June 2020

June 2020 - Human Rights Courts and Committees Updates

By: Diana Sposito & Mohammed Nazeeruddin Khan, Junior Research Associates, PILPG-NL

This month, several updates happened throughout the Human Rights Mechanisms. This article summarizes and highlights the most relevant news, from 16 different Human Rights Mechanisms around the world.

INTERNATIONAL

Human Rights Council | Philippines: UN report details widespread human rights violations persistent impunity 

A stringent crackdown on national security threats and illegal drugs has caused serious human rights violations in the Philippines, including killings and arbitrary detentions, as well as the vilification of dissent, a new report by the UN Human Rights Office found. The report focuses on violations by the state as well as non-state actors, including the New People’s Army. [4 June 2020]

Human Rights Council | Resolutions of the HRC 

The Human Rights Council adopted 14 resolutions, including a resolution on the excessive use of force by law enforcement officers against Africans and people of African descent. In this regard, the HRC requested the High Commissioner for Human Rights, with the assistance of relevant Special Mandate Holders, to prepare a report on systemic racism and violations of international human rights law against Africans and people of African descent by law enforcement agencies. The HRC request took special regard to the incidents that resulted in the death of George Floyd and other Africans and people of African descent. Among other issues, the resolutions also concerned the right to work, the rights of indegenious persons, and the right to food. [19 June 2020]

Committee on the Elimination of Discrimination Against Women | Failure to Criminalize Female Genital Mutilation (FGM) in Mali is a Human Right Violation 

The UN Women’s Rights Committee issued a report about the FGM situation in Mali. The Committee said that millions of women and girls that are subjected to this practice suffer grave and systematic violation of their rights, and condemned Mali’s failure to criminalize FGM. [24 June 2020]

Committee on the Elimination of Racial Discrimination | UN Experts call for Reform and Justice Concerning Systemic Racism

The UN Committee on the Elimination of Racial Discrimination (CERD) called on the United States to address systemic racism and racial bias in American criminal justice system, as well as to investigate and ensure accountability in situations of excessive use of force by the police. The Committee also issued a statement concerning the protests against racial discrimination, which took place nationally. [5 June 2020]

Committee on the Elimination of Racial Discrimination | CERD calls the US to Comply with the State’s International Obligations

The CERD called the US to make urgent reforms to tackle racial injustice and to comply with the State’s international obligations under the International Convention on the Elimination of All Forms of Racial Discrimination, as well as provide training and education about the Covenant to law enforcement officials. [15 June 2020]

AFRICA

African Court on Human and People’s Rights | 57th Ordinary Session of the Court

The African Court on Human and People’s Rights conducted its 57th Ordinary session amid covid-19. This session became the first virtual session conducted by the Court through online media to keep access to justice open during the pandemic. The session, which began on the first of June, lasted four weeks and saw the delivery of eight judgements. [1-26 June 2020]

African Commission on Human and People’s Rights | Statement announcing the CPTA theme for 2020

In line with its usual practice, the Committee for the Prevention of Torture in Africa (the CPTA), a Special Mechanism of the the Commission, has identified its annual theme for 2020 as “the prohibition of the use, production and trade of equipment or substances designed to inflict torture or ill-treatment.” In furtherance, the CPTA called upon states to follow guidelines on prevention of torture and police custody (the Luanda Guidlines). [3 June 2020]

THE AMERICAS

Inter-American Court of Human Rights | 135 Ordinary Period of Sessions

The IACtHR celebrated the beginning of the 135 Ordinary Period of Sessions, which goes from June 1 to July 31, 2020. During this period, the Court will deliberate sentences, resolution, precautionary measures, among other activities. For the first time, it is being held virtually. [5 June 2020]

Inter-American Court of Human Rights | Translation of Decisions to English

The IACtHR announced the translation of several decisions from relevant Judgments and one Advisory Opinion to English, as an effort to allow accessibility from judges, lawyers, and all stakeholders worldwide to its judgments and human rights standards. The translation includes the case of Herzog et al. v. Brazil, a well-known case of a Yugoslavian-Brazilian journalist that allegedly committed suicide in 1975, while held as a prisoner in the Operation Center of Internal Defense (DOI-CODI) during the Brazilian military dictatorship. The Court found that Brazil violated several of Herzog’s fundamental human rights.[24 June 2020]

