States of Control The dark side of pandemic politics Fionnuala Ni Aolain, Arun Kundnani, Anuradha Chenoy and María Paz Canales

August 21, 2020

Our webinar States of Control: the dark side of pandemic politics focused on the securitization of COVID-19. Measures such as the expansion of powers for military, police, and security forces and increased digital surveillance are being rolled out with little or no democratic oversight. How can we prevent the normalization of these practices and ensure that COVID-19 doesn’t become a new milestone in authoritarian states of control?

Fionnuala Ni Aolain

Fionnuala Ni Aolain, UN Special Rapporteur on the Protection and Promotion of Human Rights while Countering Terrorism, began by noting the importance of the speed of mobilization, global awareness, and exchange of information about the scale and scope of the powers being exercised by states during this pandemic. Following 9/11, the human rights and critical community took much longer to respond to a whole range of legal, political and administrative measures that were taken.

An emergency by definition denotes an unexpected event that poses a high burden or challenge to the state and in that context allows the state to take certain measures to protect the public. Under the human rights framework of international law, there are three specific contexts in which emergency powers – meaning the power of the state to limit rights – can be used: public safety, health and national security. The idea is that rights can only be limited for tailored specific purposes. International law includes divisions called derogation provisions in human rights treaties, meaning a state must formally inform other states and its own public that it is taking exceptional measures to respond to a crisis. However, there are a number of constraints on the state. The powers used must be necessary, so in this context of a pandemic, necessary to advance health. Any use of emergency powers must be proportionate, meaning every single measure must be exercised in order to assess if it is appropriately used. Any measures taken must be equality driven and cannot disproportionally or negatively affect one group over another.

Historically, the practices of emergency international law go back hundreds of years. In both civil and common law systems, powers of emergency have been used by states to aggregate their power over long periods of time. In addition to the high correlation between states of emergency and the abuse of human rights, temporary powers also have a persistent tendency to stick and states have rarely given them back at the point where the emergency is over. These powers also change the political cultures of states, removing many of the oversight mechanisms that constitute ordinary law. Subsequently, we tend to see a greater accumulation of executive powers, restrictions on parliamentary power, and an increase in the capacity and power of the security sector including the police. These resulting system-wide issues and the restriction of rights is why we must pay close attention when states use emergency powers.

In this moment, parallel to the medical pandemic is an epidemic of emergencies and extraordinary use of emergency powers. In a few cases, states are formally derogating and letting other states know that they are restricting rights but most are not. This corresponds to a major pattern of non-notification that has emerged post 9/11. These powers are being hidden in health and sanitation bills, making it hard for lawyers to find them and for NGOs and civil society organizations to know what these states are doing and therefore to hold them accountable.

Another pattern to consider is complex emergencies. In many countries, there is already an arsenal of post 9/11 counter-terrorism and security emergency powers that states are now adapting to the sphere of health. Private technology and security firms are also offering their services to states on how to use this arsenal of power and information.

Fionnuala concluded her introductory intervention by emphasizing the challenge that those of us speaking for liberty and human rights now face. It is not just the power of governments but also the power of fear and how it affects the rights we are prepared to give away in the face of a pandemic to save ourselves and our families.

Arun Kundnani

Arun Kundnani author of The Muslims are Coming! Islamophobia, extremism, and the domestic War on Terror, discussed the racialized aspects of this emergency legislation for certain populations, reiterating the context of 9/11 as a very clear example of what was presented as a temporary emergency becoming a permanent state of affairs. The terrorism acts that were rolled out around the world have not been repealed, and the authorization for the use of military force that was rushed through the US congress – in effect declaring the whole world as a battlefield for the US military – is still with us. The various forms of anti-Muslim racism that was generated by the war on terror have been intensifying around the globe, in countries including India, Sri Lanka, and Myanmar.

Fundamentally, two agendas are being rolled out by ruling elites. The first, the state dream of diminishing unruly populations including protesters, poor, migrants, and marginalized groups. The second, the neoliberal dream of creating a society in which our lives are entirely determined by market-based digital algorithms. Opposing these agendas means defending the very idea of humanity.

