The article, titled ‘Using Human Rights Law to Inform States’ Decisions to Deploy AI’ argues that states are investing heavily in artificial intelligence (AI) technology and are actively incorporating AI tools across the full spectrum of their decision-making processes. However, AI tools are currently deployed without a full understanding of their impact on individuals or society, and in the absence of effective domestic or international regulatory frameworks.
Although this haste to deploy is understandable given AI’s significant potential, it is unsatisfactory. The inappropriate deployment of AI technologies risks litigation, public backlash, and harm to human rights. In turn, this is likely to delay or frustrate beneficial AI deployments.
This essay suggests that human rights law offers a solution. It provides an organizing framework that states should draw on to guide their decisions to deploy AI (or not), and can facilitate the clear and transparent justification of those decisions.
Trigger warning: this report contains a description of sexual violence.
In the midst of the coronavirus crisis, the Inter-American Court of Human Rights (IACtHR) has issued a landmark judgment in the case of Azul Rojas Marín and Another v. Peru, enhancing the rights of LGBTI persons, and setting new standards with the potential to reduce the levels of violence suffered by this group both within and beyond the Americas. Through this case the IACtHR has developed the concept of “violence motivated by prejudice”; it concluded that discrimination based on sexual orientation can lead to arbitrary detentions of LGBTI people; it has developed its understanding of discriminatory torture; and it has set specific due diligence standards to ensure the effective investigation of these cases. The Court has ordered Peru to provide reparations to Azul including the implementation of important guarantees of non-repetition.
The case of Azul is not an isolated decision to protect LGBTI rights in the Inter-American System. Both the Inter-American Commission (IACHR) and IACtHR have been at the forefront of the protection of LGBTI rights, as illustrated by the Court’s controversial but significant Advisory Opinion 24/17 on Gender identity, and equality and non-discrimination with regard to same-sex couples, and cases such as Atala Riffo and daughters v. Chile and Duque v. Colombia. However, the Azul case goes a step further and complements other key European Court of Human Rights (ECtHR) cases such as M.C and A.C v. Romania and Identoba and others v. Georgia where the ECtHR found violations of the prohibition of torture and inhuman or degrading treatment and discrimination in relation to applicants who participated in peaceful LGBTI demonstrations, considering the States’ failure to protect demonstrators from homophobic violence and the lack of effective investigations.
What happened to Azul?
Azul Rojas Marín is a transgender woman, who at the time of the events self-identified as a gay man. She was detained late at night on 25 February 2008 by members of the Peruvian police when she was walking home. Some of the officers knew who Azul was. They insulted her and made derogatory remarks about her sexual orientation. She was forcibly taken to a police station and kept there for almost six hours, although her detention was not officially registered. During her detention, Azul was stripped naked, beaten repeatedly, and anally raped with a police baton. The insults and derogatory remarks about her sexual orientation continued throughout. She was released early the next day.
Azul reported the crime to the authorities, but they did not believe her and did not investigate properly. Different members of the justice system revictimized Azul. During the reconstruction of the crime scene, Azul was forced to face her perpetrators while they made fun of her. The prosecutor was present during her medical examination, without Azul’s consent, and kept making comments to influence the findings of the doctor. Azul’s complaint was eventually dismissed. To date, no one has been held to account or punished for what happened.
The litigation of the case
In this context REDRESS, the Coordinadora Nacional de Derechos Humanos (CNDH) and Promsex, joined efforts and filed a complaint before the IACHR in April 2009. Peru challenged the admissibility of the case, and presented various arguments to the Court on the merits.
The case was decided on the merits through the IACHR’s report 24/18. Given that Peru did not comply with the recommendations made by the IACHR, the case was referred to the Court in August 2018. The Commission noted this would be the first case before the IACtHR dealing with violence against LGBTI persons. The Court held a hearing in August 2019, and decided the case in March 2020, making significant findings of facts and law.
The arbitrary detention of LGBTI persons can be inferred when there are signs of discrimination and no other apparent reason for the detention
Peru argued that the detention of Azul took place in order to carry out an identity check as she did not have her ID with her (124). Peru disputed the length of the detention. However, the Court found that the detention was not carried out in accordance with domestic law, that one of the officers who detained Azul knew who she was, and that derogatory comments about her sexual orientation were made. The Court, following the views of the UN Working Group on arbitrary detention and those of the expert Maria Mercedes Gómez, considered that the lack of a legal basis for Azul’s detention and the existence of discriminatory elements together inferred that she was detained based on her sexual orientation (128), which automatically rendered the arrest arbitrary. The development of this standard could be crucial to combat arbitrary arrests of LGBTI people around the world for reasons based on a person’s sexual orientation or gender identity, including in the context of COVID-19.
The purposive element of the definition of torture incorporates discrimination based on sexual orientation and gender identity
Peru alleged that it was not proven that sexual violence took place, because the domestic courts were unable to establish it due to the lack of direct evidence of the crime (138 and pleadings before the IACHR). It also argued that torture did not take place because two elements of the crime were missing: the intent and the purpose.
The IACtHR concluded Azul was anally raped while in detention. In contrast to the domestic courts’ approach, the IACtHR reached this conclusion by assessing various pieces of evidence, including Azul’s statements, medical examinations and the forensic analysis of the clothes she wore at the time of the events (157). The IACtHR considered that what happened amounted to torture as the intentionality, severity and purposive elements were met. Further, the Court expanded the list of specific purposes by which sexual violence can constitute torture, to include the motive of discrimination based on the sexual orientation or gender identity of the victim. Following the expert opinions of Juan Méndez and Maria Mercedes Gómez, the Court found that sexual violence that involves anal rape, especially when carried out with a tool of authority such as a police baton, all while derogatory remarks were made, shows that the specific motive of the crime was to discriminate against Azul (163).
The Court went further to label it as a hate crime given that it was the result of prejudice (165), and stated that the crime not only breached Azul’s rights but also the freedom and dignity of the whole LGBTI community (165). This finding constitutes a major development under international law as this is the first case decided by an international tribunal to conclude that torture can take place with the specific purpose of discriminating against a person because of sexual orientation or gender identity.
States have a duty to investigate violence motivated by discrimination against members of the LGBTI community
Peru argued that as soon as it learned about Azul’s allegations, it opened an investigation that was carried out with due diligence (172), although this was disputed by Azul’s legal representatives. Given the prevailing levels of impunity for such crimes in the Americas the IACtHR made a careful assessment of the facts in this regard.
