Right to life and health and principals of equality and nondiscrimination
By Ioanna Babassika
The right to life and health on a basis of the principles of equality and
non-discrimination as regards gender is, from the legal point of view, based
on all the international instruments we heard about yesterday, as well as on
the Constitutions and domestic legislations of a very vast number of
countries, the whole European continent among them.
Usually, it is not, however, expressed in such terms as equal right to
life and health for both men and women but it is deriving from the
interpretation of a general principle to the right of life and health concerning
every person, every human being.
This absence of an express provision, in a positive manner, allows in
practice a varying degree of discrimination to exist or to persist, together with
discrimination concerning other rights, where similar legal “neutral”
solutions have been given.
We should, of course, at this point, keep in mind that the law is a very
strong instrument for change in a given society, but it is not sufficient. It is
only the beginning of change and it has to be complemented in its
implementation by other means (education, control of implementation,
positive measures and plans etc) in order to produce effective results.
Sometimes, changes need to be made in other provisions which, at first
sight, have nothing to do with the right under discussion, but which, directly
or indirectly, are the cause or lead to violations of this right. This gives
another occasion to see clearly how much interrelated particular rights are.
Allow me to give an example from the international field first.
As you know, the United Nations High Commissioner for Refugees
(UNHCR) assisted by a staff of international civil servants as well as of local
employees and with the help of non-governmental organizations around the
world have the charge to protect and assist refugees.
In carrying out this task, which, in war and other critical circumstances
entails also a very serious risk for their own life and health, this staff has the
duty to plan and implement measures in order to save lives and preserve or,
indeed, ameliorate the health conditions of the assisted persons, the refugees.
A fact that is, perhaps, less widely understood is that about 70 to 80%
of the refugees are women and children. Also, it is considered that ¾ of the
refugee households are headed by women.
The reason for this prevailing situation in the refugee camps is that, in
general, women are less mobile than men, due also to the fact that it is women
who care for the children and the elderly. Therefore, when they do manage to
cross the border they tend to remain near their country of origin. Their
special problems and needs (for example as regards food, as regards health
especially when in reproductive age, their need to be protected from violence,
including sexual violence) need to be assessed and taken into consideration
when planning and implementing protection and assistance programs.
Until about 10 years ago the concept in the basis of such programs was
influenced by a logic of stereotypes as regards the respective roles of men and
women. The result was that food and medical supplies destined to help the
suffering were in many cases ending in the black market, transformed to
alcohol, tobacco as well as weapons and bullets.
There has been an effort for a systematic change starting from
changing some pre-conceived ideas of the planners, including governments,
non-governmental organizations and all other contributors along a new line
of thought. Basic axis of this new line is, on the one hand, to re-direct the
planning and execution of programs including two very important elements:
- the element of participation, that is the beneficiaries taking part in
the assessing of needs, planning and implementation
- the element of linking the assistance given to refugees with
development assistance, so as not to antagonize each other
This extremely brief and, unavoidably, elliptical presentation of the
example of deficiencies and, after all, violations of the refugee women’s right
to life and health persisting on a large scale, where the international
community has the charge and indeed the task to care and provide solutions.
Let us turn to another example , this one on domestic level, inside each
country, namely the problem of domestic violence and how it is dealt with in
law and in practice.
This problem is extremely serious as it is widely spread around the
world and no government or regime or type of society has been able to solve
it until now, even by taking legislative measures.
Societies pretending they have no such problem merely hide their
heads into the sand.
The argument according to which statistical data are very low or not
reliable etc is also part of the problem, in the sense that the vast majority of
battered women (and children, should we forget) do not denounce their
aggressor to the authorities for various reasons, such as the hope he will
change his attitude, or the fear of loosing face, or the attitude they have to face
by the police and, also, that they do not have a solution, a shelter, a refuge,
after taking that step.
So, they suffer silently while a situation putting their health, even their
life, at risk is continuing.