We are already seeing disproportionate effects of the pandemic on racialized groups as a result of institutional racism of various kinds. In the UK more than a third of deaths are people of colour even though they make up just 15 percent of the population. in Chicago, African Americans account for 64 percent of deaths even though they make up 15 percent of the population. These numbers are massively disproportionate and the American Civil Liberties Union estimates that there will be an additional 100,000 deaths in the US from COVID-19 as a result of mass incarceration. The impact on the global poor will also be hugely disproportionate and racialized. Frantz Fanon talked about the phrase I can't breathe as a description for the basis of anti-colonial revolt that became a slogan for the Black Lives Matter movement and is also an apt phrase to capture the disparities in access to ventilators that we are seeing.

The new licenses that have been given to police around the world to enforce quarantines and lockdowns are intensifying existing forms of violence that have long been normalized. In France, Parisian suburbs are seeing measures enforced three times as much compared to other areas of the city. In Greece, police forces are strip-searching migrants and in Bulgaria, Roma settlements are being walled off and drones with thermal sensors being used to track temperatures.

During a pandemic, it is reasonable to expect some restrictions on freedom of movement but we are seeing an increased clampdown on migrants placed in immigration detention centers where there is no possibility of isolation and where infection rates of 75 percent are predicted. In Qatar, migrant workers are being offered testing and instead being placed in detention and deported. This is very worrying as we need trust in the medical process to encourage people to participate in the testing we need. Various EU countries are turning away refugees across the Mediterranean in newly violent ways and Malaysia is refusing to accept refugees from Myanmar. In Hungary there was already an unwarranted state of emergency declared surrounding migration that cast this situation in a different light. Right-wing forces around the world are mobilizing around this virus with new forms of racism. Both Trump in the US and Orban in Hungary talk about 'the Chinese virus', implying a coordinated response.

Anuradha Chenoy

Expanding on the idea of the war narrative and the notion of creating an enemy, Anuradha Chenoy author of Militarisation and Women in South Asia continued by focusing on the idea of states using the ideology of militarization to accumulate power.

COVID-19 undoubtedly marks an authoritarian moment in world history in which regimes in power have used the virus to expand their control over citizens and centralize power even within democratic systems. When the virus started spreading almost all states had a similar reaction of panic, unpreparedness, lack of confidence in citizens, and taking emergency steps without declaring an emergency. India like many third world countries is hugely dependent on a working-class based on internally migrant labor who come from villages into towns. A complete lockdown was decided in a few hours and the state panic spread to these workers with about 700,000 returning to their villages knowing they could not sustain themselves without their daily wages while living in cramped conditions with little access to basic amenities and sanitation. It remains completely undocumented how many people got lost and died of fatigue and hunger. In South Africa, despite a moratorium on evictions, many municipalities used this moment to evict informal workers. We can see a new kind of protectionism within states where invisible borders are being imposed on communities, between villages and towns and gated communities and outsiders.

The lockdown is actually a lock-in for women in abusive relationships and the use of force on citizens has increased. In many countries including Israel, Philipines, Iraq, and Yemen, the military took to the streets, using force to exacerbate fear and anxiety. Vigilantes linked to many of the right-wing populist regimes and governments in power took on the role of stigmatizing particular communities.

Regarding the enemy narrative, India did not blame China as the US, Hungary and several others did. However, a congregation of a particular Muslim sect in Dehli was linked to the spread of the virus, further stigmatizing the Muslim community, while there were many similar congregations of other religions held at the same time. We have also seen a surge of Islamophobia in Myanmar and many southeast Asian countries as well as a clampdown on Palestinian communities by Israel.

Militarized discourse is being used to frame the pandemic as a war with leaders of many regimes referring to themselves as war presidents. The President of Uganda openly stated that the pandemic is like a war and people should not insist on their freedoms. This discourse transformed into practice in many countries, with terms such as herd immunity and COVID co-morbidity essentially used to refer to collateral damage during wartime. In India, non-violent students and protestors involved in a long struggle against discriminatory new citizenship laws have been detained under draconian laws and incarcerated at a moment where increasing jail populations risk escalating the spread of the virus. The recent Stockholm International Peace Research Institute (SIPRI) report shows no decrease in defense expenditure that many social communities, as well as NGOs and the UN, have been calling to spend on health. Regional and international organizations, including The South Asian Association for Regional Cooperation (SAARC) and the European Union, seemed far more concerned with closing borders than solidarity and assistance.