The IACtHR reiterated its case law regarding due diligence in cases of sexual violence, but extended their application to violence against LGBTI persons, adding new dimensions to its existing standards. Notably, the Court found that when investigating violence States have a duty to take all necessary steps to clarify if it was motivated by prejudice and discrimination (196). The Court said that this implies that the State should collect all the required evidence, provide full reasons for its decisions and decide in an impartial and objective manner. The authorities should not ignore any facts that could establish that the violence was motivated by discrimination (196). In the case of Azul, the authorities never considered discrimination and did not pursue this line of investigation. This finding by the Court demonstrates its ongoing dialogue with the ECtHR, as it took note of Identoba (67) (which set a similar precedent but in relation to ill-treatment). However, in contrast to the ECtHR, the IACtHR does not make any reference to the difficulty of the task or the fact that it is, in the views of the ECtHR, “an obligation of best endeavours, and is not absolute”.
The Court also noted that investigations should avoid the use of stereotypes. In this case, local prosecutors undermined the declaration of Azul by stating, “but if you are gay, how am I going to believe you?” (200), and by inquiring about her past sex-life. The Court noted that such stereotypical lines of inquiry should not be used in cases of sexual violence, including when that violence is committed against members of the LGBTI community (202). This is another important contribution of the Court to the protection of LGBTI people under international law, which does not exist under ECHR jurisprudence.
The IACtHR tackles structural discrimination through reparations
The IACtHR ordered very holistic forms of reparation for both individual as well as societal harm. From an individual perspective, the Court recognised Azul and her mother as victims in the case and awarded them compensation for pecuniary and non-pecuniary damage. The Court also ordered that there should be a public ceremony, where senior government figures recognise the State’s international responsibility (232-234). It also required the State to provide rehabilitation to Azul for physical and psychological harm, including access to medicines and transport expenses necessary to undergo treatment (236).
But what is most remarkable about this judgment, and which Peru challenged during the litigation, are the measures requested by Azul and awarded by the Court to address structural discrimination as a cause of hate crimes. The Court ordered Peru to adopt a protocol for the effective criminal investigation of violence against members of the LGBTI community. The protocol shall be binding under domestic law, instruct State representatives to abstain from applying stereotypes (242), and include due diligence standards developed by the Court in the judgement (243). The Court instructed the State to provide training to members of the justice system and the police on LGBTI rights and due diligence investigations. Additionally, Peru must implement a data collection system to officially register all cases of violence against members of the LGBTI community, including disaggregated information (252).
Finally, the Court ordered Peru to eliminate from its local/regional security plans the reference to ‘eliminate homosexuals and transvestites’ since this exacerbates discrimination against members of the LGBTI community (255).
So far Peru has not commented publicly on the judgment, and it is expected that it will act in good faith and implement the judgment in full.
Conclusion
The case of Azul Rojas Marin enhances the protection of LGBTI persons from violence and discrimination.
This decision is also a wake-up call for States, at a time when some governments in the region, including Peru and Panama, are responding to COVID-19 by adopting a gender-based alternating lock-down schedule restricting essential business such as grocery shopping. These new measures take into account only the sex that appears in identity documents, and such a simplistic method has generated a negative reaction from the LGBTI community. Hopefully, the Inter-American decision in Azul’s case will remind authorities that even emergency responses should not lead to discrimination, especially when the particular vulnerabilities of the LGBTI community require a more sensitive approach.
The authors of this blog have been representing Azul in the litigation before the Inter-American System on behalf of REDRESS.
Dr Patricia Palacios Zuloaga, Lecturer in International Human Rights Law at the University of Essex, published a new paper titled ‘Inter-American Human Rights: The Riddle of Compliance with the Inter-American Court of Human Rights’.
The article argues that the use of compliance studies to evaluate the effectiveness of international human rights courts can produce misleading results because a focus on compliance considers the behaviour of only one stakeholder in the dynamic that is human rights adjudication: the state.
A survey of petitioners in cases before the Inter-American Court of Human Rights (‘the Inter-American Court’), together with a review of literature surrounding strategic litigation before the Inter-American System, demonstrate how civil society organisations value the declarative justice provided by the Court, how they mobilise around human rights litigation and how adept they are at deploying rulings in such a way as to produce impact beyond compliance and even in the absence of any compliance at all.
The article is published in Volume 42, Issue 2 (pp. 392-433) of the Human Rights Quarterly, a journal which is widely recognised as the leader in the field of human rights.
There has been much discussion about the importance of frames on our understanding of the COVID-19 pandemic and its impact on the existing legal, political and economic order. A number of interventions have already called attention to the possibilities and perils that come with mobilising different legal frameworks and institutions to respond to the pandemic, notably human rights, public health, migration, and investment protection regimes. In this piece I will focus on the temptation to frame COVID-19 as an international peace and security issue. While I share the concerns expressed by other commentators about the ‘securitisation’ of the pandemic (see here, here and here), my aim is to contribute to this discussion from a slightly different angle. Using the concept of structural violence, I intend to shed light on the socio-economic-ecologic violence that pre-exist and persist beyond the ‘crisis’ and that the ‘war’ narrative conceals.
In ‘Why it matters how we frame the environment’, cognitive linguist and philosopher George Lakoff explains what ‘framing’ is and its importance for how we think about global problems, in the specific case ecological concerns. All our knowledge involves unconscious structures called ‘frames’, while every word is defined through the frames it activates. Lakoff claims that ‘[i]n order to communicate a complex fact or truth, one must choose one’s word carefully to activate the right frames so that the truth can be understood’. In other words, one has to provide a narrative that builds up an appropriate system frame in the audience’s mind.
To give an example, Lakoff refers to a quote from a 2003 language advisory to the Bush administration:
It’s time for us to start talking about ‘‘climate change’’ instead of global warming […] ‘‘Climate change’’ is less frightening than ‘‘global warming’’ […] Stringent environmental regulations hit the most vulnerable among us – the elderly, the poor and those on fixed incomes the hardest […]. Job losses […] greater costs […] American corporations and industry can meet any challenge, we produce the majority of the world’s food, […] yet we produce a fraction of the world’s pollution.
As put by Lakoff, the idea behind the memo was that ‘climate’ had a nicer meaning, while ‘change’ left out any human cause of the change. Obviously, we know that this is scientifically untrue. The point is that the choice of words matters as it builds frames that inform our understanding of a problem and, consequently, the way we decide to deal with it. In sum, Lakoff tells us that, while we cannot avoid framing, the question of ‘whose frames are being activated – and hence strengthened – in the brains of the public’ is a crucial one.
The securitisation of COVID-19
As put by Arundhati Roy, ‘the mandarin who are managing this pandemic are fond of speaking of war. They don’t even use war as a metaphor, they use it literally’. Indeed, Donald Trump declared himself a ‘wartime president’ and proclaimed ‘We will win this war‘; Boris Johnson announced that ‘We must act like any wartime government‘; and Emmanuel Macron said ‘We are in a war’ in which ‘nothing should divert us’ from fighting an ‘invisible enemy’.