Inter-American Commission of Human Rights | Call for Democracy and Rule of Law Guarantees During COVID-19

The IAComHR called on states to strengthen democracy and rule of law institutions through a human rights approach and to comply with international obligations under the American Convention on Human Rights. The Commission noted that this is fundamental especially in times of the pandemic. [10 June 2020]

EUROPE

European Court of Human Rights | New Judgments Published

In the case of Association Innocence en Danger and Association Enfance et Partage v. France, the Court held that there had been a violation of the prohibition of torture. The case concerned the death of an eight-year-old girl as a result of abuse by her parents. The applications were lodged by two French child protection associations. The ECHR concluded that the measures taken by the authorities between the time of the “report of suspected ill-treatment” and the child’s death had not been sufficient to protect the girl from severe abuse by her parents. (4 June 2020]

 The ECtHR, while dismissing the petitioners claim in the case of Ghoumid and Others v France, held that when a person holds a dual nationality and is stripped of one nationality by the concerned state, it does not make the person stateless. The case pertained to two individuals who were convicted on terrorism charges. [25 June 2020]

 More judgements of the ECtHR can be viewed here : https://hudoc.echr.coe.int/eng-press#{%22sort%22:[%22kpdate%20Descending%22]}

ASIA

ASEAN Intergovernmental Commission on Human Rights | Meeting to Discuss the Five-Year Work Plan 2021-2025

The AICHR deliberated on its new Five-Year Work Plan 2021-2025, via video conference, and discussed measures to mitigate the impact of COVID-19 to the implementation of AICHR’s programs and activities in 2020. [11 June 2020]

June 2020

June 2020 - Domestic Prosecution of International Crimes Update

By: Sophia Zademack, Junior Research Associate, PILPG-NL

Several cases based on Universal Jurisdiction have either been initiated or taken up again after breaks due to COVID 19.  The following post highlights the work of courts and lawyers around the world that prosecute international crimes in their national jurisdictions. 

EUROPE

UK | Most claims against British soldiers during Iraqi war dropped        

The director of the Service Prosecution Authority (SPA) said, one remaining case against british soldiers in Iraq was still examined, as the low level of offending and lack of credible evidence had led to most of the cases to be dismissed.  He also admitted that it is quite possible that none of the original allegations will lead to a prosecution, referring to the last open case.  Additionally, he reassured his confidence that the separate, preliminary investigations conducted by the International Criminal Court (ICC) in the Hague will conclude this year without further action being taken. [June 2nd, 2020] 

Kosovo | Kosovo Serb acquitted of war crimes despite Supreme Court ruling         

The defendant, Milorad Zajic was acquitted by the Basic Court in Peja/Pec in March 2019 of killing two people and expelling ethnic Albanians from a village during the Kosovo war in 1998.  Kosovo’s Supreme Court has now ruled that two court verdicts wrongly found him not guilty of committing war crimes against civilians and violating the Geneva Conventions.  However, his acquittal stands because the Supreme Court cannot order a retrial after a defendant has already been acquitted. [June 4th, 2020]

Kosovo | Kosovo President accused of war crimes         

The Kosovar President, Hashim Thaci, has been accused of war crimes by a special international prosecutor in The Hague.  Allegedly, the president and others are criminally responsible for murders, torture, and enforced disappearances.  Mr. Thaci  was a former commander with the Kosovo Liberation Army during the war for independence from Serbia between 1998 and 1999.  The accusations, covering Kosovo's independence war against Serbia, are being assessed by a judge at the Kosovo Specialist Chambers who will decide if the case goes to trial. [June 25th, 2020]

Germany | Syrians file claim over sexual abuses in Assad’s jails           

Seven Syrians who suffered or witnessed rape and sexual abuse in detention centers under President Bashar al-Assad have submitted a criminal complaint to prosecutors in Germany.  The plaintiffs were held in various detention centers between 2011 and 2013, where they were victims or witnesses of torture and sexual violence, including rape, "electrical shocks to the genitals…, and forced abortion“.  They named nine senior Syrian government and air force intelligence officials in their complaint, including Jamil Hassan, who is already the subject of an international arrest warrant from Germany and France on suspicion of crimes against humanity. [June 18th, 2020]

