COVID-19 and Humanitarian Access for Refugees and IDPs: Part 2 – Syria and Bangladesh

(Editor’s note: This is the second of two articles on findings by the international legal foundation Global Rights Compliance related to the application of international human rights and humanitarian law during COVID-19. Part I considered states in conflict that also suffer food insecurity, using Yemen as an example. This installment considers the effects on refugees and internally displaced persons, with Syria and Cox’s Bazaar in Bangladesh as examples.)

As the novel coronavirus was beginning to spread more rapidly outside of China in February, Cambridge University public health specialist Dr. Adam Coutts noted that refugees and IDPs in general are especially vulnerable to this infection and other diseases. He cited their “high geographical mobility, instability, living in overcrowded conditions, lack of sanitation, and WASH (waters, sanitation and hygiene) facilities, and lack of access to decent health care or vaccination programs in host communities.”

On the five Greek islands housing refugees primarily from Syria, Iraq, and Afghanistan,  approximately 37,000 people are confined to camps that have facilities for just 6,095. These conditions exacerbate the risks of disease spread. As leading humanitarian figures observed in a recent webinar, a further aggravating factor can be stigma and discrimination by host countries. A recent example is Lebanon’s restrictions, including curfews, that solely targeted Syrian refugees. As Human Rights Watch highlighted, COVID-19 is not selective, and there is no evidence that extra measures applied to refugees in the name of security will limit the spread of the virus or its public-health impacts.

An estimated 70.8 million people are displaced globally, having been forced to flee their homes because of outright war, other types of conflict, or persecution. More than 80 percent of these people are located in low or middle-income countries with weak health, water, and sanitation systems. Managing an effective response to the coronavirus for refugees and internally displaced persons (IDPs) is especially challenging in war-torn countries. A number of factors contribute to refugees, asylum-seekers, and migrants being more exposed to COVID-19: extreme density of populations in camps, making it functionally impossible to practice social distancing; lack of access to clean water and sanitation; lack of access to adequate health care; shortages in medical supplies; and a severe lack of testing capabilities.

A further danger for people seeking protection from war or persecution is the numerous border closures and travel restrictions implemented to limit the spread of COVID-19. The United Nations High Commissioner for Refugees (UNHCR) and the International Organization for Migration (IOM) on March 17 announced the temporary suspension of resettlement travel for refugees due to the pandemic and the resulting global health-safety concerns. In addition, many countries, including for example, Uganda, have suspended arrivals of refugees and asylum seekers, putting them at risk of being forced to return to situations of danger. Search and rescue missions in the central Mediterranean Sea, where more than 16,000 migrants have died since 2015, have also been suspended.

In addition, the impact of COVID-19 will be disproportionately felt by women, who often form the majority of displaced populations in conflict-affected regions. Women are more severely affected by the suspension of development and humanitarian programs, and the suspension of women’s and girl’s services such as shelters to protect them from domestic abuse will pose significant risks for their security. Moreover, the impact of business shutdowns and stay-home orders on livelihoods during public health emergencies can be especially damaging for women, who more commonly sustain themselves through informal work or low-wage activities. Similarly, the suspension of educational activities can have detrimental consequences for girls, including by further exposing them to violence with few of the normal safeguards in place to spot abuse.

It is essential that States respect their obligations under international human rights and humanitarian laws in their response to COVID-19 and in designing effective restrictive and preventive measures. In the words of Hilary Gbedemah, chairwoman of the U.N. Committee on the Elimination of Discrimination against Women, the pandemic can be combatted “only by including all people in COVID-19 strategies.’’

Syria

The Syrian conflict is nearing its 10th anniversary and has been extremely complex, characterized by a shifting landscape of external actors engaged with armed groups and the regime of Bashar al-Assad.

One particularly destructive military strategy employed by Assad’s forces — targeting civilian populations in urban enclaves held by the opposition — was the “kneel or starve” strategy. The army would seal off besieged areas, denying access to food, water, health care, and other essentials; conduct targeted attacks on bakeries, health facilities, and markets; impede access to humanitarian aid; and attack humanitarian relief workers. This and similar siege warfare tactics such as air raids and artillery bombardments, including on hospitals and other health facilities, are common in Syria, and the effects will become all the more acutely felt as the coronavirus spreads across the country.