International organisations and policy makers have followed up and marked COVID-19 as a security issue. The UN Secretary General has called the coronavirus pandemic the ‘fight of a generation’ and a significant threat to the maintenance of international peace and security. Antonio Guterres warned the UN Security Council (UNSC) that the pandemic had the potential to increase social unrest and violence, which would greatly undermine the world’s ability to fight the disease. He said that UNSC involvement would be ‘critical to mitigate the peace and security implications’ and ‘a signal of unity and resolve from the council would count for a lot at this anxious time’.
For some commentators, framing COVID-19 as a ‘threat to the peace’, to use the language of Article 39 of the UN Charter, seems a natural development. The precedent invoked is UNSC response to the Ebola crisis in West Africa, which Resolution 2177 (2014) characterised as a ‘threat to international peace and security’. As such, they conclude that there is an arguable case for the Security Council to act also in response to COVID-19.
Other legal scholars have forcefully argued that the militarised language is neither accurate nor helpful for the situation we are facing. Christine Schwobel-Patel observes that ‘[a]lthough the enemy is invisible, war talk nevertheless creates the spectre of an enemy. And, because war is associated with the ‘other’, war talk has the tendency to create and build on ethno-nationalist sentiment’. For Ntina Tzouvala the ‘war’ narrative has the potential of expanding executive power, increasing tensions between states and enable measures that are counter-productive and socially destructive. She also reminds us that the securitisation of COVID-19 is not exceptional but in line with recent developments in international law.
Indeed, in the last couple of decades the UNSC has been expanding its ‘primary responsibility for the maintenance of international peace and security’ (ex Article 24 of UN Charter), by affirming its jurisdiction over a variety of issues, such as human rights violations, humanitarian disasters, organised crime, and infectious diseases. A recent example is climate change, which has been qualified in a 2009 UN Report as a ‘threat multiplier’ that may exacerbate threats caused by poverty, weak institutions, mismanagement of natural resources, and ethnic clashes. In 2007 and 2011 the UNSC hosted a thematic debates on the implications of climate change for international security, thereby asserting a link between anthropogenic climate change and increased rate of violence.
A more neglected question raised by the ‘securitisation’ of the pandemic concerns the nature of the threat posed and to whom. Like in the case of climate change and other global issues, much has to do with the concepts we use. To be clear, I agree that by securitising COVID-19 governments may use it as means to legitimise emergency powers, increased surveillance and monitoring, and even militarised responses. But can we say that the language of violence is entirely inaccurate to describe the present situation? Hardly so. Yet, rather than looking at the violence allegedly ‘caused’ by COVID-19, as in the securitisation narrative, I argue that we should focus on the structural violence of the pandemic.
Understanding the pandemic via structural violence
Writing in 1969, Johan Galtung called attention to pervasive forms of violence that are ‘built into the structure’ and that manifest themselves as inequality of power, resources and life chances. In a passage which seems to speak to the current situation, he claims that ‘if a person died from tuberculosis in the eighteen century, it would be hard to conceive this as violence since it might have been quite unavoidable, but if he dies from it today, despite all the medical resources in the world, then violence is present according to our definition’. Anthropologist and medical doctoral Paul Farmer built upon Galtung’s concept of structural violence to study the tuberculosis and HIV epidemics that killed millions of people in Haiti. He found that historical political economic domination and inequalities created a society that is ravaged by these diseases, which could be avoided or at least made less severe.
While the war metaphor and the language of ‘crisis’ distracts us from the ‘politics of everyday life’, to use Hilary Charlesworth’s words, by attending to the structural violence of the pandemic we are able to see forms of violence that pre-exist and persist far beyond the emergency. As Lutz Oette put it, COVID-19 sheds light on ‘systemic institutional shortcomings and the realities of precarious lives’: weak public health systems, overcrowded prisons and immigration detention facilities are breeding grounds for infections. The securitisation of the pandemic disguises these structural issues that result in the pandemic being effectively out of control in many countries with the most vulnerable and disenfranchised being hit the worst.
As pointed out by international economic law scholars, COVID-19 is revealing how the globalised economy based on profit accumulation and consumerism, sustained by legal norms and institutions, is deepening existing inequalities between the Global North and Global South, as well as within countries in the North. In South East Asia, the virus is exposing the weak social protection for urban poor, especially migrant workers, while for many African people working in the informal sector social distancing is a privilege they cannot afford.
Do we have a legal vocabulary to account for this violence? One of the merits of Galtung’s concept of structural violence is that it opens up the category beyond visible, direct and immediate infliction of harm to include social evils. If we think about COVID-19 in these terms, one important insight for international lawyers is that this violence (contrary to ‘personal’ violence) does not presuppose an intentional agent as perpetrator. This raises a number of challenges for a legal system built around the notions of agency, attribution, control, and causation.
The interrelation of economy and ecology
COVID-19 is an animal-borne disease which, according to the most diffused (yet controversial) reconstruction, was transmitted to a human by an animal kept in a wet market of Wuhan. The narrative framing the virus as the ‘enemy’ or a threat to international peace and security is based upon an artificial separation between humans and nature. On the contrary, the rise in zoonotic diseases (like COVID-19) shows the profound interconnection between human wellbeing and the way we treat other living beings and entire ecosystems. Moreover, by defining the virus as something ‘external’ to our society, we turn a blind eye to the centrality of nature in the existing economic system. As observed by Ntina Tzouvala, the virus is not the product of Chinese under-development, but of the country’s rapid development and incorporation into a globalised economy. The disruption of forests caused by rapid urbanisation and intensive animal farming have brought people in closer contact with wildlife.
Rather than pointing the finger at wet markets, we should look at how unsustainable development practices, often facilitated by international legal norms conceptualising nature as property or resource to be exploited, resulted in increased habitat and biodiversity loss. This is particularly important from a prevention perspective, as ecologists tell us that shrinking natural habitats and changing behaviour may create the conditions for new disease like COVID-19 to arise in future.
In conclusion, I suggest going back to Lakoff’s article. His words are a sad reminder of the difficulty of changing dominant frames, but also of the importance of developing new ones:
The environment frame sees the environment as separate from and around us. Yet, we are not separate from Nature. We are an inseparable part of Nature. Yet, we separate self from other and conceptualise Nature as other. This separation is so deep in our conceptual system that we cannot simply wipe it from out brain. It is a terribly false frame that will not go away.
[…]
The economic and ecological meltdown have the same cause, namely, unregulated free market with the idea that greed is good and that the natural world is a resource for short-term private enrichment. The result has been deadly: toxic assets and toxic atmosphere. [….] Global causes are systemic, not local. Global risk is systemic, not local. The localisation of causation and risk is what has brought about our twin disasters. We have to think in global, systemic terms, and we don’t do so naturally. Here hypocognition is tragic. We lack the frames we need.
