or suf to obtain consent cannot be forgone based on a presumption that a person lacks the capacity to make a decision, and discriminatory attitudes which see consent.65 Similarly, discrimination may exacerbate existing power imbalances betweendecisions patients made for and a patient’s doctors ownsuch “benefit”, that a patient cannot is excuse not truly a failure making to obtaina free choice.66 The requirement for consent to medical treatment is discussed in further detail in Part 2.2.3 above. what is discriminatory torture and ill-treatment?what torture is discriminatory

2.3 Discriminatory Ill-Treatment

Ill-treatment (that does not amount to torture) is prohibited by the ICCPR, the CAT, the CRPD, the CRC and the Arab Charter.67 All of these treaties, with the exception of the Arab Charter, prohibit “cruel, inhuman or degrading treatment or punishment” (referred to together as “other ill-treatment”), but none provide further explanation of what these terms mean.68 The distinction between tor-

Committee has expressly noted that it does not consider it necessary to draw a distinctionture and other between ill-treatment the concepts, is not often and that clearly whether made. aIndeed, distinction the Human can be Rights made depends on the severity, nature and purpose of the treatment, and its juris- 69 On the other hand, the European Court of 70 prudence largely reflects this view. Human Rights has drawn a distinction between torture and other ill-treatment,

62 See Rodley, N. and Pollard, M. above, note 36, p. 124. 63 Oliver Lewis discusses the example of whether a person can consent to ill-treatment such as lashings in order to “cure” mental illness, see Lewis, O. “Consent to ill-treatment”, MDAC, 11 March 2013 available at: http://www.mdac.info/en/olivertalks/2013/03/11/consent-ill-treatment. In international criminal law, consent is not considered a defence to torture, see, for example, de Brouwer, A.L.M, Supranational Crim- inal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR, Intersentia, 2005, p. 121 and fn. 162; McDonald, G.K. and Swaak-Goldman, O. (eds), “Substantive and Procedural Aspects of International Criminal Law: The Experience of International and National Courts”, Kluwer Law Interna- tional, Vol 1, 2000, pp. 314–315. 64 See above, note 39, Para 27. 65 Ibid., Para 27; UNGA, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, UN Doc. A/64/272, 10 August 2009, Paras 10–17. For examples of such decisions, see Women With Disabilities Australia above, note 51, Paras 93–99. 66 See above, note 39, Para 29; see also UNGA above, note 65, Para 45. 67 ICCPR, Article 7; CAT, Article 16; CRC, Article 37; and CRPD, Article 15. 68 Article 8 uses similar wording, prohibiting “cruel, degrading, humiliating or inhuman treatment”. Council of Europe, Convention for the Protection of Human Rights and Fundamen- talArab Freedoms Charter, on1950, Human Article Rights, 3 uses the wording, “inhuman or degrading treatment or punishment”. 69 pp. 93–94. The Committee Against Torture has noted that the distinction “between ill-treatment and tor- tureSee Humanis often Rightsnot clear”, Committee see Committee above, Against note 24, Torture Para 4; above, see Rodley, note 3, N.Para with 2. Pollard, M. above, note 24, 70 Amnesty International, Combatting Torture and Other Ill-Treatment: A Manual for Action, 11 November El Masri v The Former Yugoslav Republic 21 of Macedonia¸ Application No. 39630/09, 13 December 2012, Para 197. 2016, p. 78. See, for example, European Court of Human Rights, 22 EQUAL RIGHTS TRUST 74 73 72 71 onment, ciples for the Protection of PersonsAll under Any Form of Detention or Impris used inArticle16oftheCAT,the Generalwith and also Assembly’s Body ofPrin ered to betorture This the wordingis bothinlinewith orother ill-treatment. torture,of definition the of elements other ill-treatmentother ill-treatmentsuch that of theremainingmeet all must ratheridentifying only than between onedistinguishingelement torture and torture,of definition the of moreelements or one meet not does it turebecause ture.tor of definition the of elements the of more or one meet not does it because a negative one–other ill-treatmentis treatment that The distinction between tortureother ill-treatment and is mostoften drawnas some casessimply referring to “ill-treatment”. although theCourt does not always make this distinction in itsjudgments, 75 prisonment UNGA, treatment applied”, seeHumanRights Committee above, note 24,Para 4. Com Rights Human the what mitteewhen meant itnotedthe distinctiondepended that on the“nature,be purposeandseverity ofthe also may This 75–76. pp. 70, note above, International Amnesty See Committee above, note 24,Para 4,Para 10;seealsoCommittee Against Torture above, note 3, Para 10. Vol.11, 2008, p. 242. “Gender Violence as Torture: The Contribution of CAT GeneralComment No. 2”, of torture (ifthisiswhatis proposed by Nowak)stronglyhas been contested, see,for example,Copelon, R, grading treatment”, 2008, p. 77; and Nowak,and McArthur,M. E.,“Thedistinctionbetween torture and cruel,inhumanor de and McArthur, E., Nowak Manfred punishment, or ment the victim”, UNGA, degrading treatment may bestbeunderstood to bethepurpose of the conductandpowerlessness of of powerlessness decisiveof thevictim,“the criteria for distinguishing torture fromand cruel,inhuman ley, N. withPollard, M.above, note 24, see Rodley, N., above, note 22, p. 476. In relation to distinctions based onpurpose, see, for example,Rod Practices Constitute Torture?:US Standards” UNand something moresevere than and suffering, pain previously ashadbeen proposed, seeNowak,“What M., 98-99, 114. CAT/C/41/D/257/2004, 21 November 2008, Para9.3; see Rodley, N.Pollard, with above, M. note 24, see, for example,Committee Against Torture, relationtion ofboththeseelements.In to distinctions on thebasisofseverityand suffering ofpain of: the severity of the painandsuffering; the purpose (only torture requiring a purpose); or a combina cember 2012. Rights, Human of example,forEuropeanCourt See, A distinction betweendistinctionA torture andotherforms ofill-treatmentis mostcommonly drawnbasis on the See AmnestyInternational above, note 70,pp.75–76. 72 Interpreting other ill-treatmentas treatment doesn’tthat toamount tor the passingoftime. and place of awareness his of or hearing, or sight as such senses, natural his of any of use the deprive of permanently, which or temporarily conditions him, in person imprisoned or detained a of holding the including mental, or physical whether abuses, against should be interpreted so as to extend the widest possible protection punishment” or treatment degrading or inhuman “cruel, term The 74 Res. 43/173. Body of Principles for the Protection of All Persons under Any Form of Detention or Im AnyAllor Personsunder DetentionFormProtectiontheof of for Principles of Body Res. 43/173. which states that: , 9December1988, Annex, Principle 6. However, it should be noted that this is no longer considered as requiring that torture inflicts The United Nations Convention Against Torture: A Commentary Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treat Torture In relationIn to distinctions drawnfactors,of both combination on a see , Vol. 16, 2006. The addition of powerlessness as an element of the definition the of element an powerlessnessas of Vol.addition , The 2006. 16, 75 , UNDoc.E/CN.4/2006/6, 23 December 2005, Para 39; pp. 98–99. Nowak takes the same approach,adds but the element 73 Keremedchiev v Bulgaria v Keremedchiev widens the scope of what may beconsid Mityaginy v.Mityaginy Russia Human Rights Quarterly 71

does not , Application No. 20325/06, 4 De , Application , Comm. No. 257/2004, UN Doc. , Vol., 820–821; 28, 2006, pp. New York City Law Review amount to amount torture , Oxford University Press, Human Rights Nowak,M. pp. ------, Shouting Through the WallsShouting Through suffering which is less than severe may be considered to be other ill-treatment.76 In accordance with the above interpretation, treatment which inflicts pain and The Committee Against Torture has commented that the distinction between torture and ill-treatment is not always clear, but that it will depend on the severity of pain and suffering.77 For instance, the Committee has found that injuries ill-treatmentinflicted on an in individualArticle 16 ratherwhen excessivethan Article force 1 of was the usedCAT onduring the basis an arrest that theby applicant’sthe police, includinginjuries did bruising not amount to the to kidneys, severe pain fell andwithin suffering. the definition78 Other oftypes other of

treatment that may fall within Article 16 include, for example, poor conditions and ill-treatment?what torture is discriminatory of detention,79 using restraint chairs and electro-shock devices,80 and in some 81 instances, solitary confinement. notSimilarly explicitly to the listed HRC, what the constitutesInter-American ill-treatment. Commission By way and of Inter-American example, the African Court Commissionof Human Rights have and found the thatAfrican an individual Commission who on was Human held and in a People’s two-by-three Rights metre have cell with continuous light for three months without access to a bathroom amounted to ill-treatment but did not meet the threshold for torture.82 The Inter-American Commission have stated that distinguishing between torture and other ill-treatment should be “done on a case-by-case basis, taking into account the peculiarities thereof, the duration of the suffering, the physical and mental effects on each spe- 83

Thecific distinctionvictim, and thebetween personal severe circumstances and other forms of the ofvictim”. pain and suffering has been discussion and jurisprudence elaborating the content of what constitutes “inhu- mandiscussed and degrading in some detailtreatment by the and ECtHR, punishment”. which The is responsible Court has made for much it clear of that the acts must still meet a minimum threshold of pain and suffering in order to be considered other ill-treatment.84 - ples can be drawn from its jurisprudence and the jurisprudence and comments However, the extent to which general princi

76 See Amnesty International above, note 70, pp. 75–76. 77 See Committee Against Torture above, note 3, Para 10. 78 See Committee Against Torture above, note 73, Para 9.3. 79 Committee Against Torture, Concluding Observations: Nepal, UN Doc. CAT/C/NPL/CO/2, 15 December 2005, Para 31. 80 Committee Against Torture, Concluding Observations: USA, UN Doc. A/55/44, 1–19 May 2000, Para 179. 81 Committee Against Torture, Concluding Observations: Switzerland, UN Doc. A/49/44, 1994, Para 133. See also UNGA, Interim Report of the Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment, UN Doc. A/66/268, 5 August 2011, Paras 70–78

82 for further discussion in respect of solitary confinementOuka as v tortureKenya, Applicationor other ill-treatment. No. 232/99, 2000, Paras 23 and 26. African Commission on Human and People’s Rights, 83 Luis Lizardo Cabrera v Dominican Republic, Case 10.832, 1997, Para 83. Inter-American Commission on Human Rights, 23 84 Jalloh v Germany, Application No. 54810/00, 11 July 2006, Para 67.

European Court of Human Rights, 24 EQUAL RIGHTS TRUST 89 88 87 86 85 made. be to treatment degrading of finding a for necessary not is but treatment, the of Whether there isanintention to humiliate or debaseisrelevant to theassessment even where severe painhasnotbeen inflicted.” the victimconstitutehumiliating aimed at degrading treatmentor punishment The previous Special Rapporteur, Manfred Nowak,similarly noted“[a]cts that The ECtHRhasdescribeddegrading treatment astreatment thatis: Degrading actsare commonly characterised as those humiliatethat thevictim. any activities. whichcells, hadnonatural nearlylight, 24hoursday,a the chanceto without do crowded, hadunsatisfactory sanitaryfacilities andprisoners were keptin their to be inhumananddegrading incircumstances inwhich the cellswere over- Court considered thesuffering arisingfrom conditions ofdetentionprison ina degrading”.and “inhuman both is Fortreatmentexample, the that finds often It prisoner a byshackling to theankle ahospitalbedto beinhumantreatment. the assessment of the severity of pain andsuffering. The Court has considered discrimination and theparticularvulnerabilities ofanindividual are relevantto bodilyactual injuryorintense physicalsuffering”. andmental it wasalia, premeditated, was appliedfor hours at astretch and caused either inter “because, inhuman be to treatment considered has ECtHR the said, That factsindividualof an consideredbe case will closely inreachingdetermination. a of other international and regional bodies should not be overstated. The specific 90

ber 2003, Paras 105,117. See, for example, European Court of Human Rights, as degrading”. SeeEuropean CourtofHumanRights above, note 85,Para 52. or inferiority of breaking capable an individual’s moraland physical resistance, itmay becharacterised showingof respect alack for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish Court of Human Rights takes a similar approach, “[w]here treatment humiliates or debases an individual, inanymust, event,other elements beyond entail the mere factof deprivation ofliberty”. The European punishment to be degrading, thehumiliation or debasement involved must exceed a particularlevel and 23380/09, 28September 2015,Para 87. See above, note 84 European CourtofHumanRights, 47–60. Rights, Human of Court European note 24,pp.126–143. 2346/02, 29 April2002, Para 52.Seealsotheexamplesprovided in Rodley, N.Pollard, with above, M. Ibid., See UNGA above, note 73,Paraabove,35. Seealso note 7,Para9.2 where theCommittee notes“for that 90 aa 8 Se lo Erpa Cut f ua Rights, Human of Court European also, See 68. Para victim to actagainst hiswill orconscience. their physical or moral resistance, or when it was such as to drive the breaking possibly and them debasing and humiliating of capable ity [S]uch as to arouse in its victims feelings of fear, anguish and inferior Thehumiliationmay befelt by intheeyes ofthevictim,itis notnecessary 87 , Para 68. See also European Court of Human Rights, I.I. vBulgaria Hénaf v France v Hénaf , ApplicationNo.44082/98,9June2005,Paras 70–80. Yankov v Bulgaria , Application No. 65436/01, , Application 27 February 2004, Paras 89 88

rty Uie Kingdom United v Pretty

(references omitted) , Application No. 39084/97, 11 Decem 39084/97, No. Application , Bouyid v Belgium 85 Asnoted above, , Application No. , Application , Application No. , Application - 86 - that others consider him or her humiliated.91 Examples of acts found to be degrad- the WallsShouting Through ing include forcibly shaving a detainee’s head,92 verbally abusing and deriding a detainee during a strip search,93 - tody. 94 Discrimination will be relevant when determining whether a person has been humiliated. It has been recognised and being that slapped discrimination by a police officermay itself while in in some cus circumstances amount to degrading treatment. The European Court has noted:

[T]hat publicly to single out a group of persons for differential treatment on the basis of race, might in certain circumstances, constitute a special form of affront to human dignity; and that dif-

ferential treatment (…) might therefore be capable of constituting and ill-treatment?what torture is discriminatory degrading treatment.95

In relation to infringements on human dignity, the Court has recently noted that:

For that reason any conduct by law-enforcement officers vis-à-vis an individual which diminishes human dignity constitutes a violation of Article 3 of the Convention. That applies in particular to their use of physical force against an individual where it is not made strictly necessary by his conduct, whatever the impact on the person in question.96

2.4 Obligations of the State to Prevent Torture and Other Ill-Treatment The Committee Against Torture has made it clear that both the prohibition of torture and the prohibition of other ill-treatment are non-derogable, and that states are obliged to take steps to prevent both torture and other ill-treatment.97 - ture are equally applicable to the prohibition of other ill-treatment.98 The Committee has confirmed that the obligations in the CAT applicable to tor

91 See above, note 88, Para 87. 92 See above, note 90, Paras 108–122. 93 Iwańczuk v Poland, Application No. 25196/94, 15 November 2001, Paras 58–60. European Court of Human Rights, 94 See above, note 88, Paras 100–113. 95 East African Asians v United Kingdom, Application No. 4403/70, 14 De- cember 1973, European Court of Human Rights, Cyprus v Turkey, Application No. 25781/94, 10 May 2001, ParasPara 309–310, 207. However, where the this Court finding also was found based discriminatory on the “special treatment importance” to amount attached to be todegrad racial- discrimination. See also, European Court of Human Rights, Abdulaziz, Cabales and Balkandali v United Kingdom, Application no. 9214/80; 9473/81; 9474/81, 28 May 1985, Paras 90–91, where the Court ing within the meaning of Article 3. European Court of Human Rights - ence of treatment complained of did not denote any contempt or lack of respect for the personality of the applicantsdeclined to and find that that it discriminatory was not designed treatment to, and didamounted not, humiliate to degrading or debase”. treatment, noting that “the differ 96 See above, note 88, Para 101. 97 See Committee Against Torture above, note 3, Para 3. 98 Ibid., Para 6, “[t]he Committee considers that articles 3 to 15 are likewise obligatory as applied to both tor- 25 ture and ill-treatment.” 26 EQUAL RIGHTS TRUST 104 103 102 101 100 99 torture iswell established.TheCommittee Against Torture hasstated that: extratance of taking steps to ensurevulnerable that groups are protected from is qualitatively distinctfrom otherforms of tortureThe impor ill-treatment. and As notedthe outsetofthisPart, at discriminatory torture andother ill-treatment from torture. more broadly by exercising duediligenceto protectthose intheir territory all individualin an tion theyso that case) and aretheir treaty meeting obligations ered to beacquiescingorconsentingto torture (andthereforefor liable viola a ill-treatmentcarried out by private individualsthey bothso that are notconsid requiredalso to prevent,investigate, prosecuteof torturepunish acts and and for rehabilitationas full as possible. toredress obtain and fair and adequate compensation,includingthemeans of or their anycomplaint evidence they give. be protectedmust againstany ill-treatmentconsequence as a or intimidation impartially examined by competentand witnesses authorities. Complainants have been subjected to torture to complain andto have their case promptly and Article 13 of the CAT guarantees the right of individuals whotheythat allege there are reasonablegrounds to believeof tortureact an carried has been out. States mustensurea prompt that investigation andimpartial iscarried out when of any individual subjected to any form of arrest, detention or imprisonment”. cials andothers who may beinvolved inthecustody, interrogation or treatment offi public personnel, military,medical or civil personnel, enforcement “law of cation andinformation regarding the prohibition against torture in thetraining nature”. by“punishable be appropriatewhich penalties take intotheir grave account whichto amount in torture. complicityorparticipation under its criminal law”. This alsoappliesto attempts to commit torture, andacts Article 4of the CAT requires states to ensureacts of torture“all that are offences 106 105

CAT, Article14. CAT, Article13. CAT, Article12. CAT, Article10(1). CAT, Article4(2). CAT, Article4(1). See Committee Against Torture above, note 3,Para 21. See above, note 57,p.61. tation ofother positive measures ofprevention and protection. implemen ensuring and individuals these against abuse and lence of being tortured, by fully prosecuting and punishing all acts of vio risk at especially groups of members of protection the ensure fore, toprevent torture ill-treatmentor States(…) partiesthere should, obligation the of part a is torture of risk at especially populations or individuals marginalized or minority certain of protection The 100 Pursuantto Article10 of theCAT, states are required to provide edu 105

104 As noted in Part 2.2.4 above, states are 103 Victims of torture have theright 99 Suchoffences must 106 - - - 102 101 - - - - -

This has been reiterated by the Special Rapporteur, noting that: the WallsShouting Through

States have a heightened obligation to protect vulnerable and/or marginalized individuals from torture, as such individuals are generally more at risk of experiencing torture and ill-treatment.107

As has been recently recognised by the Special Rapporteur, measures to combat and prevent discrimination are essential to preventing the torture and other ill-treatment of vulnerable individuals. In a recent report on gender perspectives on torture, the Special Rapporteur recommended that states take measures including repealing laws that support discrimination and oppression, such as laws and ill-treatment?what torture is discriminatory which grant pardons to rapists who marry their victims, and providing training to 108 These obligations are discussed in further detail in Parts 3.1 and 5.1 below. public officials and community sensitisation to combat discrimination.

107 See above, note 39, Para 26. 27 108 72(g).

See Human Rights Council above, note 3, Para 69, 28 EQUAL RIGHTS TRUST 7 6 5 4 3 2 1 directorsthe and ofintelligenceriot police. the and to appointanddismiss,amongstothers,membersoftheConstitutional Court granted theKingeven more extensive powers; henow hasunchecked power Minister.Prime the the power to dismissbothhouses. the Chamber ofDeputiesiselected by thepublic,although theKingretains Chamber ofDeputies(lower house). bly. King andlegislativethe powervested is National Assem intheKing andthe King, currently KingAbdullah II,asheadofstate. Jordandom of was (Constitution) adoptedand declares1 January 1952 on the Jordan isaconstitutionalmonarchy. 3.1 analysis butrather to provide thecontext to thefindingsthatfollow. tois not of thispart The aim other ill-treatment. and providecomprehensive a rights recordlegal and itsnational framework relatingto equality andto torture of thereportThis part providesoverview an ofJordan’ssystem, political human 3. 3 tionnet.org/news/jordans-2016-constitutional-amendments-return-absolute-monarchy. amendments: Areturn to absolute monarchy?”, ommend-powers-king-jordan-160421115110995.html; S.,“Jordan’s andObeidat, 2016constitutional Al Jazeera ments-king-powers.html; Younes, A.,“Jordan King Abdullah setto consolidate executive power”, able at:http://www.al-monitor.com/pulse/originals/2016/05/jordan-adopts-constitution-amend html; AlSharif,O., “Changesto Jordan’s constitutionraise concerns”, http://www.aljazeera.com/news/2016/04/jordan-constitution-give-king-power-160428065710977. “Jordan changesconstitutionto give Kingmore power”, D8%B5%D9%84-%D8%A7%D9%84%D8%B1%D8%A7%D8%A8%D8%B9.html. SeealsoYounes, A., emite Kingdom ofJordan Constitution isavailable atGovernment oftheHashemite KingdomofJordan, 2016, available Theamendedtext at:http://carnegieendowment.org/sada/63882. ofArticle40the Sowell, K.K.,“A NewRole for Jordan’s Parliament”, Ibid https://freedomhouse.org/report/freedom-world/2016/jordan. Ibid Ibid Ibid Ibid Constitution oftheHashemite Kingdom ofJordan, 1952,Article1. TheNationalAssembly ismadeupoftheSenate (upperhouse)andthe AND ILL-TREATMENT INJORDAN Political System DISCRIMINATORY TORTURE ., Article35. ., Articles24,36and67;Freedom House, ., Articles25and62. ., Articles25and26. ., Article30. , 24April2016,available at:http://www.aljazeera.com/news/2016/04/amendments-rec 6 Amendments toAmendments have2016 of April in Constitution the : http://www.pm.gov.jo/content/1405787177/%D8%A7%D9%84%D9%81% 5 Freedom inthe World 2016:Jordan TheKingalsoappointsandmay dismiss 1 The Constitution of the Hashemite King Hashemite the of Constitution The 4 CONSTITUTIONNET TheKingappointstheSenate whereas Carnegie Endowment for International Peace Al Jazeera, 2 Executive power isvested in 28April2016,available at: , 27May 2016,http://www.constitu Al-Monitor, 7 While the governmentWhile

Constitution ofthe Hash , 2016,available at: 4 May 2016,avail

, 22 June - -

- - - - - claimed that the amendments strengthened the separation of powers, they the WallsShouting Through have been subject to criticism:

With these amendments now in place, Jordan is moving toward an absolute monarchy as opposed to a constitutional monarchy whereby the King would rule through a legally accountable executive branch.8

Despite these amendments, the Constitutional Court remains an independent judicial body according to the Constitution,9 and all members of the judiciary are 10 also deemed to be independent. and ill-treatment torture discriminatory in jordan

Jordan is divided into twelve regions, known as governorates, each of which is headed by a governor who is appointed by the King. The governors act to implement the decisions of the central government in the regions and maintain law and order.11 The Crime Prevention Law of 1954 allows governors to detain persons without charge, including to prevent the commission of a crime.12

3.2 Human Rights in Jordan Although it is party to seven of the nine core human rights treaties (discussed below in Part 3.3.1), Jordan has been subject to widespread criticism for its failure to meet its human rights obligations. NGOs have documented a wide array of human rights concerns and violations, including the widespread use of administrative detention,13 increasing limits on freedom of expression,14 the re-instigation æof the death penalty15 and impunity for perpetrators of torture and other ill-treatment.16 These concerns have been echoed by the treaty bodies and special mechanisms of the United Nations.17

8 See Younes, A., “Jordan changes constitution to give King more power” above, note 7, quoting an MP who voted against the amendments, Abdel Karim al Dughmi. 9 See above, note 1, Article 58(1). 10 Ibid., Article 97. 11 European Union, Committee of the Regions, Jordan: Vertical Division of Power, 3 June 2014, p. 6; see also

12 Freedom House above, note 5. The Status of Female Inmates at Reform and Rehabilitation Centers in Jordan, September 2014, pp. 12–13. The use of this law to detain women in protective custody is dis- cussedNational below Centre in Partfor Human 5.2 and Rights,5.3. 13 World Report 2016: Jordan, 2016, p. 343; and Amnesty International, The State of the World’s Human Rights, 2015/2016, p. 211. Human Rights Watch, 14 Ibid.

15 Ibid Human Rights Watch, p. 339; see Freedom House above, note 5. 16 Ibid.. Human Rights Watch, p. 342; see Amnesty International above, note 13, p. 211. Council, Summary prepared by the Office of the High Commissioner for Human Rights in accordance with paragraphHuman 5 of Rights the annex Watch, to Human p. 342; Rights see Freedom Council resolution House above, 16/21: note Jordan 5. See generally, Human Rights JOR/3, 24 July 2013. , UN Doc. A/HRC/WG.6/17/ 17 See Committee Against Torture (CAT), Concluding observations on the third periodic report of Jordan, UN 29 Compilation prepared

Doc. CAT/C/JOR/CO/3, 29 January 2016, Paras 10 and 21; Human Rights Council, 30 EQUAL RIGHTS TRUST 21 20 19 18 danian women. men weredanian expected to receivepension compared a to only 12% of Jor The ofdiscrimination impact is evident inrecent statistics.In2012, 82% of Jor Lawrequires women to haveguardianmale theconsentofa inorder to marry. of lawsrelate that to family andmarriage.For example,Jordan’s Personal Status rights. Inother areas, laws are blatantly discriminatory. This is particularly true has alsomaintaineditsreservation to theCEDAW inrelationto nationality equal life,and work. includingeducation,health a Jordanian mother and aforeign father rights andprivileges insome areas of Jordanianbasis with equal an men, Jordan has instead granted thechildren of Lawto allowJordanian women to onto passtheirnationality theirchildren on trulydiscrimination. combat For example,rather thanamendingitsNationality areaa commitmentmadeinparticular the necessary without change to but Efforts todiscrimination combat often appeartoefforts; be partial there may be Discrimination against Women (CEDAW Committee) hasexpressed: areasdiscrimination in all of their lives. inatory laws andreduce discrimination against women, women continueto face reported against women. WhileJordan hasmadesomeefforts to repealdiscrim Discrimination againstvulnerable groups iswidespread, andisparticularly 22

UN Women, en%E2%80%99. al-status-law-among-world%E2%80%99s-highly-discriminatory%E2%80%99-laws-against-wom women”, Ibid CEDAW/C/JOR/Q/6, 29July 2016,Para 14. CEDAW Committee, Ibid JOR/CO/5, 23March 2012; vations of the Committee on the Elimination of Discrimination against Women: Jordan Committeeof Discrimination ontheElimination against Women (CEDAW Committee), E.37.Committee Against Torture. development, to High-level panelright discussion on the question the of the death penalty,including rights, cultural and social economic, political, civil, rights, human all of protection and Promotion Secretary-General the and Commissioner High the of Office the of reports and ParaRights14; Human Council, Covenant, the of 40 article under parties States by ted 16/21 resolution Council Committee Rights to Human 2013; annex July 31 A/HRC/WG.6/17/JOR/2,the Doc. of 5 paragraph and 5/1 resolution Council Rights Human to accordanceannexthe in Rightsof paragraphHuman with15(b) Commissionerfor High the of Officetheby ., Para 21; Malkawi, K.,“PersonalLaw Status amongworld’s ‘highly laws discriminatory’ against . CEDAW Committee, Para 23. violence against women. of persistence the to leads which girls and women against ination discrim perpetuate stereotypespractices suchand concernedthat Committeeis The (…) life of spheresall in men and women of tities iden and responsibilities roles, the deep- regarding stereotypes, and rooted attitudes patriarchal polygamy, including traditions, [I]ts serious concern about the persistence of harmful practices and odn Times Jordan Progress ofthe World’s Women 2015–2016 22 In2013, only 15.6% of Jordanian women participated in the List of issues and questions in relation to the sixth periodic report of Jordan of report periodic sixth the to relation in questions and issues of List , 5 May, 2015, availablehttp://www.jordantimes.com/news/local/personat: ibid. Annual reporttheof United CommissionerNations High forRightsHuman Committee Against Torture, Paras 39–40. 19 18 The Committeeof ontheElimination 20 , 2015,p.148. Asnoted below inPart 3.3.1, Jordan UN Doc.CCPR/C/JOR/CO/4,18 November 2010, UN Doc. A/HRC/30/21, 16 July 2015, Para , Consideration of reports submit reports of Consideration , , UNDoc. CEDAW/C/ Concludingobser - - , UN Doc., , UN 21 ------labour force compared to 66.6% of men23 and 11% of Jordanian women said that the WallsShouting Through 24 As noted by the CEDAW Committee, women in Jordan also face persistent violence as a result ofthey traditional, did not have patriarchal the final attitudes.decision as Of to particular their own concern health care. is the increase in the number of honour killings in 2016.25

Discrimination on the basis of disability is also widespread in Jordan. Reliable of children with disabilities receive an education and approximately 96% of personsstatistics with are disabilitiesdifficult to find,remain however, at home in “due 2015 to it the was lack reported of disability-friendly that only 3% 26 environments at work, and at health and education facilities”. In 2012, an and ill-treatment torture discriminatory in jordan investigation by BBC Arabic revealed shocking instances of physical and sexual violence against children with disabilities in care.27 Committee that was ordered by King Abdullah II in response to the BBC Arabic investigation and chaired by the Minister of Social Development The official Investigationrevealed further instances of abuse of children with disabilities in Jordan’s care homes.28 remains an ongoing problem. As is evident from the findings discussed in Part 4.3 of this report, such abuse

3.3 Legal Framework Relating to Equality and Torture

3.3.1 Jordan’s International Obligations

International Covenant on Civil and Political Rights (ICCPR); the International CovenantJordan has on ratified Economic, seven Social of the and nine Cultural core human Rights rights (ICESCR); treaties, the including Convention the

23 Ibid., p. 282. 24 Ibid., p. 166. 25 Human Rights Watch, 27 October 2016, available at: https://www.hrw.org/news/2016/10/27/recorded-honor-killings-rise-jordan. Human Rights Watch, “Recorded ‘Honor’ Killings on the Rise in Jordan”, 26 Jordan Times, 12 August 2015, available at: http://www.jordantimes.com/news/local/majority-people-disabili- Husseini, R., “Majority of people with disabilities still face discrimination – Prince Mired”, Kingdom of Jordan, Response of the Hashemite Kingdom of Jordan via the Higher Council for the Affairs of Personsties-still-face-discrimination-%E2%80%94-prince-mired. with Disabilities (HCD) to the Office of the United NationsSee also, High Permanent Commissioner Mission for of theHuman Hashemite Rights (OHCHR) Questionnaire on Disability-Inclusive Policies from the Special Rapporteur on the Rights of Persons with Disabilities, Catalina Devandas Aguilar, May 2016, 8 June 2016, Annex, available at: http://www. ohchr.org/Documents/Issues/Disability/DisabilityInclusivePolicies/States/PM%20Jordan_ENG.pdf; Committee on the Rights of the Child, Concluding observations on the combined fourth and fifth periodic reports of Jordan, UN Doc. CRC/C/JOR/CO/4-5, 8 July 2014, Para 43; and Committee on the Rights of Persons with Disabilities, Consideration of reports submitted by States parties under article 35 of the Con- vention, Initial reports of States parties due in 2010: Jordan, UN Doc. CRPD/C/JOR/1, 1 September 2015, Paras 304–311. 27 BBC, “BBC uncovers abuse at children’s care homes in Jordan”, BBC, 15 May 2012, available at: http:// www.bbc.co.uk/news/world-middle-east-18073144. 28 Frontline Club London, Postponed: Jordan’s Secret Shame, 24 July 2012, available at http://www.front-

Rights, Annex IV and Annex VI to Shadow Report Submitted to Committee on Rights of the Child, 2012–2013, availablelineclub.com/third_party_screening_behind_the_wall_of_silence/. at: http://www.nchr.org.jo/Arabic/ModulesFiles/PublicationsFiles/Files/Alternative%20Re See also, National Council for Human- 31 port2%20. 32 EQUAL RIGHTS TRUST 32 31 30 29 Jordan maintainedinitssubsequentstate report that: the CEDAW Committee noted that: occupation.” and wife,band the right including to choose familya professiona name, and an states to ensurewomen menand equally enjoysame personalrights “the hus as rights andresponsibilities asparents”; which requires andArticle16(1)(g), 16(1)(d) under which states mustensuremen andwomen that have “thesame rightsequal andresponsibilities uponthedissolution ofmarriage; of their children”;nationality Article 16(1)(c), which requires states to ensure which requires states to “grantwomen rights equal respect withmen to the respectIn oftheCEDAW, Jordan hasmadereservations inrelationto Article9(2), has ratified. it treaties those in expressed rights human the fulfil and protect respect, to obliged remains Jordan – ratified has it that treaties the implement to tions mechanisms to treaty bodies. Disabilities (CRPD). Rights oftheChild (CRC), andtheConvention ontheRights ofPersons with man or Degrading Treatment or Punishment(CAT); theConvention onthe crimination (CERD); theConvention against Torture andOtherCruel, Inhu the International Convention ontheEliminationofAllForms ofRacial Dis on theEliminationofAllForms ofDiscrimination against Women (CEDAW); 34 33

See CEDAW Committee above, note 18,Para 9. Ibid. rc=TREATY&mtdsg_no=IV-8&chapter=4&clang=_en#73. Womenagainst Discrimination of Forms sation”, United Nations Treaty Collection, (c), (1) relatingto therights arising upon thedissolution of marriagewithregardparagraph to maintenance andcompen “Article16, by bound” itself consider not “does it that specifies ratification Jordan’s Pages/InternationalLaw.aspx. OHCHR, tors.ohchr.org. Disabilities. with Persons of Rights the Conventionon the Protocolto Optional the ratified not but signed has Jordan ternal/Treaty.aspx?CountryID=88&Lang=EN. OHCHR,

upon the house not to approve lifting the reservations to the Con the to reservations the lifting approve to not house the upon Representativescalling of House the of speaker the to letter League a sent Scholars Islamic Jordan the Convention, the renounce to calls facing is movement women’s the that given gains, preserve to the States of the Middle East and North Africa and in an endeavour of many in rights women’s for support in decline current the Given as argued by the State party. above-mentionedthereservations of straints preventinglifting the con cultural and political the of convinced not is Committee The International Human Rights Law, Rights Human International Ratification status for Jordan for status Ratification 33 31 Ibid Initsmostrecent concludingobservations inrelationto Jordan,

.; OHCHR, 29 Jordan yetnot has allowed forindividual complaint Status of Ratification: Interactive Dashboard, Jordan 30 , availablehttp://tbinternet.ohchr.org/_layouts/TreatyBodyExat: However, this does not limit Jordan’s obligaJordan’s limit not However,does this , availableat: https://treaties.un.org/pages/ViewDetails.aspx?s Chapter IV: Human Rights: Convention on the Elimination of All of Elimination the on ConventionRights: IV:Human Chapter availableat: http://www.ohchr.org/EN/ProfessionalInterest/ 34 , availablehttp://indica at: 32 - - Article ------vention, on the grounds that they violate Islamic Shariah. Accord- the WallsShouting Through ingly, the issue of lifting the reservations has to be dealt with very sensitively and gradually, in a manner that balances the promotion of women’s human rights with the obligation to reject whatever contradicts the provisions of Islamic Shariah.35

The use of the decline in support for women’s rights as a reason to further - tion for discrimination. Jordan’s reservations are also contrary to the spirit of therestrict CEDAW. women’s rights is tantamount to using discrimination as a justifica discriminatory torture and ill-treatment torture discriminatory in jordan In addition, Jordan is bound by customary international law which provides some important protection in respect of the prohibition of torture and ill-treatment. Under international law, binding legal obligations on states derive from customary international law as well as from treaty law. Customary international law is deduced over time from the practice and behaviour of states.36 Customary peremptory norms37 – at which they are binding on all states and cannot be der- ogatedinternational from. It laws is accepted are particularly that the significantprohibition when of torture they reach and other a level ill-treatment – known as is a rule of customary international law, and that the prohibition against torture amounts to a peremptory norm of international customary law.38 The prohibition against other ill-treatment is not widely recognised as having peremptory norm status, but both the International Court of Justice and the Inter-American Court against torture and other ill-treatment as a whole.39 It is largely accepted that theof Human prohibition Rights of have racial commented discrimination on the is peremptorya peremptory status norm of ofthe international prohibition