As a result of the ongoing conflict, the majority of the Syrian population — around 11 million people — have been forced to seek refuge, mostly in neighboring countries. About 5.6 million Syrians are in Turkey, Lebanon, Jordan, Iraq, and Egypt, and 6 million more are displaced within Syria. The recent escalation of conflict in northern Syria in December and early this year displaced an estimated 900,000 additional people, most of whom are considered “vulnerable” and remain dependent on humanitarian assistance. About 54 percent of these communities have problems receiving essential humanitarian assistance due to restrictions on their freedom of movement imposed by the various military forces controlling these areas. According to the U.N. Food and Agriculture Organization, approximately 6.5 million people in the country are food insecure, meaning they “lack regular access to enough safe and nutritious food for normal growth and development and an active and healthy life.” A further 2.5 million are at risk of falling into that category.

Damaan Humanitarian Organization, a partner of Global Rights Compliance, has reported that following the escalation of hostilities in December, IDPs are scattered all over the country’s north, especially in remote and inaccessible areas. They lack shelter, food, water, and sanitation, and medical services only reach most settlements once every two to three weeks. In northwestern Syria, refugee and IDP settlements are especially vulnerable to respiratory infections because of crowded conditions where social distancing is not an option, and due to similar shortages in shelter, food, clean water, and sanitation, as elsewhere in the north.

Similar to the conditions in Yemen that we highlighted in Part I of this series, Syria too is left with a decimated health sector. Attacks against medical facilities and health workers have been a hallmark of the Syrian conflict. Between 2016 and 2019, 494 such attacks were confirmed, of which 337 were reported in Syria’s ravaged northwest region, according to the World Health Organization. The renewed onslaught in Northern Syria since December 2019, as the Assad regime and its Russian backers have sought to recapture the last rebel-held territory, has included attacks that have hit 61 medical facilities in Idlib Province alone. Only half of the 550 health facilities in that area remain active due to damage from attacks or threats of future ones.  These attacks against medical facilities are a clear example of the ways conflict impacts an individual’s right to health under international law.

The Syrian government confirmed its first case of COVID-19 on March 23. At the time of writing,10 cases had been confirmed, including two deaths. WHO has issued warnings of the possibility of a deadly outbreak among a population that is already ravaged by war, in need of humanitarian assistance, and severely lacking in adequate health facilities.

U.N. Special Envoy for Syria Geir Otto Pedersen called on March 23 for a complete and immediate nationwide ceasefire in order to confront COVID-19. The same day, U.N. Secretary-General António Guterres called for a global ceasefire to help combat the pandemic, emphasizing that:

[I]t is the most vulnerable — women and children, people with disabilities, the marginalized, displaced, and refugees — who pay the highest price during conflict and who are most at risk of suffering ‘devastating losses’ from the disease.

Syria and its neighbors also have imposed numerous restrictions on cross-border movement to stop the spread of COVID-19. International flights to and from Damascus International Airport have been suspended and the Syrian Ministry of Health had implemented health screening at land crossings and airports prior before most were closed entirely, with exceptions for relief shipments and the movement of humanitarian and international organization personnel. A number of humanitarian organizations — U.N. agencies, as well as international and non-governmental organizations — have reported operational delays and disruptions due to such measures. Yet, the timely provision of such humanitarian assistance remains essential, especially in view of the impact the pandemic might have once it spread more widely in Syria.

Cox’s Bazaar, Bangladesh

Cox’s Bazaar in Bangladesh is the world’s largest refugee settlement, hosting more than 1 million Rohingya refugees, many of whom fled Myanmar in the summer of 2017, amid a series of “clearance operations” by Myanmar security forces that forced them from their homes in Rakhine State. (For more on GRC’s work with the Rohingya, including the use of GRC’s Basic Investigative Standards App to document violations, see here and here.)

