As Governments face the formidable challenge of protecting people from COVID-19, UN High Commissioner for Human Rights Michelle Bachelet has called on them to ensure human rights are not violated under the guise of exceptional or emergency measures.
“Emergency powers should not be a weapon governments can wield to quash dissent, control the population, and even perpetuate their time in power,” Bachelet warned. “They should be used to cope effectively with the pandemic – nothing more, nothing less.”
States are able to restrict some rights to protect public health under human rights law, and also have certain additional powers if a state of emergency threatening the life of the nation is publicly declared. In either case, the restrictions need to be necessary, proportionate, and non-discriminatory. They also need to be limited in duration and key safeguards against excesses must be put in place.
Certain rights, including the right to life, the prohibition against torture and other ill-treatment, and the right not to be arbitrarily detained continue to apply in all circumstances.
To help States in their response to COVID-19, the UN Human Rights Office on Monday issued new policy guidance https://www.ohchr.org/Documents/Events/EmergencyMeasures_COVID19.pdf on emergency and exceptional measures.
“There have been numerous reports from different regions that police and other security forces have been using excessive, and at times lethal, force to make people abide by lockdowns and curfews. Such violations have often been committed against people belonging to the poorest and most vulnerable segments of the population,” the High Commissioner said.
“Shooting, detaining, or abusing someone for breaking a curfew because they are desperately searching for food is clearly an unacceptable and unlawful response. So is making it difficult or dangerous for a woman to get to hospital to give birth. In some cases, people are dying because of the inappropriate application of measures that have been supposedly put in place to save them,” Bachelet said.
“In some countries, thousands have also been detained for curfew violations, a practice that is both unnecessary and unsafe. Jails and prisons are high risk environments, and states should focus on releasing whoever can be safely released, not detaining more people.”
The guidance document stresses that, as in normal times, law enforcement officials should adhere to the principles of legality, necessity, proportionality and precaution.
“They should only use force when strictly necessary, and lethal force can only be used when there is an imminent risk to life,” Bachelet said.
Measures and laws introduced in some countries contain references to vaguely defined offences, coupled at times with harsh sentences, fuelling concerns they may be utilized to muzzle the media and detain critics and opponents. Although measures to restrict movement and assembly are legitimate in such circumstances, public confidence and scrutiny are essential for them to be effective.
“It is important to counter misinformation, but shutting down the free exchange of ideas and information not only violates rights, it undermines trust. False information about COVID-19 poses a huge risk to people. But so do bad policy decisions,” the High Commissioner said. “Undermining rights such as freedom of expression may do incalculable damage to the effort to contain COVID-19 and its pernicious socio-economic side-effects.”
The guidance sets out clearly that the measures should not only be necessary to achieve a legitimate public health objective, but that they should also be the “least intrusive” approach required to achieve that result.
“We have seen many States adopt justifiable, reasonable and time-limited measures. But there have also been deeply worrying cases where Governments appear to be using COVID-19 as a cover for human rights violations, further restricting fundamental freedoms and civic space, and undermining the rule of law,” Bachelet said.
Bachelet said that exceptional measures or a state of emergency should be subject to proper parliamentary, judicial and public oversight.
“Different countries are at different stages of the pandemic. Some are starting to come out of emergency measures, while others are extending or reinforcing them. The abiding principle must be that these measures are enforced humanely. Penalties for violating them should be proportionate, and not imposed in an arbitrary or discriminate way,” she added.
“Given the exceptional nature of the crisis, it is clear States need additional powers to cope. However, if the rule of law is not upheld, then the public health emergency risks becoming a human rights disaster, with negative effects that will long outlast the pandemic itself,” Bachelet said. (OHCHR)