35 CEDAW Committee, Consideration of reports submitted by States parties under article 18 of the Convention, sixth periodic report of states parties due in 2016: Jordan UN Doc. CEDAW/C/JOR/6, 25 June 2015, Para 108. See also Jordan’s previous report, CEDAW Committee, Consideration of reports submitted by States parties under article 18 of the Convention on the Elimination of All Forms of Discrimination against Women, Fifth periodic report of States parties: Jordan, UN Doc. CEDAW/C/JOR/5, 24 September 2010, Paras 121, 302, 305 and 313. 36 Shaw, M., International Law, Cambridge University Press, 5th edition, 2003, p. 69. 37 International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Prosecutor v Anto Furundzija, Case No. ICTY- IT-95-17/1-T, 10 December 1998, Para 153; Parker, K. and Neylon, L.B., Humanitarian Law Committed in the Territory of theHastings Former InternationalYugoslavia since and 1991Comparative (ICTY), Law Review, Vol. 12, 1988–1989, p. 417. See also the Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, 1969,“Jus Cogens: Article Compelling 53. the Law of Human Rights”, 38 Committee Against Torture, General Comment No. 2: implementation of article 2 by States parties, CAT/C/ GC/2, 24 January 2008, Para 1; International Court of Justice, Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment of 20 July 2012, Para 9; ibid. ICTY, Paras 137–146; General Comment No. 24: general comment on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarationsHuman Rights under Committee, Article 41 of the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.6, 1994, Paras 8 and 10; Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, Human Rights Council, 39 International Court of Justice, Case ConcerningUN Doc. Ahmadou A/HRC/28/68, Sadio Diallo 5 March (Republic 2015, of Para Guinea 23. v Democratic Republic of the Congo), 33 Caesar v Trinidad and Tobago, 11 March 2005, Paras 70 and 100. Judgment of 30 November 2010, Para 87; Inter-American Court of Human Rights, 34 EQUAL RIGHTS TRUST 45 44 43 42 41 40 throughout Jordan’s legal national system, includingby thejudiciary. In theory, therefore, theinternational obligations of treaties should be applied on thesaleofchildren, childprostitution andchildpornography, Jordan noted that: domestic legislation. overprevail conflict, of event the in law,and domestic of part form Gazette official treaty monitoring bodies that treaties which have been ratified and published in the of theCourt ofCassation andalsofrom theexplanations provided by Jordan before both domesticlaw andinternational treaty law, itisclearfrom thejurisprudence law. Though thecourts have indicated thattheConstitution takes precedence over sistency withnationallaw. Italsomakes noreference to international customary dan form partofJordanian law orofwhether treaties prevail intheevent ofanincon The Constitution makes no mention of whether international treaties ratified by Jor norm ofcustomary international law Human Rights, that the broader principle of non-discrimination is a peremptory Additionally someargue,statedhas been and it by theInter-American Courtof internationallaw, although notyet reachingof a peremptory thestatus norm. on othergrounds, such asgender and religion, may now bepartof customary customary law. 46

strives to implementthecommitments arising from these conventions in itslegalsystem author andall This has beenrecognised by Jordanin itsreport itself, noting to theCEDAWCommittee “Jordan that 2016: Jordan, in due partiesstates of report Convention,periodic thesixth of 18 article under Statesparties by submitted Ibid Press, 2016,p.787. and Roder, T.J. (eds), Betweenlationship InternationalLawand National in NewandAmended Arab Constitutions”, inGrote, R. parties due in 2009: Jordan pornography,childchildren, and Statesprostitutionchildof of reportssale the Initial on Child the of Rights submitted by States parties under article 12, paragraph 1, of the Optional Protocol to the Convention on the Court of Cassation, Decision No. 945/2009; Committee on the Rights of theChild, Vol. 19,2008,p.506;seeCassel,D. above, note 41,pp.511–512;seePellett A.above, note 40,p.85. See Bianchi,A.,“HumanRights andtheMagicofJusCogens”, and Analysis by way ofexample, Martin,F.F. etal., Undocumented Migrants Inter-American CourtofHumanRights, ofJoanFitzpatrick andArthurEssays inMemory Helton ers”, inBayefsky, A.(ed), Ibid no reference to itbeingaperemptory norm. University Press, 6 tion”, Christine ChinkinandinDefense ofJusCogensastheBestBastionagainst theExcesses ofFragmenta Press, 2010,pp.64–68andthematerials referred to therein; Pellett, A.,“Comments inResponse to De Schutter, O., ., Shaw, p.287; . Committee on theRights of the Child, Para 7. See also CEDAW Committee, event ofany conflict with that legislation. the precedencetakein and legislation domestic its of part integral an are Jordan of Kingdom Hashemite the by ratified Conventions Finnish Yearbook ofInternational Law , CambridgeUniversity Press, 2006,pp.34–35. note 35,p.11,Para 2. International HumanRights Law:Cases, Materials, Commentary 40 Inaddition,the prohibition itcanbesaid that of discrimination Ibid th edition,2008,p.287,who refers to itaspartofcustomary international law, with Constitutionalism, Human Rights, and Islam after the Arab SpringArabthe after Islam and Rights, Human Constitutionalism, 44 ., Pellett, p.85;and Cassel, D., “Equal Labor Rights for Undocumented Migrant Work Forexample, initsreportProtocolthe Optional on to the CRC Human Rights andRefugees, Internally Displaced Persons andMigrant Workers: , Inter- Am. Ct. H.R.(Ser., Inter- Am.Ct. A)No.18(2003),17September 2003,p.23.Seealso, , UN Doc. CRC/C/OPSC/JOR/1, 27 February 2013, Para 7; El-Haj, A.M., “The Re International HumanRights andHumanitarian Law:Cases, Treaties Advisory OpinionOC-18/03Advisory –Juridical Condition andRights of , Vol. 17,2006,p.85;Shaw, M., 42 butthisissubjectto debate. , Martius NijhoffPublishers, 2006,pp.511–512. 45 The European JournalofInternational Law International Law , CambridgeUniversity Consideration of reports of Consideration Consideration of reports , Oxford University 43 46

However, , Cambridge - 41 , - - - - - as noted throughout this report, there are numerous instances where national the WallsShouting Through legislation fails to meet international standards.

3.3.2 National Legal Framework on Equality and Non-Discrimination

Article 6 of the Constitution provides that:

(i) Jordanians shall be equal before the law. There shall be no discrimination between them as regards to their rights and duties on grounds of race, language or religion.

(…) and ill-treatment torture discriminatory in jordan (iii) The Government shall ensure work and education within the limits of its possibilities, and it shall ensure a state of tranquil- lity and equal opportunities to all Jordanians. (…) (v) The law protects motherhood, childhood and the elderly and cares for youth and the disabled and protects them from offense and exploitation.

Article 6(1) only expressly prohibits discrimination on the grounds of race, religion and language. The CEDAW Committee has expressed its concern that the process of constitutional reform in 2011 did not expand this list to include gender discrimination.47 In response, Jordan has insisted that the inclusion of “Jordanians” encompasses both men and women, and that the failure to include “gender” as a ground of discrimination in the Constitution does not mean that such discrimination is permitted.48 on violence against women, including gender as a ground of discrimination in the Constitution would provide women However, with as a notedmeans by of the challenging Special Rapporteur laws that are discriminatory on the grounds of gender and would have also assisted to harmonise domestic law with Jordan’s international obligations.49

The failure to expressly include gender or sex in the Constitution is made even more problematic by the number of laws which are discriminatory against women (as noted in Part 3.2) and the lack of legislation prohibiting discrimination on the grounds of gender or sex.50 Jordan has no comprehensive anti-dis- enacted the Law on the Rights of Persons with Disabilities in 2007. Despite this crimination legislation. However, in relation to persons with disabilities, Jordan

ities apply the provisions thereof, including the judiciary in respect of disputes brought before it (...) The Prime Minister has indicated the necessity of conducting a comprehensive review of legislation which

by the Kingdom”, ibid. CEDAW Committee. needs to be harmonized with the international human rights treaties, conventions and charters ratified 47 See CEDAW Committee above, note 18, Paras 13–14. 48 See CEDAW Committee above, note 35, p.11. 49 Report of the Special Rapporteur on violence against women, its causes and consequences, Rashida Manjoo Human Rights Council, 35 50 See CEDAW Committee above,UN Doc. note A/HRC/20/16/Add.1, 18, Paras 12–13; see 4 above, May 2012, note 20,Para Para 55. 1. 36 EQUAL RIGHTS TRUST 55 54 53 52 51 offencean about to be liable shall between sixmonths’andthree years’ impris is not permittedthat by law inorder toa confession obtain to or information torture of type any person a on inflicts who person “[a]ny that provideinitially Torture isalsoacrime topursuant Article208 of the PenalCode. Article 208(i) viding that: Constitution was amendedin2011 to prohibit torture, from free movement except inaccordancethe provisions with of thelaw.”The arrested, detained,imprisoned, have his/her freedom restricted or prevented guaranteed”, followed by8(i) which Article providesperson may“[n]o that be security of the person. Article 7(i) provides “personal freedomthat shall be The Constitution containsseveralprovisions relatingto theright to libertyand 3.3.3 legislation withtheaimofbringingitinto linewiththeCRPD. unintentional. approach reflects a paternalistic view of persons with disabilities, albeit perhaps the non-discrimination provisionwithin provided foran 6(i). Such in Article weredisabilities with considered inneedofprotection ratherincluded than disabilities towith be free from exploitation,it begsthequestionofwhy persons reformtutional process is welcome acknowledgement oftherights ofpersons the community”. persons that with disabilities areto able haveinclusion andparticipationin “full for persons with disabilities, CRPD in some aspects.For example,the Law provides for segregated day centres welcome step, theLaw leaves a numberof gaps anddoes not comply withthe any torture, harmorthreat shallnotberegarded.” permitteddetained inother thantheplaces by laws; andevery statement uttered by any person under preservesdignity; may human tortured,be not inany manner,bodily ormorally harmed; mayand be not person seized, detained, imprisoned or the freedom thereof restricted should be treated in amannerthat “everyprovides: Constitution the of 8 Article 1, note above, See 13. Para 2014, January 6 A/HRC/25/9, Council, Rights Human Ibid. on theRights ofPersons withDisabilitiesinJordan, January2012,p.36. of RealityTooland a for Change”Civil SocietyReportof theConvention of Implementation ontheStatus See Permanent MissionoftheHashemite KingdomofJordan above, note 26,Para 1.2. Convention ontheRights ofPersons withDisabilities,2515U.N.T.S 3,2006,Article19. Lawon theRights ofPersons Disabilities, No.31 or2007, with Articles4(4)(d); Al-Azzeh, (ed),“MirrorM. and Torture National Legal Framework ofthePerson onLibertyandSecurity threat thereof shallneither bare any consideration norreliability. statement Any laws. the extracted by from a person under duress of anything of the above or the designated those of outside places in him/her detain to forbidden is it as mentally, or physically harmed or form) any (in tortured be to him/her for is forbidden is It freedom dignity. human whose his/her preserves that or way a in imprisoned treated be must arrested, restricted, is who person Every 53 However, Jordan is currently in the process of reforming this reforming of process the in currently is However,Jordan 52 Similarly, while theinclusionof Article 6(v) during theconsti Report of the Working Group on the Universal Periodic Review: Jordan, Review: Periodic Universal the on Group Working the of Report 51 contrary to therequirement of states to ensure 55 with Article 8(ii) with pro 54 UN Doc. - - - onment”. Entirely at odds with Jordan’s international obligations, this provision the WallsShouting Through meant that certain forms of torture were considered legal as a matter of national law.56

However,1. Subjecting Article a 208 person was toamended any kind in of 2014 torture and innow order provides to obtain as follows: confession to a crime or any information thereon shall be punishable by imprisonment from 6 months to 3 years.

2. For the purpose of this Article, torture means any act by which severe pain or suffering, whether physical or mental, is inten-

tionally inflicted on a person for such purposes as obtaining and ill-treatment torture discriminatory in jordan 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.

3. If torture caused illness or injuries, the punishment shall be temporary hard labour.

4. Notwithstanding Articles (45) and (100) of this Law, the Court may not stay of execution of the punishment decided in the crimes stated in this Article or take extenuating circumstances.

underminedAlthough the by definition the way inof whichtorture it inis Articlecategorised. 208(2) Torture is in accordanceis characterised with asthe a misdemeanourArticle 1 definition rather in the than CAT, a felony, the criminalisation meaning that of the torture punishment, in the Penal which Code is six is months up to three years imprisonment, is not commensurate with the serious- ness of the offence of torture or ill-treatment.57 This fails to meet the international obligations pursuant to the CAT, which requires that the offence of torture should be punished with appropriate penalties.58 At present, the legislation also fails to make clear that the offence of torture cannot be subject to amnesty, pardon or the statute of limitations.59 The Committee Against Torture has urged Jor- dan to amend Article 208 to ensure that it is clear that the prohibition on torture is absolute and non-derogable.60

56 Committee Against Torture, Consideration of reports submitted by States parties under article 19 of the Convention Concluding observations of the Committee against Torture: Jordan, UN Doc. CAT/C/JOR/CO/2, 25 May 2010, Para 9; and Alkarama Foundation, Jordan Shadow report – Report submitted to the Commit- tee against Torture in the context of the third periodic review of Jordan, 23 October 2015, p. 4. 57 See Committee Against Torture above, note 17, Para 9. 58 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment,1465, U.N.T.S. 85, 1984, Article 4(2). 59 See Committee Against Torture above, note 17, Para 9. 37 60 Committee Against Torture, Ibid., Para 11. 38 EQUAL RIGHTS TRUST 5 4 3 2 1 findings, its that hoped is comprehensive,it not is research the While research. in gap the filling to way some go to sought have Law for Mizan and Trust The 69 complaintsandimprove thelicensingandmonitoring ofcentres. Instead, thereport urgedDevelopment theMinistryofSocial to respond to the lowingand thatnoperson was its publication charged inrelationto theabuse. sexualabuse inthese centres, it appears thefew concrete steps were taken fol investigationcial exposedof physical,of 69complaints thedetails and mental and abuses which (…) constitute an affront to human dignity”. Although the offi abuse. followingBBC Arabica investigation which revealed shockinginstancesof an official investigation into the abuse of children with disabilities in care homes determine the scaleandnature of this abuse. In2012, King AbdullahII ordered discrimination and abuse. gated. 1.23% of the population to four times that number, there but the figure disabilities is not disaggre mental with persons are inJordan. Estimates of the number of persons with disabilitiesrange from many how determine to difficult is It 4. ister for SocialDevelopment, intotheCentresSituation of Caring Institutions forPeopleand bywiththeOrderDisabilities,Issued Min of The Committee for InvestigationEvaluation,and at: http://www.almanalmagazine.com/ See, for example,Al-Azza, AbdoM., “Shalo wa GaboShaheen”, available at:http://www.bbc.co.uk/news/world-middle-east-18073144. tive%20Report2%20;uncovers “BBC BBC, children’sat abuse care homes in Jordan”, 2012–2013, availablehttp://www.nchr.org.jo/Arabic/ModulesFiles/PublicationsFiles/Files/Alternaat: (NCHR), Human Rights for Council National also, See lineclub.com/third_party_screening_behind_the_wall_of_silence. Frontline ClubLondon, reports ofJordan Committee ontheRights of theChild, ohchr.org/Documents/Issues/Disability/DisabilityInclusivePolicies/States/PM%20Jordan_ENG.pdf; 2016, May Aguilar, Devandas Catalina Disabilities, with Rights Human (OHCHR) Questionnairefor on Disability-Inclusive Commissioner Policies fromHigh the Special Nations Rapporteur on United the Rights the of Persons of Office the to (HCD) Disabilities with Persons Kingdom ofJordan, ties-still-face-discrimination-%E2%80%94-prince-mired. See also, Permanent Mission of the Hashemite 12 August 2015, availableat: http://www.jordantimes.com/news/local/majority-people-disabili Mired”,Prince – discrimination face still disabilities with people of “Majority R., Husseini, UN Doc.CRPD/C/JOR/1,1September 2015,Paras 304–311. ted by States parties under article 35 of the Convention, Initial reports of States parties due in 2010: Jordan Committee ontheRights ofPersonsDisabilities (CRPD withCommittee), 1 DISABILITES INJORDAN TREATMENT OFPERSONS WITHMENTAL 3 It is clear that persons with mental disabilities arepersonsmental with is clearthat It to subject widespread Thereport, which was publishedinMay 2012, decried the “violations Annex IV and Annex VI to Shadow Report Submitted to Committee on Rights of the Child, the of Rights on Committee to Submitted Report Shadow to VI Annex and IV Annex , UNDoc.CRC/C/JOR/CO/4-5, 8July 2014,Para 43;and Response of the Hashemite Kingdom of Jordan via the Higher Council for the Affairs of Affairs the for Council Higher the via Jordan of Kingdom Hashemite the of Response Postponed: Jordan’s Secret Shame Secret Jordan’s Postponed: 27May 2012(inArabic). 2 Despiteresearch this,little hasbeencarried out to Concluding observations on the combined fourth and fifth periodic fifth and fourth combined the on observations Concluding نيهاش-اوباجو-ودلأ-اولاش Report of the Committee of InvestigationCommitteeEvaluation theof and Reportof 8 June 2016, Annex, availableat: http://www. , 24 July 2012, availableat Almanal Magazine, Almanal / (inArabic). ibid Consideration of reports submit . Paras 304–311. August 2012, available

BBC http://www.front 5 , 15May 2012, Jordan Times Jordan - - - 4 - - - - - , , which include reports of the torture and ill-treatment of persons with men- the WallsShouting Through tal disabilities and highlight the failure of Jordan to implement its obligations in accordance with the Convention on the Rights of Persons with Disabilities (CRPD), will shape the approach taken to law reform and implementation in Jordan including through the current discussion on reform of the Law on the ensuring the rights of persons with mental disabilities, and it must take steps to moveRights its of commitmentPersons with toDisabilities. the rights Jordanof persons is currently with disabilities at a significant from settingjunction out in abuse of persons with disabilities as torture and other ill-treatment will assist

ina sufficient this enforcement, legislative moving framework the discussion to enforcing from that being framework. only one Recognising about the right the treatment of persons with mental disabilites in jordan to health or non-discrimination and recognising the gravity of the abuse that persons with mental disabilities suffer in Jordan. with mental disabilities and provide them with adequate health care, providing aThe framework first section to consider of this part how sets the out treatment the obligations of persons of Jordan with mentalto protect disabilities persons in Jordan may be contrary to these obligations. The national legal framework relating to persons with disabilities is then set out in Part 4.2. Part 4.3 sets out - ities in Jordan, highlighting that, in some instances, this treatment amounts to the Trust’s findings in relation to the treatment of persons with mental disabil sets out conclusions and recommendations to the Jordanian government, inter- nationaldiscriminatory human torture rights bodiesand other and ill-treatment. civil society. The final section of this part then

4.1 State Obligations to Protect Persons with Mental Disabilities As discussed in Part 2, states must prevent acts of torture and other ill-treatment, including by ensuring that such acts are not carried out by health care professionals or in private health care institutions.6 As the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (Special Rapporteur) has recognised, persons with mental disabilities are particularly vulnerable to torture and other ill-treatment.7 The CPRD provides a framework for protecting the rights and dignity of persons with disabilities, including by prohibiting the torture or other ill-treatment of persons with disabilities pursuant to Article 15. In addition, Article 16 prohibits exploitation, abuse and violence against persons with disabilities, and Article 17 recognises that “every person with disabilities has a right to respect for his or her physical and mental integrity”.

As noted by the Special Rapporteur:

6 See above, Part 2.2.4. 7 United Nations General Assembly, Interim report of the Special Rapporteur on torture and other cruel, inhu- 39 man or degrading treatment or punishment, UN Doc. A/63/175, 28 July 2008, Paras 37-41. 40 EQUAL RIGHTS TRUST 13 12 11 10 9 8 unexpired and approvedscientifically personnel, medical “skilled things, other appropriate”.medically and “scientifically is that ally appropriate, respect medicalethicsandprovidecarehealth goodquality This requires that states provide health care through facilities which are cultur The right toincludes theright health to “timely andappropriate healthcare”. well asinconventions that focus ontherights ofothermarginalised groups. InternationalCovenant on Economic, Culturaland Social Rights (ICESCR),as basis ofdisability”. of thehighestment standard attainable discrimination on the without ofhealth The CRPD recognises disabilities have“persons with that theright to theenjoy 4.1.1 ill-treatment. medical treatmentwould that otherwise be considered to betorture or other substitutethe consentofa other ill-treatment, decision makersanction cannot tosubject theact. theonlyother ill-treatment, person who may consentto anactis the person stitute decision-making.Thus, inthecontext of theprohibition oftorture and disabilities total supported be allow indecision-makinganddonot for sub discussed in morebelow, detail these provisions requiremen persons with requires freeinformed and consentto medicaltreatmentin Article25(d). As tobilities enjoy legalaspects oftheirlivesall in capacity 12(2) and Article in CRPD, which requires states to recogniseright the equal ofpersons with disa The prohibition oftortureill-treatment and interpretedbe must in lightof the 14

Ibid tainable Standard 12) ofHealth (Art. 1979, Article12;andConvention ontheRights oftheChild(CRC), 1577U.N.T.S. 3,1989,Article24. Ibid consent to perform alife-saving procedure”. disagreement regarding absenceof legalmaycapacity ahealth-care provider proceed informedwithout RapporteurAs theSpecial notedPara at 66,“[o]nly inalife-threatening emergency inwhich there isno torture, and segregation prevent to donors and ments Rosenthal,E., JuanE.Mendezdegrading treatment orpunishment, United Nations General Assembly, ConventionForms ontheElimination of all of Discrimination Against Women (CEDAW), 1249 U.N.T.S. 13, Convention ontheRights ofPersons withDisabilities(CRPD),2515U.N.T.S 3,2006, Article25. CommitteeEconomic,on Culturaland Social Rights, Healthcare ., Para 12. . Rosenthal, p.25. ous violations and discrimination against persons with disabilities disabilities with persons against discrimination and violations ous interests”,seri “best where supposed and their on based overridden text of health-care, where choices by people with disabilities con are the often in alia, inter disabilities, with persons of rights the on ards standcomprehensiveof most theset offers DisabilitiesPersonswith of Rights the on Convention the that reaffirm to necessary (…) is It may bemasked as “good intentions” ofhealth professionals. 10 A MandateA to Placement End Childrenof governof and Orphanages:Institutions in duty The

9 Given theabsolute nature oftheprohibition oftorture and 11 The right to healthcanalsobefound inArticle12 of the Report of the Special Rapporteur on torture and other cruel, inhuman or , UNDoc.E/C.12/2000/4, 2000,Para 11. , UNDoc.A/HRC/22/53, 1February 2013,P General Comment No. 14: The Right to the Highest At Highest the to Right The 14: No. Comment General November 2016, p. 25; see above, note 8, Para 66. 14 Thelatter requires, amongst 8 - - - ara 61. 12

13 ------drugs and hospital equipment, safe and potable water, and adequate sanita- the WallsShouting Through tion.”15 In some circumstances, a failure to provide adequate medical care may violate the prohibition on torture and other ill-treatment. For example, the Spe- cial Rapporteur has noted that failing to provide medication for pain relief may be considered a violation of the prohibition of cruel, inhuman or degrading treatment.16 be because the element of intent is lacking – the Special Rapporteur notes that “denial ofThe pain classification treatment involvesas other actsill-treatment, of omission rather rather than than torture, commission, appears and to results from neglect and poor government policies, rather than from an inten- 17

of medication was due to discrimination on the basis of disability, the intention treatment of persons with mental disabilites in jordan tion to inflict suffering” However, in certain circumstances in which the denial the suffering caused was severe, this would amount to torture. and purpose element of the definition of torture may be met and, provided that - care should not disproportionately burden those with less economic means.18 PersonsHealthcare with facilities disabilities must should be affordable be provided for all with persons, the “same and therange, cost quality of health and standard of affordable health-care and programmes as provided to other persons”,19 because of their disability.20 Staff providing healthcare should be trained to be able to recognise and should and also address be provided the needs with of marginalised health services groups. needed21 specifically

States are required to ensure that healthcare services are accessible to those with disabilities, including by providing reasonable accommodation.22 As noted above, a failure to provide reasonable accommodation in this regard amounts to discrimination and may also amount to torture or other ill-treatment.23 Exam- ples of how reasonable accommodation might be achieved include “physically accessible facilities, information in accessible formats and decision-making sup-

15 Ibid., Para 12. 16 See above, note 8, Paras 53–55. 17 See above, note 8, Para 54. Mendez also appears to require suffering to be severe in order for the denial of pain medication to amount to other ill-treatment: “generally, denial of pain treatment involves acts of omission rather than commission, and results from neglect and poor Government policies, rather than

but has no access to appropriate treatment will constitute cruel, inhuman, or degrading treatment or punishment.from an intention This willto inflict only suffering.be the case However, when the not suffering every case is severe where and a person meets suffersthe minimum from severe threshold pain under the prohibition against torture and ill-treatment; when the State is, or should be, aware of the suffering, including when no appropriate treatment was offered; and when the Government failed to take all

discussed above in Part 2.2, for treatment to be considered other ill-treatment, the pain and suffering it causesreasonable must steps met ato minimum protect individuals level of severity, physical but and does mental not need integrity to be severe (footnotes pain omitted).”and suffering. However, as 18 The Right to Health: Fact Sheet No. 31, June 2008, p. 18. See above, note 13, Para 12(a)-(b); Office of the United Nations High Commissioner for Human Rights, 19 CRPD, Article 25(a). 20 CRPD, Article 25(b). 21 See above, note 13, Para 37. 22 CRPD, Article 25(c); see above, note 13, Para 12(b); CRPD Committee, General comment No. 2 (2014) Arti- cle 9: Accessibility, UN Doc. CRPD/C/GC/2, 2014, Para 40. 41 23 See, Part 1.2, 2.2.1 and 2.2.2. 42 EQUAL RIGHTS TRUST 29 28 27 26 25 24 regard, theSpecialRapporteur hasnoted that: despite claimsof“goodintentions” when carrying out suchtreatments. satisfies the requirements of both purpose and intent in the definition of torture forced psychiatric interventions againstpsychosocialpersons with disabilities For example, the Special Rapporteur has found the “discriminatory character” of essary cannotbeasubstitute for informed consent: RapporteurAs theSpecial hasnoted, argumentstreatment that is medically nec decision maker cannotbeusedto justifyforced medicaltreatment. legalsubstituteand a capacity decision makerthe consentof that in place, put objective bestinterests”. and preferencewill of the person, not onwhat is perceived as beinginhis or her behalf). patient’s of substituted decision-making (where another person makes a decision on the persons disabilitiestowith make decisions, rather thantosystems implement to denyperson’s a legalcapacity. Committee) has made clear, the existence of a disability is not a sufficient reason the of consent patient. informed and free the with provided be only must Healthcare not exacerbate marginalisation.” does that manner dignified and respectful a in care] of provision [the and port, 31 30

Ibid modation insupportofaperson’s legal capacity, Ibid Ibid CRPD/C/GC/1, 2014,Para 13. CRPD Committee, E/C.12/GC/22, 2016,Para 24.Seealso productiveCovenanttheInternationalhealth(Article of Economic,12 Culturalon and Rights)Social See above, note 8,Para 35. See Rosenthal above, note 9,p.25;seealsoabove, note 8,Para 66. CPRD, Article12,25(d). Committee onEconomic, SocialandCultural Rights, ., Para 32. Para., 29(b). ., Paras 15–19. usacs f h cs, h sfeig nlce ad h effects the and inflicted suffering the case, the of cumstances cir the on Depending scrutinized. closely be to needs condition mental a of treatment the for neuroleptics, of particular in and [F]orced and non-consensual administration of psychiatric drugs, justified underthe medical necessity doctrine. either through coercion or discrimination – cannot be legitimate or termstheof Convention theon Rights Personsof with Disabilities – fore important to clarify that treatment provided in violation of the to obstacle protection an from arbitrary abuses in health-care be settings. It is there to continues necessity medical of doctrine The 25 AstheCommittee ontheRights ofthePersonsDisabilities (CRPD with Systems ofsupportedare decision making to additional therightto reasonableaccom 27 General comment No. 1 (2014), Article 12: Equal recognition before the law the before recognition Equal 12: Article (2014), 1 No. comment General Supported decision-makingsystemsbe basedonthe “must 28 Inlegalsystems where persons are stripped of their ibid. 24 26 States measuresin place put must to support CRPD Committee ibid General comment No. 22 on the right to sexual and re and sexual to right the on 22 No. comment General ., Para 34. , Para 40. 30 29

31 - - Inthis , UN Doc. , , UN Doc. , UNDoc. - - - upon the individual’s health may constitute a form of torture or the WallsShouting Through ill-treatment.32

The Special Rapporteur has also noted that the forced sterilisation of persons with disabilities amounts to a breach of the prohibition of torture and other ill-treatment.33 In circumstances in which forced sterilisations are directly or indirectly discriminatory and cause severe pain and suffering, even where performed with supposedly “good intentions”, they would amount to torture.34

4.1.2 Institutionalisation treatment of persons with mental disabilites in jordan that: The Office of the United Nations High Commissioner for Human Rights has noted While institutionalization can differ from one context to another, certain common elements define it: isolation and segregation from community life; lack of control over day-to-day decisions; rigidity of routine, irrespective of personal preferences or needs; identical activities in the same place for a group of persons under a central authority; a paternalistic approach in the provision of services; supervision of living arrangements without consent; and disproportion in the number of persons with disabilities living in the same environment. Institutionalization is therefore not just about living in a particular setting; it is, above all, about losing control as a result of the imposition of a certain living arrange- ment. In that sense, small environments, including group homes, are not necessarily better than large institutions if overall control remains with supervisors.35

This report uses the term institutionalisation to refer to a situation in which a person is isolated or segregated due to an actual or perceived disability and does not have control over the majority of their day-to-day decisions.36

32 See above, note 7, Para 63. 33 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak See above, note 8, Para 48; and Human Rights Council, the right to be free from torture and other cruel, inhuman, or degrading treatment, UN Doc. or punishment” A/HRC/7/3, and 15 theJanuary second 2008, notes Para that 38. “given The first the particularmentioned vulnerability report states of that women “[f]orced with disabilities,sterilization forced is (…) abortions a violation and of sterilizations of these women if they are the result of a lawful process by which decisions are made by their “legal guardians” against their will, may constitute torture or ill-treatment (footnotes omitted)”. 34 See discussion in Part 2.2.3. 35 Thematic study on the right of persons with disabilities to live independently and be included in the community – Report of the Office of the United Nations High Commissioner for Human Rights, Human Rights Council,

36 UNIn its Doc. submission A/HRC/28/37, to the 12day December of discussion 2014, relating Para 21. to SeeArticle also 19 Rosenthal of the CRPD, above, the note Mental 9, p. Disability7. Advo- or congregated on the basis of an actual or perceived disability (including a mental health diagnosis). Ancacy institution Centre (MDAC) is any placedefined in whichan institution people doas not“any have, place or in are which not allowedpeople areto exercise isolated, control segregated over and/their 43 The Right to Live Independently and be Included in the Community: day-to-day decisions, subject to rules and routines defined and controlled by others. An institution is not defined merely by its size.” MDAC, 44 EQUAL RIGHTS TRUST 43 42 41 40 39 38 37 whentakenassess intobe account” treatmentinflicted must the detentionand Rapporteur has noted theconditions “thelengthof institutionalisation, of that what wouldto amount torture or other ill-treatmentotherwise. it isconsented to by asubstitute decision maker, norcansuchconsentrender does become voluntarynot institutionalisation consent ofthepatient; because As noted above, theconsent of a substitute decision maker does not amountto that confirmed have Rapporteur Special involuntarymay institutionalisation amountto torture or other ill-treatment. the and Committee CRPD the Both others. denies persons of theirrightto exercise legalbasis with equal on an capacity the requirement for medical treatmentto beprovided only withconsent 5 oftheCRPD.in Article violatealso of Article14will violation theright to non-discrimination contained 14 “is, inessence, a non-discrimination provision” anddeprivations of liberty in self orothers or theneedfor treatment. its ownother factors orinconjunctionwith such asbeingdeemed a dangerto or perceivedon thebasisof “actual institutionalisation impairment” whether on 14, which make14 providesArticle that clear it forabsolute an prohibition on liberty. makesthe existence it clearthat of a disabilitycannever justify adeprivation of unlawfully andarbitrarily depriving personsdisabilities oftheirliberty,with and they live”. sons the right to live inthecommunityandto choose “where andwithwhom is prohibitedInstitutionalisation by Article19 of the CRPD, which affordsper all 45 44

Doc. CCPR/C/GC/35, 2014, Para 19. therein.RightsHuman Committee, Disability, See above, note 26, Para 46. See alsoabove Ibid ofpersonswith disabilities, andsecurity right to liberty CRPD Committee, CPRD, Article14. Rights Europe, for Office Regional Rights Human for Commissioner High the http://www.ohchr.org/EN/HRBodies/CRPD/Pages/CallDGDtoliveindependently.aspx.of Office also, See Call its 2016 April to 19 on Discussion General response of Day the to Submissionsin for Disabilities with Persons of Rights the on Committee UN the to Comments Written See Rosenthal above, note 9,p.25;seeabove, note 8,Para 66. See above, note 8,Para 70; CRPD, Article12(2);ibid. CRPDCommittee, Para 8. CPRD, Article25(d); CPRD, Article19. ., Para 4and5. 42 38 disabilities. with persons all to restored be must capacity legal and achieved be must deinstitutionalization disabilities, human with the persons respect of rights and Convention the with comply to order In , 2010,p.5. TheCRPDCommittee hasnoted that: In September In 2015, the CRPD Committee adopted guidelinesonArticle 37 Inaddition,Article14oftheCRPD explicitly prohibits thepractice of Comment on the Draft General Comment on Article Guidelines on article 14 of the Convention on the Rights of Persons with Disabilities: The Disabilities: withPersons of Rights theConvention theon of 14 article on Guidelines 43 ibid. CRPDCommittee, Para 10. see above, note 26, 40 Furthermore, involuntaryviolatesinstitutionalisation General Comment No. 35: Article 9 (Liberty and security of person) of GeneralComment Articlesecurity 35: and No. (Liberty 9 , note 8,Para 68; and UnitedRapporteur NationsSpecial on Para 42. 39 AstheCommitteenotes, also Article September 2015,Paras 6–10and13.

9 , 27May 2014, pp. 2–3andthesources cited , 27February 2016, Para 2,availableat: Forgotten Europeans – Forgotten – Europeans Forgotten 45 The Special 41 and , UN 44 - - ing the pain caused by institutionalisation.46 The institutionalisation of children the WallsShouting Through will be discussed in the following part.

