Spotlight on Médecins Sans Frontières UK

Each month, the HRC Blog features a significant individual or team from the Human Rights community to go under the Spotlight, answering questions put by students from the University of Essex.  This month, we feature the team from Médecins Sans Frontières (MSF) UK.

About MSF UK

Doctors-Without-BordersMSF is an international, medical humanitarian organisation working to save people’s lives in conflict zones, natural disasters and epidemics.  Independent, neutral and impartial, MSF aims to alleviate suffering, protect life and restore respect for human rights irrespective of religion or political affiliation.  As COVID-19 continues to spread, MSF teams are responding to the pandemic in more than 70 countries where they already have programmes, while opening projects in new countries as required.  In Yemen, for example, MSF is supporting the Ministry of Health to run Sanaa’s principal centre to treat coronavirus and is working across the country to support a collapsed health infrastructure during what the UN has described as the world’s worst humanitarian crisis.

Students’ Questions Answered

The students at Essex are really excited to have the opportunity to send in their questions to the team at MSF, to learn more about their humanitarian work and some of the challenges they face, particularly during this year of the COVID-19 pandemic.  We are honoured to have two members of the their team to share their expertise:

Elizabeth Harding (EH) is MSF UK’s humanitarian representative, having previously held operational positions in Sudan, South Sudan, Philippines, Myanmar, India, Somalia and Ethiopia.

Roz Scourse (RS) is a policy advisor for MSF’s Access Campaign which works to bring down barriers that keep people from getting the treatment they need to stay alive and healthy.

 

 

COVID-19

Coronavirus_greenWhat are the challenges MSF face in terms of humanitarian access in the COVID-19 context? For example, have you had any problems accessing countries that may have locked their borders?  

(EH): Finding ways to continue with our regular medical activities has been a challenge in the COVID-19 context. Challenges with getting staff and supplies to where they were needed were particularly acute in the first few months of the pandemic. In fact, most of the issues that we had regarding getting and maintaining access was more of an exacerbation of our challenges in ‘normal times’.  

In terms of the threat that Covid-19 poses for the people we serve, we know that social distancing is impossible in cramped camps like Moria on Lesbos, and hand hygiene is undoubtedly more challenging where there is no running water, for example. COVID-19 has shown how people who are already vulnerable are facing additional risks.  

 

 

What would you see as some of the solutions that need to be put in place during the pandemic so that much needed aid reaches those most in need? 

(EH): We need to ensure that regular health services continue, and that people can access them. Despite the pandemic, babies are still being born, children are still catching preventable diseases, and conflict is still causing life-threatening injuries. It’s crucial that these medical needs are not overlooked or deprioritised as this would have a lasting impact. 

Blockages like insecurity, fear and movement restrictions present challenges but we are finding ways to adapt and minimise their impact. For example, rather than implementing mass vaccination campaigns at fixed sites where people would gather, our team in Burkina Faso used a door-to-door strategy to ensure that measles vaccinations could continue.  

 

 

Dr Theo - MSF Congo

Dr Theo – MSF Congo – ebola intervention Image courtesy of Carl Theunis/MSF

How has your experiences of dealing with other exceptional circumstances/disasters, such as “Ebola” or “terrorism”, helped in your response to COVID-19? 

(EH): MSF has a long history of responding to epidemics and has been able to use this experience when responding to COVID-19. A crucial lesson learned from our experience responding to Ebola is that interventions must be targeted to the context – one size does not fit all.  

Ebola also showed us that any intervention must be based in community acceptance. Community acceptance of the intervention and any necessary restrictions is the cornerstone for any public health intervention. An understanding of the need to be tested and treated is crucial.

But clearly there are unique elements to this pandemic too. COVID-19 is affecting countries around the world, rather than existing as an outbreak in a single region. This brings with it more challenges in terms of the different reactions of different states and availability of supplies. 

 

 

Because of the pandemic, states have adopted state-centred approaches to regulations, giving them exceptional powers based on a medical emergency.  What were the consequences of this for MSF at the initial phase in the complete lockdown of humanitarian activities? 

(EH): While experiences differed across different countries, in some contexts it did became more difficult for staff to travel and for supplies to be sent where they were needed in the initial period.  In some places we had to adapt our response and to prioritise what we really needed to do.

Crucially, almost 85% of MSFs workforce in our projects are host-country staff who are locally hired and were able to continue providing medical care.