Studies carried out around the world point at the various aspects of the
problem, taking into account local conditions, cultural, socio-economic and
other factors as well as institutional and legal.
Certain remarkable findings are universal, such as:
- the age as well as the educational level and socio-economic
conditions both of the aggressor and of the victim are of no
particular significance. This came as a surprise, as one would have
hoped that education would have an influence on human nature
and the deep roots and causes of violence.
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The overwhelming majority of cases is not reported to the
authorities and, when hospital treatment is needed, false statements
are given about the cause and conditions of the “accident”.
- Usually, neighbors, relatives and friends are aware of the problem
but nobody raises the question.
- The authorities, police, social services, hospital staff are not trained
how to detect the signs and how to receive the victims, in order not
to add more aggravation to the pain, physical and mental - they
already suffered
- No structures proper to receive and protect the victims until they
can recover and take their life in their hands exist, either at all or
not in sufficient number
These main deficiencies of the state structures as well as of the social
awareness lead to the most serious violations of the right to life and the right
to health and, in reality, cancel and annihilate whatever legal provisions exist
in each country in order to fight such violations.
Over the last 10-15 years there appeared in a more and more alarming
way an old phenomenon but under a new form. I am referring to the
trafficking of human beings, which is right now the most lucrative illegal
activity, apparently even more than drugs trafficking or illegal arms.
Again the vast majority of the victims are women and children who are
literally sold in order to be exploited either as manual workers or in
prostitutions activities.
The traffickers, criminal gangs with transnational connections, took
advantage of all new technological findings, such as mobile telephones etc
very quickly, faster than the authorities. The new possibilities of traveling
and communicating around the world were put to the profit of these criminal
organizations. At some point, states became conscious of the fact that only
through international cooperation it would be possible to countervene this
new emergency.
On European level the problem has been and continues to be very
serious and solutions that would eradicate it have not been found yet.
In the course of the last 5-6 years, though, we had a proliferation of
legal provisions both on national level and on European level. It is interesting
to observe the kind and quality as well as the spectrum of these provisions
and to compare with their possible effects.
At the beginning the main logic of these legal rules was a logic of
policing. This rather mechanical process – arresting the victims who
happened to be illegal residents, expel them, in this way loose the evidence
against the perpetrators and, possibly, see again the same victims in the same
or another country, has led to change in policy that have at last begun to take
into account the needs of the victims. So, according to the previous model of
establishing shelter homes for victims of domestic violence, new or expanded
shelters had to be opened in order to protect the victims of trafficking and
forced prostitution. In the course of this new way of planning, it also became
apparent that the state authorities would have to cooperate with non-
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governmental organizations, in order to carry out this task in practice, in
order to re-educate their personnel, in order to raise awareness in the society.
An important part of the work done in these shelters is relevant to the
medical and psychological care of the victims, who have been subjected to
extremely serious violations of their basic rights including the right to health.
Another very significant part of the new policy is that the victim will
be given legal residence and help to find work, in order to cooperate with the
authorities and pursue the perpetrators in judicial proceedings. Another
element is that, if the victims wish to return to their country of origin,
transnational cooperation has started in order to allow them return under
secure conditions, shelter and professional training so as to escape falling
again into the nets of the traffickers.
It is rather early to proceed to an assessment of the results of this new
policy, which, on the other hand, in some European countries is more
developed than in others. Therefore, we do not have yet equal measures to
compare, nor equal data. In my own country, Greece, to give an example,
such programs started being set up only during the last 1-2 years, after heavy
criticism both inside and outside the country. The first 2 shelters are in
operation in Athens and Thessaloniki, legal counseling has been secured by
agreement of cooperation between the State and the Bar Association of
Athens and we eagerly wait to see how this formula will work.
In conclusion and since brevity in one of the virtues of speach, I would
like to draw your attention to the fact that this intervention does not seek to
exhaustively elaborate the subject in discussion but only to trigger a hopefully
rich discussion and exchange of ideas that would make us all benefit from this
dialogue.
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September, 2004
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