4.1.3 Children

According to Article 7 of the CPRD, states must ensure the human rights and fundamental freedoms of children with disabilities on an equal basis with other children.47 The best interests of the child must be a primary consideration and children must:

[H]ave the right to express their views freely on all matters affect-

ing them, their views being given due weight in accordance with treatment of persons with mental disabilites in jordan their age and maturity, on an equal basis with other children, and to be provided with disability and age-appropriate assistance to realize that right.48 with the interests or convenience of the family or caregiver.49 The Committee on Itthe is Rightsimportant of the that Child decisions has emphasised about the that:best interests of a child are not conflated

[T]he interpretation of a child’s best interests must be consistent with the whole Convention (...) It cannot be used to justify practices (…) which conflict with the child’s human dignity and right to physical integrity. An adult’s judgment of a child’s best interests cannot override the obligation to respect all the child’s rights under the Convention.50

The CRPD recognises the rights of children with disabilities to remain with their family, and prohibits the separation of child from their parents on the basis of the child’s disability.51 In addition, states must “provide early and comprehensive information, services and support to children with disabilities and their families” in order to enable children to remain with their family.52

The CRPD provides that:

[W]here the immediate family is unable to care for a child with disabilities, [states parties shall] undertake every effort to provide alternative care within the wider family, and failing that, within the community in a family setting.53

46 See above, note 7, Para 65. 47 CRPD, Article 7(1). See also, CRC, Article 23. 48 CRPD, Article 7(3). See also above, note 26, Para 36. 49 See, for example, Women with Disabilities Australia, Dehumanised: The Forced Sterilisation of Women and Girls with Disabilities in Australia, March 2013, p. 56. 50 Committee on the Rights of the Child, General comment No. 13 (2011): The right of the child to freedom from all forms of violence, UN Doc. CRC/C/GC/13, 2011, Para 61. 51 CRPD, Article 23(4). 52 Ibid., Article 23(4). 45 53 Ibid., Article 23(5). 46 EQUAL RIGHTS TRUST 58 57 56 55 54 shownto causeseveresuffering,and pain toamount will it tortureother all as Whereof children ment. theinstitutionalisation be disabilities can mental with their detentionthat shouldbe sumption to amounts torture orotherill-treat severity of the authors the impactof contendinstitutionalisation, that thepre cases whereIn childrendisabilities aremental with given institutionalised, the Similarly, theSpecialRapporteur hasnoted that: in institutionsdoesnotmitigate theseconsequences: disorder”. anxiety, andfrequently exhibit symptoms consistent withpost-traumaticstress dren who are detained“areheighteneda at riskofsuffering depression and The effect onchildren of institutionalisation hasbeenfound to besevere. Chil sation onchildren. needs of children to grow upinafamily settingandtheeffects of institutionali be considered toto amount torture or other ill-treatment given theparticular ities, it is difficult to envisage a situation in which institutionalisation would not of the pain andsuffering it caused. mayto amount torture andotherill-treatmentdependingon theseverity inpart dren. the CRPD As is the casewithadults, prohibitsof chil theinstitutionalisation 59

children under the age ofthree: Ending their placement ininstitutionalcare Europe, for Office Regional Rights, Human for Commissioner High the of Office JuanE.Méndez treatment orpunishment, Human Rights Council, Ibid See above, note 57,Para 33. See Rosenthal above, note 9,p.7. See above, note 7,Para 65. 54 ., Article19;seeabove, note 26,Para 46. Asnoted above,disabilities mental with of adults theinstitutionalisation well-being andcompromise cognitive development. physical and psychological child’s the undermine can detention of periods short very Even development. and health child on impact negative and profound a has detention held, are children which in conditions the of regardless that, shown have studies of number A absence ofopenviolence andphysical neglect. the or heating, and nutrition adequate of question a just not is It institutional care, not only to “bad” or poorly equipped institutions. to intrinsic keyfactorsare“orphanages”),otherBulgarianrates in mortality reduced have to appear which conditions practices physical feeding and (e.g. improved significantly be indeed can tors fac some While years. eight to five than younger children even three or below children of cases the in especially care, institutional of effects harmful the of problem basic the solve not does hygiene [I]t needs to be emphasised that the improvement of conditions and 57 Significantly, it has been found that improving the conditions of care 56

Report ofthe Special Rapporteuron torture andothercruel, or degrading inhuman , UNDoc.A/HRC/28/68, 5March 2015,Para 16. 55 Inthecase of childrendisabil withmental 58 59 , 2011,p.19. The rights of vulnerable of rights The ------Shouting Through the WallsShouting Through (in that it is an act that is deliberate), it is discriminatory because it is based onelements a child’s of disabilitythe definition (and of therefore torture are meets met the – institutionalisation purpose requirement) is intentional and it is either carried out by the state (when children are placed in public institutions) or with the involvement of the state (when children are placed in private institutions). As noted in Part 2.2.4, states remain responsible for the monitoring and regulation of treatment of persons in private health care institutions. In light of - cult for the state to argue that it should not have known that institutionalisation (whetherthe severe public impact or of private) any form is likely of institutionalisation to amount to torture on children,(or other itill-treatment). will be diffi

When the pain and suffering caused by institutionalisation is less than severe, treatment of persons with mental disabilites in jordan institutionalisation is likely to amount to other ill-treatment given the suffering it causes.60 Where children with disabilities have experienced neglect, abuse or any other form of ill treatment, states must take all appropriate measures to ensure the recovery of the child.61 Thus all children with mental disabilities in institutions should be immediately removed to a family environment and also be provided with support to ensure their recovery.

4.2 National Legal Framework Relating to Persons with Disabilities Jordan has taken positive steps to combat discrimination against persons with disabilities by enacting the Law on the Rights of Persons with Disabilities in mental disabilities but is based on a medical model of disability and fails to recognise,2007. The as the definition CRPD does, of disability that it is barriers provided which in the are Law put includes in place personswhich hinder with a person’s ability to participate in society.62 The Law contains a number of provisions which require health care and education to be provided to persons with disabilities.63 - sons with Disabilities, which is mandated, amongst other things, to promote the rights of persons The with Law disabilitiesalso established through the proposing Higher Council policies, for legislative the Affairs amend of Per- ments and standards.64 comply with the CRPD in some aspects. For example, the Law provides for segregated day centres for personsHowever, with the disabilities,Law leaves 65a contrarynumber ofto gapsthe requirement and fails to

60 See discussion in Part 2.3. 61 CRC, Article 39. 62 impairment affecting any of his/her senses, or his/her physical, psychological or mental capabilities, to anThe extent Law definesthat undermines persons with his/her disabilities ability to as learn, “Any work, person or sufferingbe rehabilitated, from a andpermanent, in a way partial which rendersor total him/her unable to meet her/his normal day-to-day requirements under circumstances similar to those of non disabled persons”, Law on the Rights of Persons with Disabilities, No. 31 of 2007, Article 2. 63 Ibid., Article 4. 64 Ibid., Articles 6 and 7. 65 Ibid., Articles 4(4)(d); Al-Azzeh, M. (ed), “Mirror of Reality and a Tool for Change” Civil Society Report on the Status of Implementation of the Convention on the Rights of Persons with Disabilities in Jordan, January 47 2012, p. 50. 48 EQUAL RIGHTS TRUST 70 69 68 67 66 centres non-profit or private 29 around and centres government 31 are there ment based on apsychiatrist’s diagnosis of the condition. aredisability their mental to eligible receive welfare payments from thegovern if needed. Personsdisabilities whomental with areto unable workresulta as of are givencarehealth adisability insurance card to access other medical facilities choose to pay for privatecare health or institutions. Individuals withadisability individualswho areIndividualsinstitutions. in public institutionalised may also sidised. The governmentcost ofmedicalcare bearsthefull andresidence for receiveclinics, patients free a psychiatricmedication issub assessmentandall this supportthrough their clinics, which are availableacross Jordan. At these provides Health of Ministry The care. health subsidised provides government Dr X noted once that aperson has been diagnosed disability,with amental the was aware ofonly onespecialistpaediatricpsychiatrist inJordan. public hospitals or in public psychiatric outpatient clinics. However, Dr Al-Azzeh at Health Mental for other childrenin diagnosed and be adults both and Centre(Al-Fhais) Hospital Al-Fhais National the by diagnosed be can adults bilities, purposes, byCommittee.County Medical a providedbe can byDiagnostic Centre theNational for Disabilities or,for some reports such disabilities, intellectual with persons For care.receive or benefits Trusta medical report that a diagnosis detailingisrequired inorder to obtain Dr.Al-Azzeh, Muhannad legala expert in Jordan,on disability explainedto the ferral;referral by family a member;referralby doctor; a or referralby police. disabilities canaccess governmentmental with care health infour ways: self-re persons that noted He Trust. the to Jordan in disabilities mental with persons spoke who and Amman in to theTrustclinic onconditionofanonymity explainedthe system care ofhealth for Health of Ministry a at works who doctor A are excludedtia, orinsanity” from exercising theircivil rights. tuted decision making. issue of legalcapacity, andJordanian lawprovides still for a system of substi in thecommunity”.and participation of states to ensurepersons disabilitiesarewith that to able haveinclusion “full 72 71

Arab LeagueandtheAmericanBarAssociation. note 65. He has provided advice on international human rights law to the World Health Organisation, the the chief editor of thecivil society reportof theCRPD,status ontheimplementation see Al-Azzeh above, common butdooccur, Equal Rights Trust interview withDrX,17November 2016,Amman, Jordan. and refer them to the nearest Ministry of Health clinic for diagnosis. These types of referrals are not very danger to themselves or others. Police are trained to identify persons who may havehealth issues mental above, note 65 Civil Law No. 43 of 1976, Article 44; PersonalLaw Status No. 36 of 2010, Article204 as cited in Al-Azzeh tember 2016,Para 11. CRPD Committee, Equal Rights Trust interview withDrX, 17 November 2016,Amman,Jordan. Equal Rights Trust telephone interview withDrMohannadAl-Azzeh, 21December2016. EqualRights Trust telephone interviewAl-Azzeh,Dr Mohannad with 21 December 2016. Dr Al-Azzeh was For example,this may occurwhen thepoliceare contacted byindividual an believing afamily memberisa CPRD, Article19. , p. 90.Seealsoabove, note 1,Para 81. List of issues in relation to the initial report of Jordan of report initial the torelation in issues of List 67 Persons who are “undiscerning becauseof age, demen 66 Significantly, the Law did not address the 70 In the caseofpsychosocial In disa , UNDoc.CRPD/C/JOR/Q/1, 29Sep 72 Dr Al-Azzeh noted 68

69 ------which provide care for persons with mental disabilities in Jordan. These centres the WallsShouting Through provide a mix of day and residential facilities for persons with intellectual disabilities. For adults with psychosocial disabilities, Al Fhais is the only public institution in which individuals are institutionalised and there is only one private for children with psychosocial disabilities.73 institution, Al -Rashid Hospital. There are no institutions specifically established Jordanian law allows for involuntary institutionalisation. Article 14 of the Public

Health Act(a) Peopleprovides: who are suffering from mental illness, those addicted to treatment of persons with mental disabilites in jordan substances or those affected by psychotic substances can be admitted to hospitals or specialised wards voluntarily or involuntarily, involuntary admission can be allowed in the following cases: 1. If the patient or addict’s case calls for treatment that cannot be provided in any place other than the hospital or specialised ward. 2. If the patient or addict may harm themselves or others, physically or morally. 3. If a court order was issued for involuntarily admission, the court order should be based on medical purposes.

(b) For the involuntarily admission mentioned in article 14 (a)(1) (2) or (3), the following conditions should be met: 1. A formal application should be submitted to the hospital’s director. 2. A psychiatrist report should be made that confirms the application submitted to the hospital’s director. 3. An approval for the admission should be obtained from the hospital’s director, or his deputy.74

Article 14 clearly violates the right to liberty guaranteed in Article 14 of the CRPD. As noted above in Part 4.1.2, Article 14 of the CRPD prohibits the institutionalisation of persons on the basis of actual or perceived impairment whether the impairment is the sole basis for deprivation of liberty or the deprivation occurs on the basis of impairment and other factors, such as perceived danger to self or others. Article 14 is also discriminatory, because it is based on actual or perceived impairment, and therefore violates Article 5 of the CPRD and also Article 26 of the ICCPR. Any detention made on the basis of the provision must therefore be considered arbitrary in violation of Article 9(1) of the ICCPR.75 It is also concerning that Article 14(a) allows for involuntary institutionalisation in the event that medical treatment cannot be provided in a place other than a hos-

73 Equal Rights Trust telephone interview with Dr Mohannad Al-Azzeh, 21 December 2016. 74 49 75 Public Health Act, Law No. 47 of 2008, Articles 13–16. See Human Rights Committee above, note 43, Para 17; see also above, note 26, Para 40. 50 EQUAL RIGHTS TRUST 78 77 76 after they are discharged. These procedures are problematicas many families avoidresponsiblebeing thehospital in theevent harm comestothat thepatient topatient signed into be thecaredischarge ofanotherperson upon inorder to the care of a guardian or family member–hospitalprocedures usually require a discharged,be doctors are very reluctantto releaseintoother than apatient In addition,while itis the decision of the hospitalstaffwhether should a patient atives, inpractice, families dopressure doctors torelatives place ininstitutions. although familieshave do not any legaltoability reltheir adult institutionalise Other doctors reported slightly different procedures. Dr Al-Azzeh explainedthat selves: leaveaskedtoleavetomay be ask or can them hospital patients that stated He explained that: from theeffects ofdrugs,thenthey may behospitalisedagainst theirwill. and illusions”meanthatthey are adangerto others,orifthey are suffering if patientsare adanger to themselves oriftheir“audio-visualhallucinations patients may be “forced” into hospital in certain circumstances. He stated that A consultantpsychiatrist working inthepublichealthsystem explained that that thelaw appears to beimplemented inconsistently inpractice. disability. eredor upsetting embarrassing to family members solely onthebasisof their therefore couldbeusedtothose whose institutionalise conditions are consid to suchharmandthethreshold may therefore besetvery low. The provision provision is extremely vague asthere is no explanation of what may amount on thebasisof in thecommunity. ards, which require persons withdisabilitiesto beprovided with medicalcare This provisionpital. clearly contradicts internationalrightshuman law stand 80 79

Ibid. Ibid. Health, 27December2015,Amman, Jordan. Thepsychiatrist asked to remain anonymous. EqualRights Trust interviewpsychiatrist with aconsultant workinghealth, Ministryof inthepublic See Al-Azzeh above, note 65,p.105. See above, Part 4.1. willing then they can go together.and aware are they if and come family the of member a that ask askedto leave by the towilling hospital]not is gohe If then we can [If others. with or himself by leave can he yes] or [If safety? public himself to to danger the reduced symptoms his two have has provisions: which needed is evaluation an leave, to asks someone If forced into hospital to protect himself orothers. in hospital the is patient of the if establish torequired is detained be will directortheywhich the and doctors three of opinion The 77 Inaddition to these problems withthelaw itself,itis also concerning 76 It is also of concern that individualsof concernthat is also It may institutionalised be moral harm that theyharm that may doto themselves orothers. This 80 79 78 He He - - - - are reluctant to accept care of their relative due to social stigma or a lack of the WallsShouting Through knowledge or understanding about their condition.81 This explanation accorded with that provided by a doctor who attended a focus-group session at the Al-Saf- Saf Rehabilitation Centre in Amman, who explained that:

Whoever makes the decision [for the patient] to be admitted is the one to make the decision [for the patient] to leave. For example, I had a patient from Saudi (Arabia) who was admitted by his uncle and [during his stay] he made a special demand to go on a holiday. The uncle had to approve the holiday.82 treatment of persons with mental disabilites in jordan Dr Khalud Abu Zaid, an education specialist with Save the Children who has worked with marginalised communities, including persons with disabilities, for the permission of her male guardian was required.83 She told us that admission 18 years, stated than when a woman was discharged from Al-Rashid Hospital, was usually at the request of a patient’s family.84 Dr Al-Azzeh noted that the deci- siondirectly to place to hospital, a child infor an example institution admission rested withinto the privatechild’s parents. Al-Rashid85 Hospital,

The Ministry of Social Development is responsible for running and monitoring public care facilities for persons with mental disabilities and also for licensing and monitoring private centres and institutions working with persons with disabilities.86

[H]uman In 2011, rights the standardsWorld Health have Organisation only been assessed noted that: in some mental health facilities and only a small fraction of mental health workers receive human rights training. No mental health facilities in Jordan receive regular annual human rights inspections and no mental health staff working in inpatient facilities have received any training on the human rights protection of patients in the last two years.87

Dr Al-Azzeh noted that recent years had seen improved efforts by the Minis- try of Social Development to monitor care centres and institutions, particularly since new licensing regulations came into force in 2014. In the past year, the Ministry had closed two centres and issued warnings to four more. In addition to the oversight of the Ministry of Social Development, the National Centre for

Human Rights (NCHR) is also mandated to inspect care centres and institutions. 81 Equal Rights Trust telephone interview with Dr Mohannad Al-Azzeh, 21 December 2016. 82 Equal Rights Trust focus group with doctors at the Al-Saf-Saf Rehabilitation Centre, 22 February 2016, Amman, Jordan. 83 Equal Rights Trust interview with Dr Khalud Abu Zaid, 30 January 2016, Amman, Jordan. 84 Ibid. 85 Equal Rights Trust telephone interview with Dr Mohannad Al-Azzeh, 21 December 2016. 86 See Al-Azzeh above, note 65, p. 199; Equal Rights Trust telephone interview with Dr Mohannad Al-Azzeh, 21 December 2016. 51 87 WHO-AIMS Report on Mental Health System in Jordan, 2011, p. 5.

World Health Organization, 52 EQUAL RIGHTS TRUST 92 91 90 89 88 illnesses, andthusrehabilitation treatment seemsstrange to lotsofpeople”. surroundingstigma thinksSociety illness. mental curedbe cannot it that like other sons withmentaldisabilitiesinJordan ishigh. Sheexplained that“there isalot of in Amman,Jordan. Inher view, thelevel ofsocialstigmaandshamefaced by per We also spoke with Haifa al-Bashir, director of the Al-Saf-Saf Rehabilitation Centre their families andthepeoplewho work withthem”, he explained. “The shame andsocialstigmais not only forfor health but those with mental He further explained that a career in mental health work is not an attractive one. social stigmaandshamesurrounds mentalhealthinJordan: psychiatristA consultant workinghealth told inthepublic theTrustof a lot that 4.3.1 4.3 infringements ofindividual rights, includingas aresult ofinstitutionalisation. law and procedures which are operating in practice. The latter indicate significant place is implemented. To date it is clear that there is a significant gap between the legal national its improvingframework by Jordan and,importantly,on onensuringthattheframework itputin focus specific a for need a is there summary, In health care practitioners. thereand beginning wasreala ongoing needforand trainingto provided be to rightshuman basedapproach tocare health this was 2012, but in only modest a the Centreproviding hadbegun sometrainingto care health practitioners ona whatsteps Centre the took to addressDr Al-Azzeh suchcomplaints. noted that receivedbeing plaints from families ofpersons disabilities, with implemented. Although theCentre’s 2015 reportannual notes instances of com However, Dr Al-Azzeh was of the view that this mandate was not being properly

tion Centre openedin1994andoffers holistictherapy programmes for personswithmentaldisabilities. director of the Al-Saf-Saf RehabilitationCentre Jordan inAmman, for 12 years. The Al Saf-Saf Rehabilita nurse in Jordan andtheUnited States of America beforehealth. Shehasbeenthe specialisingin mental Ibid. 27 December2015,Amman,Jordan. Thepsychiatrist asked to remain anonymous. Annual%20Report.pdf. availableat: NCHR, Equal Rights Trust interview with Haifa al-Bashir, 2 February 2016, Amman, Jordan. She trained as a as trained She Jordan. Amman, 2016, February 2 al-Bashir, Haifa with interview Trust Rights Equal Equal Rights Trust telephone interview withDr MohannadAl-Azzeh, 21December 2016. Equal Rights Trust interview with a consultant psychiatrist working in the public health, Ministry of Health, Social Stigma, Misunderstandings and Denial of Services andDenialofServices Stigma,Misunderstandings Social Social andPoliticalSocial Context

they go outthey lock the doorbehind them. if and illness]mentalwith person [the comeshim hide aroundthey with mental illnesses like they are mad because of stigma. If a guest Unfortunately, social culture means that most families treat people The 12

th Annual Report on the Human Rights Situation in Jordan in 2015, http://www.nchr.org.jo/Arabic/ModulesFiles/PublicationsFiles/Files/The%2012th%20 89

90 October 2015, 88 91 it is not clear itisnot

pp. 228–229, 92 - - - Rozan, who has suffered from depression for the last seven years, told the Trust the WallsShouting Through that she feels that many people try to hide their mental health condition:

For example, there might be someone (…) studying at university and his family doesn’t know that he has a problem. He goes to the doctor and he is told that he is mad, so he tip-toes around his family and takes drugs and has therapy (…) his teachers won’t know his diagnosis either.93

close his mental health condition, especially given the type of condition (which treatment of persons with mental disabilites in jordan causedGhassan him explained to be fearful to the aroundTrust that other when people), he was because first employed, he was afraidhe did of not being dis were to share his mental illness with employers, he would not be hired. discriminated against during the recruitment process. He was afraid that if he I have been getting treatment for my condition and I am doing much better. But no one will understand that. Most employers do not want to hire someone with a mental illness or disability because they think that the person will be mistreated and exploited [by other employees]. They think that the person will not be able to take the pressure and quit. They don’t want to be responsible for mistreat- ment or for employees who quit a job shortly after being hired.94 complaint for being denied employment due to his mental illness.95 Ghassan said that he was not aware of a system that would allow him to file a reported by a number of individuals either in relation to themselves or their children.Worries96 It over was notreported being by able many to find parents employment who spoke due with to athe mental Trust disability that their were children experienced verbal insults or harassment from neighbours, in school, and sometimes from doctors.97 was born was “he is a mongoloid child.”98 Reem has two sons with Down syndrome. She explained that it was common The first for thing her tothe hear doctor others said insult to Safaa or pity when her hersons. son

Once I was waiting with my boys for the school bus. A woman walked by and stopped for a bit, stared at us and then said “oh poor thing she

93 Equal Rights Trust interview with Rozan, 21 February 2016, Amman, Jordan. 94 Equal Right Trust interview with Ghassan, 31 October 2016, Amman, Jordan. 95 Ibid. 96 Ibid.; Equal Right Trust interview with Dunya, 7 November 2016, Amman, Jordan; Equal Rights Trust interview with Ziyad, 10 November 2016, Amman, Jordan; Equal Rights Trust interview with Abeer, 10 Novem- ber 2016, Amman, Jordan; Equal Rights Trust interview with Safaa, 10 November 2016, Amman, Jordan; Equal Rights Trust interview with Duaa, 10 November 2016, Amman, Jordan; Equal Rights Trust interview with Reem, 10 November 2016, Amman, Jordan. 97 Equal Right Trust interview with Mariam, 7 November 2016, Amman, Jordan; Equal Right Trust interview with Safaa, 10 November 2016, Amman, Jordan; and Equal Right Trust interview with Reem, 10 Novem- ber 2016, Amman, Jordan. 53 98 Equal Right Trust interview with Safaa, 10 November 2016, Amman, Jordan. 54 EQUAL RIGHTS TRUST 103 102 101 100 99 disabilities. was unable to provide proper educationalservicesfor children withmental to register their children atpublicschools,withtheschooltelling them thatit Several otherparents reported to theTrust thatthey unsuccessfully hadtried However, Leyla stated that her daughter is harassed by the other students there. managed to successfully enrol herdaughter inaprivate non-segregated school. send hersonto aprivate school. they askedfor me [a month]”.dinars 1000 Rubanow pays year4000 dinarsa to nately, we couldn’t afford it(…)for otherchildren, itwas 500dinarsamonth,but fee-paying nursery, butwas asked to pay higher fees thanother parents. “Unfortu said that“hecouldn’t beunderstood”. Shesubsequently enrolled himinaprivate, told usthathersonwas turned away from a publicnursery becausethenursery tion isthenorm. Ruba, themother ofasix-year-old boy withDown syndrome, syndrome to attend government runschools.They noted thatsegregated educa four explained thatthere are few, ifany, provisions madefor children withDown individuals withDown syndrome, theJasmineCentre, spoke withtheTrust. dromewhoand are civila of members groupsociety rehabilitationand centre for for themto engage in,for example. Four women whose children have Down syn activities finding or school in children their enrolling in facedthey difficulties the Further, accessto services isanongoingproblem. Anumberofparents discussed for example, of the distinction between intellectualand psychosocial disabilities. in themedicalprofession, the individuals theTrust spoke with were unaware, umbrelladisability”.of “mental Aside fromnumber ofpeopleworking asmall the of recognition no with understanding, variety of different individual circumstances which fallunder the very of broad lack significant a also is There and activities.” noted that “it is [my son’s] right to find a place that offers [him] proper attention students. Whenshe complained to theteachers, they would donothing.She it wasthat notuncommonfor him toor “airhead”“stupid” becalled by school frustrationsher sonusedtoof insults the type at faceschool. Shereported in Mariam’s 10-year-oldhas Down son,Musa, syndrome andshe expressed similar 104

with Zaynab, 7November 2016,Amman,Jordan; Equal Right Trust interview withNoora, 7November 2016, Trust interview withFatima, TheJasmineCentre, 19February 2016,Amman,Jordan. Rights Trust interview with Leyla,The Jasmine Centre, 19 February 2016, Amman, Jordan; EqualRights EqualRight Trust interview Barah,with November7 Jordan;Amman, 2016, Equal Right Trust interview Equal Rights Trust interview withLeyla, TheJasmineCentre, 19February 2016,Amman, Jordan. Equal Rights Trust interview withRuba, TheJasmineCentre, 19February 2016,Amman,Jordan. EqualRights Trust interview with Ruba,The Jasmine Centre, 19 February 2016, Jordan;Amman, Equal Equal Rights Trust interview withMariam,7November 2016,Amman,Jordan. Equal Rights Trust interview withReem, 10November 2016,Amman,Jordan. Now Ihave learntto ignore them. things. say people heard I when me exhaust to used It say? to posed themof with two has disabilities.” ignoredjust I her. wasWhat sup I 104 Thosefamilies reported thattheir secondoptionwas to try 100 102 Oneofthewomen, Leyla, noted thatshehad 99 - 101 All All

103 - - - to enrol their child in a private school, but even then, they were told by the the WallsShouting Through private schools that they were not able to offer proper care and services to their children.105 Many now send their children to non-governmental organisations (NGOs) that have non-formal education programs and offer other services to their children including physiotherapy, vocational training, and psychosocial support.106

Barah is one parent who relies on an NGO to provide education to her daughter.

I remember one day seeing her very upset. I couldn’t understand what

was wrong. I kept asking her and she couldn’t express herself. She kept treatment of persons with mental disabilites in jordan trying to compare herself to the other girls around her but I didn’t understand what she wanted. I finally realised later that she was trying to tell me she wants to be on the same level as the other girls and wanted to go to school. The day I understood she wanted to go to school, she was happy, flying like a butterfly.107

In addition to the above circumstances which often amount to denials of the fundamental rights of the individuals concerned, this background also provides important context when considering the treatment of individuals in institutions and healthcare settings.

4.3.2 Lack of Government Support approach to supporting persons with mental disabilities. It is unclear whether theseOur research are problems identified of a lacka number of willingness of general or inadequateshortcomings implementation in the government’s mech- - cerned. For example, many of the individuals who spoke with the Trust stated anisms. However, the problems have a significant impact on the individuals con

Amman, Jordan; Equal Right Trust interview with Nada, 7 November 2016, Amman, Jordan; Equal Rights Trust interview with Ziyad, 10 November 2016, Amman, Jordan; Equal Rights Trust interview with Abeer, 10 November 2016, Amman, Jordan; Equal Rights Trust interview with Safaa, 10 November 2016, Amman, Jordan; Equal Rights Trust interview with Duaa, 10 November 2016, Amman, Jordan; and Equal Rights Trust interview with Reem, 10 November 2016, Amman, Jordan. 105 Equal Right Trust interview with Barah, 7 November 2016, Amman, Jordan; Equal Right Trust interview with Noora, 7 November 2016, Amman, Jordan; Equal Right Trust interview with Nada, 7 November 2016, Amman, Jordan; Equal Rights Trust interview with Abeer, 10 November 2016, Amman, Jordan; Equal Rights Trust interview with Safaa, 10 November 2016, Amman, Jordan; Equal Rights Trust interview with Duaa, 10 November 2016, Amman, Jordan; and Equal Rights Trust interview with Reem, 10 November 2016, Amman, Jordan. 106 Equal Right Trust interview with Salma, 7 November 2016, Amman, Jordan; Equal Right Trust interview with Barah, 7 November 2016, Amman, Jordan; Equal Right Trust interview with Zaynab, 7 November 2016, Amman, Jordan; Equal Rights Trust interview with Dunya, 7 November 2016, Amman, Jordan; Equal Right Trust interview with Noora, 7 November 2016, Amman, Jordan; Equal Right Trust interview with Nada, 7 November 2016, Amman, Jordan; Equal Rights Trust interview with Ziyad, 10 November 2016, Amman, Jordan; Equal Rights Trust interview with Abeer, 10 November 2016, Amman, Jordan; Equal Rights Trust interview with Safaa, 10 November 2016, Amman, Jordan; Equal Rights Trust interview with Duaa, 10 November 2016, Amman, Jordan; and Equal Rights Trust interview with Reem, 10 November 2016, Amman, Jordan. 107 Equal Right Trust interview with Barah, 7 November 2016, Amman, Jordan. 55 56 EQUAL RIGHTS TRUST 111 110 109 108 children withdisabilitiesorifshewas inreceipt ofwelfare support. she would only beeligibleto receive support ifherhouseholdhadtwo ormore to renew thesupport thisyear, asshewas informed thatthelaw hadchanged and a 16-year-old sonwho was diagnosed witha“minormentaldisability”, was unable and old years 28 independent from me. is He should be evaluated on He that basis.”salary? my with do to have son my does “what this, ries Ziyadque him. support to sufficient is Ziyad’ssalary that basis the on assistance has Down syndrome andisnow 28-years-old, was deniedgovernment disability reported to theTrust thatthey were notalways ableto receive Ziyad’s it. son,who government the from support financial sought who individuals the of number A consideration oftheneedsherchildren. forapplied housing, she was given ahouseisolatedin an anywithout location dren. As a single mother, she is eligible for rent-free housing. However, family when she her of care take tobecause sheis unable workresultas a of staying home to at care for her chil to assistance financial government on relies she that explainedshe decided tothat care forhis brother himand home. Shestated at After her wasson Malik sexuallymedical institution,Dunya abusedatapublic resources to thosediagnosedwithamentalillness. medical and support financial sufficient provide not does government the that ary 2016,Amman, Jordan. childcare andfood”feel she said, “I quite restricted”. EqualRights Trust interviewRozan, with 21Febru hood and feelsthere that isnogovernment support for people like her. “[We]need simplehelp with just an who has suffered from depression forseven the last years, toldshe is from usthat apoor neighbour ried. Inthemeantime,hersonsare expected to supporther. receivearemar cannot sons government wasfromshe her the tolddaughterbut support until financial a 16-year-old daughter who hasDown syndrome. Sherequested disabilitysupportfor herself and her 10 NovemberDuaa, view with Jordan. 2016, Amman, singleis a Duaa twomother with sons and adult ber 2016,Amman,Jordan. view withDuaa,10 November 2016, Amman, Jordan; EqualRights Trust interview with Reem, 10 Novem EqualRights Trust interviewSafaa, with 10 November Jordan; 2016, Amman, EqualRights Trust inter 2016, Jordan;Amman, EqualRights Trust interviewAbeer, with 10November 2016, Jordan;Amman, with Noora, 7November 2016, Amman, Jordan; EqualRights Trust interview withZiyad, 10 November EqualRights Trust interviewDunya, with 7 November Jordan; 2016, Amman, EqualRight Trust interview ber 2016, Jordan;Amman, EqualRight Trust interview with Zaynab,7 November 2016, Jordan;Amman, 7 Novemberview withSalma, 2016, Jordan;Amman, EqualRight Trust interview withBarah, 7Novem EqualRights Trust interviewAbeer, with 10NovemberJordan. 2016, Amman, Rozan, 40-year-old a wom EqualRight Trust interview with Ziyad, 10 November 2016, Amman, Jordan. EqualRight Trust inter Equal Right Trust interview withDunya, 7November 2016,Amman, Jordan. EqualRights Trust interview Nisreen, with 31October 2016, Amman, Jordan; EqualRight Trust inter I won’t get any help. or me offered they location and apartment the accept either I said They them. to situation my explaining and appealing tried I work. children with me or leave them at home, and both options wouldn’t get to the nearest supermarket, I would either have to take all three Tome. to close nothing is There hospital? the to him taketo need I and emergency medical a or seizure a has childrenmy of one if do to supposed I am What me. gave they apartment the near where There is no supermarket, no hospital, no public transportation any 109 108

110

Abeer, amotherof 111 ------Several parents explained that they paid part of the cost of their children’s institu- the WallsShouting Through tionalisation or education, with the government contributing the remaining part. government. For example, Mohammed contributes 100 dinars a month towards hisSome son’s respondents care and the also government reported that pays they 400 received dinars.112 financial Aseel pays support 2,000 from dinar the a year towards her son’s care in a private centre and the state matches her contribution.113 that families must pay to admit relatives to the centre, but “the government helps with the expenses Haifa al-Bashir, of the centre who runs [and the gives] Al Rawad 200 dinars Rehabilitation per client.” Centre,114 explained

Children with mental disabilities in Jordan are entitled to receive an insurance treatment of persons with mental disabilites in jordan card from the government which entitles them to receive medical care at a subsidised rate.115 Some individuals shared that public medical facilities do not necessarily provide proper care and However, support many when reported they are inadequacies presented with and thisfailings insurance in this system.card.116 Noora explained to the Trust that a hospital pharmacy has refused more than once to provide her son’s medication to her when she sought to purchase it using his insurance card.117She said that she was not aware of how to make a complaint and even if she was, no one would listen. Dunya’s children each have a disability insurance card but she explained that due to a change in the law, her sons’ cards now expire once every three months rather than once every three years.