 

 

Giving birth in Dasht-e-Barchi

Giving birth in Dasht-e-Barchi, Afghanistan Image courtesy of Sandra Calligaro

I know MSF works very efficiently in developing countries, especially those with humanitarian emergencies arising. However, during the covid-19 pandemic developed countries have also complained that they do not have the resources to handle the crisis. Do you think that is true? Have you provided assistance or training in the UK ,for example, during the lockdowns? 

(EH): Our COVID-19 response has included interventions within Europe to meet very specific needs and gaps in support for particularly vulnerable populations including in France, Belgium, and the UK.  

In the UK we supported the COVID CARE centre for the homeless in London. This reflects MSF’s ambition to provide assistance according to the needs, irrespective of location. Our team in London were able to partner with other actors to fill a gap when needs were very high and then we were able to hand our programme over. This work in Europe did not divert from what we are doing elsewhere, with MSF present in over 70 countries.   

 

 

Are MSF doctors having to make decisions about who gets priority for treatment when hospitals are overwhelmed with COVID cases? If so, how are those decisions made? 

(EH): As a medical organisation, all care is done on a triage basis, so according to the urgency of the patient’s needs. In a lot of places where we work there is often limited resources so we have to adapt to work within such limitations, providing the best care possible and in the best interest of the patient.  

(RS):  Ideally, we would like to see a situation where these decisions don’t have to happen, and we don’t have shortages or the need to ration available treatments. In relation to COVID-19 medical tools (i.e. potential future treatments, ventilators, PPE etc.) we need to ensure there are no barriers that are artificially limiting supplies, such as intellectual property barriers and a lack of technology transfer from pharmaceutical companies. Past experiences have shown that when available supplies are limited, this can lead to nationalistic control and hoarding, and result in barriers to access predominantly for low- and middle-income countries (LMICs). We are already seeing this with COVID-19 vaccines. 

As a starting point, we need to ensure global open sharing of data and knowledge related to COVID-19 medical tools, and that all intellectual property related to COVID-19 technologies are waived. This has already been proposed by South Africa, India and other countries at the World Trade Organisation in order to maximise global supplies of COVID-19 technologies and bring down prices. All products should be openly licensed, and technology transfer should be pursued to ensure that other manufacturers around the world are able to start producing successful products. 

 

 

COVID_VaccineWill MSF get access to COVID-19 vaccines and how will the distribution of those vaccines to countries without stable governments, such as Yemen, be prioritised and managed? 

(RS): We are pushing for proportional shares of COVID-19 vaccines to be made available to populations in crisis‐affected humanitarian settings, including refugees, asylum seekers, marginalised communities and people living in conflict areas.  These are groups who have the least access to, or are excluded altogether from, national health services. A “global humanitarian buffer stock” was originally built into the design of the COVID-19 Vaccines Global Access Facility (COVAX), led by the World Health Organisation (WHO) and the Global Vaccine Alliance (Gavi), where 5% of supplies were to be dedicated to humanitarian needs.  However so far this has not materialised, especially since COVAX is struggling in general to secure enough doses of future COVID-19 vaccines. 

MSF is in discussions with WHO and others on how a humanitarian buffer stock could work, with supplies from COVAX or directly from companies or countries.  France have already committed to contributing some of their doses agreed through bilateral deals with companies to a humanitarian buffer stock. We are asking other high-income countries (HICs) with bilateral deals (e.g. UK, EU) to commit to the same. 

Countries such as Yemen are part of the COVAX Advance Market Commitment (AMC), which consists of 92 low and middle-income countries (LMICs) who will be able to receive donor support from other “self-financing” countries within the COVAX Facility, whose contributions will fund vaccine doses for these 92 LMICs. Allocation of doses should be in line with the WHO Fair Allocation Framework and aims to reach priority populations within all countries included.  However, this remains to be seen, largely because many HICs have made bilateral deals with companies for their COVID-19 vaccines outside of COVAX, leaving limited available global supplies for COVAX and therefore LMICs. 

 

 

The global health system seems to lack an international standard of response to global health crises, prompting a politicised and state-interest approach.  Every state regulates for itself, prioritising its own needs, leaving those in greatest need at the back of the queue.  However, IHL advocates a humanitarian principle of impartiality where help should go first to where it’s needed the most.  How is MSF able to reconcile IHL with political reality? 

