Thoughts about the human rights challenges we confront in the fog of the war with the Corona Virus

Commentary by Neal S. Rubin, PhD, ABPP
April, 2020

Given my interests in human rights, I find myself thinking about some of the moral and ethical challenges we are grappling with today as we confront a global pandemic.  Across countries and cultures, we are making sacrifices for the common good to deal with the Corona Virus. In numerous countries across the globe, citizens are engaged in social distancing, staying at home, avoiding large gatherings not only for themselves, but for the safety of others as well.  As concerned citizens, we accept this responsibility.  Out of a sense of trust in leadership and one another, there is a shared acceptance of these enforcement measures to contain or mitigate the local and worldwide effects of Covid-19. Governments encourage and in places monitor adherence to these new norms of conduct regarding freedom of movement.  At the same time, these limitations that compromise our rights are also a result of authoritarian steps taken by leadership–for the good of all.  

We are in a state of emergency– truly exceptional circumstances.  Some refer to it as a war with a virus.  But there is a phrase that is used to capture how, during war, judgment may become skewed, that significant miscalculations and profound errors in behavior may be made in the “fog of war.”  And in such a circumstance, questions emerge with respect to human rights.  Are there circumstances in which human rights may need to be compromised for the greater good? When should we hold firm to the protections of human rights principles even when unpopular?

There are many challenges before us that require thoughtful, informed leadership. Here are some to consider:

Challenges to the Right of Privacy

Today, governments are creating legislation that extends the power of the state and in some cases of governmental leaders (Hungary).  The balance of protections for individual rights and the right of governments to protect society is a delicate one in the fog of war.  It can be argued that the mass surveillance we have seen in some societies (Singapore, Taiwan, South Korea) has been pivotal to “flattening the curve.” There is abundant scientific evidence that contact tracing works.  Tracking citizens by geo-location has been shown to enhance survival (Israel, India). At the same time, the harvesting of personal data by some governments without the knowledge of citizens violates the right to privacy. 

These same dilemmas have emerged in the corporate tech world. Here there are significant questions of privacy and free speech as companies attempt to balance these principles with censorship of false content or ‘fake news’ which proliferates on social media platforms.  Misinformation may propel the pandemic, raising the specter of increasing death rates. At the same time, what happens when leaders, under the guise of preventing misinformation, also create harm by controlling speech on and off line for political purposes?

There has also been evidence that Tech companies are seizing on the emergency as an opportunity to advance their corporate interests. Numerous reports in the press describe that Zoom, the enormously popular platform for teleconferencing, has benefitted financially by sharing the personal information of users without transparency to consumers who sign up to utilize this service. During the time of the pandemic, the utilization of this platform has exploded in the social, educational and in the business spheres.

Challenges for the Protection of Human Subjects

The global scientific community is racing to find efficacious treatments, vaccines and eventually a cure.  The safety and health of the world community is at stake.  In laboratories and medical centers throughout the world, investigators are working night and day to find answers to save and protect lives. But even science is not without risks when it comes to medical experimentation. We have standards for the protections of the rights of human subjects. Is the current emergency a situation that requires some adjustment of these protections in the interest of the greater good? What is the appropriate role of institutional review boards at such a time?  It is ubiquitous to hear that “we must rely on the science,” but there are competing interests in the science of discovery that we must be alert to that might impact the rights of human subjects.

Challenges to the right to health and healthcare

Further, who will benefit from these scientific advances?  Will all global citizens have equal rights to the vaccine and the cure?  Billions of people do not have access to adequate healthcare. At such an exceptional time, it is imperative that healthcare be available as widely as possible for the benefit of not only the individual, but the good of humanity.  Experts predict that the virus will wax and wane, but the key to containing advancement will need to be a vision for the public health of all.  Access to healthcare is a human right.  

Challenges to the rights of vulnerable people: healthcare rationing

Similarly, our health care professionals are dealing with extraordinary pressures as they are faced with the rationing of medical care of their patients.  There is enormous stress on them as they face moral and ethical dilemmas. Governments attempting to address this situation are weighing in. A recent report in the New York Times documented that individual states in the United States are setting limits on access to life saving care. While driven by the intensity of the moment, the lack of medical resources for both patients and staff  forces anguishing questions to be asked:

 Who lives and who dies? Who is valuable and why?

Being faced with rationing care, for example, the Times reports that the state of Alabama’s plan designates that “severe or profound mental retardation” as well as “moderate to severe dementia” should be considered “unlikely candidates for ventilator support.”  The dark history of Eugenics comes to mind.  Similar sentiments are articulated by some in leadership in the United States about restarting the US economy to save some lives, while it is understood that others will perish as a consequence.  Such statements are particularly egregious coming from the leadership of a nation formerly the beacon to guide the free world. 

These initiatives violate international law and international declarations of rights: The Convention on the Rights of Persons with Disabilities, The Universal Declaration of Human Rights which guarantees the right to healthcare, The International Covenant on Economic, Social and Cultural Rights which guarantees the right to the benefits of science. The floating of current ideas that ‘older persons’ might be sacrificed for the common good is in serious discussion by leadership.

Social Justice and Inequality

Today there are issues of life and death.  Who gets tested, who gets care, who gets a ventilator? It is clear to me that health disparities across societies will only be accentuated by the current pandemic and response to the crisis– culturally, economically and politically (compromises of fundamental democratic rights and principles).  Evidence is emerging in the US of racial disparities in Corona Virus death rates which are best understood as a consequence of generations of discrimination and marginalization leaving minorities in communities of color vulnerable to lower life expectancy even before the pandemic.

In many places across the globe, social distancing is not a realistic option, medical care is scarce, there will be no ventilators.  Inevitably, those who are most vulnerable will suffer tremendously.  The virus has been devastating in high income countries with advanced healthcare systems. What will happen to low- and middle-income countries with fragile or even no healthcare infrastructure?  As global citizens, it is in our interest to address these inequalities much as the UN has done by establishing the Sustainable Development Goals.  They represent a vision that “no one will be left behind.”

But what are the limits of the compromises to our rights?  Do we inadvertently risk promoting inequalities across communities and across societies, thinking we are acting in the common good? And what of the future at a time when autocrats are on the rise who would abuse these limitations of rights—today and in the future? Might certain limitations of rights be abused for political purposes, the rights never returned to civil society?

So, we not only have a devastating global medical crisis, we also have a crisis of human rights.  This rights crisis has profound implications for social justice.  None of us knows what the future will hold; we do not know what the new normal will look like for months, perhaps years to come.  In my view we risk amplifying pre-existing inequalities and doubling down on those most vulnerable in our world.  Without greater attention to human rights, I fear we are moving toward a caste-like system in which only certain segments of societies will be protected. 

As our children and grandchildren view the current historic era from a distance will they find emergency legislation sunsetted; political power returned to the people; free speech resurrected; mass surveillance curtailed? 

We are at a time when we need thoughtful, informed guidance to address these challenges.  We are faced with profound questions about life and death, right and wrong.  We mourn and we feel the sadness and heartbreak of those that have suffered and perished here and around the world.  There are lessons to be learned, questions to be answered, hope to be nurtured.   Speaking personally, the place I look to for guidance on these questions is viewing the challenges before us through the lens of human rights. 


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