An Essex lawyer has helped win a landmark judgment at the Inter-American Court of Human Rights, supporting the human rights of LGBTI people across the continent.
Trigger warning: this report contains a description of sexual violence.
Professor Clara Sandoval, from the School of Law and Human Rights Centre, has been litigating for over ten years on behalf of Azul Rojas Marín, a transgender woman, who was beaten, stripped naked and subjected to torture and rape by Peruvian police in February 2008.
Rojas Marín (who at that time self-identified as a gay man and now self-identifies as a woman) was arrested arbitrarily. Throughout the process, the police officers made derogatory remarks about her sexual orientation.
The Court found Peru responsible for the violation of a range of rights in relation to Rojas Marín, in breach of its obligations to respect and ensure those rights without discrimination. Peru was also found responsible for the violation of the right to personal integrity of Rojas Marín’s mother, who died in 2017.
On learning of the ruling, Azul Rojas Marín said:
I am very grateful to all the people who have made this possible. I have no words to describe how I feel. I thank God above all. After all that I have been through, finally a court believes me. I only wish I could have been able to share this joy with my mother, who was always alongside me in my efforts to report the crime and find justice.
In its ruling, the IACtHR determined that the State of Peru did not act with due diligence in its investigation of the sexual torture of Rojas Marín and its violation of the rights to judicial guarantees and judicial protection. The Court found that the process was riddled with discriminatory stereotypes and the Peruvian authorities should have investigated whether there were reasonable indications that the violence had been motivated by discrimination.
The Court ordered Peru to adopt a series of measures to redress the damage to Azul Rojas Marín and prevent these crimes from being repeated. They reaffirmed that a person’s sexual orientation, gender identity or gender expression are categories protected by the Inter-American Convention on Human Rights.
Professor Sandoval, whose recent work includes focusing on reparations for gender-based violence, said:
This is a landmark judgment where the Court develops, for the first time, the concept of torture as a result of discrimination because of sexual orientation, and where the tribunal tries to address some of the structural causes of these violations, including discrimination, by ordering Peru to implement significant reparation measures to prevent recurrence of the violations. This judgment paves the way in fundamental ways for the future protection of members of the LGBTI community in the Americas and around the world.
Rojas Marín brought her case before the Inter-American System of Human Rights with the legal assistance of the Center for the Promotion and Defense of Sexual and Reproductive Rights (Promsex), the National Coordinator of Human Rights (CNDDHH) and REDRESS, an international organisation that fights against torture. Professor Sandoval has been part of the REDRESS team litigating the case.
Jorge Bracamonte, Executive Secretary of the CNDDHH, said:
This ruling represents a historic opportunity for the Peruvian State to eradicate systematic violence against LGTBI people from its institutional practices and is a precedent of great importance for the protection of LGTBI people throughout the region.
Lorna McGregor, Professor of International Human Rights Law and PI & Director of the ESRC Human Rights, Big Data and Technology Project at the University of Essex
The Covid-19 pandemic engages the full spectrum of states’ human rights obligations. In addressing the virus itself, states are required to protect the rights to life and the highest attainable standard of health (right to health) and ensure that no-one suffers discrimination in access to and the nature of healthcare. States’ (in)action in meeting their obligations to fulfil the rights to health and life has direct consequences for the enjoyment of all human rights, including the rights to liberty and security, education, food, work, housing, privacy and freedom of movement, association and expression. States therefore have to take proactive measures to prevent the spread of Covid-19 in order to protect life and health. However, as human rights are indivisible and inalienable, they must only do so in ways that do not violate absolute rights, such as the prohibition of torture, and only limit other rights in ways that are lawful, necessary and proportionate.
In this blog, I examine the role of contact-tracing apps as central to many states’ strategies to track the spread of Covid-19 and end ‘lockdown’, which would alleviate the pressure on many other human rights. Some contact-tracing apps have already been rolled out, such as Singapore’s TraceTogether app and others are under development, including in the UK and France. Many concerns have been expressed about the use of contact-tracing apps due to the significant risks they pose to human rights and their potential contribution to a dramatic new era of surveillance. Given these risks, I argue that states need to be able to answer three questions, if they are to consider introducing – or continuing – with their use of contact-tracing apps. These questions are:
Is there scientific justification for the use of contact tracing apps as a means to fulfil states’ obligations to protect the rights to health and life?
If there is, does the design and deployment of contact tracing-apps meet the tests of legality, necessity and proportionality?
Has the state put in place measures to prevent harm to human rights in the future, by preventing mission creep and the normalisation of contact-tracing apps?
1. Is there scientific justification for the use of contact tracing apps as a means to fulfil states’ obligations to protect the rights to health and life?
Contact-tracing apps may be seen as a means to fulfil states’ positive obligations to protect the rights to health and life. However, it is not enough for states to simply assert that the apps are aimed at protecting the rights to life and health; rather they must be ‘scientifically justified’. Contact-tracing is a common technique in public health surveillance. It is used to identify people who may have been in contact with someone diagnosed with a virus in order to provide them with information about prevention and treatment. At this stage in the Covid-19 pandemic, contact-tracing by humans is considered to have many limitations due to the labour required, limited available testing and the spread of the virus. While presented as an alternative to human contact-tracing, it is unclear whether contact-tracing apps are capable of fulfilling this role, particularly in the absence of widespread testing. This has led to some commentators asking whether contact-tracing apps are just another example of techno-solutionism or as Ross Anderson has suggested, ‘do-something-itis’.
A number of commentators, including Anderson, the Ada Lovelace Institute and Privacy International, point out that if voluntary, there is likely to be a low-level of buy-in (in Singapore, reports suggest only 17% of the population use the app although Oxford researchers predict a much higher rate in the UK and argue that while a 60% take-up would work best, a lower rate of engagement could still contribute to a reduction in cases). With both voluntary and mandatory contact-tracing apps, the risk of denial of service attacks and abuse are high as is the likelihood of failing to report symptoms or diagnosis or reporting false information. This risk increases if adverse consequences attach to self-reporting, such as extended lockdown, inability to work or access public spaces. These observations suggest that contact-tracing apps are unlikely to have general scientific justification and thus require states to make a clear scientific case for how, and, in what way, the specific contact-tracing app being proposed could contribute to protecting the rights to health and life.
