Pandemic Treaty Should Include Reporting in Prisons

Kyle Knight, Julia Bleckner, Edwin Cameron, and Joseph J. Amon

On December 1, 2021, the World Health Assembly, meeting in only the second Special Session since the World Health Organization’s (WHO) founding in 1948, agreed to develop a “convention, agreement, or other international instrument” to strengthen pandemic prevention, preparedness and response.[1] Dr. Tedros Ghebreyesus, WHO’s director, explained that this decision was taken as a result of the “many flaws in the global system to protect people from pandemics” which, although unstated in the WHO press release, necessarily must include the failure to protect those most vulnerable from SARS-CoV-2 infection and ensure their access to care.

At the onset of the COVID-19 pandemic it was not hard to anticipate that transmission would be exacerbated in places where individuals were in close contact, ventilation systems were inadequate, and the availability of health care and prevention measures were limited. These conditions are all found in locations such as cruise ships, college dormitories, and prisons. Yet, while great effort was taken to prevent transmission in the first two of these settings, one was often overlooked: prisons. Despite overcrowding, communal meals, and frequent turn-over in detainees and staff, responses to COVID-19 in detention facilities—including jails, prisons, and immigration detention centers—were often limited, and actions taken to reduce risk and cases and deaths in detention were often unreported.

In the United States, since the start of the pandemic, efforts to monitor the impact in prison suggest that at a minimum over 600,00 people in detention have been infected.[2] Efforts to monitor COVID infections and deaths globally have had limited funding and been largely unable to keep up or overcome the lack of reporting and transparency.[3] But headlines about COVID in detention can be found from around the world: “Prisons Face Covid-19 Catastrophe” in the DR Congo, “Coronavirus stalks cells of Cameroon’s crowded prisons”, “Coronavirus spreads in Egypt’s Al-Qanater Prison”, “New COVID-19 Outbreak in Iran’s Prisons, Regime’s Inaction, and a Looming Catastrophe” and on and on.[4]

The World Health Organization presents daily updates of COVID-19 cases in every country in the world.[5] Information on COVID-19 in prisons by contrast is voluntarily reported to WHO and between April 2020 and August 2021, only 18 Member States submitted even a single report.[6] These reports are unpublished. Although WHO’s regional office in Europe pro-actively sought to establish routine reporting of COVID-19 cases in prisons in the 53 countries in the region, reporting was still poor.[7] It is only as we enter the third year of the COVID pandemic that the WHO Europe office is publishing a report on “good practices” in managing COVID-19 in prisons, highlighting examples from mid-2020.[8]

The United Nations Office on Drugs and Crime (UNODC), which has a mandate to help countries in “building and reforming their prison systems … in compliance with human rights principles”, provides states with a voluntary checklist to assess prison conditions and treatment of prisoners, but has no information on the number of cases and deaths due to COVID-19 in detention worldwide, and scant guidance on prevention of transmission.[9] By contrast, they have research briefs related to the impact of COVID-19 on organized crime and on trafficking in opiates and methamphetamine.[10]

States have an obligation to ensure medical care for prisoners at least equivalent to that available to the general population.[11] According to the United Nations Committee on Economic, Social and Cultural Rights, “States are under the obligation to respect the right to health by, inter alia, refraining from denying or limiting equal access for all persons, including prisoners or detainees, minorities, asylum seekers and illegal immigrants, to preventive, curative and palliative health services.”[12] The UN Human Rights Committee has stated that governments have a “heightened duty of care to take any necessary measures to protect the lives of individuals deprived of their liberty” because by detaining people, the government “assume[s] responsibility to care for their life.”[13] In the context of the COVID-19 pandemic, UN human rights experts have drawn attention to prison conditions arguing that “[l]oss of life occurring in custody in unnatural circumstances creates a presumption of arbitrary deprivation of life,” and that “the duty to protect life also requires regular monitoring of prisoners’ health…”[14]

States also have obligations related to transparency, including the publication of information that can steer policy decision-making on priority steps needed to protect the right to health.

But global implementation of this basic reporting practice has been piecemeal at best. Thailand’s Department of Corrections, for example, reported on Covid-19 cases in prisons across the country and in specific facilities—but only after civil society pressure ratcheted up after some high-profile political prisoners tested positive.[15]

It was foreseeable that detention facilities would be hard hit by COVID-19. It is equally foreseeable that detention facilities will be hard hit the next time there is an airborne pandemic. The critical first step toward holding detention systems accountable and improving detainee health is visibility of the problem, but international agencies currently do little to encourage such reporting.

As negotiations towards a “pandemic treaty” advance, there will certainly be discussions on disease surveillance and reporting. There should also be discussion on the human rights obligations of states to collect and report data related to cases among those most vulnerable, and those in state custody. Data transparency and accuracy are the first steps toward effective responses and fundamental rights protections. UN agencies such as UNODC and WHO, which have promotion of health, and human rights, within their mandates, should provide technical assistance and make reporting mandatory and public to ensure transparency and accountability.

Kyle Knight is a Senior Researcher with Human Rights Watch, New York, USA.

Julia Bleckner is a PhD candidate in the department of political science at Yale University, New Haven, USA.

Edwin Cameron is the Inspecting Judge of the Judicial Inspectorate for Correctional Services, Pretoria, South Africa.

Joseph J. Amon is the director of the Office of Global Health and Clinical Professor, Drexel University Dornsife School of Public Health, Philadelphia, USA.