(RS): In the area of access to medical treatments, diagnostics, and vaccines: MSF have been advocating for equitable access to COVID-19 medical tools, prioritising health-care workers globally and those at highest risk/of most need.  This has not materialised in many ways: HICs have pre-booked the vast majority of future COVID-19 vaccines, as well as issuing export bans on potential treatments (e.g. UK export ban on dexamethasone).  85% of the available global supplies of the Pfizer vaccine until the end of 2021 have already been sold to HICs, meaning there will be months if not years of delay before LMICs could have access (the Pfizer vaccine may not be the most appropriate for LMICs due to the cold chain requirements, but it demonstrates this issue). 80% of the Moderna vaccine have also been sold to HICs. 

As such, we are focusing on advocating for efforts which aim to maximise available supplies (e.g. IP waiver described above), as well as manufacture by developing countries so that in the medium to long term, they can supply to their own populations and regions.  This requires the lifting of IP barriers, but also technology transfers from companies producing these products to transfer this technology, knowledge and know-how to manufacturers who are able to produce. 

 

 

OTHER

Measles intervention in Boso Manzi

Measles intervention in Boso Manzi – Image Courtesy of MSF/Caroline Thirion

How would you assess peoples’ ability to access healthcare in conflict areas at the moment? 

(EH): Conflict can undoubtedly hamper people’s access to healthcare. Some of the key barriers for individuals to access healthcare in conflict areas include whether the person knows and feels comfortable to come to a health centre, as well as very practical considerations including overcoming distance in order to reach care, and whether the routes available are safe. In some such settings, people can face limited options in terms of the type of care present (primary, secondary, maternity).

In conflict zones, as elsewhere, our teams consider the risk of acute health needs, for example trauma or epidemics (measles, diphtheria, cholera). These are made more challenging in situations of conflict where recent displacement or congested camp settings may also result in increased need for healthcare.

 

 

In MSF experience, what are some of the complementarities between public health and other frameworks such as international humanitarian law which contain fundamental legal protections including on the delivery of healthcare services?

(EH):  Elements of these frameworks very much influence MSF’s work around the world. While MSF is founded on the principles of independence, neutrality and impartiality, we are also guided by the principles of medical ethics and see the influence of public health and IHL in our work.  For example, under IHL, MSF expects access to medical care to be protected even in conflict zones, while public health approaches influence how we carry our work in conjunction with the communities we seek to serve.

 

 

What is the negotiating process when MSF enters war or conflict zones? What are the challenges of this process?

(EH): MSF teams try to communicate with all actors present in any given area, including the authorities, actors involved in the conflict, and the community. Our safe access depends upon the acceptance of all these actors.   Of course these discussions can be complicated but the security of the team and the acceptance of the community are vital.

 

 

MSF Mocha surgical hospital

MSF Mocha surgical hospital, Yemen – Image courtesy of Agnes Varraine-Leca/MSF

There is an increasing call to reduce the dependency of developing countries on foreign aid and, focus on strengthening the country’s autonomy to make decisions on their development priorities.  As an organisation working in areas of conflict zones, natural disasters and epidemics, how does MSF feel they could strengthen the healthcare system in these countries during these periods of transition? 

(EH): As a medical humanitarian organisation, MSF is designed to respond fast to emergencies. Our model, including our independent financial model, means that we can act quickly to help the people in greatest need. These are not normally intended as long-term responses, but as critical responses to meet urgent needs. Our medical teams step in where the needs are acute, and close projects or hand over to other actors when this acute phase ends.

The majority of our projects involve working with the existing health systems to provide support, supplies and to build capacity – for example, in Sana’a, Yemen, MSF supported the Ministry of Health to run the city’s principle centre to treat COVID-19.

 

 

When you are working in a country like Yemen, so politically fractured, what are the issues with negotiating access/delivery of supplies etc?  

(EH): In negotiating access and the unhindered delivery of medical care, MSF commitment to its principles of independence, impartiality, and neutrality is crucial. These principles enable us to offer assistance based solely on our assessment of medical need.

Wherever we go, we make sure that people in the communities where we’re working understand that we will provide assistance to anyone who needs it. We run radio campaigns and hold meetings with everyone from government ministers to local armed groups, community elders to women’s groups.

Gaining their acceptance is key to our being able to work in difficult environments such as Afghanistan, Democratic Republic of Congo, and Yemen.

 

 

Drones targetWhat transparency is there from western governments around their counter-terrorism activities in countries like Somalia, Pakistan and Yemen?  In particular, what processes are in place between MSF and the US for example regarding potential drone strike activity that might impact on your work or endanger your field staff?

(EH):  We expect states to uphold their responsibilities under IHL, which protects medical facilities against being targeted.  In areas of high risk we do as much as possible to inform all actors of where we’re working, what we’re doing and why we are there.  