In protecting the rights to health and life, it is also critical that states do not overly focus on one particular solution, such as contact-tracing apps, as the fulfilment of these obligations requires complex and multi-layered strategies and resource. Lisa Forman argues that the failure of many states to act quickly to address Covid-19 through ‘wide-spread testing, contact tracing, and more adequately preparing health care settings for COVID-19 patients’ has meant that ‘[h]ealth care systems throughout Europe and North America are already struggling to mount adequate public health and clinic responses, with facilities overwhelmed, basic testing and protective gear in short support, and care triaged to those with the best chance of survival’. Javier Ruiz also argues that ‘access to testing, treatment and vaccines once they appear’ should be the ‘real priority’. Even if contact-tracing apps present part of the solution, as Anderson notes ‘[w]e must not give policymakers the false hope that techno-magic might let them avoid the hard choices’ of resource allocation to public health.
2. If there is scientific justification, does the design and deployment of contact tracing-apps meet the tests of legality, necessity and proportionality?
If states are able to make the scientific case that contact-tracing apps, on their own or in combination with other measures, can contribute to protecting the rights to life and health, the question then becomes whether the use of such technology impacts other rights and if so, whether the limitations are lawful, necessary and proportionality.
a. The Impact of Contact-Tracing Apps on Human Rights
Contact tracing apps take different forms; as does the nature of their implementation. All forms impact human rights in some way, although varied in scale and extent.
Yuval Noah Harari has warned that resort to surveillance technologies, such as contact tracing apps, in response to the Covid-19 pandemic constitutes ‘an important watershed in the history of surveillance … signif[ying] a dramatic transition from “over the skin” to “under the skin” surveillance’. The concern is not only that contact-tracing apps could introduce an unprecedented level of surveillance during the pandemic, but that through mission creep and normalisation, we may not be able to ‘go back to normal’ and could see such technologies being deployed in other areas of life, during and after the pandemic.
These risks are particularly acute where contact-tracing apps are mandatory. This not only facilitates wide-scale surveillance but also puts people who do not own smart phones at risk of punishment, the drawing of adverse and discriminatory inferences, and unequal access to health information. Even if ostensibly voluntary, the use of contact-tracing apps could become de facto mandatory for some people, if access to work or public spaces and services is conditioned upon use of the app.
The way the app functions also has significant implications for human rights. If the app means that a person is placed under constant surveillance, this could potentially be interpreted as a restriction on freedom of movement and even, a de facto form of deprivation of liberty. They also pose significant implications for other human rights, including privacy, particularly if they reveal location data and other identifiable information; data are held centrally rather than localised on a person’s phone; data are retained rather than deleted beyond the isolation period; and are deployed by or are accessible to private companies and law enforcement or intelligence agencies (whether by design or by governments compelling health authorities to share data) with the risk that the data and technologies are repurposed, now or in the future. As discussed below, many of these issues can be overcome in the design of the apps and the legal framework put in place to oversee their use. However, it is never possible to fully remove the risks to privacy, even where data are anonymised, and the risk of mission creep and normalisation of such technology will remain high.
b. Legality, Necessity and Proportionality
As noted at the outset, international human rights law recognises that certain rights can be limited, like the right to privacy. The 1984 Siracusa Principles foresee response ‘to a pressing public or social need’ such as public health as a possible ground for the limitation of rights. However, they also require that the essence of the right must not be undermined and the limitation must be prescribed by a ‘clear and accessible’ law, pursue a legitimate aim, be necessary and proportionate and ‘adequate safeguards and remedies’ put in place. The measures must also be timebound and purpose-limited to the specific aim of ‘preventing disease or injury or providing care for the sick and injured’.
The jurisprudence of the European Court of Human Rights establishes that states must provide ‘relevant and sufficient’ justifications for limiting a right, which ties back in with a requirement for a scientific justification for contact-tracing apps. Moreover, even if scientifically justifiable, to constitute a proportionate measure, the Siracusa Principles (and international and regional jurisprudence) set out that states must ‘use no more restrictive means than are required for the achievement of the purpose of the limitation’. Thus, the burden lies with states to show that they cannot achieve the goal of preventing the spread of Covid-19 by ‘less-restrictive-means’, including non-technological.
The least restrictive means test also provides strict parameters for the form and nature of contact-tracing apps in order to minimise their impact on human rights. As discussed above, design options to minimise the impact on rights include avoiding centralised databases, not using location or identifying proximity or interaction data, and data deletion. Tech companies, non-profits, civil society, and academics are actively investigating how apps could be designed to minimise the impact on privacy.
The purpose-limitation requirement as well as the least restrictive means test also prevent the repurposing of data by other state agencies (such as law enforcement or immigration authorities) as well as private companies for commercial purposes. Where other agencies are involved, it is critical that this limitation is enshrined within transparent data sharing agreements. These agreements should be made public, and as argued in a Joint Civil Society Statement by over 100 organisations in relation to businesses, they should contain ‘sunset clauses, public oversight and other safeguards by default’, including ensuring that ‘any intervention is firewalled from other business and commercial interests’.
To fully minimise the impact on human rights, further safeguards are needed to assess whether the involvement of other state agencies beyond public health and private companies is necessary and proportionate. This should include a presumption against involvement; independent oversight and assessment of the rationale for their involvement; temporary use of the apps; minimisation of the categories of data collected and processed through the apps; and due diligence, vetting and scrutiny of the risks of involving other bodies, particularly private companies, based on their human rights records, including in digital surveillance. Vetting should include the possibility of external organisations, such as civil society, submitting evidence on such records.
3. Has the state put in place measures to prevent harm to human rights in the future, through mission creep and the normalisation of these apps?
Finally, even if states can develop a framework to ensure the least intrusion into the enjoyment of other human rights, concerns about the risks of mission creep and the normalisation of the use of contact-tracing apps by states cannot be lost. As Harari observes,
You could, of course, make the case for biometric surveillance as a temporary measure taken during a state of emergency. It would go away once the emergency is over. But temporary measures have a nasty habit of outlasting emergencies, especially as there is always a new emergency lurking on the horizon.
In the future, therefore, it is foreseeable that states could make the case for the use of contact-tracing apps in other contexts, in order to surveil particular individuals or groups in society. Once such apps have been used in one context, their introduction in other areas, even if previously inconceivable can seem less radical. As part of their obligations to prevent harm to human rights, states therefore need to be proactive in fully recognising the impact these technologies have on human rights and make clear commitments to never use such technologies where alternatives exist. They also need to ensure a strong multilateral and multistakeholder accountability and review framework in order to hold each other to account where the use of contact-tracing apps fails to meet the requirements of international human rights law.
Conclusion
It is critical that states meet their obligations to fulfil the right to health and life in the Covid-19 pandemic. However, they do not have free rein in how they do this. They must also avoid overly relying on one solution. Protecting the right to health and life requires complex and multi-layered strategies and investment in public health and cannot be fulfilled. Contact-tracing apps pose serious risks to human rights, now and in the future. While there may be ways to minimise the impact on human rights in the implementation of specific apps, no app will be able to fully remove the risks to human rights. Given these risks, states must demonstrate why contact-tracing apps are relevant and justified in meeting the goal of preventing the spread of Covid-19, particularly once lockdown is lifted, using scientific evidence and show that no less rights-invasive solutions are available. Unless they can make this case, contact-tracing apps should not be introduced and where they have already been rolled out, they should be withdrawn.