AFRICA

Libya | Prime Minister urges UN to provide technical support         

Libyan Prime Minister al-Sarraj has urged the UN to provide technical assistance in collecting and documenting evidence of war crimes committed by the militia affiliated with warlord Khalifa Haftar.  The UN was asked to provide the necessary assistance to the authorities to investigate the crimes and violations committed in the south of the cities of Tripoli and Tarhuna.  After civilian mass graves were found in Tarhuna, the Libyan government urged for an investigation "on the grounds of planting explosives, mines in civilian areas, executions, and torture" and called on to the international community to take action. [June 17th, 2020] 

Sudan | War crimes suspect detained in Central African Republic       

Ali Kushayb, a Sudanese war crimes suspect, turned himself in and was transferred to the International Criminal Court.  Kushayb is a former commander of the Janjaweed, a militia that worked alongside the Sudanese armed forces in their campaign against the Fur, Massalit, and Zarghawa people in Darfur, Sudan, in the early 2000s.  He is charged with 50 counts of war crimes and crimes against humanity arising out of that campaign. [June 12th, 2020]

Sudan | Prosecutor suggests Bashir might not be extradited to the ICC        

Sudan’s Prosecutor, Tagelsir al-Hebr, said "individuals wanted by the International Criminal Court are not required to be (physically) present at the court's headquarters in The Hague“ for a judgement.  Hebr, who did not refer to Bashir by name, said legal obstacles concerning Sudan's sovereignty stand in the way of extraditing people to the ICC and that Sudan would coordinate further actions with the ICC. [June 15th, 2020]

THE AMERICAS

Argentina | Possibility of a case against Myanmar kept open by the Federal Appeals Court         

A court in Buenos Aires overturned a previous decision not to pursue a case against State Counsellor Aung San Suu Kyi and senior officers in the Myanmar military.  The federal appeals court in Buenos Aires has instead requested more information from the International Criminal Court (ICC), to ensure that a case in Argentina would not duplicate other justice efforts.  Furthermore, it ruled that it is necessary to approach the ICC for more information about its case against Myanmar through a formal diplomatic note, before making a final decision on whether to open an investigation in Argentina. [May 29th, 2020]

United States | Military Judge rules that torture can be considered in sentencing Guantanamo Prisoners          

A military judge ruled that war court judges have the power to reduce the prison sentence of a Al Qaeda operative at Guantánamo Bay, Cuba, as a remedy for torture by the C.I.A.  In the ruling, the court said that “taken as true, this mistreatment rises to the level of torture.”  The defense argued that the judge had no such authority because there was no explicit provision for it in the manual for the commissions, which are a hybrid of military and civilian tribunals.  This was turned down by the judgement saying that it: “has the inherent authority to grant a remedy […], especially when no other remedy is available.” [June 4th, 2020]

United States | Alleged death squad member charged with torture        

Michael Sang Correa, was an alleged member of the notorious “Junglers” death squad in The Gambia, set up by then-president Yahya Jammeh.  Jammeh’s rule was marked by widespread human rights violations, including enforced disappearances, extrajudicial killings, sexual violence, torture, and arbitrary detention.  In the indictment before the US District Court of Colorado, the US Department of Justice alleges that Correa is responsible for the torture of at least six people and is also implicated in some of the Jammeh government’s other notorious crimes, such as executing a former intelligence chief and four associates. [June 12th, 2020]

June 2020

June 2020 - Southern Cameroons News Updates

By: Editimfon Ikpat, Junior Research Associate, PILPG-NL

THIS POST COLLECTS UPDATES FROM THE PAST MONTH CONCERNING RELEVANT DEVELOPMENTS IN SOUTHERN CAMEROON. THE INFORMATION IS DRAWN FROM LOCAL AND INTERNATIONAL ONLINE SOURCES.