María Paz Canales

María Paz Canales of Derechos Digitales (Digital Rights campaign), Chile went on to discuss the role of technology in the rollout of authoritarian measures, linking its use to points made by the other panelists and emphasizing the fundamental part technology has played in the evolution of counter-terrorism military strategies and militarization.

In the current situation, many civil rights restricting technologies that were deployed to fight crises in the past are being repurposed by states and corporations under the pretext of helping to combat the spread of COVID-19. As previous panelists have mentioned, fear not only drives people to assign blame on a specific group but also to find shortcut solutions to tackle the problem in a more efficient way. Technology is a commonly regarded solution that many authoritarian, as well as democratic states, are tempted to use. However, extraordinary deployment of technology that can have any impact on human rights must be regarded and evaluated according to the international human rights standard. Principles of legality, necessity and proportionality are essential to consider. As mentioned, past emergency powers, as well as technologies, have the tendency to stick and we are now seeing the repurposing of surveillance technologies in the context of the pandemic. Many of these invasive technologies have hugely impacted the civil rights of vulnerable groups and did not prove significantly effective for their original purposes.

Specifically, civilian communication geolocalization technology has been proposed to help track the spread of COVID-19 but there is not enough discussion about the details of the fundamental capacities of these technologies. The type of data used in localization has a variability between five and 500 meters, and neither the granularity or precision needed to measure the possibility of viral transmission that spreads in contact situations of one to two meters. This implies the surveillance of people rather than the virus, and will unnecessarily expose marginalized groups to the risk of discrimination. The same can be said for facial recognition technology that has been used for national security counter-terrorism purposes to limited effectiveness due to lack of precision. We should be looking at these technologies far more critically and working towards resisting the appeal of techno solutionism as a response to fear, rather exploring alternative technologies that are compatible with human rights.

Further discussion

The discussion moved on to consider the future and how the world might look once the medical emergency subsides. Fionnuala continued by underlining the importance of thinking about this crisis as a process rather than an event. In an Orwellian outlook, we might imagine empowered authoritarians and weakened democracies and multilateral systems as an outcome. We may see narrower civil society space, a struggle for such organizations to survive, and an empowerment of states in ways that are profoundly discordant. However, this is also a potential for opportunity in the sense of crisis as innovation where disruption and pain brings extraordinary opportunity to rewrite the status quo. The pandemic illustrates structural failure and the lack of enforcement for fundamental rights like health, water, housing. These systemic issues are what we must focus on in order to emerge from this crisis in a better situation.

The world has shut down on the basis of the protection of the right to health so the question now is how do we proceed, assuming we have won the argument that health is a basic human right. Opportunities are presenting themselves for new ways of organizing, being intentional as a community, and finding innovative ways of calling our leaders to account and forcing them to consider rights. The global effect of the pandemic allows us to mobilize in a way we haven’t before. Although some are clearly affected more than others, every person's rights are being impinged upon in some way and this allows us to reclaim the language of rights for all in a way that is both rhetorical and profoundly practical.

Arun agreed with Fionnuala that we may have won the argument that healthcare is a right but not the battle for the kind of global public health care system that we need. What we will be up against is corporations trying to exploit this situation to create their version of a new agenda and new world order. Once we are used to conducting much more of our lives digitally via dependencies on corporations, this is where they will want to keep us. Delivering healthcare and higher education via video link for people who cannot afford in-person interactions could become a new standard. The Institute for Policy Studies recently released a report showing the wealth of billionaires in the US increased by ten percent in April alone. These findings are in line with Naomi Klein's idea of the shock doctrine, where such opportunities arise in crises.

How do we start thinking about social life in ways that are possible in this situation of a pandemic? How can we avoid freezing our lives in a moment where we are scared and isolated? Harsh authoritarian measures such as those inflicted on people in India and South Africa protesting because they have no food can seem legitimate in a situation of quarantine, but we must remember that we can protest and organize now. Our strength comes from the streets and we must not give up public space – it is likely safer for you to protest then be at work in an Amazon warehouse. It will be vital to defend our sense of human connection and the sense of collective movement building. In essence, the revolution will not be quarantined.