 

 

When working in conflict zones, how do you ensure an equality of treatment for all sides, without intimidation from dominant political/tribal forces? 

(EH): In a conflict situation, we don’t take sides. We go where people’s medical needs are greatest. In the ward of one MSF field hospital, you might find wounded civilians alongside injured soldiers from opposing sides. Hostilities and weapons have to be left at the gate.   Wherever we work, we make sure that local people understand that MSF is politically neutral and will provide assistance to anyone who needs it. 

 

Remembering Srebrenica

this article was originally posted on University of Essex News on 5th July

 

25 years ago this month, a genocide unfolded in Srebrenica.  To mark Srebrenica Memorial Week, Essex Human Rights Centre has issued a statement and Members of the Centre have offered reflections.

 

***Trigger Warning: this report contains descriptions of sexual violence and genocide.

The Srebrenica genocide

Between late 1992 and the spring of 1995, the conflict in the former Yugoslavia led to thousands of Bosnian Muslims seeking refuge in the area around Srebrenica, a town in eastern Bosnia and Herzegovina.

To protect this group, on 16 April 1993 the United Nations Security Council passed Resolution 819, demanding all parties treat “Srebrenica and its surroundings as a safe area which should be free from any armed attacks or any other hostile act.”

Despite this – and the presence of United Nations peacekeepers in the area – on 6 July 1995, Bosnian Serb forces attacked Srebrenica.

Following a decree from the Bosnian Serb leader Radovan Karadzic that the Bosnian Serb Army should make life “unbearable” for those living in Srebrenica, more than 8,000 Bosnian Muslim boys and men were detained, abused, tortured and executed.

The International Court of Justice and the International Criminal Tribunal for the former Yugoslavia established that the ethnic cleansing that took place in Srebrenica amounted to genocide.

 

A statement from Essex Human Rights Centre to mark Srebrenica Memorial Week 2020

In the worst mass atrocity on European soil since 1945, over 8,000 Muslims, including children, were massacred, in July 25 years ago. Today, we honour the memory of those who were slain in Srebrenica, express solidarity with the survivors and reflect on the lessons of that savagery.

The important lesson that we draw from this and other genocides is that they do not happen spontaneously. Such atrocities begin with attitudes of intolerance and unchecked expressions of hostility towards others based on their identity. They are led by entrepreneurs of hate, catalyzed by discrimination and powered by impunity. They tell a tragic tale of numerous missed opportunities and are an indictment of our collective failure to stop the escalation of intolerant attitudes to mass slaughter at every stage of that collapse. The Srebrenica genocide was the tragic outcome of a sustained campaign over several years that drew on discrimination, exclusion, forced deportation, torture, systematic sexual violence and mass murder.

All of us can and should act to combat such horrors. We must challenge the exclusion, scapegoating and stigmatisation that fray social capital and destroy the pillars of trust amongst various communities resulting in devastation for all. This is all the more important in our interconnected world where every one of us can contribute online and offline to build trust and promote inclusion.

 

 

Reflections

Dr Ahmed Shaheed, Senior Lecturer in the School of Law and UN Special Rapporteur on freedom of religion or belief said: “Today, as we remember Srebrenica, we join the surviving friends and families in paying tribute to the victims of this genocide. We call on all to be clear-eyed about the lessons of the past and reject discourses of denial, and to work collectively to strengthen the societal foundations of peace and trust. ‘Never again’ must well and truly mean ‘never again’.”

Dr Carla Ferstman, Senior Lecturer in the School of Law and Human Rights Centre, and formerly the Executive Legal Advisor of the Commission for Real Property Claims of Refugees and Displaced Persons in Bosnia and Herzegovina, one of the international institutions established as part of the peace process to address the consequences of ethnic cleansing, noted that: “The genocide in Srebrenica occurred within a context of ethnic cleansing involving mass expulsions of the civilian population, unlawful confinements, enforced disappearances, mass rape, sexual assault, torture, as well as the destruction of mosques and community centres. It has left massive scars on the local population. There have been vital efforts to secure accountability, which have resulted in important convictions of senior military leaders for the genocide. But it is also important to recognise the need to secure justice for victims, to recognise the suffering they have endured, and to ensure their right to a remedy and reparations. That fight continues.”

Dr Andrew Fagan, Director of the Human Rights Centre, said: “One of the main reasons for the establishment of the modern human rights movement was the Holocaust: a European genocide. Despite the development of a vast body of international human rights law and the growth of a global human rights movement, the world witnessed another European genocide barely half a century later.