Cameroon Journalist dies in detention

Samuel Wazizi, a presenter of the regional channel Chillen Media Television (CMTV) died in detention following injuries sustained. Wazizi was arrested on August 2, 2019 on the accusation of having made critical remarks towards the authorities and their management of the crisis in the English-speaking regions of Cameroon. There are claims that Samuel Wazizi was tortured in prison.

Responses to the Death of Cameroon Journalist

In response to the death of the journalist Samuel Wazizi, the National Union of Cameroon (SNJC) and the Cameroon Association of English Speaking on June 3, 2020, released a joint statement announcing the creation of a “justice for Wazizi” Collective. The Collective aims to establish a national commission of inquiry to shed light on the death, and requests that the following information be communicated to the family and public: “the place, exact date, place where the body is being kept and the circumstances of the death no later than June 4, 2020 at 6 p.m.”. Reporters Without Borders have also called on the relevant authorities to open a serious and independent investigation to shed light on the circumstances leading to the death of Samuel Wazizi.  Cameroonian and international organizations, including the UNESCO, have called for the accountability of the death of Wazizi.

Promises of an Investigation into Journalist’s Death

The French Ambassador – Christophe Guilhou – after an audience with the Cameroonian President – Paul Biya – on June 5, 2020, said that the President has promised the opening of an investigation in order to establish the causes of the death of Samuel Wazizi in detention. 

Ngarbuh Massacre: Command responsibility

Acting on the publication of the Ngarbuh Massacre Inquiry Commission report, the preliminary inquiry into the Ngarbuh massacre of February 14, 2020  in the North West region of Cameroon began on June 8, 2020. The inquiry is before an examining magistrate at the Military Tribunal in Yaoundé. The three soldiers who led the field operations in Ngarbuh, in the North West region  of Cameroon, have been charged for the Ngarbuh massacre They are charged with “assassination” in the murder of several civilians in Ngarbuh massacreandhave been placed under a warrant for detention at the Yaoundé military prison. 

Anglophone crisis: rated World’s most neglected crisis

The Norwegian Refugee Council has rated the Cameroon Anglophone crisis as the world’s most-neglected crisis for the second time in a row.  The assessment is based on the low level of attention the international community has afforded to the crisis, “mounting violence, political paralysis and an aid funding vacuum” in Cameroon.   

Attacks against humanitarian workers in Anglophone regions

According to the Human  Rights Watch, armed separatists allegedly abducted a humanitarian worker in the North West Region on June 30, 2020 having accused him of being a spy, tied him to a tree and beat him up before releasing him the next day. On the same day,seven staff of the Cameroon Baptist Convention Health Services were abducted in the North-West region and released two days later. The Resident Coordinator of the United Nations System in Cameroon – Allegra Maria Del Pilar Baiocchi – on June 4, 2020, expressed her deep concern towards the “attacks”, “racketeering” and “kidnapping” of humanitarian workers and has denounced the “increasingly widespread practice of non-state armed groups to set up illegal checkpoints along the main supply routes”.

UN Security Council Report

At the United Nations Security Council meeting held on June 12, 2020, the Special Representative of the UN Secretary General for Central Africa and Head of the United Nations Regional Office for Central Africa – Francois Lounceny Fall – presented the semi-annual report of the United Nations Security Council. 

The Report addressed the humanitarian situation in Cameroon, inclusive of the security crisis in the North West and South West  regions, which is said to have “continued to deteriorate, according to reports of attacks against civilians, including extrajudicial killings, torture, arbitrary arrests, destruction of property, reprisals, abductions, rapes and other forms of sexual violence, disproportionately affecting women and children”.

Elections without resolving the Anglophone crisis 

On June 1, 2020, the president of the Cameroon Renaissance Movement (CRM) Maurice Kamto through his official Facebook page issued a warning that the CRM will not allow elections in Cameroon unless the Anglophone crisis is resolved.

The Effects of COVID-19 for Refugees and Asylum Seekers in the European Union

By: Romy de Niet, Junior Research Associate, PILPG-NL

The global COVID-19 pandemic (COVID-19) has disrupted the status quo in member states of the European Union (EU).  With a halt on public events, closed schools, and people working from home, the lives of many have changed in a short amount of time.   Refugees and asylum seekers are among the world’s most vulnerable populations, and are likely to be disproportionately affected by the pandemic. 