Why would they do that to us? It’s too short. It’s costly to go back and forth every three months to renew their health care card. If I was unable to renew [the card] and they have a medical emergency, I would either have to pay the full cost or wait until I was able to renew it and they wouldn’t receive the help they needed.118

Some challenges attach to Jordan’s retention of discriminatory nationality laws and the knock-on impact on a child’s eligibility for an insurance card. Safaa, a Jordanian national and mother of a child with Down syndrome, explained that she is unable to get any medical care for her son because her husband is a Pales-

112 Equal Rights Trust interview with Mohammed, 22 February 2016, Amman, Jordan. 113 Equal Rights Trust interview with Aseel, 17 February 2016, Amman, Jordan. 114

115 Equal RightsRight Trust Trust interview interview with with Salma, Haifa al-Bashir,7 November 2 February 2016, Amman, 2016, Amman, Jordan; EqualJordan. Right Trust interview with Barah, 7 November 2016, Amman, Jordan; Equal Right Trust interview with Zaynab, 7 November 2016, Amman, Jordan; Equal Rights Trust interview with Dunya, 7 November 2016, Amman, Jordan; Equal Right Trust interview with Noora, 7 November 2016, Amman, Jordan; Equal Rights Trust interview with Ziyad, 10 November 2016, Amman, Jordan; Equal Rights Trust interview with Abeer, 10 November 2016, Amman, Jordan. 116 Equal Right Trust interview with Salma, 7 November 2016, Amman, Jordan; Equal Right Trust interview with Barah, 7 November 2016, Amman, Jordan; Equal Right Trust interview with Zaynab, 7 November 2016, Amman, Jordan; Equal Rights Trust interview with Dunya, 7 November 2016, Amman, Jordan; Equal Right Trust interview with Noora, 7 November 2016, Amman, Jordan; Equal Rights Trust interview with Ziyad, 10 November 2016, Amman, Jordan; Equal Rights Trust interview with Abeer, 10 November 2016, Amman, Jordan. 117 Equal Right Trust interview with Noora, 7 November 2016, Amman, Jordan. 57 118 Equal Right Trust interview with Dunya, 7 November 2016, Amman, Jordan. 58 EQUAL RIGHTS TRUST her detention severaltimes and was toldshe that could only bereleased with the to Al-Fhais after she locked herself in her room for several days. She challenged wasin 2016, explainedadult as an institutionalised her brotherthat took her by afamily member–theother two hadbeenreferred bywho police.Suaad, and eightadults were children.except All two hadbeenreferred toinstitution an 15 individuals who had been institutionalisedinvoluntarily, seven of whom were The or Trustill-treatment. either spoke to, or was told by afamily member about, treatmentto becarriedonlyout whichconsent and with mayto amount torture illness to bedetainedinvoluntarily, which violates the requirement for medical As noted inPart 4.2,Jordanian lawallows for persons suffering from mental 4.4.1 cate for personswithmentaldisabilities. persons whoand disabilities members ofpersons with worked to care oradvo spoke with77 individuals comprising persons disabilities, familywith mental and February 2016 and inOctober andNovember of2016. total,In the Trust noted in Part 1.3, the Trust carried out this research between November 2015 it research the on based findings carried intoout thetreatmentdisabilities inJordan.of persons mental with As Trust’s the out sets report the of part This 4.4 and ill-treatment ofpersonswithmentaldisabilitiesissituated. quate systemsthe focusthat ofstate ofourresearch support, into thetorture is againstIt this backdrop of knowledgeand lack ofsocial stigma andinade amounted to nothing. throughsubject studycommissioning the ofa in2015 has, inMohammed’sview, disabilities receivedtal from thegovernment. Recent government focus onthe Mohammed stressedmen with other people his sonand that of support the lack subsidised rate. insurancecard for herson,which wouldallow him to receivecare medical a at she explainedeven that thechangeinlaw, with tounable she is still an obtain able to pass on certain rights and her son could get a Jordanian ID card. However, he was born.Witharecent changeinthelaw, she had heardshe thatwould be pass herJordaniannot she could and national tinian to nationality herson when 120 119

Equal Rights Trust interview withMohammed, 2February 2016,Amman, Jordan. Equal Rights Trust interview withSafaa, 10November 2016,Amman, Jordan. Mental DisabilitiesinJordan Involuntary Detention Torture and OtherIll-Treatment ofPersons with no morals, nohumanity, nolaw. are There effect. any been hasn’t there but 2007 in 31 Law passed They continue. problems the study, the after change no was There 119

120 - - - permission of a doctor and her brother. She was then able to contact her brother the WallsShouting Through who agreed that she could be released.121 Samir, who was an adult at the time that he was institutionalised, shared that he had an angry outburst at his family, the police to Al-Fhais twice in the past two years as a result of his mental health condition,who then involvedboth times the involuntarily. police. The police122 took him to Al-Fhais. He was taken by

Tamer, who only agreed to speak to the Trust after ensuring that the location his family to a mental health institution three years ago, aged 17, after he had

of his detention would be kept confidential, explained that he was taken by treatment of persons with mental disabilites in jordan institution after a recommendation from a psychiatrist that he be institutionalised.experienced Tamer is severe unsure depression what the andmotivation suicidal for thoughts. this recommendation His family took washim andto the it is unclear whether this was a matter of disability discrimination or discrimina- explained that he discussed his sexual orientation with the psychiatrist, believ- tion on grounds of sexual orientation. Either way, Tamer’s story is alarming. He psychiatrist had told his parents about his sexual orientation and he wondered ing the conversation was confidential. He realised after he was released that the- doctorswhat role were this trying played to in cure his hisinstitutionalisation. sexual orientation: He was admitted to the institu tion twice in an eight-month period, both times for two weeks. He felt that the The psychiatrist told my family [about my sexuality] (…) despite having told me that he would keep it confidential. His idea was to involve my parents in my treatment but this is wrong and unethical because the doctors and my family were trying to treat [my sexual orientation]. I had gone to other psychiatrists before and they told me this is not a mental health issue and does not need treatment.123

Tamer reported that “[I] would overhear the doctors refer to me (...) as a case of homosexuality. Then I would see the way the nurses looked at me.”124 explained that he felt humiliated by being made to feel like his sexual orientation He- come his severe depression and suicidal thoughts. After he left the institution, Tamerwas an attemptedillness and suicide that as on a result, several he occasions felt it was and more was difficult again institutionalised. for him to over Tamer reported that he was only released after having to lie to his family about his sexual orientation.125

In all cases involving children, the Trust was told that the children had been institutionalised at the request of their parents. Dunya, a single mother of three children with mental disabilities, two of whom she described as having “severe

121 Equal Right Trust interview with Suaad, 16 November 2016, Amman, Jordan. 122 Equal Right Trust interview with Tamer, 16 November 2016, Amman, Jordan. 123 Ibid. 124 Ibid. 59 125 Ibid. 60 EQUAL RIGHTS TRUST 129 128 127 126 mayto amount torture or other ill-treatment. addition,In involuntarydisabilities of persons mental with institutionalisation including onthebasisofdisability. arbitrary detention, andArticle26 of the ICCPR, which prohibits discrimination, tionalisation andis also inviolationof Article 9(1) of the ICCPR, which prohibits of itsobligationsnumber undertheCRPDthrough thecontinueduseofinstitu right to non-discrimination. Jordan istherefore,a minimum,inviolationof at of aperson’s right to exercise legaland tocapacity live inthecommunity, andthe ceivedalwaysimpairment will or actual to amount arbitrary detention, adenial both childrenInvoluntary andadults. onthebasisof a per institutionalisation As noted inPart 4.1.2,theCRPDprohibits theinvoluntaryof institutionalisation not madepublic. in histhirtiescommittedanother patient suicide in circumstances which were schizophrenia committed suicide afterthe centreat being for over 20years and Report alsostatedthere that hadbeentwo suicides Al-Fhais; at reports of instances of involuntary detention of longer thantwenty years. tion of civil society organisations (CRPD Report), it was noted therethat were In a2012 report onJordan’s compliancewiththeCRPD prepared by acoali at home”. would becared for in thecentre, “Ithought itwould bebetter than keeping him forEducation. Special She reiterated repeatedly to theTrustshe thought that he privateAseel placedhersonina residential centreThe Arabic inAmman, School violent behaviour. he felt he had no choice tobut have Ahmed placed into aninstitutiondue to his Mohammed his said he will. that felthelpless dueto his son’s situationandthat in there.” aged 14.Thedangerheposedto uswas greaterthe suffering than hewouldface in2004, “weexplained hadtothat, our sonAhmed in theJerrash put Centre (…) Ahmed, nowthat the brain26, “has four-year-old”.of a capacity Mohammed tion was theonly optionavailableto them.Mohammedwas told by doctors Some parents notedthey that felthavingthat institu in an theirchildplaced and vocational training for children. with her children. her Sheplaced two sons in afacilityofferedthat educational vided byrun byinstitution an Development theMinistryofSocial to helpher disabilities,”mental reported she needed to that relythe specialised care on pro 131 130

Ibid See discussionin Part 4.1.2. See Al-Azzeh above, note 65,p.33. Equal Rights Trust interview withAseel,7February 2016,Amman,Jordan. Equal Rights Trust interview withMohammed,22February 2016,Amman,Jordan. Equal Rights Trust interview withDunya, 7November 2016,Amman, Jordan. ., p.106. 127 128 Ahmedwas theninandoutofinstitutionsfor severalyears, against 130

126

131 The treatmentof Tamer, who

a patient with a patient 129

The - - - - - at age 17, experienced humiliation while institutionalised as a result of being the WallsShouting Through made to feel that his sexual orientation was an illness, and who felt that this treatment. As noted above in Part 2.3, treatment which humiliates a person will amountmade it moreto degrading difficult fortreatment him to overcome regardless his of depression, whether there amounts is an tointention degrading to humiliate the person. The involuntary detention of Tamer also violates the right to non-discrimination on the basis of sexual orientation pursuant to Article 26 of the ICCPR. Detaining persons for discriminatory reasons, including on the basis of their sexual orientation, amounts to arbitrary detention in violation of Article 9(1) of the ICCPR.132 treatment of persons with mental disabilites in jordan As discussed above in Part 4.1.3, institutionalisation of children has severe and long-term detrimental effects on their health and development such that any institutionalisation of children, whether public or private, is likely cause suffering which, at a minimum, amounts to ill-treatment and may reach the level of each of Dunya, Mohammed and Aseel in relation to their children are discussed insevere further pain detail and sufferingin Part 4.4.2 to amount below. to torture. The specific allegations made by

4.4.2 Physical and Sexual Abuse the Trust related to children. Abuse was reported as having taken place both in publicAlmost and all specific private allegationsinstitutions of and physical allegations or sexual related abuse to thattreatment were reported which had to taken place in the past 15 years, up to the present day. In almost all cases, those reporting the incidents have felt unable to take action due to fear of reprisals and/or a perception that such attempts at justice will be futile. In some cases where allegations date back many years, the additional challenge of identifying individual perpetrators is particularly acute.

Mohammed admitted his son Ahmed to the government run Jerrash Centre in that he had been beaten”. They complained, in response to which the staff sought to2004 justify when the Ahmed signs of was physical 14. He abuse was visited by explaining there by that his Ahmedparents, himself who saw was “signs very violent.133

Aseel spoke to the Trust about her son, Iqbal. She told us that he lived in a private institution, the Arabic School for Special Education, from the age of seven until he was 16. Aseel stated that Iqbal is “mentally handicapped and cannot speak”. She told us that Iqbal was beaten in the centre.134 She explained that she visited her son in a dedicated visitors’ room and never witnessed the conditions of the centre. She became aware that something had happened to her son on a visit to the centre in 2004:

132 133 Equal Rights Trust interview with Mohammed, 2 February 2016, Amman, Jordan. See Human Rights Committee above, note 43, Para 17; see above, note 26, Para 40. 61 134 Equal Rights Trust interview with Aseel, 17 February 2016, Amman, Jordan. 62 EQUAL RIGHTS TRUST 139 138 137 136 135 at”, psychiatrists stated theythat hadrecently seen children “beaten andscreamed in theovernight centres and hospitalswhere they hadpreviously worked. Two A group of psychiatrists spoke to theTrust theythe abuse about hadwitnessed not prove theallegations. more informationthe incidentfrom about himledher to believeshe could that explained thathis hesitation to share the incident and her toinability obtain the timeshe hadnottakenhappened andat himto adoctor or psychiatrist. She the facilityat wasMalik because initiallyto hesitant explainto herwhathad incident the about complaint a file to unable felt she that Trust the told Dunya cares for themathome. ally assaulted. She removedand his brotherboth Malik from thefacilityand now She askedbleeding. what Malik he toldhad happenedand he washer that sexu noticed her had abrokenthat son, Malik, was armthat severely and bruised, cut, facilityvisiting thepublic While in which herchildren were living in2005, Dunya the courts. institution. tellinghe hadbeenhitintheeye.Aseel that Aseelthenremoved hersonfrom the one eye. A teacher at the centre raised concerns about Iqbal’s safety unofficially, Two years later,her Aseelsaid that son was permanently visually impaired in 141 140

140 Ibid. Ibid. Ibid. Ibid. Ibid. Equal Rights Trust focus group discussion, 17November 2016,Amman,Jordan. Equal Rights Trust interview withDunya, 7November 2016,Amman, Jordan. withoneexplaining:

blue. Hecouldn’t speak,sohecouldn’t tell me. and green all swollen, was eye his Then, malformed. now is ear his and manyresultbeatings theof is it that said [now] has doctorthe thereAt first, was a lump on his ear, they said it was just a boil. But idation. intim is There extra.anything for ask or complain they if patients the at psy shout They with humanity. no [patients is There them impairments]. chological with deal to how know don’t staff The that they are unableto talk to us. think they because them of advantage take They assaulted. sexually also was son my But girls. to happens this that rumours heard I because facility the to daughter my send to want not did I 136 Aseel successfully sought compensationfrom thecentre through 141 137 139

138 135 - - - During a focus group discussion with the Equal Rights Trust, two health care the WallsShouting Through practitioners reported seeing or being aware of physical abuse. One told us that in a private care centre for children with Down syndrome, she had heard of instances where the children had been “sexually abused”. She said “it’s the sort of thing that is covered up”.142 Another individual stated “I saw ill-treatment with my own eyes, especially against girls. There was one guy, who was feared by everyone because of what he did”.143 Due to fear of reprisals, such instances

Monaremain spoke unreported to us about and unverifiable. the recent experience of her son in a private day cen-

tre for children with disabilities. Due to oxygen deprivation at birth, Mona’s son treatment of persons with mental disabilites in jordan developed palsy on the left-hand side of his body. When he was a toddler, doctors told her that the condition would be permanent so she found a day centre for him to attend. She removed him from the centre when she realised that there had been ill-treatment there.144

At first, we were really engaged with the project, we thought his health and his interaction with society would improve, but then he started to refuse to go. Then we realised there had been ill-treatment from the instructors, the supervisors and the specialists – it had a bad effect on his mental health. He would cry in the mornings, and scream “I don’t want to go”. They would beat the children and shout at the children. When I went to the centre, I’d see other kids who had been beaten, crying, asking for their mothers. It was really upsetting.145 what Zaynab describes as a “severe mental disability” and a physical disability. SheZaynab told is us a that mother she decidedof two children to send herwith daughter disabilities. to a publicHer daughter, care and Najla, rehabili has- tation centre run by the Ministry of Social Development, hoping that physiotherapy would improve her daughter’s condition. One day, after taking Najla home from the centre, Zaynab noticed something very odd about Najla’s arm. Because of Najla’s disability, Zaynab was unable to properly communicate with Najla to ask her what had happened to her arm. Concerned, she took her immediately to the hospital to have her arm checked. After an X-ray, the doctor told Zaynab that Najla’s arm was broken. She suspected it was the rehabilitation centre but she was not certain.

Zayab continued sending Najla to the rehabilitation centre in the hope that her physical condition would improve with ongoing physiotherapy. Najla’s sister, therapist told Maha to take Najla outside and sit in the sun. Zaynab explained thatMaha, Maha attended told her a sessionthat when with she Najla lifted one Najla, day. Najla After started finishing to scream the session, and tears the

142 Equal Rights Trust focus group discussion, 9 November 2016, Amman, Jordan. 143 Ibid. 144 Equal Rights Trust interview with Mona, 16 November 2016, Amman, Jordan. 63 145 Ibid. 64 EQUAL RIGHTS TRUST 153 152 151 150 149 148 147 146 notes that: of detention have beenconsidered toto amount torture. cases before internationalcourts, actsof sexual abuse andviolenceinsituations consideredbe must of institutionalisation the impact together. institutions, thecumulative effects ofphysical andsexualabuse together with disabilities madeto theTrusttoamount torture. Where children are detainedin A number of the allegations of physical andsexualabuse of children withmental of pupil’shandswithahotmetalspoon. reportedhead teachera that association”education “special ofa the back burnt CRPD prepared by acoalitionof civil society organisations (CRPD Report), it was ArabCity Centre inAmman. reportedalso child wasa that deliberately burned byat chemical substance a repeatedly kicked by astaffmember on theway to the toilet. child being beaten after spilling ice cream onthemselves, he stoppedon until moving by astaffmemberfor refusing to goto bed, tigation uncovered numerous instances of abuse includingabeingchild jumped private care homesfor childrendisabilities inMaymental with 2012. The inves ings madeby BBCArabic inaninvestigation carried out into physical abuseat The testimonies shared with the Trust in relation to private care reflect the find tre.” had only“She arm. there been for twotook months(…)soI of thecen herout physiotherapiststhe centre, at which denied being thesource ofNajla’s broken to her sadness andfrustration, Najla’s armwas broken again. Sheconfronted the arm was broken. Zaynabonce again took her to thehospitalandexplainedthat, Najla’s that thought she that her telling Zaynab, called Maha eyes. her flooded ers UnderInternational Law tro Prison v Peru 25 (ECtHR), Rights Human of Court European example, for See, php?page=article&id=16067 (inArabic). and burningthem“, Al-AzzehSee above, Saraya,also see 111; p. note65, spoon bya students “Headteacherheating punishes Ibid. abuse-at-jordans-private-care-homes-for-mentally-disabled-kids. kids”, ArabReporters for Investigative Journalism,“AbuseJordan’s at private care homes for mentally disabled (in Arabic). 2012, availablehttp://www.bbc.com/arabic/middleeast/2012/05/120514_bbc_children_doc.shtmlat: BBC Arabic, “Behind the Wallof Silence: BBC documentary on thecare of children inJordan”, See above, Part 2.2.1 and 2.3. See above, note 147. Equal Right Trust interview withZaynab, 7November 2016,Amman,Jordan. 146 September 1997, Paras 83–84; Inter-American Court of Human Rights, Human of Inter-AmericanParasCourt 83–84; 1997, September Thishadhappenedthemonthbefore Zayab spoke to theTrust.

nerable as when naked and helpless. (…) Furthermore,(…) sexualhelpless.verbal and naked when as nerable vul as never is individual An situations. torture in factor constant a is countriesmany in whichnudity,forced with begins tortureSexual Arab Reporters for Investigative Journalism, Journalism, Investigative for Reporters Arab , 25 November 2006, Paras 309–311; Rodley, N. withPollard, M., aaa News Saraya , Oxford University Press, 3 150 , 7December 2009, availableat: http://www.sarayanews.com/index. Ina2012 report onJordan’s compliancewiththe 151 9 June2006, availableat: http://en.arij.net/report/ rd ed.,2009,p.96. Aydin v Turkey v Aydin 153 The Istanbul Protocol TheIstanbul Case of the Miguel Castro-CasMiguel the of Case 148 , Application No. 23178/94, , Application 149 andachild being The investigation The Treatment of Prison 152 In a number of number a In BBC - , 14 May 147 a - - - - - threats, abuse and mocking are also part of sexual torture, as they the WallsShouting Through enhance the humiliation and its degrading aspects (…) The groping of women is traumatic in all cases and is considered to be torture.154

Dunya reported to the Trust that her son had been sexually abused while resi- dent in a government run institution. The pain and suffering caused by acts of sexual abuse, together with the suffering caused though being institutionalised, thus, in this particular case, the state must respond to an allegation of torture. Similarly,clearly amounts the physical to the abuse intentional of children infliction with ofmental severe disabilities pain and in suffering both public and

and private institutions may also amount to torture where the pain and suffering treatment of persons with mental disabilites in jordan caused is severe. The allegations reported to the Trust of the beating of children, such as Ahmed, who was institutionalised in a public institution over a period of years, and Iqbal, who lost his sight as a result of his injuries in a private institution, are likely to have caused them severe physical and mental pain and suffering. Such treatment in a public institution always involves the state and so amounts to torture. The beating of Iqbal, in a private institution, will amount to are serious allegations to which the state is urged to respond. torture if Jordan failed to take sufficient steps to monitor the centre. Again, these The Trust also spoke with a number of health care practitioners who reported 155 which is an NGO-run “rehabilitative day centre”, spoke about the physical abuse that theyinstances had witnessed of abuse in of other adults. private Healthcare and public practitioners hospitals atwhere the Al-Saf-Safthey had previously Centre, his training. becauseworked. theyOne weren’tdoctor told mental us that health he nurses,worked they in the didn’t Marka know Military or understand Hospital howduring to He explained that the nurses working there “used to beat [the patients]- pital spit on a patient with schizophrenia.156 Spitting on a patient is highly likely todeal humiliate with [the them, patients]”. and be He intended stated thatto humiliate he once them,observed and the so bedirector considered of the to hos be degrading treatment. Another doctor during the same discussion reported that her colleagues had witnessed physical abuse in a private hospital whist training:

[S]ome university colleagues of mine told me that when they were training in an expensive private hospital, there was woman with a mental disability who had been there for three years, paying thou- sands of pounds (...) she was beaten and they put cigarettes out on her skin.157

Such treatment is clearly discriminatory and very likely to cause severe pain and suffering such that it may amount to torture. As noted above, treatment

154 Istanbul Protocol, Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1999, Chapter I, Para 215. 155 Equal Rights Trust focus group discussion with practitioners, Al Saf-Saf Rehabilitation Centre, 2 February 2016, Amman, Jordan. 156 Equal Rights Trust focus group discussion, Al-Saf-Saf Centre, 2 February 2016, Amman, Jordan. 65 157 Ibid. 66 EQUAL RIGHTS TRUST 161 160 159 158 restriction,cal is] giving [that medicine thepatients to make themrelaxed and stay asleep”. staff give“the during anotherdiscussion that sedatives [thepatients] sothey doctor told“high usthat doses keepasleep”. [patients] fessionals in anotherfocus group. Inaconversationhospitals, public about theyso that remain asleep”. conditions than theothers [more severedisabilities] are mental given sedatives refused toShe stated name thehospital. slightly“those with that more advanced keepin thegovernment asleep patients where hospital sheonceworked. She focus group,healthcarea practitioner told theTrustthere that waspolicy to a Service providers explainedsedation was that hospitals. Inone used in public medication after leaving thehospital.” it led that toof aboutdepression, felt“I empty there (…)Itook anti-depressant me”. Shereported beingupsetandoverwhelmed by theexperience andbelieved forresponsible was He supervision. myfor and that forresponsible was doctor medication she took, sheonly toldtook“I us that my medication,obviously. The day becauseof the medication she was given. Shedoes not remember which During the 10-day period, she remembers being awake for only two hours each wheretal report “a was madewhich I hadpsychosissaid that and schizophrenia”. fits”. governmentlocal a because she had sufferedhospital fromand “hallucinations centre. Sheexplainedbefore that she came to thecentre, she spent 10 days in a 50-year-old woman, is a current dayAl Saf-Saf,at patient arehabilitative day whoone patient with reportedshe was that subjected to thisherself. Rawan, patients beingsedated when institutionalised, theTrust only spoke directly Although a numberof health care practitioners reported that they knewof 4.4.3 her views ontreatment inpublicresidential hospitals: continues today.academic specialisinginnursingspokeAn toTrust the about the torture. Conversations with specialistsinJordan indicatethis treatment that a systemimplement ofmonitoring andsomay beconsidered asconsentingto in private institutionsmay beconsidered to betorture where thestate fails to 163 162

Ibid. the Trust withthenameofhospital. 2016, Amman,Jordan. Theacademicasked to remain anonymous. Equal Rights Trust focus group discussion, 17November 2016,Amman,Jordan. EqualRights Trust focus group discussion, The Queen Ranya Centre, 13 December 2015, Jordan.Amman, Equal Rights Trust focus group discussion,9November 2016,Amman,Jordan. EqualRights Trustinterview Rawan, with Jordan.2016, Amman, 2 January Rawan wish todid not provide EqualRights Trust interviewacademic specialisingin theprovision withan ofnursingcare, 2September 159 Sedation Rawantold her sister, usthat who psychologist, isa took her to thehospi doses ofdrugs,there are beatingsandnotenoughspecialists. human rights issue. Public hospitals are a not good is at giving This the right institutions. public of state the with satisfied not are We 163

This was alsoreported by DrAl-Azzeh, who told“chemi usthat 161

This testimony was supported by medicalpro 160

162 Apsychiatrist reported 158

one - - - Shouting Through the WallsShouting Through be problematic from a human rights perspective because “there is an issue of notinformed able to consent. react (...) [Patients] is a common don’t thing”.know whatHe highlighted the alternatives that the are”. practice164 could

The use of sedation should be considered a form of restraint when its primary intended use is to restrain the movement or behaviour of a patient or it restricts the ability of a patient to make decisions.165 The Special Rapporteur has noted that prolonged use of restraints may amount to torture or other ill-treatment.166 restraint is one of the most aggressive measures to which a patient under psychiatric treatment can be subjected.”167 In addition, the use of sedation without

The Inter-American Court of Human Rights has stated that it “considers that treatment of persons with mental disabilites in jordan the consent of the patient will amount to a violation of the right to security of person,168 a violation of the right to be treated with dignity while detained169 and a violation of the requirement for medical treatment to be provided only with the informed consent of the patient.170 There is some evidence to indicate that the sedation of patients in Jordan occurs without their fully informed consent and therefore amounts to a violation of the CRPD.

4.4.4 Denial of, or Lack of, Adequate Medical Care

4.4.4.1 Lack of Appropriate Care

A number of people told the Trust that they, or their child, were not provided with what they felt would have been adequate medical care. Mohammed told the Trust that his son, Ahmed did not to his knowledge receive any treatment at all while he was in the Jerrash Centre.

I was not allowed to visit certain rooms so I can’t comment on the state of the centre. My son can’t speak so he can’t tell us about it. Their work was easy (….) The centre was purely commercial, there were illusions of treatment and behavioural changes but it was all an illusion.171

Despite this, Mohammed, was frustrated when the Centre made the decision to discharge Ahmed “because there was a waiting list.” Ahmed was sent home and

164 Equal Rights Trust telephone interview with Mohannad Al-Azzeh, 21 December 2016. 165 Mental Disability Advocacy Centre, Cage beds and coercion in Czech psychiatric institutions, 2014, p. 20; Ximenes-Lopes v Brazil, 4 July 2006, Para 133.

166 and Inter-American Court of Human Rights, - stances the use of restraints will amount to torture and in which circumstances it will amount to other ill-treatment,See above, note but 8, given Para that63; seeboth above, reports note are 7, referring Para 55. to Neither persons of with the disabilitiesreports specifies in institutions, in which presum circum- ably the distinction is based on the severity of the pain and suffering involved. 167

168 See Inter-American Court of Human Rights above, note 165, Para 134. - man Rights Committee has explained that “[t]he right to security of person protects individuals against International Covenant on Civil and Political Rights (ICCPR), 999 U.N.T.S. 171, 1966, Article 9(1). The Hu

169 intentionalICCPR, Article infliction 10(1). of bodily or mental injury”, see Human Rights Committee above, note 43, Para 9. 170 CRPD, Article 25(d). 67 171 Equal Rights Trust interview with Mohammed, 22 February 2016, Amman, Jordan. 68 EQUAL RIGHTS TRUST 177 176 175 174 173 172 centre isonly equippedto distribute medication,andshe goes there to collect she attended,were herdetails passedtomedication distributioncentre. a The want to takeafter medication, but the closure of the behavioural therapy centre attendsdistribution centre.drug a Sheexplainedto Trust the she does not that mentary services was noted bycare health providers alike.and patients The existence ofmedicationdistributioncentres which offer noother comple about inthecorridors”. were notallowed to leave their rooms although “they might beallowed to move doctorOne reportedhe hadpreviouslythat hospital a in that workedpatients in, spoke aboutheruncle: rooms to accommodate everyone there, there wasn’tany therapy”.She also Zaifa. Shetoldwasthe “hospital usthat overcrowded, there weren’tenough spent some time inAl-Fhais after outgrowing specialistcentres in Ammanand us. There isnocompassionandcare.” are justthere for medication. Thedoctors and nurses don’ttry to connectwith whoSuaad, was involuntarily taken to Al-Fhais,similarly“you explainedthat, there would benomedicalsupport. would give himhismedicine.the afternoons, In his door would belocked, and residential care. He reported that each morning, he was attended by a nurse who therefore soughtto have himadmitted toFhais, where Al 18 monthsin hespent toldhis usthat two brothers did not feelto able home copewithhimat and Adam was inhis 30’s when he checks to seeifhehadimproved ornot”. given amonthly prescription, yet Mohammedtold“they usthat didn’t make any

2 February 2016,Amman,Jordan. view withRozan, 21 Ibid. EqualRights Trust interview 16 Maha, with November 2016, Amman, Jordan; EqualRights Trust inter Equal Rights Trust focus group discussion,Al-Saf-Saf Centre, 2February 2016,Amman, Jordan. Equal Rights Trust interview withMaha,16November 2016,Amman,Jordan. Equal Right Trust interview withSuaad,16November 2016,Amman,Jordan. Equal Rights Trust interview withAdam, 1February 2016,Amman,Jordan. There was alack ofcare. him. anywherenear nurse a find didn’t and visited we when prised sur really were We him. with stay and him after look could who nurse special a was there sure made we there, him took we night first The there. treated be he’d thought we and hospital a to him took we so himself after look couldn’t he Alzheimer’s, has uncle My have liked to seeanurseinthe afternoons. would I leave. couldn’t I lockedin, was I drugs. me give couldn’tthey people, weretheafternoonthatcameunqualified in people only The st February 2016, Amman, Jordan; Equal Rights Trustal-Bashir,HaifaRightsFebruaryJordan; Equal with interview Amman, 2016,

176

175

was diagnosed with schizophrenia in 2008. He 2008. in schizophrenia with diagnosed was 174 172 Maha told Maha theTrusther nephew that

173 177 - Rozan, - - her anti-depressant pills. She feels that she has no other option: “I don’t like tak- the WallsShouting Through ing the medication”.178

Failing to provide adequate medical care to persons with disabilities violates their right to the enjoyment of the highest attainable standard of health.179 This is particularly true where persons are detained involuntarily in institutions, as in the case of Ahmed and Suaad, as such persons have no ability to seek medical care themselves. Persons who are detained must be provided with appropriate healthcare and a failure to do so violates their right to be treated with humanity and respect for their dignity.180 As noted above in Part 4.1.1, failing to provide adequate

medical care may also lead to mental or physical suffering that, where severe, vio- treatment of persons with mental disabilites in jordan lates the prohibition on torture and, where less than severe, other ill-treatment. At best, Jordan is therefore failing in its obligations to safeguard against torture and other ill-treatment.181 In addition, in circumstances in which a failure to provide adequate treatment risks the life of a patient, Jordan is failing to safeguard in comments which apply equally to international human rights obligations: patient’s right to life. As the European Court of Human Rights (ECtHR) has noted, Persons in custody are in a vulnerable position and the authorities are under a duty to protect them. Where the authorities decide to place and maintain in detention a person with disabilities, they should demonstrate special care in guaranteeing such conditions as correspond to his special needs resulting from his disability.182

4.4.4.2 Failure to Inform of Diagnosis or Explain Treatment

A number of individuals that the Trust spoke to also explained that they were not told of their own diagnosis or did not have their treatment explained to them. Rawan explained that she did not know the name of the hospital nor her diagnosis after her sister took her to the hospital for treatment: “I was behaving . I don’t know what the diagnosis was exactly.”183 strangely and my doctor confirmed that I was in a kind of stupor Nisreen was diagnosed in her late teens with severe chronic depression.

Twenty years later, in 2016, she explained that she still experiences difficulties 178 Equal Rights Trust interview with Rozan, 21 February 2016, Amman, Jordan. 179 CRPD, Article 25; International Covenant on Economic, Social and Cultural Rights (ICESCR), 993 U.N.T.S. 3, 1966, Article 12. 180 McCallum v South Africa, Communication No. 1818/2008, UN Doc. CCPR/C/100/D/1818/2008, 2 November 2010, Paras 6.8 and 7, which discussed healthcare in a prisonICCPR, setting.Article 10(1); Human Rights Committee, 181 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), 1465, U.N.T.S. 85, 1984, Article 2(1).

182 Jasinskis v Latvia, Application No. 45744/0821, 21 December 2010, Para 59. The case was con-

applicant’sECtHR, son, who was deaf and unable to speak. sidered under Article 2 of the ECHR (the right to life) as it concerned the death in police custody of the 69 183 Equal Rights Trust interview with Rawan, 2 January 2016, Amman, Jordan. 70 EQUAL RIGHTS TRUST 187 186 185 184 sis andunderstandingamongpatientstheirfamilies. of expertiselack in psychiatry in Jordan were barriers to achieving cleardiagno the CRPD Report, Dr Mohannad Al-Azzeh, notedsocial stigmaandageneral that with thefamilies andinform them of their rights andoptions.” competentsocial workers to workof consistencylinked couldbe to[of] “lack a One academic with experience intheprovision of nursing care believedlack that who saw achildwho hadsuffered domesticabuse: This view was supported by theexampleprovided to theTrust by acase-worker between servicesanddiagnoses across centres. healthcareOne practitioner reported to theTrustthere that inconsistency isan takes away theabilityofpatientto make decisionsabouttheirown care: they are providing andthepossiblesideeffects associated withthecare. This are willingto provide care to patients,they may notexplain thetypeofcare when seekingsupportfor hermentalillness.Shenoted thateven when doctors 188

2016, Amman,Jordan. Theacademicasked to remain anonymous. Equal Rights Trust telephone interview withDrMohannadAl-Azzeh, 21December2016. EqualRights Trust interviewacademic specialisingin theprovision withan ofnursingcare, 2September EqualRights Trust focus group discussion, The Queen Ranya Centre, 13 December 2015, Jordan.Amman, EqualRights Trust focus group discussion, The Queen Ranya Centre, 13 December 2015, Jordan.Amman, Equal Rights Trust interview withNisreen, 31October 2016,Amman, Jordan. I consider it my right to understand my treatment. And if I can’t I if And treatment. my understand to right my it consider I suffering from aneurological illness. was she condition– her saw I and caseworkerher a visit as towas role My illness.any have didn’t she that saying report a wrotethey wherecentreAlFhais] national the[at to her sent Bashir and pital Hos Bashir the to her sent they and centre protection child the to her sent we So, thing. same the her told and her saw doctor health mental a and illness mental severe a had she that patient the told We had a case (…) A doctor from the Ministry of Social Development they write that heisnotsuffering from amental illness. goes to a session which lasts between five and ten minutes and then a problem. Then when the same child goes to the national centre, he has he that say we so – socially engaging be not example,might he for – strangely behaving is he and minutes two for child a see We the tell even not patient this ishappeningto getwould their approval. and illness mental their helps it if see to group for new medication. to They will givetry them new medicine the impact of the medication. Some doctors see patients as a testing seeing one the be will becausepresenttheyunderstandto be to ers because of my or disability illness? Then it is important for caregiv 186 184 188 185 187 The editor of - - - Maha reported that her nephew’s psychological illness has never been diag- the WallsShouting Through nosed:

One doctor told us it was a mental illness, the other said it was a psychiatric illness, we had lots of different diagnosis. Every doctor who saw him gave him medicine, each type of medicine different from the first.189

The testimonies gathered by the Trust support those in the CRPD Report, which notes that persons reported being given medication without knowledge of what the medication was or its effects.190 Failing to provide persons with disabilities treatment of persons with mental disabilites in jordan with information about their diagnosis or the medical treatment they receive is a blatant violation of their right to provide free and informed consent to medical treatment.191 As noted above in Part 4.1.1, providing this information to a expresslysubstituted prohibited decision makerin both or the parent CRPD is and not the sufficient. ICCPR.192 Furthermore, any form of medical or scientific experimentation without consent, as alleged by Nisreen, is 4.4.4.3 Insufficient Healthcare Facilities

The Trust was told on a number of occasions that facilities for mental health care in Jordan are not adequate. Nisreen explained that she was frustrated due to the thatlack ofbecause flexibility of limited with, and government limited availability facilities and of, appointments specialists available at the Ministryat these facilities,of Health itpsychiatric could take facilities. two to threeShe was weeks told toby securethe employees an appointment of these facilitiesdate for an individual with an open case who needs to immediately see a psychiatrist because they are suicidal.