“Srbrenica bears many lessons for us today. One of the most important is that the human rights community must never assume that our work is complete, particularly in those parts of the world where it is wrongly assumed that human rights are largely secure.

“The vital need to never become complacent is fundamental to the Human Rights Centre’s approach to supporting the human rights project and hence the importance of remembering the genocide suffered by Bosnian Muslims in Srebrenica in 1995.”

Our thanks to Amnesty International for the image used on this page.

 

 

 

Resisting the ‘Master’: How Memory can Advance Accountability for Sri Lanka’s Disappeared

By Stephanie Nicolle

In January 2020, newly elected President Gotabaya Rajapaksa claimed that Sri Lanka’s disappeared were ‘dead’.   Thereafter, the instructions communicated by the country’s highest office were brief.  ‘Death certificates’ would be issued to the families after conducting ‘necessary investigations’. The unrelenting finality of this messaging signalled to the families that the state had chosen to move on, and so should they.

Sri Lanka’s disappeared are among the highest in the world, resulting mainly from a nearly 30-year war and two Southern insurrections. Every year, on May 18, Sri Lankans remember the lives lost due to the war and those forcibly taken away. However, the current state’s commitment to deliver genuine accountability draws scepticism from the families of the disappeared.  On the one hand, the ‘investigations’ will be conducted under a president who served as the defence secretary during the final war years and immediately after. During that time, Rajapaksa and the then administration stood accused of committing war crimes. These allegations have cast doubts over the independence of the proposed investigations. On the other, the president’s messaging reinforces a familiar state narrative that has often denied, downplayed or deflected enforced disappearance.

This article presents a case for the role that memory can play in challenging the sense of finality conveyed by the state.  First, it reviews the memory advanced by the state that has dominated Sri Lanka’s post-war years, which can be explained through the concept of a ‘master narrative’. Thereafter, it analyses an instance where individual memories were able to resist the master narrative to a certain extent. Finally, it argues for a more ‘public’ form of remembering to effectively resist the state’s narrative and amplify calls for accountability.

 

Unravelling Sri Lanka’s ‘Master’

Prof. Brian F. Havel offers a useful way of understanding the political form and function of a master narrative.  To Havel, a nation’s master narrative comprises official memory.  It is an effort by the state to prescribe its selective, top-down version of events. Especially in post-conflict societies, the master narrative is perpetuated to reconcile citizens with the state.  Its ideological function often manifests through state-authored memorialisation projects, which help entrench it.

Sri Lanka’s post-war state advanced a specific master narrative.  This narrative framed the war as a ‘humanitarian’ effort and valorised state officials as ‘war heroes’. Such language disallowed the space for any recollection beyond the parameters of this narrative, including enforced disappearances.  State-authored memorialisation projects, promoting military triumph, indicate this erasure of alternative memories.

Individual memories that contested Sri Lanka’s master narrative were often dealt with through various strategies: (1) refutation, (2) reframing such memories as ‘exaggerated’ or a ‘betrayal of the war heroes’, and (3) reconciling such memories with the master narrative.

 

Resisting the ‘Master’

Given the dominance of the master narrative, we may then ask, ‘Can the master narrative be effectively resisted?’

Certain instances in Sri Lanka’s post-war years suggest the possibility of limited yet effective resistance. One such instance is the ‘Memory Wall’ erected by the Office on Missing Persons (OMP) in 2019, where families of the disappeared were invited to commemorate their loved ones. Commemorating the disappeared at the OMP—a government body—was, arguably, a significant moment for resistance campaigns led by the families.

Resisting the master_2

‘Memory Wall at the Office of Missing Persons (OMP) in Sri Lanka’. Image by Saliya Pieris

 

At the outset, the Memory Wall, albeit a temporary structure, stood as a site of resistance. It was a testament to the years of individual memories and struggles to resist the state’s pervasive master narrative.  Concurrently, it indicated a slight change in the post-war state’s response to enforced disappearance—from years of denying and discrediting to an extent of respect and recognition.

The Memory Wall, which held personal photos and penned messages, also opened an avenue for broader conversations on memorialisation.  It gave families the freedom to decide the memories they were comfortable with displaying.  The memories were, therefore, theirs to keep or share. This way, the Memory Wall stood as a marked contrast to other post-war memorials that served to legitimise the state-authored master narrative.

However, the social impact generated by the Memory Wall was short-lived.  Its significance was, to a great extent, limited to an intimate, private realm comprising the families.  This limitation likely curbed its potential to create momentum around resistance campaigns.

