Human rights in pandemics: criminal and punitive approaches to COVID-19

Abstract

In the early years of the HIV epidemic, many countries passed laws criminalising HIV non-disclosure, exposure and/or transmission. These responses, intended to limit transmission and punish those viewed as ‘irresponsible’, have since been found to undermine effective HIV responses by driving people away from diagnosis and increasing stigma towards those living with HIV. With the emergence of COVID-19, human rights and public health advocates raised concerns that countries might again respond with criminal and punitive approaches. To assess the degree to which countries adopted such strategies, 51 English-language emergency orders from 39 countries, representing seven world regions, were selected from the COVID-19 Law Lab, a database of COVID-19 related laws from over 190 countries. Emergency orders were reviewed to assess the type of restrictions identified, enforcement mechanisms and compliance with principles outlined in the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, including legality, legitimate aim, proportionality, non-discrimination, limited duration and subject to review. Approximately half of all orders examined included criminal sanctions related to violations of lockdowns. Few orders fully complied with the legal requirements for the limitation of, or derogation from, human rights obligations in public health emergencies. In future pandemics, policymakers should carefully assess the need for criminal and punitive responses and ensure that emergency orders comply with countries’ human rights obligations.