References

[1] World Health Organization. “World Health Assembly agrees to launch process to develop historic global accord on pandemic prevention, preparedness and response.” (press release). Dec 1, 2021

[2] UCLA Covid Behind Bars Data Project, https://uclacovidbehindbars.org/.

[3] Justice Project Pakistan. COVID-19 and Prisoners (database). https://jpp.org.pk/covid19-prisoners/

[4] Human Rights Watch, “DR Congo: Prisons Face Covid-19 Catastrophe.” (press release). April 17, 2020, https://www.hrw.org/news/2020/04/17/dr-congo-prisons-face-covid-19-catastrophe; E. McAllister and J. Kouagheu, “Coronavirus stalks cells of Cameroon’s crowded prisons,” Reuters, July 9, 2020, https://www.reuters.com/article/us-health-coronavirus-cameroon-prisons-i/coronavirus-stalks-cells-of-cameroons-crowded-prisons-idUSKBN24A0QZ; Middle East Monitor, “Coronavirus spreads in Egypt’s Al-Qanater Prison,” June 8, 2020, https://www.middleeastmonitor.com/20200608-coronavirus-spreads-in-egypts-al-qanater-prison/; Shamsi Saadati, “New COVID-19 Outbreak in Iran’s Prisons, Regime’s Inaction, and a Looming Catastrophe,” National Council of Resistance of Iran, June 4, 2020, https://www.ncr-iran.org/en/news/human-rights/new-covid-19-outbreak-in-irans-prisons-regimes-inaction-and-a-looming-catastrophe/

[5] World Health Organization, Covid-19 Dashboard, https://covid19.who.int/.

[6] World Health Organization, “WHO COVID-19 prison surveillance protocol: monitoring and reporting COVID-19 in prisons and other places of detention,” 2021, https://www.euro.who.int/en/health-topics/health-determinants/prisons-and-health/focus-areas/prevention-and-control-of-covid-19-in-prisons-and-other-places-of-detention/who-covid-19-prison-surveillance-protocol-monitoring-and-reporting-covid-19-in-prisons-and-other-places-of-detention-2021; World Health Organization, “Weekly epidemiological update on COVID-19 – 17 August 2021,” August 17, 2021, https://www.who.int/publications/m/item/weekly-epidemiological-update-on-covid-19—17-august-2021.

[7] WHO Europe. Health in Prisons – COVID-19. Minimum Dataset: Summary of data reported from May 2020 to October 2021. Copenhagen: WHO Regional Office for Europe; 2022. https://apps.who.int/iris/bitstream/handle/10665/351496/WHO-EURO-2022-4752-44515-63010-eng.pdf?sequence=1&isAllowed=y

[8] WHO Europe. Good practices in managing infectious diseases in prison settings: a snapshot of responses to COVID-19 implemented around the globe between May and September 2020. https://apps.who.int/iris/bitstream/handle/10665/352611/WHO-EURO-2022-5206-44970-64017-eng.pdf?sequence=1&isAllowed=y

[9] UNODC, Resources on Prison Reform. (webpage). https://www.unodc.org/unodc/en/urban-safety/prison-reform.html; UNODC, “Assessing compliance with the Nelson Mandela Rules A checklist for internal inspection mechanisms,” 2017, https://www.unodc.org/documents/justice-and-prison-reform/UNODC_Checklist_-_Nelson_Mandela_Rules.pdf; UNODC, “COVID-19 Guidance Note: Mitigating the disruptive impact of infection prevention and control measures in prisons: core principles and recommendations,” 2020, https://www.unodc.org/res/justice-and-prison-reform/cpcj-prison-reform_html/21-03769_Guidance_Note_IPC_ebook.pdf.

[10] UNODC, “Research Brief: The impact of COVID-19 on organized crime,” July 13, 2020, https://www.unodc.org/documents/data-and-analysis/covid/RB_COVID_organized_crime_july13_web.pdf; UNODC, “UNODC Drugs Monitoring Platform Brief: Possible impact of the COVID-19 pandemic on trafficking in opiates and methamphetamine originating in Afghanistan,” https://www.unodc.org/documents/data-and-analysis/covid/DMP_Brief_short.pdf.

[11] J. J. Amon. COVID-19 and detention: respecting human rights. Health and Human Rights. 2020 Jun;22(1):367, https://www.hhrjournal.org/2020/03/covid-19-and-detention-respecting-human-rights/

[12] Committee on Economic, Social and Cultural Rights, General Comment No. 14 (2000) on the Right to the Highest Attainable Standard of Health, UN Doc E.C 12/2000/4, para. 34.

[13] Human Rights Committee, General comment No. 36 (2018) on article 6 of the International Covenant on Civil and Political Rights, on the right to life, UN Doc. CCPR/C/GC/36, para 25.

[14] Mandates of the Special Rapporteur on extrajudicial, summary or arbitrary executions, the Working Group on Arbitrary Detention, the Special Rapporteur on the right to food, and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Communication to Government of Sri Lanka Regarding Alleged Human Rights Violations in Prisons,” January 29, 2021, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25987.

[15] International Federation for Human Rights. “Thailand: Joint Letter on Prison Conditions and COVID-19”. July 19, 2021. https://www.fidh.org/en/region/asia/thailand/joint-letter-on-prison-conditions-and-covid-19