This blog post elaborates on the different ways EU member states deal with the COVID-19 crisis and the consequences for refugees and asylum seekers.  Discussed are the effects of the pandemic on the processing of asylum applications, the right to health, and rescue at sea.  The blog post further discusses how the practises of these states relate to international law.

Asylum Applications

An issue related to the pandemic, is that the review and processing of asylum applications are suspended or slowed down in most EU member States.  According to the United Nations High Commissioner for Refugees (UNHR), suspending asylum applications has no basis in international law.  The suspension of asylum applications can have far-reaching consequences for asylum seekers infected with COVID-19, as health insurance is often only available to those in possession of residence permits.  The pandemic also caused the unavailability of other services to help refugees and asylum seekers, such as legal assistance, language courses, and employment help.  

States have responded to this issue in different ways. In Hungary, authorities claimed that there is a link between illegal migration and the surge in COVID-19 cases, as many of these migrants passed through Iran, where COVID-19 infection rates were high.  This caused an overall suspension of the admission of asylum applications.  In other EU member states, the general measures to curb the spread of the virus disrupted the way the processing of asylum applications normally work.  In the Netherlands, this meant that arriving asylum seekers were temporarily barred from claiming asylum, and pending procedures were suspended.  The asylum procedures are partially started up again through video interviews, but there is a significant backlog.  In Belgium, the virus caused such a delay in the asylum system that only a third of asylum requests were followed up on in April.  A completed registration entitles the applicant to food and shelter, leaving those waiting to hear back in a situation where they have to fend for themselves.  In Portugal, the processing of asylum applications was temporarily sped up, rather than slowed down, as all individuals with pending asylum applications were granted temporary residence permits, granting them the same rights as Portugese citizens. 

The Right to Health

Under international law, every person has the right to the highest attainable standard of healthcare, regardless of their citizenship or immigration status. The primary duty to fulfill this right is on states.  Refugees and migrants are often more vulnerable to respiratory infections such as COVID-19. Due to crowded living conditions in reception centers and refugee camps, social distancing and frequent hand washing cannot be practiced.  Elevated levels of physical and mental stress, and a lack of food and clean water among groups of refugees and asylum seekers can cause compromised immune systems.

These groups often experience a myriad of barriers to access healthcare services, such as language barriers, an inability to travel to healthcare facilities, and financial burdens.  Furthermore, access to healthcare and health insurance is often restricted for persons without residence permits or citizenship. 

In several EU member states, initiatives were instated to ease  some of these barriers.  Portugal’s decision to temporarily grant asylum seekers and migrant workers residence permits also grants them citizens’ access to healthcare.   In Poland,  the diagnosis and treatment of COVID-19 are free of charge for every person, including those without health insurance.  However, Polish doctors are afraid there is a lack of awareness of this free treatment among migrants and asked the government to carry out an information campaign.  

Meanwhile, the Greek government has faced criticism from human rights organizations for placing refugee camps on lockdown to prevent the virus from spreading.  This left thousands of migrants unable to abide by the guidelines the Greek authorities set for damming the spread of the virus, and put them at an increased risk of contracting it.  Due to overcrowding, social distancing was not possible.  Furthermore, limited access to food,running water, and sufficient medical personnel  left refugees in the camps more vulnerable to contract the virus, and without access to medical treatment.  The Greek government has plans to move 2,400 of the most vulnerable individuals away from the island camps to the mainland. 

Rescue at Sea

Under international customary law, coastal states are obliged to rescue those in distress at sea and satisfy their primary needs and provide access to basic services.   Rescue at sea became an issue at the outer borders of the EU, as Italy and Malta closed their ports due to public health reasons, barring migrants attempting to reach Europe by boat.  Furthermore, travel restrictions and social distancing measures are halting non-governmental organizations from performing rescue missions at sea, leaving large groups of refugees stranded at sea in life-threatening situations.  