What happens when someone has an emergency need to see a specialist, let’s say [she is] experiencing suicidal thoughts. The answer? Wait your turn. But I can’t wait my turn. I have an urgent need and if I wait it might be over. There needs to be a method in which appointments can be prioritised. Not everyone needs to see a doctor urgently or on a regular basis.193

Nisreen’s views are supported by the reports provided to the Trust by health care practitioners. A consultant psychiatrist working in the public health sector stated that government hospitals are understaffed. “We would like to have more

189 Equal Rights Trust interview with Maha, 16 November 2016, Amman, Jordan. 190 See Al-Azzeh above, note 65, p. 121. 191 CRPD, Article 25(d). 192 CRPD, Article 15(1); ICCPR, Article 7. 193 Equal Rights Trust interview with Nisreen, 31 October 2016, Amman, Jordan. 71 72 EQUAL RIGHTS TRUST 199 198 197 196 195 194 Hospital inSahabdistrictAmman: experience ten years ago ofher taking then seven year old son to the Tutanji for conditions andillnessesunrelated to theirdisability. Abeer explainedher A numberofparents told theTrusttheir children that were refused medical care 4.4.4.4 can provide care to children. indicatethere that are far too fewpsychiatrists inJordan,particularly thosewho cient numbersofadequately trained staff. suffi including disabilities, mental with persons to care health of quality good As noted above inPart 4.1.1, the right to healthrequiresJordan that provide a orphanage which was alsounderstaffed. Marwan’s children, oneof whomdisability, had amental were bothplacedin an statedthey that day hadspentall outside inthegarden sitting doingnothing. she noted there that was noproper supervision or activities for the children. She dan. reported that he was aware of only one specialist paediatric psychiatrist in Jor fourfiveand day,a people five days week.”a because of Syrian refugees - we have eight specialistsandthey cansee between cases is increasinghealth health specialistsandthenumberofmental mental ant”. consult psychiatric no was there and patient, each with week per fiveminutes spent doctors “The wasunderstaffed:posted wasfirst whereshe hospital ment supported by another healthcare practitioner, who commentedthe govern that staff. [Withregards to] globalstandards we don’thave enough staff”. 201 200

Health, 27December2015,Amman,Jordan. Thepsychiatrist asked to remain anonymous. Equal Right Trust interview with Abeer, 10November 2016,Amman, Jordan. See above, note 13,Para 12. Equal Rights Trust interview withMarwan, 16November 2016,Amman,Jordan. Equal Rights Trust interview withDunya, 7November 2016, Amman,Jordan. Equal Rights Trust telephone interview withDr MohannadAl-Azzeh, 21December 2016. EqualRights Trust focus group discussion, The Queen Ranya Centre, 13 December 2015, Jordan.Amman, Equal Rights Trust focus group discussion,9November 2016,Amman,Jordan. EqualRights Trust interviewpsychiatrist with aconsultant workinghealth, Ministryof inthepublic 197 195 Dunya reported that while visiting her sons medical facility,in apublic Another doctor raised the same point, noting that, “we Another doctor don’traised notingthat, the samepoint, have many either Ipayout ofpocket ortheythat won’t help. said they (…) disabilities with individuals for insurance had breathewasrefusedand They blue. turning to help because him he couldn’t he because room emergency the to him took I doing. was he knowwhat didn’t Oncemyaccidentlyhe son fluid, dranklighter scared to speak. too be always they’d children my see to went I When chaotic. was together,grouped always are it boys the but supervisors are There Discriminatory RefusalDiscriminatory to Provide Other Medical Care 199 200 196 The reports provided to theTrust Asnoted inPart 4.2, Dr Al-Azzeh 201 194 This was 198 - - - -

Doctors treated Abeer’s son but only after she agreed to pay and not use her the WallsShouting Through son’s insurance. At the time, she complained about the refusal to accept her son’s insurance directly to the doctors but they did not react to her complaint. She incident, as she had been so focussed on getting her son medical help. Looking explained that she did not think about filing a complaint to anyone else after the- tooback long on theand incident, require too Abeer much said follow that evenup from if it her. did202 cross her mind to file a com plaint, she would not know where to go to file the complaint and it would take Mariam explained to the Trust that she takes her son for regular medical care at

a public hospital. On one occasion in 2016, the doctor that usually provided her treatment of persons with mental disabilites in jordan son with medical care was not available so her son had to see another doctor. When they entered the examination room, the second doctor looked at her son and refused to provide him with medical care. Mariam reports that she was dis- appointed and frustrated because the medical issue her son needed assistance with was not even related to his mental disability.203 Mariam said that when she asked about the previous doctor, she was initially told that doctor did not work at the hospital anymore. Upon further inquiry, she was told by a nurse that the previous doctor was now refusing to treat her son. Eventually a third doctor stepped in, apparently telling Mariam that she did so because “she disapproved of the other doctors’ discriminatory treatment.”204

Similarly, Salma stated that her daughter experienced “discriminatory treatment from a doctor”,205 who refused to provide her with medical care.206 Abeer explained to the Trust that she was told by some doctors that they refuse to treat children with mental disabilities: “Doctors think that if they were to provide our children with medical care, the child could get severely injured or have a break down and hurt the doctor.”207 She noted that there are some doctors who treat children with mental disabilities, but stated that they are not always known unless families share this information with each other. have also been negative. She described how her consultant advised that if she wasLeyla’s a “good 15-year-old mother” daughter she would has take Down her syndrome. daughter toHer a “specialistexperiences hospital with doctors which costs 150 dinars a day”.208 Fatima also told the Trust about her experiences with medical professionals when seeking treatment for her child, who has Down Syn- drome. “There is no support” she explained, “doctors, opticians and dentists can refuse to deal with [children with Down syndrome]”. 209

202 Ibid. 203 Equal Right Trust interview with Mariam, 7 November 2016, Amman, Jordan. 204 Ibid. 205 Equal Right Trust interview with Salma, 7 November 2016, Amman, Jordan. 206 Ibid. 207 Equal Right Trust interview with Abeer, 10 November 2016, Amman, Jordan. 208 Equal Rights Trust interview with Leyla, The Jasmine Centre, 19 February 2016, Amman, Jordan. 73 209 Equal Rights Trust interview with Fatima, The Jasmine Centre, 19 February 2016, Amman, Jordan. 74 EQUAL RIGHTS TRUST 213 212 211 210 the abusewould nothave happened hadthere beenmore surveillance and being sexually assaulted ininstitutions explained thatthey bothbelieved that ers who reported thatthey hadeither seenor heard ofinstanceschildren of ing private healthcare providers. monitoringprovisionthe carehealth public of forand monitoring licens and As noted inPart 4.2,the MinistryofSocialDevelopment isresponsible for 4.4.5 nisms inplace. investigate suchincidentsandensure there are adequate prevention mecha of theprohibition onotherill-treatment.Thestate hasaclearobligation to has allegedly taken placeinapublichospital,thiswould amountto aviolation levelminimum severity of toconsideredbe denialinhuman treatment.Asthe a denialofemergency healthcare insuchcircumstances islikely to reach the to addition In being discriminatory, concern. thephysical andmentalpainsuffering causedby particular of is breathing, difficulty having was and fluid lighter drunk had who son, Abeer’s of case the in healthcare emergency the enjoyment ofthehighest attainablestandard ofhealth. of healthcare servicestotheir rightviolation of in with disabilities, persons to The casesreported to theTrust indicate blatantdiscrimination intheprovision ing hissonto aprivate dentisthimself. outcome. The only solution Ziyad could find was to cover the full expense of tak system, theprocess wouldrequire belong, muchenergy andhaveuncertain an allow himto therefusals complainabout to treat his evenson, but if there was a dental care. He was not aware of any complaint system being in place that would he spokedentists that tocarepublic at centres refused to provide his son with the of all that explained He son. his with situation similar a experienced Ziyad with nosuccess. disabilities. mental werecare denied dental dueto dentist’sfears oftreatingpersons with with Like Fatima,several parents who spokethe Trust with statedtheir children that 214

cain ta mntrn ws o sfiin. w hatcr practition healthcare Two sufficient. not was monitoring that occasions 21 December2016. ber 2016,Amman,Jordan; Equal Rights Trust interview withSafaa, 10 November 2016,Amman,Jordan. view withZiyad, 10 November 2016, Amman, Jordan; EqualRights Trust interview with Duaa,10 Novem See Al-Azzeh above, note 65, p. 199; EqualRights Trust telephone interview with Dr Mohannad Al-Azzeh, CRPD, Article25;ICESCR,12. Equal Rights Trust interview withZiyad, 10November 2016,Amman,Jordan. Equal Right Trust interview withDuaa,10November 2016,Amman,Jordan. EqualRights Trust interview with Abeer, 10 November 2016, Jordan;Amman, EqualRights Trust inter Lack ofOversightMedical Care of I only wish I could pay the expenses of a private care dentist. Because getting worse anditisaffecting her. [are] teeth her teeth, her for resources the have don’t they stating daughter my for care dental provide to willing is visit I dentist no 210 Duaa has tried taking her has tried daughter Duaataking to numerous dentists 214 However, the Trust was told on a number a on However,told wasTrust the 212 211 213 Thedenialof ------monitoring, citing that the installation of video cameras or the threat of global the WallsShouting Through investigations would be a possible deterrent to this behaviour. In the same discussion, another healthcare practitioner told us that there was a need for stricter conditions when giving licenses to private institutions.215

Marwan, whose son was sexually assaulted in an institution, told the Trust that there needed to be more supervision of public institutions, “[t]here should be surprise inspections and interviews with the children, there is no follow up.” 216 Salma, a mother of three girls, two of whom have mental disabilities, spoke to the Trust about care centres: treatment of persons with mental disabilites in jordan There is no accountability and monitoring of these centers. Resources and staff capacity are low so you will see this type of behaviour [physical and sexual abuse]. Their programs are not evaluated so you cannot tell if what they offer helps the children improve [in their development].217

Dr Al-Azzeh noted that although the Ministry of Social Development had increased its efforts to monitor institutions in recent years and new licensing regulations had been put in place in 2014, there was still a need for better monitoring and documentation mechanisms in Jordan.218

As part of its obligations to prevent torture and other ill-treatment, Jordan must:

[E]stablish independent monitoring mechanisms at all places of deprivation of liberty, including places run by private actors, through regular and unannounced visits, and to include civil society organisations in the monitoring of places of deprivation of liberty.219

Where Jordan fails to properly implement systems for monitoring it becomes responsible for the acts of private individuals in private health care centres and institutions, including where such acts otherwise amount to torture or other ill-treatment.

4.5 Conclusions and Recommendations The research carried out by the Trust demonstrated widespread discrimination against persons with mental disabilities in Jordan, including in particular in access to healthcare and education, with societal stigma and a lack of appropriate government action being particularly prevalent. The research indicates that

215 Equal Rights Trust focus group discussion, 9 November 2016, Amman, Jordan. 216 Equal Rights Trust interview with Marwan, 16 November 2016, Amman, Jordan. 217 Equal Right Trust interview with Salma, 7 November 2016, Amman, Jordan. 218 Equal Rights Trust telephone interview with Mohannad Al-Azzeh, 21 December 2016. 75 219 See above, note 57, Para 85(r). See also above, note 8, Para 85(b). 76 EQUAL RIGHTS TRUST with alesser offence if the circumstances conclusively show thattorture cannot work from a presumption thatsuch abuse amounts to torture and only charge or health caretutional settings(whether or public private), prosecutors should sexualareabuse perpetrated againstdisabilities ininsti mental persons with tortureas ing topursuant Penal208 ofthe Article Code. Where physicaland Investigate andprosecute actsof abuse against persons with disabilities,includ basis ofmentalillness. the Public whichHealth Act, provides for involuntary institutionalisation on the be placedinafamily setting.Inthisregard, Jordan mustrepealArticle 14(a) of allow their children to live at home. Where this is not possible, children should drendisabilities shouldbeprovided withmental with thesupport necessary to and insteadabilities provide for community basedliving. The families ofchil Immediately endtheinstitutionalisationof and childrenadults dis withmental In light oftheabove findingsandconclusions,itis recommended thatJordan: 4.5.1 other care centres. medical care through failing to monitorand privatepublic both and institutions and other ill-treatmentdisabilities intheprovisionof persons mental with of pain and suffering.is clear thatJordan It is failing sufficient to safeguard against thetorture cause they where ill-treatment to amount may instances Such care to treat their disability or being denied medical care for other illnesses. number ofpeoplereported a disabilities, with receiving inadequate medical tion they wereIn addition,further taking. violating theright to health of persons reportedple they that wereawarenot oftheirowndiagnosis orwhat medica with medicaltreatment their without fully Anumberof informedpeo consent. or providedin whichtheir consent, without peoplehadbeeninstitutionalised the person to provide The informedresearch consent. revealed several instances or providing themwithasubstitute decision maker does notnegate theneed for this regard,tois important it notedepriving that person oftheir legal a capacity alwaysof disabilitywill bearbitrary andviolate theright to libertyofperson. In and degradinginhuman Involuntary treatment. on thebasis institutionalisation manytoitself amount cases,will aviolationoftherightto freedom from cruel, Further,in of theCRPD and, violation of itself,a is,inand institutionalisation by thestate aswell asseriousfailings initsduediligenceobligations. privateand public in both place This indicates institutions. direct both violations in day andrehabilitationcentres. Suchinstanceshaveto beenalleged betaking in relation to thephysical andsexualabuse of children ininstitutions,andalso egregious instancesofdiscriminatory tortureother ill-treatment and occurring Most notably, theresearch carried out by theTrust pointsto theexistence of segregated schoolingandby failing to provide inclusive education. Jordan is also failingin itsobligations under the CRPD by continuingto provide reflect its abhorrent nature. Jordan should introduce aggravated punishment for this regard,In established. be Jordanshould increase forpenalty the torture to Recommendations to theJordanian Government ------crimes committed with discriminatory motives and ensure that all investiga- the WallsShouting Through tions of crimes seek to unmask such motives.220

Increase efforts to monitor health care and other services to persons with mental disabilities such that a comprehensive system of monitoring which is able to uncover instances of torture and other ill-treatment and other human rights violations, is implemented and enforced. Such a system must be independent

All(including monitoring from visits the Ministrymust be unannounced.of Social Development) The monitoring and sufficiently system should resourced cover

notboth only financially hospitals and and through other healtha sufficient care providersnumber of but appropriately all places where trained persons staff. treatment of persons with mental disabilites in jordan with disabilities are provided with services, such as schools.

Amend legislative provisions which allow for persons with disabilities to be deprived of their legal capacity and which provide for substituted decision-making. Jordan should implement a system of supported decision making for persons with disabilities.

Amend Article 6 of the Constitution in order to explicitly prohibit discrimination on the basis of disability (and other grounds) and introduce comprehensive anti-discrimination law to prohibit discrimination against all minority groups. - nation which encompasses both direct and indirect discrimination, harassment andSuch failure legislation to make should, reasonable amongst accommodation, other things, provide221 prohibit a definition discrimination of discrimi in all areas of life regulated by law, require positive measures to be taken by the state to ensure equality,222 prohibit victimisation of persons alleging discrimination223 and also provide for procedural safeguards, including allowing for a reversal of the burden of proof.224

Ensure that the proposed new Law on the Rights of Persons with Disabilities complies with the provisions of the CRPD and provides persons with disabilities with enforceable rights. End the use of segregated schooling and provide children with disabilities with the support needed to ensure their attendance in mainstream schooling in an inclusive manner. Schools should be provided with provided with training on the rights of children with disabilities. sufficient financial resources to allow for inclusive education and staff should be - sons with mental disabilities receive adequate care and ensure that health- careProvide staff sufficient receive trainingfinancial on resources the rights to healthcareof persons services with disabilities to ensure and that what per

220 Identoba and Others v Georgia MC and AC v Romania Nachova and Oth- ersSee v ECtHR, Bulgaria , Application No. 43577/98 and, Application 43579/98, No. 6 July73235/12, 2005, Para 12 May 160. 2015, Para 67; ECtHR, , Application No. 12060/12, 12 April 2016, Para 113. See also ECtHR, 221 Equal Rights Trust, Declaration of Principles on Equality, London, Principle 5. 222 Ibid., Principle 3. 223 Ibid., Principle 19. 77 224 Ibid., Principle 21. 78 EQUAL RIGHTS TRUST recommendations setout inPart 4.5.1. recommendedis also It civil that society advocate for theachievementof the monitoring, including to internationalrightshuman bodies and theJordanian government. such of findings the widely publicise to and Jordan in disabilities Civilsociety is urged to workto monitor violations oftherights ofpersons with 4.5.3 expertiseseeks asit to amenditsLawon theRights ofPersonsDisabilities. with to visitJordan assoon as possible.This visit would provide Jordanvital with RapporteurThe Special ontherightsdisabilities shouldrequest ofpersons with Penal Codeto increase thepunishmentfor torture. just theCommittee Against Torture, should recommend Jordanthat amendthe through theArticle208 prohibition oftorture inthePenalbodies, Code. not All abilities inJordan andpress for Jordan to prosecute suchinstances,including instances ofdiscriminatory tortureother ill-treatment and dis of persons with CRPD Committee whose review ofJordan isforthcoming, seek information on Treatybodies who are reviewingJordan reviewing Jordan, the in particular relation to Jordan specifically, itisrecommended that: of persons disabilitiesbasedonthestandards with establishedintheCRPD. In rights the protect to standards unified establish to together work procedures in institutions. tradicts theprovisions of theCRPD which do not allow for children to beplaced familyinstitutions for in“suitable the care of children”. For example, theCRC refers tochildren placing who cannotremain withtheir the interpretationof humanrights lawas itrelates to persons disabilities. with As hasbeennoted elsewhere, there are anumberofapparent inconsistencies in 4.5.2 the SpecialRapporteur ontherights ofpersonswithdisabilities. from visit a welcome and rapporteurs special to invitation standing its Honour and psychosocial disabilities. cate people onthedifferent situationsandneeds of individuals withintellectual disabilities, tomental promote therightstodisabilities and ofpersons with edu awarenesspublic Implement to campaigns reduce thestigmaassociated with disabilities inJordan. ber ofhealthcare practitioners inthecare specialising ofpersonswithmental amounts to discrimination.Efforts shouldalsobemadeto increase thenum 226 225

See Rosenthal above, note 9,p.21. CRC, Article20(3). Recommendations to Civil Society Recommendations to International HumanRights Bodies 226 It is Ittherefore recommendedtreaty that bodies and special 225 This apparently con - - - - 5. PROTECTIVE CUSTODY

Violence against women represents one of the most pressing challenges to the equality of women in Jordan. It is reported that over a third of women in Jordan experience physical violence in their lifetime, with 70% of women agreeing that 1 Gender-based violence2 is prevalent. In 2015, the Committee Against Torture noted that it was: a husband was justified to beat his wife in certain circumstances. [S]eriously concerned that gender-based violence, including domestic violence and crimes committed in the name of “honour”, remains widespread in the State party.3

Similarly, in 2012, the Committee on the Elimination of Discrimination against Women (CEDAW Committee) expressed “concern at the high prevalence of violence against women in [Jordan].”4 Of particular concern, 2016 has seen a reported 53% increase in the number of honour killings of women.5 sex before marriage, and talking to unrelated men have been highlighted by the UN Special Rapporteur on Violence against Women as motivations for Infidelity, honour killings.6 Women’s groups have expressed concern that such forms of violence - petrators sentenced to around six months imprisonment “due to mitigating cir- have historically not been treated with a sufficient degree of severity, with per

1 World Bank Blog, 15 May 2015, available at: http://blogs.worldbank.org/voices/how-jordan-expanding-its-assistance-victims-gender-based-violence.Prettitore, P. “How Jordan is expanding The Organisation its assistance for Economic to victims Cooperation of gender-based and Development violence”, (OECD) reported in 2014 that 23% of women would experience intimate partner violence in their lifetime, OECD, Violence Against Women, 2014, available at: https://data.oecd.org/inequality/violence-against-women.htm. 2 - der-based violence as “violence against a woman because she is a woman or which affects a woman dis- The Committee on the Elimination of Discrimination against Women (CEDAW Committee) defines gen acts, coercion and other deprivations of liberty.” See, CEDAW Committee, General Recommendation No. 19: Violenceproportionately”. against women It includes, UN Doc. acts A/47/38,that inflict 1992, physical, Para mental6. This reportor sexual uses harm the termor suffering, gender-based threats violence of such

“any harmful act directed against individuals or groups of individuals on the basis of their gender.” See to refer to violence againstAnalytical women. study However, focusing it should on gender-based be noted that and gender-based sexual violence violence in relation encompasses to transitional justice: Report of the Office of the United Nations High Commissioner for Human Rights, UN Doc. A/ Human Rights Council,

3 HRC/27/21,Committee Against 30 June Torture, 2014, Para Concluding 3. observations on the third periodic report of Jordan, UN Doc. CAT/C/ JOR/CO/3, 29 January 2016, Para 39. 4 CEDAW Committee, Concluding Observations: Jordan, UN Doc. CEDAW/C/JOR/CO/5, 23 March 2012, Para 25. 5 Human Rights Watch, 27 October 2016, available at: https://www.hrw.org/news/2016/10/27/recorded-honor-killings-rise-jordan. Human Rights Watch, “Recorded ‘Honor’ Killings on the Rise in Jordan”, 6 Report of the Special Rapporteur on Violence against Women, its Causes and Con- sequences, Rashida Manjoo: Addendum, Mission to Jordan 79 ParaHuman 24. Rights Council, , UN Doc. A/HRC/20/16/Add.1, 14 May 2012, 80 EQUAL RIGHTS TRUST 15 14 13 12 11 10 9 8 7 custody were identifiedandatleastseven atthebeginningof2015. of women inprotective custody vary. At theendof2011,25women inprotective majority ofwhom are beingheld“for their protection”. unclear. Itisreported that67ofthose140detaineesare Jordanian nationals, the imprisoned. centres are administrative detainees,representing justunderathird ofallwomen 140 women imprisonedinJordan’s Juweidah andUmal-Luluwomen’s detention currently heldinprotective custody. According to thelatest available statistics, detailed inPart 5.3below, there isalackofclarityasto how many woman are papers). identification or residencyhave not do they when detained often of administrative detention prevalent inJordan includemigrant workers who are custody isoneform ofadministrative detention usedinJordan (other examples sibly to protect themfrom thethreat ofactualorperceived violence. act withimpunity. victim’srights arguablyand exacerbates problem,the allowing perpetrators to protectivecustody, violates to whichrecourse have continues However,state the violence more broadly. icised Jordanfor failingto adequately protectwomen who havetosubject been cumstances invoked by thePenalCode.”

tive Custody ofWomen Amountto Torture?” women-detention-testimonials; see above, note 6, Para 27; Glenister, J., “Good Intentions? Canthe Protec Protection from ‘Honour’ Crimes”, 7iber, “Seven Oppressed Women: Witness Accounts onAdministrative Detention underthe Pretextof Ibid. ments/what-we-do/evaw/status%20of%20female%20inmates.pdf?v=1&d=20141201T111223. Jordan See National Centre for Human Rights, Jweidehat the Lulu women’sUm Al and detentioncentres, 254 were administratively detained (49.5%). Rights Human for Centre (NCHR) in March 2014 suggest a greater National number of administrative detainees. Of a total 513 female inmates the by collected Statistics tection-illegal%E2%80%99-activists-say. November 2016,available at:http://jordantimes.com/news/local/administrative-detention-women-pro Al Emam,D., “Administrative Detention ofWomen for Protection is‘Illegal’, Activists Say” 2009, p.2. Human Rights Watch, UN Doc.CCPR/C/JOR/CO/4, 18November 2010,Para 8(inrelation to crisiscentres). See, for example, above, note 4, Paras 26–27; Human Rights Committee, Documents/JOR/INT_CEDAW_NGO_JOR_51_9260_E.pdf. against Women on Jordan Arab Women Organization and Others, See above, note 4,Para 27. See Part 1.3ofthisreport. See Part 5.3below. AlEmam,D. Thisisdiscussed furtherinsectionPart 5.3ofthisreport. tion assistance and services the State party provides to girls and and girls to provides party State the services and assistance tion reintegra and rehabilitation counselling, protection, limited [T]he of so-called family honour. sexualof tims forand abuse women facing death threats grounds on vic for shelters of lack the and violence, domestic of victims for ters shel of number violence,insufficient includingtheof victims women , 2014, p. 40, available at: http://www2.unwomen.org/~/media/field%20office%20jordan/attachavailableat: 40, p. 2014, , 13 Thenumberofwomen who are beingheldinprotective custody is 10 Guests of the Governor: Administrative Detention Undermines the Rule of Law in Jordan Protective custody refers to thedetention ofwomen osten , 2012,p.25,available at:http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20 8 TheCEDAW Committee hascriticised, 7iber The Status of Female Inmates at Reform and Rehabilitation Centres in , 25January2015, availablehttp://www.7iber.com/2015/01/at: 9 Submission to the Committee on the Elimination of Discrimination Discrimination of Elimination the on Committee the to Submission Equal Rights Review 7 SeveralUN treaty bodies have alsocrit ,

Vol. 16,March 2016,pp.14–16. 14 Reports onthenumber Concluding Jordan Observations: 15 The Jordan Times

11 Protective - - - 12 As is Asis , 1 , 1 - - - - - , , The protective detention of individuals adjudged to face a risk of violence has the WallsShouting Through been routinely criticised by UN treaty mechanisms16 and independent NGOs, who have called on the government to abolish the practice and have submitted proposals for change.17 At the time of writing this report, two government-run domestic violence shelters had been established and were operating within since March 2015.18 Jordan: branches of the Dar Al Wafiq Shelter in Amman, since 2007, and, Irbid recently assured stakeholders This is an ofencouraging plans to open first a step “special toward shelter the eliminationfor women whoof discrimination are placed in againstprotective women. custody” In addition,(subject to a MinistryCabinet approval). of Justice 19 official-

ever, at present measures do not go far enough to ensure the adequate protec- protective custody tion of women who have been, or may be, subject to violence and Jordan isHow failing to meet its obligations under international human rights law to eliminate gender-based violence.20

In light of these failings and particularly the ongoing use of protective custody, this report again shines a light on the suffering caused by protective custody. The first section of this part sets out the obligations of Jordan to combat violence against women, providing a framework to consider how the use of protective custody is contrary to these obligations. Part 5.2 then provides a brief overview of the law relating to violence against women in Jordan, highlighting the illegal use of the Crime Prevention Law to justify detaining women in protective custody. Part 5.3 details women’s experiences of protective custody and is based on the findings of the Trust’s research and other pre-existing research. A total of 21 women who were, or who had been, in protective custody at Juweida Women’s Correctional Facility (Juweida) were interviewed. In addition, 23 persons who worked with women detained in protective custody, including two previous directors of Juweida and a number of lawyers were interviewed or took part in focus group discussions. The final section of this Part then sets out conclusions and recommendations

16 CEDAW Committee, Concluding Observations: Jordan, UN Doc. CEDAW/C/JOR/CO/4, 10 August 2007,

Report of the Special Rapporteur on Torture and other Cruel,Para 25; Inhuman see above, or Degrading note 6, Para Treatment 88(k); see or Punishment,Human Rights Manfred Committee Nowak: above, Addendum, note 8, ParasMission 8–9; to Jordansee above,, UN note 3, Paras 21–22; and Human Rights Council,

17 Doc. A/HRC/4/33/Add.3, 5 January 2007,Submission Appendix, to the Para Committee 39. against Torture on Jordan, 2010, Para 7.7, available at: http://tbinternet.ohchr.org/Treaties/CAT/Shared%20Documents/JOR/INT_CAT_NGO_ JOR_44_9257_E.pdf.Mizan Law Group for Human Rights, 18 Jordan Times, 4 November 2015, available at: http://www.jordantimes.com/news/local/ministry-extends-social-protection-women-all-nationalities-%E2%80%94-abu-hassan.Jordan Times, “Ministry Extends Social Protection to Women of all Nationalities – Abu Hassan”, 19 Jordan Times, 25 October 2016, available at: http://www.jordantimes.com/news/local/activists-urge-justice-torture-victims. Husseini, R., “Activists Urge Justice for Torture Victims”, 20 For example, see CEDAW Committee above, note 2, Paras 6 and 9, where the CEDAW Committee emphasised that gender-based violence is a form of discrimination as recognised under Article 1 of the Conven- tion. States may be held responsible for the acts of private individuals where they “fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence.” Additionally, the -

GeneralHuman CommentRights Committee No. 28: Equality has stressed of Rights that between honour-based Men and crimes, Women, where UN Doc. unpunished, CCPR/C/21/Rev.1/Add.10, violate the Cov 81 2000,enant, Para including 31. in relation to Article 26 (prohibition of discrimination). See Human Rights Committee, 82 EQUAL RIGHTS TRUST 22 21 followingthe request oftheindividualneed ofprotection.in commentary a In oversight,cial onlymust measurea be resort oflast may and only take place judi and guarantees legal to subject be must detention Any defined. narrowly encapsulated in theBangkok Rules onthetreatment of women prisoners are The circumstances described by theWorking Group onArbitrary Detention and Rule 59provides: the circumstances inwhich protective custody may beconsidered bystate. a Non-custodial Measures for Women Offenders (Bangkok Rules) The 2011 United NationsRulesfor theTreatmentof Women Prisoners and as ameasure of“lastresort”; and(iii)requested by avictim. maytion only permittedbe whereto (i)subject supervision; judicial (ii) utilised recourse to deprivationin orderof liberty to protectvictims”, detenthat noting In 2001, the WorkingGroup onArbitrary Detention urged states to “reconsider forms of gender-based violence hasgained increasing internationalattention. The practice of detaining women to protect themfrom honour crimes or other 5.1 ending thispractice. focus onprotective custody willfinally result intheJordanian government number ofJordan’s humanrights obligations. Itishopedthatthiscontinued based onthisframework, notingthattheuseofprotective custody violates a 23

Ibid 27 September 2011,Paras 7.5and 7.9(2)(e). DAWCommittee, provide detention facilities that “address the specific needs of women constitutes discrimination”. See CE form of softlaw theRules have beencited by theCEDAWCommittee, who have recognised a failurethat to ment of women prisoners in linewithinternationallaw andbestpractice. Although properly considered a were adopted by theUNGeneralAssembly number ofbasicprinciplesfor in2010,a and setout thetreat Rules) Bangkok (the Offenders Women for Measures todial United Nations GeneralAssembly, Consequences, Ms.Radhika Coomaraswamy Rights, Human on Commission See trafficking. of victims of custodyprotective the to regards in Women against Violence on Rapporteur 19 December 2001,Para 47.Therecommendation followed similarobservations madeby theUN Special Commission on Human Rights, Protective Custody inInternational Law . theBangkok Rules, Rule 59. woman concerned. the of will the against continued be not shall measures protective cases be supervised by judicial or other competent authorities. Suchall in shall and concerned woman the by requested expressly and necessary when applied be only shall woman a protect protect to custody to used be involving measures Temporary protection. such shall need who women services, community other organ or nongovernmental isations bodies, independent by managed ters shel in example for protection, of means non-custodial Generally, Abramova v Belarus Report of the Working Group on Arbitrary Detention 23 Report of the Special Rapporteur on Violence against Women, its Causes and and Causes Women,its against Violence on Rapporteur Special the of Report United Nations Rules for the Treatment of Women Prisoners and Non-cus , CommunicationNo.23/2009, UN Doc.CEDAW/C/49/D/23/2009, , UNDoc.E/CN.4/2001/73/Add.2, 6February 2001. , G.A.Res. 2010/16, 2010. The Bangkokrules 21 , UNDocE/CN.4/2002/77,

22 expandupon ------Shouting Through the WallsShouting Through (UNODC) it is emphasised that: to the Bangkok Rules prepared by the United Nations Office on Drugs and Crime [E]very effort needs to be made for the development of protection means which do not involve imprisonment, to enable authorities not to have to resort to this unacceptable and discriminatory practice.24

- able response to threats of gender-based violence. Where protective custody is

used,It is clear states that are protective likely to custodyviolate theircannot obligations be considered regarding a first-choice freedom or of reason move- protective custody ment, liberty of the person, the prohibition of discrimination, and the prohibition of torture and other ill-treatment.

5.1.1 Freedom of Movement and Arbitrary Detention

The right to freedom of movement is guaranteed in several international treaties,25 including Article 12(1) of the International Covenant on Civil and Political Rights (ICCPR), which provides that “everyone lawfully within the territory of a State shall, within that territory have the right to liberty of movement and freedom to choose his residence.”26 provides that where necessary for, inter alia, the protection of “public health or morals or the rights and freedoms This rightof others”, is qualified freedom by ofArticle movement 12(3), may which be lawfully restricted by a state.27 the circumstances in which a restriction on the right to freedom of movement mayIn its be General permissible. Comment The No.Committee 27, the Humannoted that Rights any restrictionCommittee must expanded be consist upon- ent with the other rights which are guaranteed in the ICCPR and also with the “fundamental principles of equality and non-discrimination”.28 As discussed below in Part 5.1.2, for this reason alone it is unlikely that protective custody would satisfy the requirements of Article 12(3). In addition, any restriction on the right to freedom of movement must be appropriate, represent the least intrusive means of achieving the desired aim, and be proportionate to the aim

24 Commentary to the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), 2011, p. 44, avail- ableUnited at: Nations https://www.unodc.org/documents/justice-and-prison-reform/Bangkok_Rules_ENG_22032015. Office on Drugs and Crime, pdf. 25 International Covenant on Civil and Political Rights (ICCPR), 999 U.N.T.S. 171, 1966, Article 12(1); Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1249 U.N.T.S. 13, 1979, Article 15(4) (equality between men and women in respect of freedom of movement); and Convention on the Rights of Persons with Disabilities (CRPD), 2515 U.N.T.S 3, 2006, Article 18 (liberty of movement for persons with disabilities). 26 ICCPR, Article 12(1). 27 Ibid., Article 12(3). 28 General Comment No. 27: Article 12 (Freedom of Movement), UN Doc. CCPR/C/21/ 83 Rev.1/Add.9, 1999, Para 18. Human Rights Committee, 84 EQUAL RIGHTS TRUST 33 32 31 30 29 therecognition,or nullifying enjoyment orexercise by women (…)onabasis made onthebasisofsextinction which the effect “has orpurposeofimpairing Formsof All Elimination of Discrimination againstWomen (CEDAW)as any dis Gender-based discrimination is defined under Article 1 of the Convention on the 5.1.2 and assuch,shouldalsobeconsidered anarbitrary form ofdetention. theuseofprotectivediscussed in thenextpart, custody ishighly discriminatory, the groundthe detention that isfor theperson’son ownprotection. justified be cannot detention arbitrary that found has Detention Arbitrary is arbitrary for thepurposes of Article9theICCPR. TheWorkingGroup on toand theability provide alternative measuresprotectiveis clearthat it custody ceduralguarantees, information regarding the prospective length of detention, sity andproportionality.” and dueprocessdictability of law, aswellas elementsofreasonableness, neces analysisinclude an will of inappropriateness, of “elements of pre injustice,lack tion isinaccordancelaw,national with may it arbitrary.be still detenclear,whereeven made has Committee Rights Human the As detention. was implemented in linewithJordanian law, itwouldtoamount still arbitrary suant to a procedure established by law. Inaddition, even if protective custody allows for protective custody and,assuch,protective custody does not occurpur bediscussed As will below inPart 5.2 and 5.3, there is nolaw inJordan which Article 9(1)provides: toamounts arbitrary andunlawfuldetention, contrary to Article9oftheICCPR. In additiontothe right violating to free movement, protective custody also of protecting women. means thatprotective custody cannotbeconsidered theleastintrusive means monitoringalternativessuitable that bodies to protective custody which exist, pursued. 34

ber 2004,pp.47–48, Para 15. Ibid CCPR/C/GC/35, 2014,Para 12. Human Rights Committee, Jordan hasbegunto establish independentshelters. SeeHumanRights Committee above, note 8, Para 8. protection andsupportinawaydoes that not violate their rights.” Asdiscussed in Part 5.3of this report, its terminate practicewomenof placing in“protective”“immediately custody instead and provideJordan women risk ofviolencewith at that recommended has Committee Rights Human the instance, For Ibid See above, note 32,Para 17. WorkingGroup onArbitrary Detention, OpinionNo.9/2004, UN Doc.E/CN.4/2005/6/Add.1, 19 Novem Non-Discrimination ., Para 12. ., Para 14. with such procedure asare established by law. accordance in and grounds such on except liberty his of deprived one be shall one No No detention. or arrest arbitrary person. to subjected be shall of security and liberty to right the has Everyone 29 Itisclearbothinpractice andfrom thecommentsofUNtreaty 30 General Comment ofPerson) No.35:Article andSecurity 9(Liberty

32 As discussed below inPart 5.3,givenof pro thelack 33 31 In addition, as In Arbitrariness 34 , UNDoc. ------of equality of men and women, of human rights and fundamental freedoms.”35 the WallsShouting Through Protective custody, which largely impacts on women considered to be at a risk of only are women’s rights to free movement and liberty adversely affected, but the decisionviolence onto releaseaccount such of their women gender, is often clearly dependent falls within on thereceiving above definition.a guarantee Not of safety from a male relative or husband.36

The discriminatory impact of protective custody has been recognised by UN Spe- cial Procedures.37 According to the Working Group on Arbitrary Detention:

In some countries, women and girls are placed in custody due to protective custody the risk of gender-based violence, such as honour crimes, and their release may be conditional upon the consent of a male relative and/or a guarantor (...) There will typically be no legal basis for the detention, procedural guarantees will not be observed, and the detention will constitute discrimination.38

In accordance with state obligations to eliminate practices that discriminate against women,39 the detention of those at a risk of violence must be prohibited and replaced with more appropriate protective measures.40 As part of the duty to eliminate discriminatory practices, states have an obligation to prohibit violence against women.41 The next part discusses in further detail what this requires.