A limited supply of life-saving medical equipment in the NHS is raising important questions about how frontline clinicians prioritise coronavirus patients for use of scarce resources and Essex rights experts are providing critical support to help avoid discrimination.
A team of researchers linked to the Essex Autonomy and Ethics of Powerlessness projects have provided a vital overview of existing guidelines around the world, subjecting them to a bioethical and human rights analysis. Their work aims to help NHS ethics committees formulate fair policy and triage procedures for coping with the extraordinary pressures of the pandemic.
Published this week, their report addresses the limitation of the well-known triage principle of maximising the number of lives saved on the basis of a clinical assessment of prognosis.
In order to help clinicians potentially faced with the agonising choice of whose lives should be saved, the team have explored how guidelines address issues such as whether an age limit should be set in order to triage patients or whether randomisation is a fair approach. “Our aim has been to provide a survey of existing research and guidance in a form useful to policymakers who are struggling to formulate just and evidence-based principles of triage during the COVID-19 pandemic,” explained Professor Sabine Michalowski, from the School of Law, who is leading the project.
Because there are no easy answers or uncontroversial approaches to many of the pressing issues arising in triage, it is crucial to have clear criteria in place on which decisions are based, as well as procedures that will be followed as part of the decision-making process.
Professor Michalowski explained that human rights must not be forgotten in developing responses to the medical and economic crises.
It is important for policymakers to be aware that, although there may not be one ‘right answer’ to the question about triage management, there are clearly some ‘wrong answers’ and it’s important to design and apply criteria with acute awareness of the importance of avoiding discrimination, based on age or disability for example.
Described by one frontline professional as “extremely useful as an incredibly clear synthesis of the literature and issues”, the report will also form the basis for a lecture on the ethics of triage by Professor Wayne Martin of the School of Philosophy and Art History.
Theodore Konstadinides, Professor of Law, University of Essex and Lee Marsons, Graduate Teaching Assistant in Public Law and a PhD candidate, University of Essex
The Coronavirus Act 2020, the UK’s most substantial legislative response to the Covid-19 pandemic, received Royal Assent yesterday after a fast-tracked procedure through both Houses. Indisputably, the pandemic falls within the range of situations under which it is constitutionally acceptable for Bills to be fast-tracked. While there is no corollary between an expedited piece of legislation and a bad piece of legislation, fast-tracking the Coronavirus Bill carries important implications for the constitutional relationship between Government and Parliament. Not least, parliamentarians had limited time to scrutinise legislation containing measures that have been described by the Bingham Centre for the Rule of Law as ‘the most sweeping powers ever taken by the UK Government outside of wartime’. But, in this context, the implications for the balance between Government and Parliament extend beyond the immediate passage of the Act. Therefore, while Tierney and King stressed the dilemma between safeguarding public health and the protection of individual liberties vis-a-vis fast-tracked legislation, the purpose of this post is to outline a number of concerns provoked by this pandemic on the Government-Parliament relationship more broadly, while also making some comments on the Act itself.
Since the increased power of the executive in relation to Parliament is an inevitable feature of fast-track legislation, the rule of law mandates effective parliamentary scrutiny in respect of both the way the Government will implement the new powers created under the Coronavirus Act as well as the detail in which Parliament will be updated about the reach of these powers across the UK. Two proposed amendments to the Bill tabled by David Anderson and Sarah Ludford in the House of Lords: one on the provision of meaningful information to Parliament would have gone beyond what is now Section 97 of the Act; and a second requiring that powers were exercised in accordance with the Human Rights Act 1998 and the Equality Act 2020, were both endorsed by positive ministerial statements (though not directly or publicly by a Cabinet Minister). With reference to meaningful information, the Minister, Lord Newby, committed the Government to providing an explanation in two-monthly reports laid before Parliament of the Secretary of State’s reasons for continuing to make use (or otherwise) of the provisions in Part 1 of the Act (as opposed to a mere report in accordance with Section 97 about whether the provision is in force and whether any power under subsection 3(b) has been exercised – the ‘switch on – switch off’ analogy made by David Anderson). With regard to compliance with the Human Rights Act 1998, the House of Lords’ proposed amendment included a new clause to be inserted in the Act entitled ‘Powers within the Act: necessity and proportionality’ While such a clause was not inserted in the final Coronavirus Act 2020, the Minister confirmed that the powers created will be exercised in accordance with the principles of necessity, proportionality and non-discrimination and in full compliance with human rights law. These statements provide some assurance as to the right balance being struck between the powers conferred on the Government and Ministers’ accountability to Parliament which are crucial in attaining the objective of constitutional propriety and legality despite the current emergency.
Despite ministerial promises that nothing in the Act contradicts constitutional principles, outside of the Act all the relevant coronavirus delegated legislation that we are aware of has been passed without recourse to Parliament, whether by using the positive or negative resolution procedure. This includes significant measures such as the Health Protection (Coronavirus) Regulations 2020, the Statutory Sick Pay (General) (Coronavirus Amendment) (No 2) Regulations 2020, and the Employment and Support Allowance and Universal Credit (Coronavirus Disease) Regulations 2020. In each case, the Minister stated that for reasons of urgency it was not possible to lay the Regulations before Parliament prior to signature. This is despite the fact that some of this delegated legislation – such as s.3 of the Health Protection (Coronavirus) Regulations 2020 – create summary offences and require whole swathes of otherwise lawful economic activity to cease.
In addition, the current situation is unique in that the practical reality of social distancing and self-isolation measures mean that many MPs and peers cannot attend Parliament to scrutinise government in either chamber. Already on 19 March, the Lord Speaker’s statement on the UK Parliament’s response to the spread of COVID-19 was unequivocal:
[…] no-one should consider it is their duty to be here in present circumstances. As Parliamentarians we have a duty to show leadership and heed the clear advice of the public health experts. I would ask that everyone continues to reflect on their own situation in the light of that advice, for their own good and for the broader public interest.
Furthermore, on the 23 March 20220 the Speaker’s Statement on attendance and distancing accepted that while video conferencing could mitigate any inconvenience posed by social distancing and self-isolation measures, the work of Committees will be affected by a combination of the limited facilities available and staff absences:
We recognise the need to improve our video conferencing facilities to enable those working remotely to engage in Committee proceedings. Regarding evidence sessions, these facilities are currently limited, not least because the management of these sessions requires expert operators to produce audio-visual output of a suitable quality for broadcast use and Hansard transcription purposes. The teams who make such arrangements work are currently under—I do stress—significant strain because of staff absences. Further work in this area will be taken forward as a matter of priority over the Easter recess. Once the current situation has settled, I will commission a review to ensure we can develop systems to ensure we are ready and able to be more agile in the future.