 

Broadening the Resistance

To effectively resist the master narrative, individual memories need to transcend the private realm and penetrate the social realm of remembrance.  They need to become part of public memory. One approach resistance campaigns can use to draw public support is memorialisation.

Memorialisations draw various responses.  For some Sri Lankan families of the disappeared, they convey ‘an end’ to the hope of meeting their loved ones. However, transitional justice practitioners continue to highlight the value of memorialisations.

Memorialisations tend to have significant restorative potential.  For the victims of past abuses, they provide a kind of reparation by publicly calling out perpetrators and recognising victims’ memories.  For the community, they urge reflection and foster empathy.  To this end, they remind us of the importance of collectively ensuring non-recurrence.

Memorialisations also attract myriad voices that are beneficial for resistance campaigns. One benefit relates to overcoming barriers to resistance. To date, state-led intimidation and surveillance attempts to silence traumatic truths from becoming public.  A larger collective can help build solidarity and create a safe space for individuals to speak.  The second benefit relates to overcoming a drawback of individual memory.

Often, the significance of individual memory, which comprises lived experience, ceases to exist when the holder of this significance is no more. In Sri Lanka, at least 70 relatives of the disappeared have passed away without receiving answers. By appealing to public consciousness, resistance campaigns allow for individual memories and campaigns to become ‘public’ and live on, despite the death of an individual.

Resisting the master_1

‘A family member holds a photo of a disappeared loved one’. Image by Human Rights Watch

Part of memorialising Sri Lanka’s past atrocities relating to enforced disappearance is confronting the legitimacy struggles over memory.  That is, the right to determine whose memories are publicly acknowledged and how.  To facilitate an inclusive form of public memory, memorialisations must balance the need to respect individual memories with the need to create collective resistance.  Here, Sri Lanka may learn from countries like Argentina and Chile, which have and continue to engage in these conversations.  Both Argentina’s Parque De La Memoria and Chile’s Museum of Memory and Human Rights grappled with highlighting victim-centred accounts, the extent of state involvement, and creating a public push for accountability.

Sri Lanka’s chapter on enforced disappearance risks being closed by a state advancing a sanitised narrative of the past.  By broadening the resistance, Sri Lanka finds itself as having an avenue to keep the space for accountability open.  In the pursuit of justice, this avenue is worth considering to firmly resist the ‘master’.

ABOUT THE AUTHOR

StephanieNicolle - headshotStephanie Nicolle works as a researcher in Sri Lanka. Her research interests mainly include ethno-religious conflict, memory studies, media ghettoisation and postcolonial discourse. She graduated from the University of Colombo with a BA (Hons.) in English and minors in International Relations and Sociology.

 

 

 

 

 

 

 

 

 

Proposed amendments to the Human Rights Act to disadvantage UK war crimes victims

by Alexandra Fowler (first published on Oxford Human Rights Hub)

On 18 March 2020, the UK Minister for Defence introduced into the UK Parliament his promised package of new legislation designed to ‘protect veterans’. Entitled the Overseas Operations (Service Personnel and Veterans) Bill, the proposed laws would amend the UK’s Human Rights Act 1998 (HRA) in ways that impact on its human rights obligations, including under the European Convention on Human Rights (ECHR).

Civil Claims by Victims in UK Courts

Civil claims for compensation in UK courts for death, abuse and other mistreatment amounting to war crimes can be brought in two ways; the first is an action in UK common law for the tort of assault and/or battery.  The second avenue is that under the Human Rights Act 1998, which was enacted to give effect to the UK’s obligations under the ECHR. Importantly for victims, Article 13 of the ECHR (see HRA ss6-8) requires a member State to grant an effective remedy (often monetary compensation) for violations of protected rights. The HRA/ECHR regime applies in whichever territory the UK exercises sufficient authority and control (jurisdiction), and this can occur outside EU territory (Al-Skeini). While time limitations may operate to refuse civil redress in tort, an HRA claim can still be upheld, such as in Alseran (2017).

Against this background, the Bill’s Section 11 proposes to insert a new provision (s7A) in the HRA which imposes a maximum of six years’ time limit (or 12 months from the date that the victim knew or ought to have known that the alleged violation was committed by UK troops) for bringing civil claims under the HRA in connection with overseas operations. Although this appears to bring things in line with the time period for personal injury claims under the Limitation Act 1980, the provision is troublesome because in recent conflicts in which the UK has been involved war crimes victims already face substantial difficulties in making claims. As in Alseran, many if not most victims have been prevented by both the local law and by logistics from making claims until long after the alleged abuse took place, often significantly more than six years. The existing HRA requires courts to take such factors into account in deciding whether the claim has been improperly delayed.  The new Bill will take this discretion away, resulting in most, if not all, of the remaining claims from Iraq and Afghanistan being time barred, and future claims running the risk of being so too.