5.1.3 State Obligations to Prohibit Gender-Based Violence

States are bound under international law to pursue all appropriate means of eliminating discrimination against women.42 This includes gender-based vio-

35 CEDAW, Article 1. 36 See Part 5.3 below. 37 See for instance, the Special Rapporteur on Torture: “the Special Rapporteur, after talking to women concerned, is highly critical of the current policy of taking females under the provisions of the Crime Pre- vention Law into ‘protective’ detention because they are at risk of becoming victims of an honour crime. According to the Special Rapporteur, depriving innocent women and girls of their liberty for as long as

Council above, note 17, Para 39. 14 years can only be qualified as inhuman treatment, and is highly discriminatory.” See Human Rights 38 Report of the Working Group on Arbitrary Detention 2014, Paras 78–79. Human Rights Council, , UN Doc. A/HRC/27/48, 30 June 39 See for instance CEDAW, Article 2. 40 Report of the Special Rapporteur on Vio- lence against Women, its Causes and Consequences, Ms. Radhika Coomaraswamy, UN Doc. E/CN.4/2003/75, 6See January above, 2003, note 39,Para Paras 91. 78–79; Commission on Human Rights, 41 See CEDAW Committee above, note 2, Para 6. 42 See CEDAW, Article 2; ICCPR, Articles 3 and 26; League of Arab States, Arab Charter on Human Rights, Report of the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 15Paras September 9 and 10; 1994, CEDAW Articles Committee 3 and 11; and Human Committee Rights on Council, the Rights of the Child, Joint General Recommenda- tion No. 31 of the Committee on the Elimination of Discrimination ,against UN Doc. Women/General A/HRC/31/57, Comment5 January No. 2016, 18 of the Committee on the Rights of the Child on Harmful Practices, UN Doc. CEDAW/C/GC/31-CRC/C/GC/18, 85 2014, Paras 1, 10–11. 86 EQUAL RIGHTS TRUST 48 47 46 45 44 43 judiciary have appropriate gender-sensitive trainingpromptlyand act to inves gender-based violence. ensure theeffectiveand enforcement implementation oflawscriminalise that In additionto appropriatein place putting legislative frameworks, states must statesill-treatment, are required to repeal: treatmenthas notedor punishment inrelationto torture combating other and RapporteurAs theSpecial ontortureor degrading andother cruel, inhuman that allow for lesser punishments for crimes against women, mustberepealed. other gender-based violence. prohibitpunish rape, and sexual domestic violenceand honour killings, assault, States must ensure thatthey have legal frameworks in placethatadequately 5.1.3.1 or degrading treatment. responsible for the actionsof private actors, including for torture andinhuman prosecute,protect and women fromof gender-based violence may acts held be tive mechanisms. States which failto adequately perform their duty to prevent, tory laws, andthrough theadoptionofappropriate preventative andprotec tect women from acts of violence, including through the repeal of discrimina legislation andother implement such measuresprohibit, preventthat andpro crimination againstwomen, states havepositive a obligationto and establish consequence As a of therecognition ofgender-based formviolence asa ofdis result intheviolationofanumberotherhumanrights. lence, tion No.6/2005,UN Doc.CEDAW/C/39/D/6/2005, 2007,Para 12.1.2. UN Doc. CEDAW/C/52/D/32/2011, 2012, Para 8.8; CEDAW Committee, Ibid Para 21. Women’son 33 RecommendationAccessGeneralNo. Justice to See Human Rights Council above, note 43 Ibid Para 7. note 2 against individuals or groups of individuals on the basis of their gender.” See Human Rights Council above, directedact However,women. “any harmful encompasses violence gender-based that noted be should it mittee above, note 2, harm or suffering,ual threats of such acts, coercion andother deprivations of liberty.” SeeCEDAW Com a is she woman or which affects a woman disproportionately”.because woman It includes acts that inflict physical, mental or sexa against “violence as violence gender-based defines Committee CEDAW The See HumanRights Councilabove, note 43, Para 69. Such astheprohibition ontorture andother forms SeeCEDAWtreatment. of ill 43 . Human Rights Council, Para 69; CEDAW Committee, . , Para 24. and lawsthat criminalize adultery. victims their marry who rapists to pardon grant or rape of crime the from rape marital exclude that laws alia inter women, of sion opprespatriarchal and discriminatory the support that laws [A]ll which recognised hasbeen form a as which ofdiscriminationand may Obligation to Ensure anAdequate Legal Framework , Para 3. Para 6.This report usestheterm gender-based violence to refer to violenceagainst 48 This includes ensuring that police, prosecutors This includesensuringthat the and 45 In addition, discriminatory In laws,those including , Para69; ibid 47 . CEDAWCommittee, Para24; CEDAW Committee, Jallow v Bulgaria , UN Doc.CEDAW/C/GC/33,, 3August2015, Yildirim v Austria v Yildirim 44 , Communication No. 32/2011, Committee above, note 2, , Communica - 46 ------tigate, prosecute and punish violence against women.49 States must also ensure the WallsShouting Through women’s access to justice by providing legal aid that is “accessible, sustainable 50 guarantee “that such services are provided in a timely, continuous and effective manner at alland stages responsive of judicial to the or needsquasi-judicial of women” proceedings, and, in “all including fields of alternative law”, dispute resolution mechanisms and restorative justice processes.”51

5.1.3.2 Obligation to Adopt Protective Measures

In addition to implementing and enforcing appropriate legislation relating to

violence against women, states must also take a range of additional measures protective custody to protect women from gender-based violence. These measures include counselling centres, legal assistance, shelters, health care, telephone hotlines, and 52 53 which do not restrict the liberty of women.54 States must “guarantee long-term rehabilitationfinancial aid. andStates housing must providesolutions a “sufficientfor women number victims ofof accessible violence who shelters” do not have the support of their families, and/or who are under threat.”55

States are also required to implement public awareness and education campaigns in order to combat discrimination against women.56 In this regard, the CEDAW Committee has noted that:

States parties must take all appropriate measures to modify social and cultural patterns of conduct, with a view to eliminating preju- dices and customary and all other practices that are based on the idea of the inferiority or the superiority of either sex.57

5.1.3.3 Obligation to Exercise Due Diligence

As noted in Part 2.2.4, where a state fails to exercise due diligence by preventing, investigating, prosecuting and punishing acts, including violence against

49 Ibid ibid. CEDAW Committee, Jallow v Bulgaria, Para 8.8; ibid. CEDAW Committee, Yildirim v Austria, Para 12.3. In Vertido v Philippines, the CEDAW Committee recognised the importance. Human of Rights ensuring Council, that Paragender 69; bias and stereotypes play no part in trials for violence committed against women, noting that “[S]tereotyping affects women’s right to a fair and just trial and that the judi-

should have done.” See CEDAW Committee, Vertido v Philippines, Communication No. 18/2008, UN Doc. CEDAW/C/46/D/18/2008,ciary must take caution not 22to createSeptember inflexible 2010, standards Para 8.9(b). of what women or girls should be or what they 50 See CEDAW Committee above, note 47, Para 36. 51 Ibid., Para 37(a). 52 Report of the Special Rapporteur on violence against women, its causes and consequences, Rashida Manjoo, noteHuman 2, Para Rights 24. Council, UN Doc A/HRC/23/49, 14 May 2013, Para 70; see CEDAW Committee above, 53 See CEDAW Committee above, note 17, Para 26. 54 Ibid., Para 26. 55 See above, note 6, Para 88(k). 56 87 57 See HumanCEDAW RightsCommittee Council above, above, note note 47, 43, Para Para 31. 69. 88 EQUAL RIGHTS TRUST 59 58 lence. Ashasbeenrecognised by theUNSpecialRapporteur onTorture: createattitudes anenvironment inwhich women may besubject to further vio discriminatoryand allows attitudes, perpetrators towith impunity. act These them inthesameconditionsascriminalsfostersplacing and encourages and of gender-basedacts violence.Detainingindividualsrisk ofhonourcrimes at violence, protective custody undermines efforts to protect individuals from Far fromthe statesmeeting duediligencerequirementsto gender-based combat in theprivate sphere, they are to beheldresponsible: state fails to act withdue diligence to prohibit andprevent such acts of violence mayder-based violence that to amount torture orother ill-treatment. domestichonour-based violencehaveBoth and beenrecognised as forms of gen 5.1.4 in order for actsto beconsidered torture. satisfy therequirementacts ofgender-based violence will for state involvement thefailureAs discussed in thenextpart, to exercise due diligenceinrelationto to bedetained: womana of outweighviolence of risk at potentialthe of those perpetrator not end, theCEDAW Committee incertaincircumstances, hasnoted that, therights women, thatstate isresponsible for theactsofprivate individuals. 61 60

Ibid., Committee above, note 2, See HumanRights Councilabove, note 43,Paras 55and58. See CEDAW Committee, See above, Protective Custody andDiscriminatory Torture Para 55. The Committee considers the failure to have detained Irfan Yildirim marital rape, actsthat could constitute torture. allowing husbands to “chastise” their wives or failing to criminalize violenceby,domesticlegitimizethey when violenceor instance,for – tojudicial passivity exercise due diligence to protect against such or prosecutorial or inaction indifference, by – fail they when ture in the private sphere. States are internationally responsible for tor tims and prohibited acts, of which they knew or should have known, protectvic Statesto failingprohibited byacquiesce conductthe in whenever torture or ill-treatment to amounts violence Domestic physical andmental integrity. to and life to rights human women’s supersede cannot rights tor’s perpetra the that violence domestic on communication another on views its in expressed as view, the of is Committee the invasive, disproportionately seemed warrant arrest an – time that at that, tion to protect Fatma Yildirim. Although, the State maintainsparty obliga diligence due party’s State the of breach in been having as Part 2.2.4 . SeeCEDAW Committee, Yildirim vAustria Para 9. , above, note 49,Para 12.1.5. 59 Yildirim v Austria, v Yildirim above, note 49, Para 12.1.1; see 61 60 58

Where a - - - - To this CEDAW - - Societal indifference to or even support for the subordinate status the WallsShouting Through of women, together with the existence of discriminatory laws and patterns of State failure to punish perpetrators and protect victims, create conditions under which women may be subjected to systematic physical and mental suffering, despite their apparent freedom to resist.62

In addition to a state failure to exercise due diligence to protect and prohibit acts of gender based violence, protective custody in and of itself may amount to torture or other ill-treatment.63 In 2007, the Special Rapporteur on Torture, found

that lengthy detention in protective custody could be recognised as a form of tor- protective custody ture or ill-treatment.64 More recently, the current Special Rapporteur has recognised that protective custody may “amount to torture or ill-treatment per se.”65 Given that it is intentional and discriminatory, provided that it reaches the minimum threshold of severity of pain and suffering, protective custody will amount to inhuman treatment and, where the pain and suffering caused is severe, it will amount to torture. In addition, conditions in detention and the treatment of - ing, may amount to torture or inhuman and degrading treatment. These issues willwomen be exploreddetained furtherwhile in in prison, Part 5.3 where below, fulfilling which the sets element out the of Trust’s pain and research suffer into protective custody in Jordan. In order to provide the context for Part 5.3, the next part provides an overview of Jordan’s national legal framework relating to protective custody and gender-based violence.

5.2 National Legal Framework Relating to Protective Custody and Gender-Based Violence Article 3 of the Crime Prevention Law of 1954 is often cited as the legal basis for detaining women in protective custody.66 Article 3 provides that:

1. Any person who is found in a public or private place in circumstances that convince the District Governor that he is about to commit, or help in committing crime. 2. Any person who is used to banditry, theft or the possession of stolen money, is used to protect or harbor thieves, or helps hid- ing or disposing of stolen money. 3. Any person whose release without a bail might be dangerous to people.

62 Ibid., Para 56. 63 See Part 5.3 of this report. 64

65 IbidSee .,Human Para 24. Rights See also Council Glenister above, above, note 17,note Para 16. 39. 66 7iber, 11 February 2015, available at: http://www.7iber.com/2015/02/administrative-detention-governer/ (in Arabic); Warwick,7iber, “The C., Honour Law in Decision-Maker: the Service of Legitimacy: Interview withGender Regional and Politics Governor in Jordan, Hijzai Assaf”,Ashgate, 2009, p. 92; see 89 above, note 6, Para 27. 90 EQUAL RIGHTS TRUST 72 71 70 69 68 67 per a when sentence lenient more a forprovides 99 Article and rage of fit a in addition, Article98allowsIn for moresentences lenient for crimes committed “illegitimate bed”, andwhoor injureskills her or the men she is caught with. forwhoman a catches hiswife orfemalerelatives adultery committing orinan crimes committed in thenameof honour,provides itstill a mitigation excuse Code was amended such thatitnolongerallows perpetrators tofor escape guilt including incasesofhonour applied, crimes. Although Article340 of thePenal are theprovisions in thePenalCode allowthat for more lenientsentences to be More concerning thanthegaps intheProtection Against Family Violence Act, ures to beputinplace. the vicinityofashelter, theAct doesrequire shelters orotherprotective meas husband. re-victimisation ofwomen andplacethemunderpressure to remain withtheir erence to reconciliation over theuseofprotective orders, which may leadto to personsliving inthesamehousehold. does not contain a definition of domestic violence and its application is limited petrator. issue protection orders andto enforce thesethrough thedetention oftheper 2008, provides someavenues for protecting women, by allowing courtsto The Protection Against Family which Violence Act, was enacted inJanuary violence against women. 3 to allow for protective custody runs contrary to Jordan’s obligations to prevent discriminatoryis both it arbitrary. and As explained Partin use ofArticle 5.4, the law,of national of internationalviolation a is also and rightshuman law,in that 3 toof Article cation detainwomen inprotective custody istherefore inviolation protection. not provide any legalbasis underwhich women may bedetainedfor theirown pected of committing or intending to commitacrime. Article 3therefore does It is clearfrom the wording of the law thatitappliesonly to those who are sus members. Seeabove, note 6,Para 25. excuse to a woman inrelation to her husband or his lover,not inrelation but to awoman’s other family permanent disfiguration, he/she shall benefit from a mitigation excuse.” Article 340(2) provides the same of themorassaultedor both resultedthe assault of themand herorboth death orinjuryharm in ancestors or sisters in theactof adultery or in illegitimate bed andmurders her immediately or her lover nually; seeabove, note 6,Para 28. http://ncfa.org.jo:85/NCFA/en/content/4-thousand-violence-cases-against-women-and-children-an against women andchildren annually”, domestic violence,DarAl-WifaqAl-Osary. Council forNational Family Affairs,violence cases thousand “4 See above, note13A(2). 69,ArticleThegovernmentshelter hasopenedone for women experiencing is taken into consideration.” Seeabove, note 4,Para 25;seeabove, note 6,Para 74. anytaking oftheprotective measure stipulated in thislaw, providingthe bestinterests that of the family The textfull of Article 340(1) provides that: “Whoever surprises his wife or one of his female decedents or Article 7states“Preference that be given shall to referrals to Family Reconciliation Committees prior to See above, note 4,Para 25;seeabove, note 6,Para 74. Protection Against Family Act ViolenceAct, No.6of2008,Articles14–16. See above, note 6,Para 27. 68 70 However, itthat including limitations, of number a Actcontains the Whileitallows for acourtto prevent theperpetrator from beingin 67 There is no other lawallows that for protective custody. The appli 71 National Council for FamilyCouncilforAffairs National 69 More problematically, itgives pref , 29October 2015, availableat: 72 ------petrator of a crime is excused by the victim’s family.73 While all three provisions the WallsShouting Through apply to both men and women who commit crimes, it is evident that they are often applied in cases involving the murder of women.74 These provisions are discriminatory75 crimes. Such sanctioning means that Jordan may be considered to have violated its due diligence obligationsand provide to official protect sanctioning women from in violencethe commission in individual of honour cases and also systematically, such that it is responsible under international human rights law for failing to prevent all honour crimes.76

In addition to these provisions, Article 308(1) of the Penal Code provides that

if the perpetrator of a sexual assault marries his victim, prosecution of the case protective custody against him, or the execution of any penalty already issued, must be stopped. Article 308(2) provides that the right to prosecute the case or institute the judgment will be reinstated if he divorces the woman without legitimate cause after - ony). Although an amendment to the law was approved by Cabinet in 2016, the lawthree still years applies (in the to consensualcase of a misdemeanour) sex with a girl or aged five between years (in 15 the and case 18, of which a fel would otherwise be considered as statutory rape under the Penal Code.77 Article 308, even as amended, is discriminatory and also violates the right of a woman to enter into marriage with free and full consent.78 As noted above, such provisions sanction violence against women and violate Jordan’s obligations to prevent such violence. In addition, advocates working for women in Jordan have stated that prosecutions are not re-opened when the woman divorces the man who assaulted her. Mizan for Law, who have been working to assist women in protective custody since 1999, has been told by some women that they have the impression that their husbands have further abused them in an attempt to seek to have their wife divorce them.79

5.3 Protective Custody in Jordan This part of the report is intended to provide an up to date picture of the experience of women in protective custody in Jordan. It outlines the findings of the

73 See above, note 6, Para 25. Article 98 does not apply to honour crimes committed against a child under the age of 15, CEDAW Committee, Consideration of reports submitted by States parties under article 18 of the Convention – Sixth periodic report of States parties due in 2016: Jordan, UN Doc. CEDAW/C/JOR/6, 25 June 2015, Para 8. 74 In her 2012 report on Jordan, the Special Rapporteur on violence against women, its causes and consequences noted that “of 50 cases of murder of women committed between 2000 and 2010, in 78 per cent

See above, note 6, Para 25. of the cases perpetrators benefited from reduced sentences due to families waiving their personal rights”. 75 See above, note 4, Para 27. 76 See above, Part 2.1.4. 77 Jordan Times, 3 April 2016, available at: http://www.jordantimes.com/news/local/panel-restricts-pardon-rape-cases-activists-not-satis- Husseini, R., “Panel restricts pardonAnnual in Report: rape cases Jordan but 2015/2016 activists not, 23 satisfied”, February 2016. 78 CEDAW, Article 16(b); ICCPR, Article 23(3). fied; Amnesty International, 91 79 Equal Rights Trust interview with Fatima Alhalabiya, Mizan for Law, 4 October 2016. 92 EQUAL RIGHTS TRUST 84 83 82 81 80 lence. Juweida,at 25 of whom had beendetained due to arisk of honour based vio porteur on Violence against Women reported that 120 women were beingheld in protective custody have varied. Following avisit in 2011, the UN Special Rap Of those figures which are further broken down, reports of the number of women administrative detention throughout theyear. cial government statisticsfor the sameyear, 1,596 women hadbeenplacedin were foreigncompared nationals, to 75 Jordanian women. women) were administratively detained.Themajority ofthesewomen (121) 451 women were thetimeofPRI’svisit, at that, beingheld,ofwhom 43% (196 surveya was conducted by PenalReform InternationalJuweida(PRI) at found wereUm Al-Lulu ees at heldinadministrative detention. Juweidabeing heldat were administrative detainees and 21 of the 37 detain inmates 476 the of (233) half under just that reported (NCHR) Rights Human shelter.suitable in theabsenceofa it isreportednationals, the majorityare that detainedfor their ownprotection whom are notJordanianand 67whonationals are. Ofthosewho are Jordanian 140 women are currently detained in administrative detention inJordan, 73 of Correctional and Rehabilitation Centres Administration, speakinginlate 2016, development and training institute at thePublicSecurityDepartment’s(PSD) custody orfor otherreasons. detentionare but notbroken down into the numbersof women held inprotective custody. Figures are often reported for the numberofwomen inadministrative It is difficult to ascertain the exact number of women currently held in protective group discussions. organisationsas lawyers, (NGOs)and were interviewed ortookin focus part women detainedinprotective custody,through including non-governmental protective custody were interviewed. Inaddition,23 persons who worked with tions. with researchcable, which has been previously undertaken by other organisa field research carried out by the Trust and Mizan for Law together, where appli 86 85

Committee Against Torture, above, note 16,p.15. at: http://www.7iber.com/2015/01/womenadministrative-detention/ (inArabic); see also Glenister Crimes”,‘Honour’ From Them Protecting of Pretext the WomenUnder tistics onthenumberofwomen detainedinprotective custody, 7iber, “ImprisoningtheVictim: Detaining is reportedIt of CorrectionDepartment the that Rehabilitation and Centres keep doesnot separate sta org/wp-content/uploads/2014/09/Final-PRI_Research_report_JordanTunisia%C2%ADENG-WEB.pdf. Tunisia and Jordan from results Survey prisoners? women International, Reform Penal and 41–42; pp. 14, note above, NCHR see 13; note above, see pdf; Practices In particular, see Dignity, See above, note 6,Para 27. See Penal Reform International above, note 81,p.9. See NCHRabove, note 14,p.40. See AlEmam,D. above, note 14. 80 86 As noted above, a total of 21 women who were, or who had been, in In2010, itwas estimatedanyat that onetimethere were around 25 , 2015, , availablehttps://dignityinstitute.org/media/2066001/pubseriesno9_wid_jordan.at: Conditions for Women in Detention in Jordan: Needs, Vulnerabilities and Good and Vulnerabilities Needs, Jordan: in Detention in Women for Conditions Third Periodic Report: Jordan 81 According to Col.AhedShraideh, who headsthe 82 In September In Centre 2014, the National for , UNDoc.CAT/C/JOR/3, 20August 2014,p.28. , 2014, available, https://www.penalreform.at: 85

7iber 83 , 21 January 2015, available InDecember 2013, 84 According to offi to According Who are Who ------women in protective custody.87 Government statistics from 2005 noted that the WallsShouting Through between 50 and 70 women were kept in protective custody at any one time and that 524 women in total were held in protective custody during 2004.88

5.3.1 Reasons for Protective Custody

5.3.1.1 Jordanian Women

A number of different reasons were reported for detaining women in protective custody. The main reason cited by lawyers and non-governmental actors for the use of protective custody is to protect women who have been threatened with protective custody violence because it is alleged that they have behaved in a way which threatens their family’s honour or because they left, or were absent from, their home.89 the Crime Prevention Law is often used to “detain persons simply for acting out- sideIn its local 2009 norms, study, suchHuman as Rightswomen Watch alone madein public a similar at night observation, or in the company noting that of men who are not their relatives”.90 Buthaina Fraihat, head of the Women and 91 noted that some women had reported to the Centre that they were forced to leave their home Children’s Rights and Vulnerable Groups Units at the NCHR,

87 Women’s Rights in the Middle East and North Africa: Progress Amid Resistance Husseini, R., “Jordan” in Kelly, S. and Breslin, J. (eds.) 88 CEDAW Committee, Combined, Freedom third House, and fourth 2010, reports p. 6. of States Parties: Jordan, UN Doc. CEDAW/C/JOR/3- 4, 10 March 2006, Para 22; see also Glenister above, note 16, p. 15. 89 Equal Rights Trust interview with Susan Fayd, 20 January 2016, Amman, Jordan. Ms Fayd is the Train- ing and Prison Visits Manager at Tamkeen Support Centre, where she has worked since 2011. Tamkeen is an NGO that provides support to female migrant workers in Jordan; Equal Rights Trust interview with Mai Dababna, 23 January 2016, Amman, Jordan. Ms Dababna was the Director of Juweida between 2011 and 2013; Equal Rights Trust interview with Ahmed Matalgah, 20 January 2016, Amman, Jordan. Mr Matalgah is a lawyer practicing in Irbid, Jordan. Since 2011, he has been working with Tamkeen Sup- port Centre to provide legal advice to women in protective custody; Equal Rights Trust interview with Lamis Nasser, 30 January 2016, Amman, Jordan. Lamis Nasser is a women’s rights activist in Jordan. She has been an activist for over 20 years and has previously sat on the board of the National Centre

Jordan; Equal Rights Trust interview with Buthaina Fraihat, 4 February 2016, Amman, Jordan; Equal Rightsfor Human Trust Rights; focus groupEqual Rightsdiscussion Trust with interview Mukarim with Odai Dr. andNahla four Al Momani,other staff 4 membersFebruary 2016,(who choseAmman, to remain anonymous) at the Jordanian Women’s Union (Itiha’ad Al Maraa) Refuge, 15 December 2015, Amman, Jordan. Mukarim Odai is the General Secretary of the Jordanian Women’s Union. The Jordanian Women’s Union Refuge is a shelter for women who have left protective custody. The four additional staff members interviewed are employed at the Refuge as a lawyer, social worker, psychologist and housekeeper; Equal Rights Trust focus group discussion with Anas Alfuqha, Mina Abu Sal and Areej Samreen, 13 February 2016, Amman, Jordan; Equal Rights focus group discussion with International Institution for Women’s Solidarity, 20 January 2016, Amman, Jordan; Equal Rights Trust focus group - ary 2016, Amman, Jordan. All four lawyers provide legal representation to women in protective custo- discussion with lawyers Majde Azoka, Takreed Al-Maiqara, Haya Al-Abadi and Lena Salama, 13 Febru

90 dy,See and above, have note eight, 13, five, p. 2. two Dignity and notedsix years in its experience 2015 report respectively. that women detained in protective custody in- children; had been raped and become pregnant; had become pregnant outside of marriage; had tried to cluded “those who had been detained because (or partly because) they were fighting for custody of their who had suffered and survived shootings, stabbings and burnings, from fathers, brothers or uncles. Some leave their families after being forcedly married and divorced from different men for profit; and women and had then immediately been returned to prison against their will as protection from reprisals by their familywomen or also community.” spoke of inmates See Dignity who above,had finished note 81, serving pp. 29–30. sentences See also for harming Warwick, or C. killing above, a notefamily 67, member, p. 7. 93 91

The NCHR is Jordan’s national human rights institute, established by Law 51 of 2006. 94 EQUAL RIGHTS TRUST 95 94 93 92 of 18,whenage she was transferred to Juweida. Their fathertold anduncle Noor custodyJuweida at and her sister was placed inasheltershe reacheduntil the interviewedtion Department bothwomen. Noor was thentaken into protective living ontheirown.When they arrivedthe policestation, theFamily at Protec and toldapartment their themthat familythem about hadmadeacomplaint and awayalone fromof their family. theabuse day, One thepolicecameto their and workedapartment to pay therent. Noor explainedtheythat wanted to live father andbrother.to Speaking theTrust,Noor explainedtheythat found an Noor and her sistertheir home after left experiencing repeatedfrom abuse their happened to her: She asked to betaken to prison, where she spent 14 years. Shedescribed what recoveringhospital andthepolicethenasked her where she wanted to betaken. brotherfather and was and severalherself. Shespent killed almost months in of her 1994,sister Aidawitnessedthehonour In killing the handsofher at Trust inearly 2016. her requestat detained forhad been and three monthswhen shespokethe with of what herbrother woulddo to her.She was transferred to protective custody takeand herhome,sherefused to leaveshe wasbecause thepolicestation afraid then who police found anddetainedher.the Whenher brother and husbandcameto sponsor her with report a filed husband and brother Her him. telling wassecond husband abusive soshedecided to leave thehouseoneday without divorce.brotherforcedremarrya toher afterwhen her situation facedthis Her voluntarily entered protective custody to escapethe threat ofviolence. who was theDirector ofJuweida between 2011 2013,notedand also women that solution toviable escape thethreat of violence against them. reported voluntarily entering protective custody becausethey feltit was theonly LawyersNGOs assistingwomen and inprotective custody explainedwomenthat protective custody. by their parents or step-parents andsubsequently ended being detainedin up 96

had beendetained inJuweida for 3months(she was stilldetainedatthe time ofherinterview). See alsoDignityabove, note 81,p.28. mous) theJordanianat Women’s Union(Itiha’ad AlMaraa) Refuge, 15 December 2015, Amman, Jordan. focus group discussion with Mukarim Odaiandfour other staff members (who chose to remain anony Equal Rights Trust interview withAida, Amman,26November 2015. EqualRights Trust interview28 February withSamia, Jordan. 2016, Amman, told Samia theTrustshe that Equal Rights Trust interview withMaiDababna,23January 2016,Amman,Jordan. EqualRights Trust interviewLamis Nasser, with Jordan; 30January2016, Amman, EqualRights Trust Equal Rights Trust interview withButhainaFraihat, 4February 2016,Amman,Jordan. my family because my dadkilledmy sister. my family tried to visit me – I wasn’t mobile, and I didn’t want Afterwards,to prison. see the to me take to them asked I go. to wanted I policemanhospital.A camemonthsaskedin where 9 and me spent I and neck,the on and leg the on once head, the on once hit was] [I 92 95

93 MsMaiDababna, 94 Samia - - that they would sponsor them to be released if they married relatives. Noor the WallsShouting Through explained that she and her sister refused because their grandfather had told them that their father still wanted to kill them and they were afraid. Noor and her sister insisted they would rather stay in protective custody.97 At the time that Noor spoke with the Trust, she had been in protective custody for nearly a year.

Other women reported being detained despite feeling that they did not require protection. Dana, who had left her home around midnight but had been gone for less than an hour before she was detained, explains that she was detained in protective custody as the police wrongly thought she would commit suicide: protective custody I was walking on the bridge when a car packed with men pulled up next to me. They started to verbally harass me telling me to come into the car with them. I was scared of them and did not know what to do. To avoid them I crossed one of the rails to the other side of the bridge. It happened so quickly, as if those men had called the police, because within seconds of me putting my foot on the other side a police car pulled up and thought I was about to commit suicide. The police didn’t even say anything to the men who had harassed me. I told them that I was trying to get away from the men, but they did not believe me. They held me tightly thinking I was going to throw myself on the road, and then took me to the police station.98

She spent eight days in Juweida in November 2015.99 Lama, was placed in pro- - plaint against her.100 Both Lama and Dana reported their sense of frustration tectivethat the custody authorities in October did not 2010 listen for to six their months stories. after her father filed a false com

Several of the women the Trust spoke to and the organisations who work with the women expressed the view that protective custody is used to protect women who society considers have behaved in a manner that is considered to be culturally unacceptable, such as by having a relationship with a man outside of marriage.101 Several lawyers, amongst others, noted that they believed this amounted to discrimination because men who behave in a similar manner are not detained

97 Equal Rights Trust interview with Noor, 28 February 2016, Amman, Jordan. Noor told the Trust that she had been detained in Juweida since 1 March 2015 (she was still detained at the time of her interview). 98 Equal Rights Trust interview with Dana, 22 December 2015, Amman, Jordan. Dana told the Trust that she was detained for 8 days in Juweida in November 2015 (she has now been released). 99 Ibid. 100 Equal Rights Trust interview with Lama, 4 February 2016, Amman, Jordan. 101 Equal Rights Trust focus group discussion with Mukarim Odai and four other staff members (who chose to remain anonymous) at the Jordanian Women’s Union (Itiha’ad Al Maraa) Refuge, 15 December 2015, Amman, Jordan; Equal Rights Trust focus group discussion with Rana Abu Sondos, Amel al-Adlea, Ala

January 2016. The International Institute for Women’s Solidarity is an NGO which provides legal and non-legalKshawanai support and Diana to women Hadadi in at protective the International custody; InstituteEqual Rights for Women’sTrust interview Solidarity, with Amman, Fatin, 28 Jordan, February 20 2016, Amman, Jordan; Equal Rights Interview with Amal, 28 February 2016, Amman, Jordan; and Equal Rights Trust interview with Fatima Alhalabiya, Mizan for Law, 7 December 2016. See also Penal Reform 95 International above, note 81, pp. 10–16. 96 EQUAL RIGHTS TRUST 106 105 104 103 102 without anexplanation andthentransferred to adetention centre. detentionin knowdo not why they are detained.Somewere taken bypolice the tective custody since2011, explainedsome oftheforeignthat women they meet Ms Fayd andAhmed Matalgah, alawyer who hasbeenadvising women inpro who trafficked herfled. tosituation theauthoritiesandshe was taken into protective custody. The man to provideresidencya herwith cardwork ora Someone reported permit. her work inhomes for long hours and themanwho brought her to Jordan refused better employment inJordan.Instead, reported Betty she was that forcedher to promised having ticket flight a for pay to money her lent man Sudanese a Ms Fayd discussed the exampleof Betty, who came to Jordan from Ethiopia when were ableto bereturned to theirhomecountry. either case, theresponse was to holdthewomen inprotective custodythey until ficked or who have left their employer’s home due to abuse by their employer. In tective custodybeen usedto hasalso detainforeign women who have beentraf providesNGO that support to foreign women indetention, explainedprothat Fayd,Susan Training andPrison TamkeenVisits at Manager SupportCentre, an 5.3.1.2 absent from thehomefor awhile.” as often aswomen. 108 107

Ibid Ibid. view withAhmedMatalgah, 20January2016, Amman,Jordan. Amman, Jordan. to remain anonymous)the Jordanian at Women’s Union(Itiha’ad AlMaraa) Refuge, 15 December 2015, uary 2016,Amman,Jordan. Amman, Jordan; EqualRights Trust interview with International Institute for Women’s Solidarity, 20 Jan to remain anonymous)the Jordanian at Women’s Union(Itiha’ad AlMaraa) Refuge, 15 December 2015, Equal Rights Trust interview withSusan Fayd, 20 January2016,Amman,Jordan. Equal Rights Trust interview withSusanFayd, 20January2016,Amman,Jordan. EqualRights Trust interviewFayd, withSusan 20January2016, Amman, Jordan; EqualRights Trust inter EqualRights Trust focus group discussion with Mukarim Odai andfour other staff members (who chose EqualRights Trust focus group discussion with Mukarim Odai andfour other staff members (who chose .; Equal Rights Trust interview withAhmed Matalgah, 20 January2016,Amman,Jordan. that they didnotcommit acrime. be [in detention centres] and they do not know why. They only know What bothers me the most is that these foreign women are forced to lem, detention. probnew facetheythenAnda arefacing.problemthey the end to home sponsor’s their flee to had have they circumstances, these In cated by their employer and being physically and sexually assaulted. including not being given their salary, having their passport confis to violations ofanumbertheirtheir[during rights employment] womenranawayfrom Some subjectedtheiremployer been having Foreign Women 102 Itwas noted “men arethat not taken into custody for being 105 106

103

108 104

107

------While in protective custody, women wait for someone to cover the cost of leaving the WallsShouting Through Jordan.109 These costs may be met through their embassy, friends and family, or in some cases by the Jordanian government.110

5.3.1.3 Crime Prevention Law

Lawyers, non-governmental actors, and women held in protective custody all reported being told or hearing that the Crime Prevention Law provides the threatened by a family member.111 -

tallegal actors justification agreed that to detain the Crime women Prevention for their Law own is safety, used incorrectlyincluding when and doesthey notare protective custody allow for women to be held in protective However, custody. most112 lawyers and non-governmen

Governors refer to the Crime Prevention Law to protect women, however, in the Crime Prevention Law there is no article that allows for the detention of a woman to protect her life.113

The Crime Prevention Law is implemented incorrectly. It is unjust to place a woman in a detention centre because she could be harmed.114

Staff at the Jordanian Women’s Union (Itiha’ad Al Maraa) Refuge noted that “a person should never be detained without a trial or verdict and that detention should be based on a decision from a judge.”115 One NGO shared that in some cases, the perpetrator who explicitly threatened a woman is known but instead of holding the perpetrator accountable, the woman is placed in protective custody.116

109 Ibid.; Equal Rights Trust interview with Ahmed Matalgah, 20 January 2016, Amman, Jordan. 110 Ibid.; Equal Rights Trust interview with Dr. Nahla Al-Momani, 4 February 2016, Amman, Jordan. 111 Equal Rights Trust interview with Mai Dababna, 23 January 2016, Amman, Jordan; Equal Rights Trust interview with Lamis Nasser, 30 January 2016, Amman, Jordan; Equal Rights Trust interview with Dr. Nahla Al Momani, 4 February 2016, Amman, Jordan; Equal Rights Trust focus group discussion with Mu- karim Odai and four other staff members (who chose to remain anonymous) at the Jordanian Women’s Union (Itiha’ad Al Maraa) Refuge, 15 December 2015, Amman, Jordan; Equal Rights Trust focus group discussion with Anas Alfuqha, Mina Abu Sal and Areej Samreen, 13 February 2016, Amman, Jordan; Equal Rights focus group discussion with International Institution for Women’s Solidarity, 20 January 2016, Amman, Jordan; Equal Rights Trust focus group discussion with lawyers Majde Azoka, Takreed Al-Maiqa-