The above social distancing and self-isolation measures and the lack of Parliament’s ability to replace in-person interactions with a virtual environment of online proceedings will no doubt have an important effect on the capacity of Parliament to scrutinise major developments, seek expert advice and hold the Government into account in the coming weeks and months.
Admittedly, some welcome developments have occurred. On 25 March 2020, for instance, the Speaker of the Commons provided a statement explaining that he was to permit Prime Minister’s Questions to run for one hour instead of the ordinary half an hour. This was to:
[…] serve as an effective replacement for separate statements on the situation of coronavirus. I will allow the Leader of the Opposition two sets of questions—he will have a total of 12, which I expect to be taken in two sets of six. Similarly, I will allow the leader of the second largest party four questions, in two sets of two. I will also, exceptionally, call a further question from an Opposition Front-Bench spokesperson.
Similarly, a number of parliamentary committees have initiated inquiries into the Government’s response to Covid-19. The Education Committee launched an inquiry on 26 March into the implications of coronavirus policy on education and children’s services, for instance, and the Joint Committee on Human Rights launched an inquiry previously into the human rights implications of the then Coronavirus Bill.
Nevertheless, these successes are made bittersweet now that Parliament has risen for an early Easter recess until 21 April 2020. While parliamentarians can submit written parliamentary questions during a recess (p. 11) and committee inquiries can continue (or, at least, in the limited way that they can be continued), optimal scrutiny of Government is less likely to be achieved if parliamentarians cannot utilise all of the parliamentary tools at their disposal. Parliamentarians can no longer ask oral ministerial questions during a recess, for instance. This will carry significant implications for parliamentary scrutiny of executive action with regard to the ability to question Ministers about decision-making and policy development, which is naturally changing daily – perhaps more frequently. To provide an important topical example of this, on 25 March 2020, Jesse Norman MP, the Financial Secretary to the Treasury, was asked by Lloyd Russell-Moyle, Labour MP for Brighton Kemptown, how the Government would be scrutinised by Parliament as to its financial support for the self-employed, to be announced after the recess started. The Minister’s response was:
When such a package is brought forward, there will be ample opportunity to debate and discuss it in the House when it returns. Before that, the Government will be held to account in the public square in the usual way, and Ministers are available for direct interrogation by any Member of Parliament who wishes to contact them.
Nevertheless, Russell-Moyle was not satisfied with this response:
It is a shame that the parliamentary authorities have not managed to get their act together to organise an electronic, online continuation of proceedings. During a recess in normal times, in a crisis, we would be recalled, and this is a crisis, so we should be able to continue our work. For Ministers to ask for our work to continue through correspondence is not satisfactory.
Russell-Moyle was perhaps correct in his pessimistic assessment. On one day – 24 March 2020 – there were 181 references to ‘coronavirus’ in written parliamentary questions asked by MPs to Ministers. Given the limited time and resources available to Ministers and their officials, it does not seem likely that written questions will provide a panacea to other lost parliamentary opportunities – whether committees which cannot continue as usual or oral questions which cannot proceed at all.
As regards the duration of the Act’s provisions, Section 88 of the Coronavirus Act 2020 allows a Minister to suspend (repeal) or revive (save to provisions set out in subsection 6), more than once, any provision of the legislation by passing a Regulation. This appears to be a wide power encroaching upon Parliament’s legislative authority and sovereignty and it is further amplified by subsection (5) which provides that the Minister can pass Regulations for different purposes, on different days in different areas; and can make technical transitional, transitory and savings provisions. Last but not least, despite the two-year sunset clause in Section 89 of the Act, Section 90(2) provides that a Minister can extend (for up to six months at a time) or terminate any of the respective Regulations beyond two-years. This seems to be necessary in the face of the pandemic but since emergency powers are meant to give the Government a temporary boost, there is no valid reason why Parliament cannot get back in the game and manage the effects of the Covid-19 pandemic when authorities start easing the current lockdown.
All in all, the nature and scale of the Coronavirus Act 2020 is extraordinary. While the current measures may have some effect in enabling the Government to respond to a public health emergency and manage the effects of the pandemic, they are encroaching upon Parliament’s territory and endanger the principle of the separation of powers. While the delegated powers in the Act are broad and the extent and effectiveness of the new powers under the Coronavirus Act 2020 is unclear, the Government is under a duty to provide clarity about their use across the UK as well as the necessity of the relevant compliance measures that it will adopt in the near future.
This post was originally published on the UKCLA Blog and is reproduced here with permission and thanks.
I live and breathe human rights, but what’s at stake is even more important.
I write this in haste, like everything that is being written about Covid19. Most of us outside China only started to take this threat seriously in the last two weeks. Scientists and politicians don’t know enough about the scale of the problem, let alone the solutions. Spain’s Prime Minister confessed that “whoever claims to know what needs to be done in this emergency will learn nothing from it.” In normal circumstances this would be profoundly concerning, yet I find his candour strangely reassuring.
The UN High Commissioner for Human Rights, Michelle Bachelet, issued a press release on March 6 to stress that “human rights need to be front and centre in the response” to Coronavirus. I tick all the boxes of the typical supporter of a statement like this. I joined Amnesty International when I was 15; have been involved in human rights activism for two decades; and teach human rights law at the University of Essex. I should agree with Dr Bachelet. However, I’m not sure I do.
Don’t get me wrong. I know that Coronavirus raises human rights issues. Restrictions on individual freedoms need to be set clearly in the law and must be both necessary and proportionate. It’s essential to ensure that measures don’t discriminate against or stigmatise any national group or and minority. While mobile apps may be helpful in containing the spread of the virus, we must remain vigilant about the potential use of artificial intelligence to gather private data.
Children’s right to food is at risk when free school meals are the only healthy things some might eat. Confinement may be necessary, but home is the unsafest place for survivors of domestic violence. Rough sleepers, refugees and asylum seekers, prisoners and people in care can find themselves in particularly vulnerable situations. The list could go on. States’ actions and omissions can turn global health emergencies into human rights crises.
Human rights are important. They always are. But I still don’t see them at the core of this unique moment in history.
Other things take centre stage in my thoughts these days. My family in Madrid and the Basque Country has been confined for more than a week now, and my partner and I have decided to join them from London. This is one of those rare occasions when the word “resilience” doesn’t sound trite. Every day I receive news and messages via social media with countless expressions of wit and solidarity from Italy and Spain, expressions that are both emotional and encouraging about what we could achieve together.