US_Troops_Afghanistan

Is a Time Bar consistent with UK Obligations under the ECHR?

Is the time bar restriction in the new Bill consistent with the right to a remedy stipulated in Article 13 of the ECHR? Much of the European Court’s caseload deals with unreasonable delays in obtaining a remedy, and the Committee of Ministers has accepted that deadlines within national systems to accelerate or conclude investigations and/or the judicial process are legitimate (see Rec(2004)6 on the improvement of domestic remedies). Given the provisions in the Bill, many alleged victims will probably find that a judicial remedy is not available by the time they finally lodge a claim, but it is true that on the face of the law an opportunity has been given for a remedy in the courts.

Of course, remedies need not be judicial. The UK operated an extensive system of administrative remedies over the years of its involvement in Iraq, and its Ministry of Defence paid nearly 1500 claims totalling almost £22 million in compensation for war crimes over the period 2003/4 – 2016/7.  In addition, over 4500 claims from Afghan civilians had been made, up until 2015, resulting in out-of-court payments of estimated £5.3 million.

If this Bill is enacted, the operation of a credible administrative compensation mechanism will be essential to avoid potential liability for breaches of ECHR Article 13. Even so, it sends a very detrimental signal to the world about the UK’s commitment to justice and human rights.

 

ABOUT THE AUTHOR

Alexandra_fowlerDr Alexandra Fowler is a specialist in public international law at the University of Westminster, London. She holds a Doctor of Juridical Studies from the University of Sydney, and has taught international law and constitutional law at a number of Australian universities.  Her research interests include victim compensation in international humanitarian law, international human rights and international criminal law, and transitional justice;

International Human Rights News: Focus on Coronavirus in Conflict Zones

by Amita Dhiman, Lauren Ng, Julia KedziorekPauline CanhamBethany Webb-Strong, Alana Meier

As we all struggle to adjust to a new way of life that includes loss of freedoms, loss of income, food insecurity, healthcare systems under strain, and daily briefings from leaders using the language of lockdowns and death tolls, unknown during peacetime, there are those for whom this, and much worse, is a never-ending daily reality.   An estimated 2 billion people live in areas of conflict and fragility around the world and the ICRC is calling for an immediate response by humanitarian organisations before the virus takes hold in countries ravaged by war.  The UN Secretary General has called for a ‘global ceasefire’  across the world to support efforts in combating the threat of Covid-19.

Our news update this week focuses on five countries most devastated by conflict and least able to confront a new enemy that even the wealthiest of states are struggling with.

Afghanistan

Afghan_healthcentreFollowing decades of war, Afghanistan is not well-placed to contend with an outbreak of covid-19. Many Afghans who had fled to Iran, during the conflict have returned back to their country, creating a burden on the already fragile health care system.  Out of some 200,000 returnees, only 600 had been tested as of March 27 due to inadequate medical staff and equipment.  Afghanistan’s Public Health Ministry have estimated that 25 million could become infected, adding that 100,000 could die, and on 28th March, Kabul, a city of 6 million, went into lockdown.

The UN Deputy Special Representative for the country is urging warring parties to come together to “prioritize national interests”, following in-fighting causing delays in the measures agreed back in February, on American troop withdrawals and Taliban anti-terrorism guarantees.   Human Rights Watch suggested that “The two sides need to work together with the UN and humanitarian agencies to ensure that aid reaches the whole country, or a dire situation will become catastrophic.”

In a country with a 50 percent poverty rate and a resilience that has become a way of life, ordinary Afghans are helping each other by making masks, delivering food and landlords waiving rents to ease the burden on the most vulnerable.

Gaza

GazaLast week saw the first two cases of coronavirus in Gaza.  Its delay has predominantly been attributed to the pre-existing border restrictions placed on the movement of people in Gaza.  The two individuals diagnosed had recently returned from Pakistan and have since moved to isolation.  Hamas, the militant organisation governing Gaza, has since closed its street markets and wedding halls, and urged citizens to practice social distancing in an attempt to slow the spread of coronavirus.