112 ra,Equal Haya Rights Al-Abadi Trust and interview Lena Salama, with Lamis 13 February Nasser, 30 2016, January Amman, 2016, Jordan. Amman, Jordan; Equal Rights Trust interview with Dr. Nahla Al Momani, 4 February 2016, Amman, Jordan; Equal Rights Trust focus group discussion with Mukarim Odai and four other staff members (who chose to remain anonymous) at the Jordanian Wom- en’s Union (Itiha’ad Al Maraa) Refuge, 15 December 2015, Amman, Jordan, Amman, Jordan; Equal Rights focus group discussion with Equal Rights Trust focus group discussion with Anas Alfuqha, Mina Abu Sal and Areej Samreen, 13 February 2016, Amman, Jordan; Equal Rights focus group discussion with International Institution for Women’s Solidarity, 20 January 2016, Amman, Jordan; Equal Rights Trust focus group dis-

cussion with lawyers Majde Azoka, Takreed Al-Maiqara, Haya Al-Abadi and Lena Salama, 13 February 2016, 113 Amman,Equal Rights Jordan. Trust See interview also Penal with Reform Dr. Nahla International Al Momani, above, 4 February note 81, p. 2016, 8; see Amman, NCHR above, Jordan. note 14, p. 13. 114 Equal Rights Trust focus group discussion with Mukarim Odai and four other staff members (who chose to remain anonymous) at the Jordanian Women’s Union (Itiha’ad Al Maraa) Refuge, 15 December 2015. 115 Ibid. 116 Equal Rights Trust focus group discussion with International Institute for Women’s Solidarity, 20 January 97 2016, Amman, Jordan. 98 EQUAL RIGHTS TRUST 123 122 121 120 119 118 117 brother was lookingfor her and had threatened her life, she sought thesupport family homewhen she turned 18to seekabetter life. Whenshe heardher that she couldbereleased to. the Trust,explained the Governorthat insistedthat husband she needed a that Nawal,who Juweidadetained in hadbeen for overyear a when shespoke with Alternatively, women are toldthey that releasedbe will iftheymarried. get protective custody. always told thatamalerelative needsto sponsorawoman before shecanleave this, women inprotective custody andtheNGOssupporting themare almost would face ifthey brought suchacase. tody –somethingwhich isattributed to therisks andpressure thatwomen extremelyis that option rarely, ever,if taken byup women protectivein cus decision to detainthemthrough thecourts. Persons detainedinadministrative detention cantheoretically challengethe he considersitsafe for awoman to leave. weeks to over ten years because theGovernor has the discretion to decide when held inprotective custody. implemented incorrectly, there isnoguidanceonhowwomana long may be Furthermore, itwas noted bythe Refuge staffat because thelaw that is being 124 basis for asponsorto be required before awoman may be released. is incorrectly appliedto detainwomen inprotective custody, there isnolegal Prevention Law requires a sponsor in order to be released. However, as the law Director ofMizanfor Law, explained thatapersondetainedundertheCrime she was detained inJuweida on19January2015 (shewas still detainedatthetimeofherinterview). note 81,pp.29–30;seePenal Reform International above, note 81,p.8;seeabove, note 13,p.13. Governorsthat typically require amalefamily member to actassponsor, see for example Dignity above, terview with Eva Abu Halaweh, 29 November 2016, Amman, Jordan. Previous research has also reported in Trust Rights Equal Jordan; Amman, 2016, February 13 Salama, Lena and Al-AbadiHaya Al-Maiqara, ary 2016,Jordan; Amman, EqualRights Trust focus groupdiscussion lawyers with Azoka, Majde Takreed Women’s Solidarity, 20 January 2016, Amman, Jordan; EqualRights Trust interview with Ghada,6 Febru ruary 2016,Jordan; Amman, EqualRights Trust focus groupdiscussion International with Institute for EqualRights Trust focus groupAbuMina Alfuqha, discussion Anas with Areejand Sal Samreen, 13Feb to remain anonymous) at theJordanian Women’s Union(Itiha’ad AlMaraa) Refuge, 15 December 2015; Ibid. above, note 81,p.8;see7iberabove, note 82. interviewAhmed Matalgah, with Jordan. 20January 2016, Amman, PenalSee also Reform International Ibid. to remain anonymous) attheJordanian Women’s Union(Itiha’ad AlMaraa) Refuge, 15December2015. Ibid. EqualRights Trust interview Nawal, with 28 February Jordan. 2016, Amman, Nawaltold theTrust that EqualRights Trust focus group discussion with Mukarim Odai andfour other staff members (who chose Equal Rights Trust interview withEva Abu Halaweh, 29November 2016,Amman,Jordan. EqualRights Trust interview23 January 2016, MaiDababna, Amman, Jordan;with EqualRights Trust EqualRights Trust focus group discussion with Mukarim Odai andfour other staff members (who chose 7iber. the personthreatened with violence. not person violent The victim. the perpetrator,not the is detained be to person the law the to According discrimination. legal is This 123

124 118 Afterfrom enduringabuse her brother,her she left As a result, women result, Asa held forbe can between several 119 121 117

s v Au aae, Executive Halaweh, Abu Eva Ms 120 However, this appears to be an be However,to appears this 122 Despite - - - - of the Family Protection Department. There she found out that her brother had the WallsShouting Through filed a complaintI sent a letter against to the her governor. and she wasHe said transferred he would to not Juweida: authorise my release because he feared for my life (…) The Governor is insisting I need to have a husband [to be released], but where am I supposed to find one when I am locked up?125 arrange a marriage from within protective custody:

In its 2015 report, Dignity noted the difficulties women face when trying to protective custody Since this is almost impossible for the women to arrange themselves from the prison (given the restricted communication) many make seemingly desperate choices. Among those spoken to by DIGNITY, were a woman who married her rapist, and another who became the third wife and nurse of an elderly man.126 potentially exposed them to more harm: Ms Abu Halaweh noted that requiring women to marry to secure their release The Governor is exposing her to further rights violations and exploitation because her goal is not marriage, it is to be released. When she is released she does not know what her new environment will be like given that she has been married to a man she does not know.127

When a Governor allows the release of a woman in protective custody, there is no follow-up or action taken to monitor the situation.128 Staff at the Itiha’ad Al Maraa Refuge reported that they knew of cases when the Governor stated that it was safe for a woman to leave because her family was willing to sponsor her, but the woman herself has stated she is afraid that being released to her family will jeopardise her life: “we have seen these cases. Women killed immediately after being released from protective custody.”129 Several cases have been reported of women who have been killed by male relatives they have been released to and who have signed a guarantee not to harm them.130

125 Equal Rights Trust interview with Nawal, 28 February, Amman, Jordan. 126 See Dignity above, note 81, pp. 30. 127

128 Equal Rights Trust interviewfocus group with discussion Eva Abu withHalaweh, Mukarim 29 November Odai and 2016,four other Amman, staff Jordan. members (who chose to remain anonymous) at the Jordanian Women’s Union (Itiha’ad Al Maraa) Refuge, 15 December 2015; Equal Rights Trust focus group discussion with International Institute for Women’s Solidarity, 20 January 2016, Amman, Jordan. 129 Equal Rights Trust focus group discussion with Mukarim Odai and four other staff members (who chose to remain anonymous) at the Jordanian Women’s Union (Itiha’ad Al Maraa) Refuge, 15 December 2015. 130 The Jordan Times, 13 July 2010, available at: http://www. jordantimes.com/news/local/man-receives-10-years-killing-sister; see Warwick, C. above, 99 noteHusseini, 67, p. R., 91; “Man see above, receives note 10 88, years pp. 5–6. for killing sister”, 100 EQUAL RIGHTS TRUST 133 132 131 the about use of protective custody “depriving inJordan, attheleast, found that, toin andof itself amount torture. inthemostseverement, of cases,itisconceivable protectivethat custody may In additiontoto amounting state complicityinactsoftorture andother ill-treat and suffering causedmay reach thetorture threshold. leads to their detention inprotective custody. Insome cases, theseverity ofpain havewill experienced severe painandsuffering as aresult of the violence which custody,is apparent suchasinthecaseofAida,it in manythat caseswomen Trustwomenthe violence that about experienced prior to entering protective clearly meetthethreshold for Further, ill-treatment. given thestories told to the This some is on thebasisthatactsof violence against women insuchscenarios, obligations inrespect oftheright to befree from torture andill-treatment. ing theperpetrators of such actsis a clearviolationofJordan’s duediligence ing onremoving women from thehome ratherinvestigating than and prosecut Focus insufficient. are women against violence tackle to Jordan by established tive custody, strongly indicates that theprotective and preventative mechanisms of violence, andalsothenumberof women continuingto bedetainedinprotec feeldo not there isanotherwaywhich in theymay protected be from therisk The factwomen that have requested to beplacedinprotective custody asthey it becomeslawful. stances, womenbe considered cannot asconsentingto theirdetention suchthat this was asaresult of of anya lack other availableoptions. Inthese circum choose to stay inprotective custody,werecases that inall explainedto theTrust, restriction on freedom of movement. Asdiscussed above, while some women Part5.1, protective custodytoamounts also arbitrary detentionunlawful andan be seen as aviolationof the prohibition of discrimination. As noted above in resultis alsoa of discrimination. threat of violence or harm to women which results inwomen beingdetained valueon their liberty thanontheof those who seek to harm them. The mentedresulta as of discriminatory towards attitudes women,lesser a placing custody ishighly discriminatory.predominantly It affects women andisimple numerous NGOs and UN treaty bodies and specialprocedures tor before awoman canbereleased, further reiterate theconclusions noted by tody, andthepracticerelative ofneedingamale or husband toas guaran act The reasons reported to the Trust for the detention of women in protective cus 5.3.1.4 135 134

Ibid have noother option.Seeabove, note 32,Para 6. given inthecircumstances facing women atriskofviolencecannotbeconsidered free –they simply without free consent”. Itisimportantto stress thattheCommittee isreferring to The HumanRights Committee notes inGeneral Comment no.35that“deprivation ofpersonallibertyis See above Part 5.1.4. See above Part 4andPart 5.1. See above Part 5.1.2. . International Legal Analysis 133

132 135 All instances ofprotective All custody should In2007, the SpecialRapporteur, speaking 131 free that protective that consent. Consent consent. 134 ------innocent women and girls of their liberty for as long as 14 years can only be the WallsShouting Through 136 Among most recent comments, the UN Special Rapporteur on Torture, noted in early 2016 thatqualified the use as ofinhuman protective treatment, custody andof women is highly who discriminatory.” have been raped or subject to honour-based violence or other abuses in order to ensure that they testify “further victimizes women, deters them from reporting rape and sexual abuse and can amount to torture or ill-treatment per se.”137

Of the ten women whom the Trust spoke with who were detained in Juweida at the time of their interview, the shortest period of detention was three protective custody a year, including periods of three years and two and a half years. This shows thatmonths women and theare stilllongest being was detained five years. in protective Half had been custody detained for significant for more perithan- ods of time.138 relation to periods of detention of two years and of 14 months: The Human Rights Committee has found a violation of Article 7 of the ICCPR in The Committee considers that the combination of the arbitrary character of the authors’ detention, its protracted and/or indefinite duration, the refusal to provide information and procedural rights to the authors and the difficult conditions of detention are cumulatively inflicting serious psychological harm upon them, and constitute treatment contrary to article 7 of the Covenant.139 relevant to the categorisation of the human rights violations in question, there is,While in summary, the specific a compellingcontext of the basis protective for concluding custody that in a givenprotective case willcustody be highly does not absolve the state of its due diligence requirements to prevent and protect women from torture and ill-treatment. It may also be concluded that the custody itself will likely amount to ill-treatment and, in some particularly severe circumstances, may amount to torture.

5.3.2 Treatment in Detention

According to those to whom we spoke, from the outset of their time in detention, women in protective custody are treated almost indistinguishably from the wider prison population. Ghada and Deema expressed frustration and irritation

136

137 See Human Rights Council above, note 17, Para 39. 138 See Human Rights Council above, note 43, Para 24. reports, see above, note 13, p. 11; SBS, “Jordan – Jailing the Innocent”, SBS, 1 October 2008, transcript availableHowever, at: it shouldhttp://www.sbs.com.au/news/dateline/story/jordan-jailing-innocent; be noted that these periods appear to have shortened considerably Amman from Centre earlier for NGOs Coalition Report Universal Periodical Review of Human Rights in Jordan NGOs Coalition for the UPR – Joint UPR Submission – Jordan, October 2013, Para 4; see also Glenister above, note 16,Human p. 17. Rights Studies, 101 139 F.K.A.G. et al v Australia, Communication No. 2094/2011, 20 August 2013, Para 9.8.

Human Rights Committee, 102 EQUAL RIGHTS TRUST 148 147 146 145 144 143 142 141 140 isation to bereleased. Shementionedtheproblems shehadwithoneofficer: tive custodyJuweida at for 15years before shereceivedfrom help organlocal a tive custody in2004 after her brother murdered her sister. Shestayed in protec reportedthey that Juweida. feltthey were poorly treated. at officers custodial by treatment varying reported Women ings”. abuse ofweaker inmates by stronger prisoners (...)includingbeatingsandburn whichin instances failedstaff prison to intervene physicalthe in orpsychological fearful ofconvicted cellmates” According to Dignity, “someadministrative andpre-trial inmates reported being the otherinmates ifitwas discovered thatshewas thesource ofthecomplaint. reported thatshewas notcomfortable complainingfor fear shewould behurt by inmates. the between fighting of lot a was there that reported also Aida by otherinmates atJuweida. reportedalso witnessingor hearingpossiblesignsofsexualcarried out assault at the poor treatment they would experience from other prison inmates. 149

treatment later ceasedafter sheraised a complaintwhich was handled by theauthority. Trust thatshewasthe detainedinJuweida on18March 2014(shewas stilldetainedatthetimeofher interview).told Hadeel Jordan. Amman, 2016, February 28 Hadeel, with Interview Trust Rights Equal interview); the Trust thatshewas detainedinJuweida on14November 2015(shewas stilldetained at thetimeofher time ofherinterview); Equal Rights Trust Interview withFatin, 28February the 2016,Amman,Jordan. Fatinat told detained still was (she years 5 for Juweida in detained been had she that Trust the told Hala Jordan. Lama, 23 January 2016, Amman, Jordan; Equal Rights Trust Interview with Hala, 28 February 2016, Amman, she was detainedinJuweida for 15years (shehasnow beenreleased); Equal Rights Trust Interview with Equal Rights Trust Interview withRawan, 26November 2015,Amman,Jordan. Rawan told theTrust that Ibid Ibid. ber 2013(shewas stilldetainedatthetimeofherinterview). 28 FebruaryDeema, with Jordan. 2016,Amman, Deema told Trustthe she was that detainedon1Septem EqualRights Trust interview Rawan,with 26 November 2015, Amman, Jordan. Rawan reported that the Equal Rights Trust Interview withAida,26November 2015,Amman,Jordan. See Dignityabove, note 81,p.39. Equal Right Trust interview withGhada,6February 2016,Amman,Jordan. Equal Rights Trust interview withAida,26November 2015,Amman,Jordan. Equal Right Trust interview withGhada,6February 2016,Amman,Jordan. EqualRights Trust interview with Ghada,6February 2016, Jordan;Amman, EqualRights Trust interview 146 ., p.43. was happening to them (…) I never had anything happen to me (…) (…) me to happen anything had never I (…) them to happening was You could hear it at night. You could hear the voices and just knew what relative ofthe guymy sister madeamistake with. a was she because way this behaved She me. at it throwwould she medication, mytake to me for time was it manner.When vicious a in me with interact would officer one except good was Everything complain but everyone was too scared to say anything to the officers. could they (…) assaulted sexually women other saw and heard I [B]ut Itisnotcleariftheseinstancesrelated to women inprotective custody. 141 145

andalsoreported thatithadbeentold of“several 148 Rawan was taken into protec 149 142 143 147 140 Ghada Ghada Some They 144 - - - - -

Shouting Through the WallsShouting Through 150 one of We received mixed reports of the treatment of women by151 officers. Dignity Two also women noted thatmentioned women that had reported they had seeing witnessed cellmates officers being yell beaten at, or by hit, prison women, staff and that inmateswhom reported also reported seeing “regular an officer verbal hit aabuse pregnant and taunting,woman. the rough treatment and isolation of women who had self-harmed.”152 Other women interviewed by - lems interacting with them.153 Whilst it is not clear whether reported instances ofthe violence Trust reported were ever that committed they were against treated women well by detained the officers in protective and had no custody, prob it appears that some women in protective custody have been forced to witness

violent acts, potentially impacting upon their overall mental wellbeing and caus- protective custody ing them to be fearful of being verbally or physically assaulted by either fellow inmates or prison staff.

5.3.3 Conditions of Detention

Both regional and international bodies have recognised that conditions of detention may amount to torture or ill-treatment. In addition to the prohibition on torture under Article 7, Article 10(1) of the ICCPR provides a right for “all persons deprived of their liberty [to] be treated with humanity and with respect for the inherent dignity of the human person”.154 obliged under Article 7 to ensure, as a minimum, observance of several standards setIn its out jurisprudence, in the Standard the Minimum Human Rights Rules Committee for the Treatment has highlighted of Prisoners; that statesincluding are and ventilation (Rule 10), the provision of sanitary installations (Rule 12), suit- ablethat accommodationclothing (Rule 17), meets a separate health requirementsbed and bedding such (Rule as minimum 19), and floornutritional space food and drinking water (Rule 20).155

thatRespect states for are human obliged dignity to ensure: has also been recognised by the ECtHR who, in its interpretation of Article 3 of the ECHR (the prohibition on torture), has stressed

150 Equal Rights Trust Interview with Marwa, 3 February 2016, Amman, Jordan; Equal Rights Trust Interview with Amal, 28 February 2016, Amman, Jordan. At the time of her interview, Amal had been detained in Juweida for six months. 151 Equal Rights Trust Interview with Amal, 28 February 2016, Amman, Jordan. 152 See Dignity above, note 81, p. 43. 153 Equal Rights Trust Interview with Rawan, 26 November 2015, Amman, Jordan; Equal Rights Trust Inter- view with Lama, 23 January 2016, Amman, Jordan. The Special Rapporteur noted that no allegations of

note 17, Para 39. ill-treatment were made in relation to Juweida during his 2006 visit, see Human Rights Council above, 154 ICCPR, Article 10(1). 155 Mukong v Cameroon, Communication No. 458/1991, UN Doc. CCPR/ General Comment No. 21: Article 10Human Rights Committee, Torture in In- ternationalC/51/D/458/1991, Law: A Guide 1994, to Para Jurisprudence 9.3. See also, Human Rights Committee, 103 jurisprudenceguide.pdf., 1994, UN Doc. HRI/GEN/1/Rev.1, p. 33, Para 5; Association for the Prevention of Torture, , 2008, p. 39, available at: http://www.apt.ch/content/files_res/ 104 EQUAL RIGHTS TRUST 166 165 164 163 162 161 160 159 158 157 156 were enough beds for each womanfacility.that at the caseforthis hadbeen her. protectivein that Trustconfirmed detained custodythe womaninterviewedby detainees. female of number high the to due floor the on mattressessleep on to forced been have inmates that reported NCHR The beds. available of Juwieda. overcrowdingin to led has space sufficient of lack a that Trust the to reported currentlyheld inJordanian being prisons (450). recent statistics suggest thatamarginally smallertotalnumber of women are of overcrowdinglem andaffectingthe standard ofservices provided. 2014, 476 women were heldinthefacility, Juweida was initially designed to housearound 350inmates. According to the NCHR, the Women’s Reform and Rehabilitation Center (RRC) at 5.3.3.1 may eachamountto aviolationofArticle3the ECHR. crowdingspace, of cell lack anda adequate provide to failure detentiondue to conditions,including of hygienelack a incells, that held that held has ECtHR the Consequently, 168 167

NCHR above, note 14,p.17. interview withDr. NahlaAl-Momani, 4February 2016,Amman,Jordan. Ibid Ibid 39 and45. European Court of Human Rights, European CourtofHumanRights, 20 October 2011,Para 80. Rights, Human of Court European European CourtofHumanRights, European Court ofHuman Rights, Equal Rights Trust interview withDana, 22December2015,Amman,Jordan. Equal Rights Trust interview withGhada, 6February 2016,Amman,Jordan. In some instances, women reportedly “rent their beds to other inmates due to their need for cash”. See EqualRights Trust interviewFraihat, withButhaina 4FebruaryJordan; 2016, Amman, EqualRights Trust See AlEmamabove, note 14.TheTrust hasnot beenableto verify thesestatistics. See NCHRabove, note 14,pp.14–15. ., pp.14–15. ., p.40. f mrsnet ter elh n wl-en ae adequately are well-being and health their imprisonment, of demands practical the given that, and detention in inherent ing hardship of oran intensity exceeding the unavoidable distresslevel of suffer to them subject not do measure the of execution the of method and manner the that dignity, human for respect with conditionsaredetainedin prisoners which [T]hat arecompatible medical assistance. secured by, among other things, providing them with the requisite Overcrowding andHygiene 165 Oneof the consequences of overcrowding intheJuweida is a lack 156 Gelfmann vFrance Boris Ivanov v Russia Peers vGreece Tali vEstonia, Mandić and Jović v Slovenia v Jović and Mandić 167 158 However, another woman reported that there that However,reported woman another ill-treatmentby prison staff ApplicationNo.66393/10,13February 2014,Para 82. , ApplicationNo.28524/95,19April2001,Para 75. , ApplicationNo.25875/03,14December2004,Para 50. 162 , Application No. 12311/06, , Application 6 October 2015, Paras contributing to a significant prob significant a to contributing , ApplicationsNos. 5774/10 and 5985/10, 168 164 According to accountsfrom Severallawyers NGOs and 161 159 However,of as 157 orcellmates prisonover 163 - 166 More One 160 - - lawyers and NGOs, women shared with them that overall Juweida is liveable but the WallsShouting Through unpleasant.169 Cleanliness was noted as an issue, particularly in the rooms occupied by foreigners.170 This is apparently because the rooms occupied by foreign women are overcrowded, and guards do not follow up to make sure they clean their areas.171

buildingJuweida relies is an oldupon facility a cesspool and consequentlyto get rid of drain has water. significant172 Dr. problemsNahla Al-Momani, with its plumbing and sewage system. The NCHR, in its 2014 report, explains that the

2014 report, shared that women detained in Juwedia reported that the plumb- protective custody a lawyer who works at the NCHR, and who assisted with drafting the NCHR’s Dr Al-Momani stated that visiting health care workers complained that the fouling isodours so bad and that unsanitary water from conditions the sewers affected can flood their certainability toareas. treat In inmates. addition,173 Women also shared with her that bugs are sometimes seen crawling every- where.174 Women in protective custody at Juweida reported that the structural problems and cleanliness in Juweida become a greater issue for them when they need to wash their clothes, bed sheets, or any other items, which they are required to do themselves.175

Bathroom facilities in Juweida are also limited. Ghada reported that 12 women usually share one bathroom in Juweida, and that many more women shared the showers as there are only two of them.176 She also reported that hot water is not available and that sometimes there is not enough water available for showering.177 178 Women noted that basic hygiene items such as soap and shampoo had to be purchased in Juweida,179 explaining that each detaineeThis reflected received the findingsan allowance of the of NCHR. ten Jordanian Dinars from the prison:180

169 Equal Rights Trust interview with Susan Fayd, 20 January 2016, Amman, Jordan; Equal Rights Trust interview with Lamis Nasser, 4 February 2016, Amman, Jordan; Equal Rights Trust interview with Dr. Nahla Al Momani, 4 February 2016, Amman, Jordan. 170

14,Equal p. 16,Rights fn. 1. Trust interview with Susan Fayd, 20 January 2016, Amman, Jordan. The NCHR notes that it witnessed the sewers flooding into the dental clinic during a visit in March 2014, see NCHR above, note 171 Equal Rights Trust interview with Susan Fayd, 20 January 2016, Amman, Jordan. 172

173 SeeEqual NCHR Right above, Trust note interview 14, p. with16. Dr. Nahla Al Momani, 4 February 2016, Amman, Jordan. 174 Ibid

175 Equal. See Rights also TrustNCHR interview above, note with 14, Dr. p. 16.Nahla Al Momani, 4 February 2016, Amman, Jordan; Equal Rights Trust interview with Buthaina Fraihat, 4 February 2016, Amman, Jordan. 176 Equal Rights Trust interview with Ghada, 6 February 2016, Amman, Jordan. 177 Ibid.; Equal Rights Trust interview with Marwa, 3 February 2016, Amman, Jordan. 178

179 EqualSee NCHR Rights above, Trust note interview 14, p. 22. with Rawan, 26 November 2015, Amman, Jordan; Equal Rights Trust interview with Ghada, 6 February 2016, Amman, Jordan. 180 Dignity also reported that inmates received an allowance of 10 dinars per month, whereas the earlier 105 research carried out by the NCHR noted that women receive an allowance of 20 dinars per month. See Dignity above, note 81, p. 41; see also NCHR above, note 14, p. 12. 106 EQUAL RIGHTS TRUST 184 183 182 181 womenthat health complaintsare withmental to able meetwithaspecialist Lawyers and NGOs working withwomen inprotective custody told theTrust in others,more specialisedtreatment was required: some instances,healthcarein While wouldtoappear the needsof inmates, meet the provision of medicalcare to victimsof“honour” crimes who are detained. male doctor. away from discussing symptoms or health care issues if only presented with a many women arecomfortable not seen bybeing doctormale a andmay shy in Juweidano female isthat doctor isavailable. oflawyersA number stated that made. gencies are not necessarily addressed on the spotif has no appointmentbeen are to able maketo appointments seethem. doctor and nurses are available for certain hours during thedaywomen andthat Lawyers working withwomen inprotective custody inJuweida reporteda that 5.3.3.2 186 185

Ibid note 14,p.26. above,NCHR also see 49; p. 81, above,note Dignity also See Jordan. Amman, February2016, 13 Salama, Lena and Al-Abadi Haya Al-Maiqara,Takreed Azoka, Majde lawyers with discussion group focus Trust focus group withAnas Alfuqha,MinaAbu SalandAreej Samreen, 13February 2016,Amman,Jordan. Juweida inprotective custody for 15years. See Dignityabove, note 81,p.49. EqualRights Trust InterviewFraihat,Buthaina with 4FebruaryJordan; 2016, Amman, andEqualRights Equal Rights Trust interview withGhada,6February 2016,Amman,Jordan. EqualRights Trust interviewFraihat, withButhaina 4FebruaryJordan; 2016, Amman, EqualRights Trust EqualRights Trust interviewRawan, with 26 November Jordan. 2015, Amman, Rawanwas detainedin 183 ., p.49. some money for the detainees]. So we used to help each other. If Some women. thoseother. to it give would we extramaterialswerethere each help to used we So detainees]. the for money some leave would they visited families [when visit not did family whose women for enough be not would this and prison the from Dinars could not buy hygiene items. Each detainee would get 10 Jordanian Some women were not financially supported [by family] and so they the specialistmedical care required was notprovided. Disorder,Post-Traumatic Stress of likelihood the and injuries her of nature serious Yetthe inmates.given fellow by health to nursed being for regu and immobile, was she for doctor,while the by gratefulvisits cell lar was woman One prison. in their care post-hospital of reports mixed heard DIGNITY detention. administrative their before hospital in time substantial requiring injuries, serious needs that are not always adequately met. They have often suffered health urgent and particular with group a constitute attacks vio lent and crimes’ ‘honour from recovering are who women Those Dinars they would give itback. of them would borrow money and when they got their 10 Jordanian Health Care Itwas noted that one of the biggestobstaclesto seeking medical care 184 Alsoof concern are theshortcomings highlighted by Dignityin 181 182 However, Ghada noted that emer 185

186 - - - who would often attend the detention centre.187 the WallsShouting Through 2014 that one psychiatrist visited the prison once per week and that this was not However,188 the NCHR noted in

Womensufficient with to meet severe the medical needs of issues the number or who of need inmates. specialist care in Juweida are granted permission to be taken to a public hospital.189 Along with their lawyers and advocates, women reported that the experience of visiting a hospital is shameful and embarrassing because even though they are in protective custody and not criminals, they are not allowed to wear civilian clothes when entering the hospital and are subjected to the disapproving stares of other individuals 190 in the hospital. This contradicts international best practice, which provides protective custody that “whenever a prisoner is removed outside the institution for an authorised purpose he shall be allowed to wear his own clothing or other inconspicuous clothing.”191 clothing “shall be in no manner degrading or humiliating” is a minimum standard and should The be Human observed Rights by allCommittee states.192 have held that the requirement that

5.3.3.3 Children and Pregnant Women

- tody at Juweida are not provided with adequate prenatal care.193 In addition, Ms FraihatButhaina explained Fraihat of that the although NCHR reported women that should pregnant be taken women to the in hospital protective to cusgive birth, there have been some cases where women gave birth in Juweida.194

Children born to women within Jordan’s RRCs, including those held in protective custody, may be kept with their mother until the age of three years old,195 after which, according to legislation, they may be kept with family or receive care from staff “at a specialised centre.”196 the Trust that children who are born out of wedlock are often removed from the care of their mother: However, Ms Abu Halaweh informed

187 Equal Rights Trust interview with Mai Dababna, 23 January 2016, Amman, Jordan; Equal Rights Trust focus group discussion with International Institute for Women’s Solidarity, 20 January 2016, Amman, Jordan; Equal Rights Trust focus group discussion with Mukarim Odai and four other staff members (who chose to remain anonymous) at the Jordanian Women’s Union (Itiha’ad Al Maraa) Refuge, 15 December 2015. 188

189 SeeEqual NCHR Rights above, Trust note focus 14, group p. 27. discussion with International Institute for Women’s Solidarity, 20 January 2016, Amman, Jordan; Equal Rights interview with Lama, 23 January 2016, Amman, Jordan. 190 Ibid. 191 Economic and Social Council, Standard Minimum Rules for the Treatment of Prisoners, Res. 663 C (XXIV), 30 August 1955. 192 Mukong v Cameroon above, note 158, Para 9.3.

193 SeeEqual Human Rights Rights Trust Committee,interview with Buthaina Fraihat, 4 February 2016, Amman, Jordan. 194 Ibid.