Supportive neighbours, humour, music, bingo and Zumba lessons from the roof of a block of flats – all of it shows the best of people. Family life is recognised as a right in international law, but it is more than that: it is one of society’s central pillars. What do we truly value when we are confined at home? We all know that over-dependence on technology is dangerous for a number of reasons, but what a difference video-chats and social media are making this month.
Even politics looks different. When 60% to 80% of the population could be infected by a virus for which we have no cure, political priorities gain a new perspective. And what about the irony of seeing Morocco close its border with the Spanish enclaves of Ceuta and Melilla, and Guatemala doing the same with visitors travelling from the USA?
At the time of writing both my partner and I enjoy the comfortable position of being able to work from home. We are reasonably confident that our jobs are not at risk. We are also young and healthy and can provide for ourselves. We are privileged. The prospects are very different for the vast majority of people. Ten years of austerity have made dealing with the Coronavirus exceptionally difficult for low-and middle-income families in the UK.
Covid19 is testing the strength of our social foundations. For several consecutive evenings, Spaniards are leaning out of their windows and balconies to applaud public healthcare workers. I can only hope that some politicians will remember their words whenever we go back to “normal” – for example French President Emmanuel Macron, who said on 12 March that: “There are goods and services that must be out of the laws of the market… This pandemic is showing that free healthcare for all, irrespective of income, background or profession, and our welfare state are not an expense or a cost, but precious goods, indispensable when fate kicks.”
Even the most libertarian of neoliberals are being reminded why the State is so badly needed. This is the first crisis in my living memory where all of us are truly in it together. Privileged people are feeling very vulnerable for the first time. Dealing with the virus effectively needs people staying at home, washing their hands, keeping their physical distance from each other, and covering their cough with their elbow.
But dealing with it effectively and fairly requires, among other things, guaranteeing an income for those who lose their jobs, appropriating privately own facilities like hotels, private transport and private hospitals, suspending evictions, introducing rent and mortgage payment deferment options, and ensuring gas and electricity supplies irrespective of people’s ability to pay.
This crisis begs for a bailout for the most vulnerable, a sort of people’s quantitative easing. This is a human rights principle as well: attention to the most vulnerable individuals must be prioritised in times of financial crises and emergencies. But the issue goes beyond human rights. We are talking about what a country wants to be known for, even what it is. Societies that prioritise fairness will do best out of this crisis.
Putting the economy on hold is unheard of in peacetime, and needs to be accompanied by extraordinary public investment on a scale we’ve never seen. New Zealand has announced a relief package that amounts to 4% of its GDP; the Spanish Government has promised up to 20%. A massive bill will be waiting for us afterwards. The virus is going to test the patriotism of the wealthy, measured not by the size of their flags but by how much they are willing to chip in.
This takes me to a final thought. I have made two choices. The first is to admit that I don’t know what needs to be done regarding public health. The second is to start from the premise that scientists and political leaders, regardless of their colour and ideology, are doing their best to reduce the number of deaths to the minimum.
People who are making these decisions – the most difficult in their lives – may get things wrong. They don’t have all the necessary information. They are unsure about what is likely to work. And in advance I say that I am ready to forgive them if they make mistakes. In terms of the timing of the confinement measures, I’ve decided to trust the leaders of a country that doesn’t even allow me to vote – politicians whose human rights record I have criticised many times before and no doubt many more to come.
I don’t even know if the decisions they are taking are technically the right ones. Scientists who know much more than me are clear that “there are very large uncertainties around the transmission of this virus, the likely effectiveness of different policies and the extent to which the population spontaneously adopts risk reducing behaviours.”
In this context, transparency is “the only real counter to our psychological biases.” As long as leaders are transparent about the evidence, I will meet my civic duty and sacrifice my individual preferences for the general interest of flattening the infection curve. Beyond human rights, this is the time for solidarity, kindness and collective responsibility.
I never thought I would quote three contemporary political leaders in the same piece, but this must be another sign of the exceptional nature of the circumstances: as Italian Prime Minister Giuseppe Conte said on March 11, “Let’s keep the distance now so we can embrace each other warmly and run faster tomorrow.”
This piece was originally published in Open Democracy on 19 March 2020 and is reproduced here with permission and thanks.
Dr. Thoko Kaime, Senior Lecturer in Law, University of Essex and Lena Scheibinger
Omar al-Bashir
Significant step in the al-Bashir indictment
In February 2020, the Sudanese government indicated its intention to hand over Omar al-Bashir, the country’s former strongman to the International Criminal Court in The Hague to face charges of war crimes and crimes against humanity. Arrest warrants against al-Bashir had been issued by the ICC in 2009 and 2010 making him the first sitting head of state to be indicted by the ICC. However, al-Bashir refused to recognize the authority of the court and Sudan declined to hand him over. For ten years since the first warrant, al-Bashir continued to represent Sudan as head of state and a significant number of African Union members, who are also members of the ICC, flatly refused to execute the warrant. However, al-Bashir’s removal from power in April 2019 following mass protests and a military coup against his government changed the political pendulum in Sudan. The willingness of the transitional authorities to surrender the former strongman to the ICC should be rightly regarded as a major development in finally holding al-Bashir accountable for his crimes. It is further evidence that crimes against humanity and massive violations of human rights will not stay without any consequences.
Achieving justice for victims
Even though the details on how and when the handing over will take place are still unclear, the news of the possible transfer to the ICC is a big step forward to towards ending impunity in Sudan. However, this is only the beginning and more needs to be done. The trial of those who are responsible for the atrocities committed in Darfur constitutes an indispensable prerequisite for achieving justice and peace for the victims of that conflict. In this regard, it is not sufficient to bring only the former president to court but also to ensure that everyone involved in the massacres in Darfur is prosecuted either by the country‘s own judiciary or, in case that the national institutions are unable to fulfil this mandate, to make ready plans for trial by an international court or a special tribunal following the model of the reconciliation process in Rwanda after the 1994 genocide or the Special Court for Sierra Leone after the civil war.
The ICC and transitional politics in Africa
If al-Bashir is indeed eventually handed over to ICC by the Sudanese government, it will not be the first time that the ICC process has been used to get rid of difficult political problems by a governing regime. In Ivory Coast, the government quickly transported Laurent Gbagbo to the ICC to face a longstanding warrant that had been on ice whilst in power. The same modus befell Charles Taylor of Liberia and Jean Pierre Bemba of the Democratic Republic of Congo. Whilst this type of approach lends itself to uneven results as far as ending impunity is concerned, human rights defenders must ensure that they take full advantage of political changes in countries where perpetrators of mass human violations have hitherto been protected by the state apparatus. Meticulous documentation of crimes and the safe recording of victims and potential witnesses and other evidence will be key in any eventual prosecution as the al-Bashir case will likely demonstrate.
Essex Law Research Blog 