As of March 24, one COVID-19 case has been confirmed in the Cox’s Bazaar District, with no confirmed cases in the camps themselves. The day after this first confirmed positive test, Bangladeshi authorities suspended all relief work in Rohingya refugee camps apart from maintaining the provision of essential services (health, nutrition, information hubs, hygiene promotion etc.). Fifty international organizations have reported recently that the camp is being encircled by barbed wire fencing to confine the Rohingya inside and prevent them from leaving and called for Bangladesh’s prime minister to halt the further construction of the barbed fence.

A particular issue that makes Cox’s Bazaar more vulnerable to COVID-19 is the lack of access to information. The government of Bangladesh has banned Rohingya refugees from using the Internet and has imposed severe restrictions on phone usage since September 2019, hindering the capacity of humanitarian aid providers to communicate preventive measures such as promoting hygiene practices and other preparedness advice related to the coronavirus. Since September 2019, the government has ordered telecommunications operators to restrict internet coverage, and authorities have confiscated more than 12,000 SIM cards.

Fifty organizations signed a joint letter on April 2 calling on the Bangladeshi government to “immediately lift all restrictions that prevent Rohingya refugees from freely accessing mobile communications and the internet and also halt the construction of fencing aimed to confine Rohingya refugees in camps.” The groups noted that the restrictions pose dangers not only to the refugees, but also to host communities and aid workers who are forced to deliver critical health information in person, heightening their own risks of exposure, too.

At a time when so many people around the world are glued to hourly updates on COVID-19, imagine the terror of being cut off physically and technologically, once more awaiting the worst. Communication is key to the timely and effective management of a potential outbreak and, as will be outlined below, forms an important part of the matrix of human rights that need to be respected and promoted during a pandemic like this one.

It is essential that refugee and IDP needs be included in a comprehensive plan to address the pandemic. But even as countries hosting large numbers of refugees prioritize their own citizens, displaced persons face various forms of stigma and discrimination, which can limit their ability to access health services. Many European politicians, as a pretext to implement harsh border closure policies, have already begun scapegoating migrants and refugees with baseless allegations that they are responsible for the spread of the virus.

In some countries, the national government may not even retain full control over certain areas containing large populations of refugees or IDPs, further impeding access to health care by those vulnerable populations. Additionally, instability and the very size of a refugee population may impede an effective pandemic response.

Previous outbreaks, including Ebola, cholera, and SARS, have demonstrated the importance of devising a comprehensive and coordinated response plan in order to limit the impact of disease in already dire refugee settings. The U.N. refugee agency (UNHCR), IOM and WHO, along with the International Federation of Red Cross and Red Crescent Societies, have released interim guidance on COVID-19 preparedness in refugee camps and settlements, providing practical solutions for minimizing the spread.

International Legal Obligations: Human Rights

As outlined in Part I of this series, it is especially important in conflict-affected areas and refugee settings to protect vulnerable communities and to guarantee that measures implemented in response to the spread of the novel coronavirus are carried out in accordance with international human rights law (IHRL) and international humanitarian law (IHL). Under IHRL, relevant principles include the right to “adequate food” as a part of the “right of everyone to an adequate standard of living” and the “fundamental right of everyone to be free from hunger” as recognized in both the Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic Social and Cultural Rights (ICESCR). The right to life and the right to health have also been linked to the right to food, as discussed in Part I. Human rights are interdependent, indivisible and interrelated, meaning that violating one right may impair the enjoyment of other correlated rights.

Additional rights of refugees and IDPs are relevant in the context of the likely spread of COVID-19 to Syria and Cox’s Bazaar. The UN High Commissioner for Refugees set out eight key considerations relevant to refugees in the context of COVID-19. The right to shelter and adequate housing, enshrined in Article 25 of the UDHR and Article 11 of the ICESCR, guarantees the “right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing.” Article 25 further provides for rights to “medical care and necessary social services.” Article 11 creates a right to the “continuous improvement of living conditions.” The U.N. Committee on Economic, Social and Cultural Rights (CESCR) states in General Comment No. 4 that the right to adequate housing should not be interpreted narrowly and should be seen as the right to live somewhere in security, peace, and dignity.