Conclusion

In the European Union, refugees and asylum seekers have been adversely affected by the pandemic and its implications in a number of ways.  These groups often do not have the capacity to adhere to social distancing, and experience several barriers to accessing healthcare services.  Furthermore, in most EU member states, asylum application reviews have been suspended or severely slowed down.  Coastal states have closed their ports, and sea rescue missions are halted, leaving groups of migrants attempting to enter the EU stranded at sea.  Member states of the EU have dealt with the effects of the global pandemic for refugees and asylum seekers in different ways.  In the future, it will be interesting to see how the measures taken by these states during the COVID-19 pandemic change when the pandemic ends, and state practises return to normalcy. 

Contact tracing apps in the fight against COVID-19: infringing rights to return to normal?

By: Inês Gonçalves Ferreira, Junior Research Associate, PILPG-NL

Contact tracing apps are emerging to combat the COVID-19 pandemic.  From those already used in Singapore, Israel, and Australia to others being developed in France and in the United Kingdom, governments throughout the world have their eyes on this technology as a means to lift the lockdown measures.  Private consortiums, including an Apple and Google partnership, have also put forth their proposals.  Supporters of these apps claim that their widespread use would enhance authorities’ efforts in identifying who was in contact with people that have tested positive for the novel coronavirus.  But will human rights be safeguarded if states implement these apps?

What are contact tracing apps and where are they being used?

The World Health Organization (WHO) has explained that contact tracing is an essential public health practice to combat the spread of viruses.  It allows breaking chains of infection by monitoring the people who have interacted with someone that is infected with a virus.  When a virus is as contagious as the novel coronavirus, manual contact tracing requires extensive staff and resources. Despite this, the need to rapidly identify new cases is heightened as states seek to lift lockdown measures.  

As a solution, apps are being developed to improve contact tracing, either at the request of state authorities or on private initiative.  The apps identify and notify the users that have been in proximity to other users that have tested positive for the virus. They use different methods to perform this function.  Some apps, such as the Israeli HaMagen, use GPS to cross information about the location of users and of those that have the virus.  Others, such as the Singaporean TraceTogether and the Australian COVIDSafe, use Bluetooth instead.  Bluetooth does not detect the geolocation of smartphones but only their proximity to other smartphones using the same apps.  The apps being developed in Europe and the United States opted for this seemingly less invasive method.  But the developers of both systems claim that the data is stored only in users’ devices and not sent to a centralized server and that the apps do not disclose the identity of users to other users or third parties. Disclosure of the information to the authorities requires consent from the user.

The human rights implicated 

In responding to a global pandemic, different international human rights are involved. International human rights law confers on individuals the right to the highest attainable standard of health.  Under Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), the control of epidemics is one of the measures that states have to take to fulfill this right.  This includes resorting to technology and improving the surveillance of epidemics and the disaggregated collection of data, as highlighted by the Committee on Economic, Social and Cultural Rights.  According to the Human Rights Committee, the states’ duty to protect the right to life, provided for in Article 6 of the International Covenant on Civil and Political Rights (ICCPR) entails an obligation to address threats posed by deadly diseases. On the other hand, ongoing restrictions on movement imposed by orders of confinement limit the freedom of movement set out in Article 12 of the ICCPR. 

Enhancing contact tracing through technology seems promising because it allows states to promote the rights to life and health while minimizing restrictions on free movement.  But these apps create a new set of risks, as civil society and scholars have warned.  

The right to privacy is the most directly impacted.  Article 17 of the ICCPR prohibits states from intervening arbitrarily or unlawfully in the private sphere of individuals.  Information about individuals’ location and health can pertain to such a private sphere.  Supporters of these apps claim that the data collected is anonymous and not centralized.  However, as security and privacy experts in the United Kingdom alerted, the emerging technology risks becoming a form of digital surveillance through their abuse by hackers or other “bad actors”.

Advocates of the apps also stress that their use is voluntary.  But in places like China, where using the apps is a requisite to enter public spaces, it becomes mandatory in practice.  This threatens the individuals’ freedom of movement, that precludes private and public interferences on the liberty to move within a state’s territory.  If individuals are required to go into confinement on only the basis of an app alert and without testing, implementing such apps may amount to an arbitrary deprivation of personal liberty, constituting a violation of Article 9 of the ICCPR.