195 Equal See Rights also TrustNCHR interview above, note with 14, Dr. pp. Nahla 28–29. Al Momani, 4 February 2016, Amman, Jordan; Equal Rights

196 TrustReform interview and Rehabilitation with Eva Abu Centers Halaweh, Act No. 29 9November of 2004, Articles 2016, Amman, 15(c-d), Jordan.as quoted in Dignity above, note 81, 107 p. 22. 108 EQUAL RIGHTS TRUST 200 199 198 197 ing thewhereaboutsmember(s) of theabsent of thefamily unlesstheprovision priate, another member of the family withtheessential information concern by thestates, states are required to “provide the parents, thechildor, ifappro it isinthebestintereststhat ofthechild.Where aparent andchildare separated ever, Ms Eva Abu Halaweh reports that in practice the authorities do this, stating How mothers. removaltheir fromchildrenillegitimatethe of authorises which sary for the bestinterests of the child”. except inprocedures established by law, subjectto review, andwhen “neces not beseparateda childshall that from his or her parents against their will”, the Convention ontheRights of the Child (CRC), states are required to “ensure protective custody isinclearbreach ifinternationallaw. Under Article 9(1) of wasthat taken away. was strained andthesewomen may always wonder whathappened to thechild of womenhealth and emotional mental who were madeto givetheir child up sion. Dignity alsonotedthese women that were reported tohigh be at riskofdepres children are removed from them: whose women to caused anguish the noting finding, similar a reported Dignity 201

Trust interview withButhainaFraihat, 4February 2016,Amman,Jordan. Ibid., Convention ontheRights oftheChild(CRC), 1577U.N.T.S. 3,1989,Article9(1). EqualRights Trust interviewDr. with 4 FebruaryMomani, Al Nahla Jordan; 2016, Amman, EqualRights See Dignityabove, note 81,pp.57. Equal Rights Trust interview withEva Abu Halaweh, 29November 2016,Amman,Jordan. 199 Dr Al Momani and Ms Fraihat from the NCHR also told the Trust that the p.50. the child from the mother on the basis that they are afraid the mother taking justify authorities The Development. Social of Ministry the by the child, then the child is taken to care centres for children operated of the mother does not want the child and no family is willing to adopt vented by the authorities from being with their children. If the family pre are wedlock of out children have who women of majority [T]he prison, butI’mdeadinhere. It’sjustthe same.” this outside go I if dead I’m most. the hurt This him. took theyaway, but son my sign not did I him. took they wedlock, of out was it “Because firsthand. women such towards staff of attitude dainful Researcherspermission. custodywithouther thedis observed also case detainee’sremovedchild wasa froma that informed was one DIGNITY least at In (…) staff by discrimination direct of because agency, and to information appearedregarding helpless who most the women among feel these was it interviews During riage. mar outside conceived children, ‘illegitimate’ to birth given have who women are Jordan, in concern for causes greatest the Among might hurtthe child asaresult ofthe stigmatisationshemayface. 200 The removalof “illegitimate” children from women in 201 There is no provision in Jordanian law 198 197 - - -

- - - - - of the information would be detrimental to the well-being of the child.”202 Such the WallsShouting Through requests for information are reportedly denied to women in Jordan.203

It was reported to the Trust that children who are in detention with their mothers are placed in a nursery and not in the same room as the mother.204 Mothers are allowed to visit their children at any time they want and for any length of time.205 - cial dorm: However, the NCHR noted that children stay with their mother in a spe The Juweidah nursery is supervised by a lady official pertaining

to the Ministry of Social Development who provides children with protective custody clothes, food and suitable toys. The woman in charge of the nursery says that the child remains with his mother at the nursery until 5.00 p.m. Thereafter, he is moved with her to a special dormitory called the “incubating dormitory”, but there is a question about the prospects of providing the mother and her child with a bedroom due to over crowdedness, excess of inmates over and above the RRC capacity and the shortage in the number of the dormitories.206

It was reported that the nursery at Juweida does not have proper ventilation, which can cause problems for the children’s health.207 Contrary to the comments not provided with all the basic necessities for their child, and so tried to share andmade trade to the items NCHR, with the other Trust women was told with by children. staff at208 the It Refugewas also that noted women that itwere can child will be taken away from her because she is considered unable to take care ofbe thedifficult child. for209 a mother to obtain the resources she needs and so sometimes her

5.3.3.4 Visitation Rights

Contact with the outside world for women in protective custody is made either through visits or by telephone.210 Over half of the women spoken to who are currently in protective custody in Juweida stated that, although they do have

202 ICCPR, Article 9(4). 203 See Dignity above, note 81, p. 61. 204 Equal Rights Trust interview with Dr. Nahla Al Momani, 4 February 2016, Amman, Jordan. 205

206 Equal Rights Trust interview with Eva Abu Halaweh, 29 November 2016, Amman, Jordan. 207 EqualSee NCHR Rights above, Trust note interview 14, p. 29. with Dr. Nahla Al Momani, 4 February 2016, Amman, Jordan; ibid. National

208 CentreEqual Right for Human Trust focusRights, group p. 29. discussion with International Institution for Women’s Solidarity, 20 Janu- ary 2016, Amman, Jordan. 209 Equal Rights Trust focus group discussion with Anas Alfuqha, Mina Abu Sal and Areej Samreen, 13 Febru- ary 2016, Amman, Jordan. 210 109 Dignity and the NCHR both noted that women are allowed one phone call per week of around 5 minutes duration, see NCHR above, note 14, p. 36; see Dignity above, note 81, p. 59. 110 EQUAL RIGHTS TRUST 217 216 215 214 213 212 211 was education available,very few women took thisupdueto aclashbetween to holdactivities for women duringtheyear. activities or vocationaltraining, although thesameNGOreported beingallowed Women reported to one theyNGO that hadnoopportunities to participate in 5.3.3.5 see my mum.” “kept tryingto askfor permission for aprivate visitbutthey would notletme and sothey would have beenableto understandoneanother. Shesaidthatshe was noglass shewould have beenableto speakwithhermotherface to face even usingthephoneandsothey couldnotspeak.Sheexplained thatifthere glass. However, as her mother has difficulty hearing, she could not hear Ghada through phonesasthere was nootherway to heareachotherthrough the glass partition between thetwo ofthem. that shewas only allowed to visither motherinavisitationroom thathada ited meantthatshewas notableto communicate withher atall.Sheexplained Ghada explained to the Trust confidentially.the difficulties speak that she to had when able her mother vis not are women the so and present prison the women receive avisitfrom alawyer oradvocate, there isalways someonefrom itors inthesameplaceaswomen detainedfor criminal offences. visitors are notgiven any privacy during their visitsandthatthey seetheir vis receivedo whoFayd women Susan that EvaHalawehexplainedBoth Abu and threaten to killthemshouldthey bereleased from protective custody. Two women reportedtheir brother that or father hadvisited theminorder to see if theytheythat need help, but usually donotsee or speak to anyone. theythat occasionallyreceive visitor a tosometimes someonecalls that and visitation rights, noonefrom their family visits them. 218

2016, Amman,Jordan. Ibid. disciplinary grounds. also Dignityabove, note 81,p.60.Dignityreportedwomen that may bedenied visits from their lawyer on view with Eva Abu Halaweh, 29 November 2016, Amman, Jordan. See also NCHR above, note 14, p. 37; see 6 February 2016,Amman,Jordan. Fraihat,view withButhaina 4February 2016, Jordan;Amman, EqualRights Trust interview with Ghada, view withNawal, 28February 2016,Amman,Jordan. still detainedatthetimeofherinterview). Jordan.2016, Amman, Aseel told theTrustdetained inJuweidashe hadbeen that for three years (shewas with Sawsan, 28 February 2016, Amman, Jordan; EqualRights Trust interview withAseel,28 February Rights Trust interview withHadeel,28February 2016,Amman,Jordan. Jordan;Amman, EqualRights Trust interview28 FebruarySamia, with Jordan; 2016, Amman, Equal with Noor, 28 February 2016, Amman, Jordan; Equal Rights Trust interview with Hala, 28 February 2016, EqualRights Trust focus groupdiscussion International with Institute for Women’s Solidarity,20 January Equal Rights Trust interview withGhada,6February 2016,Amman,Jordan. EqualRights Trust interviewFayd, withSusan 20January2016, Amman, Jordan; EqualRights Trust inter EqualRights Trust interviewFayd, withSusan 20January2016, Amman, Jordan; EqualRights Trust inter EqualRights Trust interview28 FebruarySamia, with Jordan; 2016, Amman, EqualRights Trustinter EqualRights Trust interview with Ghada,6February 2016, Jordan;Amman, EqualRights Trust interview EqualRights Trust interview with Lama,23 February 2016, Amman, Jordan; EqualRights Trust Interview Dignity, p.59. Work andRecreation 217

216 218 Thismeantthatthey hadto speak Dignitynotedalthough that there 211 Afew women reported 214 Whenthe 213

215 212 - - - - - class times and the times in which paid work was available and also possibly due the WallsShouting Through to depression.219

Women are able to work and earn a minimal salary,220 which is reportedly below the minimum wage.221 women who wish to work.222 including women in protective However, custody, it is not are clear classed if there as “temporary” is sufficient inmates, work for and all so may be excluded from other According “training, to employment the NCHR, administrative or education opportuni detainees,- ties that are enjoyed by convicted female inmates”. 223

Lama explained that she was constantly frustrated and depressed while detained protective custody in Juweida, having been placed in protective custody following what she considered to be a wrongful accusation by her father that she had shamed her family. She stated that being able to undertake activities would have provided a welcome distraction while she was detained; “recreational activities keep us busy to forget the world we are in and not think a lot about why we are locked here.”224

5.3.4 Impact of Protective Custody

Periods of detention are likely to adversely impact any individual’s mental well- being. For women in protective custody, however, the situation is likely to be considerably worse. They are detained without committing any crime, often following significant violence or threats of violence, and have no prospective Statisticsrelease date show or anythat real administratively ability to influence detained their women prospects are moreof release. likely to report experiencing psychological problems than women in judicial detention. Accord- ing to a 2014 Penal Reform International survey undertaken at Juweida, of those women in judicial detention, 56% suffered from depression, 13% had self-harmed, 15% had suicidal thoughts and 39% experienced insomnia.225 This was compared to 62%, 24%, 24% and 52% (respectively) of Jordanian nationals held in administrative detention. All of the latter group believed that their “problem had worsened in prison”.226 The survey also noted that: in administrative detention (...) related to family breakdown and social isolation –[T]he a quarter most saidsignificant their children consequence had been of imprisonment taken away, a for quarter (...) Jordanian that their women family

219 See Dignity above, note 81, p. 63. 220 Equal Rights Trust focus group discussion with International Institute for Women’s Solidarity, 20 January 2016, Amman, Jordan. 221 See Dignity above, note 81, p. 62. 222 Ibid., p. 63. 223

224 EqualSee NCHR Rights above, Trust note interview 14, p. 42. with Lama, 23 January 2016, Amman, Jordan. 225 See Penal Reform International above, note 81, p. 16. 111 226 Ibid., p. 16. 112 EQUAL RIGHTS TRUST 234 233 232 231 230 229 228 227 believed she was wrongfully convicted. Shewas excited when thethree years had served three years inJuweida forcrime relatinga committing to honour.She a numberof other women. This tosense of hopelessness being unable at bereleased was alsoreported by detained withoutreason: existsstill (…) it when you leave.” the fix not would detention problems she experienced problem– “the does not goaway duringdetention that frustration her expressed Lama detention, In addition to explainingof activitiesthe lack that leads to her dwellingon her depressed when shefinally received anupdate: threatened by herbrother,was tounable her family contact became then and protective custody after becoming pregnantoutside of marriageandbeing atively [whendoing anything detainedwithout wrong].” “society hurts her, thelaw hurts her, andthusshe ends up beingimpacted neg freedom and this is difficult for someone who didn’t commit a crime” difficult. detention in time their find they that and depressed feel they that reported custody tive made toments the Trust women about protective in custody.Women inprotec The depression reported by administrative detainees was mirrored in thecom family andcommunity. had brokenand nearly up twentypercent theythat were stigmatisedby their

February 2016,Amman,Jordan. interviewTala, with 28 February Jordan; 2016, Amman, EqualRights Trust interviewRasha, with 28 Jordan; EqualRight Trust interview withAseel,28February 2016, Amman, Jordan; EqualRights Trust 28 Samia, with Februaryinterview 2016, Amman, Jordan; EqualRights TrustTrust interview with Sawsan, 28 February 2016, Amman, Rights Equal Jordan; Amman, 2016, February 28 Hala, with interview Ibid. Ibid. 2016, Amman,Jordan. interview withDr. NahlaAlMomani,4February 2016,Amman,Jordan. Ibid Equal Rights Trust interview withLama,4February 2016, Amman,Jordan. Equal Rights Trust interview withHala,28January2016,Amman,Jordan. Equal Rights Trust interview withButhainaFraihat, 4February 2016,Amman,Jordan. EqualRights Trust focus groupdiscussion International with Institute for Women’s Solidarity,20 January EqualRights Trust interviewLamis Nasser, with Jordan; 30January2016, Amman, EqualRights Trust ., p.15. ; EqualRights Trustinterview 6 FebruaryGhada, with Jordan; 2016, Amman, EqualRights Trust the complaint. Ihadtothe prove complaint. my innocence. I was locked away unjustly. All I kept thinking was I had to disprove Juwieda. tothey me tookso complaintme againsta father filed My am inhere? After my mother diedthere isnothing left. I while someone find I do marry.Howto someone find must I freed be to me tells Governor The work. and Jordan leave to freed, be to wanted I here.locked in been have I while away passed mother My 228 Advocates shared“detention that centres take away your 227 234 Prior to being placedinprotective custody, Ghada 232 She also explained Shealso her frustration being at 233 230 Hala, who entered who Hala, 231 229 andthat - - - Shouting Through the WallsShouting Through movedfinally cameto protective to an end custody and looking because forward no one fromto being her releasedfamily agreed to continue to sponsor her her.life. SheWhen shared she prepared feeling very to leave,depressed the police when officersshe found told out her that that not she only would was she be in Juweida based on a wrongful conviction, but now the law would not allow her to leave after serving her time:

I felt as though I had been sentenced to death because no one wanted me and I had to go back to the injustice [of Juweida] (…) You are forced to sit in a small room, of course it’s bad [being in Juweida].

And of course to make it worse, I’m sitting with other women in that protective custody room. I don’t have a room to myself.235

Ghada was later released through the support of a local organisation. Another detainee at Juweida, Marwa, reported that women are often told that they will be released from protective custody only to be returned again. 236 Dr Al-Mohmani noted that some women reported going on hunger strikes in support of their demands to be released.237

As noted above in Part 5.3.1.4, the length of detention together with its arbitrary and disproportionate nature, mean that protective custody is likely to amount to inhuman treatment, and where the pain and suffering it causes goes beyond the minimum threshold to be severe, it will amount to torture. The conditions of detention noted above, and the impact that detention has on women, further support the conclusion that protective custody will almost always cause mental pain and suffering such that it must be considered inhuman.

Examining the individual stories discussed above of women who were still detained when they spoke with the Trust, demonstrates the extent of mental pain and suffering that women may experience. Samia, detained for three months at the time of her interview explained how one of her male relatives came to Juweida and threatened to kill her and also expressed that she felt hopeless. Similarly, Nawal, detained for 11 months, also had a male family member come to Juweida to threaten to kill her. She expressed her frustration that the Governor insisted she needed a husband to be released, given she had no ability 238 Deema reported she was poorly treated by the other inmates and had heard women being sexually assaulted at night. She had been detainedto find one for in two detention. and a half years when the Trust spoke with her.239 when she spoke to the Trust and spoke of feeling hopeless and depressed Hala reported and that she felt poorly treated by prison staff. She had been detained for five years of her wish to be free. Like Nawal, she too was told that she must find someone 235 Equal Rights Trust interview with Ghada, 6 February 2016, Amman, Jordan. 236 Equal Rights Trust interview with Marwa, 3 February 2016, Amman, Jordan. According to Mizan for Law, Marwa left protective custody in 2014. 237 Equal Rights Trust interview with Dr. Nahla Al Momani, 4 February 2016, Amman, Jordan. 238 See above, Part 5.3.3.4. 113 239 See above, Part 5.3.2. 114 EQUAL RIGHTS TRUST 245 244 243 242 241 240 integrating backinto societybecauseofthesocialstigmaattachedto bebeing difficulties experienced many custody, protective from released being after that although somewomen were successfully ableto carryonwiththeirlives Staff from theJordanian Women’s Union(Itiha’ad AlMaraa) Refuge, explained released when herfamily may notbeinformed ormay beaway. be womanto fora time a waysfind womenorwith the up disguise come toto try support from authorities when awoman was released. They explained thatthey tivecustody despite threats looming from family reported theythat receivenot did Several lawyers who have beenableto assistwomen to bereleased from protec the night because she first has to go to the police station in latebefore released she be can can womango “a home.”difficulties: cause mayprotective custody from released are women which in way the that explained NCHR the of Al-Momani Dr years. Eva Abu Halaweh noted that: women from protective custody,some women including who were heldfor 15 and reintegrateinto themback society. To date, Mizanhasworked to release 57 gramme was to work withauthoritiesto release women from protective custody forMizan Law developedprogramme a Thepurposeofthepro New Start. called job. a and accommodation tofind support families,and vide womenaccess to with vocationaltraining, support to negotiatetheir with are thensupported by NGOstotheir lives. carryonwith Many women are assisted by NGOs to bereleased from protective custody and 5.3.5 tions ofdetention, is suchto amountto inhumantreatment. these women,suffering,and pain theirmental the poorcondi combinedwith Juweida. to marry inorder to leave, andquestioned howshe would from do that within women in protective custody, andhave five, eight, two andsix years experience respectively. 13 Februaryand LenaSalama, 2016, Jordan.Amman, four All lawyers provide legalrepresentation to ary 2016,Amman,Jordan. to remain anonymous) attheJordanian Women’s Union(Itiha’ad AlMaraa) Refuge, 15December2015. Equal Rights Trust focus group discussion with lawyers Majde Azoka, Takreed Al-Maiqara, Haya Al-Abadi Equal Rights Trust interview withDr. NahlaAlMomani,4February 2016,Amman, Jordan. Equal Rights Trust interview withEva Abu Halaweh, 29November 2016,Amman,Jordan. EqualRights Trust focus group discussion with International for Institution Women’s Solidarity, 20 Janu EqualRights Trust focus group discussion with Mukarim Odai andfour other staff members (who chose See above Part 5.3.2. Life After Protective Custody because some women have been held for so long that they do not not do they know whatthat a cell phone is and long do not understand how banks work.so for held been have women some because held was woman a time of length the considers also Mizan selling. providedpsychologicalis with and stayplaceto coun a has she that ensured be must it as time of lot a takes woman one even Releasing 240 Aseel, detained forAseel, three years,reported also feelinghopeless. For all 242 For example,in 2007, 241 Organisations pro 245

243 - 244 - - - - - detained.246 Buthaina Fraihat noted that it is assumed that either the woman the WallsShouting Through was convicted of a criminal offense or that she had done something that is considered culturally unacceptable such as having a sexual relationship outside of marriage.

Society does not allow her to reintegrate easily. For employment when asked about her vocational training and she cites the prison, it is assumed she is a criminal or she was sent to protective custody after offending her family honour (…) The law thinks that it is taking care of the woman. No, it is not. Not when they are put in

with criminals. Instead you present her to society as someone who protective custody committed a crime.247 released from protective custody. Marwa explained that when she was released Marwa’s story illustrates the difficulties that women may have when they are release. She tried unsuccessfully to seek help from the Ministry of Social Devel- after seven years in Juweida she had no family, friends or financial support on- nies and was labelled “crazy”. One day she heard of a Minister visiting a shelter opment. After that she attempted to seek financial support from private compa- 248 and went to share her story. Upon hearing her story, the Minister’s office sup ported her by helping her find housing and a job. 5.4 Conclusions and Recommendations

5.4.1 Conclusions

Jordan is not currently meeting its obligations under international human rights law to combat violence against women. The Jordanian legal framework not only fails to provide for adequate protection for women who have experienced violence but it also contains a number of provisions which condone violence against women. Several provisions of the Penal Code allow for more lenient sentences in relation to certain honour-based crimes. In addition, Arti- cle 308(1) of the Penal Code, which allows the perpetrator of a sexual assault to escape punishment if he marries his victim, is highly discriminatory. The emphasis placed on reconciliation in domestic violence cases pursuant to the Protection Against Family Violence Act, also places pressure on women to rec- oncile with abusive family members.

246 Equal Rights Trust focus group discussion with Mukarim Odai and four other staff members (who chose to remain anonymous) at the Jordanian Women’s Union (Itiha’ad Al Maraa) Refuge, 15 December 2015;

and Lena Salama, 13 February 2016, Amman, Jordan; Equal Rights Trust focus group discussion with InternationalEqual Rights Trust Institution focus groupfor Women’s discussion Solidarity, with lawyers 20 January Majde 2016, Azoka, Amman, Takreed Jordan. Al-Maiqara, Haya Al-Abadi 247 Equal Rights Trust interview with Buthaina Fraihat, 4 February 2016, Amman, Jordan. 115 248 Equal Right Trust interview with Marwa, 3 February 2016, Amman, Jordan. 116 EQUAL RIGHTS TRUST likely topain andsuffering cause mental toamounting and inhuman treatment, due to the arbitrary nature of their detention,protective meansthat custody is feel the ings ofhopelessness depressionand reported by women inprotectivewith custody together detention, of length significant The years. five for tion they spoke to theTrust wasone woman 18 months,with having been indeten of detention inprotective custody of the women who were detained at thetime tinue to be detained for significant periods of time in Jordan. The average length some casesmayto amount torture. Asdiscussed above inPart4.3, women con to ill-treatment inandofitself,givensuffering themental amount it causesandin that to likely also is custody protective case, the of circumstances specific additionIn toJordan’s violating duediligenceobligations, depending onthe are intentional anddiscriminatory. they that in 2 Part in out set as torture of definition the of elements remaining late theprohibition oftorture,of gender-based violence always asacts meetthe Whereill-treatment. thepainandsuffering causedissevere, thestatevio will degradingthe state treatment, therefore will of theprohibitionin violation be of and suffering which meets the minimumthreshold to be considered inhuman or If theviolenceor threat of violence experienced by awoman causesher pain considered to condone violence and thereforethat be involved in theviolence. inanythat, case where awoman is placed inprotective custody, Jordan mustbe toperpetrators punishthe ofsuchviolence.Thisfailure ofduediligencemeans gationsto protectwomen fromby gender-based violence, including steps taking The use of protective custodyalways will amount to a violationof Jordan’s obli perpetrators to actwithimpunity. ishes those who have beensubjected to violenceandthreats, while allowing ship from thevery family memberabusedthem.Protectivethat custody pun women to choose between staying inprotective custody andseekingsponsor securemust family thesponsorship male of a member. Insomecases,thisforces vent honour-basedcrimes; inorder to escapedetention women are told they the riskofgender-based violence. Notonly does protective custody failto pre gender stereotypeslong-termdamage that prospectsincreaseand ofequality deprives women of their liberty andagencycontributes to entrenching protective custody is a clearviolationof international law. Protective custody Placing victims of honour crimes and other forms of gender-based violence into placed inprotective custody atthediscretion oftheGovernor. women request to into beplaced custody for their ownprotection. Othersare struggleof NGOsthat to operateinadequate with Consequently, funding. some domestic violence shelters have beenestablished,supplemented by thework protection andrehabilitationservices offeredJordan. within Only two state-run increasedkillings in2016. Treatymonitoring bodieshaveof criticised the lack signifi of subject the be levelscant ofgender-based is particularlyviolence. It honour concerning that to continue girls and women part, this of outset at the out set As insufficient. clearly are violence gender-based of acts prevent measures to state other framework, legislative the in deficiencies to addition In that women face willalsoexacerbate theirsuffering. in somecases, severe enough toto amount torture. The conditionsofdetention ------5.4.2 Recommendations the WallsShouting Through

In light of the foregoing analysis, this Part offers a series of recommendations to the Jordanian Government and the international community regarding future steps to ensure the rights of victims of gender-based violence in line with international law and best practice. These recommendations, while in some instances who currently, or are considering, placing women in protective custody. The specificrecommendations to the Jordanian are made context, on the are basis also of intended equality to and be non-discrimination, of use to all countries as established under international law and further elaborated through the Decla-

ration of Principles on Equality. protective custody

5.4.2.1 Recommendations to the Jordanian Government

In lighta. Discontinueof the above andfindings prohibit and theconclusion, practice it of is protective recommended custody that with Jordan: immediate effect. Jordan must ensure the adequate provision of housing for women who have experienced gender-based violence. Jordan should adopt further measures to combat honour crimes and other forms of gender-based violence, including gender-sensitive training for members of the judiciary, police and prison staff, counselling centres, free legal

aid. These measures should be guaranteed in law and receive adequately advice, health care (including psychological assistance), and financial for Law, noted that it is essential that Jordan develop programs aimed at financingraising public from awareness the state. soEva that Abu families Halaweh, learn Executive to work Director to address of issuesMizan when they believe their female relatives have behaved in an inappropri- ate way and do not resort to harming them.249

b. Transfer all women currently detained in protective custody at Juweida or the Um Al-Lulu Detention Centre into safe housing. Lawyers and advocates that the Trust spoke with stated that it is imperative that the government recognise its role to establish housing that provides women with safety when threatened with violence but which also allow them to continue living their lives.250

c. Amend its legislation in order to ensure compliance with its international obligations to prevent and punish violence against women and to prohibit discrimination, including:

i. Amend the Crime Prevention Law of 1954 to expressly prohibit the law from being used to detain persons who have been subject to crimes or the threat of crimes.

249

250 Equal Rights Trust interviewfocus group with discussion Eva Abu withHalaweh, Anas 29 Alfuqha, November Mina 2016, Abu SalAmman, and Areej Jordan. Samreen, 13 Feb- ruary 2016, Amman, Jordan; Equal Rights Trust interview with Lamis, 20 January 2016, Amman, Jordan; 117 Equal Rights Trust interview with Dr. Nahla, 4 February 2016, Amman, Jordan. 118 EQUAL RIGHTS TRUST 251

Women’s Solidarity, 20January2016, Amman,Jordan. ruary 2016,Jordan; Amman, EqualRights Trust focus groupdiscussion International with Institute for EqualRights Trust focus groupAbuMina Alfuqha, discussion Anas with Areejand Sal Samreen, 13 Feb to remain anonymous) at theJordanian Women’s Union (Itiha’ad AlMaraa) Refuge, 15 December 2015; e. d. EqualRights Trust focus group discussion with Mukarim Odai andfour other staff members (who chose Jordan shouldensure thatNGOsworking for theprotection ofvictims Commission an independent investigation into conditions ofdetention at ii. funding andtraining. Women’s andothercivil society groups shouldbe gender-based violenceare provided withadequate resources, including inherent dignityasaperson. deprived oftheir liberty are treatedand respect withhumanity for their they are in line with internationalstandards and ensure that individuals Thestate ble. ensure must improvesit that detentionconditions sothat results oftheinvestigation should be publishedandmadefreely availa their mothers and placedinto the care The of the state withoutconsent. children bornoutsideofmarriage areremoved being from the care of care.other health Jordan should investigate theserious allegationthat convictedthe inadequatecrime, and ofa provision ofpsychologicaland failure to separate womenin administrative placed detentionfrom those cover allegations ofviolence,overcrowdingpoor hygiene and standards, women’s correctionalfacilities the state. within Theinvestigationshould iv. iii. RepealArticles 98 and99 of the PenalCode, which allow for more Amend andreplacethe Protection Against Family The Violence Act. Repeal Article308ofthePenal Code which permitsanindividual CEDAW, asinterpreted by theCEDAW Committee in itsGeneralRec internationalstandards practice,best and particular,in including the extended. To thisend,Jordan shouldensure theAct’swith compliance ventative measures contained intheAct should be strengthened and see reconciliationmechanism ofresolution.as a Protective pre and not should and domestic-violence of definition a include should Act criminatory. enter into marriagewithfree andfullconsentisalsohighly dis marry thevictim.Thisprovision violates theright ofawoman to 15 and18to escapepunishmentprovided thatthey subsequently convicted ofconsensual sex withapersonbetween theagesof to benegotiated between thegovernment andthetribeinvolved. cide and notconsidering punishment for such crimes as something expressedwith theimportanceoftreatinghomi honour crimes as of gender-basedviolence.Severalorganisations the Trustthat spoke of Jordan’s internationalobligations to prohibitprosecuteand acts provisions have theeffecthonour crimes, ofsanctioning inviolation or rage, of fit a where theperpetratorcrime isexcused ofa byvictim’s a in family.These committed is crime a where sentencing lenient ommendation No.19onViolenceagainst Women. 251 ------consulted on any prospective changes to the Protection Against Family the WallsShouting Through Violence Act and other laws with a bearing on the right to gender equality.

f. Collect and publicise relevant data on gender-based violence and gender equality more broadly, including any relevant statistical data, in order to identify and to analyse the effectiveness of measures to combat gender-based violence and promote equality. Wherever statistics are collected, they should be disaggregated in order to demonstrate the different experiences of disadvantaged groups within the Jordanian society.

g. Allow for individual communications to be made to treaty bodies, includ- protective custody ing ratifying the Optional Protocol to the Convention on the Elimination of Discrimination against Women. Jordan should also withdraw the declarations it has made to the CEDAW.

5.4.2.2 Recommendations to the International Community

Those bodies tasked with implementing and enforcing international human rights law in relation to gender equality in Jordan, including UN special procedures and treaty monitoring bodies, are urged to:

a. Continue to recommend the total abolition of protective custody and other similar practices, both in Jordan and abroad. In particular, international bodies are urged to explicitly recognise and emphasise that:

i. Protective custody encourages gender-based violence by punishing victims and allowing perpetrators to act with impunity.

ii. States which fail to act with due diligence to prevent, prohibit and prosecute acts of gender-based violence will be held responsible for torture and inhuman or degrading treatment or punishment. In particular, the international community should emphasise that states which aim to protect women from violence by detaining them, with or without their “consent”, fail to exercise due diligence as required by international law.

iii. Protective custody will almost always amount to ill-treatment and in some cases may amount to torture. Treaty monitoring bodies and special procedures should start with the presumption that protective custody is a form of ill-treatment and require states to disprove this allegation.

b. Continue to recommend that Jordan amend its legal framework in line with international standards. In particular, international bodies should recommend the abolition of those laws discussed above which have the effect of discriminating against women and condoning honour-based violence. 119 120 EQUAL RIGHTS TRUST relation to theJordanian government. continue to advocate for the achievement of the recommendations set outin bodies and theJordaniangovernment. is alsorecommended It civilthat society rights human internationalto including monitoring, such of findings widelythe Civil society is urged to work to monitor gender-based violence andto publicise 5.4.2.3 c. Encourage andsupportmeasures designed to combat gender-based vio well asotherpreventative andprotective mechanisms. the establishmentof safe housingfor women experiencing violence,as lence inJordan. Inparticular, suchbodies should continueto recommend Recommendations to CivilSociety - 6. CONCLUSIONS AND RECOMMENDATIONS

6.1 Conclusions Discriminatory torture and ill-treatment is distinct in its character from other forms of torture and ill-treatment. It demands particular attention. To date, at discrimination” remains an underutilised human rights protection as the rela- the international level, it has received insufficient focus. Torture “for reasons of adequate focus on discriminatory impact,tive lack both of awareness to the extent of this that key it ensures element the of correctthe torture categorisation definition ofremains. a particu An- lar act or omission as torture or ill-treatment torture and ill-treatment and because can it can have help a significant to secure an appropriate response to tackling the treatment in question.

Jordan is, undoubtedly, currently in breach of its obligations to ensure people enjoy freedom from torture and other ill-treatment and non-discrimination. Its laws do not provide adequate protection from such treatment. Notably, the law still provides for “protective custody” of women in situations of violence and also still permits the involuntary detention of persons with mental disabilities for a wide range of obscure reasons including the possibility of “moral harm”. The situation for both groups in practice is no better. In fact, in respect of women in “protective custody” our research indicates that, in addition to their incarcer- ation in and of itself, women are in some cases suffering abusive treatment, a immediate action from the government. fear for their safety and living in unsanitary conditions. These findings demand Arguably even more pressing is an urgent response to serious allegations of abuse against children with mental disabilities (and some adults) in institutions and health care settings. Some of these allegations, including that on patient’s arm was broken and another was sexually assaulted, amount to torture. The pain and suffering reported by interviewees was marked and, in some cases, very severe. And yet, to date, inadequate measures have been taken by the state to ensure that torture and ill-treatment ceases and that perpetrators are punished.

6.2 Recommendations In light of the foregoing analysis, the Equal Rights Trust offers a series of recommendations to the government of Jordan and the international community which aim to ensure that the practice of discriminatory torture and other ill-treatment is eradicated and that the broader rights to equality and non-discrimination 121 are fulfilled. As discussed throughout this report, the issues of discrimination 122 EQUAL RIGHTS TRUST tected characteristics intheConstitution isparticularly concerning. Jordan should womenas prodisability and of gender absence the with disabilities, persons and of race, religion andlanguage.Inlight ofthewidespread discrimination faced by nians shallbeequalbefore thelaw, only prohibits discrimination on thegrounds Article 6(1)oftheJordanian Constitution, which containsaguarantee thatJorda be prohibited onthebasisofanextensive andopen-endedlistofcharacteristics. As perPrinciple 5oftheDeclaration ofPrinciples onEquality, discrimination must b. the following specificactions: ing steps to strengthen itsinternationalcommitments. TheTrust recommends Jordanimproveshould itsapproach to protectingpromotingand byequality tak a. 6.2.1 The recommendations are presented below. improve themonitoring andreporting ofdiscriminationare necessary. authorities, of the judiciary measuresand thepublic; theimplementation to ing legislative andpolicyreform; awarenessamong statebuilding and capacity ill-treatmentits formsin all from theexamplesgiven. Aholisticapproach involv drawnthe broaderabout approach todiscriminatory combatting torture and 5 respectively.seeking Without to repeat those here, there are lessons to be disabilities andprotectiveof personsmental ment with custody inParts 4and This report has made recommendations specific to the case studies on the treat of PrinciplesonEquality. rightshuman frameworkunified the on based Declarationthe within contained compliance withinternationaland regional humanrights standards. They are The recommendations which followseek to assistJordanachievingwith full discriminatory elementofacase,isnottaken. in responding ensure to that, isolatedan violations, approach which ignores the internationally,to also but Jordan by just not done be to work further nificant and torture andotherill-treatmentviewedbe cannot There inisolation. issig complies with international standards onequalityand non-discrimination. include abroader range ofcharacteristics in Article6inorder to ensure thatit Standards and Equality Ensure Compliance Jordanian ofthe Constitution withInternational Strengthen International Commitments Related to Torture, Ill-treatment Recommendations to theJordanian Government man rights violationsinthecountry. mechanisms of theUnitedand special Nationsinrelation tohu alleged The governmentshould address concerns raised bytreatythe bodies Jordan shouldallow individual complaints to treaty bodies; tion ofAllForms ofDiscrimination against Women; Jordanshould rescind its reservationsto theConventionon theElimina ------c. Amend the National Legislative Framework to Comply with Interna- the WallsShouting Through tional Standards

In light of the report’s earlier analysis, Jordan should make the following amendments to ensure that its national legal framework is in line with international human rights standards and best practice:

- tary institutionalisation on the basis of mental illness; AmendRepeal Articlelegislative 14(a) provisions of the Public which Health allow Act, for which persons provides with disabilities for involun to

be deprived of their legal capacity and which provide for substituted-de- conclusions and recommendations cision making; Ensure that the proposed new Law on the Rights of Persons with Dis- abilities complies with the provisions of the Convention on the Rights of Persons with Disabilities and provides persons with disabilities with enforceable rights; Amend the Crime Prevention Law of 1954 to expressly prohibit the law from being used to detain persons who have been subject to crimes or the threat of crimes; Repeal Articles 98 and 99 of the Penal Code, which allow for more lenient - petrator of a crime is excused by a victim’s family; Repealsentencing Article where 308 a ofcrime the isPenal committed Code which in a fit permits of rage, an or individualwhere the conper- victed of consensual sex with a person between the ages of 15 and 18 to escape punishment provided that they subsequently marry the victim; Amend and replace the Protection Against Family Violence Act to include

of resolution and extend its protective and preventative measures. a definition of domestic-violence, remove reconciliation as a mechanism d. Implement and Enforce the Existing Legislative Framework

Those who have the responsibility for implementing national laws, including the courts, should ensure that they do so in accordance with the standards established by international and regional law on the rights to equality and non-discrimination and freedom from torture and ill-treatment. In addition, Jordan should ensure that fully and effectively enforce the existing laws which prohibit torture, ill-treatment andsufficient discrimination. financial resources are allocated to enable the responsible authorities to e. Implement Comprehensive Anti-Discrimination Legislation

After consulting with the public and civil society, Jordan is urged to develop comprehensive anti-discrimination legislation in line with international best discrimination which encompasses both direct and indirect discrimination, har- assmentpractice. andSuch failure legislation to make should, reasonable amongst accommodation, other things, provide prohibit a definition discrimina of- tion in all areas of life regulated by law, require the state to take positive measures to ensure equality, prohibit victimisation of persons alleging discrimination and also provide for procedural safeguards, such as allowing for a reversal of the 123 124 EQUAL RIGHTS TRUST regional law andpolicyontherights freedom from torture andill-treatment Those bodiestasked withimplementingandenforcing international and 6.2.2 Theseshouldinclude, butnotbelimited to,ment. thefollowing activities: crimination which may contribute to thepracticeof torture andotherill-treat Jordan shouldadoptawiderange of measures to prohibit andeliminate dis h. torture andotherill-treatment. regional humanrights standards relatingto equality, non-discrimination and ary shouldensurejudges are that given adequate training oninternationaland The Jordanianauthorities responsible for professionaltraining of thejudici g. other ill-treatment are notrepeated. cases andprosecutingpast perpetrators, to ensureincidents oftorture that and employ indirectprevention techniques, suchasinvestigatingdocumenting and causes oftorture includingdiscrimination. should also It andother ill-treatment, frameworkshould employ direct prevention techniques to address theroot possess protected characteristic(s).internationalwith line In practice,best the those at increased risk of discriminatory torture or ill-treatmentbecause they persons of all from torture paying andother ill-treatment, particularregard to Jordan shoulddevelop acomprehensive framework to ensure theprotection f. intersectional grounds. burden ofproof.should recognise It and addressor discrimination on multiple treaty bodies and agencies of the United Nations and the United Nations High Nations United the and Nations United the of agencies and bodies treaty and to equalityandnon-discrimination, includingthe specialprocedures, Ill-Treatment Adopt OtherMeasures to Combat andInequality Discrimination Judicial Training Implement aComprehensive Framework onTorture andOther Recommendations to theInternational Community andCivil Society including fundingandtraining. sons faced with discrimination are provided with adequate resources, Ensurecivil that society organisations workingfor theprotection ofper propriately by theauthorities; against themto report their experiences and have themaddressed ap Creatingprocedures topersons facing enable discrimination and crimes characteristics; criminatory attitudes towards or beliefspersons about with protected tion by developing educationprogrammes which counter prevalentdis Raising awareness public and theimpactof discrimina equality about and by third parties; officials by discrimination prevent to officials, public senior and cutors Training stateombudspersons, authorities,including the police,prose

------Shouting Through the WallsShouting Through against all forms of discriminatory torture and ill-treatment and make recom- mendationsCommissioner to forJordan Human accordingly. Rights, should In particular, both recognise the Trust and recommendstake a firm stance that the following actions are taken:

a. The international community should adopt the phrase “discriminatory torture and ill-treatment” and ensure that it recognises the causative links between discrimination and torture and other ill-treatment in its approach to assessing states’ compliance with their international obligations. By taking this approach, the international community can best

- conclusions and recommendations lations and identify and recommend appropriate targeted action which dealsrecognise with the the specific root problems; nature and extent of the relevant human rights vio b. Treaty bodies reviewing Jordan must seek information on instances of discriminatory torture and other ill-treatment of all persons in Jordan and press for Jordan to prosecute such instances under Article 208 of the Jordanian Penal Code; c. The treaty bodies and special procedures must work together to estab-

based on the standards established in the Convention on the Rights of Personslish unified with standards Disabilities to andprotect the Conventionthe rights of Against persons Torture; with disabilities d. The international community should continue to recommend the total abolition of “protective custody” and institutionalisation of persons with mental disabilities; e. The Special Rapporteur on the rights of persons with disabilities should request to visit Jordan as soon as possible.

In addition, the importance of the role of civil society in ensuring that efforts to exposed to it cannot be understated. In respect of this civil society is urged to: combat discriminatory torture and ill-treatment properly reflect the needs of those f. Adopt the notion of “discriminatory torture and other ill-treatment” set out in this report and (i) explore and expose it in its variety of forms and wherever it takes place; (ii) push for its wider adoption such that violations may be appropriately categorised and tackled. g. Continue to work to monitor violations of the rights of women and per-

such monitoring, including to international human rights bodies and the Jordaniansons with government.disabilities in Jordan and to publicise widely the findings of

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139 You could hear it at night. You could hear the voices and just knew what was happening to them (…) They could complain but everyone was too scared to say anything. Shouting Through the Walls

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