Another fundamental human right relevant to the protection of vulnerable populations is the right to water and sanitation, which is not explicitly codified in the UDHR nor the ICESCR. The human right to water finds a clear definition in CESCR General Comment No. 15, which states that everyone is entitled to sufficient, safe, acceptable, physically accessible, and affordable water for personal and domestic uses. Water is indispensable for leading a dignified life and, given its centrality to basic life functions, is a prerequisite for the realization of other human rights. The centrality of the right to water to other rights was explicitly recognized in U.N. General Assembly Resolution 64/292, passed in 2010, which specifies that the right to safe and clean drinking water and sanitation is a human right that is essential for the full enjoyment of life and all other rights.

Extremely relevant in the case of the internet ban imposed within Rohingya refugee camps by the Bangladeshi authorities is the right to information enshrined in Article 19 of the International Covenant on Civil and Political Rights (ICCPR). While this right may be subject to certain restrictions on grounds of protecting national security, public order, or public health or morals, any such restrictions must be necessary, the least-restrictive alternative, and provided for by law.

The right to information must be protected in any measures taken to tackle the outbreak. Relatedly, proper and accurate information concerning the main health problems in a community – especially regarding methods of preventing and controlling such problems — constitutes a core obligation within the right to the highest attainable standard of health enshrined in Article 12 of the ICESCR.

Additionally, States must refrain from censoring, withholding or intentionally misrepresenting health-related information. There is also a dearth of culturally and linguistically accessible information about COVID-19, as noted by The Lancet, demonstrating the need for the right to information to be effectuated in a way that enables refugees and migrants to understand risk factors and how to best protect oneself and others.

As previously analyzed in Part I, CESCR General Comment No. 14 clarifies that the right to health imposes obligations upon States to provide disaster relief and humanitarian assistance in emergency situations. Particularly relevant in relation to refugees, displaced people, and migrants is that the rights guaranteed in the ICESCR explicitly apply to “everyone” and, as per Article 2 of the ICESCR, must “be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Specifically, General Comment No. 14 prohibits any discrimination in access to health care and underlying determinants of health, as well as to means and entitlements for their procurements. In addition, CESCR General Comment No. 20 states:

The ground of nationality should not bar access to Covenant rights, e.g. all children within a State, including those with an undocumented status, have a right to receive education and access to adequate food and affordable health care. The Covenant rights apply to everyone including non-nationals, such as refugees, asylum-seekers, stateless persons, migrant workers and victims of international trafficking, regardless of legal status and documentation.

The ICESCR does not contain an explicit derogation clause. Instead, Article 4 provides that a State is subject to Covenant rights “only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.” Compared to purposes listed in other human rights treaties as grounds for limiting human rights (e.g. “public order”, “national security”), Article 4 ICESCR allows for limitations solely for the purpose of “promoting general welfare.”

A further boundary set by the wording of the provision is the requirement that the limitation be compatible with the nature of the rights protected by the Covenant, which generally the CESCR has interpreted as corresponding to the inviolability of a minimum core content of ESC rights. Accordingly, the Limburg Principles state that “[t]he article was not meant to introduce limitations on rights affecting the subsistence or survival of the individual or integrity of the person,” and the compatibility requirement entails that a “limitation shall not be interpreted or applied so as to jeopardize the essence of the right concerned.” As in Hutter’s analysis, imposing limitations on the core content of rights would deprive the ICESCR of its effet utile or raison d’être.

The requirement in Article 2(1) ICESCR that the Covenant rights should be achieved through progressive realization to the maximum of the State’s available resources effectively weakens State obligations. However, the committee has held in General Comment No. 3 that “a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party,” including for example, essential foodstuffs, primary health care, basic shelter or housing, and the most basic forms of education.