Yet with an overstretched healthcare system following the Israel-Egyptian blockade and decades of cross-border conflicts between Israel and Palestine, an impending outbreak carries a high level of concern in Gaza.  In one of the most densely populated areas in the world, the virus could easily rapidly spread.  Combined with the overcrowded conditions, the chronic shortage of medicines, regular power cuts, scarce resources, and lack of adequate medical care has the potential to lead to a “nightmare scenario” in the event of an outbreak.

Despite these concerns, repression from Israeli authorities has persisted, with raids on Palestinian communities continuing, pleas to release 5,000 Palestinians (including children) currently held in jail being refused following positive Covid-19 tests, and a persistent siege on the Gaza strip with no end in sight.

 

Libya

Libya_fightingWar-torn Libya is one of the latest victims of the international coronavirus pandemic with its first case confirmed on 24th March. While to date, only 8 people have tested positive for COVID-19, testing is limited and the failing health care system will struggle to cope if the virus spreads.

With the country split between two rival governments, there will be issues in implementing safety measures to protect citizens from the deadly virus. Since the civil war erupted in 2011, there has been an ongoing shortage of doctors and lack of central authority responsible for the national healthcare system. All borders have now been closed and foreign nationals are prohibited from entering the country. Schools and cafes are closed and prayers are suspended until further notice.

Despite a humanitarian pause being announced, the UN was “alarmed that hostilities have continued around Tripoli”.  Despite January’s truce, the fighting has killed over 1,000 and displaced 150,000 since April 2019. To relieve pressure on the already strained prison system, The Government of National Acord, the internationally recognised government, has freed just over 450 detainees from overpopulated correctional facilities.

Detainees and people in shelters are at paramount risk of infection, which Human Rights Watch predicts could lead to a humanitarian disaster for the country if the virus spreads.

 

Syria

Syria_hospitalOn Sunday, Syria reported its first COVID 19 fatality, heightening fears of the devastation the virus could wreak.  Ten years of conflict in Syria has led to the displacement of over half the population, 6 million of whom remain internally displaced in camps which are unprepared to respond to the pandemic.

Given the extent to which COVID 19 has overwhelmed western healthcare systems, the potential catastrophic risk it poses to Syria is almost unfathomable. Médecins Sans Frontières (MSF) has warned that access to healthcare is extremely poor in Syria given bombing of civilian areas and destruction of over 50% of hospitals. The London School of Economics released a research paper on Syria’s healthcare capacity last week stating that the maximum number of cases that can be ‘adequately treated’ is 6,500.

The World Health Organisation has mobilised an urgent response, delivering tests and protective gear.  However, aid agencies have been unable to deliver supplies given closure of the border with Iraq.  Human Rights Watch has reported that Turkish authorities are failing to supply water to north eastern areas of Syria, hindering the ability of agencies to protect against an outbreak of the virus.

Mr Pederson, the UN Special Envoy for Syria, has called for a nationwide ceasefire to allow for a ‘common effort’ against COVID 19. This has sparked hopes that a coordinated fight against the new coronavirus could unite forces and encourage a political settlement to end the conflict.   However, the situation remains dire as the already vulnerable population of war-torn Syria faces the new threat of a COVID 19 crisis.

 

Yemen

Yemen_Hospital_facemask_2How can Yemen, a country described already as experiencing the world’s worst humanitarian crisis, possibly cope with the looming threat of coronavirus?   80 percent of the population is at risk of hunger and disease, 17.8 million are without safe water and sanitation, 19.7 million are without adequate health care and the country has suffered the worst cholera epidemic ever recorded, at 2.3 million infected since 2015.

Last week, Yemen entered a 6th year of war, and with fighting continuing to rage, the UN Secretary General’s call for a ceasefire, to focus on the fight against coronavirus, appears to have fallen on deaf ears.  Despite lulls in the fighting during 2019, recent weeks have seen an alarming re-escalation in the conflict between Houthi rebels and the Saudi led coalition, which includes the US and UK.  A group of UN regional experts have called for warring parties to release political prisoners on both sides, to mitigate the risks of the spread of Covid-19 due to the overcrowded and squalid conditions in detention centres.

Yemen is the only country in the Middle East yet to record a case of coronavirus, due largely to having been placed under siege since the start of the war, with airports closed to commercial airlines and movement in and out of the country severely restricted.  However, the healthcare system in Yemen is already close to total collapse, and with news this week that the US is intending to cut aid funding for the poorest country in the Middle East, officials are warning of disastrous consequences, should an outbreak take hold.

 

Other stories making the news around the world

International

Africa

Asia

South and South-east Asia

Australasia

Europe

Middle East

North America

Latin America