Imposing the use of the apps, either by law or in practice, can further result in discrimination against those that do not own a smartphone, which can be a form of discrimination on the basis of wealth, or  promote discrimination against individuals exposed to the virus.  Discrimination on any grounds is unlawful under Article 26 of the ICCPR.  

The risks are many and extend beyond the current framework.  As the United Nations (UN) Secretary-General expressed in a recent report, there are concerns that the measures implemented now will outlive the pandemic, being the first step towards a “new normal”.  

Are contact tracing apps lawful?

Human rights law applies in all situations, including in public health emergencies.  But extraordinary circumstances may require extraordinary measures and international human rights law takes this into account. Most human rights are not absolute.  If certain requirements are met, their limitation or suspension is allowed.

The rights provided in the ICCPR, and other human rights instruments, can be limited to the extent that it is necessary and proportionate to pursue a legitimate aim, and as long as such limitations are provided by law.  These requirements are expressly mentioned in  some provisions/articles.   For example, Article 12 of the ICCPR provides that restrictions to the right to liberty of movement are permitted if they are set in the law and are necessary to protect public health.  But the requirements must be met even where they are not expressly mentioned in the treaties.  Regarding Article 17 of the ICCPR, for instance, the Human Rights Committee has clarified that the prohibition of ‘arbitrary or unlawful interference’ with privacy essentially means that interferences have to satisfy the same conditions set forth in Article 12 of the ICCPR.  

In more extreme situations, states can even suspend human rights.  Pursuant to Article 4 of the ICCPR, states can derogate from their obligations in case of a ‘public emergency threatening the life of a nation’.  There are strict requisites imposed on derogations, including a necessity and proportionality test. Furthermore, this can only affect some rights.  Rights to life, liberty and others identified in the convention cannot be suspended.  But according to the Human Rights Committee, even derogable rights have an untouchable core, meaning that they cannot be entirely put off.  Currently, some states have notified derogations from the ICCPR because of COVID-19.  However, implementation of these apps does not seem to fall within a derogation of rights in an emergency phase, but a part of normalcy. As such, it can be considered a limitation of rights under the regular analytical framework. 

Although permissible, limitations and derogations, as all exceptions to human rights, must be construed restrictively.  Their requirements have to be strictly observed by states.  Do contact tracing apps meet such a threshold? Definite answers require a case-by-case analysis.   

To pass the proportionality and necessity test the employment of the apps has to be appropriate to achieve the public health goals.  There are indications that contact-tracing apps are not sufficiently effective.  Some experts estimate that about 60% of the population would have to use the app for it to be effective.  Even if such high numbers are achieved, how trustworthy is the self-reported information? Users may be dissuaded from marking themselves as infected in the apps, especially if they face unfavorable consequences from doing so. The Director-General of the WHO has urged states to ‘test, test, test’.  Without widespread testing, contact tracing apps have limited results.  

While some claim that apps can play an important role in containing the spread of the virus even with fewer users, a “better than nothing” approach is not compatible with human rights law.  States have to demonstrate that similar results cannot be achieved by less onerous methods.  And even if they do, the apps have to be designed to have the minimum possible impact on human rights.  As emphasized in a joint statement of more than 100 organizations, transparency is fundamental here. Besides, to prevent this from becoming a form of digital surveillance surviving the pandemic, it is crucial to set a time limit for their use.  It must also be ensured that they are not misappropriated for different aims. On this analysis, it is possible for an app to be a permissible limitation, but those being developed currently are not likely to be considered such.

Conclusion

Implementing contact tracing apps limits human rights, particularly the right to privacy.  While limitations are permissible if the respective requirements are met, it is doubtful that the apps currently being implemented are effective enough to be considered an appropriate measure to achieve the public health aims.  If they are implemented, safeguards must be in place to ensure that they are not used beyond the current emergency or abused for less legitimate aims.   Human rights law guides the response to the pandemic on all fronts.  A rush to return to a new normal can risk reshaping normalcy to a constriction of rights.