The Committee further observed that even in cases of severe resource constraints, vulnerable members of society must still be protected through the adoption of relatively low-cost targeted programs. In General Comment 14 in relation to the right to health, the CESCR further reinforced the idea that it does not accept severe retrogressive measures impacting minimum core rights of individuals. Furthermore, it is important to note how Article 2(2) ICESCR is immediately effective and proscribes any discriminatory allocation of resources.

International Legal Obligations: Humanitarian Law

As outlined in Part I, IHL continues to apply despite the declaration of the COVID-19 pandemic. The Syrian government and opposition forces are bound by IHL standards, which apply in situations of international and non-international armed conflicts. The main rules concerning humanitarian relief operations codified in the Geneva Conventions and their Additional Protocols require that each party to a conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need. Customary IHL rules apply together with the treaty provisions.

Particularly relevant customary law in the case of refugees and IDPs is Rule 88 of the International Committee of the Red Cross’ (ICRC’s) study on customary IHL, which encapsulates the notion of “adverse distinction” and expressly prohibits the “adverse distinction in the application of IHL based on race, color, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria” in the treatment of civilians and persons hors de combat. Furthermore, as per Rule 131 of the ICRC’s study, all possible measures must be taken to ensure that displaced civilians receive satisfactory conditions of shelter, hygiene, health, safety and nutrition.

While IHL does not specifically protect migrants in humanitarian settings, it does protect migrants generally as civilians in the context of armed conflict. Under IHL, the right to health is protected through the requirement that each party to a conflict ensure that adequate medical care is provided without discrimination to the wounded and sick as far as practicable and with the least possible delay. Warring parties are also required to refrain from impeding the provision of care and to facilitate the passage of medical personnel.

International Legal Obligations: Refugee Law

All told, while the 1951 Refugee Convention does not address the rights to food, water, or health care, refugees are nonetheless protected under relevant IHRL and IHL principles.

Yet over the past month, States have increasingly resorted to the implementation of restrictive measures, including border closures and travel restrictions, in order to counter the spread of COVID-19. Certainly it falls within States’ sovereign powers to regulate the entry of non-nationals into their territory, but this power is not unlimited. Article 33 of the Refugee Convention prohibits any State conduct leading to the return of refugees in “any manner whatsoever” to territories where their life and freedom would be threatened. In the UNHCR’s interpretation, that includes non-admission to the territory in the first place at a border. Specifically, U.N. High Commissioner for Refugees Filippo Grandi has called on States closing their borders to guarantee that such closures do not impede access to asylum-seekers or force people to return to situations of danger.

Conclusion

Notwithstanding that the right to freedom of movement enshrined in Article 12 of the ICCPR is not an absolute right and can be limited by law to protect public health, States cannot use the ongoing COVID-19 pandemic as a basis to target particular groups, minorities, or individuals. The global public-health crisis should not function as a cover for repressive action under the guise of protecting health, especially when such action places already vulnerable populations at heightened risk.

Refugees, IDPs, asylum seekers and migrants — many of whom are women, children and the elderly — are bound to be disproportionately affected the pandemic. It is essential that States work diligently to improve the safety of the vulnerable, especially those already confined to camps and settlements. While these are exceptional times, international law can and should be our road map. While there is no easy fix, solidarity against COVID-19 means we don’t abandon those most at risk.

IMAGE: Rohingya refugees, without wearing any mask or any other safety gear as a preventive measure against the COVID-19 novel coronavirus, wait in a relief distribution point at Kutupalong refugee camp in Ukhia, Cox’s Bazaar, Bangladesh, on March 24, 2020. (Photo by SUZAUDDIN RUBEL/AFP via Getty Images)

  

About the Author(s)

Rebecca Blumenthal

Legal Intern at Global Rights Compliance assisting on-going projects on the Starvation team and the COVID-19 Response.

Catriona Murdoch

Senior Legal Consultant at Global Rights Compliance, an international legal partnership committed to enhancing compliance with international law, particularly international humanitarian law (IHL) and human rights. Follow her on Twitter (@CatrionaMurdoc1).