The Covid 19 Response must not Ignore Human Rights
by Suranya Aiyar
This article was originally published on LiveLaw on August 8, 2020 under the title 'Covid 19 and Lockdown of Human Rights'.
The World Health Organisation (WHO) has
insisted on countries adopting a population-wide containment strategy for
Covid-19. In March when countries were deciding on what type of response to
take to the pandemic, the WHO repeatedly said that mitigation measures will not
do. Mitigation being measures to contain the virus within cluster outbreaks, as
we are now doing in many cities in India. The Director General of the WHO,
Tedros Adhanom, repeatedly insisted that there must be an “all-of-society” and
“all-of-government” approach “built around a comprehensive strategy to prevent
infections” with containment as the “central pillar”.
Pixabay, Free Use
But throughout the Covid-saga there has
been a blind spot on the part of public health authorities about the
disproportionate effect of disease containment measures on the poor and
marginalised. The degree of surveillance and police presence to which slums in
Delhi and Mumbai were subjected was much greater than for better off parts of
the city.
In South Africa, videos of brutal police action in poor, black
neighbourhoods surfaced on social media within days of lockdown. People pointed
out how the police would beat up lockdown violators in black neighbourhoods,
while negotiating with people in white ones. Similar discrimination was
observed between police enforcement of lockdown in the poor and mostly black neighbourhoods
on the outskirts of Paris than the posh ones in the heart of the city. In
Africa, as in India, quarantine and other mandatory measures fell harder on the
poor. United Nations Human Rights officials noted that “those who cannot pay
bribes, poor people, are taken to mandatory quarantine centres”. In India, as
in other countries, there were many instances of religious and ethnic minorities
being targeted and stigmatised as “spreaders” of Covid.
Some countries like Bangladesh, and
many in Africa, went to the extremes of deploying their armies to enforce
disease containment measures. In Bangladesh, Human Rights Watch claimed that
civilians, including academics and Opposition party workers, had been arrested
for posting social media messages on Covid-19 that the Bangladeshi Government
called “rumours” and “propaganda”. In South Africa there were many cases of people
being killed by security forces for “backyarding”: where two or three men would
get together to socialise in backyards of their own homes. In Nigeria, by the
middle of April, eighteen people had been killed by armed forces and police in
the enforcement of lockdown. More than the total number of people dead of
Covid-19 in Nigeria by that time. In Kenya, a 13-year old boy was killed by a
bullet fired in the air by the police to impose Covid-19 curfew.
Even while the public was being pushed by
epidemiologists into accepting far-reaching containment measures, some rights
organisations, like UNAIDS, tried to warn the world of its dangers. On March 20th ,
UNAIDS published a document called “Rights in the time of COVID-19” that starts
by picking up on Tedros Adhanom’s repeated exhortation for countries to respond
to the Covid-19 pandemic with “containment as the central pillar”. It says:
“Countries are being requested to take a comprehensive approach…with
containment as the central pillar. However, as in all acute epidemics,
especially where casual person-to-person transmission occurs, there is a need
to ensure that the response is grounded firmly in human rights.” Drawing from
its experience of years fighting AIDS, UNAIDS then sets out step-by-step the
inherent injustice of this approach, predicting with devastating accuracy the
wrongs of each type that came to pass under the reign of WHO-prescribed
Covid-19 containment measures: the propensity of government agencies to
over-react, forgetting the fundamental demand of constitutional law that state
action must be proportionate; the tendency in times of fear and panic for
countries to resort to politically driven, stigmatizing and punitive measures;
the disproportionate effect of disease containment measures on already
vulnerable communities; and the tendency for stigma to be attached to those
contracting the disease.
Similar concerns are raised by the WHO
in a 2007 document called “Ethical considerations in developing a public health
response to pandemic influenza” in which it says that surveillance, isolation,
quarantine and social-distancing measures be undertaken in a way that respects
ethical norms. This document goes on to state that as such measures place a burden
on individual liberties, their use should be “carefully circumscribed” and that
case isolation and quarantine should “be voluntary to the greatest extent
possible” and conducted in safe, habitable and humane conditions. Another WHO
publication from 2016, “Guidance for Managing Ethical Issues in Infectious
Disease Outbreaks” reiterates the immediate risk of discrimination and
heightening of prejudices in an infectious disease outbreak.
These documents also speak of the need to build legal recourse into disease
containment measures.
The current leadership at the WHO failed to give due consideration to
this work, even though some of it was by the WHO itself, while exhorting
countries to take disease containment as the “central pillar” of their Covid
response. In matters of health, surely it should be the person and their care
and dignity that should be the central pillar of any response. This is the
moment for lawyers and judges to step in to foster the development of a human
rights-based code of conduct for state agencies in the implementation of
disease containment measures.
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