A War on a Virus? Human Rights, Biology and Reshaping Society

[Sarah Kay is a human rights lawyer specializing in counter-terrorism and national security.] 

There is such a thing as “covid fatigue”, because the virus is not only present as a global pandemic, it affects our daily lives, our social interactions, the way we work, our human rituals (such as weddings and funerals), It has posed many interdisciplinary legal questions that no one seemed to really be able to settle on a definitive. I myself have covered several webinars over the last two or three months and most of them centered on the same issues, that were quickly identified by sharp legal minds at the very beginning. I will attempt to summarize the core points on the battle in human rights law against a known enemy – health – and the challenges that await us in the post-pandemic world, whenever that will be.

I – There is no such thing as a war on the virus

The rhetoric of “war on” anything, being a war on drugs, or a war on terror, has justified many human rights violations as it necessarily not just implies, but invokes an inflation of state power. With or without parliamentary scrutiny, emergencies are enacted, some not formally declared, and under them, an increase in policing, surveillance, control orders, and border security. While an emergency may be perfectly legitimate and lawful to declare; while the state has positive obligations under international human rights law, an “emergency pandemic” as coined by UN Special Rapporteur on counter terrorism, Fionnuala Ni Aolain, is far from desirable. This is not to say there isn’t an emergency in itself posed by the spread of the virus worldwide; the issue at hand is the unchecked responses by states, that seem to ignore their negative obligations in the name of their public health statutes – provisions against arbitrary detention, expedited (or delayed) trials, non-refoulement because of closed borders, privacy, and so many others. Too often amiss from parliamentary review because not including the term of “state of emergency”, but rather “public health acts”, the legislation itself appears innocuous.

In political speeches however, states are at war. French president Emmanuel Macron used the term no less than six times in his national address announcing the national lockdown. US President Trump alternates between minimizing and maximizing the risk. The war on the virus demands, once again, that states be on the war footing: less scrutiny, less activism, and more deference in their efforts to combat the spread. But public health is not war. The war on drugs, also an issue of public health, has been an abysmal failure that has decimated communities and exposed the US to extreme state violence. The war on terror has elevated non-state armed groups to the status of legitimate and lawful combatants. But not all rights are derogable. A public health emergency has nothing to do with war. It has to do with leadership. Conflating the two is accepting that efficient leadership is equal to use of force.

II – Positive and negative obligations: on accountability

As mentioned before, states have positive obligations, inter alia, the right to health, the right to safety, the right to security, and the right to life.  Enacting measures in response to the pandemic was therefore an obligation upon states to mitigate the risk of contamination and limit deaths. Negative obligations, however, like the protection from arbitrary detention and the non-refoulement demand from states to continue operating lawfully, a question that has been debated on the criteria of necessity. What about the right to education, or the right to a fair trial? Did the pandemic force those rights to be secondary to the protection of health? The largest unknown quantity, however, remains the duration of those emergency acts. For as long as the pandemic will continue to infect, incapacitate and kill in large numbers, acts will have to remain in place, meaning leaving room for the argument that it is difficult to impose sunset clauses on those provisions. We must remain vigilant: those regulations must be subjected to parliamentary vote and judicial review in order to ensure that those emergencies will not be made permanent or transfer to the next risk. Therein lies the issue of those powers: just like any other emergency powers, those can be used against any form of threat, not just an invisible, biological one. Using belligerent rhetoric in a public health environment normalizes extraordinary powers that are often seen as being outside the realm of judicial assessment and review. A country on a war footing is a country that needs all of its institutions to fall in line; and much too often in the others wars against unseen enemies or inanimate objects, silent leges indeed, or at least so was the expectation.

Much brighter minds than this one have declared in the last two months that this was not the time for accountability; that we should focus on mitigation and keep a keen eye on abuses. This has been the case with the demand for CPS review of charges issued under the Coronavirus Act, with quite the result. Should accountability take place however, likely under the 2005 IHR, most states would stand to lose legitimacy. Most, if not all, could be found lacking in their response – not just in failing to protect, a positive obligation. The delicate balance between protection and oppression is one that is so poorly understood in political discussion that it felt necessary to step in legally and outline the human rights involved. For the post-pandemic world, whenever that will be, the social environment must be different – but our role is to ensure that the only change will be deeper, stronger, and more confrontational human rights protections.

III – The post pandemic world and the end of emergency

We are already setting ourselves up for failure if we operate on the assumption there will be an end to emergencies. Those have been proliferating in the name of counter terrorism, counter insurgency, protests, and now pandemics. Most of the powers they grant the states under Art 15 ECHR or Art 7 ICCPR have transferred to common law. Confining individuals in their houses, postponing elections, holding remote judicial hearings therefore likely prolonging the duration of pre-trial detention, allowing law enforcement to access medical records, restricting freedom of assembly for risk of contamination, restricting freedom of expression in the name of controlling the narrative on the spread of a disease, all of this will outlast covid-19 unless we collectively decide as lawyers, jurists, scholars, that we must include our scientific colleagues into devising protocols and guidance that are compliant with existing human rights law.

It has been a long twenty years of hearing that human rights law could never apply to new, manufactured ways of engaging in battle; being told it was obsolete, or a way to conceal and condone violent behavior. There is plenty to fear, to regret, and to redefine. At no point should human rights law be collateral damage of those difficult times we’re living in. If anything, our treaty bodies were prepared for such a situation. Our institutions, despite sometimes failing miserably, have the tools they need to respond to a crisis. Human rights law demands that states protect, but they do so proportionately to a threat. It has become increasingly difficult to define what a threat to the nation can be, so much discretion being granted to states in that matter, and pandemics having so little to do with borders and sovereignty matters. But a public health threat is not an insurgency threat that can be quashed. It doesn’t require the language or the tools of war. It doesn’t demand deployment and use of force. In fact, public health demands empathy, compassion, and solidarity. We are solid enough as societies only we accept our transnational and supranational institutions must be strong, and our rule of law even stronger to withstand what is coming – and it will come, with climate change and consequences of twenty years of counter terrorism.