Many questions came through from the audience around mobilizing and organizing in a safe way that doesn't put people at risk. Anuradha went on to elaborate on participatory democracy and how we can push back on the shut down of democratic structures.

Alternate paradigms have shown themselves during this crisis within states, particularly those led by women that have worked properly through democratic procedures. In India, some states such as Kerala have handled the situation well and treated their migrant labor as guests, providing them with facilities enabling them to stay.

During this crisis, civil society in many southeast Asian countries as well as Africa and especially Europe, has shown its strength at a time states have failed to deliver, providing food packets from communities to migrants.

We have seen emerging alternative media including the Wire in India to counter toxic press like Fox News in the US. Many of these online newspapers are speaking truth to power and are involved in critical thinking with engaged scholars. Some universities have also resisted the clampdown. We need to connect ideas and show that the paradigm of civil society, critical scholars, and thinking individuals is the one we need to crack the dominant hegemony. Instead of globalization, we must focus on international solidarity.

Maria went on to discuss using technology to mobilize, highlighting the opportunity to finally mainstream the question of the development of technology as well as our online lives in general. How can we find alternative ways to develop technology that really serves the principles of solidarity and the social movements we are discussing? There is currently a very limited variety of tools that digital rights activists can recommend as being more secure and aligned with the principles of social movements. We must, therefore, use this increased awareness of what we need to collectively organize and create new technology that will better serve our purposes. As we see the use of technology by governments and the private sector in healthcare provision as well in the welfare state, it is clear that the human rights perspective must be considered from design to deployment. We cannot wait for this kind of crisis to confront us with the false dilemma of having to choose between which rights we want to keep in place. The awareness we have gained must fuel social movements to be more critical in their interactions with governments and companies for the future.

In her final intervention, Fionnuala responded to the question of what might happen if health goes beyond being seen as a human right and is interpreted as an issue of national security. The language of the indivisibility of rights is seeing a new moment where we understand the links between civil and political rights and economic and social rights, providing a moment to re-own that space of indivisibility. Historically it is also interesting to note that during previous health emergencies, such as H1N1, the use of powers taken by the state was actually returned.

Securitization must be robustly defended against as we have already seen in the counter-terrorism space where the term extremism infiltrated security into the home, doctors’ offices, and classrooms, making everyone a watcher for extremism. We must push back on the unacceptable securitization of health spaces through exceptionality.

In his final word, Arun spoke about a collaborative project with TNI investigating progressive alternative ways to use the billions spent on security in the UK. Security should be as much about healthcare as anything else. When militarized nation-states like the US are confronted with a global public health care crisis, their goal is to turn it into something that fits with what they are good at, therefore framing it as a matter of inter-nation state violence and rivalry.

As well as the dangers of militarization is the point at which people start asking why this happened and how we can stop it happening again. Assigning blame, whether that’s on China or Muslims, enables us to avoid the very important realization that these kinds of viruses are the product of capitalist agriculture, industrial production of meat and environmental destruction. Capitalist globalization is unsustainable without the global public health infrastructure that we need right now.

Anuradha’s final note was on approaching the crisis from a feminist perspective, considering intersectionality as well as a care economy with livelihood and living wages recognized as well as health.

Maria then concluded the discussion with a point on data rights, clarifying that not all data is the same in terms of value and the harm it can cause. We should be demanding that our authorities be more critical about what type of data is useful for what purposes considering the data that can be helpful in combatting the pandemic can be aggregated without identifying individuals. To allow governments to assists the most vulnerable people and make better strategies within allocating resources, testing capacities and health services it is not necessary to put those groups of people at risk of discrimination by collecting individual identities. This will be pervasive for the future with relevant consequences in the possibilities of employment and migration status. We must establish controls to make sure this type of data truly alleviates the crisis and does not harm people at risk of discrimination and violation of their human rights

About the author

Kirstie Crail is an Amsterdam based writer and editor freelancing in the
nonprofit and cultural sectors.

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