ABSTRACT
The global COVID-19 health emergency has radically changed detention spaces, by heightening state and provider obligations to provide humane conditions and protect those detained against disease and subsequent ill-health. Using a socio-legal lens, this policy and practice note focuses broadly on the balance of European immigration detention regulations, and the actual conditions and treatment of immigrant detainees, putting an emphasis on developments before and after COVID-19. The special protections afforded to detainees assessed as vulnerable is unclear in the Global Compact for Safe, Orderly and Regular Migration. While cognisant of aspects of legal positivism by outlining relevant legal provisions and extant European Court of Human Rights (ECtHR) jurisprudence where conditions of detention have violated Article 3, a socio-legal argument is presented around state obligations to protect the health of all immigration detainees;the challenges in using simplistic/categorical definitions of vulnerability;and the imperatives to broaden considerations to include health vulnerability in the context of contagion and future pandemics. By analogy extant ECtHR jurisprudence on the rights of prisoners relating to right to health and disease mitigation (human immune-deficiency, tuberculosis) may offer additional protections. Broad consideration of environmental health factors in light of threats of disease in detention spaces warrant further consideration when establishing the threshold of the severity of conditions and when assessing detainee vulnerability (not limited to age, gender or health status). A public health rights-based argument can shape effective immigration detention policy reform by enhancing protective parameters based on broad definitions of health vulnerability within immigration detention spaces.
ABSTRACT
OBJECTIVES: The catastrophic effects of armed conflict, particularly prolonged armed conflict, on individual and public health are well established. The 'right' to healthcare during armed conflict and its lack of enforcement despite a range of United Nations mandated requirements regarding health and healthcare provisions is likely to be a significant feature in future conflicts, as zoonotic-induced pandemics become a more common global public health challenge. The issue of enforcement of health rights assurance and its implications for the public health management of global pandemics such as coronavirus disease 2019 (COVID-19) in and between countries and regions in conflict is the objective of this Review. STUDY DESIGN: A narrative review was conducted. METHODS: Referenced to the framework of International humanitarian law (IHL) and International human rights law (IHRL) to explore and discuss the deficits in health rights assurances in conflict settings and illustrate how gaps in protection and lack of enforcement compounds the disease response. Both IHL, and IHRL can be leveraged to ensure human and health rights are assured in conflict settings. There is a distinct lack of international criteria with regard to standards of healthcare coverage, infrastructure and service preservation to the civilian population during times of armed conflict. This has far reaching consequences when confounded by a pandemic or even localised disease outbreak. RESULTS: We illustrate how in a pandemic disease emergency, such as COVID-19, all life is threatened; and how leaving the citizen population exposed to this contagion is a human rights breach and an indirect method of warfare. The consequences of failure to effectively address such pandemic infections, (i.e. COVID-19), in a conflict setting are potentially catastrophic as prevention and containment responses are severely constrained by state insecurity, political instability, terrorism, repression, rights abuses, and displacement of citizens. Neglect by State actors potentially constitutes a breach of the universal right to life. States cannot justify their failures to mitigate disease based on claims of lack of resources, even when available resources are minimal. Where discrimination of people with a disease, such as COVID-19, or minority groups at the point of access to health facilities occurs, this further breaches the principle of medical neutrality. CONCLUSIONS: The example of the COVID-19 response may offer a viable route to leverage greater access and coverage of healthcare in conflict and humanitarian settings. A radicalised partnership approach during these times of emergency is warranted, based on an ethical 'humanitarian intervention' approach to provide care to all affected by contagious disease in conflict settings.